Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs) file an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, physically and by threatening to report them to the USCIS. 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, to seek safety and independence from the abuser.
Who is Eligible?
To be eligible to file a self-petition 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
VAWA applies equally to both women and men.
The basic requirements for the self-petitioning spouse are:
- 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 basic requirements for the self-petitioning child are:
- 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.
The steps necessary to obtain approval of a VAWA petition and obtain permission to work in the United States and obtain permanent resident status go beyond the scope of this article. Persons needing assistance to obtain immigration benefits should contact an attorney.
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, and legal advice.
This information is a general summary, and there may be exceptions or additional requirements that apply in an individual case. Information is given for demonstrative purposes only, and should not be relied on without consulting an attorney. Specific advice can only be given by an attorney who is familiar with facts pertinent to a specific case.
