Protections from Abuse by Spouse (VAWA)

VAWA stands for the Violence Against Women Act. The Act was passed by Congress in 1994. VAWA made changes to U.S. immigration law that help protect victims of abuse who are not citizens of the U.S. In cases of domestic violence, certain non citizen victims of abuse can get lawful status to be here. They can get it without having to rely on their abuser to petition for them.

Normally, if you want lawful permanent resident (LPR) status (“green card”), and you are:

• a spouse, child, or parent of a U.S. citizen (USC) or
• a spouse or child of a legal permanent resident (LPR)

The USC or LPR files a petition for you with the United States Citizenship and Immigration Service (USCIS). They may also need to go with you to an interview with immigration authorities.

But, in relationships where there is domestic violence, the rules about the USC or LPR being part of the process can often be used as a form of abuse. The abuser can use it to get power and control over the victim. So, U.S.immigration law lets certain noncitizen victims of abuse get legal status on their own without involving the abuser.

A VAWA self-petition is a way to apply for lawful status in the U.S. on your own. You apply to USCIS asking for lawful status without the help of your abuser. It’s called a self-petition because you are applying for legal status by yourself, and you are not sponsored by anyone.

Note: To figure out if you can do a VAWA self-petition or another form of immigration relief, talk to an immigration lawyer with experience in VAWA cases.

The following people can self-petition for lawful status. Note: they also need to meet other requirements under VAWA (see section “Are there other requirements...” below):

Abused spouses of a USC or LPR. 

They can include “derivative” children on their self-petition (see below).
 

Non-abused spouses if the USC or LPR spouse abused your unmarried child.

The child has to be under 21 years old. The child can be a citizen or a noncitizen. 

• They can include derivative children on their application (see below)

It may be possible for an abused child between the ages of 21 and 25 to self-petition if they can show they qualified when they were under 21. They also have to show that the abuse was at least 1 main reason for the delay in filing. 

• They can include derivative children on their application (see below)

Sometimes stepchildren and adopted children.

For immigration purposes, the term “child’ includes stepchildren, if the parent and stepparent married before the stepchild’s 18th birthday.

“Child” can also be adopted children. If the adoption happened before the child’s 16th birthday. In the case of adopted siblings, if the younger child was adopted before turning 16, the older sibling still meets the definition of “child” if they were adopted before their 18th birthday.
 

Abused parents of a USC (not LPR)

son or daughter (the son or daughter has to be over 21)

• They can’t include derivatives on their application (see below)

Who is considered a derivative in VAWA cases?

• In immigration law, a derivative is a person who is not a citizen of the U.S. but can get immigration status through the application of another noncitizen. The noncitizen applying is called the “principal applicant.”

• In VAWA cases, derivatives are included on the self-petitioner’s application. Derivatives don’t need to show they are eligible for VAWA on their own. They need to prove their relationship to the self-petitioner.
• If you are a spouse self-petitioner, you can include your unmarried children under 21 as derivatives on your principal application.
•  If you are an abused child self-petitioner, you may include your own unmarried children if they are under 21. Note: a child self-petitioner can’t include a parent or sibling (under the age of 18) as derivatives. Those derivatives can be included in U-Visa and T-Visa applications, but not VAWA. Derivative children can’t get married during the petition process.

Yes. In addition to meeting the abusive relationship requirement explained earlier, you also have to meet all the requirements listed below:

Marriage to a USC or LPR

You must meet one of these 5 things:

1. Be married to a USC/LPR. This includes common-law marriage.

2. Your USC spouse (not LPR) died in the past 2 years

3. Your USC/LPR spouse lost their citizenship or residency in the past 2 years because of domestic violence

4. You had a marriage ceremony to a USC/LPR and later found out that your marriage was not valid because your spouse was committing bigamy. This means they were already married when they “married” you.

5. You were divorced from your USC/LPR spouse in the past 2 years, and you can show a connection between the abuse and the divorce.

And the marriage had to be a good faith marriage: You married in good faith and not only to get immigration benefits.

Battery or extreme cruelty

During your marriage, your USC/LPR spouse must have physically abused (battered) you or your child. Or subjected you or your child to “extreme cruelty.” Extreme cruelty is when an abuser uses any form of power and control over a victim. It can be an act of violence or a threat of violence. It can be things like:

• any forcible detention that results in physical or mental harm
• psychological or sexual abuse
• rape
• molestation
• incest
• forced prostitution
• acts that may not appear violent but are part of a pattern of violence

Note: The abuse must have happened in the U.S. unless you were abused in another country, because your spouse was an employee of the US government or a member of the US military.

• You lived with the abuser at some point
• You are a person of “good moral character”
  Note: Even if you think you did something that might hurt your chances to prove good moral character (like certain crimes), talk to an immigration lawyer with experience in VAWA. They can see if there is anything you can do for your situation.

Besides meeting the abusive relationship requirements explained earlier you also have to meet all the requirements listed below:

You are a child abused by your USC or LPR parent:

• You are the unmarried child (under 21) of a USC/LPR

• You are the unmarried child (under 21) of someone who was a USC/LPR, but they lost their citizenship or residency in the past 2 years because of domestic violence, or

• You are between the ages of 21 and 25 and can show you qualified before you turned 21. You have to show that the abuse was at least 1 main reason you didn’t file a self-petition before turning 21.

Battery or extreme cruelty

Your USC/LPR parent must have physically abused (battered) you or subjected you to “extreme cruelty.” Extreme cruelty is when an abuser uses any form of power and control over a victim. It can be an act of violence or a threat of violence. It can be things like:

• any forcible detention that results in physical or mental harm

• psychological or sexual abuse

• rape

• molestation

• incest

• forced prostitution

• acts that may not appear violent but are part of a pattern of violence

Note: The abuse must have happened in the U.S. unless you were abused in another country because your parent was an employee of the US government or a member of the US military.

You lived with the abuser at some point

If you are over the age of 14, you must be a person of “good moral character.”

Note: Even if you think you did something that might hurt your chances prove good moral character (like certain crimes), talk to an immigration lawyer with experience in VAWA. They can see if there is anything you can do for your situation.

Another possible immigration remedy for a child who was abused, abandoned, or neglected by a parent is Special Immigrant Juvenile Status (SIJS). It is important to know that you can still be“abandoned” by one parent even if you are living with, and being supported by, your other parent. If SIJS is granted, you may be able to get lawful permanent residency.

Immigration law sees a marriage as valid (or legal) if it is valid where it took place. Unless there's a U.S. national policy that over-rides it-like having more than 1 spouse.

A common-law marriage is valid under immigration law if it was formed in a U.S. state or a country that legally recognizes common-law marriages. In other words, you and your spouse must have lived in a state that recognizes common-law marriages and you must have met the legal definition of a common-law marriage in that state. If your common-law marriage was legal where you lived, it counts as legal even if you are applying for VAWA in a different state.

Immigration officials look at the following factors to decide if your common-law marriage is legal:

• When and where did the relationship begin?
• What intent did you and the abuser have about what the relationship was to be?
• Were you known as spouses by neighbors, friends, and the community?
• Did you introduce one another as a spouse?
• Did one of you buy a life insurance policy describing the other as the beneficiary spouse?
• Is there a birth registration or school registration of your children showing both of you as the parents?
• Is there a credit card account describing one of you as the spouse of the other?
• Did either of you name the other one as the beneficiary spouse of the other’s pension rights?
• Is there any other information that would show that you both have, from the beginning, lived like a lawfully married couple?

Yes. A marriage is valid under immigration law if it is valid where it took place. The U.S. Supreme Court ruled that it is unconstitutional for states to ban same-sex marriages. So, any valid same-sex marriage performed in the United States is recognized by USCIS.

Yes. If the abuser is a USC or an LPR, and you are living in another country, you can file for a self-petition if any one of the following is true:

• The abuser is an employee of the U.S. government, and they subjected you (or your child) to physical abuse or extreme cruelty while you both are or were living in another country,
• The abuser is a member of the U.S. military, and they subjected you (or your child) to physical abuse or extreme cruelty while you both are or were living in another country, or
• You are living in another country, and you (or your child) were subjected to physical abuse or extreme cruelty by the abuser while you were in the U.S.It doesn’t matter if the abuser is living with you or not.

When a self-petition is accepted, USCIS sends a receipt to the address you gave on your petition. Make sure you used a safe address, like your lawyer’s. The receipt states the date when they got the application.

When they review your application, USCIS might ask for more evidence from you. If USCIS believes that you would meet all the requirements if all the information in your application turns out to be, it issues a “notice of prima facie case.” This is a letter that may let you qualify for certain public benefits. Talk to a lawyer with experience in public benefits for immigrants to figure out what you might be eligible for.

Your notice of prima facie is not a final approval. If your information proves that you are eligible, USCIS grants the petition and send you an approval notice. If you are approved, you also get a work permit.

It depends on each case. But once your self-petition is approved, you might be able to apply for some of the following things:

Deferred action

This means that immigration probably won’t try to remove (deport) you so you have time until you can apply for LPR status.

Work authorization

You can get permission to work legally. Also called a “work permit.”

Some public benefits

Talk to a lawyer with experience in public benefits for immigrants to figure out what you might be eligible for.

LPR status

(see section below)

If your self-petition is approved, the amount of time you need to wait to apply for LPR status depends on the family immigration system. The family immigration system is a set of immigration laws that let a person get immigration benefits through family relationships.

Note: applying for LPR status is also called “adjusting status.”

You can apply immediately for LPR status if you are the: 

• spouse of a US citizen (USC)
• unmarried child (under 21) of a USC or
• parent of a USC who is over 21

The amount of time other self-petitioners, like spouses and children of LPRs, need to wait to apply depends on something called the “family preference system.”  There is a limit to the number of people who can immigrate under certain categories each year. Because of this, there is a waiting period until spouses and children of LPRs can apply for their LPR status. How long they have to wait depends on several things like: 

• their nationality
• their relationship with the LPR, and their “priority date.” This is the date when USCIS got the self-petition. If the abuser filed a family petition on your behalf before you filed your self-petition, the priority date may be the date of the earlier filing.

Also, if your self-petition was approved and you are applying for LPR status, you have to show that you are not “inadmissible.” There are many “inadmissibility grounds.” These are reasons why people can’t be “admitted” into the US, like criminal and fraud-related acts. In other words, the inadmissibility grounds are reasons why someone may not be able to get an immigration benefit, like a green card.

Talk to an experienced immigration lawyer to see if there are things that make you inadmissible and if there are any waivers that might help.  

Note: VAWA self-petitioners are not subject to the “public charge” inadmissibility ground under INA 212a(4)(C).

If you qualified for VAWA because of your marriage to an abusive USC or because you are the child of an abusive USC parent, you can apply for citizenship after having your LPR status for 3 years. Citizenship is also called naturalization.

If you qualified for VAWA through marriage to an abusive LPR or because you are the child of an abusive LPR parent, you can apply for citizenship after having your LPR status for 5 years. Citizenship is also called naturalization.

1. If you are in removal proceedings (also known as deportation proceedings) with an immigration judge, and
2. you are abused by your USC or LPR spouse or parent (or you have a child with the USC or LPR who is abused by them)

it might be possible to apply for “VAWA cancellation of removal.”  If an application for cancellation of removal is granted, the removal process ends, and you can get your LPR status.

Because you have to be in removal proceedings to be eligible to apply for VAWA cancellation of removal, it is very important that you have an immigration lawyer with experience in VAWA to advise and represent you. 

If you apply for your green card through a marriage-based petition and your marriage is less than 2 years old when you get your LPR status, you are a “conditional” permanent resident. This is also called a “conditional green card holder.”

Conditional green cards are issued for 2 years. To remove the “conditions” on your green card your spouse would normally need to file a joint petition with you so that you can get full LPR status. Because of that, victims of domestic violence who have a conditional green card often feel like they have to stay with their abuser for the 2-year period.

To deal with this problem, the 1990 Immigration Reform Act created the battered spouse waiver. This lets the abused spouse apply to remove the conditions on their card without the help of their abuser. The abused spouse submits proof of the abuse and proof that the marriage was originally entered into in good faith.

Normally you have to file a petition with USCIS to remove the conditions within 90-days before your conditional green card expires. In the case of a battered spouse waiver, you can file the petition at any time after you get your conditional resident status and before you are removed from the U.S.

Note: There are other details and issues that come up in VAWA cases that aren’t listed here. Talk to an immigration lawyer with experience in VAWA cases to understand the facts of your situation.

If this is your scenario, we advise you to contact a lawyer. We do not suggest representing yourself.