Unfortunately, many people in the US who are here with or without status may suffer at the hands of criminals. Many of these survivors of crime will fall into the category of domestic violence. To help survivors of domestic abuse come forward with the details of the crime, Congress passed the legislation known as the Violence Against Women’s Act (VAWA) which created a sort of deportation relief and work authorization for abused spouses of US Citizens or Legal Permanent Residents.
Suffering at the hands of a loved one is tricky. If you find yourself in this situation, the first step you should always take is to assure your safety and the safety of any minor child by doing safety planning. If you are in the midst of an emergency, please call 911. If you want to call our office to know more about VAWA and what it entails, please make sure that you are using a safe number that your abuser will not know about.
What is VAWA?
Congress first enacted the Violence Against Women Act (VAWA) around 1994 to address the problem of noncitizen spouses remaining with their abuser because of a lack of immigration status or because their abuser would withhold the actual application for status from the battered spouse. Congress created a pathway for survivors of abuse to self-petition for an immigration status to free themselves from their abuser. This way, a battered spouse will no longer need their US Citizen spouse or Legal Permanent Resident (LPR) Spouse to get access to status. A survivor of abuse can now seek their legal status and protection without depending on their abuser. VAWA also comes with certain confidentiality protections, so a survivor of domestic violence can seek these protections without the knowledge or consent of their abuser. Under VAWA, an abused spouse or child of an (LPR) can petition on their behalf. For United States Citizens (USCs), the same family members who are abused can seek self-petition. Still, it is expanded to cover an abused parent of a USC.
Who can qualify for VAWA?
VAWA can benefit abused men, women, and children by helping them escape their abuser. This includes same-sex couples who are legally married.
The eligibility requirements for a VAWA self-petition are:
- That you were married to a USC or an LPR; you are the unmarried child (younger than 21 years of age, unless there are extenuating circumstances) of a USC or an LPR; or you are an abused parent of a USC;
- As noted in 1, the abuser is an LPR or USC. For those battered spouses whose spouses are noncitizens or non-married couples, there are other avenues to explore immigration relief. However, you may not qualify for VAWA;
- You are a survivor of battery or extreme cruelty;
- You resided with the abuser in the United States;
- Provide a showing of good moral character; and
- Show that you entered into the marriage in good faith. In the event of divorce, you need to apply within two years of the divorce.
For VAWA, an applicant needs to show that they were victims of battery or extreme cruelty. There is no simple exam to determine how to get to extreme cruelty. Many elements could go into this calculation. For instance, threats of violence, pictures of injuries, hospital records, Orders of Protection, police reports, etc., are all records that would help an applicant show that their spouse abused them. This definition is flexible and broad. It allows the applicant to bring information concerning any physical, sexual, economic, and psychological acts that they suffered at the hands of their abuser.
Domestic violence takes many shapes and forms. Meanwhile, battery can be any act of violence that results in injury. Other examples of abusive behavior that can be included in an applicant’s declaration or that an applicant can bring as exhibits are social isolation (i.e., being locked away inside a house or apartment, being forced away from friends and family members, not allowing the victim to meet anybody without the abuser present, not allowing the abused spouse to work, etc.); constantly calling, writing, or contacting the victim; not providing enough livelihood; threats of harm; economic control over the abused spouse; among other things. If you think you are in an abusive situation, please protect yourself.
What are the benefits of VAWA?
An applicant that applies for and receives VAWA will be given deferred action. This means that they will not be subject to deportation. At the same time, their VAWA status is active unless their VAWA status gets revoked for subsequent criminal activity. A VAWA self-petitioner who does not qualify for a green card is unlikely to be able to travel on an advance parole document to avoid any issues at the border. However, a VAWA self-petitioner may be able to receive advanced parole while their adjustment of the status case for a green card is pending. Additionally, VAWA applicants who receive a grant of VAWA will be eligible to receive an employment authorization document (EAD) and public benefits.
Another critical benefit of VAWA is that VAWA allows survivors to petition for some of their relatives as derivates in their immigration petitions. For instance, a VAWA self-petitioner who has unmarried children under 21 may include them in their filing as derivatives. Upon inclusion into the VAWA application, the children will not “age out” even if the application for their green card gets delayed in the immigration filing system. Furthermore, the children do not have to have suffered abuse to be eligible for derivative status. The only person who needs to show extreme cruelty or battery is the abused spouse. VAWA is a way to protect the whole family from a potentially life-threatening situation.
I am already in deportation proceedings; can I still apply for VAWA?
Yes. Applying for VAWA may help you close that removal case against you and grant you relief from deportation. Again, to be eligible for VAWA, you need to show:
- That you were married to a USC or an LPR; you are the unmarried child (younger than 21 years of age, unless there are extenuating circumstances) of a USC or an LPR; or you are an abused parent of a USC;
- As noted in 1, the abuser is an LPR or USC. For those battered spouses whose spouses are noncitizens or non-married couples, there are other avenues to explore immigration relief. However, you may not qualify for VAWA;
- You are a survivor of battery or extreme cruelty;
- You resided with the abuser in the United States;
- Provide a showing of good moral character; and
- Show that you entered into the marriage in good faith. In the event of divorce, you need to apply within two years of the divorce.
VAWA can be used as a defense against deportation. Receiving a grant from VAWA may allow you to remain in the US and protect yourself from your abuser. If you can show this eligibility, you should speak with an immigration attorney to see if VAWA is the proper immigration benefit for your case, especially if you are currently in removal proceedings.
What can I do to know more?
If you believe you qualify for VAWA, have questions about the process, or are ready to apply for VAWA, please do not hesitate to reach out to O’Flaherty Law at 630-324-6666 to speak with one of our experienced immigration attorneys.
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