Every now and then an Immigration practitioner is confronted with this situation where a H-4 spouse calls and says that she is a victim of domestic violence, and her spouse is harassing mentally and sometimes physically. By the times lawyers get a call the domestic violence situation has gotten grim. What are the options for the battered spouse who is on H-4?
The battered H-4 spouse must first figure out what will happen to her status? If she has still time left on her I-94, she can stay in USA without any issues till the expiry of the I-94. Hopefully, by the time the H-4 is up for renewal tension has cooled down and she is able to file the H4 extension along with the spouse. What if the domestic violence situation has not settled down? To continue staying in USA the H-4 spouse can file a Form I-539 extension based on the spouse’s H1b approval. In the event, the H1b spouse refused to provide supporting documentation then try to file the H-4 extension with whatever documents they could like passport, current I-94, marriage certificate. Basically, fill out the I-539 form to the best of their ability with whatever information they could provide. For whatever information is not available, inform USCIS why the information / document cannot be provided. You need to clarify on this since for H-4 extension you will need the H1b approval or receipt notice and pay slips of the H-1b spouse. Request USCIS to gather the required information from their records since as a H-4 spouse, who is still married, they are eligible for the H-4 extension. Other option if you are not able to pursue the H-4 extension is that of filing for a change of status to B-2(tourist) or change of status to F-1(student). One can also explore some job offer from non-profit organizations or institute of higher education like universities. These organizations can file for H1b at any point of time and bypass the H1b quota.
If you are already separated from the H1b spouse, how do you support yourself? There is a special EAD option for battered and nonimmigrant spouses which USCIS can grant you once you filed a Form called I-765V. Once approved you can get work authorization for two years.
Apart from the above one can also explore the U visa options. U visas are for a victim of a crime including domestic violence. U visa regulations set out the list of crimes and domestic violence will also qualify under the regulations. In order to qualify for the U visa, one has to prove that you are a victim of a crime in USA and that you must have helped police/prosecutor and finally you need to prove harm (mental or physical). It is not sufficient that you helped prosecutor. There is also this form I-918 Supplement B you file as evidence of helping law enforcement. You can also file EAD form I-765 requesting for employment authorization. But EAD will be issued only if the USCIS makes a bona fide determination on your case, and this is not approval of the U visa. Bona fide determination is a preliminary stage. Even to reach this stage of bona fide determination it may around 3 to 4 years and U visa by itself can take around 5 to 6 years to get approved because there is an annual quota of 10,000 visas and the demand is so high and there are thousands of U visa applications pending with USCIS. Depending on the circumstances even family members of victim can qualify, and the U visa victim can also remarry and there is no restrictions on that. To make an appropriate filing you need to file Form I-918 Supp B, I-918, a statement explaining your situation, Form I-192 waiver form if applicable, cover letter, identity documents and other supporting documents like medical report, police report, court records etc. U visa if approved is granted for 4 years and after being in U visa for 3 years you can potentially qualify to file for permanent residency and ultimately for US citizenship.
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