In 1994, Congress passed the Violence Against Women Act (VAWA), creating special routes to immigration status for certain battered non-citizens. Among the basic requirements for eligibility, a battered noncitizen must be the spouse or child of an abusive U.S. citizen or permanent resident. Through a self-petitioning process, the battered spouse/child may apply for immigration status without the knowledge or involvement of the abuser. Derivative status is available to certain children and parents of the principal immigrant.
If eligible, Form I-360 Self-Petition (VAWA petition) is filed with supporting documentation. There is extensive evidence that must be gathered including evidence of battery/abuse/extreme cruelty and proof of the qualifying relationship to the abuser. Immigrants who can establish the basic requirements outlined below will be given a “prima facie” determination and then be eligible for certain public benefits. If the VAWA petition is approved, the immigrant is granted deferred action status in most cases. Deferred action means that removal, or deportation, proceedings will not be initiated. Applicants are also eligible for work authorization upon approval of their VAWA petition.
Once the VAWA petition has been approved, immigrants are classified into categories based on a preference system. Self-petitioners who are immediate relatives of U.S. Citizens (spouses, parents, unmarried children under the age of 21) are eligible to adjust status to a lawful permanent resident status when their VAWA petition is approved. Spouses and children of lawful permanent residents must wait for an immigrant visa to become available for their category. These petitioners will be able to obtain work authorization until they are eligible to apply for permanent residency.
The process to apply for lawful permanent residence includes a criminal check by fingerprinting and completion of a medical exam. Applicants might be barred from permanent residency if they have a record of involvement with drugs, prostitution, or other crimes, if they committed visa fraud, were previously deported, or have certain other “bad marks” against them. Waivers are sometimes available for criminal or immigration issues but intending immigrants with these complications are advised to have their cases reviewed by an immigration attorney. Battered spouses or children of U.S. citizens or permanent residents who are the subjects of deportation proceedings may also be eligible for this form of relief through VAWA cancellation of removal.
Eligibility Requirements for VAWA Self-petitioners:
- The intending self-petitioner must prove that s/he is a spouse, child (unmarried and under age 21)/parent of an abused child (unmarried and under age 21), or parent who was physically battered and/or subjected to “extreme cruelty” by a U.S. citizen or lawful permanent resident spouse, parent or adult child. Such abuse may include evidence of:
- physical abuse, violent acts or threats of violence, sexual abuse or exploitation, verbal abuse and degradation, emotional abuse, isolation, intimidation, economic abuse, coercion or threats to take away children or have one deported
It is not a requirement to have a police report. Many victims are fearful of calling the police and this does not preclude them for filing a VAWA self-petition.
- Abused spouses must additionally prove that the marriage was entered into in good faith, that the abuse occurred during the marriage, and that the marriage is still valid or was terminated less than two years prior to self-petitioning.
- The abuse must have occurred in the United States, and the victim must have lived with the abuser.
- The self-petitioner must provide evidence of his/her “good moral character.” This usually refers to a review of the self-petitioners criminal record or other immigration transgressions. Certain arrests or transgressions may be waived if the self-petitioner can show such actions were connected to the abuse s/he suffered. Applicants should consult with legal counsel for a close review of any such arrests, convictions or transgressions.
I-751 Waiver Petitions for Conditional Residents
In 1986, Congress passed the Immigration Marriage Fraud Amendments (IMFA) and added these to existing immigration laws. The purpose of IMFA was to deter people from entering fraudulent marriages solely for the purpose of obtaining lawful permanent resident status, by creating a “conditional residence” period for immigrant spouses who entered into a marriage with U.S. citizen/lawful permanent resident spouses within less than two years of applying for residence. To apply for removal of these conditions, immigrant spouses must normally file joint petitions with their U.S. citizen/lawful permanent resident spouse and prove the ongoing existence and good faith nature of the marriage. The law included waivers of this joint filing requirement under certain circumstances, where the marriage was entered into good faith but legitimately terminated before the end of the conditional period, or where the applicant would suffer extreme hardship if s/he was forced to return her/his home country.
In 1990, Congress created additional Amendments to the law creating a special waiver specifically addressing the dangers experienced by battered immigrants. A battered immigrant may apply for a waiver of the joint petition requirement and file her own I-751 petition. This may enable the battered immigrant to leave the abusive relationship without having to rely on the abusive U.S. citizen/lawful permanent resident spouse.
Eligibility Requirements for I-751 Waiver Petitions:
- In order to apply for a waiver of the joint filing requirement, the immigrant spouse holding conditional resident status must provide evidence that the marriage was entered into in good faith, and not for fraudulent immigration purposes.
- The conditional resident must also prove s/he falls into one of the following categories, providing corresponding evidence as appropriate:
- The removal of the conditional resident from the United States would result in extreme hardship; OR,
- The good faith marriage was legally terminated by divorce, or death of U.S. citizen spouse; OR,
- The conditional resident was subjected to battering or extreme cruelty by the U.S. citizen spouse/lawful permanent resident during the course of the marriage. In the case of a child applicant, the battery or extreme cruelty must have occurred at the hands of her U.S. citizen or lawful permanent resident parent.
For more information: USCIS Immigration Options for Victims Brochure
More information is also available through the following links:
http://www.ilrc.org; http://www.uscis.gov
E-mail questions to info@icwclaw.org