Victims of Domestic Violence

Our Legal Team


Steven L. Tuchman
Director
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Thomas R. Ruge
Director
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Robert W. Rund
Director
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Sarah Moshe

Sarah Moshe
Director
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Ryan C. Marques
Associate
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Dallin Lykins

Dallin Lykins
Associate
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VIOLENCE AGAINST WOMEN ACT (VAWA RELIEF)

VAWA relief allows battered spouses (men and women) and children of abusive US Citizens or Legal Permanent Residents to file for immigration relief without abuser's assistance or knowledge.

Keeping families together has been one of the key cornerstones of U.S. immigration policy for a long time. Thus, the relatives of U.S. citizens and legal permanent residents (LPRs) are eligible for permanent residence. However, immigration law generally requires that the U.S. citizen or LPR initiate the petition for the intending immigrant. A notable exception to this general requirement is when the U.S. citizen or LPR relative is abusive to the relative.

Therefore, if an individual has been abused by a U.S. citizen or LPR spouse (or parent), he or she may file what is known as a battered spouse self-petition (or battered child) self-petition. These are also sometimes known as VAWA petitions because they were originally authorized by the Violence Against Women Act (VAWA).

The law authorizes self-petitions because an abusive U.S. citizen or LPR spouse or parent is likely to use the immigrant's lack of status as a means to perpetuate the abuse. However, it is important to keep in mind that VAWA self-petitions generally only eliminate the requirement that the U.S. citizen or LPR relative initiate the immigration process. For this reason, the abuser must be either a U.S. citizen or legal permanent resident. If the abusive spouse or parent is not a U.S. citizen or LPR, there is generally no basis for a VAWA petition. Similarly, with a very limited exception, a self-petition will not be approved if the victim (or the victim's parent) was not married to the abuser.

Requirements for Filing VAWA Petition (in general).

  • The self-petitioner must be the current or former spouse (or child or step-child) of a U.S. citizen or LPR;
  • The self-petitioner must be a person of good moral character;
  • The self-petitioner must have resided with the abuser;
  • The marriage creating the relationship must have been entered into in good faith; and
  • The self-petitioner (or the self-petitioner's child) must have been subjected to battery or extreme cruelty during the marriage.

Analysis of the Elements for a VAWA Petition.

  • Marriage to a U.S. citizen or LPR — The first requirement – that the self-petitioner must be the current or former spouse of an abusive U.S. citizen or LPR – presents several issues. First, the abuser must either be a U.S. citizen or LPR. There is a narrow exception to the requirement that the abuser be a citizen or an LPR. A self-petition may still be filed if the abuser was a citizen or LPR who lost status within the past two years due to an incident of domestic violence. Second, there must have been a valid marriage creating the spousal (or parent-child) relationship. The only exception to this requirement is if there was an actual marriage ceremony and the alien spouse believed he or she was married, but the marriage was not legitimate solely because of bigamy by the U.S. citizen or LPR. Third, the marriage need not be in existence at the time the self-petition is filed. However, the self-petition must be filed within two years of the termination of the marriage.

· Good moral character — There are two ways an individual may be found to lack good moral character (GMC): through various statutory bars or through a discretionary determination. The Immigration and Nationality Act specifies certain conduct which constitutes a statutory bar to GMC, regardless of the underlying circumstances. These grounds include giving false testimony for an immigration benefit; being confined as the result of a conviction for 180 days or more; engaging in prostitution; being convicted of an aggravated felony; being convicted of a drug offense; and being convicted of a crime involving moral turpitude. In VAWA cases, some of these bars to GMC may be waived if the act or conviction was connected to abuse inflicted on the self-petitioner.
In addition, a self-petitioner who engages in misconduct which does not rise to the level of a statutory bar may still be found to lack GMC as a matter of discretion. A "discretionary" finding of lack of GMC involves the weighing of all relevant factors on a case-by-case basis. Significantly, GMC merely requires character which measures up to the standards of average citizens of the community; it does not require moral excellence.
DHS generally will request a police clearance where the self-petition has resided during the 3-year period preceding the filing of the self-petition.

  • Residence with the abuser — There is no requirement to have lived with the abuser in the U.S. It is not required that the self-petitioner currently be living with the abuser. Likewise, continuing to live with the abuser is not grounds for denial of a petition. There is no specific length of time that the self-petitioner must have lived with the abuser. In certain circumstances a self-petitioner can apply from outside the U.S.
  • Bona fide marriage — The marriage between the self-petitioning spouse and the U.S. citizen or LPR must have been entered into in good faith. This means that the self-petitioner must not have married the citizen or LPR spouse solely to obtain immigration status.
  • Battery or extreme cruelty during the marriage — The U.S. citizen or LPR spouse must have subjected the self-petitioner (or the self-petitioner's child) to battery or extreme cruelty during the marriage. The abuse need not have occurred in the U.S. and it need not have occurred while the abusive spouse was a U.S. citizen or LPR. However, it must have occurred during the marriage (or putative marriage). The standard for abuse is reasonably broad. It includes of being the victim of any act or threatened act of violence which results or threatens to result in physical or mental injury. It also includes forceful detention, psychological or sexual abuse or exploitation, including rape, molestation, incest, or forced prostitution. Moreover, actions which may not appear violent in and of themselves, but are a part of an overall pattern of violence, may also be considered acts of violence.

Relatives of the Self-Petitioner.

The statute allows for the children of a battered spouse to be included in the self-petition. However, the children must be under 21 at the time the self-petition is filed.

Evidence in Support of the Petition.

The best evidence in support of a self-petition are objective documents establishing the abuse. Conviction records, restraining orders, police reports, and 911 transcripts are the best form of evidence. Medical records, domestic violence shelter records, counseling/mental health records are also helpful. However, because victims of domestic violence face difficulty obtaining getting documentation, the law requires DHS to accept "any credible evidence" as proof. Thus, declarations from witnesses may also be used. In any event, all VAWA self-petitions should include a detailed affidavit of the self-petitioner.

Procedure in VAWA Cases.

Obtaining LPR status through VAWA self-petition involves a two-step process. First, the abused spouse or child files the self-petition with DHS. Once the self-petition is approved, the self-petitioner applies for LPR status through a process known as adjustment of status. As noted above, the self-petition merely eliminates the requirement that the U.S. citizen or LPR relative initiate the immigration process. This means that the self-petitioner will be given the same immigration classification as if the U.S. citizen or LPR spouse or parent had filed the petition. While there is never a waiting list for the spouses and children of U.S. citizens, some family-based immigration categories have rather lengthy waiting lists.

The waiting list for spouses and children of LPRs can range from five to ten years or more, depending on the alien's country of origin. The wait can even be longer if the child is over 21. Therefore, depending on the immigration status of abusive spouse or parent, the self-petitioner might not be eligible for permanent residence for several years. However, an approved self-petitioner will be granted a status known as "deferred action status," which allows the self-petitioner to remain in the U.S. and receive a work permit. Deferred action can be renewed yearly until the self-petitioner becomes eligible for adjustment of status.

VAWA Cancellation, a form of relief in removal proceedings, is covered under Deportation and Removal Defense.

SPECIAL IMMIGRANT JUVENILE STATUS (explained in more detail under Permanent Residency)

Allows neglected, abused or abandoned minors dependant on the court by means of foster care, CHINS or probate proceedings to apply for immigration relief, which may grant legal permanent residency

  • Children who are wards of the state due to their abuse, neglect or abandonment and return to home country not a viable option
  • Court must certify neglected, abused or abandoned status of juvenile
  • Often requires collaboration with family law attorney or state agency

T NONIMMIGRANT STATUS

Allows victims of severe forms of trafficking in persons to apply for immigration relief, which may grant them access to certain public benefits and social assistance

Victims must have suffered from a severe form of trafficking in persons:

  • Sex Trafficking: in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or
  • Labor: The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

Trafficking must include

  • Process: Recruiting, Harboring, or Obtaining of a Person
  • Means: Force, Fraud, or Coercion
  • End: For the purpose of Involuntary Servitude, Debt Bondage, Slavery, or Sex Trade

Requirements for T Visa applicants

  • Individual is, or has been, a victim of a severe form of human trafficking;
  • Is present in the US, American Samoa, Northern Marianas on account of trafficking;
  • Has complied with reasonable request for assistance in investigation or prosecution of acts of trafficking (Children under 18 do not have to meet this requirement); and
  • Would suffer extreme hardship involving unusual and severe harm upon removal.

T Nonimmigrant Status benefits:

  • Social assistance and public benefit program access to victims
  • Work authorization, social security number and driver's license access for victims
  • Status is valid for four years
  • May lead to legal permanent residency

U NONIMMIGRANT STATUS

Allows foreign national victims of certain types of crimes to apply for immigration relief, which may lead to a permanent status in the United States

U Nonimmigrant Status was created to strengthen the ability of law enforcement agencies to detect, investigate and prosecute cases of domestic violence, sexual assault, trafficking of persons and other criminal activity of which aliens are victims, while offering protection of victims of such offenses.

Requirements for a U Visa

1) Individual has been a victim of violent crime including:

  • Rape;
  • Torture;
  • Trafficking;
  • Incest;
  • Domestic Violence;
  • Sexual Assault;
  • Abusive Sexual Assault;
  • Prostitution;
  • Sexual Exploitation;
  • Female Genital Mutilation;
  • Being held hostage;
  • Peonage;
  • Involuntary Servitude;
  • Slave Trade;
  • Kidnapping;
  • Abduction;
  • Unlawful Criminal Restraint;
  • False Imprisonment;
  • Blackmail;
  • Extortion;
  • Manslaughter;
  • Murder;
  • Felonious Assault;
  • Witness Tampering;
  • Obstruction of Justice;
  • Perjury;
  • Attempt, conspiracy or solicitation to commit any of the above

2) Individual has suffered substantial mental or physical abuse as a result of having been a victim of any of the crimes listed above.
3) Individual has information concerning that crime.
4) The crime violated US law and occurred in US territory.
5) The victim has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity.

Highlights of the U Visa

  • The victim and/or perpetrator do not need to be US citizens or lawful permanent residents
  • There does not need to be a relationship between the victim and the perpetrator
  • Approved applicants have U Nonimmigrant status and are eligible for work authorization.
  • Spouse and children of applicant, or parents of juvenile applicant, may be included as derivatives in U Visa application.
  • U Visa holders may adjust status to Legal Permanent Resident after continuous physical presence in U.S. for 3 years as U Visa holder.
  • Perpetrator can never be granted any immigration benefit through beneficiaries of a U Visa.