New York Lawyer's Legal Updates

Green Card Based on VAWA

Author: US Green Card Attorney Alena Shautsova

VAWA stands for Violence Against Women Act. It is a law that allows victims of domestic violence, those who are or were in certain relationship with a US citizen or a U.S. permanent resident to sponsor themselves into the country without the help of the abusive US citizen or permanent resident. The law allows to use this venue not only by wives, but by husbands, children and parents as well. The requirements for filing depend on the qualifying relationship and the filer’s (beneficiary’s) immigration history.

Who May File For I 360?

  • A person who has a husband, wife, father, mother, step-father, or step-mother who is a US citizen (USC) or Lawful Permanent Resident (LPR), who abused the filer physically, sexually, or psychologically;
  • A parent of a child who has been abused by their USC or LPR spouse. The abuse may be physical, sexual, or psychological;
  • A parent of an adult USC son or daughter who has abused them physically, sexually or psychologically.
    • The abuser does not need to participate in the filing or even know about it. A spouse who is filing does not need to get divorced from the abuser to do so. Moreover, if the filer and the US spouse divorced, or the US relative died, the abused person may still file if he/she does so within the 2 years of the divorce/death.

      The VAWA self-petition is one of the few exceptions that allows to file for adjustment of status (green card) for people who entered the country without inspection or admission (EWI).

      Many persons who try to file for VAWA without assistance of an attorney, are confused which forms to file. For example, a spouse, victim of domestic violence, may self-petition herself/himself in case her U.S. citizen spouse refused to file for her/him at all, or if the U.S. citizen spouse refused to participate in the removal of conditional residency. In these two different scenarios, the beneficiary will have to file different forms: I-360 in the first case, and I 751 asking for a waiver, in the second case. In addition, because the beneficiary in our example may qualify to be recognized as an immediate relative of a U.S. citizen, the beneficiary may file form I-485 for adjustment of status together with the form I-360, , and form I- 765 for employment authorization (work permit). After the filing of the I-360, the government issues a prima facie determination, which allows the filer to apply for public benefits and support herself/himself. Please note that in case of I-751 filing, the sponsor who filed affidavit of support with the initial I-485 package still has an obligation to support the beneficiary, even after the divorce or during the separation. The affidavit of support (Form I-864) is a legally binding contract between the beneficiary, sponsor and the government and may be enforced by either beneficiary of the government. The VAWA laws can be utilized in connection with the same sex marriages/relationship as well.

      Further, if filer’s-751 application is approved because of abuse or extreme mental cruelty, he/she can get: not only a permanent resident status but also the chance to apply for citizenship after 3 years of residency.

      Certain children may still file for VAWA benefits even after they turned 21 but before they turned 25. Section 805(c) of VAWA 2005 and section 6(a) of the VAWA 2005 technical amendments amended section 204(a)(1)(D) of the Act1 by providing for continued eligibility for certain individuals to file a VAWA self-petition as a child after attaining age 21, but before attaining age 25, if the individual can demonstrate that the abuse was at least one central reason for the filing delay.

      Finally, not only VAWA allows for filing of adjustment of status, it also allows for special cancellation of removal.

      VAWA cancellation of removal (3 Years Cancellation of Removal)

      To qualify for VAWA cancellation a person must show:

      1. He/she or their child (the “child” may be an adult) is the victim of domestic violence by a U.S. citizen or legal permanent resident spouse or parent. The spouse or parent need not still be a U.S. citizen or lawful permanent resident at the time of the application for 3 Year Cancellation, nor do you still have to be married to the abuser to apply. This means:

      • The applicant has been abused physically or psychologically by their U.S. citizen or lawful permanent resident spouse or parent either inside or outside the U.S;
      • The other parent of the filer’s child is a U.S. citizen or lawful permanent resident who has abused their child physically or psychologically whether inside or outside the US.

      2. The applicant has maintained continuous physical presence in the U.S. for at least 3 years immediately preceding the filing of the Cancellation application;

      3. Has been a person of “good moral character” during those 3 years;

      4. Has not committed certain types of crimes or immigration offenses;

      5. He/she or their child would suffer extreme hardship if removed from the United States. In other words:

      • They are a parent whose removal would result in extreme hardship to themselves or their child;
      • The applicant is a child.
      12 August 2013
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