New York Lawyer's Legal Updates

VAWA: Divorce, New Marriage And Children: Tips For Successful Cases

Author: NYC Immigration lawyer Alena Shautsova

Alena Shautsova, NYC Immigration lawyer helps clients who were abused by their US citizen or lawful permanent resident family members to obtain status in the US using VAWA and other provisions of the US immigration laws. VAWA stands for Violence Against Women Act, but the law can be used not only by females but by males as well. VAWA benefits can also be obtained by qualifying family members of the conditional residents, Cuban Adjustment, HRIFA, and NACARA beneficiaries. For an overview of the general VAWA requirements, please visit this page.

Children, Step-children and VAWA

A child who was abuse may have an option to file the petition by him/herself or be included in the abused parent petition. Note that a child of the battered spouse is included in the application without the need of a separate application. 8 CFR 204.2(c )(4). At the time, such a child would need a separate petition during the “regular” I 130 sponsorship by a US citizen. VAWA children who were abused, do have an option to file a separate case against the abuser. Derivative children do not age out, they are automatically transferred to the appropriate category as approved self-petitioners. INA 204(a)(1)(D)(i)(III). For independent children- applicants, there is no requirement that the abuse occurred during the parents’ marriage and the child does not need to provide that the marriage between parents/step-parents was bona fide (a “real one”). In the case of a step-child petitioner, the stepchild will have to prove a step-child relationship. 8 CFR 204.2( e)(1)(ii). A stepchild-parent relationship has to be formed before the child’s 18th birthday. Note that if the step-relationship continues even if the step-parent divorced the biological parent, the step-child may still qualify for benefits (including I 130 petition). But a step-child is not qualified for automatic citizenship if a step-parent becomes a US citizen before the child’s 18th birthday. An “illegitimate child” born after a step-parent relationship, can qualify as a step-child. Matter of Stultz, I&N Dec. 362 (1975).

Note, that in each case when a child/spouse would like to submit the petition, they should consult with an Immigration attorney to verify the requirements and eligibility.

VAWA and Divorce

VAWA self-petition can be filed by a person who is married, or who is divorced from the abuser. A self-petitioner must demonstrate that he/she resided with the abuser at least for some time. As a rule, the residence has to occur in the United States, but for spouses/children of US/LPR military or US government employees, there is an exception; or if some of the abuse occurred in the United States.

In case of a divorce, the law supplies some additional restrictions: an abused spouse has to demonstrate a connection between the divorce and abuse. However, under the USCIS regulations/Memo, the evidence submitted to meet the core eligibility requirements may be sufficient to demonstrate the connection. Also, the termination of the marriage has to occur within two years before filing.

In some cases of abuse, an abused spouse would believe he/she is legally married, but it turns out it is not the case: the abuser was legally married to someone else. In such situations, an abused victim may still submit his/her petition but has to demonstrate: he/she believed the marriage to be real and legally sufficient; the marriage ceremony was actually performed, and the requirements to demonstrate that the marriage was bona fide were met.

If a divorce occurs after the petition is filed, there is no need to demonstrate the connection between the divorce and abuse at all. If the marriage with the abuser ended because the abuser is deceased, the abused party has to file the self-petition within 2 years of the death.

VAWA Petition and Re-Marriage

At some point, a VAWA self-petitioner may want to remarry. If the marriage occurs after the petitioner is approved, the case remains intact.

If you need help with the VAWA self-petition, book a confidential consultation with our New York Immigration lawyers by calling 917-885-2261.

23 June 2020
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