Appendix C
Family-Related and Domestic Violence-Related Immigration Options:
Some Similarities and Differences
VAWA Self Petition on Form I-360
Relative Petition on Form I-130
VAWA Self Petition on Form I-360
Relative Petition on Form I-130
Petitioner
The intending immigrant herself files the
VAWA self-petition and controls the process.
The USC or LPR family member files the
Relative Petition and may withdraw any time
up until the moment permanent resident
status is granted.
Immigration status of
anchor relative at time
of filing
 USC;
 USC;4
 LPR;
 LPR
 former USC where immigration status lost
in the previous two years because of
domestic violence1
 former LPR where immigration status lost
in the previous two years because of
domestic violence2 or deceased USC
 deceased USC spouse where death
occurred in the last two years3
Effect of pre-filing
termination or nonexistence of marital
relationship
 Pre-filing, a divorce will not prevent
eligibility for filing a VAWA self-petition
where the divorce takes place in the two
years immediately proceeding the filing
and there is a connection between the
divorce and the domestic violence.5
Prevents eligibility.
 Pre-filing lack of marital relationship due
to previously unknown bigamy does not
change eligibility for a VAWA selfpetition.6
1
2
3
4
5
6
INA §204(a)(1)(A)(iii)(II)(aa)(CC)(bbb) (spouse of former USC); INA §204(a)(1)(A)(iv) (child of former
USC).
INA §204(a)(1)(B)(ii)(II)(aa)(CC)(aaa) (spouse of former LPR); INA §204(a)(1)(B)(iii) (child of former
LPR).
INA §204(a)(1)(A)(iii)(II)(aa)(CC)(aaa) (widowed spouse of deceased USC).
NB: Although non-citizens whose spouses have died may not file Relative Petitions, they are eligible to
self-petition as widows. INA §201(b)(2)(A)(i).
INA §§ 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc)(USC) & (B)(ii)(II)(aa)(CC)(bbb) (LPR); see also Memorandum
from Stuart Anderson, Exec. Assoc. Comm'r, to Michael Pearson, Exec. Assoc. Comm'r, File No.
HQADN/70/8, Eligibility to Self-Petition as a Battered Spouse of a U.S. Citizen or Lawful Permanent
Resident Within Two Years of Divorce (Jan. 2, 2002), available at
http://www.asistaonline.org/legalresources/I-360Self-Petitiondocs/Policy_Memos/Pearson_-_1-2-02.pdf.
See INA §§ 204(a)(1)(A)(iii)(II)(aa)(BB) (USC) & (B)(ii)(II)(aa)(BB) (LPR); see also Memorandum from
Johnny N. Williams, Exec. Assoc. Comm’r, to Regional Directors, Deputy Exec. Assoc. Comm’r, INS, File
No. HQADN/70/8, Eligibility to Self-Petition as an Intended Spouse of an Abusive U.S. Citizen or Lawful
Permanent Resident (Aug. 21, 2002), available at http://www.asistaonline.org/legalresources/I-360SelfPetitiondocs/Policy_Memos/Williams_-_8-21-02.pdf; also available at AILA InfoNet Doc. No. 02091042
(posted Sep. 10, 2002).
Ongoing familial
relationship with USC
or LPR anchor relative
VAWA Self Petition on Form I-360
Relative Petition on Form I-130
 Post-filing loss of status by anchor
relative does not affect the validity of the
VAWA self-petition7
The Relative Petition will be automatically
revoked12 upon:
 Post-filing divorce from anchor relative
does not affect the validity of the VAWA
self-petition8
 Loss of immigration status of the
petitioner;
 Divorce between petitioner and
beneficiary;
 Post-filing death of anchor USC relative
post-filing does not affect the validity of
the VAWA self-petition.9
 Marriage of beneficiary where marriage
ends beneficiary’s eligibility as an
immediate or preference relative;
 Post-approval remarriage or marriage of
VAWA10
 Aging-out13
 Post-lack of marital relationship due to
previously unknown bigamy does not
change validity of VAWA self-petition.11
 Death of Petitioner;14
Employment
authorization
Upon approval of the I-360, the approved
VAWA self-petition is eligible to work
incident to status.15
The approval of the I-130 grants no
employment authorization benefits.16
Lawful presence in the
United States
Upon approval of the I-360, a VAWA selfpetitioner is allowed to remain in the United
States (if already present) and is granted
deferred action, making her lawfully
present.17
The approval of an I-130 does not grant a
non-citizen the right to be in the United
States.18
7
8
9
10
11
12
13
14
15
16
17
INA §204(a)(1)(A)(vi) (spouses and children of USCs); INA §204(a)(1)(B)(v)(I) (spouses and children of
LPRs)
Id.
INA §204(a)(1)(A)(vi).
INA §204(h).
See INA §§ 204(a)(1)(A)(iii)(II)(aa)(BB) (USC) & (B)(ii)(II)(aa)(BB) (LPR); see also Memorandum from
Johnny N. Williams, Exec. Assoc. Comm’r, to Regional Directors, Deputy Exec. Assoc. Comm’r, INS, File
No. HQADN/70/8, Eligibility to Self-Petition as an Intended Spouse of an Abusive U.S. Citizen or Lawful
Permanent Resident (Aug. 21, 2002), available at http://www.asistaonline.org/legalresources/I-360SelfPetitiondocs/Policy_Memos/Williams_-_8-21-02.pdf; also available at AILA InfoNet Doc. No. 02091042
(posted Sep. 10, 2002).
8 CFR §205.1
Some children are protected from aging out upon turning 21 under INA §201(f) or INA §203(h).
Under certain circumstances, USCIS may choose to allow a beneficiary of a Relative Petition to obtain
lawful permanent resident status after the death of the petitioner (called humanitarian reinstatement).
See 8CFR § 205.1(a)(3)(i)(C); see also INA § 212(a)(4)(C)(ii) and INA §213A(f).
INA §204(a)(1)(K), added by section 814(b) of the Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006). Current practice, based
on pre-January 5, 2006 law, includes filing an Application for an Employment Authorization Document
(EAD) on Form I-765 to obtain an EAD. At the time of this writing, it is unclear whether the separate filing
of an Application for an EAD on Form I-765 will continue to be a requirement once INA §204(a)(1)(K) has
been implemented.
But cf. INA§101(a)(15)(V) and INA §214(q)(a limited exception for Preference Category 2A I-130
beneficiaries who had pending or approved I-130s before Dec. 21, 2000).
See Memorandum from Michael D. Cronin, Acting Exec. Assoc. Comm’r, to Vermont Service Center, File
No. HQ/ADN70/6.1P, Deferred Action Determinations for Self-petitioning Battered Spouses and Children,
(Sep. 8, 2000), available at http://www.asistaonline.org/legalresources/I-360SelfPetitiondocs/Policy_Memos/Cronin_-_9-8-00.pdf and reprinted in 77 Interpreter Releases 1432 (Oct. 2,
2000); with respect to certain children, see . INA §204(a)(1)(D)(i)(II) & (IV).
VAWA Self Petition on Form I-360
Relative Petition on Form I-130
Derivative children
Derivative children are included by operation
of law for both immediate relatives and
preference relatives.
Derivative children are included by operation
of law only for preference relatives.
Age-Out Protections
 Protected by the provisions of the Child
Status Protection Act,19
Protected by the provisions of the Child
Status Protection Act21
 Children of USCs allowed to petition up to
age 25 as if they were children under 21 if
there is connection between late-filing
and domestic violence.20
Good moral character
Good moral character is required of all
VAWA self-petitioners and the statute
provides no limit on the time period which
federal immigration authorities may consider
good moral character.22
There is no good moral character
requirement.
Adjustment of Status
Approved VAWA self-petitioners are eligible
to adjust status under INA §245(a),
regardless of entry without inspection (EWI)
or any of the prohibitions to adjustment
enumerated in INA §245(c), including
unlawful employment or visa overstay. INA
§245(i), and the fines paid pursuant to that
provision, are irrelevant to VAWA selfpetitioners.
 Immediate relatives cannot adjust status
under INA §245(a) if they entered without
inspection and are not eligible for relief
under INA §245(i).
18
19
20
21
22
 Preference relatives cannot adjust status
under INA §245(a) if they entered without
inspection or are prevented from
adjustment under INA §245(c) for such
acts as unlawful employment, visa
overstay or any other delineated act if
they are not eligible for relief under INA
§245(i).
But cf. INA§101(a)(15)(V) and INA §214(q)(a limited exception for Preference Category 2A I-130
beneficiaries who had pending or approved I-130s before Dec. 21, 2000).
Pub. L. 107-208, 115 Stat. H.R. 1209 (Aug. 6, 2002); children covered by VAWA legislation are explicitly
included by Sec. 805(b) of the Violence Against Women and Department of Justice Reauthorization Act
of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006).
INA §204(a)(1)(D)(v).
Pub. L. 107-208, 115 Stat. H.R. 1209 (Aug. 6, 2002).
INA §204(1)(A)(iii)(II)(bb) (spouses of USCs); INA §204(1)(A)(iv) (children of USCs); INA
§204(1)(B)(ii)(II)(bb) (spouses of LPRs); INA §204(1)(B)(iii) (children of LPRs). Self-petitioners are
required to provide affirmative evidence of good moral character for the three year period immediately
prior to filing. 8 CFR §204.2(c)(2)(v) (spouses of USCs and LPRs) and 8 CFR §204.2(e)(2)(v) (children of
USCs and LPRs). Despite the seeming three-year limitation on looking back at good moral character, in
my experience as an attorney at Sanctuary for Families, I found that the Vermont Service Center routinely
denies VAWA self-petitions based on lack of good moral character for conduct that occurred prior to the
three-year period. Whether or not such denials are lawful (see, e.g. Santamaria-Ames v. INS, 104 F.3d
1127, 1131 & 1133, n.8 (9th Cir. 1996) (holding that while “conduct predating the regulatory period . . .may
be considered . . . in determining naturalization eligibility,” such “conduct prior to the regulatory period”
cannot “be the sole basis for finding lack of good moral character”) is unclear, but to my knowledge such
denials have not yet been challenged in federal court.
Petition to Remove Conditions on
Residence (Battered Spouse/Child
Waiver) on Form I-751
Petition to Remove Conditions on
Residence (Joint Petition) on Form I-751
Petition to Remove Conditions on
Residence (Battered Spouse/Child
Waiver) on Form I-751
Petition to Remove Conditions on
Residence (Joint Petition) on Form I-751
Petitioner
Only the conditional resident is a
petitioner.23
The spouse or parent who initially filed the
Relative Petition on Form I-130 files as a
petitioner jointly with the conditional
resident24
Effect of death of
spouse/parent
None
Death creates a separate ground for waiving
joint-filing requirement.
Effect of Divorce
None
Divorce creates a separate ground for
waiving joint-filing requirement.
Employment
authorization
Employment authorization is incident to
status as a conditional resident;25 such
status continues automatically during the
pendency of the Battered Spouse/Child
Waiver.26
Employment authorization is incident to
status as a conditional resident;27 such
status continues automatically during the
pendency of the Joint Petition.28
Lawful presence in the
United States
Lawful presence is incident to status as a
conditional resident; such status continues
automatically during the pendency of the
Battered Spouse/Child Waiver.29
Lawful is incident to status as a conditional
resident; such status continues
automatically during the pendency of the
Joint Petition.30
Ability to travel in and
out of the United States
Traveling in and out of the United States is
incident to status as a conditional resident;
such status continues automatically during
the pendency of the Battered Spouse/Child
Waiver.31
Traveling in and out of the United States is
incident to status as a conditional resident;
such status continues automatically during
the pendency of the Battered Spouse/Child
Waiver.32
Derivative children
Derivative children are included only if they
received conditional status concurrently or
within 90 days of the parent receiving such
status.33
Derivative children are included only if they
received conditional status concurrently or
within 90 days of the parent receiving such
status.34
Time to file
A Battered Spouse or Child Waiver may be
filed at any time.35
90 days prior to the two year anniversary of
the grant of status.36
23
24
25
26
27
28
29
30
31
32
33
34
35
INA §216(c)(4)(C).
INA §216(c)(1)(A).
8 CFR §274a.12(a)(1) (“An alien who is a lawful permanent resident (with or without conditions pursuant
to section 216 of the Act), as evidenced by Form I–551 issued by the Service. An expiration date on the
Form I–551 reflects only that the card must be renewed, not that the bearer’s work authorization has
expired”).
8 CFR §216.4(a)(1).
8 CFR §274a.12(a)(1) (“An alien who is a lawful permanent resident (with or without conditions pursuant
to section 216 of the Act), as evidenced by Form I–551 issued by the Service. An expiration date on the
Form I–551 reflects only that the card must be renewed, not that the bearer’s work authorization has
expired”).
Id.
8 CFR §216.4(a)(1.
Id.
Id.
Id.
8 CFR §216.4(a)(2).
Id.
The explicit requirement that a petition to remove conditions must be filed within the 90 day window prior
to the two year anniversary of the grant of conditional status described in INA §216(d)(2) applies only to
joint petitions filed pursuant to INA §216(c)(1). This point is frequently lost on both mail room staff and
adjudications officers but nonetheless is the law. Sanctuary for Families has successfully filed Battered
Spouse Waivers on behalf of non-citizens even after such status has been affirmatively terminated by
36
federal immigration authorities and as late as a dozen years past the initial two-year grant of conditional
permanent resident status.
INA §216(d)(2).
Application for Cancellation of Removal
and Adjustment of Status for Certain
Nonpermanent Residents on Form EOIR
42B for certain domestic violence victims
(VAWA Cancellation)
Application for Cancellation of Removal
and Adjustment of Status for Certain
Nonpermanent Residents on Form EOIR
42B (10–year Cancellation)
Application for Cancellation of Removal
and Adjustment of Status for Certain
Nonpermanent Residents on Form EOIR
42B for certain domestic violence victims
(VAWA Cancellation)
Application for Cancellation of Removal
and Adjustment of Status for Certain
Nonpermanent Residents on Form EOIR
42B (10–year Cancellation)
Applicant
Non-citizen facing removal
Non-citizen facing removal
Immigration status of
anchor relative at time
of filing
 USC;
 USC; or
 LPR;
 LPR38
 former USC;
 former LPR;
 deceased USC;
 deceased LPR37
Relationship with
anchor relative
 Current spouse;
 Current spouse;
 Former spouse;
 Current parent;
 Current parent;
 Current child
 Former parent;
 USC/LPR (current or former) with whom
the applicant has a child in common
where USC/LPR abused child.
Effect of death of
anchor
spouse/parent/child
None
Ends eligibility
Effect of divorce from
anchor relative
None
Ends eligibility
Employment
authorization
Employment is eligible to apply for
authorization during the pendency of the
application.39
Employment is eligible to apply for
authorization during the pendency of the
application.40
Nature of required
hardship
Extreme hardship41
Exceptional and extremely unusual
hardship42
Who must suffer the
hardship?
 VAWA cancellation applicant;
 Current USC/LPR spouse;
 Child;
 Current USC/LPR parent;

 Current USC/LPR child44
Parent43
Derivative children
None
None
Effect of age or current
marital status of
applicant whose anchor
relative is a parent
None
None
Good moral character
Required for three years prior to application.
Required for ten years prior to application
37
38
39
40
41
42
43
44
The conclusion that current immigration status is not a requirement is based on the use of the phrases “is
or was a United States citizen,” INA §240A(b)(2)(A)(i)(I) and “is or was a lawful permanent resident,” INA
§240A(b)(2)(A)(2)(i)(II). In addition, the repeated use of the present progressive “has been” throughout
INA §240(2) suggests that past actions alone may be the basis for eligibility.
The conclusion that current immigration status is required for 10-year Cancellation is based on the
language of INA §240A(b)(1)(D) which states that there must be hardship to a qualifying relative “who is a
citizen of the United States or an alien lawfully admitted for permanent residence.” (emphasis added)
8 CFR §274a.12(c)(10).
Id.
INA §240A(b)(2)(A)(v). Note that special hardship factors for those seeking VAWA suspension of
deportation (and presumably, by analogy, VAWA cancellation) are listed at 8 CFR §1240.58(c).
INA §240A(b)(1)(D).
INA §240A(b)(2)(A)(v).
INA §240A(b)(1)(D).