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IMA POLICY MANUAL
PART IV: NON-FINANCIAL ELIGIBILITY REQUIREMENTS
Determining Whether an Immigrant Has Been Abused or Is The Child or Parent of an Abused Individual 7.10.4
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To be a 'qualified immigrant,' a victim of abuse must demonstrate one of the following:
- that s/he was abused by a parent, spouse, or member of the spouse's or parent's family living in the same household;
- that s/he is a child whose parent was abused by the parent's spouse or a member of the spouse's family living in the same household. (In this situation, the child does not have to have been abused); or
- that s/he is a parent whose child was abused by the applicant's spouse or parent, or a member of the spouse's or parent's family living in the same household. (In this situation, the parent does not have to have been abused. Also, the applicant must not have participated in the abuse of the child.)
The abuse suffered by the applicant may be physical, sexual, emotional, or mental. Abuse could include, for example, being the victim of any act or threatened act of violence, including any forceful detention, which results in physical or mental injury. Psychological or sexual abuse or exploitation, including intimidation, threats, rape or forced prostitution, shall be considered acts of violence. Other abusive actions may also be acts of violence. Acts or threats that may not initially appear abusive may be part of an overall pattern of abuse.
Applicants may submit any credible evidence of abuse. Examples of acceptable documentation include, but are not limited to, any of the following: a signed and sworn affidavit testifying to the abuse, reports and affidavits from witnesses, family members, judges, police, social workers, counselors, clergy, and school officials. In the absence of any other documentation, a signed and sworn affidavit testifying to the abuse is sufficient.
Establishing abuse is a prerequisite to qualify for certain immigration remedies such as a self-petition for an immigrant visa filed on the basis of abuse or cancellation of removal/suspension of deportation filed on the basis of abuse. (These remedies are discussed below). Therefore, immigrants who have approved or pending prima facie cases for these particular immigration remedies should be presumed to have established abuse. (The term 'prima facie' means that, on its face, the document appears to establish eligibility for the relief sought.) |
Determining Whether the Immigrant Has Filed Necessary Petitions 7.10.5
To be a 'qualified immigrant' based on domestic violence criteria, the immigrant must have an approved application or petition, or a pending application or petition that sets forth a prima facie case, for one of the following:
- an I-130 petition for an immigrant visa filed by the applicant’s U.S. citizen or Legal Permanent Resident (LPR) spouse or parent;
The I-130 petition is the form used by U.S. citizens and LPRs to assist family members, including spouses and certain offspring, to become LPRs. Only I-130 petitions describing the following relationships are relevant to establishing 'qualified immigrant' status: husbands or wives of U.S. citizens or LPRs, unmarried children under 21 years old of U.S. citizens or LPRs, or the unmarried sons or daughters age 21 or older of LPRs. An unmarried child under 21 years old whose parent is married to a LPR may be included in the parent's I-130 petition as a derivative beneficiary. In such case, the child may not have a separate I-130 or approval notice. Nonetheless, as a derivative beneficiary, the child is eligible to be classified as a 'qualified immigrant.'
- an I-360 self-petition for an immigrant visa filed on the basis of abuse;
Spouses and unmarried children under 21 years old who are abused by their U.S. citizen or LPR spouse or parent, may file self-petitions (Form I-360) for LPR status, without the knowledge or consent of their abusive spouse or parent. Also, a parent whose child is abused by the parent's U.S. citizen or LPR spouse can self-petition, even if the parent has not been abused. These self-petitions are commonly known as VAWA petitions.
An unmarried child under 21 years old may be included in the parent's I-360 petition as a derivative beneficiary and the I-360 will reflect this. In such case, the child may not have a separate I-360, Notice of Prima Facie Eligibility or Approval Notice. Nonetheless, as a derivative beneficiary, the child is eligible to be classified as a 'qualified immigrant.'
- an I-360 self-petition for an immigrant visa filed as a widow/er (and the widow/er's children) of a deceased U.S. citizen.
An unremarried widow/er of a U.S. citizen, who was married to the citizen for at least two years, may file a self-petition to become an LPR. The petition has to be filed within two years of the death of the citizen. The widow/er's unmarried children under 21 years old may file as well; or
- an application for cancellation of removal (Form EOIR-42B) or suspension of deportation (Form EOIR-40) filed on the basis of abuse.
An immigrant who has been continuously present in the U.S. for three years, and meets other requirements, may file for cancellation of removal/suspension of deportation before an Immigration Judge if the immigrant has been abused by a U.S. citizen or LPR spouse or parent. Also, an immigrant whose child is abused by the child's U.S. citizen or LPR parent can file for cancellation of removal/suspension of deportation, even if the immigrant has not been abused and has not married the child's abusive parent. A successful application stops the immigrant's deportation from the U.S. and results in LPR status for the immigrant.
Determining Whether the Immigrant No Longer Lives with the Abuser 7.10.6
To be a 'qualified immigrant,' the immigrant cannot currently live with the abuser.
Applicants may submit any credible evidence of non-residency with the abuser. Examples of acceptable documentation include, but are not limited to, any of the following: a letter from friends, family members, or other third parties; a civil protection order requiring the batterer to stay away from the applicant or the applicant's children or parent; a notice or order evicting the batterer from the applicant's residence; employment records; utility receipts; school records; hospital or medical records; rental records or records from a building or property manager; other records establishing that the applicant or his or her child or parent no longer resides with the abusive spouse, parent, or family member.
In some circumstances, abused immigrants who are financially dependent on their abusers may be unable or hesitant to leave their abusers unless they have resources to assist them pending flight or separation. In such instances, the SSR should provide the customer with information about domestic violence shelters and service providers. In addition, the SSR should explain to the individual that s/he will only qualify for assistance after s/he no longer resides with the abuser.
Follow the procedures outlined below to verify the immigration status of applicants who allege eligibility as abused immigrants.
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