Many men and women come to the United States in search of a better life but unfortunately find themselves in abusive relationships. The alien spouse and child in such a relationship are especially vulnerable because they lack lawful immigration status or work authorization.
If no I-130 petition was filed by the U.S. citizen (USC) or lawful permanent resident (LPR) parent or spouse, or a petition was filed but it was withdrawn, most of the time the alien spouse and child were left in legal limbo. Sometimes, the abusive spouse or parent would refuse to attend the interview which then led to the denial of the application or petition.
The spouse and children were left without status and, in most cases, there was no other way to get it. Some of them chose to just endure the physical, verbal or sexual abuse rather than leave the home or get help and, in the process, risk deportation.
Congress passed the Violence Against Women Act of 1994 and subsequent legislation to allow abused spouses and children to seek safety and independence. The last congressional extension expired September 30, 2011 but the Senate recently passed a bill to reauthorize the program. Money disbursed before last year’s expiration has been used for the current fiscal year.
VAWA enables the alien spouse and children subjected to abuse or extreme cruelty by a USC and LPR spouse or parent to file a petition on their own behalf, or to “self-petition”.
In a self-petition, the spouse or child becomes both the petitioner and the beneficiary. The spouse may be a current or former spouse. Unmarried children under 21 may self-petition if they were abused by a USC or LPR parent, but they may also be included in the parent’s petition as a derivative beneficiary.
Abuse includes physical abuse (violence or threats of violence) and sexual abuse (sexual assault or rape). Intimidation, verbal abuse, isolation, coercion, extreme jealousy and threats of deportation are forms of extreme cruelty.
The self-petitioner must prove that there was a valid marriage. The marriage must have been entered into in good faith, meaning that the spouses intended to live a life together and not just for immigration purposes.
Good moral character of the alien is also required to be established. Certain types of conduct that would otherwise bar a finding of good moral character are waivable if sufficiently connected to the abuse or extreme cruelty.
For instance, the abused spouse may obtain a waiver for her having engaged in prostitution in the past 10 years if that was part of the abuse or exploitation that she suffered in the hands of her abusive husband.
The alien must have lived with the abusive spouse in the U.S. or abroad, but the alien must be currently residing in the United at the time of the self-petition. If the alien is filing from abroad, the abuse must have occurred in the United States or the USC or LPR spouse must be a U.S. government employee or a member of the armed forces.
The VAWA self-petition may be filed despite remarriage of the alien spouse or death of the abuser. Even a bigamous marriage is no longer a bar to VAWA relief; in such case, the alien spouse is an “intending spouse” if the USC or LPR spouse did not terminate a prior marriage and the alien spouse was unaware of this at the time of marriage.
If the petition is approved and the abuser is a USC, the beneficiary spouse or child becomes immediately eligible for permanent residence. On the other hand if the abuser is an LPR, the beneficiary is placed in a preference list and granted deferred action which makes him/her eligible for work authorization until the priority date is reached.