Protections under the Violence Against Women Act (VAWA)

Basic Eligibility Requirements and Related Strategies Protections under the Violence Against Women Act (VAWA)

Immigrant options for DV Victims Three options under the Violence Against Women Act: Violence Against Women Act (VAWA) self-petition DV Waiver for I-751 VAWA Cancellation of Removal

VAWASelf-petition • The VAWA allows Spouses and Children (including step-children)of United States Citizens & Lawful Permanent Residents and parents of United States Citizensto self-petition for permanent residency • INA 204(a)(1)(A)(iii) & (iv) • 8 CFR 204.2(c) (and scattered)& police memos

VAWA Self-Petition Self-petitioner can apply for derivatives Eligible self-petitioners can file concurrently to adjust their status or file a self-petition on its own No work authorization filed with I-360 unless filing I-485 (adjustment of status) at the same time

VAWA Self-Petition Basic Eligibility: • Victim of battery or subjected to emotional cruelty by USC or LPR relative • Relationship/Marriage was bona fide and legal • Resided with abuser • Victim is a person of good moral character (see 101(f) and 204(a)(1)(C))

VAWA Self-Petition Must have a legally valid marriage Exception for “intended spouses”: Alien who, but for the bigamy of LPR/USC spouse, would have been in a legal marriage and believed him or herself to be in a legal marriage.

VAWA Self-petition Must have a bona fide marriage: Not entered into for the primary purpose of evading immigration laws Intent at time of marriage was to begin a life together.

VAWA Self-Petition Victim can still be married and living with abuser BUT Must apply within two years: • Of date marriage ended from divorce or death • Must show relationship between legal termination of marriage and abuse OR • Of date abuser lost LPR status or renounced citizenship due to an incident of domestic violence

VAWASelf-Petition Change in marital status (i.e. divorce) or abuser’s immigration status (i.e. deportation) after filing self-petition will not affect petition However, a remarriage before approval ends eligibility for self-petition (will be denied)

VAWA Self-petition Battery or extreme cruelty must have occurred during the marriage Includes (204.2(c)(1)(vi)): Being victim of any act or threatened act of violence, including forceful detention, which results or threatens to result in physical or mental injury

VAWA Self-Petition Abuse also includes: • Psychological or sexual abuse or exploitation, including rape, molestation, incest (for minor victims), forced prostitution • Also abusive actions that are part of an overall pattern of violence • Threats of violence, isolation, harm to family or children • Verbal/emotional abuse • Threats to call immigration • Control, economically, socially, emotionally

VAWA Self-Petition Self-petitioner must reside in the United States with the abuser and when filing the petition Or, if the victim lives abroad, then the abuser must either be: • an employee of the US government • A member of the uniformed services or • Subjected the alien or alien’s child to battery in the United States

VAWA Self-Petition Filing the petition: • G-28 • I-360 • Affidavit/Statement of Self-Petitioner • Evidence in support of eligibility requirements

VAWA Self-petition Evidence: USCIS will accept any credible evidence to satisfy eligibility requirements.

VAWA Self-Petition Affidavit/Personal Statement: Tip: Have a domestic violence counselor help draft statement, or help draft yourself if you have a good, trusting relationship with victim Make sure affidavit does not contain legalese—use victim’s own words Make statement detailed as possible, discussing all forms of abuse, physical, sexual, emotional (consult power and control wheel) Cross-check with other evidence for inconsistencies My Method: 1st incident of abuse; Worst incident of abuse; fill in with the rest of the abuse

VAWA Self-petition Evidence that abuser is USC or LPR • Birth Certificate or Passport • Certificate of Citizenship or Naturalization • LPR card/Immigration Documents • Other legal documents (marriage certificate, birth certificates of children, court documents) • Identifying information, request USCIS to check records

VAWA Self-petition Evidence that Marriage was legal and bona fide: Legal: Marriage certificate, divorce decrees/death certificates of all prior marriages of either spouse Bona Fide: • Birth certificates of children • Evidence of commingling of income/assets • Mortgage/lease; joint bank accounts; credit cards; tax returns; insurance, etc… • Love letters (e-mails, texts, facebook print-outs); cards to one another • Photographs • Documents listing one another as emergency contacts or on medical/school records • Affidavits of third parties

VAWA Self-Petition Evidence of joint residence: • Mortgage/lease information • Other official documents listing residence together • Mail addressed to either party at the same address • Victim’s statement • Protective Order/Police Records

VAWA Self-petition Evidence to prove that self-petitioner is the victim of battery or extreme cruelty: • Police reports/Court Documents/protective order • Medical records • Therapist/Counseling records • Records from DV shelter • Photos of injuries/property damage • Affidavits from witnesses • Victim’s Statement Note: Cross-check documents for consistency & explain inconsistencies

VAWA Self-Petition Evidence to prove Good Moral Character: • Police Clearance/Good Conduct statements from every jurisdiction where self-petitioner has resided for at least six months over the last three years • FBI Rap Sheet • Client’s Statement

I-485 Application for Adjustment of Status for VAWA • The I-485 Application for Adjustment of Status form (green card application) is filed at the same time as the I-360 only if • the self petitioner is the child of or married (or was married) to a USC, or • the self-petitioner has a current “priority date” from a petition filed previously by the abusive spouse. • Consult I-485 instructions for required documents

I-485 Process, Continued • The I-485 application will be reviewed after the I-360 Self Petition is approved. • The client will be called for an interview before an immigration officer, who will consider whether she is “admissible” and entitled to LPR status. • See inadmissibility waiver information below

Inadmissibility • Principal and derivatives must be “admissible” to receive LPR status through VAWA–see INA 212(a) • It is important to assess applicant admissibility and can be quite complicated • An inadmissible applicant may in some cases be denied a benefit for which s/he is otherwise eligible • Many waivers and exceptions are available/applicable in VAWA context

Common Inadmissibility Issues (INA 212) and Other Complications • One or more illegal entries • Not applied to VAWA self-petitioners for one EWI, BUT • Multiple EWIs or re-entries after prior overstay may trigger additional bars • “Smuggling” family members into the U.S. • Prior use of false documents or fraud for immigration purposes (be careful of previous applications filed by “notarios”) • Alien is in removal proceedings or has prior removal order • Criminal history

Can VAWA self-petitioners get employment authorization? • If the self-petitioner is eligible to and files an I-485 at the same time as her I-360, she is eligible for employment authorization while the I-360 and I-485 are pending. • Category Question 16 on Form I-765: C9 • For everyone else, the I-765 Application for Employment Authorization may be submitted and reviewed after the I-360 Self Petition is approved. • Category Question 16 on Form I-765: C14 (deferred action) or C31 (approved VAWA self-petitioner)

I-765 Process, cont. • The Employment Authorization Document is valid for one year and has to be renewed three months before the expiration date (automatically renews deferred action if category is C14). • Those waiting for current priority dates to adjust must keep renewing EADs during waiting period

DV Waiver of Joint Petition LPR who was granted status less than 24 months after marriage to USC/LPR spouse only has conditional residency After 2 years in conditional residency, couple must file joint petition to remove the condition Must demonstrate bona fide marriage INA 216/8 CFR

DV Waiver of Joint Petition (I-751) What if USC/LPR spouse won’t jointly petition because of Domestic Violence? • VAWA allows DV Waiver to joint petition requirement • As with Self-Petition, Victim must show she is actually a victim, that she married in good faith, and why she couldn’t jointly petition Form G-28, I-751, Affidavit and Evidence

VAWA Cancellation of Removal Eligibility: • Alien battered or subjected to extreme cruelty OR whose child was battered or subjected to extreme cruelty by parent • By USC or LPR spouse or parent or intended spouse INA 240A(b)(2)

VAWA Cancellation of Removal Eligibility • Physically present for at least 3 years • NTA does not toll period of physical presence • Good Moral Character during 3 years • Not committed certain crimes/security violations; or convicted of agg felony

VAWA Cancellation of Removal Eligibility: • Removal would result in extreme hardship to alien, alien’s child, or alien’s parent

VAWA Cancellation of Removal File with Immigration Court (per Immigration Court rules): Form EOIR-42B & Supporting Evidence of eligibility

Confidential Process • The law protects the confidentiality of all VAWA, U and T visa petitions • Immigration may not rely on negative evidence provided by the abuser • Immigration may not disclose the existence or contents of the application • No requirement that the victim spouse leave the relationship

Contacting VSC • (802) 527-4888 or hotlinefollowupI360.vsc@dhs.gov • Use only ONE of these routes • For advocates and attorneys only • Must have a G-28 on file or attach to email, also include your email address in email • Leave a message with your case information and question and an adjudicator will return your call or email back

Protections under the Violence Against Women Act (VAWA)