INS ISSUES INTERIM REGULATIONS TO PROTECT BATTERED IMMIGRANT SPOUSES AND CHILDREN

On March 26, 1996, the Immigration and Naturalization Service (INS) issued interim regulations regarding the ability of battered spouses and children to petition for immigration status independently of their abuser. The regulations implement the Violence Against Women Act which was part of the Crime Bill of 1994.

These regulations recognize the fact that some U.S. citizens and lawful permanent residents misuse their role in the process of obtaining immigration status for relatives, using their power to file petitions to perpetuate domestic abuse of their spouses and minor children. Family members who do not have immigration status are less likely to report the abuse or leave the abusive relationship because they fear deportation. As Bonnie Campbell, Director of the Justice Department's Violence Against Women Office, noted, "no one should have to choose between abuse and deportation."

The following provisions are included in the regulations:

1. A spouse may file a petition for herself and her unmarried children under 21 years old if she or her child has been battered or subject to extreme cruelty committed by a U.S. citizen or lawful permanent resident. Extreme cruelty is defined as any act or threatened act of violence, including forceful detention which results in physical or mental injury, psychological or sexual abuse, or acts that may not initially appear violent but are part of an overall pattern of violence;
2. The battered spouse or child must live in the United States at the time of application and be eligible for immigrant classification;
3. The abused spouse or child must have entered into the marriage with the U.S. citizen or lawful permanent resident in good faith;
4. The battered spouse or child must be a person of good moral character;
5. Deportation of the abused spouse or child must result in extreme hardship to herself or her children.

If the U.S. citizen or lawful permanent resident has previously filed a petition, the priority date will be transferred to the abused spouse's self-petition, even if the abusive spouse has subsequently withdrawn the original petition.

Filing a self-petition does not automatically entitle the battered spouse to work authorization. However, the petitioner may receive permission to work if she applies for adjustment of status or by requesting voluntary departure and demonstrating economic need.