VAWA Visa Attorney
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The Congress passed the Violence Against Women Act (VAWA) in 1994, creating special routes to immigration status for specific battered noncitizens.
Battered noncitizen spouse or child of an abusive U.S. citizen or permanent resident are eligible for this immigration route. Through a self-petitioning process, the battered spouse/child may apply for immigration status without the knowledge or participation of the abuser. Derivative status is available to certain children and parents of the principal immigrant.
If eligible, the Form I-360 Self-Petition (VAWA petition) should be filed, along with supporting documentation.
Extensive evidence must be gathered including evidence of battery/abuse/extreme cruelty and proof of the qualifying relationship to the abuser. Battered immigrants who can establish the basic requirement will be given a “prima facie” determination and are deemed eligible for certain public benefits.
In most cases if the VAWA petition is approved, the immigrant is granted deferred action status. Deferred action means that removal, or deportation, proceedings will not be initiated. Applicants are also eligible for work authorization upon approval of their VAWA petition.
Once the VAWA petition has been approved, immigrants are classified into categories based on a preference system:
- Self-petitioners who are immediate relatives of U.S. Citizens (spouses, parents, unmarried children under the age of 21) are eligible to adjust status to a lawful permanent resident status when their VAWA petition is approved.
- Spouses and children of lawful permanent residents must wait for an immigrant visa to become available for their category. These petitioners will be able to obtain work authorization until they are eligible to apply for permanent residency.
The process to apply for lawful permanent residence includes completion of a medical exam and a criminal check by fingerprinting.. Applicants may be barred from permanent residency if they have a record of involvement with drugs, prostitution, or other crimes, if they committed visa fraud, were previously deported, or have spotty criminal records.
Battered spouses or children of U.S. citizens or permanent residents who are the subjects of deportation proceedings may also be eligible for this form of relief through VAWA cancellation of removal.
Eligibility Requirements for VAWA Self-petitioners:
- The self-petitioner must prove that she is a spouse; child who is unmarried and under age 21; parent of an abused child who is unmarried and under age 21; or parent who was physically battered and/or subjected to “extreme cruelty” by a U.S. citizen or lawful permanent resident spouse, parent or adult child.
Such abuse may include evidence of:
- physical abuse, violent acts or threats of violence, sexual abuse or exploitation, verbal abuse and degradation, emotional abuse, isolation, intimidation, economic abuse, coercion or threats to take away children or have one deported
A police report is not required as most victims are fearful of calling the police. Absence of a police report does not bar them from availing of this immigration relief.
Abused spouses must also prove that the marriage is valid, and was entered into in good faith. The spouse must additionally prove that the abuse occurred during the marriage, and that the marriage is still valid or was terminated less than two years prior to self-petitioning.
- The abuse must have occurred in the United States, and the victim must have lived with the abuser.
- The self-petitioner must provide evidence of his/her “good moral character.” This usually includes a review of the self-petitioners criminal record or other immigration transgressions. Certain arrests may be waived if the self-petitioner can show such actions were connected to the abuse s/he suffered.
I-751 Waiver Petitions for Conditional Residents
The Immigration Marriage Fraud Amendments (IMFA) was passed by Congress in 1986, adding the same to existing immigration laws.
The purpose of IMFA was to deter people from entering fraudulent marriages solely for the purpose of obtaining lawful permanent resident status, by creating a “conditional residence” period for immigrant spouses who entered into a marriage with U.S. citizen/lawful permanent resident spouses within less than two years of applying for residence.
To apply for removal of these conditions, the immigrant spouses must file joint petitions with their U.S. citizen/lawful permanent resident spouse. There is also the need to prove the ongoing existence of the marriage, and that is was entered into in good faith. The law includes waivers of this joint filing requirement under certain circumstances. For instance, where the marriage was entered into good faith but legitimately terminated before the end of the conditional period, or where the applicant would suffer extreme hardship if she was forced to return her home country.
Congress also created additional Amendments to the law creating a special waiver specifically addressing the dangers experienced by battered immigrants. A battered immigrant may apply for a waiver of the joint petition requirement and file her own I-751 petition. This enables the immigrant to leave the abusive spouse and the relationship without having to rely on the abusive U.S. citizen.
Eligibility Requirements for I-751 Waiver Petitions:
The Immigrant Spouse holding conditional resident status must:
- Provide evidence that the marriage was entered into in good faith, and not for fraudulent immigration purposes.
- Prove that he/she falls into one of the following categories, providing corresponding evidence as appropriate:
- Prove that the removal of the conditional resident from the United States would result in extreme hardship; OR,
- Prove that the good faith marriage was legally terminated by divorce, or death of U.S. citizen spouse; OR,
- Prove that she was subjected to battering or extreme cruelty by the U.S. citizen spouse/lawful permanent resident during the course of the marriage. In the case of a child applicant, the battery or extreme cruelty must have occurred at the hands of her U.S. citizen or lawful permanent resident parent.
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