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VAWA – How to Build A Strong Case

VAWA – How to Build A Strong Case

The federal Violence Against Women Act (VAWA), passed in 1994, is intended to protect victims of abuse who are not citizens. Despite the name of the legislation, anyone can be eligible for the benefits of VAWA regardless of gender or sex. Pursuant to that goal of protecting victims of abuse, battery, or extreme cruelty regardless of gender or sex, can get a green card if the abuse was at the hands of:

  • A United States Citizen spouse, former spouse, parent, or child.
  • A Lawful Permanent Resident (LPR) spouse, former spouse, or parent

Eligibility is divided into three classes: (1) Spouse, (2) Parent, and (3) Child.

  1. Spouse

Under spousal eligibility, you can file for yourself if you or your child(ren) were abused by your US Citizen or LPR spouse. If you are applying under this form of eligibility, you have the option to include any unmarried children under the age of 21 if they have not already filed separately for themselves.

  1. Parent

Under parent eligibility, you may file if your child is a U.S. citizen and they have abused you.

  1. Child

Under child eligibility, you can file for yourself if you are under 21, unmarried, and were abused by a U.S. citizen or LPR parent. If you have children of your own, they can be included in this petition.

Note: You can file for yourself after 21, but before 25, if you can show that the abuse you faced was the main reason for the delay in filing.

How to Apply

To begin the process, you must complete and file the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Forms filed benefits under VAWA must be filed at the Vermont Service Center.

Once your I-360 is approved, you must file a Form I-485, Application to Register Permanent Residence or Adjust Status. If the abuse was at the hands of a U.S. Citizen, you can actually file concurrently (at the same time) as the Form I-360, while Form I-360 is pending, or after it is approved.

If the abuse was at the hands of an LPR, you must check to see if a visa is immediately available by checking the Visa Bulletin. If the visa is immediately available, you have the same options to file the Form I-485 concurrently or while pending. If not, you can file the Form I-360 and will be able to file the Form I-485 once a visa is available and the I-360 is approved.

A benefit of getting an approved I-360 is that you can then apply for employment authorization by filing a Form I-765, Application for Employment Authorization, which must also be filed at the Vermont Service Center.

What Evidence Must You Provide?

USCIS provides a checklist of the evidence you must provide when filing an I-360 as a VAWA petitioner. As a summary, you will need:

  • Evidence of the abuser’s legal status (whether citizens or LPRs)
  • Marriage/divorce decrees[1], birth certificates, or other evidence of the legal relationship between you and the abuser
  • Documents showing that you lived together
  • Any evidence you may have of the abuse (although a police report CAN be used as evidence, it is NOT required)
  • If you are above the age of 14, you must provide an affidavit of good moral character, along with a criminal background check.
  • If the eligibility is based on a spousal relationship, you must show that the marriage was entered into in good faith

Of the above, it is usually the evidence of abuse that people struggle with. It is a misconception that you MUST have a police report. An immigration attorney experienced in VAWA cases can put together a strong case without the need for a police report. Below is a list of things that qualify as evidence which you can provide:

  • Police report: If you have ever called the police on your abuser or any other report against him/her for violence in the home, this will be useful. Again, this is not a mandatory piece of evidence.
  • Court orders: If you got a court order against your abuser, this will also provide excellent evidence.
  • Hospital Records: If you went to the hospital for treatment of injuries resulting from abuse, you can request records of your visit and the notes taken by staff that saw you that day. This can be useful even if you didn’t mention to the hospital staff that the injuries were a result of abuse.
  • Medical report about long-term injuries: If you have any long-term injuries caused by the abuse, you can go to a doctor and have them examine the injury. The resulting report can be used as evidence of the abuse as well.
  • Psychiatrist or therapist reports or declarations: If you spoke to a psychiatrist or therapist about any harm you suffered as a result of the abuse, you can use any resulting records as evidence. If there are no records, you can ask the psychiatrist or therapist to write a declaration summarizing what you told them and any symptoms they may diagnose.
  • Pictures: If you have any pictures showing injuries, bruises, or other markings of the abuse, you can provide these along with an explanation of what led to those injuries and when the photo was taken.
  • Emails, notes, phone records, etc.: This includes any evidence you may have of the abuser directly threatening you, trying to control you, or even admitting to past behavior in the form of an apology. This can be literally anything as long as you can verify that the identity of the sender and that it was sent to you.
  • Declarations from anyone that you spoke with about the abuse or that saw it themselves: Whether it is a friend, a family member, a neighbor, a coworker, a pastor, or even a mere acquaintance – anyone that you have spoken to about the abuse you have suffered can write up a declaration explaining what they know about the abuse and the effects it has had on you.
  • Your own declaration: No one knows about the pain you have suffered more than you do. You should tell the whole story in your own words through a declaration. This will paint the biggest picture of what you have gone through and is an important part of any application for VAWA relief.

This is not an exhaustive list of evidence you can provide of the abuse. The point is that the evidence can take many different forms. If you are struggling to put together evidence of the abuse, working with an experienced VAWA attorney will help you put together the best case possible and give you the best chance at receiving the benefits you need and deserve.

Potential Benefits While Your Application is Pending

While your I-360 is pending, you may receive what is called a “Prima Facie Approval” letter, where USCIS determines that your case can be approved if everything you stated is true. Although it does not mean you are guaranteed ultimate approval, it does mean you may now be eligible for certain government benefits. You must first demonstrate that you no longer live with the abuser and that your need for the benefits is connected to the abuse. The benefits you may now be eligible to receive includes:

  • Title IV Federal Student Financial Aid
  • Supplemental Nutrition Assistance Program (food stamps)
  • Medicare/Medicaid
  • Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
  • Section 8 Housing Assistance

You can receive these benefits without worrying about how it affects your future eligibility for immigration benefits because the recent public charge rule does not apply to individuals applying under the Violence Against Women Act.

How We Can Help

Filing for protection under VAWA can be difficult and emotionally taxing. We understand that you have been through a lot to get to this point and our experienced immigration attorneys will work with you, with compassion, to help you apply with the best chances at getting the protection you need.

To schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.

 

[1] Note: If you are divorced from the abuser, you must file your petition within 2 years of the divorce.

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