Battered Noncitizen Status

Battered noncitizen status should not be confused with the criteria provided in this chapter to determine eligibility for domestic abuse services in CalWORKs. Battered noncitizens may have LPR status or may be undocumented. The USCIS determines who is eligible for this status. The main purpose in determining battered noncitizen status is to allow these individuals to enter or to remain in the United States without the sponsorship of their abuser. They will be asked to complete various documents including the “Petition for Amerasian, Widow or Special Immigrant” (Form I-360). This document helps USCIS to determine if the client has a valid “prima facie” (at first view) case for immigration status as a battered noncitizen.

The client may be asked to provide any of the following to substantiate their claim of abuse:

Police, government agency, or court records or files documenting the abuse/cruelty,
Documentation from a domestic abuse program, legal, clerical, medical, or other professional from whom the client has sought assistance in dealing with the abuse, or
A statement from any other individual with knowledge of the circumstances of the claim, physical evidence, or any other evidence that supports the claim.

The applicant can call 1-800-870-3676 to request the required forms to complete the application with USCIS. They may also call the National Domestic Violence Hotline at 1-800-799-7233. Santa Clara County’s Domestic Violence Crisis Line is 408-279-2962 and the Elder Abuse Hotline number is 1-800-414-2002.

Connection Between Battery and Need for Benefits

Verification that there is a substantial connection between the battery and the need for benefits can be one or more of the following. Benefits are needed:

To enable the applicant, the applicant’s child, and/or (in the case of a noncitizen child) the applicant’s parent to become self-sufficient following separation from the abuser
To enable the applicant’s child, and/or (in the case of a noncitizen child) the applicant’s parent to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the applicant, the applicant’s child, or the applicant parent from the abuser
Due to a loss of financial support resulting from the applicant, his or her child’s, and/or his or her parent's separation from the abuser
Because as the result of battery or extreme cruelty, the applicant loses his/her job, earns less, or is required to leave his or her job for safety reasons. Results of battery/extreme cruelty include:
- Separation from the abuser
- Work absences
- Lower job performance resulting from the battery or extreme cruelty, or
- Legal proceedings relating to child support, child custody, or divorce action.
Because the applicant, applicant’s child or parent of noncitizen child requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty
Because the loss of a dwelling or source of income or fear of the abuser following separation jeopardizes the applicant or parent of the noncitizen child to care for his or her children. (This includes the inability to house, feed, or clothe the children or to put the children into a daycare for fear of being found by the abuser.)
To alleviate nutritional risks or needs resulting from the abuse or following separation from the abuser
To provide medical care during a pregnancy resulting from the abuser’s sexual assault or abuse of, or relationship with the applicant, the applicant’s child, and/or the parent of the noncitizen child, and/or to care for any resulting children
When medical coverage and/or health care services are needed to replace medical coverage or health care services the applicant had when living with the abuser.

Rules

Applicants

Only the following noncitizen applicants can apply for “battered noncitizen” status:

An individual who is a	of a U.S. Citizen...	and/or a Legal Permanent Resident...
Husband or Wife	X	X
Widow or Widower	X
Unmarried child under age 21	X	X
Unmarried child age 21 or older		X

Approval/Pending Status

Battered noncitizens must also meet certain requirements. They must have been APPROVED or have a petition PENDING (with USCIS) which sets forth a prima facie (apparent) case for:

Status as a spouse or child of a U.S. citizen pursuant to clause (ii), (iii) or (iv) of Section of the Act [8 U.S.C.A 1154 (a)(1)(A)(ii), (iii) or (iv)]; or
Classification pursuant to clauses (ii) or (iii) of Section 204(a)(1)(B) of the Act; or
Cancellation of removal under Section 1229(b) of this title (as in effect prior to April 1, 1997); or
Status as a spouse or child of a U.S. citizen pursuant to clause (i) of Section 204(a)(1)(A) of such Act [8U.S.C.A 1154 (a)(1)(B)(i)], or
Cancellation of removal pursuant to Section 1229(b)(92)of the title.

Only USCIS can make the decision for “Battered Noncitizen” status (“pending” or “approved”) by providing one of the documents listed above.

Deeming Sponsor’s Income

Medi-Cal does not implement the deeming of sponsor’s income.

1 Year Exemption

Battered noncitizens are exempt from the new deeming regulations for 1 year if certain conditions are met. The conditions to exempt the deeming of sponsored income for one year exist:

In the case of an abused noncitizen:
- The noncitizen has been battered or subjected to extreme cruelty in the U.S. by a spouse or parent of the noncitizen, or by a member of the spouse or parent’s family residing in the same household as the noncitizen if the spouse or parent consents to or acquiesces in such battery or cruelty.
- There is, in the opinion of the agency, a substantial connection between the battery or extreme cruelty and the need for benefits, and
- The battered noncitizen no longer resides in the home of the abuser.
In the case of the noncitizen whose child is abused:
- The noncitizen’s child has been battered or subjected to extreme cruelty in the U.S. by a spouse or parent of the noncitizen, or by a member of the spouse or parent’s family residing in the same household as the noncitizen if the spouse or parent consents to or acquiesces in such battery or cruelty, and the noncitizen did not actively participate in the battery or cruelty.
- There is, in the opinion of the agency, a substantial connection between the battery or extreme cruelty and the need for benefits, and
- The battered noncitizen no longer resides in the home of the abuser.
In the case of the noncitizen child whose parent is abused:
- The noncitizen’s child’s parent has been battered or subjected to extreme cruelty in the U.S. by a spouse or parent of the noncitizen, or by a member of the spouse or parent’s family residing in the same household as the noncitizen if the spouse or parent consents to or acquiesces in such battery or cruelty, and the noncitizen did not actively participate in the battery or cruelty.
- There is, in the opinion of the agency, a substantial connection between the battery or extreme cruelty and the need for benefits, and
- The battered noncitizen no longer resides in the home of the abuser.

Extended Exemption

The 1 year exemption may be extended for a longer period. The deeming exemptions with regard to resources and income, of the batterer only, will continue if:

The applicant demonstrates that the battery or cruelty has been recognized in an order of a judge or administrative law judge or a prior determination on USCIS, and
There is, in the opinion of the agency, a substantial connection between the abuse or battery suffered by the applicant, the applicant's child, or (in the case of noncitizen child) the applicant’s parent and the need for benefits.

Residence

“Battered noncitizen” status does not apply to a noncitizen during any period in which the individual responsible for such battery or cruelty resides in the same household as the individual subjected to such battery or cruelty. If receipt of benefits is mandatory to enable the battered person(s) to get out of the home, when possible, EWs can process the application to determine if eligibility exists. If eligibility exists (pending the person leaving the batterer), EWs can tell the applicant they are eligible and leave the case pending until the battered person has demonstrated they no longer live with the batterer. Refer the applicant to the Domestic Violence Hot Line (1-800-799-7233). Follow regular program application timelines.

Abuser No Longer in the Home

Any relevant credible evidence that supports the noncitizen’s statement that the abuser is not in the home is acceptable, as long as the agency has no conflicting information. Relevant credible evidence can include, but is not limited to:

Protective orders issued by the court,
Rental receipts, or
The noncitizen’s written statement supported by a statement from any other individual with knowledge of the circumstances.

Documents

The noncitizen applying for “battered noncitizen” status must file a petition with USCIS. Only USCIS makes the determination of this status for public benefits purposes. The client may have any of the following documents:

“Petition for Amerasian, Widow or Special Immigrant” (Form I-360)

One of the uses of the Form I-360 is an application form to petition USCIS for Special Immigrant status (i.e. Battered Noncitizen status). If the client has a copy of the I-360, they must have another document showing approval or pending status. By itself, this is not adequate documentation.

In addition to the I-360, the applicant must have additional documentation to indicate any level of battered noncitizen status. Acceptable documentation includes, but is not limited to:

I-797C-Notice of Action from USCIS stating the notice type is a “Receipt Notice.” The receipt shows the client paid for case type “I-360 Petition for Amerasian, Widower, or Special Immigrant.” This is sufficient evidence of pending battered noncitizen status. This document is valid for 120 days from the date of receipt.
I-797-Notice of Action from USCIS indicating filing of the I-360 petition. Within 3 weeks (or sooner), USCIS will send an additional notice.
I-797-Notice of Action from USCIS stating “Establishment of Prima Facie Case.” The case type is “I-360 Petition for Amerasian, Widower, or Special Immigrant.” This is sufficient evidence of pending battered noncitizen status. This document is valid for 150 days; there is an expiration date on the form. This is usually enough time for the case to be adjudicated. An extension can be requested in writing to USCIS if needed to continue public benefits. If the establishment of the prima facie case is not re-issued or extended the case may have been denied.
I-797-Notice of Action from USCIS stating the notice type is an “Approval Notice.” This means the client has attained “battered noncitizen” status and is eligible to receive federal public benefits as a qualified alien. In addition, the “approval” may say one of the following:
- You are approved to apply for an adjustment of status with USCIS. The client must obtain the “Application for Permanent Residence” form and file the Approved Petition with USCIS.
- You are not approved to file for an adjustment of status at this time. An additional notice was sent with this I-797 stating, “You will be notified by mail no later than 15 months from the date of this notice whether you are required to have an adjustment of status interview.”

I-551

The applicant may also have an I-551 with any of the following class of admission codes:

USCIS DOCUMENT	USCIS CODE
I-551	Code printed on the front of a white card or the back of a pink card. AR1, AR6, C20-C29, CF1, CF2, CR1, CX1-CX3, CX6-CX8, F20-F29, FX1-FX3, FX6-FX8, IF1, IF2, IR1-IR4, IR6-IR9, IW1, IW2, IW6, IW7, MR6, MR7, P21-P23, P26-P28.
I-551	Code stamped on the lower left side back of the pink card. IB1-IB3, IB6-IB8, B11, B12, B16, B17, B20-B29, B31-N33, N36-B38, BX1-BX3, BX6-BX8.
I-551	Z13 may demonstrate approval of a petition; BUT, needs additional follow-up. Institute Secondary Save.
Foreign Passport	Any of the codes listed above.
I-94	Any of the codes listed above.

Legal Documents

The applicant may also have documentation of a final order by an Immigration Judge or from the Board of Immigration Appeals:

Giving approval of status or establishing a prima facie case, or
Granting Suspension of Deportation under Section 244 (a)(3) of the USCIS as in effect prior to April 1, 1997 or cancellation of removal under section 240(b)(2)of the USCIS.