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Violence Against Women Act (VAWA)
Background
Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs)
file an immigrant visa petition with the Immigration and Naturalization
Service (INS) on behalf of a spouse or child, so that these family
members may emigrate to or remain in the United States. INS Form
I-130, Petition for Alien Relative is filed by the USC/LPR, the
petitioner, on behalf of the family member who is the
beneficiary. The petitioner controls when or if the petition
is filed. Unfortunately, some U.S. citizens and LPRs misuse their
control of this process to abuse their family members, or by threatening
to report them to INS. As a result, most battered immigrants are
afraid to report the abuse to the police or other authorities.
Under the Violence
Against Women Act (VAWA) passed by Congress in 1994, the spouses
and children of United States citizens or lawful permanent residents
(LPR) may self-petition to obtain lawful permanent
residency. The immigration provisions of VAWA allow certain battered
immigrants to file for immigration relief without the abuser's assistance
or knowledge, in order to seek safety and independence from the
abuser. Victims of domestic violence should know that help is available
to them through the National Domestic Violence Hotline on
1-800-799-7233 or 1-800-787-3224 [TDD] for information
about shelters, mental health care, legal advice and other types
of assistance, including information about self-petitioning for
immigration status.
Who
is Eligible?
To be eligible to file a self-petition (an application that you
file for yourself for immigration benefits) you must qualify under
one of the following categories:
- Spouse: You
may self-petition if you are a battered spouse married to a U.S.
citizen or lawful permanent resident. Unmarried children under
the age of 21, who have not filed their own self-petition, may
be included on your petition as derivative beneficiaries.
- Parent:
You may self-petition if you are the parent of a child who has
been abused by your U.S. citizen or lawful permanent resident
spouse. Your children (under 21 years of age and unmarried), including
those who may not have been abused, may be included on your petition
as derivative beneficiaries, if they have not filed their own
self-petition.
- Child: You
may self-petition if you are a battered child (under 21 years
of age and unmarried) who has been abused by your U.S. citizen
or lawful permanent resident parent. Your children (under 21 years
of age and unmarried), including those who may not have been abused,
may be included on your petition as derivative beneficiaries
What
are the Basic Requirements?
The
self-petitioning spouse,
- Must be legally
married to the U.S. citizen or lawful permanent resident batterer.
A self-petition may be filed if the marriage was terminated by
the abusive spouse’s death within the two years prior to
filing. A self-petition may also be filed if the marriage to the
abusive spouse was terminated, within the two years prior to filing,
by divorce related to the abuse.
- Must have
been battered in the United States unless the abusive spouse is
an employee of the United States government or a member of the
uniformed services of the United States.
- Must have
been battered or subjected to extreme cruelty during the marriage,
or must be the parent of a child who was battered or subjected
to extreme cruelty by the U.S. citizen or lawful permanent resident
spouse during the marriage.
- Is required
to be a person of good moral character.
- Must have
entered into the marriage in good faith, not solely for the purpose
of obtaining immigration benefits.
The
self-petitioning child:
- Must qualify
as the child of the abuser as "child" is defined in
the INA for immigration purposes.
- Any relevant
credible evidence that can prove the relationship with the parent
will be considered.
How
Do I Apply for Benefits?
To self-petition, you must complete and file INS Form I-360 (Petition
for Amerasian, Widow(er), or Special Immigrant) and include all
supporting documentation. Self-petitions are filed with the Vermont
Service Center and should be sent by certified return receipt mail
(or any other method providing assurance of receipt). Sending the
Form I-360 to any other INS office will delay your application.
You should keep a copy of everything you submit, including the application
and all accompanying documents, in addition to the proof of mailing.
What is the Process?
Notice
of Receipt: You should receive an acknowledgement or Notice
of Receipt within a few weeks after mailing the application and
fee to INS.
Prima
Facie Determination: Battered immigrants filing self-petitions
who can establish a "prima facie" case are considered
"qualified aliens" for the purpose of eligibility for
public benefits (Section 501 of the Illegal Immigrant Responsibility
and Immigration Reform Act (IIRIRA). The INS reviews each petition
initially to determine whether the self-petitioner has addressed
each of the requirements listed above and has provided some supporting
evidence. This may be in the form of a statement that addresses
each requirement. This is called a prima facie determination.
If the Service
makes a prima facie determination, the self-petitioner will receive
a Notice of Prima Facie Determination valid for 150 days. The notice
may be presented to state and federal agencies that provide public
benefits.
Approved
Self-petition: If the I-360 self-petition is approved,
the Service may exercise the administrative option of placing the
self-petitioner in deferred action, if the self-petitioner
does not have legal immigration status in the United States. Deferred
action means that the Service will not initiate removal
(deportation) proceedings against the self-petitioner. Deferred
action decisions are made by the Vermont Service Center (VSC) and
are granted in most cases. Deferred action validity is 27 months
for those for whom a visa was available on the date that the self-petition
was approved. All others have a validity of 24 months beyond the
date a visa number becomes available. The VSC has the authority
to grant appropriate extensions of deferred action beyond those
time periods upon receipt of a request for extension from the self-petitioner.
Employment
Authorization: Self-petitioners and their derivative children
who have an approved Form I-360 and are placed in deferred action
are also eligible for an Employment Authorization Card. To apply,
INS Form I-765 (Application for Employment Authorization) should
be filed with the Vermont Service Center. Applicants should indicate
that they are seeking employment authorization pursuant to 8 CFR
274a.12(c) (14). The Form I-765 must be filed with a copy of the
self-petitioner's INS Form I-360 approval notice. For more information
on work permits, please see How Do I Apply for a Work Permit (Employment
Authorization Document)?.
Adjustment
to Permanent Resident Status: Self-petitioners who qualify
as immediate relatives of U.S. citizens (spouses and unmarried children
under the age of 21) do not have to wait for an immigrant visa number
to become available. They may file INS Form I-485 (Application To
Register Permanent Residence or Adjust Status) with their local
INS office. Self-petitioners who require a visa number to adjust
must wait for a visa number to be available before filing the Form
I-485. The wait for visa numbers can be anywhere from 2-10 years.
Some self-petitioners
with an approved Form I-360 will be required either to apply for
adjustment of status under section 245(i) (which requires payment
of a penalty fee), or to apply for an immigrant visa at a U.S. consular
post abroad. To apply for adjustment of status under 245(i), the
self-petitioner must apply using INS Form I-360, Petition for Amerasian,
Widow(er), or Special Immigrant, before April 30, 2001. Futhermore,
the petitioner must prove he or she was physically present in the
United States on December 21, 2000. In addition, you may a be a
"grandfathered" alien. You are considered "grandfathered"
if the I-360 petition was filed on or before January 14, 1998. You
are also considered "grandfathered" if you had an immigrant
visa petition in another category (for example, a Form I-130 petition
filed by your spouse or parent) filed with the Service on or before
January 14, 1998 or labor certification application filed with the
Department of Labor on or before January 14, 1998. Recent changes
to section 245 of the INA enabled some self-petitioners to apply
for adjustment of status through the normal process without resorting
to the 245(i) process.
Victims of domestic
violence should know that help is also available to them through
the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224
[TDD] for information about shelters, mental health care, legal
advice and other types of assistance, including information about
self-petitioning for immigration status.
Frequently
Asked Questions
Q. Can
a man file a self-petition under the Violence Against Women Act?
A. Although the self-petitioning provisions for
victims of domestic violence are contained in the Violence Against
Women Act, they apply equally to victims of either sex.
Q. Must
the self-petitioner remain married to the abusive spouse until the
self-petition is approved?
A. The regulations only require that the self-petitioning
spouse be married at the time of filing. After the self-petition
has been filed, legal termination of the marriage will not usually
affect the self-petition, but you may want to seek advice from an
immigration attorney or legal advocate. Statutory changes, effective
October 28, 2000, allow for the marriage to have been terminated
(there are some restrictions) within two years prior to the date
of filing.
Q. Can
a divorced spouse seek relief through self-petitioning?
A. Statutory changes, effective October 28, 2000,
allow for the marriage to have been terminated (there are some restrictions)
within two years prior to the date of filing. A battered spouse
who does not meet these restrictions may be eligible for cancellation
of removal. This is provided for under Section 240A(b)(2) of the
INA. To qualify he/she must meet the other requirements that would
be necessary for approval of a self-petition and must have been
physically present in the U.S. for 3 years immediately preceding
the filing of the application for cancellation of removal.
A self-petition
will also be denied if the self-petitioner re-marries before filing
or after filing and before the self-petition is approved. Remarriage
after the self-petition has been approved will not affect the validity
of the approved I-360 self-petition.
Q. What
if the abusive US citizen/LPR did file a Form I-130 petition on
behalf of the battered spouse which is either still pending or was
withdrawn?
A. A self-petitioner who is the beneficiary of
a Form I-130 petition filed by the abusive spouse will be able to
transfer the priority date of the Form I-130 petition to the I-360
self-petition. This is extremely important for self-petitioners
who must wait for a visa number as an earlier priority date will
result in a shorter waiting time.
Can
Anyone Help Me?
If advice is needed, you may contact a local lawyer for a legal
advice. Click Here to contact a lawyer.
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