Battered Spouse Waiver:
Immigration Relief Available for Abused Immigrant Spouses of U.S. Citizens [1]
November 18, 2021
This materials list includes publications issued by government agencies and materials produced by NIWAP in collaboration with national experts. Each of the materials included in this list developed with support from government funders contains government agency disclaimers.
If you are a victim advocate, attorney, judge, or other professional working with an immigrant victim and you would like to receive case specific technical assistance on access to publically funded benefits and services that an immigrant crime victim or immigrant child would be eligible to receive in you state, please call NIWAP for technical assistance. (202) 274-4457 or email us at info@niwap.org. For more information on any of the topics covered in this training please visit NIWAP’s web library.
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Battered Spouse Waiver
Training Materials
- Filing to Remove Conditions for Legal Permanent Residency for Battered Spouses: Choose Battered Spouse Waiver Over Divorce (May 23, 2023)
- Chapter 03.5: Additional Remedies Under VAWA: Battered Spouse Waiver (July 1, 2014)
- Battered Spouse or Child Waiver for Victims of Domestic Violence Present as Conditional Lawful Permanent Residents (2014)
- Domestic Violence & Immigration: Applying the Immigrant Provisions of the Violence Against Women Act (Sept. 8, 2000)
- Immigration Marriage Fraud Amendments of 1986 (Marriage Fraud Act) and Other Related Issues (1991)
- Protecting Battered Immigrant Women (October 1994)
- Family Court Bench Card on Immigration Rights of Battered Spouses, Children and Immigrant Crime Victims (September 29, 2021)
- Comparison Between the Battered Spouse Waiver and VAWA Self Petitioning Cases for Abused Immigrant Spouses (February 6, 2017)
- Good Faith Marriage in VAWA Self-Petitioning Cases (February 17, 2013) (applicable also in Battered Spouse Waiver cases)
- Documents in Support of Good Faith Marriage-CILAP (December 17, 2019)
- Battering or Extreme Cruelty: Drawing Examples from Civil Protection Order and Family Law Cases (September 12, 2015)
- Evidence Check List for Immigrant Victims Applying for VAWA Self-Petitioning (August 28, 2009) (applicable for proof of good faith marriage and battering or extreme cruelty in Battered Spouse Waiver cases)
- Family Violence and U.S. Immigration Law; New Development (March 2001)
- Moving Battered Spouse Waiver Adjudications to the VAWA Unit: A Call for Consistency and Safety National Survey Findings Highlights (October 18, 2021) (Contains information about the Battered Spouse Waiver adjudication process)
Statutes, Regulations, Government Policies and Brochures
- Battered Spouse Waiver Statute Text (March 1990)
- Battered Spouse Waiver Regulations 8 C.F.R. 216.5 Annotated Regulations Law Updated (August 10, 1988)
- Annotated Violence Against Women Act (VAWA) Self-Petition Definition INA 101(a)(51) (October 31, 2021)
- USCIS, Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa (October 27, 2010)
- USCIS, Removing Conditions on Permanent Residence Based on Marriage (September 17, 2020)
- USCIS, I-751, Petition to Remove Conditions on Residence (September 17, 2020)
- USCIS Form I-751, Instructions for Petition to Remove Conditions on Residence (December 2, 2019)
- USCIS Form I-751, Petition to Remove Conditions on Residence (December 2, 2019)
- USCIS, Policy Memorandum: Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence (November 20, 2018)
- USCIS, Response to USICS Ombudsman Formal Recommendation 56, “Improving the Process for Removal of Conditions on Residence for Spouses and Children” (July 10, 2013)
- USCIS, Vermont Service Center, Q & A: Stakeholder Conference (September 20, 2010)
- USCIS, Donald Neufeld, I-751 Filed Prior to Termination of Marriage (April 3, 2009)
- USCIS, Michael Aytes, Delegation of Authority for I-751, “Petition to Remove Conditions on Residence” (January 30, 2006)
- USCIS, Robert C. Divine, Matter of Chawathe Memo (January 11, 2006)
- USCIS, William R. Yates, Revised Interview Waiver Criteria for Form I-751, Petition to Remove Conditions (June 24, 2005)
- USCIS William R. Yates, Memorandum: Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the Immigration and Nationality Act (January 27, 2005)
- USCIS, William R. Yates, Extension of Status for Conditional Residents with Pending Forms I-751, Petition to Remove Conditions on Residence (December 2, 2003)
- INS William R. Yates, Memorandum: Filing a Waiver of the Joint Filing Requirement Prior to Final Termination of the Marriage (April 10, 2003)
- INS William R. Yates, Instructions Regarding the Expanded Meaning of Section 319(a) (October 15, 2002)
- INS, Paul Virtue, “Extreme Hardship” and Documentary Requirements Involving Battered Spouses and Children (October 16, 1998)
- INS Alexander Alienikoff, Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S Citizens or Lawful Permanent Residents (April 16, 1996) (Discusses definition of battering or extreme cruelty and the application of VAWA’s any credible evidence rules)
- INS Edward H. Skerrett, Letter Re Filing of I-751 Authorized Post- Termination of Conditional Residency Status (December 10, 1992) (Confirms that filing of a Battered Spouse Waivers is allowable after conditional permanent residency has ended and even when the immigrant spouse has been placed in deportation proceedings.
Battered Spouse Waiver’s Regulations and Case Processing
- FOIA USCIS Response to NIWAP’s FOIA on Battered Spouse Waiver Cases and Case Processing (August 25, 2017)
- FOIA Regarding Battered Spouse Waiver Case Processing and Procedures (September 15, 2016)
- Pages 2-37 FOIA Battered Spouse Waiver Response 2017 District Office Training (2014)
- Pages 62-67 FOIA BSW Response RFEs and Any Credible Evidence (October 16, 2014)
- Pages 59-61 & 70-73 FOIA BSW Response 2017 Change From Joint Filing to Battered Spouse Waiver (October 2013 to April 24, 2015)
- Pages 76-78 FOIA Response 2017 Standard Operating Procedures for USCIS District Offices Handling of Interviews in VAWA Self-Petition Adjustments and Battered Spouse Waiver Cases (June 29. 2011)
- Pages 79-81 and 92 FOIA BSW Response 2017 384 VAWA Confidentiality Broadcast (February 9, 2016 & April 4, 2016)
- Julie Dinnerstein, Docket number DHS–2014–0006 Comment submitted in connection with the Request for Public Input for the Retrospective Review of Existing regulations by the Office of General Counsel, Department of Homeland Security (DHS), 79 Fed. Reg. 10,760 (Feb. 26, 2014) (Comments on failure to amend Battered Spouse Waiver regulations that were overruled by VAWA 1994)
Battered Spouse Waiver and VAWA’s Any Credible Evidence Rules Legislative History
- Legislative History of VAWA (94, 00, 05), T and U-Visas, Battered Spouse Waiver, and VAWA Confidentiality (June 17, 2015)
- Violence Against Women Act 1994 -House Legislative History (November 20, 1993)
- Congressional Record House October 2, 1990 Family Unity and Employment Opportunity Act of 1990 Included Battered Spouse Waiver
- Evolution of the Battered Spouse Waiver Protections and Related VAWA Confidentiality Protections (February 6, 2017)
- Congressional Research Service, Immigration Provisions of the Violence Against Women Act (VAWA) (May 15, 2012)
- Mandatory U-visa Certification Unnecessarily Undermines the Purpose of the Violence Against Women Act’s Immigration Protections and Its “Any Credible Evidence” Rules – A Call for Consistency (September 10, 2010) (Discussing the legislative history of VAWA’s any credible evidence rules)
- Development, History, and Legislative Purpose of VAWA’s “Any Credible Evidence” Statutory Requirements (April 29, 2009)
- Excerpt on Battered Spouse Waiver Legislative History From Orloff Kaguyutan Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, American University Journal of Gender, Social Policy and the Law (2002)
- Congressional Research Service, Noncitizen Victims of Family Violence (May 3, 2001)
- IIRAIRA Legislative History Conference Report (September 24, 1996)
- Testimony of Martha F. Davis, NOW Legal Defense and Education Fund, Immigration and Naturalization Housekeeping Amendments of 1992, Hearing Before the Subcommittee on Immigration, Committee on the Judiciary, House of Representatives (May 20, 1992)
- Statement of Leslye Orloff and Ellen Lawton, Ayuda and William Tamayo, Asian Law Caucus, Immigration and Naturalization Housekeeping Amendments of 1992, Hearing Before the Subcommittee on Immigration, Committee on the Judiciary, House of Representatives (May 20, 1992)
- Immigration and Naturalization Housekeeping Amendments Hearing (May 20, 1992)
- HR REP 101-723 Family Unity and Employment Opportunity Immigration Act of 1990 (September 19, 1990)
- Hearing Testimony Excerpts on the Battered Spouse Waiver Presented at Joint Hearings before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary and the Immigration Task Force of the House Committee on Education and Labor (March 1990)
Battered Spouse Waiver Articles
- Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses (March 1, 2002)
- Unconditional Safety for Conditional Immigrant Women (January 31, 1996)
- With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women (July 1, 1995)
- Legal Issues Confronting Conditional Residents Aliens Who Are Victims of Domestic Violence: Past, Present and Future Perspectives (1995)
- A License to Abuse: The Impact of Conditional Status on Female Immigrants (April 1, 1993)
- Spouse Based Immigration Laws: The Legacies of Coverture (August 1, 1991)
Legal Rights Overviews and Brochures Discussing Battered Spouse Waivers
- Do You Have Problems at Home? (June 16, 2015)
- Know Your Rights: Read About Your Rights in This Country (September 2, 2015)
- Rights and Options for Battered Immigrant, Migrant, and Refugee Women (July 10, 2013)
(The three publications above are available in multiple language
Dynamics & Barriers for Immigrant & Refugee Survivors
- Dynamics of Domestic Violence Experienced by Immigrant Victims
- Dynamics of Sexual Assault and the Implications for Immigrant Women
- Transforming Lives: How the VAWA Self-Petition and the U Visa Change the Lives of Victims and Their Children After Work Authorization and Legal Immigration Status
- Lifetime Prevalence of Violence Against Latina Immigrants: Legal and Policy Implications (2000) (Social science research on factors that individually or taken together can constitute extreme cruelty)
- Violence Against Women and Systemic Responses: An Exploratory Study (November 14, 2003)
Violence Against Women Act (VAWA) Self-Petition
Since the Battered Spouse Waiver requires proof of a good faith marriage and proof of battering or extreme cruelty, several of the webinars, on-line learning courses and publications on VAWA self-petitioning can be useful when working on Battered Spouse Waiver cases.
Webinars
- VAWA Self-Petition: Protections for Immigrant Survivors of Domestic and Sexual Abuse by Abusive Spouses and Parents (April 22, 2020) (Spanish Version Below)
- Auto-Petición VAWA: Protección para inmigrantes sobrevivientes de maltrato por parte de sus familiares que son ciudadanos o residentes permanents (May 7, 2020)
On-line Course
- Pro bono Institute “Violence Against Women Act (VAWA) Self-Petition” Training Module (June 18, 2018)
Training Materials
- Chapter 3.3 VAWA Self-Petition (2013) (Helpful on proof of good faith marriage and battering or extreme cruelty)
Public Benefits
Battered spouse waiver applicants have the same access to public benefits as VAWA self-petitioners. Also battered spouse waiver applicants have conditional permanent residence which means that under state and federal public benefits laws they have the same access to public benefits as lawful permanent residents. It is important to note that if an abused immigrant spouse decides to pursue removal of conditions based on divorce rather than through the battered spouse waiver, the abused spouse can lose access treatment as an abused spouse or child under some state or federal public benefits laws. This includes exemptions from deeming that are afforded to battered immigrants. The following webinars and training materials on public benefits apply in cases of battered spouse waivers to the same extent as VAWA self-petitioners.
Webinars
- Immigrant Access to Federally Funded Housing Webinar: Collaboration with the National Housing Law Project
- Public Benefits and Services Legally Available to Immigrant Children and Victims – What Courts Need to Know?
- Healthcare: Understanding the Affordable Care Act and How it Affects Immigrant Survivors
- Yes We Can!: Public Benefits for Immigrant Survivors
Public Benefits Interactive Maps and State Charts
- Interactive Public Benefits Map
- All State Public Benefits Charts
- A Guide to Public Benefits Map for Immigrant Survivors of Crime
Regulations and Policies
- Annotated Statutes Related to Public Benefits Eligibility for Immigrant Survivors of Domestic Violence, Child Abuse and Human Trafficking (October 31, 2021)
- Interim Guidance on Verification of Citizenship, Qualified Alien Status, and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (November 17, 1997) (See, Exhibit B to Attachment 5—Aliens Who Have Been Battered Or Subjected To Extreme Cruelty Within The Meaning of Section 431 of The Act)
- Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation (January 16, 2001)
- HHS Domestic Violence Fact Sheet: Access to HHS-Funded Services for Immigrant Survivors of Domestic Violence (August 22, 2012)
Training Materials
- https://niwaplibrary.wcl.american.edu/pubs/public-benefits-flow-charts/ (Battered Spouse Waiver applicants are treated the same as VAWA self-petitioners except that they are eligible at filing and do not need to wait for a prima facie determination)
- Family Court Bench Card on Immigrant Crime Victim Access to Public Benefits and Services
- Bench Card on VAWA Public Benefits Eligibility Process
- Programs Open to Immigrant Victims and All Immigrants Without Regard to Immigration Status
- Anti-Discrimination Provisions that Apply to Programs Receiving Federal Funding Serving Victims of Violence against Women Crimes
- Annotated Section 214 of the Housing Act: 42 U.S. Code § 1436a – Restriction on Use of Public and Assisted Housing By Immigrants (October 31, 2021)
- Chapter 16.1 Appendix: HHS Funded Programs Open to All Immigrants
- Chapter 16: Access To Programs And Services That Can Help Victims of Sexual Assault
- Chapter 04.1: Access to Programs and Services that Can Help Battered Immigrants
- Chapter 04.2: Public Benefits Access for Battered Immigrant Women and Children
- Chapter 4.3 Barriers to Accessing Services: The Importance of Advocates Accompanying Battered Immigrants Applying for Public Benefits
- Immigrant Crime Victim Access to Relief during the COVID-19 Crisis under the CARES and FFCRA Acts (May 20, 2020)
- Healthcare Available to Immigrant Crime Victims During the COVID-19 Pandemic
- FAQ Immigrant Survivors and Housing (March 2021)
Trauma Informed Work With Immigrant Survivors
As with VAWA self-petitions, since proof of battering or extreme cruelty is a central element of proof in Battered Spouse Waiver cases understanding the full history of the abuse in the relationship and the history of trauma the victim has suffered is important. Battered spouse waiver cases are adjudicated using VAWA’s any credible evidence rules and consider the totality of the circumstance and evidence presented. Understanding a victim’s full trauma history can be very helpful in explaining the battering and/or extreme cruelty a victim suffered and how this impacted the victim and their children. The following webinar trainings and trauma-informed tools will be helpful in preparing Battered Spouse Waiver applications.
Webinars
- Trauma-Informed Care: Promoting Healing While Strengthening Survivors’ Immigration Cases (October 30, 2013)
- Trauma-Informed Care, Part 2: The Nuts and Bolts of Immigration Story Writing Intervention (March 19, 2014)
- Helping Survivors in Crisis: Hands On Training for Advocates and Attorneys on Trauma-Informed Work with Immigrant Women Who Are Survivors of Domestic Violence and Sexual Assault (February 24, 2014)
- Legal Protections and Forensic Considerations for Immigrant and Refugee Child Victims (November 8, 2017)
- Trauma-Informed Webinar Series: Trauma-Informed Legal Advocacy (Oct. 23, 2018)
- Enhancing Safety Planning and Immigrant Survivors’ Access to Public Benefits and Services in Prince George’s County Through A Trauma-Informed Approach (October 29, 2020)
Training Materials
- How to Prepare Your Case Through a Trauma Informed Approach: Tips on Using the Trauma Informed Structured Interview Questionnaires for Family Court Cases (SIQI) (July 23, 2015)
- Advocate’s and Attorney’s Tool for Developing a Survivor’s Story: Trauma Informed Approach (July 20, 2017)
- December 2011: Representing Domestic Violence Survivors who are Experiencing Trauma and Other Mental Health Challenges: A Handbook for Attorneys
- Grounding Tool (June 19, 2014)
- Self Care Tool (June 20, 2014)
VAWA Confidentiality
- Three Prongs of VAWA Confidentiality
- Family Court Bench Card on VAWA Confidentiality
- Quick Reference: VAWA Confidentiality Protections: Quoting Statutes, Regulations and DHS Policies 3.29.19
- Interlineated statute
- Immigration and Customs Enforcement January 2018 Courthouse Enforcement Policy and VAWA Confidentiality Protections for Immigrant Crime Victims (January 31, 2018)
- VAWA Confidentiality Statutes, Legislative History and Implementing Policy (2.23.17)
- DHS Broadcast Message on New 384 Class of Admission Code Alerting Personnel of a Victim Protected by VAWA Confidentiality Protections
[1] This materials list includes publications issued by government agencies and materials produced by NIWAP in collaboration with national experts. Each of the materials included in this list developed with support from government funders contains government agency disclaimers.