According to the Immigration and Nationality Act, victims of abuse have the right to file a special petition regarding the abuse they suffered in the United States by an immediate relative who is a U.S. citizen or lawful permanent resident.
If you or a close relative have suffered abuse, whether physical, financial, or emotional, it is important that you understand the VAWA self-petition.
The Violence Against Women Act (VAWA) was enacted by Congress in 1994.
The Law was amended by adding a new clause to protect abused non-citizens who remain in abusive relationships because they believe that the abusive family members hold the key to their immigration status in the United States.
What is a VAWA self-petition and who is eligible?
The Violence Against Women Act (VAWA) has been one of the most successful ways victims of abuse have been able to obtain protection from deportation, a work permit, and possibly their residency.
Although the name sounds like only women are eligible, this is not true. In reality, VAWA protects anyone who has suffered abuse, including men, women, and children.
VAWA allows for the confidential filing of a person's petition. This means that the abusive immediate family member, whether a spouse, parent, or child, is not notified of the pending petition.
Eligibility:
- Spouse: if you have been personally abused by a spouse who is a U.S. citizen or lawful permanent resident, or if your spouse has abused your child, which may include unmarried children under 21 years of age.
- Parents: if you have been personally abused by your United States citizen son or daughter who is 21 years of age or older.
- Children: If you have been personally abused by your father, a United States citizen or lawful permanent resident, and are currently under the age of 21.
When you decide to file a VAWA self-petition, you have no contact with the abuser because you can complete the process through a “self-petition.”.
How long does the process take?
Currently, USCIS He has been experiencing some delays with these cases, so the processing of your VAWA application may take on average between 16 and 21 months.
Spousal eligibility requirements:
Current spouses or former spouses of United States citizens (USC) or lawful permanent residents (LPR) may file a self-petition under VAWA.
According to their marriage to the abuser, a VAWA self-petitioner must meet one of the following requirements:
- Currently married: the victim is currently married to the abusive USC or LPR abuser.
- Divorced: If the victim has divorced their abusive USC or LPR spouse, the event must have occurred within the past 2 years. The victim cannot remarry and cannot remarry until their own VAWA petition is approved.
- Widower: if the victim's USC spouse has passed away, the event must have occurred within the last 2 years. Unfortunately, this only applies to abusive USC spouses and cannot be applied to abusive LPR spouses.
- It is believed that the victim is married: if a victim believes they are in a valid marriage but was deceived because the abusive USC or LPR spouse was legally married at the same time to another person. The abusive spouse's bigamous marriage invalidates the marriage of the victim and the abuser, but if the victim can prove that it was a «intended marriage», then the victim can still file a self-petition.
A victim may still qualify for a VAWA self-petition if their abusive USC or LPR spouse loses their citizenship or permanent residency within 2 years of filing.
The loss of status must be linked to a related domestic violence incident.
In accordance with their marriage to the abuser, a VAWA petitioner must prove that their marriage or intended marriage was entered into in good faith (real and legitimate). A victim can do this by proving the following:
- The marriage was entered into in good faith and not to obtain immigration benefits;
- Evidence of establishing a life together. This can be done by presenting evidence showing combined finances (credit cards, taxes, and joint bank accounts), joint property ownership or property leases, mutual children—both biological and adopted—medical records of upcoming pregnancies or fertility treatments, evidence of trips taken together and purchase receipts for gifts for each other, wedding invitations or wedding-related expenses, photos together and with family, affidavits from family and friends, etc.
In addition to establishing a qualifying relationship and a good-faith marriage, a VAWA self-petitioner must establish:
- Abuse: The USC or LPR spouse subjected the self-petitioner to “battering or extreme cruelty” during the marriage.
- Residence: The self-petitioner lives or lived with the abusive spouse, and resides in the United States or, if living abroad, was subjected to abuse by the USC or LPR spouse while in the United States. An exception would be if the USC or LPR spouse is an employee of the U.S. government or the U.S. armed forces.
- Good moral character: The self-petitioner is a person of good moral character.
A self-petitioning spouse can add their unmarried child under 21 years of age to their application as a derivative.
Requirements for parents:
Biological parents, stepparents, or adoptive parents of United States citizen (USC) sons or daughters who are at least twenty-one years of age may file a VAWA self-petition.
According to the parent-child relationship, a VAWA self-petitioner must meet one of the following requirements to prove a qualifying relationship:
- Biological parents: The abusive child was born within marriage. If the abusive child was born out of wedlock, the relationship must be legitimated. If the victim is the parent of a child born out of wedlock, there must have been a bona fide parent-child relationship with the child.
- Stepparents: The marriage creating the stepparent relationship must have occurred before the abusing child turned 18 years old.
- Adoptive parents: The adoption must have been finalized before the abusive child's 16th birthday or before age 18 if the abusive child is a sibling of a child adopted by the same parents.
The qualifying relationship must exist at the time of filing.
In addition to establishing a qualifying parent-child relationship, a VAWA self-petitioner must establish:
- Abuse: the USC child subjected the self-petitioner to “battery or extreme cruelty” during the existence of their parent-child relationship.
- Residence: The self-petitioner lives or has lived with the abusive USC or LPR son or daughter.
- Good moral character: The self-petitioner is a person of good moral character.
How to file a VAWA petition?
Filing your VAWA case requires that you submit the following:
- Complete and sign Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.
- Submit evidence to support the abuse suffered. For example: personal statement, police reports, photographs of the abuse, etc.
- Submit your application to the Vermont Service Center.
In general, VAWA petitions are filed by those currently residing in the United States. However, there is still a possibility that you can apply for a VAWA visa if you live outside the United States.
Sometimes, the agency considers petitions from non-citizens living outside the United States, as long as some abuse occurred while they were in the United States.
However, there is an exception if the abuser is a U.S. government employee or a member of the U.S. Armed Forces.
What happens to LGBT marriages?
Just like marriages between men and women, same-sex marriages and the LGBT community (lesbians, gays, bisexuals, or transgender) enjoy the same rights of protection if they are victims of domestic violence.
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