By Attorneys Robert L. Reeves and Jeremiah Johnson
Spouses and children of U.S. citizens or lawful permanent residents (LPRs) who are relying on their spouse or parent to petition them for permanent residency, but are being abused or subjected to extreme cruelty by the petitioner can find themselves between a rock and a hard place. Should they continue their relationship with the abuser and get their green card; or end the cycle of violence and face possible deportation? Fortunately, the Violence Against Women Act (VAWA) provides a safe haven for these individuals by allowing them to escape these abusive relationships while taking control over their own immigration matters by filing a self petition.
Congress enacted VAWA in 1994 in response to the thousands of spouses and children of U.S. citizens and LPRs who were trapped in abusive relationships but could not escape because they were dependent on their spouse or parent to petition them for a green card. Under VAWA, the spouses and children of the abusive U.S. citizens or LPRs may self-petition for lawful permanent residency without the knowledge or assistance of the abuser. Self-petitioning children must be unmarried and under 21 years old at the time of filing. Self-petitioning spouses can include unmarried children less than 21 years of age as derivative beneficiaries.
To be eligible, self-petitioning spouses or children must establish they suffered “extreme cruelty.” It is important to note that Congress defined “extreme cruelty” to encompass more than physical abuse; “extreme cruelty” includes psychological and emotional abuse as well. Indeed, federal regulations confirm that “battery or extreme cruelty” includes “acts that, in and of themselves, may not initially appear violent but are part of an overall pattern of violence” including “[p]sychological or sexual abuse or exploitation …” Looking outside U.S. immigration laws, the United Nations has defined domestic violence as “all acts of gender-based physical, psychological, and sexual abuse” including “threats, intimidation, coercion, stalking [and] humiliating verbal abuse.” In California, family law recognizes that even lying can constitute “extreme cruelty” especially between spouses where the lies are clearly intended to cause stress. Immigrant related abuse can also constitute “extreme cruelty.” Immigration related abuse includes but is not limited to threats of deportation, not filing papers, or calling the Immigration Service.
In addition to establishing “extreme cruelty” the self petitioner must include evidence of good moral character; marriage to the U.S. citizen or LPR abuser; evidence that abuse took place in the United States; and proof that the marriage was entered into in good faith, not solely for the purpose of obtaining immigration benefits. The abused spouse may file the petition during the marriage, or within two years of the termination of the marriage, either through death or divorce. However, a VAWA petition will be denied if the self-petitioner re-marries before filing, or after filing but before the petition is approved. Remarriage after the self-petition has been approved will not affect the validity of the approved self-petition. If the abusive spouse/parent had filed an immigrant visa petition on behalf of the battered spouse/child, the priority date can be transferred to the self-petition. This can be helpful for spouses or children of lawful permanent residents who face a long wait for the availability of their immigrant visa in their particular visa category.
According to a memorandum from the U.S. Citizenship and Immigration Services (USCIS) the inquiry into good moral character focuses on the three years immediately preceding the filing of the self-petition, but the USCIS has the discretion to explore the self-petitioner’s character beyond that three-year period with cause. If the abused spouse or child committed an act or has a conviction that renders him or her ineligible for adjustment of status, they can overcome that ground of inadmissibility by demonstrating that they are eligible for a waiver under the Immigration and Nationality Act (INA), and that the act or conviction was “connected” to the abuse.
VAWA self-petitions are adjudicated by the Vermont Service Center of the USCIS. The USCIS will initially make a “prima facie” determination regarding the application, and issue a notice to the self-petitioner so that he or she can seek public benefits. If the petition is approved, and the priority date is current for the immigrant visa category, the self-petitioner may proceed with adjusting his or her status. If the self-petitioner is not yet ready to adjust and they lack legal status in the United States, the USCIS may place that individual in “deferred action,” which protects that person from being placed in removal proceedings. These individuals are also eligible to receive employment authorization.
Obtaining permanent resident status as an abused spouse or child requires thorough documentation and excellent advocacy before the USCIS or the immigration judge. Individuals seeking assistance in such matters should consult a knowledgeable and experienced immigration attorney.