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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 un-remarried 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, 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;