When the Violence Against Women Act (VAWA) was passed in 1994, the bill included a provision to allow battered spouses, children, and parents of US citizens or permanent residents to petition for a visa or green card without the abuser’s knowledge. The goal was to provide victims of domestic abuse greater independence and safety on the path towards permanent residency. Since its inception, thousands of men, women, and children have been able to receive a green card and escape abusive domestic situations.
Unfortunately, USCIS is currently facing a significant backlog on many immigration applications. For VAWA petitions, the average processing time is currently 16 – 21 months (you can check the agency’s up-to-date estimates here). USCIS recently increased application fees to raise funding and hire more agents, but it will take time for those efforts to have a significant effect on processing times. For now, it’s safe to assume that processing times will continue hover around 18 months.
As with most immigration petitions, it’s generally advisable to work with an immigration attorney before submitting your VAWA petition to USCIS. The agency evaluates petitions on a first come, first served basis, and there aren’t any options to expedite a petition, so it’s critical that your VAWA petition is perfect at the time of submission. You may not get a second chance for another 18+ months, and an experienced immigration attorney can make sure your petition has everything it needs to quickly pass review as soon as it reaches an agent’s desk.[/vc_column_text]
Eligibility Requirements for Spouses
Under US immigration law, current and former spouses of a US citizen or permanent resident can file a VAWA petition on their own behalf, and on behalf of any unmarried children who are younger than 21. In order to be considered a qualifying spousal relationship, one of the following conditions must apply:
- The petitioner is currently married to an abusive US citizen or permanent resident
- The petitioner’s marriage to the abusive US citizen or permanent resident ended in death or divorce within the past two years (note that if the marriage ended in divorce, the alleged abuse must be listed as a cause in the divorce petition or decree)
- The petitioner believed in good faith that they were married to the abusive US citizen or permanent resident, but the marriage was actually illegitimate due to the abusive spouse’s bigamy
Note that in cases where the abusive spouse lost or renounced their US citizenship or green card due to a domestic violence charge or conviction, the abused spouse may still qualify. He or she would just need to submit their VAWA petition within two years of the abusive spouse’s repatriation.
Assuming you have a qualifying spousal relationship, USCIS imposes four additional criteria to be considered eligible for a VAWA petition:
- You did not enter into the qualifying spousal relationship solely for immigration benefits (i.e. you married for love, not for a green card)
- You resided with your spouse
- You have evidence that you or your child suffered extreme cruelty or battery (pictures, police report, witness statements, etc.)
- You possess good moral character (as evidenced by a clean criminal record)
Eligibility Requirements for Children
While most minor children are included on their parent’s VAWA petition, there are cases where a child may need to file their own VAWA petition. To qualify, the child generally must be younger than 21 and unmarried, though USCIS may make exceptions for individuals up to age 25 who can prove that the alleged abuse prohibited them from filing a VAWA petition sooner. Additionally, the child will need to meet the following eligibility requirements:
- The child’s parent is a US citizen, permanent resident, or they were repatriated due to a domestic violence charge, case, or conviction
- The child has suffered extreme cruelty or battery by the qualifying parent
- The child has resided with the abusive parent
- The child possesses good moral character
Children who are 13 or younger are naturally presumed to possess good moral character. Children who are 14 – 20 should generally have a clean criminal record in order to qualify, though immigration officials have the discretion to be a little more forgiving of a child petitioner with a criminal record providing the petition offers a reasonable justification for minor offenses.
Note that a child’s VAWA petition cannot include siblings (the other children would need to file their own petition or be included on a parent’s petition), but it may include offspring. As long as the child petitioner isn’t married, he or she can include their own children in the petition.
Eligibility Requirements for Parents
The eligibility requirements for parents of an abusive son or daughter are largely the same as the eligibility requirements for children of an abuser. In both cases, the petitioner must have suffered extreme cruelty or battery, resided with the abuser, and demonstrate good moral character. The primary difference for parents lies in the definition of a qualifying parent/son or parent/daughter relationship:
- The abusive son or daughter is currently a US citizen or permanent resident age 21 or older
- The abusive son or daughter was 21 or older when they died, and the death was no more than two years ago
- The abusive son or daughter lost or renounced their citizenship due to a charge, case, or conviction of domestic violence
How to Submit a VAWA Petition
Eligible spouses, children, and parents can submit a VAWA petition in 3 simple steps:
- Complete Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant
- Gather supporting documentation (e.g. pictures of abuse, police reports, marriage certificate, death certificate, criminal record, etc.)
- File the VAWA petition with the Vermont Service Center
Generally speaking, VAWA petitions are submitted by individuals who are already living in the United States. In cases where the petitioner is living abroad, USCIS will accept the petition as long as the abuser is employed by the US government or a member of US armed forces. In some cases, the agency may consider petitions from foreign nationals outside the US if the alleged domestic abuse took place while visiting the United States.
Prima Facie Determination Notice
Although it may take 16 – 21 months to fully process a VAWA petition, USCIS will issue a Prima Facie Determination Notice to qualified petitioners who meet all filing requirements. This notice is valid for 150 days and can be presented to government agencies that provide public benefits to qualifying victims of domestic violence.
Call our Immigration team at(480) 626-2388 to discuss your case today.
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