With the passage of the Violence Against Women Act of 1994 (VAWA) and its subsequent reauthorizations, Congress provided non-US Citizens, who have been abused by their US Citizen or LPR family member, the ability to independently petition for themselves (self-petition) for lawful status without the abuser’s knowledge, consent, or participation in the immigration process. This allows victims to seek both safety and independence from their abusers.

Spouses and children of US Citizens and lawful permanent residents, and parents of US Citizens who are 21 years of age or older, may file a self-petition for immigrant classification with USCIS. A non-US Citizen filing the self-petition is generally known as a “VAWA self-petitioner.” If USCIS approves the self-petition, VAWA self-petitioners may seek legal permanent residence and obtain a Green Card.  This can be done either by consular processing if the approved self-petitioner is outside the United States or by applying for adjustment of status if the approved self-petitioner is in the United States.

Basic Eligibility Requirements:

You are eligible for a VAWA self-petition if you demonstrate the following eligibility requirements:

• You have a qualifying relationship as the:
  • Spouse, intended spouse, or former spouse of an abusive United States citizen or lawful permanent resident if:
    • You are married to a United States citizen or lawful permanent resident abuser;
    • Your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition;
    • Your spouse lost or renounced citizenship or lawful permanent resident status within the 2 years prior to filing your petition due to an incident of domestic violence; or
    • You believed that you were legally married to your abusive United States citizen or lawful permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.
  • Child of an abusive United States citizen or lawful permanent resident parent; or
  • Parent of an abusive United States citizen son or daughter who is 21 years old or older.
• You were subjected to battery or extreme cruelty by your United States citizen or lawful permanent resident relative during the qualifying relationship. (If you are applying as a spouse, you may also be eligible if your United States citizen or lawful permanent resident spouse subjected your child to battery or extreme cruelty);
• You are residing or have resided with your abusive United States citizen or lawful permanent resident relative; and
• You are a person of good moral character.

If you are self-petitioning as the spouse of an abusive United States citizen or lawful permanent resident, then you must also demonstrate that you entered into the marriage in good faith and not for the purpose of evading immigration laws.

NOTE: A successful VAWA determination does not depend on gender.

Family Members:

If you are applying as a spouse or child of an abusive US citizen or lawful permanent resident, you may include your child(ren) as derivative beneficiaries on the self-petition. Children must be under 21 years old and unmarried when you file to be included as derivative beneficiaries. If you are applying as a parent of an abusive US citizen son or daughter, however, you are not eligible to include derivative beneficiaries on your self-petition.    

If the self-petition is approved, derivative beneficiaries are granted the same immigrant classification and priority date as the self-petitioner and are eligible to apply for lawful permanent resident status when a visa is immediately available. VAWA self-petitioners may add an eligible child, including a child born after the self-petition is approved, when the self-petitioner applies for lawful permanent resident status. They do not have to file a new petition. 

Lawful Permanent Residency / Green Card

If your self-petition is approved and you meet other eligibility requirements, you may be eligible to apply to become a lawful permanent resident; i.e., obtain a Green Card.

Eligibility for Adjustment of Status

In order to be eligible for a Green Card as a VAWA self-petitioner, you must meet the following requirements:

• You properly file Form I-485, Application to Register Permanent Residence or Adjust Status;
• You are physically present in the United States at the time you file your Form I-485;
• You are eligible to receive an immigrant visa;
• An immigrant visa is immediately available to you at the time you file your Form I-485 and when USCIS makes a final decision on your application;
• None of the bars to adjustment of status apply to you;
• You are admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other forms of relief; and
• You merit the favorable exercise of USCIS’ discretion.

If the abuser is your US Citizen spouse, US Citizen parent or your US Citizen child who is age 21 or older or you have a current priority date based on a previously filed I-130, then you may file the I-360 at the same time as your green card adjustment of the status application package. Submitting both forms at once will save a great deal of time. VAWA eligible non-immediate relatives may file Form I-360 concurrently with Form I-485 only if an immigrant visa number is immediately available.

Waivers

Some of the bars to adjustment are waived automatically for VAWA applicants, including entry without admission or parole, being out of status, being a public charge, and working without authorization. Additionally, VAWA adjustment of status applicants are exempt from the affidavit of support requirement. Instead, they may submit Form I-864W.

The following are not waived automatically; however, waivers are available.

• 3 Year and 10 Year Bars: may be waived if the Applicant can show a connection between the domestic violence and being unlawfully present in the United States OR the Applicant arrived before April 1, 1997.

• Permanent Bar & Reentry After Removal: may be waived if the Applicant can show a connection between the abuse and the removal or departure and re-entry or attempted re-entry.

• Fraud or Misrepresentation (but not false claim to citizenship): may be waived if the Applicant can demonstrate extreme hardship to her(him)(their)self, or their United States citizen or lawful permanent resident parent or child. NOTE: While there is no specific VAWA waiver for a false claim to US Citizenship under INA § 212(a)(6)(C)(ii), some advocates have been successful in arguing that a VAWA self-petitioner is not inadmissible under this ground if they can show that the false claim to U.S. citizenship was part of the abuse and control;

• Criminal Grounds of Inadmissibility: may waive a conviction for a crime involving moral turpitude, convictions of two or more offenses with a total aggregate sentence of 5 years or more, prostitution, and for a single violation of a controlled substance law as it relates to 30 grams or less of marijuana.

• Communicable Disease: may be waived for a VAWA self-petitioner if the VAWA self-petitioner can demonstrate that they merit a favorable exercise of discretion

Unlike general waivers of inadmissibility, which often require showing extreme hardship to a qualifying US Citizen family member, most of the VAWA waivers instead require a connection between the abuse and the inadmissibility ground, or simply that the applicant is a VAWA self-petitioner and warrants a favorable exercise of discretion. Additionally, VAWA adjustment of status applicants, like all other adjustments of status applicants, are eligible to apply for general waivers of inadmissibility so long as they meet the criteria.

Success

To be successful on a VAWA self-petition, considerable evidence must be gathered including evidence of battery/abuse/extreme cruelty as well as proof of the qualifying relationship to the abuser. A comprehensive psychological evaluation is always recommended.

You will need to work with an immigration attorney to determine when you may file, what forms you will need to file, and what evidence you need to submit. If you file the wrong forms, fill them out incorrectly, do not submit enough evidence, or do not explain why any special inadmissibility barriers that apply to you should be waived, you may end up in immigration court facing deportation.

Our law firm has extensive experience with domestic violence. Attorney Anderson has handled both criminal and civil domestic violence cases as well as immigration cases involving domestic violence. Contact us to utilize an experienced and understanding advocate.