February 14, 2017
Announcement from NIWAP and Raksha
USCIS is now accepting employment authorization applications from abused immigrant spouses of H, G, A and E (3) visa holders.
The Violence Against Women Act of 2005 amended Section 106 of the Immigration and Nationality Act to provide access to legal work authorization for abused spouses of certain work visa holders. The implementation of this law will offer much needed protection to immigrant spouses of work, diplomatic and foreign government employee visa holders. This will also abused spouses on visas obtained based on their marriage to a visa holder abusive spouse to obtain legal work authorization which will serve as a safety net and bridge so that they can leave abusive homes, support themselves and their children, and sever economic dependence on their abusers. This work authorization will promote greater reporting of domestic violence, child abuse and sexual violence crimes perpetrated against dependent visa holder spouses and children living in visa holder families. Survivors will be able to flee violent homes with their children and work while they pursue avenues available to them to transfer from legal immigration status dependent on their abusers to other forms of legal immigration status that they are eligible to receive. Most will qualify for U visas based on the battering or extreme cruelty they have suffered. Others may have the specialized skills and knowledge to qualify for their own work based visas.
Aparna Bhattacharyya, Executive Director of Raksha describes the importance of these protections for immigrant survivors:
- “Raksha is excited over the long awaited release of this form. Many of Raksha’s clients are H-4 survivors who are here legally but cannot work to support themselves and their children when trying to leave an abusive relationships. H-4s are married to H1 B workers and are often from India and China. They have an extremely long wait for green card processing (approximately 10 years) which make it them ineligible for VAWA relief that many immigrant survivors access. We worked with Leslye along with other South Asian advocates for this 12 years ago.”
- “This application will give H-4 survivors a safety net even if temporary so they can build a bridge to safety and protection from abuse. This relief will allow survivors who are legally in the United States room to breath and support themselves while applying for other immigration relief. In our 22 years of work, we have seen H-4 survivors struggle with housing options after their emergency stay ended. While some shelters would work with survivors, many would have difficulty accessing transitional housing due to their inability to work. This put many survivors in vulnerable positions where they are forced to choose between struggling to support themselves without work authorization, going back to their abuser or depending on community members. We know these situations have often lead to further victimization of these survivors by employers, family members and community members. This work authorization will help survivors access transitional housing and through work be able to pay for safe housing on their own. We are grateful for this safety net which will give abused H-4 and other immigrant visa holders access safety for themselves and their children while they figure out their next steps and wait for another form of immigration relief which can take up to two years for processing.”
The legislative history of these important VAWA 2005 protections stated that:
- “Section 933 provides that an alien spouse admitted under the A (foreign diplomats), E-3(Australian professionals), G (international organizations), or H (temporary worker) visa programs accompanying or following to join a principal alien shall be granted work authorization if the spouse demonstrates that during the marriage he or she (or a child) has been battered or has been subjected to extreme cruelty perpetrated by the principal alien. This section is intended to reduce domestic violence by giving victims tools to protect themselves and hold abusers accountable. Research has found the financial dependence on an abuser is a primary reason that battered women are reluctant to cooperate in their abuser’s prosecution. With employment authorization, many abused spouses protected by this section will be able to attain work providing them the resources that will make them more able to safely act to stop the domestic violence. The specially trained CIS unit shall adjudicate these requests.”
To qualify an immigrant spouse (or the immigrant spouses child or step child) must have suffered battering or extreme cruelty perpetrated by the work, diplomatic, foreign government employee visa holder spouse, during the marriage and after admission to the United States on an A, E(3), G or H visa and the victim currently resides in the U.S.
The abused immigrant spouse or the immigrant spouse who is the parent of an abused child must have been admitted to the United States on in the following visa programs:
- A (diplomats & government officials),
- E (3)(Australian specialty occupation workers),
- G (Employees of foreign governments and international organizations) or
- H ( Specialty occupation workers, Free Trade Agreement professionals from Chile and Singapore, temporary agricultural and non-agricultural workers, trainees and special education exchange visitors).
The abused immigrant spouse must have accompanied their visa holder spouse to the United States or followed to join their visa holder spouse in the United States.
One of the following is required:
- Marriage to a spouse who has one of the following visas: A, E (3), G or H
- Death of the visa holder A, E(3), G, or H spouse within 2 years of filing
- Dissolution of the marriage with a connection to the battering or extreme cruelty
- Abusive spouses loses their visa due to an incident of domestic violence
USCIS states that “Employment authorization enables victims to seek both safety and independence from their abuser, who is not notified about the filing. The employment authorization provisions apply equally to men and women. Initial employment authorizations will be issued for 2 years and may be renewed in certain circumstances. The issuance of employment authorization will not establish eligibility for or extend your lawful status in the United States.” See the link to the USCIS website on Employment Authorization for Certain Abused Nonimmigrant Spouses for additional information, application forms and application instructions. The application forms and instructions are available at:
- Employment Authorization for Certain Abused Nonimmigrant Spouses
- I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse and here
- Instructions for Form I-765V
March 8, 2016 USCIS issued a policy memo that discussed battered immigrant spouse’s eligibility for work authorization.USCIS Memo: Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants
Important points to note regarding these work authorization applications include the following:
- Victims must submit any credible evidence of battering or extreme cruelty as defined in all other VAWA immigration cases
- There are no fees for the I-765V work authorization application
- Two year work authorization as long as the victim continues to meet the requirements
- Proof of battering or extreme cruelty only required with the initial work authorization application, not the renewals
- Victims filing I-765V work authorization requests receive VAWA confidentiality protection
- If the victim does not have evidence of their spouse’s visa status, USCIS will conduct an electronic records search
- Remarriage prior to adjudication or prior to seeking work authorization renewal the victim no longer qualifies