The federal Violence Against Women Act (VAWA) provides victims of battery or extreme cruelty a way to get a green card. One purpose of VAWA is to remedy immigrant abuse and improve criminal justice in the areas it covers. A major difference between green cards obtained through family and green cards obtained through VAWA, is that VAWA green card applicants self-petition without the knowledge of their abusers. This provides protection from spousal abuse. For example, person A is a U.S. citizen, and person B is an immigrant. Person A and person B marry. A abuses B from the beginning of their marriage. B would like to apply for a green card but does not want A to know. VAWA provides a way for B to do so. In many of my VAWA cases, the abuser has used the person’s lack of immigration status as another form of control.
Eligibility Requirements
VAWA green cards are available when your abuser falls in one of the following categories:
- U.S. citizen spouse or former spouse. In the example above, B luckily does not have to stay married to their abuser to benefit from VAWA. You may file as an abused spouse if your child has been abused as well. You can include your children in your petition if they do not file for themselves. However, if B divorces A, B must file the application within 2 years after the divorce.
- U.S. citizen parent. The name Violence Against Women Act suggests this legislation only benefits women, yet VAWA protects spouses, children, and siblings of U.S. citizens.
- U.S. citizen son or daughter. As noted before, the abuser may be a sibling, adopted or otherwise.
- Lawful permanent resident (LPR) spouse or former spouse. An abusive spouse need not be a U.S. citizen.
- Lawful perment resident parent. As with spouses, a parent may only be a lawful permanent resident. The same is not true of sons or daughters. Abuse by an LPR son or daughter does not result in VAWA green card eligibility.
Those eligible to file based on abuse by persons above include (1) spouses, (2) parents (if the parent of a U.S. citizen and is abused by a U.S. citizen son or daughter), and (3) children (in most cases, need to be under 21, unmarried, and abused by parent).
Another eligibility requirement is that you properly file Form I-485, Application to Register Permanent Residence or Adjust Status and are physically present in the U.S. when you file. You will need to ensure none of the bars to adjustment of status apply to you before applying. Not all of these bars apply to VAWA applicants. For example, though these would bar adjustment of status in other cases, VAWA applicants are not barred based on the following: (1) entering the U.S. without inspection, (2) working without authorization, and (3) unlawful presence in the U.S.
Eligibility Requirements for Spouse
To apply for a green card as a spouse under VAWA, you will need to establish a spousal relationship to your abuser. This means showing you are currently married, your marriage was terminated by divorce within two years of filing your self-petition, your spouse lost citizenship because of abuse, or otherwise. The important thing is to have the evidence you need to explain your current situation with the abusive spouse. You must also have lived with your abuser and entered a marriage in good faith, not to obtain immigration benefits alone.
Eligibility requirements for parents and children most relevantly include establishing a parent-child relationship. In all cases, you must show that you actually lived with your abuser for a time.
You can also find out more by clicking here, which takes you to the USCIS page about the eligibility requirements.
Application Process
Unlike for other green card petitions, a VAWA green card petition uses Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. If you are an immediate relative (described above), you may file your I-360 at the same time as Form I-485, Application to Register Permanent Residence or Adjust Status. Otherwise, you will need to wait for your I-360 to be approved before filing your I-485. You need to wait because visas are not always available unless you are an immediate relative.
More documents may be required based on your circumstances. For example, if any criminal charges are relevant to your application, you should include court records and other relevant documents.
Differences Between VAWA and the U Visa
In some ways applying under VAWA and the U Visa are similar in that both require showing proof to immigration officials that you have been affected by the crime emotionally and physically. However, there are more differences than similarities. With VAWA, the abuser must be related to you, whether it be a spouse, parent, or child, and those relatives must be either a U.S. citizen or LPR. Also, VAWA is specifically for those who are victims of domestic violence.
With a U Visa, the perpetrator does not have to be related to you, nor does the perpetrator have to have any sort of legal status. Most often, the crimes I see are domestic violence related. However, I have also dealt with many cases where the person was a victim of a robbery or sexual assault by a person that they did not know, or it was committed by an acquaintance. While the U Visa requires the I-918B to be signed by a law enforcement official, VAWA does not require any such document.
There may be instances where a person could qualify to file under VAWA or a U Visa. If a person does qualify for VAWA, then the VAWA route is likely the best option because there is a much shorter waiting period to get LPR status under VAWA than it is under the U Visa. In scenarios where a person would qualify under VAWA because he/she is married to a U.S. citizen or LPR, that person’s immigration history may bar him/her from applying for VAWA. In that situation, if the person called law enforcement, was helpful, and the person is able to get the I-918B signed by law enforcement, that person could apply for the U Visa. Click here to read my post about U Visas.
As with all immigration cases, make sure you talk to a qualified immigration attorney to see if this is the type of benefit that you could apply for. I have worked on many of these types of cases, so if you think you may qualify, you can call my office to set up a consultation to see if you could be eligible for this benefit.
