The Violence Against Women Act (VAWA)
VAWA allows certain abused spouses, children, and parents to self-petition for permanent residency in the United States. The following persons are eligible to self-petition under VAWA:
- Abused spouse of U.S. citizen or LPR
- Abused spouse’s unmarried children under the age of 21 may be derivatives, even if the children have not been abused and even if the children are not related to the abusive U.S. citizen or LPR;
- Non-abused spouse of U.S. citizen or LPR whose child is abused by the U.S. citizen or LPR spouse, even if the child is not related to the U.S. citizen or LPR abuser
- Abused parents of U.S. citizen children (where the abusive child is 21 years of age or older)
- Abused child of U.S. citizen or LPR parent
- For immigration purposes, a child is a person who is unmarried, under 21 years of age, and is the biological, step, or adopted child of the abuser.
- Abused child may petition until the age of 25 if he/she can demonstrate that abuse was at least one central reason for the filing delay.
- For step-children, the marriage creating the stepchild relationship must occur before the child reaches 18 years of age.
- For adopted children, generally, the child must be adopted while under the age of 16.
- The abused child’s unmarried children under the age of 21 may be derivatives
- Abused “intended spouses” of U.S. citizen or LPR.
- Abused intended spouse’s unmarried children under the age of 21 may be derivatives, even if the children have not been abused and even if the children are not related to the U.S. citizen or LPR abuser
- The term “intended spouse,” means an individual who believes that she or he has married a U.S. citizen or LPR and for whom a marriage ceremony was actually performed, but whose marriage is not legitimate solely because of the U.S. citizen’s or LPR’s bigamy (i.e. previously married and did not legally terminate that marriage before entering into the current marriage)
Abuser Must Be U.S. Citizen or LPR
A VAWA self-petitioner must demonstrate that the abuser is (or in some cases, was) a U.S. citizen or LPR.
Legal Marriage and Good Faith Marriage
For spousal cases, the self-petitioner must establish that she is (or was) legally married to the
U.S. citizen or LPR abuser; and the marriage that forms the basis of the self-petition was a “good faith” marriage, meaning that the self-petitioner married because she wanted to be married and not for immigration purposes.
Termination of Marriage
Generally, the self-petitioner must file the VAWA self-petition before terminating her marriage. However, there is a special rule that allows self-petitioners to file within two years of divorce so long as she can demonstrate a “connection” between the divorce and domestic violence.
Battery and/or Extreme Cruelty
VAWA requires that the self-petitioner show that she and/or her child “has been battered or has been the subject of extreme cruelty” by a U.S. citizen or LPR spouse, parent, or child. For spousal cases, this must occur during the marriage. The federal regulations define abuse broadly to encompass physical, sexual, and psychological acts, as well as economic coercion.
Residence with Abuser
Under current law, the self-petitioner must have resided with the abuser at some point, either inside or outside the United States. There is no specified amount of time the self-petitioner must have lived with the abuser. Additionally, there is no requirement that the self-petitioner be residing currently with the abuser in the United States at the time the self-petition is filed. Thus, a self-petitioner can qualify for relief under VAWA even if she lived with the abuser for only a short time, or only in another country
Current Residence in the United States
The self-petitioner must establish that she is either:
- Residing in the United States, or
- If living abroad, was subjected to abuse by the U.S. citizen or LPR in the United States,
- The abusive U.S. citizen or LPR is an employee of the U.S. government or armedvforces.
Good Moral Character
VAWA self-petitioners must establish that they possess good moral character.
VAWA Adjustment of Status
Adjustment of status is the process for an immigrant to apply for lawful permanent residence in the United States. Certain VAWA self-petitioners are eligible to apply for adjustment of status simultaneously with the VAWA self-petition; others are not. It is essential to confirm eligibility before filing because if an applicant files for adjustment of status before being eligible, he or she may be placed in removal proceedings. An applicant for VAWA adjustment of status must establish that he/she:
- Is the beneficiary of an approved VAWA self-petition (or has a pending VAWA self-petition that if approved, would render the applicant eligible for adjustment of status);
- Has a current visa number;
- Is admissible; and
- Merits adjustment of status in the exercise of discretion.