Lawyers Manual - Unified Court System

Representing Immigrant Victims of Domestic Violence 321
She entered the marriage in good faith;
She (or her child) suffered from physical battery or extreme
cruelty from her citizen spouse. 38
The elements of good faith marriage and physical battery or extreme cruelty
have been discussed in the preceding sections. 39 This section focuses upon two
factors unique to the battered spouse waiver: (1) current or previous status as a
conditional resident; and (2) status as a current or former spouse of a United
States citizen.
Currently or Previously a Conditional Resident
Proof of conditional residence is established by submitting a photocopy of the
victim’s Permanent Resident Card. 40 While a jointly filed petition to remove the
conditions on residence must be filed 90 days before the two-year anniversary
of conditional residence, individuals seeking a waiver based upon having been
battered or subject to extreme cruelty are eligible to file beyond the 90-day
anniversary period, even if their conditional residence status has lapsed. 41 As a
practice pointer, it is still recommended that the applicant file the waiver request
as quickly as possible to avoid being placed into removal proceedings.
Currently or Previously Married to a United States Citizen
While jointly filed petitions to remove the conditions on residence require
that the conditional resident and citizen spouse be married, an individual seeking
a battered spouse waiver may file even after the marriage has ended. 42 An
individual who has already divorced her abuser additionally may seek a waiver
based upon a good faith marriage that terminated due to divorce or annulment. 43
Procedure for Obtaining a Waiver
Detailed filing instructions are contained on the waiver form, obtainable
on the USCIS website. 44 In addition, the legal practitioner must include a
“Notice of Appearance of Attorney or Representative” to ensure receipt of
USCIS correspondence. 45
Once USCIS receives the waiver request, it automatically extends the
petitioner’s conditional resident status for one year. To obtain proof of the
extension, the client should make an appointment to appear at a local USCIS
office to receive a stamp in her passport. 46 If the application is approved, the
petitioner will receive a permanent resident card in the mail. If denied, the
petitioner may be placed into removal proceedings, where an immigration judge
may review the denial of the waiver request. 47