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Do I Qualify for VAWA?

Do I Qualify for VAWA?

The Violence Against Women Act was passed by Congress to protect victims of domestic violence. Within the realm of immigration law, it allows a victim of domestic violence at the hands of a permanent resident or U.S. citizen to self-petition for a green card. This allows them to seek safety and independence from their abuser. Despite the name, the law actually applies to and protects people regardless of gender.

The eligibility requirements differ depending on your relationship to the abusing resident or U.S. citizen.

Eligibility Requirements for a Spouse

First, you must have a qualifying spousal relationship. This requires:

  • You are married to a U.S. citizen or permanent resident abuser or
  • your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition, or
  • your spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing your petition due to an incident of domestic violence, or
  • you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.

Second, you must have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse:

  • You have been abused by your U.S. citizen or permanent resident spouse, or
  • your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse.

Third, you must have entered the marriage in good faith, not solely for immigration benefits.

Fourth, you must have resided with your spouse.

Finally, you must show you are a person of good moral character.

Eligibility Requirements for a Child

First, you must have a qualifying parent/child relationship. This is established if:

    • You are the child of a U.S. citizen or permanent resident abuser, or
    • you are the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence.

Second, you must have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.

Third, you must have resided with your abusive parent.

Finally, you must show you are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.

Eligibility Requirements for a Parent

First, you must have a qualifying parent/son or daughter relationship:

    • You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed, or
    • you are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence, or
    • you are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition.

Second, you must have suffered battery or extreme cruelty by your U.S. citizen son or daughter.

Third, you must have resided with the abusive son or daughter.

Finally, you must show you are a person of good moral character.

If you meet the eligibility requirements above, you can petition yourself for a green card by filing Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. Since this form is meant for several types of applications, make sure you only fill out the parts pertaining to a VAWA self-petitioner.

What Evidence Do I Need to Win My VAWA Case?

It is a common misconception that you must have a lot of evidence to successfully petition yourself under VAWA. The intent of the law is to protect victims of abuse and recognizes that there is often not a lot of evidence available. The list of potential evidence that we have below is long, but do not confuse that for meaning that you need to have all of it. You do need to have evidence of every element for eligibility, but the list below is just several examples of what can help you meet the standard you need to meet. It is advisable to consult with an experienced immigration attorney to help you assess the strength of your case and evidence available.

Proof of Relationship to Abuser

In order to prove the existence of a legal marriage to their abuser, the following documents are necessary:

  • Marriage certificates (for the self-petitioner and the abuser)
  • Death certificates for any previous marriages (of either spouse) that ended because of death
  • Divorce certificates for any previous marriages (of either spouse) that ended in divorce

In order to prove the existence of a child or parent relationship, you can provide:

  • Your birth certificate showing that the U.S. citizen or permanent resident is your parent
  • Marriage certificate to show your parent is married to the U.S. citizen or permanent resident
  • Birth certificate of the child to show your parental relationship to the U.S. citizen or permanent resident

Proof of Immigration Status of Spouse

VAWA self-petitioners are required to prove that their spouses, parents, or children are legal permanent residents of the United States or U.S. citizens.

Each of the following ideas is described in detail in the following pages. If the abuser is a U.S. CITIZEN, copies of the following documents can be submitted with the petition. It is not necessary to obtain each of these documents. Any one of the following documents should be sufficient.

  • Abuser's birth certificate
  • Abuser's U.S. passport
  • Abuser's Certificate of Naturalization
  • Approval notice for I-130 petition filed by abuser

If the self-petitioner's abuser is a LEGAL PERMANENT RESIDENT, copies of the following documents can be submitted in the petition. Again, it is not necessary to obtain each of these documents. Any one of the following documents should be sufficient.

  • Alien Registration Card (Green Card)
  • Approval notice for I-130 petition filed by abuser
  • Any USCIS document or letter with the abuser's A number

If you are unable to obtain proof of status, declarations from people who have knowledge of the husband's status can be submitted instead.

Proof of Residence with the Abuser

Self-petitioners are required to show that they currently live or that they did live with the abuser. VAWA does not specify how long the self-petitioner and his or her abuser had to live together or how much time might have passed since they lived together. If the self-petitioner and his or her abuser lived together for only a short time, though, he or she should explain that in their declaration.

The following documents serve as documentation for joint residence:

  • Lease or rental agreements
  • Utility or other bills
  • Children's school records
  • Letters to both spouses, or to each spouse if the letters show the same address at the same time.
  • Other documents listing self-petitioner and abuser at same address at the same time, such as medical records.
  • Declarations from landlords, neighbors, and friends

Proof of Good Faith Marriage

If the abuser is the spouse or former spouse, you must show evidence of a good faith-marriage, meaning that you did not enter the marriage for the sake of immigration benefits. Gathering evidence to demonstrate good faith marriage is usually not too difficult. The idea is to show that the couple intended to make a life together as husband and wife and not to cheat immigration law. If the marriage was short, the USCIS might be more suspicious and the self-petitioner should explain why the marriage was short in their declaration and try to provide more evidence of their good faith intention to marry. Any of the following documents demonstrate good faith marriage:

  • Birth certificates of children
  • Photographs
  • Notes, cards, email and letters between self-petitioner and abuser
  • Joint property interests
  • Declarations from friends and family

Proof of Abuse

Self-petitioners are required to show that they were subjected by the abuser to "battery or extreme cruelty," a term that includes a wide range of physical, mental, and emotional abuse and cruelty. The following documents are examples of proof:

  • Restraining, stay away, or exclusion orders, plus accompanying documents
  • Police reports
  • Statements, notes, or declarations from a police officer with knowledge of the situation
  • 911 transcripts
  • Criminal court records if abuser was arrested or convicted
  • Medical records, even if self-petitioner didn't say true reason for injuries
  • Domestic violence shelter records
  • Counseling/mental health records
  • Photographs of injuries or damaged property
  • Letters or notes from the abuser
  • School records containing comments by child about abuse
  • Declarations:
    • From self-petitioner telling his or her own story
    • From person who saw abuse or was told about it by selfpetitioner
    • From staff or volunteer at domestic violence shelter From mental health worker/counselor
  • Evidence of abuser's history of drug or alcohol abuse or mental illness

Proof of Good Moral Character

Self-petitioners are required to demonstrate that they are persons of good moral character. This generally means that the self-petitioner follows the law. It can also refer to his or her positive contributions to their family and community.

In terms of documents to show good moral character, the self-petitioner should include the following documents, which are described in the next pages:

  • Local police clearance letters from each place the self-petitioner has lived for at least six months in the last three years
  • A state criminal record check if the local police clearance letters are unavailable, along with a statement explaining why the self-petitioner was unable to obtain the local police clearance letter
  • Declarations from people who can vouch for the self-petitioner's good moral character (especially if the police clearance letter is unavailable or there are problems regarding good moral character)

Conclusion

VAWA allows victims of abuse to seek protection and independence. A self-petitioner through VAWA can get a green card that will allow them to work and live in the United States without having to rely on their abusive family member. This is a very important process that requires the disclosure of sensitive information that can be difficult to discuss. Although the process is designed to be more lenient in proof than other applications, it can still be important for applicants to seek the assistance of experienced and sympathetic immigration attorneys that can help you prepare your case.

If you need further guidance or have specific questions about your own case, you can chedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.

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