Under the terms of the “Violence Against Women Act” of 1994, Beneficiaries for Lawful Permanent Residence (aka “Greencard”) in the United States can SELF-petition in cases of a proven abusive or violent relationship with a petitioning relative who is either a U.S. citizen or Lawful Permanent Resident themselves, either between spouses, or between parent and child.
This allows the victim to pursue his/her own immigration filing for the Greencard, without the assistance and cooperation (or knowledge) of the abusive family member or spouse. There is no USCIS filing fee for this type of application.
Contrary to the title, this provision is equally applied for BOTH Men and Women, and includes all legal spousal and parent-child relationships, including same-sex spouses, and step-relations and adopted children.
The child of a battered spouse is included in the self-filed VAWA petition. In order to meet the burden of proof, the battered self-petitioner must show the following:
- The spouse or child must demonstrate that he or she resided with USC/LPR spouse/parent,
- was battered, physically abused, or subject to extreme cruelty during the marriage (or, in the case of a spouse self-petitioner, the child was battered or subjected to extreme cruelty)
- the underlying marriage was entered into in good faith,
- Beneficiary is otherwise eligible for immediate relative or preference status; and has good moral character.
For child applicants, the statute does not require that the abuse to the child occur during the marriage or even that the marriage was bona fide to begin with.
The spouse no longer must be married to the LPR or USC abuser at the time the petition is properly filed with USCIS, because a battered spouse includes:
- someone who in good faith believed he or she was married but was subject to bigamy,
- someone who was married but the abusing USC spouse died within the 2 years immediately preceding the filing of the self-petition,
- the abusing spouse renounced or lost his USC/LPR status within the 2 years immediately preceding the filing of the self-petition, and the loss was related to an incident of domestic violence, or
- the abused spouse can demonstrate a connection between the legal termination of the marriage within the past 2 years and the battering/extreme cruelty.
Spouses and children living abroad are also covered if their abusers are USC/LPR members of the U.S. military or are U.S. government employees, or if some of the abuse took place in the U.S.
The statute also permits persons to be divorced after the petition is filed without the need to demonstrate a connection between battering/extreme cruelty and the divorce. HOWEVER, a battered spouse may remarry after, but not before, the self-petition is approved without invalidating the petition.
A self-petitioning child/parent can successfully Adjust Status to permanent residence, even if the abusing parent/spouse loses his or her LPR status after the filing of the petition. (For child-applicants age-out provisions do not kick in until age 25, provided the eligibility to file first occurred before age 21 AND the applicant remains unmarried at the time of filing the petition)
The public charge provisions, nor the affidavit of support apply to or are required for VAWA self-petitioners. (no need to file an I-864 affidavit in these cases regarding income / assets)
Evidence of battery/extreme cruelty includes, but is not limited to: reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel.
Evidence may also include an order of protection against the abuser or other legal or practical steps to end and/or document the abuse, such as seeking refuge in a battered women’s shelter or similar place, consulting with a psychologist or other mental health professional, maintaining photographs showing visible injuries, consulting a lawyer specializing in family law, or even documenting “nonqualifying abuses” to show a pattern of abuse and violence.
Naturalization: An LPR who obtained status as a battered spouse or child of a USC may apply for citizenship within 3 years.
If you reside in the greater Tampa Bay area of Florida, and you need a professional psychological evaluation or counseling/ treatment, I would recommend Dr. Susan Wolfson, LCSW, CHt