Marriage-based immigration laws can be problematic if you are a noncitizen who is married to a U.S. citizen or lawful permanent resident (LPR) who physically abuses you or your children. In those circumstances, your spouse or parent may not want to petition for permanent residence on your behalf. First passed in 1994, the Violence Against Women Act (VAWA) authorizes immigration relief for people in your situation.
VAWA Self-Petitioning for Permanent Residence
Under the Violence Against Women Act (VAWA), if you are a noncitizen who is married to a U.S. citizen or lawful permanent resident (LPR), and you are the victim of abuse by your spouse, you may be able to “self-petition” for permanent residency (a “green card”) without relying on your spouse to do so. (As discussed in the Family Immigration and Marriage. As of 2008, you may apply even if you entered the U.S. without inspection—in other words “Illegally.”
Who qualifies for VAWA self-petitioning?
- Battered spouses of a U.S. citizen or LPR;
- Spouses of a U.S. citizen or LPR who has battered or subjected the spouse’s child to extreme cruelty;
- Battered children of a U.S. citizen or LPR; and
- Abused parents of a U.S. citizen (but not of an LPR) son or daughter, where the son or daughter is over 21 years old.
Where spouses or children are petitioning, they may include their children in their applications as long as the children are unmarried and under 21 years old. Petitioning children must also be under 21 years old and unmarried. Under certain circumstances an abused child between the ages of 21 and 25 years old may qualify to self-petition if s/he can show s/he qualified when s/he was under 21.
How do I qualify to self-petition for permanent residence under VAWA?
Eligibility for self-petitioning requires all of the following:
- Marriage to a U.S. citizen or lawful permanent resident;
- The marriage is bona fide;
- This means that you married in good faith, not not just to obtain immigration benefits.
- This is the same inquiry as in the process when your spouse is petitioning for you. See the Marriage page for more information.
- You were battered (physically abused) or subjected to extreme cruelty by your spouse while in the U.S.;
- You must have lived with the abuser at some point; and
- You are a person of “good moral character.”
The above requirements rely on lengthy and sometimes complicated definitions and on your presentation of as many facts and circumstances as possible. In order to prepare a successful application, it is important that you contact an immigration attorney who has ample experience in working together with clients to file for VAWA relief using whatever exceptions and nuanced definitions that are available under the law.
If I am in a same-sex marriage with a U.S. citizen or LPR, will this count as being “married” for the purposes of VAWA relief?
Yes. Because the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA), as long as your marriage is valid in the state where it took place, it qualifies for the purposes of VAWA relief.
What if I am divorced from my spouse who abused me?
Certain circumstances allow you to file for VAWA relief if you are no longer married to your abusive spouse. The exceptions are as follows:
- Your divorce from your abusive spouse occurred within two years prior to filing your petition, and there is a connection between your divorce and the abuse;
- Your abusive spouse lost or renounced his citizenship or lawful resident status because of an incident of domestic violence;
- Your abusive spouse died within two years of filing the petition; or
- You believed you were legally married to your abusive spouse, but the marriage is not legitimate only because of the bigamy of your abusive spouse.
The above exceptions require a detailed showing of the facts, and it is best to work with an attorney who can determine which exception(s), if any, may apply to your individual case, and can also help you prepare as complete an application package as possible.
What if I remarry?
If you remarry before the approval of a VAWA petition, it will be denied. Remarriage after approval will not invalidate the petition or grant.
Can I still file for VAWA relief if my abusive spouse (or parent) filed a family-based I-130 petition on my behalf that is pending or withdrawn?
Yes. You can transfer the priority date of the originally filed I-130 to your VAWA petition (I-360).
What if my abusive spouse (or parent) is not a U.S. citizen or lawful permanent resident?
If your spouse is not a U.S. citizen or lawful permanent resident, or if you are not legally married,* you are not eligible for VAWA relief. However, you may still be eligible for a U visa.
What if I am already in removal / deportation proceedings?
If you are in removal proceedings (sometimes still known as “deportation proceedings”) in an Immigration Court, and you are abused by your U.S. citizen or LPR spouse or parent, you may be able to apply for VAWA cancellation of removal. Like non-VAWA cancellation of removal, if an application for VAWA cancellation is granted, the removal process can be ended, and you can receive lawful permanent residence. If you are in removal proceedings, you should contact a qualified immigration lawyer as soon as possible. Camille K. Cook has experience in VAWA cancellation as well as other types of removal defenses.
How do I qualify for cancellation of removal under VAWA?
Eligibility for VAWA cancellation requires all of the following:
- You have been physically present in the U.S. for at least three years;
- You have been a person of good moral character throughout those years;
- You have been subject to battery or extreme cruelty by a spouse or parent who is either a U.S. citizen or lawful permanent resident (green card holder); and
- Your deportation would cause “extreme hardship” to you, your child, or your parent.