Undocumented Immigrant Victim of Domestic Violence


Find out how VAWA can help you get a green cardWhat is VAWA and How Can It Help Undocumented Immigrants Get Legal Status?

One of the most difficult challenges one can face is living in a country with no valid immigration status.  Even under the most ideal of circumstances, merely living and working in the United States as an unauthorized immigrant requires navigating obstacles that others might not know exist.  For those who also are victims of domestic violence and abuse, the challenges can seem insurmountable.

The Violence Against Women Act commonly referred to as VAWA, is a federal law passed in 1994 that provides vast protections and benefits to victims of domestic violence.  One such benefit is available to unauthorized immigrants who have suffered domestic abuse.  That is, upon approval by the federal government, unauthorized immigrant victims of domestic violence are awarded legal permanent residency and receive a green card.

Self-Petition Process

Generally, those wishing to become legal permanent residents in the U.S. must have a sponsor to file a petition on their behalf.  This is done through a family-based process where a U.S. citizen spouse, parent, or child files on behalf of the immigrant or through an employment-based sponsorship process.

The VAWA process is different.  When domestic abuse is involved, U.S. immigration law removes the abuser from the sponsorship process.  In doing so, it allows victims of domestic violence to self-petition.  That is, these immigrants may file their own immigrant petition without any sponsorship at all.

A VAWA petition is filed using form I-360, not the usual I-130/I-140 forms filed by relative/employer petitioners.  Further, some of the evidence provided with the VAWA filing will differ from the items submitted in support of the traditional immigrant visa petitions.  That is discussed in greater detail below.

Qualifying Relative Requirement

As mentioned, VAWA allows abused spouses, certain parents, and certain children to obtain a green card without the cooperation or assistance of the abuser.  Not every victim of domestic abuse qualifies, however.  That is, the abuser must be a U.S. citizen or a legal permanent resident.

You may qualify for a green card under VAWA if you are an unauthorized immigrant and you meet one of the following criteria:

  • Your U.S. citizen or legal permanent resident spouse abused you or your minor child;
  • Your parent is a U.S. citizen or legal permanent resident and abused you AND you are under 21 years old; or
  • Your adult child is a U.S. citizen or legal permanent resident and abused you.

Further, if you are applying as an abused spouse or spouse whose child was abused (the first criteria above), you must meet the following:

  • You are or were married to the U.S. citizen or legal permanent resident abuser and lived together at some point;
  • If you are divorced from the U.S. citizen or legal permanent resident abuser, you must show a connection between the abuse and the divorce and the marriage couldn’t have ended more than two years prior to your petition; and
  • Your marriage was entered into in good faith (i.e., not for immigration purposes).

Please note that the VAWA law is gender-neutral.  Both women and men may petition for legal permanent residency as victims of domestic abuse.

To summarize, if your abuser was not a U.S. citizen or legal permanent resident, you are not eligible to file a VAWA petition.  Similarly, if you were not married to your abuser and/or did not live with him or her, you may not file a VAWA petition.  Finally, if your marriage was entered into to gain immigration benefits or if you otherwise cannot prove that your marriage was based on good faith, you are not eligible for permanent residency under VAWA.  In these situations, you may be eligible for a U visa as a victim of a crime. Please read our articles about that visa category.

Also, be sure to discuss your legal options with an experienced immigration attorney prior to filing any petition or application for immigration benefits.

Documenting VAWA Eligibility

As noted above, documenting VAWA eligibility is considerably different than a typical family- or employment-based petition.  When filing a VAWA petition, you should include the following supporting documentation:

Relationship to the Abuser:

You must show that you were married to the abuser.  Provide your marriage certificate.  Also, if you were previously married, you must provide evidence that those marriages have ended.  Death certificates and divorce decrees for previous spouses are sufficient.  Provide any translations that are necessary.

Legal Status of the Abuser:

You must show that the abuser is a U.S. citizen or legal permanent resident.  For this, a copy of a U.S. birth certificate, U.S. passport, certificate of naturalization, or green card will work.  If the abuser is a legal permanent resident or has been through the U.S. immigration process, providing his or her alien registration number might be sufficient.  If none of these items are available, a declaration from someone familiar with the abuser’s status might work.

Proof of Residence with Abuser:

To show that you lived with the abuser, provide lease agreements, mortgage documents, utility bills, children’s school records, declarations from acquaintances, etc.

Good Faith Marriage:

To show that your marriage was entered into in good faith, provide birth certificates for children, family photographs, joint banking information, statements from family and friends, notes between the abuser and the petitioner, etc.

Abuse:

To document the abuse suffered, you should provide restraining orders, photographs of abuse, police reports, statements from witnesses, medical records, 9-11 transcripts, counseling records, shelter records, letters/notes/voicemails from the abuser, etc.

Good Moral Character:

As a VAWA petitioner, you must provide proof that you are a person of good moral character.  This should include criminal records, documents of community involvement, church records, statements from family and friends, proof of rehabilitation if you have had issues with drugs or alcohol, etc.

Remember:

As a VAWA petitioner, your safety should be your highest concern.  If possible, when gathering items for your VAWA petition, use the mailing address of an attorney or victim’s advocate.  If your home is not a safe space, do not have documents, correspondence, or other items sent there.

Again, for victims of domestic violence who are also struggling with being undocumented immigrants, the world can seem grim.  If you are one of the thousands of battered spouses caught in this situation, please know that help is available.  Things can get better.  An experienced New Jersey immigration lawyer is available at Andres Mejer Law to help you navigate these difficult matters.

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