Employment Authorized for Certain Nonimmigrant Abused Spouses05 May 2016
The U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum that makes victims of certain categories of nonimmigrant abusive spouses eligible to apply for employment authorization documents (EADs). Under the terms of the March 8, 2016 memo, abused spouses of foreign nationals holding A (diplomatic), E-3 (Australian specialty occupation worker), G (foreign government or international organization representative), or H (specialty occupation worker, temporary non-agricultural worker, or trainee) status are eligible to apply for EADs under certain circumstances.
Background on VAWA
Since 2005, the Violence against Women’s Act (VAWA) has allowed for employment authorization eligibility for certain abused spouses of foreign nationals in designated temporary, nonimmigrant categories. However, the provisions were not implemented, and VAWA relief has only been available for abused spouses of U.S. citizens and lawful permanent residents (commonly, “green card” holders). The USCIS is now moving forward with making employment authorization available to some nonimmigrant spouses under the VAWA provisions.
Eligibility Requirements for EAD
Those seeking the EAD under the VAWA provisions are required to file form I-765V, a form not yet published, as of this writing. The form must be accompanied by proof of all of the following:
1. The applicant is married to a principal nonimmigrant spouse in one of the qualifying categories; or, was married to a qualifying spouse and (a) the spouse died within the two years prior to filing; or (b) the spouse lost the qualifying nonimmigrant status because of an incident of domestic violence; or (c) the marriage was terminated within the two years prior to filing, and there is a connection between the termination of the marriage and the abuse.
2. The applicant was last admitted as the dependent spouse of a nonimmigrant in A, E-3, G, or H classification.
3. The applicant has been battered or subjected to extreme cruelty by the principal nonimmigrant spouse during the marriage and after admission to the United States as the dependent of a nonimmigrant in A, E-3, G, or H status.
4. The applicant currently resides in the United States.
Approval and Renewal of EAD
If approved, the EAD will be issued for a validity period of two years. The EAD may be renewed in two-year intervals, assuming the applicant still meets the initial filing requirements. The applicant would not need to submit proof of abuse in a renewal application, unless specifically requested by the USCIS.
Renewal is possible if the principal spouse continues to hold qualifying A, G, E-3, or H status. If the applicant is unable to provide documentation of the spouse’s status, the USCIS will conduct a search of the appropriate databases to attempt to verify the principal spouse’s status. Renewal is also possible within two years of any of the following: the principal’s death, the loss of the principal’s status due to a domestic violence incident, or divorce if there is a connection between the marriage termination and the domestic violence. If the applicant remarries, s/he will be ineligible for issuance of the EAD.
Effective Date Not Yet Set
Per the memo, the new provisions will go into effect upon publication of the forthcoming form I-765V. No date has been set, however, as to when the form will be published.
This USCIS policy memo provides some welcome protection to the abused spouses of certain nonimmigrants. The implementation of these long-delayed provisions of VAWA should prove beneficial to this vulnerable population.
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