Violence Against Women Act: Visas for Battered Spouses
U.S. citizens and legal permanent residents (LPRs, or "green card" holders) typically file an immigrant visa petition with the U.S. Citizenship and Immigration Services (USCIS) on behalf of a spouse or child in order for them to obtain legal status. Unfortunately, some U.S. citizens and green card holders misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.
Spouses and children of U.S. citizens or LPRs, as well as the parents of under-21 children who were abused by a U.S. citizen or LPR, may self-petition to obtain a green card under the Violence Against Women Act (VAWA). Parents abused by their U.S. citizen son or daughter also qualify for VAWA protection. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge, in order to seek safety and independence from the abuser.
Who is Eligible for VAWA Protection?
To be eligible to file a self-petition (an application that you file for yourself for immigration benefits), you must qualify under one of the following categories:
- Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.
- Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse, or if you were abused by your U.S. citizen son or daughter. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own
- Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries
Spouse: Basic Requirements
- Must be legally married to a U.S. citizen or lawful permanent resident abuser. A self-petition may be filed if the marriage was terminated (by divorce or the abusive spouse's death) within the two years prior to filing. A self-petition may also be filed if the marriage was not legitimate because of the bigamy of the abusive spouse.
- Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.
- Considered a person of good moral character.
- Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.
- Have resided with the abusive spouse
Child: Basic Requirements
- Must qualify as the child of the abuser as "child" is defined under immigration law (under 21 years old and unmarried).
- Were the child of an LPR or U.S. resident abuser who lost legal status as a result of domestic violence.
- Have been abused in the U.S. or, if parent was a U.S. government employee, were abused while abroad.
- Have resided with the abusive parent.
- Must provide evidence of good moral character if over the age of 14.
Parent: Basic Requirements
- Must have been the parent of a son or daughter who is a U.S. citizen (or who lost or renounced their U.S. citizenship status related to domestic violence, or died, within two years prior to filing).
- Have been abused by a U.S. citizen son or daughter.
- Have resided with the abusive son or daughter.
- Must provide evidence of good moral character.
Applying for Benefits
To self-petition, you must complete and file USCIS Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) and include all supporting documentation. Self-petitions are filed with the Vermont Service Center and should be sent by certified return receipt mail (or any other method providing assurance of receipt). Sending the Form I-360 to any other USCIS office will delay your application. You should keep a copy of everything you submit, including the application and all accompanying documents, in addition to the proof of mailing.
If you meet the filing requirements for a VAWA-based visa and green card, you will receive an official notice that may be presented to government agencies providing public benefits to domestic violence victims.
Frequently Asked Questions
Q. Can a man file a self-petition under the Violence Against Women Act?
A. Although the self-petitioning provisions for victims of domestic violence are contained in the Violence Against Women Act, they apply equally to victims of either sex.
Q. Must the self-petitioner remain married to the abusive spouse until the self-petition is approved?
A. The regulations only require that the self-petitioning spouse be married at the time of filing. After the self-petition has been filed, legal termination of the marriage will not usually affect the self-petition, but you may want to seek advice from an immigration attorney or legal advocate. Changes in the law allow for the marriage to have been terminated within two years prior to the date of filing (with some restrictions).
Q. Can a divorced spouse seek relief through self-petitioning?
A. Sometimes (with some restrictions), if the marriage was terminated within two years prior to the date of filing. A battered spouse who does not meet these restrictions may be eligible for cancellation of removal. To qualify, he/she must meet the other requirements that would be necessary for approval of a self-petition and must have been physically present in the U.S. for three years immediately preceding the filing of the application for cancellation of removal.
A self-petition will also be denied if the self-petitioner re-marries before filing or after filing and before the self-petition is approved. Remarriage after the self-petition has been approved will not affect the validity of the approved I-360 self-petition.
Q. What if the abusive US citizen/LPR did file a Form I-130 petition on behalf of the battered spouse which is either still pending or was withdrawn?
A. A self-petitioner who is the beneficiary of a Form I-130 petition filed by the abusive spouse will be able to transfer the priority date of the Form I-130 petition to the I-360 self-petition. This is extremely important for self-petitioners who must wait for a visa number as an earlier priority date will result in a shorter waiting time.
If you or a family member are the victim of domestic violence, call the National Domestic Violence Hotline (1-800-799-7233) for legal advice and information about shelters, immigration status and related matters.
See "Battered Spouse, Children & Parents" on the USCIS website for more detailed information about VAWA protections for abused family members.
Get Legal Help with Your VAWA-Related Concerns
No one deserves to be stuck in an abusive relationship; but with respect to battered women lacking legal status, it can seem like a life sentence. Thanks to the Violence Against Women Act, you have options. Contact an experienced immigration attorney to discuss your situation and learn more about your legal options.
Contact a qualified immigration attorney to help you with visa procedures.