By Steven J. Malm and Robert L. Reeves
The passage of VAWA renewal legislation extends protection available to immigrant victims of abusive relationships. In the most common scenario, an immigrant seeking to legalize status through VAWA must establish that he or she married a U.S. citizen (“USC”) or lawful permanent resident (“LPR”) in good faith and was the victim of battery or extreme cruelty. VAWA leads to a green card either through the self petitioning process or through cancellation of removal in immigration court. Though VAWA stands for the “Violence Against Women Act”, the law benefits men and women. The abuse can be physical or emotional. Through VAWA, thousands of abused men and women have escaped destructive marital relationships and legalized their status.
One pathway to a green card through VAWA is the self petitioning process. The parent of an adult U.S. citizen or the spouse or child of a U.S. citizen or LPR who is battered or subjected to extreme cruelty may file a petition independent of the USC or LPR family member. The self petitioner has the burden of proving the battery or extreme cruelty. This can be accomplished through a variety of evidence, including but not limited to, police reports and photographs. Statements under oath from those with direct knowledge of the abuse may be helpful. The self petitioner needs to submit a detailed declaration addressing all eligibility factors. Statements prepared specifically for the petition carry less weight than objective evidence. Yet, their information may be essential to the case. Since a petition will rise or fall on the strength of the evidence presented, it is important that the evidence be prepared by an expert in order to be trustworthy and persuasive.
The self petitioner must also establish that she is a person of good moral character. Special provisions exist for waiver of some criminal convictions and other inadmissibility grounds for VAWA self petitioners. Qualifying relatives are not needed for these waivers. Extreme hardship to the applicant will suffice. VAWA self petitioners also qualify for a waiver of the “permanent bar.” The bar, which is triggered when an alien illegally reenters the United States after prior unlawful presence exceeding 364 days, or after being removed previously, is waived if connected to the battery or extreme cruelty.
VAWA provides an alternate path to a green card through application to an immigration judge for cancellation of removal. Like VAWA self petitions, VAWA cancellation of removal is available to victims of battery or extreme cruelty inflicted upon them by their USC spouses, parents or adult children or by their LPR spouses or parents. An applicant must prove continuous physical presence in the United States for 3 years prior to filing the application, with time accruing even after the initiation of removal proceedings. The applicant must show good moral character for the three years preceding the application and not have a disqualifying criminal record. Unlike for VAWA self petitioners, criminal grounds of inadmissibility cannot be waived. To prevail, the applicant must show that he or his child or parent would suffer extreme hardship if he had to leave the United States.
Procedural deadlines and other legal requirements dictate what form of VAWA relief is appropriate in a given case. A VAWA self-petition can only be filed within 2 years of dissolution of a marriage. Remarriage before filing or approval will invalidate the petition. In contrast, cancellation of removal remains available after an abusive marriage ends or the applicant remarries. VAWA also created the “U” and “T” visas for immigrant victims of crime and trafficking, respectively. For persons who do not qualify for VAWA relief, such as where the abusive spouse was not a US citizen or LPR, the U visa may still be an option. For a U visa, it is necessary that law enforcement was involved, though failure to prosecute or convict the abuser does not defeat a claim.
Beyond adding “stalking” to the list of qualifying crimes for a U visa, the renewal legislation did not expand the law. The Service still does not recognize same-sex marriage as forming the basis for VAWA relief, though the gap may be corrected by pending Defense Against Marriage Act (DOMA) litigation.
Suffering abuse at the hands of a loved-one is horrible. Feeling trapped in that relationship in order to remain in the United States is torture. Thanks to VAWA, it is also unnecessary. Victims of abuse have the power to solve their immigration problems independent of their USC or LPR abusers. Victims of abuse should contact a knowledgeable and experienced immigration attorney to help them navigate the laws leading to lawful immigration status.