Violence Against Women Act
What is Violence Against Women Act?
The Violence Against Women Act (VAWA) is a law contained in the Victims of Trafficking and Violence Protection Act. VAWA is designed to remove some of the obstacles that prevented some battered spouses and children from benefiting from the self-petitioning provisions.
What’s the Main Purpose of VAWA?
Some US citizens (USC) and legal permanent residents (LPR) use their control over the the family-based petitioning process to abuse, coerce, control and intimidate their family members. The availability of VAWA’s self-petitioning removes control over this process from the USC/LPR spouse or parent and allows the battered spouse or child to submit his/her own petition to BCIS. This self-petition may be filed without the batterer’s knowledge or consent.
Who May Apply Under VAWA?
- The spouse of a USC/LPR (and the petitioner’s child may be included on the petition as a derivative beneficiary).
- The child of a USC/LPR.
- The spouse of a USC/LPR whose child has been battered or subjected to extreme cruelty. In such a case, a parent files the self-petition based on abuse of the child, but both parent and child benefit from the self-petition.
Basic Requirements for a Spouse Self-Petitioner
- Is or was married to USC or LPR;
- The marriage was entered in good faith;
- The Petitioner is or was subjected to battery or extreme cruelty during the marriage; and
- is a person of good moral character.
Basic Requirements for a Child Self-Petitioner
- Is or was a child of USC or LPR parent; – Is a person of good moral character;
- Resides or has resided in the past with USC or LPR parent;
- The Petitioner is or was subjected to battery or extreme cruelty by the USC or LPR parent.
What are the Additional Requirements to file a Self-petition under VAWA?
- If the marriage was terminated by the abusive spouse or death within two years prior to filing of VAWA.
- 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 that is “connected” to the domestic violence.
- If the USC/LPR abuser was a bigamist, the VAWA petitioner can still apply as long as the marriage was entered into good faith.
An Approved VAWA Self-Petition Will Not Be Revoked On the Following Grounds:
- Remarriage of the VAWA self-petitioner after revocation of the approved self-petition is not a ground for revocation of an approved VAWA self-petition.
- Marriage of the VAWA self-petitioning child of a USC after the approval of the self-petition is not a ground for revocation of the approved self-petition.
- Changes to the abuser’s immigration status after filing a self-petition do not adversely affect the approval.
- Where self-petition approved, change in abuser’s status does not preclude classification as immediate relative or affect person’s ability to adjust status.
Certain Issues Involving Adjustment of status:
INA Section 245(a)&(c)
Certain battered spouses and children may apply for adjustment of status even if not inspected or admitted or paroled, or subject to a bar in 245(c).
Derivative Beneficiaries of VAWA Petitioner
Children of self-petitioning children get beneficiary status (both those with immediate relative as well as preference immigrant status).
Any pending or approved VAWA self-petitions will be reclassified upon the acquisition of citizenship by the LPR spouse or parent, even if the acquisition occurs after the divorce or termination of parental rights.
What Waivers are Availabe Under VAWA?
VAWA expanded the following existing waivers of grounds of inadmissibility:
Waiver of Unlawful Presence under INA Section 212(a)(9)(C)(ii)
- A discretionary waiver was added for the "permanent bar" based on accrual of 1 year unlawful presence followed by a departure and an attempted or successful illegal re-entry.
- The waiver provision requires a “connection” between the domestic violence suffered and the alien’s removal, departure, re-entry or attempted re-entry.
Waiver of Fraud or Misrepresentation
- Includes battered immigrants within the scope of a 212(i) waiver of inadmissibility based on misrepresentation; is discretionary
- Alien must demonstrate that failure to grant the waiver would result in extreme hardship to the petitioner’s USC, LPR or qualified alien parent or child rather than abusive spouse or parent.
Waiver of Health-Related Inadmissibility Under INA Section 212(g)(1)
It allows battered immigrants who otherwise provisions to file for a waiver of inadmissibility based on a communicable disease of public health significance (including HIV or TB). This waiver is discretionary.
Waiver of Criminal Charges under INA Section 212(h)
VAWA provides discretionary waiver to certain crimes including crimes of moral turpitude and multiple offenses, and offenses that are more than 15 years old. Battered immigrants do not need to show extreme hardship.