By: Attorneys Robert L. Reeves and Elsie Hui Arias

Spouses and children of U.S. citizens or lawful permanent residents (LPR) find themselves in a difficult situation where they are relying on that U.S. citizen or LPR to petition them for permanent residency, but they are being abused or subjected to extreme cruelty by the petitioner. The Violence Against Women Act (VAWA) provides a safe haven for these individuals by allowing them to escape these abusive relationships and to file an immigrant petition on their own behalf.

VAWA was enacted by Congress in 1994 in response to the disturbing fact that thousands of spouses and children of U.S. citizens and LPRs were trapped in abusive relationships but would not escape because they are dependent on their spouse or parent to petition them for a green card. Under VAWA, the spouses and children of the abusive U.S. citizens or LPRs may self-petition for lawful permanent residency without the knowledge or assistance of the abuser. Self-petitioning children must be unmarried and under 21 years old at the time of filing. Self-petitioning spouses can include unmarried children less than 21 years of age as derivative beneficiaries.

The general requirements for a battered spouse include: good moral character; marriage to the U.S. citizen or LPR abuser; evidence that abuse took place in the United States; and proof that the marriage was entered into in good faith, not solely for the purpose of obtaining immigration benefits. The battered spouse may file the petition during the marriage, or within two years of the termination of the marriage, either through death or divorce. However, a VAWA petition will be denied if the self-petitioner re-marries before filing, or after filing but before the petition is approved. Remarriage after the self-petition has been approved will not affect the validity of the approved self-petition. If the abusive spouse/parent had filed an immigrant visa petition on behalf of the battered spouse/child, the priority date can be transferred to the self-petition. This can be helpful for spouses or children of lawful permanent residents who face a long wait for the availability of their immigrant visa in their particular visa category.

According to a memorandum from the U.S. Citizenship and Immigration Services (USCIS) released earlier this year, the inquiry into good moral character focuses on the three years immediately preceding the filing of the self-petition, but the USCIS has the discretion to explore the self-petitioner’s character beyond that three-year period with cause. If the battered spouse or child committed an act or has a conviction that renders him or her ineligible for adjustment of status, they can overcome that ground of inadmissibility by demonstrating that they are eligible for a waiver under the Immigration and Nationality Act (INA), and that the act or conviction was “connected” to the abuse.

VAWA self-petitions are adjudicated by the Vermont Service Center of the USCIS. The USCIS will initially make a “prima facie” determination regarding the application, and issue a notice to the self-petitioner so that he or she can seek public benefits. If the petition is approved, and the priority date is current for the immigrant visa category, the self-petitioner may proceed with adjusting his or her status. If the self-petitioner is not yet ready to adjust and they lack legal status in the U.S., the USCIS may place that individual in “deferred action,” which protects that person from being placed in removal proceedings. These individuals are also eligible to receive employment authorization.

VAWA also allows abused spouses or children in removal proceedings to seek “cancellation of removal.” Certain requirements must be met in order to obtain this type of relief before an immigration judge, including three years’ physical presence in the U.S., and demonstration of “extreme hardship” to the applicant and qualifying relatives.

Abused spouses or children who were granted conditional permanent resident status based their relationship to a U.S. citizen can request a waiver along with their application to remove the conditions of their permanent resident status.

Obtaining permanent resident status as a battered spouse or child requires thorough documentation and excellent advocacy before the USCIS or the immigration judge. Individuals seeking assistance in such matters should consult a knowledgeable and experienced immigration attorney.