Violence Against Women Act: Visas for Battered Spouses

Imagine feeling trapped in your marriage, not just emotionally but legally. For many immigrants, the fear of deportation by an abusive U.S. citizen or permanent resident spouse adds a fearful layer to the helpless situation.  If you find yourself in this situation, know there are various ways out. You can take legal steps to gain control of your immigration status.

This article talks about VAWA, the protections provided to victims of violence, and the legal steps to take to protect your rights.

What Is the Violence Against Women Act (VAWA)?

The Violence Against Women Act is a U.S. federal law designed to give protection to victims of dating violence, domestic violence, stalking, or sexual assault. The law offers safety and security for victims. VAWA is also a form of relief for noncitizen victims of abuse who are facing the threat of undergoing removal proceedings.

Before the establishment of this law, family-based immigration generally asked the U.S. citizen or lawful permanent resident (LPR) to file an immigration petition on behalf of their family members. Some petitioners take advantage of this immigration process to take control or intimidate their family members, threatening to withdraw the petition. VAWA is a form of relief for noncitizen victims of abuse.

The Violence Against Women Act of 1994 changed the narrative. It provided noncitizens who experienced abuse by their relatives the chance to file a petition independently. With this law, the noncitizen may file an immigration petition without the abuser's knowledge, consent, or participation. This process gives the victim the chance to seek independence and safety from their abusers.

Green Card Eligibility for Abused Spouse, Child, or Parent

Under VAWA, you are eligible to get LPR status if you are a victim of extreme cruelty or battery committed by either of the following:

• A U.S. citizen spouse or former spouse
• A U.S. citizen son or daughter
• A U.S. citizen parent
• An LPR spouse, former spouse
• An LPR parent

Under VAWA, you may also file a petition without the knowledge or consent of the abusive family member. The process is filing Form I-360, called Petition for Amerasian, Widow(er), or Special Immigrant. Once filed, you will become a VAWA self-petitioner. If you meet all eligibility requirements and the U.S. government approves your petition, you may apply for lawful permanent residency or become a green card holder.

Who Is Eligible for a VAWA Visa?

To be eligible to file a self-petition, you must qualify under one of the following categories:

• As a spouse: You can file for a self-petition if you are or were a victim of abuse, domestic violence, or battery by a U.S. citizen or permanent resident. You may also file the petition if a U.S. citizen or permanent resident spouse abused your child. You can include your unmarried children under 21 years of age in your petition if they haven't filed the immigration petition themselves.
• As a parent: You may file a self-petition if you are a parent of a U.S. citizen and have suffered abuse at the hands of your son or daughter.
• As a child: You may file for self-petition if you suffered abuse from your U.S. citizen or permanent resident parent. Your eligibility for this classification as an "abused child" depends on your age and marital status. You should be under 21 years of age and unmarried. You may also file for a petition after you reach 21 but before you reach 25 if you can prove that the abuse was the primary reason for your delay in filing the petition.

Eligibility Requirements for VAWA Petition

To be eligible for the VAWA self-petition, you have to show the following requirements:

1. You have a qualifying relationship either as the spouse, child, or parent of an abusive U.S. citizen or permanent resident.

Spouse

You are the intended spouse or former spouse of a U.S. citizen or LPR if:

• You are married to the U.S. citizen or LPR abuser.
• Your marriage with the abuser was legally terminated by death or by divorce. If the termination was by divorce, you must file the petition within two years from the date of the divorce to be eligible for self-petitioning.
• Your spouse renounced their U.S. citizenship or permanent residency within two years before you filed your petition because of domestic violence.
• You thought you were legally married to the abuser. But, the marriage was not legitimate due to the bigamy of the abusive spouse.

Children

• You are a child of an abusive parent who is a U.S. citizen or lawful permanent resident.

Parents

• You are a parent of a U.S. citizen or permanent resident abuser. When filing, U.S. citizens or lawful permanent residents should be at least 21 or older.

2. You suffered battery or extreme cruelty from a U.S. citizen or permanent resident relative.

3. You were living or lived with your abusive U.S. Citizen or permanent resident family member.

4. You are a person of good moral character.

Applying for Benefits

If you are a spouse or child of an abusive U.S. citizen or an LPR, you may also include a derivative beneficiary in your petition. A derivative beneficiary is your child under 21 and unmarried. But, this is only for spouses or children of abusive U.S. citizens or permanent residents. Parents of the abuser are not eligible to file for the derivative beneficiary in their petitions.

To apply for the VAWA benefits, you have to submit the following documents:

• Form I-360 or the Petition for Amerasian, Widow(er), or Special Immigrant. Note that there is no fee to file for this petition.
• Evidence to show that you meet all the eligibility requirements.

If you listed a derivative beneficiary in your self-petition, you must also submit proof of your relationship with the child. You should also present evidence that the child is under 21 and unmarried by the time you filed for the petition.

Frequently Asked Questions

The following are some frequently asked questions about VAWA petitions.

What happens after your petition gets approved?

You will have an immigrant classification if the U.S. government approves your petition. This does not give you and your derivative beneficiary an immigration status. But, you and your derivative beneficiary may apply for permanent residency when a visa is available.

What happens if your VAWA petition gets denied?

If your Form I-360 petition gets denied, the denial letter will tell you how to file an appeal. You may file a notice of appeal and pay the required fee at the Nebraska Service Center. After the service center receives the documents and your filing fee, the appeal will go to the Office of Administrative Appeals in Washington, D.C.

Note that the place to file an appeal undergoes frequent changes. It is best to check the U.S. Citizenship and Immigration Services (USCIS) website for information on the direct filing address for Form I-360.

Do I have to stay married to my abusive spouse until my immigration petition gets approved?

Since Oct. 28, 2000, you can apply for Form I-360 whether you are still married to your abusive U.S. citizen or LPR spouse. But, if you are no longer married to your abusive spouse, you have to meet one of the following:

• You believed you were lawfully married to your abuser, but the marital relationship was not legitimate because of bigamy committed by the abusive spouse.
• Your abusive spouse died within two years of filing the petition.
• Your abusive spouse renounced or lost their U.S. citizenship or permanent resident status because of an incident of abuse or domestic violence.
• Your marriage to your abuser ended within two years before the filing of the petition. And there is a connection between the end of the marriage and the violence committed against you.

The actual reasons your marriage ended do not need to say that there was extreme cruelty or battery involved explicitly. After you file your petition, the termination of your marriage will often not affect the status of your petition.

Can a divorced spouse seek relief through self-petitioning?

Yes. Starting Oct. 28, 2000, you can file Form I-360 if the marriage ended within two years before the date of filing the petition. But, you should provide supporting documentation to show the connection between the end of the union and the abusive behavior against you.

Suppose you can't show proof of the connection between the abusive behavior and the end of your marriage with the U.S. Citizen or permanent resident spouse. In that case, you may still be eligible to apply for cancellation of removal.

The immigration officials may deny your Form I-360 if you remarry before the approval of your petition. If you get married after its approval, the marriage will not affect your petition.

What if the abusive spouse filed a Form I-130 petition on behalf of the battered spouse, which is either still pending or withdrawn?

A self-petitioner who is the beneficiary of a Form I-130 petition filed by the abusive spouse will be able to transfer the priority date of the Form I-130 petition to the I-360 self-petition. This is extremely important for self-petitioners who must wait for a visa number because an earlier priority date will result in a shorter waiting time.

More Information

If you or a family member are the victims of domestic violence, call the National Domestic Violence Hotline (1-800-799-7233) for legal advice and information about shelters, immigration status, and related matters.

See "Abused Spouse, Children, and Parents" on the USCIS website for more detailed information about VAWA protections for abused family members.

Seek Legal Help from an Immigration Attorney

Experiencing an abusive relationship is a traumatic experience. Coupled with immigration concerns, the situation can be overwhelming and challenging. That's why the VAWA offers ways to address some of the issues that victims of abuse may be experiencing. But, understanding U.S. immigration laws can be tricky, particularly when looking at immigration benefits for nonimmigrants or adjustment of status that applies to your case.

To seek guidance and ensure that your case gets handled sensitively, contact an immigration attorney. They can give you the support you need through these challenging times. They can also guide you in navigating your immigrant visa petition.

Contact an immigration attorney to discuss your situation and learn more about your legal options.