In 1994, Congress passed the Violence Against Women Act (VAWA), creating special routes to immigration status for certain battered non-citizens. Among the basic requirements for eligibility, a battered non-citizen must be the spouse or child of an abusive U.S. citizen or permanent resident. Through a self-petitioning process, the battered spouse/child may apply for immigration status without the knowledge or involvement of the abuser. Derivative status is available to certain children and parents of the principal immigrant.

If eligible, Form I-360 Self-Petition (VAWA petition) is filed with supporting documentation. There is extensive evidence that must be gathered including evidence of battery/abuse/extreme cruelty and proof of the qualifying relationship to the abuser. Immigrants who can establish the basic requirements outlined below will be given a “prima facie” determination and then be eligible for certain public benefits If the VAWA petition is approved, the immigrant is granted deferred action status in most cases. Deferred action means that removal, or deportation, proceedings will not be initiated. Applicants are also eligible for work authorization upon approval of their VAWA petition.

Once the VAWA petition has been approved, immigrants are classified into categories based on a preference system. Self-petitioners who are immediate relatives of U.S. Citizens (spouses, parents, unmarried children under the age of 21) are eligible to adjust status to a lawful permanent resident status when their VAWA petition is approved. Spouses and children of lawful permanent residents must wait for an immigrant visa to become available for their category. These petitioners will be able to obtain work authorization until they are eligible to apply for permanent residency.

The process to apply for lawful permanent residence includes a criminal check by fingerprinting and completion of a medical exam. Applicants might be barred from permanent residency if they have a record of involvement with drugs, prostitution, or other crimes, if they committed visa fraud, were previously deported, or have certain other “bad marks” against them. Waivers are sometimes available for criminal or immigration issues but intending immigrants with these complications are advised to have their cases reviewed by an immigration attorney. Battered spouses or children of U.S. citizens or permanent residents who are the subjects of deportation proceedings may also be eligible for this form of relief through VAWA cancellation of removal.

Eligibility Requirements for VAWA Self-petitioners:

The intending self-petitioner must prove that s/he is a spouse, child (unmarried and under age 21)/parent of an abused child (unmarried and under age 21), or parent who was physically battered and/or subjected to “extreme cruelty” by a U.S. citizen or lawful permanent resident spouse, parent or adult child. Such abuse may include evidence of: physical abuse, violent acts or threats of violence, sexual abuse or exploitation, verbal abuse and degradation, emotional abuse, isolation, intimidation, economic abuse, coercion or threats to take away children or have one deported. It is not a requirement to have a police report. Many victims are fearful of calling the police and this does not preclude them for filing a VAWA self-petition.

Abused spouses must additionally prove that the marriage was entered into in good faith, that the abuse occurred during the marriage, and that the marriage is still valid or was terminated less than two years prior to self-petitioning. The abuse must have occurred in the United States, and the victim must have lived with the abuser.

The self-petitioner must provide evidence of his/her “good moral character.” This usually refers to a review of the self-petitioners criminal record or other immigration transgressions. Certain arrests or transgressions may be waived if the self-petitioner can show such actions were connected to the abuse s/he suffered. Applicants should consult with legal counsel for a close review of any such arrests, convictions or transgressions.

In the case of a child applicant, the battery or extreme cruelty must have occurred at the hands of her U.S. citizen or lawful permanent resident parent.

I-601A – Provisional Unlawful Presence Waiver

This waiver forgives “unlawful presence” in the U.S. for those who would be subject to the 3 or 10 year bar once they leave the U.S. but not those who are subject to the permanent bar. Those subject to the permanent bar must wait 10 years outside the U.S.

If you are a spouse, son or daughter or a U.S. citizen or lawful permanent resident, you may apply for  a provisional unlawful presence waiver before departing the United States to appear at a U.S. Embassy or consulate for an immigrant visa interview.

However,  in order to obtain this waiver, you must demonstrate extreme hardship to a qualifying relative. Qualifying relatives must be spouses or parents who are US citizens or lawful permanent residents, but do not necessarily have to be the petitioner.

You must show that your  qualifying relative will suffer more than the usual hardship if you had to leave the U.S.. Demonstrating “extreme hardship” can be quite challenging as there is no law defining extreme hardship.

In order to be approved,  you must provide strong evidence that your qualifying relative will experience extreme hardship either in the U.S., if you are not allowed  stay in the U.S., or in your home country, if your relative accompanies you there.