The Violent Crime Control and Law Enforcement Act of 1994, commonly known as the Violence Against Women Act (VAWA), established a system allowing spouses of US citizens and permanent residents who are domestic abuse victims to self-petition for a green card without the spouse’s sponsorship.
Despite the popular name of the law, VAWA self-petitions are available to both men and women who are victims of domestic abuse. VAWA petitions are also available in the case of children abused by a US citizen or permanent resident parent. In the case of an affected child, the child may self-petition, or their parent (the spouse) may self-petition based on the abuse of the child and include the child in the petition.
Qualifying Abuse
The petitioner must show that they were battered or subject to extreme cruelty by the spouse or intended spouse. The abuse may be physical, sexual, psychological, or emotional in nature, but it must meet the standard of either “battered” or “extreme cruelty.” To qualify as the latter, non-physical abuse must have affected the petitioner’s quality of life or ability to function, such as a threat of force that instills fear in the petitioner. Ordinary marital tension or incompatibility is not enough.
Good Faith Marriage and Cohabitation
The marriage must have been a good faith marriage to a US citizen or permanent resident. A marriage that is invalid due to bigamy (the spouse already being married to someone else) also qualifies, but a sham marriage that was only entered into for immigration purposes will not qualify. For more details on how USCIS detects sham marriages, see: Red Flags for “Marriage Fraud” in the US.
In addition to the good faith requirement, the parties must have lived together at some point in time, and the cohabitation must have either been in the United States, or while the US citizen or permanent resident spouse was working outside the United States for the US government or military. A VAWA petition can be filed either before or after the parties’ separation.
Good Moral Character
VAWA self-petitioners must show that they are of good moral character. While this term is loosely defined in the law, any history of criminal convictions, tax evasion, adultery, substance abuse, or false testimony to gain immigration benefits may affect the petitioner’s good moral character. However, certain negative history may be excused if it relates to the circumstances of the abuse (for example, if the petitioner was forced into prostitution by their abuser, or was forced to shoplift in order to survive).
Time Limits
A VAWA petition must be filed within two years of the spouse’s death, the parties’ divorce, or the spouse losing US citizenship or permanent residency. However, if the parties divorce for grounds unrelated to the abuse, the VAWA petition cannot be filed after the divorce is effective.
The Employment Authorization and Green Card Process
Most VAWA self-petitioners request adjustment of status to obtain a green card while they remain in the United States, especially if they lack any other legal status in the US. However, consular processing through an overseas embassy or consulate can be a preferable option for petitioners who have another legal status. For more on the pros and cons of these procedures, see: “Consular Processing” vs. “Adjustment of Status”.
Priority for a VAWA green card is based upon the status of the spouse. A spouse of a US citizen is eligible to adjust status or apply for a visa immediately, while a spouse of a permanent resident must wait until their visa date becomes current in the “F2” category, which may take longer depending on the timing of the application and backlog at USCIS.
VAWA self-petitioners are usually granted “deferred action” by USCIS, which allows them to apply for an Employment Authorization Document (EAD) to work in the United States while they await a green card. This takes several months to process. Unlike family and employment-based green card applicants, VAWA petitioners in the US usually cannot obtain advance parole to travel outside the US while waiting for their adjustment of status.
VAWA for Undocumented Individuals and Overstayers
The main purpose of VAWA is to provide a path to legal residency for domestic violence victims who cannot obtain green card sponsorship from their spouse. VAWA is therefore available to petitioners who lack legal status in the US, including visa and ESTA overstayers. However, since advance parole is generally not available for VAWA petitioners, they must stay in the United States while their application is being processed, or else risk being subject to a bar on re-entry. For more on the legal implications of overstaying, see: Overcoming an Overstay in the US.