Legal Protection Available For Victims Of Domestic Abuse Under VAWA

In normal circumstances, to obtain permanent residency through a family member, it is often necessary to have the support of a US citizen, a permanent resident (also known as an LPR), a spouse, a parent, or a child. But what should one do if the person providing support is abusive, severe, and threatening?

What choices exist when a spouse or sponsor threatens to use immigration intimidation tactics? What are the alternatives for someone in a family situation who feels trapped in a dangerous relationship because of their immigration status?

People who have experienced domestic violence and are not US citizens or have been living in the US for a long time face unique challenges when they try to make a home and get jobs in the United States.

However, the US immigration regulations provide certain safeguards and chances for legal permanent residency for these individuals, primarily through the Violence Against Women Act (VAWA). The VAWA is a US immigration law designed to protect people who have been victims of violence and are not US citizens residing in the US.

This law is aware that domestic abuse may bring about immigration issues. It offers specific solutions for people dealing with actual and near-future domestic abuse. With the VAWA, people who have suffered from domestic violence have different options to consider. Individuals of every gender can receive help from VAWA.

Those dealing with domestic abuse in intimate relationships are protected by these regulations. This protection is afforded to persons of different sexual preferences. A marriage, whether it is in a legally acknowledged same-sex partnership or a brief relationship, is recognized as a legal marriage under VAWA.

To benefit from VAWA, you should understand your legal options and the strict rules you must follow. You will find these and more in this post.

Legal protections under VAWA

1. Removal cancellation

Relief from deportation, known as cancellation of removal, is a legal option in Immigration Court. If an immigrant faces deportation due to an immigration offense and is present in the Immigration Court, they have the right to request relief from being removed from the US. Typically, to be eligible for cancellation of removal, the immigrant must:

• have resided in the US for at least ten years,
• demonstrate good moral character and
• show that they would face severe and rare hardship for a qualifying family member other than themselves.

For individuals who have suffered from domestic violence and their children, the criteria for cancellation of removal are more lenient. Specifically, to receive cancellation of removal from an Immigration Judge, a victim of domestic violence or their child must prove they:

•  have been in the US for at least three years,
• are of good moral character and
• that being deported would cause severe hardship (not just extreme and rare) to the individual or their child or parent (who does not need to be a US citizen or lawful permanent resident).

2. Joint filing waiver.

Typically, a person can become a permanent resident of the United States through marriage. The person must file along with their spouse and any children. This includes submitting a Petition to Remove Condition within 90 days before the 90th day after receiving their green card.

This process is called “removal of condition,” it is necessary whenever someone becomes a permanent resident through a marriage that is less than two years in duration. In most instances, the immigrant and their spouse or partner must submit the Petition to Remove Condition together. This means it should be done by both parties.

However, the law acknowledges that sometimes marriages don’t last two years. In such cases, it might still be possible to prove the marriage’s validity and keep the green card if the immigrant meets one of three specific waiver criteria.

For individuals living in abusive situations and unable to submit a “joint” petition with their abusive spouse or parent, there is a legal option called the “battered spouse or child waiver.” To be eligible for this waiver as a “battered spouse or child,” the immigrant must demonstrate:

• the person gained the right to live in the US indefinitely under certain conditions as a spouse (and sometimes as a dependent child) of a US citizen or lawful permanent resident (USC or LPR);
• the marriage that established your temporary right to live in the US was conducted honestly;
• During the marriage, the immigrant partner or your child experienced or was subjected to severe harm or “cruelty” by the USC/LPR partner.

“Cruelty” means any form of dominance and control and includes, but is not limited to, being a victim of or threatened with violence, involuntary detainment leading to physical or mental trauma, psychological or sexual assault, rape, sexual assault, incest, and forced participation in prostitution.

This waiver helps a person dealing with domestic abuse. This way, you can make decisions regarding their marriage and connection without fearing their immigration background being jeopardized. If the USCIS grants approval for the application, the immigrant’s “conditional” status will be removed.

3. The right to self-petition.

Normally, the spouse of a US citizen (USC) or a lawful permanent resident (LPR) must be sponsored for a green card. The majority of cases involving family-based immigration fall under this category. However, for individuals who have suffered from domestic violence and their children, there is a legal option that allows them to self-petition for a green card.

A person who has been abused by a USC or LPR spouse (or their child), a USC or LPR parent (including a step-parent), or an adult USC son or daughter might be able to apply for a green card through “self-petition” without the abuser’s involvement.

The meaning of self-petition

An individual who files an immigration application on their own is referred to as a self-petitioner. According to the Immigration and Nationality Act (INA) and the Violence Against Women Act (VAWA), the US federal government aims to safeguard immigrants who have suffered abuse.

If you find yourself in a situation where you are being abused by a US citizen spouse, child, or parent, you might qualify to apply for a green card through VAWA. Additionally, individuals who have been abused by their US permanent resident spouse or parents could also qualify for self-petition.

The majority of people applying for a green card need the backing of a family member or employer. This implies that a relative living in the US or an employer usually backs an immigrant application.

To provide a safety net against possible harm, the US government permits victims of domestic violence to apply for immigration status independently, without their abuser being aware of the process. Once you have become a permanent resident, you can live in the United States without worrying about being sent back.

You can apply for a work permit, also called a work authorization or an employment authorization document (EAD), to start your career in the country. Additionally, you can get derivative legal permanent resident (LPR) status for some of your family members who depend on you. This status allows your family to stay with you in the United States.

Over time, you might also qualify for naturalization. If you pass the process, you can become a US citizen and enjoy even more rights. You can vote in US elections, travel without restrictions, and help your siblings get green cards.

Conditions to self-petition 

To file a petition under VAWA, you must fulfill specific criteria. To determine if you qualify, you can consult with an immigration lawyer. Typically, individuals who have been victims of domestic violence by a US citizen spouse, parent, or child are eligible for VAWA status.

Additionally, victims of abusive spouses or parents who are US lawful permanent residents are also eligible. You can also request VAWA status for your child who has been abused. You must also satisfy other conditions, such as demonstrating:

• That you were not coerced into entering any abusive marriages.
• That you possess good moral character. This means you do not have any criminal or immigration records that would prevent you from applying for a green card. Depending on the severity of your record, USCIS might consider waiving the review of certain criminal offenses. If you have been deported or removed from the US, you can also submit Form I-212 to request permission to return.

The self-petitioning application process

If you wish to file a self-petition, please consult an immigration lawyer. Typically, you must fill out form I-360, the Petition for Amerasian, Widow(er), or Special Immigrant.

If you are applying for VAWA status from within the United States through the adjustment of status process, you must also submit form I-485, which is the Application to Register Permanent Residence or Adjust Status.

For those applying outside the United States, the procedure involves submitting form I-360 and coordinating with your local US embassy or consulate. This process is referred to as consular processing. If you apply abroad, USCIS will send your I-360 VAWA self-petition form to the National Visa Center (NVC).

The NVC is a division of the US Department of State. The NVC will pass your petition to the nearest US consulate or embassy. Additionally, the NVC will inform you regarding the subsequent steps needed to apply for your green card from abroad.

The next steps after the application

After you file your self-petition, the USCIS will inform you with a receipt notice to the address on your application. This notice indicates the date the USCIS received your petition. It is important to be careful when filling out the address for sending the I-360 form.

If you are concerned about your abuser discovering that you self-petitioned, there are steps you can take to protect yourself. Restrict their access to your personal accounts and ask a reliable friend to collect any USCIS updates on your behalf.

After the USCIS has reviewed your application, they will determine if you qualify for an “establishment of prima facie case” notification. Getting this designation suggests that USCIS believes you qualify for protections under VAWA. However, this designation is contingent on the accuracy of your application.

You won’t be officially granted VAWA status, but you might be shortly. You might also be eligible for certain public benefits depending on your state’s regulations. USCIS will inform you once they have officially approved your self-petition. Be aware that your self-petition approval does not immediately secure a green card.

Approval of a self-petition merely permits you to apply for a green card via form I-485. The time it takes to process form I-485 can differ based on the USCIS office handling your case, the abuser’s status in the US, and the availability of immigrant visas.

The Visa Bulletin contains the State Department’s predictions for visa availability and the dates they become available.

The benefits of holding a VAWA green card

As someone holding a VAWA green card, you are entitled to various advantages and protections that can greatly enhance your well-being and safety in the United States. A key benefit is the opportunity to achieve permanent resident status.

After three years of receiving VAWA protection, you can submit a green card application, which is a step towards becoming a US citizen after five years of living here as a permanent resident.

Additionally, VAWA green cards offer immigration benefits to survivors of domestic violence by US citizens or lawful permanent residents, enabling you to apply for a green card independently of your abuser. This essential feature of the VAWA green card guarantees that you can lead a life free from the influence of your abuser.

Here are some extra perks you ought to know about:

• Immigration status in the US, which safeguards you from being sent back.
• The opportunity to work in any job and the chance to launch your own company.
• Protection under US, state, and local regulations.
• The liberty to travel abroad and return without hassle.
• Access to financial aid from the government for schooling.
• The ability to bring certain family members to the US for their own green cards.

Remember that although a green card offers numerous rights, it doesn’t give you the right to vote in US elections. Always seek advice from an immigration lawyer to ensure you grasp all the advantages and duties of your status.

Get help!

If you or someone close to you is caught in a damaging relationship and worried about how breaking it off might affect your immigration situation, it is vital to get counsel from a skilled immigration lawyer immediately. No one should suffer abuse because they are afraid of losing their immigration status or of being reported to immigration authorities.

If you or your child are facing domestic violence, threats, or abuse, it is important to seek help as soon as possible. At Gehi and Associates, we are dedicated to helping you make the most out of your abusive situation. Our immigration lawyers have extensive experience helping clients take advantage of the legal protection under VAWA.

To get started, connect with us TODAY!