The Violence Against Women Act addresses a flaw in the marriage-based immigration system created by domestic violence and abusive relationships. Sadly, immigrants who are victims of abuse often feel compelled to stay with their abusive U.S. citizen or permanent resident spouses in order to get a green card. The victim needs the abuser’s help to get a green card. This dynamic gives the abusive spouse power to manipulate his or her victim.
The goal of the Violence Against Women Act or VAWA is to fix this problem by allowing immigrants who are being abused to self-petition, independently of their abusive spouse or family member.
Violence Against Women Act preliminary consideration: Be safe!
Before you think about your immigration case under VAWA, you should consider your own personal safety. If you find yourself caught in an abusive relationship, seek out support services for domestic violence. Take advantage of hotlines, shelters, and counseling services. A good starting point might be calling the National Domestic Violence Hotline at 800-799-SAFE.
What are the requirements for the Violence Against Women Act?
The requirements for an immigration case under the Violence Against Women Act vary based on the facts of the case. In certain circumstances, VAWA can apply to parents or children who have been abused or battered by a U.S. citizen or legal permanent resident. VAWA can also be used by abused spouses and children of Cuban Adjustment, HRIFA, and NACARA beneficiaries.
In marriage-based Violence Against Women Act (VAWA) cases, a self-petitioning spouse must show:
- the abusing spouse is (or was) a green card holder or U.S. citizen;
- that the abuser is a permanent resident or US citizen spouse and was legally married to the VAWA applicant;
- that the VAWA applicant lived with the abusing spouse;
- the U.S. citizen or permanent resident spouse abused (i.e., “battered or subjected to extreme cruelty”) the VAWA applicant during the marriage;
- that the marriage was based on a relationship that was entered into for bona fide, good faith reasons and not solely for obtaining immigration benefits; and
- that the Violence Against Women Act applicant is a person of good moral character.
What types of documentation are used to prove abuse or battery?
To win your VAWA case, you need to show that you were battered or subjected to extreme cruelty by your spouse. USCIS takes into consideration a variety of domestic violence, which is not limited to physical abuse.
Often people mistakenly believe that a successful Violence Against Women Act application must be supported with a police report. But this is not true. U.S. immigration laws provide a flexible legal standard, which allows VAWA self-petitioners to submit “any credible evidence.”
Although not required, it’s helpful to submit any available primary or secondary documentation such as, medical records, police reports, restraining order paperwork, and therapist/counselor reports, domestic violence shelter records.
A good affidavit is essential to a winning VAWA case
A petition under VAWA (the Violence Against Women Act) should be supported with an affidavit or personal statement from the applicant, describing the abuse, the courtship and relationship with the abusive spouse, and the applicant’s good moral character and immigration history. This is a crucial part of the case that should be prepared with meticulous care.
How do you prove that the marriage relationship was bona fide?
A winning VAWA self-petition requires proof by “clear and convincing evidence” that the underlying relationship was entered into for genuine, good faith reasons and not solely to obtain immigration status. Documentation to show that the parties lived together and shared their lives include, for instance, jointly-filed tax returns, jointly-held leases, insurance, photos, and affidavits from third parties.
How long does it take to get approved for a VAWA immigration case?
USCIS publishes VAWA case processing times on its website, but I consider these times unrealistically quick. Also, when considering how long it will take to get a green card, factor in the time-consuming process of preparing a compelling VAWA case.
Can Men Apply under the Violence Against Women Act?
Yes. Despite the name, the Violence Against Women Act is not only for women. It also protects men. An abusive same-sex marriage could also serve as the basis for a VAWA case. Precisely the same legal standard would apply regardless of the VAWA applicant’s gender or sexual orientation.
Work Permits under VAWA
To qualify for a work permit or Employment Authorization Document while self-petitioning under the Violence Against Women Act, you’ll need an approved VAWA application (Form I-360) or a pending application for adjustment of status (Form I-485). Usually, you should receive your work permit about 3 months after filing the application (Form I-765).
How will Divorce affect your VAWA case?
A VAWA self-petition must be filed within 2 years of when the divorce becomes final.
VAWA and Remarriage
A VAWA self-petitioner who has been subject to battery or extreme cruelty must wait to get remarried until after USCIS approves the VAWA self-petition (Form I-360). The immigration petition is invalidated if the applicant remarried before USCIS approves the petition.
Attempted Marriage Fraud dooms a VAWA case
Section 204(c) of the Immigration and Nationality Act bars approval of subsequent visa petition (including a VAWA self-petition) where the applicant attempted or conspired to enter into a fraudulent marriage. A criminal conviction or prosecution is not required to trigger this bar. All that is necessary is for USCIS to have “substantial and probative” proof that the marriage was fraudulent.
VAWA and Conditional Residency
If you are a conditional permanent resident, i.e., you have a two-year green card, then a self-petition under the Violence Against Women Act is unnecessary and inapplicable. Other immigration options are available for conditional residents who are in an abusive relationship. One option is to seek a waiver of the joint filing requirement for the I-751 as a “battered spouse.” Another way to “renew” the green card would be to terminate the abusive marriage through divorce and then file an I-751 self-petition based on a “good faith marriage.”
Immigration Court, Deportation, and Violence Against Women’s Act
If you are in removal or deportation proceedings in Immigration Court, then a self-petition under the Violence Against Women Act could be the basis for a deportation defense strategy. Immigration Court, in general, will continue removal proceedings while USCIS processes and adjudicates. Would an Immigration Judge or USCIS adjudicate a VAWA-based application for a green card (I-485 application for adjustment of status)? The answer varies from case-to-case.
What is VAWA Cancellation of Removal?
This form of relief is available only to those who are in removal proceedings in Immigration Court and who can demonstrate that deportation would cause extreme hardship to the applicant or her children. So-called VAWA Cancellation of Removal usually comes into play only where the applicant is ineligible for relief through adjustment of status with an ordinary VAWA visa petition (Form I-360).
How our Immigration Lawyers Can Help your VAWA Case
If you’re a non-citizen trapped in an abusive relationship with a U.S. citizen or permanent resident: we’ve got your back. At the Law Offices of Joshua Goldstein, our immigration lawyers have considerable experience preparing well-documented VAWA self-petitions. We’ve successfully guided countless victims of domestic violence through this immigration process. We have insights into the VAWA process and can:
- Evaluate the merits of your VAWA case and help you gauge whether filing a self-petition under the Violence Against Women Act is an appropriate form of relief; and
- Help you find and resolve hidden problems and red flags that might only be apparent to an immigration lawyer with experience in VAWA cases.
Call us today at 855-4VISALAW. Schedule a consultation to learn more about the Violence Against Women Act and how our team can help you.