In recognition of the severity of the crimes associated with domestic violence, sexual assault, and stalking, Congress passed the Violence Against Women Act (VAWA) of 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994. The 1994 bill was a historic decision, marking the first comprehensive federal legislative package designed to end violence against women. VAWA included provisions on rape and battering that focused on prevention, funding for victim services, and other matters. It also included the first federal criminal law against battering and a requirement that every state afford full faith and credit to orders of protection issued anywhere in the United States. VAWA also created a special route to obtain lawful immigration status for victims of domestic abuse who normally must rely on their abusers to obtain legal status. VAWA allows an abused spouse or child of a U.S. Citizen or Lawful Permanent Resident or an abused parent of a U.S. Citizen to self-petition for lawful status in the United States, receive employment authorization, and access public benefits. VAWA provides domestic violence survivors with the means that are essential to escaping violence and establishing safe, independent lives. The rest of this article will review what you need to know about self-petitioning under VAWA within the immigration system.
Prior to the passage of VAWA, an abusive petitioner could use his or her control of the immigration process to perpetuate or exacerbate domestic abuse. S/he could, for example, threaten to report the victim to the immigration service or could withhold the opportunity to obtain lawful status thereby exercising further control over the noncitizen. Fear of losing sponsorship or being deported could coerce abuse victims to continue living in an environment causing physical and/or psychological harm.
Self-petitioning for VAWA allows victims of abuse who are close relatives of US Citizens (USCs) and Lawful Permanent Residents (LPRs) to file for status on their own. Under normal circumstances, applicants are eligible for immigration status when the USC or LPR relative files a petition with the United States Citizenship and Immigration Service (USCIS) on their behalf to obtain legal status. The petitioning relative “owns” the petition application and controls much of the process until the applicant becomes a Lawful Permanent Resident. VAWA created an exception to this rule by allowing victims in abusive situations to apply for legal status directly themselves without the participation or control of the abuser through a VAWA self-petition. Even though the law has the word “women” in the title, a person of any gender can file a VAWA self-petition if they can meet the qualifications required.
Like every immigration process, self-petitioning for VAWA requires the filing of an application and submission of supporting documents. Also like all family-based petitions with immigration, VAWA self-petitioning is for close family members of US citizens or lawful permanent residents only, so the applicant must prove the relationship with the abuser was bona fide. Even if the applicant is now divorced to his or her abuser, s/he may still qualify if the marriage was terminated withing two years prior to the date of filing. An applicant also must show s/he has good moral character and suffered “battery or extreme cruelty,” which is how Congress described domestic abuse in the VAWA statute. When an applicant files a VAWA self-petition, s/he may be able to include some close relatives as “derivatives.” For example, if the abuser is a spouse, an applicant may be able to include his or her children who are under 21 and unmarried at the time of filing the petition. Due to the complexity of a residency application through VAWA or any immigration process, it is strongly encouraged applicants work with an immigration lawyer with experience in VAWA to assist in seeking status.
If someone is a victim of domestic violence, but does not qualify for a VAWA self-petition, other options may include a U Visa for victims of a crime or a T Visa for victims of sex trafficking. U Visa benefits victims of felonies who are willing to assist in a criminal investigation in the U.S. The U visa is not limited to domestic violence offenses committed by residents or citizen spouses. The T Visa is available to immigrants who were victims of felonies. Generally, the person must have endured conditions of forced labor or been a minor immigrant forced into prostitution or other depraved sexual exploitation activity. The best way to determine eligibility is to discuss the applicant’s personal situation with an immigration attorney with experience in these types of processes.
Approval of a VAWA Self-Petition does not automatically grant Lawful Permanent Resident Status, but it opens the door for a residency application based on the self-petition. Moreover, filing the self-petition, by itself, will not allow an applicant to work legally, but once USCIS approves a VAWA self-petition, they will also grant a legal work permit, which is known as an Employment Authorization Document (EAD). An approved VAWA self-petition also makes applicants eligible for certain public benefits.