Violence Against Women Act (VAWA) Self-Petition
What is a VAWA self petition?
The Violence Against Women Act (VAWA) is a federal law that was passed by Congress in part to provide for protections to battered immigrant spouses. VAWA allows for battered immigrant spouses to self petition independently for their immigration status without relying on an abusive citizen or legal permanent resident spouse.
VAWA also helps for a parent of a child who has been battered or subjected to extreme cruelty by his or her U.S. citizen or lawful permanent resident spouse. A child who has been abused by his or her U.S. citizen or lawful permanent resident parent may also self petition under VAWA.
Who is eligible to file a VAWA self petition?
Spouses—Battered spouses and certain ex-spouses of U.S. citizen or lawful permanent residents;
Child—Battered child (under 21 years of age and unmarried) who has been abused by U.S. citizen or lawful permanent resident parent.
Parent of a child—Parent of child who has been abused by his or her U.S. citizen or lawful permanent resident spouse; or
Parent of abusive U.S. citizen—A parent who has been abused by his/her U.S. citizen child who is at least 21 years of age at the time the self-petition is filed (i.e., “elder abuse”).
What are the requirements to qualify for approval of a VAWA self petition?
Individuals submitting a VAWA self petition must prove that the petitioner’s abuser was / is a United States citizen or legal permanent resident. There are other specific requirements depending on whether you are a spouse or child of the abuser.
For a self petitioning spouse:
- That the petitioner was / is married to the U.S. Citizen abuser or legal permanent resident;
- The marriage that forms the basis of the self petition is / was a bona fide “good faith marriage,” meaning that the petitioner did not enter into the marriage solely to gain lawful immigration status in the U.S.;
- That the abusive U.S. citizen / legal permanent resident spouse battered or subjected the petitioner to extreme cruelty during the marriage;
- That the petitioner lived with the abusive spouse at some point during the marriage;
- Petitioner lives in the United States or if living abroad, the petitioner was subjected to abuse by the U.S. citizen / legal permanent resident abusive spouse in the U.S.; and
- Petitioner is of good moral character.
For a self petitioning child, Petitioner must qualify as child of abuser as “child” is defined in the Immigration and Nationality Act (INA). Evidence needed to show the parent / child relationship:
- That the abusive U.S. citizen / legal permanent resident parent was battered or subjected the petitioner to extreme cruelty;
- Residence with the abusive parent at some point;
- Currently resides in U.S. or if living abroad, the petitioner was subjected to abuse by the U.S. citizen / legal permanent resident abusive spouse in the U.S.; and
- Petitioner is of good moral character.
Can I still file a VAWA self petition if I am divorced?
VAWA allows divorced battered ex-spouses to self petition within two years of the divorce from the abusive spouse. However, the self petitioning spouse must also prove that the divorce was the result of the abuse.
What if my abusive spouse died?
If the deceased abusive spouse was a U.S. citizen, the victim may still self petition as long as the self petition is filed within two years of the spouse’s death. However, if the deceased abusive spouse was a legal permanent resident, the victim is precluded from filing a self petition after the date of death.
If I file a VAWA self petition, will the U.S. government contact my abusive (ex-) spouse to inform him / her that I am petitioning?
Under VAWA, immigration officials are prohibited from initiating contact with the abusers and from relying on information given by the abusers to apprehend or attempt to remove immigrant victims of domestic abuse. VAWA provides that all information submitted by a self petitioner is to be kept confidential.
What kind of proof do immigration officials look for in proving that I qualify for VAWA as a self petitioning spouse?
According to the Code of Federal Regulations, self petitioners are encouraged to submit primary evidence whenever possible. The United States Citizenship and Immigration Services (USCIS), however, should consider “any credible evidence” relevant to the petition. A VAWA self petition, however, is more likely to be approved if the self petitioner can submit primary evidence including but not limited to the following:
- Abuser is/was a USC or LPR:
- Photocopy of abuser’s birth certificate attesting to birth in any U.S. state/territory
- Photocopy of abuser’s Naturalization Certificate
- Photocopy of abuser’s US Passport
- Photocopy of abuser’s Alien Registration Card demonstrating LPR status
- Self petitioner is/ was legally married to LPR or USC abuser:
- Marriage certificate
- Marriage that forms basis of self petition was a “good faith” / bona fide marriage:
- Evidence of jointly owned assets
- Documentation of commingling finances
- Birth certificates of mutual children
- Evidence of joint insurance policies
- Divorce decree
- Testimony/other evidence regarding courtship/wedding ceremony/shared residence
- Other such documentation
- LPR/USC abused the self petitioner during their marriage:
- Reports/affidavits from police, judges, other court officials
- Reports/affidavits from medical personnel, school officials, clergy, social workers, other service agency personnel
- Self petitioner lived with abuser at same residence at some point during relationship:
- Utility bills
- Lease agreement
- Mortgage / deed
- Employment records
- Birth certificates of children
- Insurance policies
- Affidavits of friends and family
- Self petitioner lives in the US OR, if living abroad, was subjected to abuse by LPR or USC spouse in the US:
- Current lease agreement
- Affidavits from friends/family/social services agency
- Items from #5
- Self petitioner is of good moral character (need from each locality or State in the US the petitioner has resided in for 6 or more months during 3 year period immediately preceding filing of petition):
- Police clearances
- State issued criminal background check
If you do not possess all of the above mentioned examples of documentation, you should not preclude yourself from considering the possibility of filing a VAWA Self Petition. You may also consider consulting with an immigration attorney.
Which governmental agency is responsible for reviewing my VAWA self petition?
VAWA self petitioners must complete a “Petition for Amerasian, Widow(er) or Special Immigrant on USCIS Form I-360 that is supported by documentation of the VAWA requirements. The petition and documentation is submitted to the USCIS Vermont Service Center’s “VAWA Unit,” which reviews the petition and documentation.
If the petition is apparently approvable, USCIS will issue a “Notice of Prima Facie Eligibility” while adjudication of the self petition is pending. If the USCIS approves the self petition, the self petitioner will be issued a “Notice of Deferred Action.” The Notice of Deferred Action means that immigration authorities will likely not try to deport or remove the self petitioner from the United States. The Notice of Deferred Action also entitles the self petitioner to apply for an Employment Authorization Document.
If the Vermont Service Center needs more evidence from you to establish a VAWA claim, they will send you a “Request for Evidence” (RFE). According to the USCIS, if an applicant receives an RFE requesting information that was already submitted with the original filing, s/he should resubmit the requested documents along with the RFE. This is because there is always the possibility the requested document may have been lost or misfiled. The applicant may also indicate in the response that the requested document has already been submitted.
In cases where the VSC approves a VAWA self petition, the self petitioner is also eligible to apply for lawful permanent residency. Approved self petitioners who obtained approval on the basis of a qualifying relationship to an abusive U.S. Citizen are eligible to apply for permanent residency immediately upon the self petition approval. This is because self petitioners who are approved on the basis of a qualifying relationship to an abusive U.S. citizen are considered “immediate relatives.” Immediate relatives are not subject to the annual quotas for family based immigration.
Self petitioners who were approved on the basis of a qualifying relationship to an abusive lawful permanent resident, however, are considered to be “second preference category immigrants.” These self petitioners must, therefore, wait until a visa is available in their preference category under the family based quota system.
How long will it take to process my VAWA self petition?
VAWA self petitions are processed through the Vermont Service Center. The USCIS provides a website that shows the processing time for particular forms. Choose “Vermont Service Center” in the Service Center drop box. Then click “Service Center Processing Dates.”
Currently, the USCIS indicates that the Vermont Service Center is processing VAWA self petitions (I-360) within 5 months.
Is there a process for expediting VAWA self petitions?
According to the USCIS, customers and their representatives may request for the Vermont Service Center to expedite their application on the basis of compelling humanitarian issues. However, the USCIS warns that any request for expeditious processing on humanitarian grounds must involved “extraordinary circumstances.” The USCIS states that “the VAWA unit will entertain and answer every request it receives based on a full review of the unique facts presented.”
According to the USCIS, once a decision is made on whether to expedite processing, the attorney of record will be notified of the decision. When a case is approved for expeditious processing, an expedite cover sheet is placed on the A-file, clearly designating the case as an expedite, and the case is immediately assigned to an adjudicator. The adjudicator takes action on the case within one to two days, and the action may be a decision, RFE, or hold. If the case requires an RFE, the applicant has up to 87 days to respond to the RFE. Cases requiring RFE processing are tracked as expedites throughout the RFE process, and when a response is received, VSC endeavors to complete the decision as quickly as possible.
Can the approval of my VAWA self petition be revoked?
In certain cases, after a self petition is approved, the USCIS has the authority to revoke the petition based on reliable new evidence. USCIS issued a policy memo in December 2010 that provides guidance to field officer regarding the issue of revoking an approved VAWA self petition:
Field Request for Review of an Approved VAWA petition: If a field officer obtains new information that was not available to the VSC at the time the self petition was approved that leads the officer to believe that the approval should be revoked, the officer must write a memorandum to his/her Supervisory Immigration Service Officer(SISO). The memorandum must explain: (1) why the petition should be reviewed for possible revocation; (2) the new information calling for possible revocation; and (3) how the USCIS obtained the information.
Supervisory Review and Return to VSC: If the SISO agrees with the field officer’s assessment, the SISO must sign the memorandum and forward the memo and the file in question to the VSC VAWA Unit. The materials are the reviewed by a VSC VAWA unit supervisor and make a recommendation either to initiate revocation proceedings or to reaffirm the self petition. If the VSC supervisor decides to reaffirm the self petition, s/he must write and memorandum explaining why the self petition was not revoked. The memorandum must then be returned to the field with the file.
Use of Information / Evidence: In making a determination as to revoke a VAWA self petition, immigration officials are prohibited from using information provided solely by an abusive spouse, parent or household member of the abusive spouse or parent who consented to the abuse.
Can I appeal a denial of a VAWA self petition?
If your VAWA self petition is denied, the denial letter will inform you as to how to appeal. You will likely have to file a Notice of Appeal and a fee with the VSC within 33 days of receiving the denial. After processing of the fee and the form, the appeal will be referred to the USCIS Administrative Appeals Office (AAO). You may also file a motion to reopen or motion to reconsider if you received unfavorable decision in your case.
If I am currently in removal (deportation) proceedings and have been a victim of domestic abuse, do I qualify for any type of relief under VAWA?
Yes, if you are currently in removal (deportation) proceedings, you may qualify for cancellation of removal under VAWA. This option is available to applicants who are in, or who can be placed into, removal proceedings. You should consult an immigration attorney if you are in removal proceedings before seeking VAWA cancellation.
Last Review and Update: Aug 15, 2014
Battered Spouse or Child Waiver
Individuals may be eligible for the Battered Spouse or Battered Child Waiver if they have conditional legal permanent residence as a spouse or child of a United States Citizen (USC) or Legal Permanent Resident (LPR) and have been abused by that US Citizen or LPR. If an applicant meets the requirements for the Battered Spouse or Child Waiver, USCIS may remove the conditional nature of the applicant’s LPR status.
What is conditional legal permanent residence?
Conditional legal permanent residence status is given to individuals who receive a green card as a result of their marriage to a USC or LPR when the marriage is less than two years old. The same is true for children who receive conditional LPR status through a petition filed by their parent’s USC spouse. The purpose of the conditional nature of the LPR status is to prevent marriage fraud and to ensure that individuals seeking LPR status are not doing so for the sole purpose of obtaining legal immigrant status.
Who is eligible to file a Battered Spouse or Child Waiver?
To obtain a Battered Spouse or Battered Child Waiver, the applicant must prove:
- He or she obtained conditional legal permanent residence status because the marriage to a USC or LPR was less than two years old at the time the status was obtained or a child has conditional legal permanent residence status because his/her parent’s USC spouse filed a petition within the first two years of the marriage;
- The marriage that serves as the basis for the waiver was entered into in good faith and not simply to evade the immigration laws; and
- During the marriage, the spouse or child was subjected to extreme cruelty by the USC or LPR.
How do I file a Battered Spouse or Child Waiver?
To request removal of the conditions on a conditional legal permanent resident status, you must file a Form I-751 at some point before the two year conditional period expires. You access the Form I-751 on the USCIS website – click here. Although the Form I-751 must generally be filed jointly with the USC or LPR spouse, this requirement may be waived for spouses or children that have been subjected to extreme cruelty (i.e., the Battered Spouse or Child Waiver), who will then be permitted to request the removal of the conditions without the knowledge of the abuser. To obtain this waiver of joint filing, the applicant must submit the following together with the I-751:
- Evidence of the abuse, including copies of reports or official records from law enforcement, medical personnel, clergy, social workers, or other social services agency staff. Legal documents related to an order of protection order or related to legal steps taken or being taken to end the abuse are also helpful. Also helpful would be evidence that the victim sought safe haven in a shelter, photographs of injuries, etc.
- A copy of the divorce decree in the event that the marriage was terminated by divorce on the grounds of physical abuse or extreme cruelty.
How much does it cost to file a Form I-751?
The filing fee for a Form I-751 is $505. An additional biometrics services fee of $85 is also required. This additional biometrics services fee also applies to each conditional resident dependent that is eligible for inclusion on the principal petitioner’s Form I-751.
Last Review and Update: Aug 15, 2014