Do abused spouses and children have protection under the law?
Immigrant spouses and children of U.S. citizens and permanent residents have, in the past, been vulnerable to abuse by the very people who should have been helping them adjust to life in the United States and successfully complete the process of receiving U.S. lawful permanent residence (a green card.) Until the passage of the Violence Against Women Act (VAWA) in 1994, all the abuser had to do was threaten to stop helping the immigrant get a green card, and the abuser had a powerful method which which to assure that the immigrant would remain quiet and compliant. Fortunately, VAWA undid this power dynamic, by creating a means for the immigrant spouse or child to "self petition" for the green card or otherwise take control of the process at a later phase -- provided that the immigrant is able to prove the history of abuse.
One of the immigration benefits to the law known as the Violence Against Women Act (VAWA) is that spouses and children who experience abuse by their U.S. citizen or Lawful Permanent Resident spouse or parent no longer have to rely on the abuser to help them obtain lawful status in the United States. Before this law was passed (in 1994), many people felt trapped in relationships with abusive family members who threatened to withhold filing the immigration petitions required to get the green card application process started and completed.
This article will help you determine whether you can benefit from the VAWA law.
The Seven Requirements of VAWA
In order to qualify for a green card under VAWA, you must prove that you meet all of the following requirements.
- The abuser is (or was) a U.S. citizen (USC) or Lawful Permanent Resident (LPR). You may still file a petition under VAWA if the abuse occurred before the abuser became a citizen or green card holder. In addition, you can file a petition under VAWA even if the abuser loses his or her green card or citizenship. One thing to consider is that if the abuser loses his or her permanent resident status because of an incident of domestic violence (which is a ground of deportability), you must file the petition within two years of the abuser losing status.
- You are (or were) the spouse of an LPR or USC abuser, or the parent of a child who was abused by your LPR or USC spouse. There are several important points to keep in mind with this requirement. First, if the marriage ends because of abuse, you can still file a VAWA petition within two years of the end of the marriage. Similarly, if the abuser dies, you can file a VAWA petition within two years of the death. If the marriage ends after a petition is filed, then it has no effect on the VAWA petition. Finally, if you remarry prior to the approval of your VAWA petition, the petition will be denied. Therefore, it is important that you not marry again if you are considering filing a VAWA petition.
- The LPR or USC abused you during the marriage. The law requires the self-petitioner to show that he or she “has been battered or has been the subject of extreme cruelty” by the LPR or USC. You do not have to show both. USCIS has found that many things qualify under this standard including being physically hit, punched, slapped, kicked, or otherwise hurt. Sexual abuse may also qualify as "battery." In addition, USCIS will consider emotional abuse, controlling behaviors, threats to harm or deport you, forcibly detaining you against your will, and other behaviors used to scare you. This is not an exhaustive list, and USCIS will consider the totality of the circumstances when deciding whether you have been subjected to battery or extreme cruelty.
- You entered the marriage in “good faith.” This basically means that you did not enter the marriage with your LPR or USC spouse solely in order to obtain a green card. If the marriage is fraudulent, you will not qualify for a green card through VAWA, just as you would not qualify for a green card using the normal petitioning procedures.
- You must reside in the United States or fall within one of the few exceptions to this rule. Generally you must reside in the United States in order to file a petition under VAWA. However, you can file even if you are living abroad if the abuser is an employee of the U.S. government or armed services, or the abuse occurred in the United States.
- You must have lived with the LPR or USC abuser at some point. There is no length of time that you must have lived with the abuser and you do not have to currently be living with the abuser when you file for VAWA benefits. You can qualify under VAWA even if you lived with the abuser for only a short time. The VAWA law does not specify what it means to ‘live with’ the abuser, so even if you only spent a short amount of time in the same house or apartment with the abuser, this may be enough to meet this requirement.
- You must be a person of good moral character. In order to qualify for relief under VAWA , you have been a person of good moral character for at least the past three years. Some things that may prevent you from showing good moral character are: crimes, being a habitual drunkard, using drugs, illegal gambling, lying under oath, or persecuting or harming others.
As part of the application process for a green card under VAWA, you will need to demonstrate that you meet all of the above eligibility criteria, using written documents or statements.