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Laws current as of May 29, 2024

What is a battered spouse or child waiver? How do I know if I am eligible?

A battered spouse waiver and a battered child waiver are legal protections under VAWA for immigrant victims of abuse who have conditional permanent residence. Normally, once you are married to your US citizen or lawful permanent resident spouse for two years, you can apply to get the “condition” removed from your lawful permanent residence when your spouse, who filed the initial application for your status, signs a “joint petition” with you. However, when there is domestic violence, the abusive spouse may refuse to file the joint petition or use it as a tool of power and control to further abuse you. This is why Congress created the battered spouse waiver under VAWA. If you are abused, you can file for a “waiver” of this “joint petition” requirement so that you don’t need your spouse’s participation in getting the condition removed from your conditional permanent residence status. You can get the VAWA battered spouse waiver if you can prove that your spouse or parent abused you.

If your US citizen or lawful permanent resident spouse filed a family immigration petition for your children, they also may be able to get the “condition” removed without the abuser signing a “joint petition” based on the abuse committed against you or them by your spouse. If your children received their conditional permanent residence at the same time as you or within 90 days after you, you can include them as “derivatives” on your waiver application.1 Otherwise, your children would file their own battered child waivers.

The other eligibility requirements that you’d have to prove to get a battered spouse or child waiver are:

  1. the marriage that is the basis for conditional permanent residence was a “good faith marriage;” and
  2. during the marriage, you or your child were battered or subjected to extreme cruelty by the US citizen or legal permanent resident abuser.1 “Extreme cruelty” is any form of power and control and includes, but is not limited to, being the victim of or threatened with an act of violence, forcible detention that results or threatens to result in physical or mental injury, psychological or sexual abuse or exploitation, rape, molestation, incest if the victim was a minor, and forced prostitution.2

Note: If the abuser won’t file a joint petition with you and you don’t apply for a VAWA battered spouse waiver before your conditional permanent residence expires, you will lose your lawful permanent residence,and the government may place you and your children in removal proceedings. However, you can still file your battered spouse waiver or battered child waiver even after your conditional permanent residence has expired.4

1 INA § 216(c)(4)(C)
8 CFR 216.5(e)(3)(i)
3 INA § 216(c)(2)(A)(i)
4 8 CFR 216.5(e)(3)(ii)