You may be eligible for employment authorization if you were admitted to the United States as H nonimmigrant who has abused you.
The Violence Against Women and Department of Justice Reauthorization Act of 2005 included provisions to the Immigration and Nationality Act (INA) that allow certain abused nonimmigrant spouses to seek employment authorization.
Victims can use employment authorization for their own safety and independence from their abuser. In this case, the H nonimmigrant will not be notified of the filing.
The battered spouse employment authorization is available to both male and female spouses. The United States Citizenship and Immigration Services (USCIS) will initially grant employment authorizations for a period of two years, with the possibility of renewal in certain circumstances. However, such an employment authorization does not affect your lawful status.
In this piece, we will discuss employment authorization for H4 dependent spouses on grounds of abuse by their H-1B spouse.
H4 Battered Spouse EAD
If they leave with their spouse, many H4 visa holders risk losing their immigration status. As a result, abusive people continue to subject their spouses to domestic abuse. In order to provide better mental health care and protect against the fear of losing legal status in US, H4 battered spouses were brought within its purview.
Along with asking for protection through the National Domestic Violence Hotline, the employment authorization empowers H4 dependent spouses to leave an abusive condition, protect their physical and mental health and find work for themselves. This is protected under the Violence Against Women Act (VAWA).
The right of H4 visa holders to seek a temporary work permit in the United States is no longer limited by divorce. This means that even if the H4 dependent spouse is divorced from the H-1B nonimmigrant, she can request employment authorization on the ground of abuse.
However, the status of the abused spouses’ partners in the process of obtaining legal permanent residency has nothing to do with their work permit application.
Who May Apply for H4 Employment Authorization?
You need to file Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse in order to receive H4 employment authorization. You will need to meet the following requirements in order to be eligible for filing:
· You are or were the spouse of an H nonimmigrant visa holders who was admitted under INA section 101(G), and;
· You accompanied or later joined your H nonimmigrant spouse to the US.
Who is an Abused Spouse?
Domestic violence is defined in 8 U.S.C. §1101(a)(48) as abuse that occurs within the context of family violence, including any behaviors that physically harm, arouse fear, prevent a victim from going outside the home, or otherwise threaten harm to the victim’s physical safety.
The meaning of domestic violence within the Act includes such acts as battery (sexual and/or non-sexual), sexual assault, enticement into domestic trafficking, forcible detention, peonage, stalking, passive or active neglect, and other forms of emotional abuse.
It also includes intimate partner battering; for purposes of this benefit program only, individuals whose sole abusive relationship is with a child (e.g., a child abusing his/her parent) will not be considered to have been the victim of abuse by the individual.
The battered spouse employment authorization benefit is available for any domestic violence that occurs within a one-year period beginning on the date you file your application. However, it does not matter whether this timeframe coincides with any other requests or applications made by or on behalf of you (such as visa petitions).
In order to be eligible to receive work authorization, you will have to submit credible information for the following:
1. You are the qualifying spouse who accompanied or followed your H nonimmigrant spouse to the United States
You must show that you are in a qualifying marital relationship by proving that you:
A. Are married to a nonimmigrant who was admitted to the United States in nonimmigrant status H, or,
B. Were married to a nonimmigrant who was admitted to the United States in nonimmigrant status H.
2. You last entered the US with H nonimmigrant visa;
3. You or your child were subjected to extreme cruelty by your H nonimmigrant spouse during the marriage and after you entered the US with H nonimmigrant status;
4. You currently reside within the US.
5. Your H4 visa status is valid.
Frequently Asked Questions
1. Can I get H4 battered spouse employment authorization after divorce?
In most cases, yes. You can file I-765V after divorce or termination of marriage as long as you can prove that it was caused by domestic violence and that your marriage was terminated because of the violence.
2. Can my children be included in this request? What about their status? Can they work too?
Your children may be included on your application if they were admitted in H4 status under your non-immigrant visa (H1B, E3, G, or H). If you are approved for this benefit, they may also be authorized to work.
3. What happened if my EAD application is denied?
If USCIS denies your application because it determines that you do not have a qualifying relationship with the abuser or that the abuse did not occur within the last year, you can file a motion to reopen or reconsider with the office that issued the denial. If you fail to establish eligibility for battered spouse employment authorization and USCIS denies your request solely on this basis, you may file an appeal with the Administrative Appeals Office.
4. Can I appeal the denial of my EAD application?
You have 30 days in which to file a motion to reopen or reconsider the decision. If you fail to establish eligibility for battered spouse employment authorization, you can file an appeal with the Administrative Appeals Office.
5. Can I submit supporting evidence after filing Form I-765V?
Yes. After filing your application, you may request that any other material that would serve as evidence of your abuse or qualifying marriage be added to your record. You must do so by sending the additional materials directly to USCIS. Do not submit duplicates of information already contained within your record.
6. How do I know if I am eligible for receiving H4 employment authorization?
You are eligible for this benefit if you are the spouse of an H1, E3, G or H principal non-immigrant who can provide evidence that he or she has been physically abused by his or her U.S. citizen/PR spouse. Along with this, you will also have to provide credible evidence to show that your marriage to your abuser was entered into in good faith by you, you have not collaborated with your abuser in fabricating any abuse incidents for immigration purposes, last entered the US with your abusive spouse and have been subjected to extreme cruelty.
7. How do I prove that my marriage was entered in good faith?
You must provide evidence to establish that your relationship with the abuser was based on love or affection rather than primarily for financial gain. You may submit copies of joint tax returns, bank account statements, insurance policies, telephone bills, copies of wedding announcements, and photographs together during your marriage as evidence that you and the abuser were married in good faith. What about abuse after we got married?
If you continue to reside with your abuser while filing this application, USCIS will consider any credible evidence related to incidents of domestic violence or extreme cruelty between you and your abuser. The evidence may include but is not limited to, police records, medical reports, or other court documents.
8. What are the consequences of filing an EAD application?
If you fail to establish eligibility for battered spouse employment authorization and USCIS denies your request solely on this basis, you will receive a notice from USCIS informing you of your 30 days’ appeal rights.
If your application for EAD and work permit has been denied because it was determined that you do not have a qualifying relationship with the abuser or that the abuse did not occur within the last year, you can file a motion to reopen or reconsider with the office that issued the denial.
9. Will I be granted another status if my I-765 application is denied?
If you fail to establish eligibility for battered spouse employment authorization and USCIS denies your request solely on the basis that you do not have a qualifying relationship with the abuser or that the abuse did not occur within the last year, you may file an appeal with the Administrative Appeals Office.
If your I-765 application was denied because it was determined that you collaborated with your abuser in fabricating any abuse incidents for immigration purposes, you will receive a notice from USCIS informing you of your 30 days’ appeal rights.
10. What happens if my I-765 application is approved?
If USCIS approves your battered spouse employment authorization application, it will send a letter to both you and your employer within 45 days of approving instructing how to proceed. It will instruct you to submit your Employment Authorization Document (EAD) card along with the relevant documents.
11. Is my spouse required to file a separate I-765 application?
No. If you have been issued an EAD based on being a battered spouse, your spouse is not required to file a separate Form I-765 application. Therefore, USCIS will adjudicate your spouse’s request for employment authorization under section 204(j) of the Act concurrently with yours.
12. Is there any way I cannot be deported?
If you are an abused immigrant facing deportation, you may request prosecutorial discretion at any time before removal proceedings begin, even if you have already been placed in removal proceedings or have been removed. Prosecutorial discretion includes deferred action on the grounds that it would not be appropriate to place you in proceedings or to remove you from the United States. For more information on prosecutorial discretion and how it can benefit abused immigrants facing deportation, please see our memorandum titled Prosecutorial Discretion: Your Ability to Stay in the U.S.
13. How do I apply for a fee waiver?
If you feel that paying the Form I-765 filing fee would pose an economic hardship, you may request a full or partial fee waiver. You must submit your completed Form I-912, Request for Fee Waiver along with supporting documentation indicating why payment of the filing fee would create such a hardship. If USCIS approves your fee waiver request, there is no need to submit any additional documents with your Form I-765 application.
14. Can I request battered spouse EAD after remarriage?
If you are remarried before the USCIS adjudicates your application, your application will be denied.
Do I Need A Lawyer to file Form I-765V?
Successfully filing Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse is critical for successfully receiving a permit to work in the USA.
It is highly recommended that the victims of domestic violence retain an experienced immigration attorney to file their application for employment authorization.
We at Herman Legal regularly work with victims of domestic abuse to receive employment authorization. Our team of experienced immigration attorneys can ensure that your application is filed correctly and submitted to USCIS in a timely manner.
We regularly guide victims of abuse through the entire process from receiving work permission, maintaining employment permission, or applying for permanent residency. Get in touch with us today to schedule a consultation.