Violence Against Women Act (VAWA)
VAWA is a form of relief created by Congress to assist those who have been victims of abuse at the hands of U.S. citizen or lawful permanent resident family members. U.S. citizen or lawful permanent resident family members may petition for their parent, spouse, or child but in certain cases of abuse the U.S. citizen or lawful permanent resident uses the undocumented status of the foreign national family member to control and dominate the foreign national. For this reason, VAWA allows for certain victims to self-petition without the cooperation or knowledge of the abusive U.S. citizen or lawful permanent resident. If the petition is approved and the VAWA self-petitioner (foreign national victim) is admissible to the U.S., he or she may be eligible to apply to adjust status to lawful permanent residency status.
Additionally, VAWA self-petitioners who have committed immigration violations such as entering the U.S. unlawfully, lying to gain entry into the U.S., remaining in the U.S. without permission, and other grounds may apply for a waiver(s) of inadmissibility.
If the foreign national victim is in removal or deportation proceedings, under VAWA, the individual may be eligible to apply a special form of cancellation of removal.
Victims of abusive United States citizen and lawful permanent resident parents, children, or spouses may self-petition for lawful status. If the VAWA self-petition is approved, the victim or VAWA self-petitioner will be eligible for employment authorization.
VAWA Self-Petitioner is defined as:
- Spouses and ex-spouses of U.S. citizens or lawful permanent residents. If divorced, the application for VAWA must be filed within two years of the termination of the marriage; or
- Children (under 25 years old) of U.S. citizens or lawful permanent residents.
- Parents of an abused immigrant child. The parent themselves need not have.
- Good Faith Marriage if the abuser is a spouse or a step-parent to an abused child.
- Proof of Relationship to abusive U.S. Citizen or Lawful Permanent Resident.
- Proof of Good Moral Character.
- Proof of Residence with abusive U.S. Citizen or Lawful Permanent Resident.
- Proof of parent/child relationship (varies depending on case).
- Proof of Battery and/or Extreme Cruelty.
- Generally speaking, the VAWA self-petitioner should be living in the United States. There are certain exceptions.
- The abuse must have occurred in the United States
The victim must have demonstrate that he or she has been subjected to battery or extreme cruelty. This may be documented through a statement by the victim(s), letters from friends or family members, letters from medical or mental health professionals, medical or hospital records, psychological evaluations, police reports, or criminal records if the abuser was charged or convicted of any crimes.
If the Self Petition is Approved
If your VAWA self petition is approved then there are more steps to follow to obtain lawful permanent residency status. If VAWA self-petitioner is in the United States, he or she is admissible to the U.S., and all other requirements are met, they may proceed with the adjustment of status process within the United States. If the VAWA self-petitioner is outside the United States then the case processed through a U.S. Consulate abroad.
If the petition is subject to visa limitations (for example, spouses and children of lawful permanent residents), then the VAWA self-petitioner may have to wait until a visa is available before they may proceed to the next step. VAWA self-petitioners who are spouses or children (under 21 and unmarried) of U.S. citizens are considered immediate relatives and are entitled to an immigrant visa immediately.
VAWA Cancellation of Removal
In some cases, the foreign national victim of abuse is already in removal proceedings (commonly referred to as deportation proceedings). If he or she meets certain criteria, the victim may be eligible to cancel his or her removal because of the abuse suffered at the hands of either a U.S. citizen or lawful permanent resident spouse or parent or if you are the parent of a child who was abused by a U.S. citizen or lawful permanent resident parent. This form of relief is called special rule cancellation of removal.
- Victim (battered or subject to extreme cruelty) by a U.S. citizen or lawful permanent resident spouse or parent OR a parent of a child abused by a U.S. citizen or lawful permanent resident;
- Physically present in the United States for three years.
- Good Moral Character.
- Removal would cause extreme hardship.
- Is not inadmissible or deportable under certain statutes.
If the foreign national victim is in removal proceedings, he or she will usually have to appear for two or more court hearings. The first hearings are usually called Master Calendar Hearings during which the judge determines if the foreign national is deportable. If deportable, the foreign national will seek to cancel his or deportation based on the abuse suffered by the foreign national spouse or child. Eventually, the Immigration Judge will schedule a final court hearing called the Individual Hearing. It is at this hearing that testimony is taken, the individual merits and arguments of the case are heard, and the judge issues a decision on whether or not to grant cancellation of removal.
If the individual is granted relief, he or she is granted lawful permanent resident status. After three or five years, he or she may be eligible to apply for U.S. citizenship through naturalization.
VAWA Removal of Condition on Residence
To prevent marriage fraud, married spouses are given a two-year conditional residence rather than the permanent residence status. If this is the case, the foreign national spouse must remove the condition on his or her residence to avoid losing legal residency status. This is usually filed jointly by both the U.S. citizen or lawful permanent resident spouse and the foreign national spouse. However, where the foreign national spouse is battered and/or subjected to extreme cruelty, the foreign national spouse may file the petition without the abusive U.S. citizen or lawful permanent spouse.