The Violence Against Women Act (VAWA) was enacted in 1994 and reauthorized as recently as 2013. In addition to allocating money and resources for the investigation and prosecution of violent crimes against women, VAWA created important immigration relief for noncitizens who have suffered abuse. This article will discuss two options under VAWA for obtaining permanent residency: the VAWA self-petition, and VAWA cancellation of removal.
- VAWA Self-Petition
Under VAWA, the spouse, parent, or child of a U.S. citizen or lawful permanent resident who is subjected to abuse perpetrated by that American relative can “self-petition” for visa classification independently of the abuser. Despite the name of the Act, the language of the statute is gender neutral: both men and women can benefit from its provisions—including partners in a same-sex marriage—so long as the self-petitioner was the victim of abuse perpetrated by a qualifying USC or LPR family member.
An immigrant alien may be able to self-petition for classification as an abused spouse under VAWA if: (1) the abused alien is (or was) married to a U.S. citizen or lawful permanent resident; (2) that marriage was bona fide for immigration purposes (meaning, the couple entered into the marriage with the intent to establish a life together and not solely to apply for immigration benefits); (3) the couple actually resided together; (4) during the marriage, the USC/LPR spouse subjected the alien to battery or extreme cruelty; and, (5) the alien is a person of good moral character.
An abused spouse can still self-petition even if the marriage is terminated by divorce or by the death of the abuser, but only if the self-petition is filed within two years of the death or divorce. A bigamous marriage (which is, by law, a void marriage) can still qualify, so long as the abused spouse entered into the “marriage” in the good faith belief that the abuser was actually free to marry, and a marriage ceremony actually took place. The abused spouse can remarry, but only after the self-petition is approved; if re-marriage occurs before approval, the self-petition is invalidated.
An unmarried child (including a step-child) may self-petition up to the age of 25, so long as the abuse occurred before the child turned 21, and there is a connection between the battery or extreme cruelty and the delay in filing. Parents (including stepparents) may self-petition if they are abused by an over-21-year-old U.S. citizen child (or stepchild).
If the self-petition is approved, the self-petitioner can apply for adjustment of status (green card). A VAWA self-petitioner can apply for adjustment of status even if she entered the U.S. without inspection, and even if she overstayed a visa and is currently out of status. Grounds of inadmissibility based on unlawful re-entry or unlawful presence can be waived if the applicant can show a connection between the abuse and the removal, departure, or re-entry that triggers the bar. A permanent resident who obtained status as the abused spouse or child of a U.S. citizen can apply for naturalization three years after obtaining status.
- VAWA Cancellation of Removal
VAWA also created a form of relief for aliens in removal proceedings before an Immigration Judge. An alien in removal proceedings can, if eligible, apply for VAWA cancellation. If granted, removal proceedings are “cancelled” and the alien is adjusted to permanent resident status (green card).
An alien in removal proceedings can apply for VAWA cancellation of removal if the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a U.S. citizen or lawful permanent resident, OR the alien is the parent of a child who has been abused by that child’s U.S. citizen or permanent resident parent. In addition, the alien must be physically present in the U.S. for at least three years prior to filing the application, and must be a person of good moral character during the prior three years. The relief is not available if the alien is inadmissible or deportable because of convictions for certain criminal offenses or ties to terrorism, or if the alien has been convicted of an aggravated felony.