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Legal Information: Federal


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Laws current as of May 29, 2024

What documents will I need in order to apply for a battered spouse or child waiver?

The first step before filing any documents is to get a lawyer, if possible, with experience doing battered spouse or child waivers. Next, with the attorney’s help, you will fill out Form I-751.

You may wish to write a personal statement, which can be very helpful in winning your case, especially if you don’t have a lot of other documents to show good faith marriage or battery or extreme cruelty. The personal statement is the first opportunity that you have to tell your story in your own words and for USCIS to hear your “voice.” An attorney or advocate can help you organize your story but your personal statement should be in your own words.

You may also need to work with others, such as a domestic violence advocate, a mental health counselor, and other professionals who can write “corroborating” statements, which back up your claims of abuse. Corroborating statements can describe the facts of the abuse, as you told them to the advocate or counselor, and explain how those facts are domestic violence in your case. The advocate can explain, for instance, the details of any economic control, humiliation, and isolation you experienced and how those are forms of power and control commonly used by abusers. Corroborating statements can be very helpful, especially for when the abuse was not physical or there are no police reports, protection orders, or medical reports. An advocate who works with you can also help you find and collect other evidence that supports your case.

There may be things that the abuser did that are just too hard for you or your children to write down in your personal statement. If you told those things to your advocate or counselor, s/he can discuss those facts in his/her corroborating statement and explain what kind of domestic abuse it was, such as marital rape, for instance. It is OK for you to say it’s too hard for you to describe certain incidents of abuse as long as someone else, like your counselor, can describe it in detail for you, based on what you told him/her. The goal of this law is to help crime victims, not re-traumatize them.

The law says that you can provide “any credible evidence” for your case, but USCIS may think some kinds of evidence are more believable (“credible”) than others. Evidence besides your own statement that may support your case (“corroboration”) includes anything from medical, legal, or social service systems that supports your own story and shows you meet the requirements. USCIS likes evidence from other “systems” because those systems are seen as having “experts.” USCIS will, however, look at evidence from other sources too, especially if you and your lawyer explain why you couldn’t get “systems” evidence and why this source is believable, trustworthy, and knowledgeable. For some practice pointers on how your lawyer can help you send the best evidence you can to USCIS, go to ASISTA’s website.

Will I have to testify about my application?

USCIS can approve a battered spouse or child waiver without an interview, but in some cases, they will want to interview you about your case. If that happens, they will notify you and your lawyer about the date and location of the interview. You will need to work with your lawyer to prepare for the interview.

What happens after my lawyer files my battered spouse or child waiver?

After your attorney files your battered spouse or child waiver, US Citizenship and Immigration Services (USCIS) sends a receipt to the address you provide on your application. That receipt will tell you what date USCIS received your application. The receipt notice will also extend your conditional permanent residence for four years.1 The extension will allow you to continue working and maintaining your immigration status while USCIS reviews your application. You should consult with your immigration attorney before traveling outside the United States while your battered spouse or child waiver application is pending.

Be sure to use a safe address where the abuser will not get the mail and where you can be sure that you will receive it. USCIS may later request additional evidence from you so it’s very important to use an address where you will be sure to receive mail. Many people use their lawyer’s office address.

How long will USCIS take to review my application?

USCIS’s processing times have changed over the years, and it is difficult to predict how long a battered spouse or child waiver that is filed now will take. The processing time for I-751s depends on which USCIS office is adjudicating the petition. As of March 2024, USCIS is taking between 18 to 34 months to review I-751s, including joint petitions and waiver applications. You can find USCIS’s updated case processing times on the USCIS website. Because it takes so long for the government to review the waiver and they may have additional questions for you, it is very important to keep your mailing address up to date with USCIS the entire time that your application is pending.

If the battered spouse or child waiver is approved, what will my immigration status be?

If the battered spouse or child waiver is approved, the “condition” in your conditional permanent residence will be removed.1 That means you will have legal permanent residence and you will continue to be able to live and work legally in the US. Your “green card” will be valid for ten years.

If you included any of your children as derivatives, their conditions will also be removed, and they will receive a new “green card” that will be valid for ten years.

1 See INA § 216(c)(4)(C), (c)(4)(D)

If the battered spouse or child waiver is approved, how soon can I apply for citizenship?

You can apply for citizenship once you have been a permanent resident for a total of three years if your abusive spouse or parent is a U.S. citizen, or five years if your abusive spouse is a lawful permanent resident.1 The three- or five-year period includes the time when you were a conditional permanent resident. Depending on when you file your battered spouse or child waiver and how long your case is pending, you may be eligible to apply for citizenship once the waiver is approved or even before then.2

1 8 USC § 1186a(e), INA § 216(e)
2 See USCIS Interoffice memorandum, 1/27/05