Spouse Abuse, VAWA Petition, Domestic Violence, Marriage to US Citizen, Anthony Olson, P.A., Sarasota, Florida


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Abused or Widowed Spouses
Petitions under the Violence Against Women Act
(VAWA)
Many immigrants obtain a Green Card through the sponsorship of a close family member who is a citizen or permanent resident of the United States. But, what to do when the petitioning relative dies, or there is a breakdown in marriage, or there is abuse involved?

Green Cards for Widowed or Abused Spouses

Green Cards for Widowed or Abused Spouses

There are options to obtaining a Green Card under all those situations, and details are broadly divided into two areas.

Abused Spouses and Petitions under the
Violence Against Women Act
(VAWA)

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. 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.

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. 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 self-petition.

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

To be eligible, the self-petitioning spouse must:

be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.

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.

have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.

be a person of good moral character.

have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

To be eligible, the self-petitioning child must:

qualify as the child of the abuser as "child" is defined in the INA for immigration purposes.

In order to self-petition, the abused petitioner files a petition with the Vermont Service Center, along with proof of the relationship and the abuse that has occurred.

DETERMINATIONS, DEFERRED ACTION and ADJUSTMENT TO PERMANENT RESIDENT STATUS

Prima Facie Determination – Battered immigrants filing self-petitions who can establish a "prima facie" case are considered "qualified aliens" for the purpose of eligibility for public benefits. The USCIS reviews each petition initially to determine whether the self-petitioner has addressed each of the requirements listed above and has provided supporting evidence. This is called a prima facie determination.

If the Service makes a prima facie determination, the self-petitioner will receive a Notice of Prima Facie Determination valid for 180 days. The notice may be presented to state and federal agencies that provide public benefits.

Approved Self-petition – If the self-petition is approved, the Service may exercise the administrative option of placing the self-petitioner in deferred action, (if the self-petitioner was married to an LPR).

Employment Authorization – Self-petitioners and their derivative children, who have an approved petition and are placed in deferred action, are also eligible for an Employment Authorization Card.

Adjustment to Permanent Resident Status – Self-petitioners who qualify as immediate relatives of U.S. citizens (spouses and unmarried children under the age of 21) do not have to wait for an immigrant visa number to become available.

Self-petitioners who require a visa number to adjust must wait for a visa number to be available before filing the Form I-485. The wait for visa numbers can be anywhere from 2-10 years.

If you contemplate a self-petition for permanent residence as an abused spouse, you should know that copies of the following documentation and information will greatly help you prove your case. If possible, don’t leave your common residence without having any of these in your possession:

Regarding Underlying Marriage:
    Marriage Certificate;
    Divorce Decree, if applicable;

Proof of bona fide marriage

Regarding Abuse:
    Medical reports;
    Reports from psychologist or counselors;
    Police reports; and
    Any other substantiating evidence

Loss of a Spouse

Generally when the petitioner dies, the petition is legally considered to die as well. However, there are situations when the CIS will agree, based upon humanitarian considerations, to let the case continue. There are also special provisions for widowed spouses to apply on their own if they were married for at least two years before their spouse's death.

Our firm practices business immigration law, employment-based, family-based immigration law, as well as deportation defense. We can assist you in getting settled in any U.S. state.

Main Office:
2020 Cattlemen Road, Suite 100
Sarasota, Florida 34232
Phone: (941) 362-7100
Fax: (941) 362-7107

South Office:
13180 N. Cleveland Avenue, Suite 112
N. Fort Myers, Florida 33903
Phone: (239) 332-4545
Fax: (941) 362-7107

The hiring of a lawyer is an important decision that should not be solely based upon advertisements. Before you decide, please ask us about our qualifications and experience and we will be pleased to send you free written information upon request.