Protection Under the “Violence Against Women Act”

By Attorneys Robert L. Reeves and Devin M. Connolly

The most common way to be granted permanent resident status (“green card”) in the U.S. is through a petition filed by a spouse or parent. However, the process of obtaining a green card may take several years after the petition has been filed.

So what happens when the immigrant is being abused or subjected to “extreme cruelty” by the family member that has filed a petition on their behalf? Are they supposed to continue to suffer for the sake of a green card, or should they end the relationship, knowing that they may also be ending their opportunity to obtain lawful immigration status in the U.S.

Fortunately for many immigrants, Congress enacted the Violence Against Women Act (“VAWA”) in 1994. VAWA is a special section of the Immigration and Nationality Act that protects immigrants from continuing to be a victim of abuse at the hands of their petitioning family member. It applies to both men and women and was enacted to protect the thousands of spouses, children, and parents of U.S. citizens and permanent residents who felt trapped in an abusive relationship since they were dependent on their family member to help them be granted permanent resident status.

VAWA provides a safe haven for these individuals by allowing them to escape their abusive relationship without fearing that they will be automatically deported. Under VAWA, an immigrant may be able to file a self-petition without the knowledge or assistance of the abuser. This allows them to assert control over their immigration matters without the fear of retribution from their abusive family member. Therefore, they can end their abusive relationship and seek shelter without being forced to endure additional abuse. This ability to file a self-petition is unique in immigration law, as it is generally required that a person have lawful status in the U.S. to file a petition.

To be eligible under VAWA, a self-petitioner must establish that they have suffered “extreme cruelty.” It is important to note that Congress has defined “extreme cruelty”. It broadly encompasses more than simply physical abuse. “Extreme cruelty” also includes psychological and emotional abuse. Also, the federal regulations state that “battery or extreme cruelty” includes “acts that, in and of themselves, may not initially appear violent but are part of an overall pattern of violence.” This includes psychological or sexual abuse or exploitation . . .” Immigrant-related abuse can also constitute “extreme cruelty.” Immigration-related abuse includes, but is not limited to, threats of deportation, not filing papers, or calling the Immigration Service.

In addition to establishing “extreme cruelty,” the self-petitioner must also submit evidence of their good moral character, that they do indeed have the required relationship to the U.S. citizen or permanent resident abuser, and proof that the marriage was entered into in good faith and not solely for the purpose of obtaining immigration benefits. A self-petitioner under VAWA can also be secure in the confidentiality of their self-petition.

It is especially important to note that the immigrant does not have to stay married to their abusive spouse. They are certainly permitted to file a self-petition during the course of the marriage, but they may also file the self-petition after the marriage has been terminated through death or divorce. If the marriage has already been terminated, they must file the self-petition within two years of the termination of the marriage. However, a VAWA petition will be denied if the self-petitioner re-marries before filing the petition.

In addition, if the abusive spouse/parent had previously-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 priority date. Following an approval of a self-petition by the U.S. Citizenship and Immigration Service (“USCIS”), the immigrant will be permitted to seek adjustment of status as soon as their priority date is current. However, even if the self-petitioner is not ready to adjust their status, they may receive “Deferred Action.”

This grant of “Deferred Action” would protect them from being placed in removal proceedings even though they lack lawful immigration status in the U.S. These individuals who receive “Deferred Action” are also eligible to receive employment authorization.

Obtaining permanent resident status as an abused spouse or child is a complex process and requires excellent advocacy before the USCIS. Individuals seeking assistance in such matters should therefore always consult a knowledgeable and experienced immigration attorney.