Congress enacted the Violence Against Women Act (VAWA) in order to allow certain undocumented individuals to file an adjustment of status petition on their own behalf in order to become lawful permanent residents of the United States. The primary focus of Congress was to allow those undocumented individuals who have been the victim of abuse to seek safety through the American legal system. In other words, you may be eligible to receive lawful permanent resident status if you have been the victim of battery / extreme cruelty by your citizen or lawful permanent resident spouse, parent or child.
The key factor in proving that you are eligible for a VAWA petition is to prove that you have suffered battery / extreme cruelty by a certain class of citizens of the United States or lawful permanent residents. The United States Citizenship and Immigration Service (USCIS) determines battery / extreme cruelty by looking at various factors. See “Proving Battery / Extreme Cruelty,” below.
Who Is Eligible to File?
The Violence Against Women Act (VAWA) is limited to spouses, children and parents of abusive citizens and lawful permanent residents of the United States. The requirements for each of those eligible classes of individuals varies and is outlined below.
Spouses of Citizens or Lawful Permanent Residents of the United States
In order to file a VAWA petition as a spouse of a citizen or lawful permanent resident of the United States you must prove that (1) you have a qualifying relationship through marriage, (2) you have suffered battery / extreme cruelty at the hands of your citizen or lawful permanent resident spouse, (3) you entered the marriage in good faith and not solely for immigration benefits, (4) you have lived with your spouse, and (5) you are a person of good moral character.
To prove that you have a qualifying relationship through marriage you must satisfy one of the following:
You are currently legally married to a citizen or lawful permanent resident of the United States;
You were married to a citizen or lawful permanent resident of the United States, your marriage ended because of divorce or the death of your spouse, the divorce was related to the abuse you suffered, and the divorce or death of your spouse occurred within the two (2) years prior to submitting your VAWA petition;
Your spouse lost or renounced his citizenship or lawful permanent resident status due to an incident of domestic violence and the incident occurred within the two (2) years prior to submitting your VAWA petition; OR
You were under the belief that you were married to your citizen or lawful permanent resident spouse and the marriage was not legal because your spouse committed bigamy.
To prove battery / extreme cruelty you can either prove that you were subjected to battery / extremely cruelty or that your child under twenty-one (21) years of age was subject to battery / extreme cruelty at the hands of your citizen or lawful permanent resident spouse.
Children of Citizens or Lawful Permanent Residents of the United States
In order to file a VAWA petition as the child of a citizen or lawful permanent resident of the United States you must prove that (1) you have a qualifying parent-child relationship, (2) you have suffered battery / extreme cruelty at the hands of your citizen or lawful permanent resident parent, (3) you have lived with your parent, and (4) you are a person of good moral character.
To prove that you have a qualifying parent-child relationship you must prove one of the following:
You are the child of a citizen or lawful permanent resident of the United States; OR
You are the child of a citizen or lawful permanent resident of the United States and your parent lost their status due to an incident of domestic violence.
Parents of Citizens of the United States
In order to file a VAWA petition as the parent of a citizen of the United States you must prove that (1) you have a qualifying parent-child relationship, (2) you have suffered battery / extreme cruelty at the hands of your citizen or lawful permanent resident son or daughter, (3) you have lived with your son or daughter , and (4) you are a person of good moral character. Its is important to note that you can ONLY file under this category if your son or daughter is a citizen of the United States.
To prove that you have a qualifying parent-child relationship you must prove one of the following:
You are the parent of a citizen of the United States and that your son or daughter is at least twenty-one (21) years of age;
You are the parent of a citizen of the United States and that your son or daughter lost or renounced their legal status due to an incident of domestic violence; OR
You are the parent of a citizen of the United States, that your son or daughter was at least twenty-one (21) years of age and that your son or daughter died within two (2) years of submitting your VAWA petition.
Proving Battery / Extreme Cruelty
Qualifying for VAWA requires that you prove that you have been the victim of battery or extreme cruelty. Proving battery is quite simple. Battery involves physical violence such as punching, slapping and kicking.
However, proving extreme cruelty is more difficult because it does not require physical violence. Extreme cruelty usually includes actions that cause emotional distress. Below are some actions that can be considered extreme cruelty:
Threats of harm to you or others,
Public and private humiliation,
Threats of deportation,
Threats to call the immigration authorities (ICE),
False statements saying you have no legal rights in the United States,
Economic abuse / restraints,
Forced isolation from family and friends,
Sexual abuse,
Control of immigration documents,
Jealously,
Harassment,
Verbal abuse.
Successfully proving a VAWA petition is a very technical process and it is recommended that you seek the assistance of an attorney.