The Violence Against Women Act: A Unique Path to Permanent Residence
We have recently been seeing more and more cases in which immigrants who are victims of domestic violence are seeking a way to gain permanent residence. By way of example, consider Rina* who came to the United States from India on a visitor visa. Just as it was to expire, she met, fell in love with, and married Raj, a lawful permanent resident. Shortly after they were married, Rina gave birth to their son Sanjay. When Sanjay was only a few months old, Raj began to isolate Rina from her friends and family, beat her, call her names, fail to provide her with any money for food for herself or their son, and repeatedly threaten to call Immigration and "turn her in." What can Rina do to protect herself without risking removal from the U.S.? The Violence Against Women Act, or VAWA, may be her answer.
Under VAWA, special provisions were enacted for battered immigrants that allow them to gain legal status in the U.S. without having to rely on their abusive U.S. citizen or lawful permanent resident spouses to petition for them. Because VAWA allows a battered spouse to file a petition with USCIS independent of the abusive spouse, those seeking relief are referred to as "self-petitioners." The title of the law is misleading since women are not the only ones who are eligible. Men, boys, and girls may also apply if they meet the eligibility requirements under the Act. In addition to abused spouses of U.S. citizens and lawful permanent residents, other immigrants who may be eligible to self-petition include: spouses of U.S. citizens or lawful permanent residents whose children are abused, abused "intended spouses" (those who entered into a bigamous marriage in good faith), abused parents of U.S. citizen children, and abused children of U.S. citizens or lawful permanent residents.
With approval of her VAWA petition, the self-petitioner receives what is called "Deferred Action" status for 15 months, renewable in 12-month increments. What this means is that she is low in priority for removal from the U.S. Further, she is eligible to receive an employment authorization document, or work permit. She may also be eligible to adjust her status to lawful permanent resident.
In the case of an abused spouse, a self-petitioner must show that her abuser is a U.S. citizen or lawful permanent resident, that she entered into her marriage in good faith, that she is the victim of battery and/or extreme cruelty at the hands of her abuser, that she jointly resided with her abuser, and that she is a person of good moral character. VAWA mandates the evidentiary standard to be used in evaluating applications for relief by requiring USCIS to consider "any credible evidence" relevant to the VAWA petition.
The first of these requirements, that of the status of the abuser, might be shown by providing USCIS with the abusive spouse's birth certificate, passport, or green card. If the self-petitioner does not have access to any of these forms of proof, she may request that USCIS search its records to confirm the status of the abuser. Ultimately, however, it is the self-petitioner's burden to prove the abuser's status.
The self-petitioner cannot have entered into a marriage for the primary purpose of circumventing the immigration laws. Thus, if she intended to establish a life with the abuser when they married, the good-faith marriage requirement should be satisfied. Under these circumstances, even a self-petitioner who entered into a bigamous marriage may be eligible for VAWA relief so long as she can show that she entered the marriage in good faith. If the self-petitioner or her abuser has been previously married, she must also submit evidence of the legal termination of those marriages.
Battery or extreme cruelty is defined broadly in the law to mean "any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury." Acts of violence may include psychological abuse or sexual abuse, including rape, molestation, or incest. Examples of extreme cruelty might include social isolation, threats, economic abuse, and other conduct intended to maintain power over the victim. The self-petitioner's affidavit is perhaps one of the most important documents that she will submit to document the "story" of her abuse. This is a document, written in the self-petitioner's own words, that describes, among other things, how, when, and where she was abused by her spouse and the circumstances surrounding the abuse. The affidavit should also address each of the other eligibility requirements.
Self-petitioners must also provide evidence that they have resided with their abusers. This might be shown by an apartment lease with both spouses name on it, joint bank account statements, or joint tax returns. A self-petitioner must also satisfy the good moral character requirement for the three years preceding the filing of her VAWA self-petition. This might be shown by a police clearance letter and support letters from friends, family, or clergy. If the self-petitioner has arrests and/or convictions, she should also provide copies of certified dispositions as well as a detailed explanation of the circumstances surrounding these events.
If the VAWA petition is approved, the self-petitioner may be eligible for adjustment of status even if she entered the U.S. without inspection. In addition, there are numerous other waivers of inadmissibility and deportability that benefit approved self-petitioners applying for adjustment of status.
The stakes are often very high in VAWA cases. The outcome might well mean the difference between freedom from abuse, and continued abuse or even death. Therefore, an immigrant who is the victim of domestic abuse and who may be eligible for relief under VAWA should consult with an immigration attorney to assess the situation and see what options may be available.
* The names in this article have been changed to protect the individuals' privacy.