Employment Authorization for Battered Spouses of Certain Nonimmigrants

The Violence Against Women Act (VAWA) allows battered spouses, children or parents of U.S. citizens or legal residents to apply for permanent residence (green card) on their own.

Certain battered spouses of nonimmigrant U.S. workers may also apply for employment authorization if they or their children have been abused by the principal nonimmigrant worker, according to a recent USCIS policy memo dated March 8, 2016 (PM-602-0130).

Pursuant to section 106 to the Immigration Act, a battered spouse of a nonimmigrant may apply for an employment authorization document (EAD) by producing credible evidence of abuse or extreme cruelty.  Such evidence could be police reports, medical record and photographs regarding any physical injuries, psychological evaluation, statements by credible witnesses such as friends, neighbors, co-workers, and family members.

The applicant must also prove that he or she came to the U.S. with the principal spouse who belongs to one of these nonimmigrant visa categories: INA section 101(a)(15)(A) [diplomats, foreign government employees], (E)(iii) [Australian professional workers], (G) [other foreign government/international organization employees and representatives], or (H) [H-1B workers, temporary nurses, fashion models, etc.]   Documents such as visas, passport stamps, immigration notices, etc., can be used as proof.

Further, the applicant must show that he or she is or was married to the principal nonimmigrant spouse. The applicant still qualifies for EAD if the spouse died or lost qualifying nonimmigrant status (e.g. H-1B) because of domestic violence within two years of the filing the EAD application,  If an applicant's marriage was terminated as a result of the principal's abuse or extreme cruelty, the applicant may also apply for an EAD within two years.  However, if the applicant remarries before the EAD is approved, he or she will no longer be eligible for employment authorization.

To apply for an EAD, applicants must file the Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse.  

Revocation of VAWA-Based Self-Petitions

On December 15, 2010, the USCIS issued a policy memorandum on revocation of
VAWA-Based Self-Petitions (Forms I-360).  The policy memo provides policy
guidelines which the Vermont Service Center and the field offices must follow in
revoking a VAWA self petition.

The Violence Against Women Act (VAWA) was a law passed by U.S. Congress in 1994 to allocate resources to investigate and prosecute cases of violence against women.  In the immigration context, victims of violence may also file self-petitions to obtain legal status.  In 1997, to ensure uniform and
expeditious treatment of all self-petitions filed by battered spouses and children, the former INS implemented a centralized filing procedure by having all VAWA self-petitions adjudicated at the VSC.  The reason was that the VSC adjudications officers  assigned to review VAWA petitions had received
specialized domestic violence training and have developed expertise in adjudicating these petitions.

After a self-petition is approved, the USCIS has the authority to revoke the petition based on reliable new evidence.  Again to ensure that petitions were revoked in a consistent and efficient manner, the former INS issued a policy memo in 2002 to designate the VSC as the sole office that had the authority to
issue notices of intent to revoke Form I-130.  This policy has not been consistently followed by the local offices.  Consequently, a new memo was issued by the USCIS in December to address this issue again.  In order to revoke a self-petition filed by abused spouses, children and parents of U.S. citizens or
lawful permanet residents,  the following guidelines must be followed:

(1)Request for Review of an Approved VAWA-based Form I-360: If an officer in the field intends to revoke an approved petition based on new information that was not available to the VSC at the time of the approval of a VAWA self-petition, the officer must write a memorandum to his or her Supervisory Immigration Service Officer (SISO) explaining why the VAWA self-petition should be reviewed
for possible revocation. The memorandum must state what the new information is and how USCIS obtained it.

(2) Supervisory Review and Return to VSC: If, upon review of an officer's memorandum of explanation, the SISO concurs in the officer's assessment, the SISO must sign the memorandum and forward it, with the file in question, to the VSC to the attention of the VAWA unit.

(3) VSC VAWA Supervisor Review:  A VSC VAWA unit supervisor will review the memorandum of explanation and the relating file and make a recommendation either to start revocation proceedings or to reaffirm approval of the self-petition. If the VSC supervisor decides not to revoke the petition, he or she  must write a memorandum explaining why the self-petition was not revoked. This memorandum
will be returned to the field with the file. The VSC is expected to complete its review process on an expedited basis.

(4) Use of Information:  DHS employees are prohibited by law from making an adverse determination of admissibility or deportability of an alien using information provided solely by an abusive spouse, an abuse parent, or a member of the same household if the spouse or parent of the alien consented to or
acquiesced in such battery or cruelty.  Any adverse information received by USCIS from a self-petitioner's U.S. citizen or lawful permanent resident spouse or parent, or from relatives of that spouse or parent, must be independently corroborated by an unrelated source before USCIS may rely on that information.  DHS employees are also prohibited from using or disclosing to others of any
information that relates to VAWA self-petitioner except for official business.