Threatening a family member with deportation is a common and powerful way to control an undocumented immigrant. The Violence Against Women Act (VAWA) is a gender neutral law that helps both men and women leave abusive relationships. It allows people to petition for themselves, free of charge, when they would otherwise have to depend on an abusive family member to help them with Immigration. VAWA can be used as either a self-petition for protection, or as a deportation defense. On this page we will discuss the VAWA self-petition as a protection, which you prepare and mail to Immigration before you are in deportation.
Background Image: Traditional Karen Clothing (now Myanmar)
VAWA as a Protection
Abuse does not need to be physical. It can be emotional abuse, too. For example, someone who constantly berates you, undermines your self-esteem, and curses you is emotionally abusive. The United States characterizes any similar behavior as abuse, regardless of the fact that these actions may be culturally acceptable or expected in other countries. As a result, many people are victims of domestic violence and do not realize it. Alternatively, many immigrants who are victims of domestic violence do not report the abuse because they fear the police as much as they fear their abuser. However, the United States takes domestic violence very seriously, and your right to report your abuser is protected by law.
The Violence Against Women Act (VAWA) is designed to help immigrants leave abusive relatives who would otherwise be their path to a family-based visa. Therefore, VAWA eligibility is based on the self-petitioning immigrant’s relationship to their abuser. It is free to self-petition through VAWA, and it is available to both men and women who have suffered abuse from their:
Spouse who is a lawful permanent resident or United States citizen
Parent who is a lawful permanent resident or United States citizen
You can qualify for VAWA as a step-child if your parent and step-parent married before your 18th birthday. You can also qualify as an adopted child if you were adopted before turning 16.
Child who is United States citizen and over the age of 21
Parents who have been abused by their children who are lawful permanent residents cannot self-petition because VAWA is loosely tied to family-based immigration. In family-based immigration, lawful permanent residents cannot petition for their parents, and United States citizens must be at least 21 years old before they petition for their parents.
VAWA is also available to people who have been battered or subjected to extreme cruelty inside of the U.S. by their spouse or parent who is eligible for:
- the Cuban Adjustment Act;
- the Haitian Refugee Immigration Fairness Act;
- Nicaraguan and Central American Relief Act (NACARA); or
- Section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Division C of Public Law 104-208).
VAWA as a Work Permit
You may be eligible for an employment authorization document (work permit) through VAWA if your abusive spouse is in the United States through one of the following visa categories: A, E-3, G, or H.
If this is the case, you can self-petition for VAWA only for the work permit, which is granted for two years. Ideally, this rule helps both men and women leave abusive relationships. However, you cannot get a green card through VAWA unless your spouse is either a lawful permanent resident or a U.S. citizen.
A Therapist Can Help
If you are a victim of domestic abuse, you should consider talking to a therapist. Not only can a therapist help your immigration case by writing a report, but they can help you heal. Physical and emotional abuse can cause problems such as depression, low self-esteem, and feelings of helplessness. A therapist can help you feel like yourself again.
At Catholic Charities Milwaukee we have bilingual therapists who help our clients both with reports for Immigration as well as getting their lives back on track. Your attorney may be able to make a referral for you.
Spouses Who Self-Petition for VAWA
Legally Binding Marriage
To file a VAWA self-petition as the spouse of a U.S. citizen or lawful permanent resident, you must prove that you are actually married. This involves two sets of evidence. First, you have to prove that you are married or reasonably believe that you are married. Second, you must prove that your spouse is either a lawful permanent resident or a United States Citizen.
Proving Your Marriage
1. Free to Marry
First, you must show that you are free to marry. In other words, if you or your spouse was previously married, you have to show Immigration that any previous marriages ended in divorce, death or annulment. You can use copies of death certificates, divorce certificates, or copies of court-ordered annulments.
Sometimes an abusive spouse is also a bigamist, which means they remarried without getting a divorce or annulment. The United States does not recognize multiple marriages. So, if your abusive spouse is a bigamist, you will need to show that you reasonably believe that you were married through some kind of ceremony. You can prove this by including details about the wedding in your affidavit.
2. Legally Binding Marriage
Second, you must show that your marriage is legally binding where it took place. Cultural differences can make this step complicated. For example, in Mexico a church-only wedding is not legally binding if it is not also a civil marriage. Your marriage can be religious, but it must be recognized by the government as well. U.S. Immigration will not consider a church-only or ceremonial wedding a valid marriage for immigration purposes. Most people use their government-issued marriage certificate as evidence for their VAWA self-petition. However, some countries, like Somalia, have no government and cannot issue marriage certificates. In these cases, U.S. Immigration will recognize a ceremonial wedding for VAWA as long as the marriage is described in a written personal statement.
The U.S. Department of state provides a list of acceptable documents on their website for each country that has a relationship with the United States. If you are looking for what documents you need to prove a marriage, start by selecting your country and then scroll until you see the marriage certificate section. There you will find the documentation you need to give U.S. Immigration that is specific to your country.
If you are divorced, you will also want to include your divorce certificate. However, some states require a waiting period in between marriages. Wisconsin for example, requires a six-month waiting period, but Illinois does not. It is important to note that if Immigration thinks that you got married in another state just because it has less restrictive laws, they will not recognize your marriage. For example, Immigration will not recognize your marriage if you live in Wisconsin but get remarried in Illinois just because you don’t want to wait the required six months in Wisconsin.
Proving Your Spouse's Status in the United States
Ideally you would show your spouse’s certificate of citizenship, birth certificate, or green card. But when that is not possible, there are some other documents you can use. You could use any previous application that the abuser might have filed for you. For example, if you have a copy of an old application for an alien relative (I-130) you should include that in your VAWA self-petition.
If your abuser had any previous contact with Immigration, they will search their own records for a birth certificate or copy of a green card that the abuser might have filed for you. Or, if your abuser is a naturalized United States citizen, you could ask Immigration to search their records for documents that would have been filed as part of their citizenship application. However, this does not always work, especially if you don’t have a unique identifying number for your abuser such as an alien registration number or a social security number.
1. Entered the marriage in good faith. In other words, you didn’t get married just to get a green card. Proof of a good faith marriage will depend on your age and personal circumstances, but generally you must show that you have shared a life together. Learn more on our Good Faith Marriage blog post.
However, as an abused spouse, you may endure treatment not found in a typical marriage. For example, your abuser may not give you access to money. You must explain the unusual aspects of your marriage in your written statement, or affidavit.
2. Were battered or subjected to extreme cruelty during your marriage.
3. Are a person of good moral character. Immigration does not specify what defines a person of good moral character. However, they mention actions that would suggest you do not have good moral character, including certain criminal convictions and problems with alcohol. Learn more on our Good Moral Character blog post.
5. At least one instance of the abuse or extreme cruelty occurred inside of the U.S.
You Can Leave Your Abuser
You do not need to stay married to your abuser or stay in an abusive home. You can file a VAWA even if you are divorced from your abuser. However, you must file the petition within two years of the divorce, and you must show some connection between the divorce and the abuse. Usually that is pretty easy.
It is also worth noting that the United States deports people who have criminal convictions for domestic violence. You can still file a VAWA self-petition if you file within two years of your abuser being deported or renouncing their status because of domestic violence.
A self-petitioner can include derivatives in the same VAWA application. However, VAWA derivatives only include unmarried children who are under the age of 21. Remember, there is no fee for the VAWA self-petition and derivatives can also be included free of charge. You can include your children as derivatives even if they are not in the United States.
Please note, that a child included on your application as a derivative must remain unmarried until your VAWA self-petition is approved. Once Immigration has received your application, you do not have to worry about your child aging out. But they must remain unmarried until the VAWA petition is approved.
Children Who Self Petition for VAWA
1. Are, in fact, the child of a United States citizen or lawful permanent resident. To prove the relationship, you can use a birth certificate that identifies your abuser as your biological parent.
You can also file a VAWA self-petition if your abuser is your step-parent or adoptive parent. You have to show, however, that you were under 18 when the abuser became your step-parent or that you were younger than 16 when the abuser became your adoptive parent.
If your step-parent also abuses your parent, then your parent can include you as a derivative in his or her VAWA self-petition. However, to qualify as a derivative, you still must be unmarried and under the age of 21.
2. Are a person of good moral character. If you have certain criminal convictions, problems with alcohol, or have spent more than 180 days in jail, Immigration may take issue with your character. Learn more on our Good Moral Character blog post.
Parents Who Self-Petition for VAWA
You can self-petition for VAWA if your abusive child is a U.S. citizen and at least 21 years of age. You must show Immigration that:
Preparing Your VAWA Application
Perhaps the most difficult part of preparing a VAWA self-petition is writing a detailed affidavit, which is a statement made under oath. You will have to think back on your relationship, and give specific examples of physical abuse or emotional cruelty. This is important because Immigration will never meet you in person; they will have to assess your case based on your written statement.
Affidavits should address each element of your case or requirement for a VAWA self-petition. Talk about living with the abuser, their immigration status, and the abuse that took place in the United States. Your personal statement will be unique to your relationship with the abuser. For example, abused step-children will tell a different story than someone abused by a spouse.
Regardless of your relationship to your abuser, as best you can, write your affidavit as if you are telling a story, like in a book or a movie. Organize your narrative, and write it in enough detail that the immigration officer can clearly picture it in their head. Do not use vague generalities; give very specific examples. Talk about how the abuse made you feel and how it changed you. This is no time to put on a tough face; you have to tell Immigration exactly what happened. If your abuser swore at you, don’t be embarrassed about repeating explicit or vulgar language.
At Catholic Charities, we notarize our clients’ written statements. Some of our clients like to start out writing their affidavits by themselves and others like to work with their attorney. Do whichever makes you feel more comfortable. Whatever method you choose, do not try to sound like a lawyer. Use your own words.
Providing credible evidence of abuse can make your VAWA application stronger, though Immigration can give it any weight they choose. Save any abusive text or voice messages, threatening statements on social media, and any photos that show bruising. Medical or police reports are not required to win a VAWA self-petition, but if you have them, you certainly want to include them. You should also collect statements from family and friends who heard or saw the abuse. If you have a close friend or confidant, get their statement about how the abuse changed you.
You can include anything in your application that you think backs up your story. In Wisconsin, you can look for someone’s criminal charges online through the Wisconsin Circuit Access. For example, if you claim that your abuser also abuses alcohol, look for drunk driving convictions to back up that allegation. If your abuser uses drugs, look for tickets or criminal convictions related to their drug use. If your abuser irresponsibly spends all of your family money, look for small claims records, eviction records, or foreclosures. If your abuser hurt other people, look for certified court dispositions of previous criminal convictions or restraining orders.
After You Mail in Your Petition
First, you will get a receipt notice from Immigration’s Vermont Service Center. Then you should receive a prima facie determination. This is the first review of your petition to make sure you have included all of the required elements. A prima facie is not a final decision, and it does not mean that you won’t get a Request for (additional) Evidence, or RFE*. However, a prima facie is still important because it can impact your access to public benefits. If you don’t receive a prima facie determination in the mail, follow up with Immigration to make sure they process your application.
*If you receive an RFE, do not panic. Requests for Evidence are common, and it could simply mean that Immigration needs more clarification on an aspect of your petition.
Receiving a Decision
If you receive an approval, Immigration will has categorized you as someone under “Deferred Action”. This essentially means that you are so far down on the list of people to deport, that Immigration will not come looking for you. After you receive an approval, you can apply for an employment authorization document, or work permit. If you are low income, you can ask for a fee waiver for the employment authorization.
Traditionally, Immigration has not placed any denied VAWA petitioners into deportation unless the person has a significant criminal history or have previously received a deportation order. Alternatively, if you apply for the VAWA and the green card at the same time, you risk being put into deportation if your green card is denied.
Green Card Through VAWA
Applying for lawful permanent residency, or green cards, through VAWA depends on your relationship to your abuser. Immediate relatives of U.S. citizens can both self-petition for VAWA and apply for the green card at the same time.
If you are the spouse, child, or parent of a U.S. citizen and you have also applied for your green card, you will receive something called a biometrics or ASC notice. Learn more in our Biometrics Appointment blog post.
Then, Immigration will send your file to your local office for an interview. The local office can deny your application for a green card, but they cannot alter the VAWA approval. However, they can send your VAWA file back to United States Citizenship and Immigration Services (USCIS) and suggest that the service center change their decision from an approval to a denial. This is why it is a really good idea to hire a good immigration attorney and bring them with you to your interview.
All other VAWA self-petitioners are categorized under the Priority System, and must apply for VAWA and green cards separately. First, you will wait for your VAWA approval, which will include something called a priority date. You must wait until that date is current, then you can proceed with your green card application. Checking priority dates is confusing, and if done incorrectly, it can put you in deportation. Please rely on the help of an experienced immigration attorney to determine when your priority date is current.
- For more information about preparing your self-petition, look at the Immigrant Legal Resource Center’s guide to filing VAWA.
- If you need somewhere to stay away from your abuser, please contact the Wisconsin Domestic Violence Shelters organization.
- National Domestic Violence Hotline:
- English: 1-800-799-7233
- En Español: 1-800-787-3224 (TTY)
Seek the Help of a Good Lawyer
You Don't Have to do this Alone
If you have questions about your VAWA self-petition, a good immigration attorney can help you determine your best options. For example, if you have a criminal record and need help proving good moral character, an experienced immigration lawyer can walk you through the process.
Frequently Asked Questions
VAWA Self-Petition FAQ
Just the postage to mail it in. There is no fee to be paid to Immigration.
Traditionally, Immigration has not placed any denied VAWA petitioners into deportation unless the person has a significant criminal history. Alternatively, if you apply for the VAWA and the green card at the same time, you risk being put into deportation if your green card is denied.
For better or worse, Immigration law changes constantly. Therefore, you will want a competent immigration attorney to assess your case before you send in any VAWA self-petition.
The first time someone is granted Deferred Action status, it lasts for 15 months. Afterwards, Immigration can extended it in 12-month increments.
If you get lawful permanent residence based on VAWA, you will get a green card just like anyone else, which must be renewed every 10 years.
You may need to extend the Deferred Action. A good immigration lawyer can help you determine your best options.
VAWA can make you vulnerable for deportation in one of two instances:
- If you have a significant criminal history or a previous deportation, it can be dangerous to apply for VAWA; or
- If you apply for a green card along with the VAWA, and your lawful permanent residence is denied, you might be put into deportation proceedings. Talk to your lawyer about your best options, especially if you have a complicated case due to a criminal history.
Yes! Even better, you can take advantage of a special rule that applies to people who get lawful permanent residency through marriage to a United States citizen. Specifically, the wait time to apply for citizenship will be shorter. Normally, after people receive their green card, they must wait five years until they can apply for citizenship. However, people who get lawful permanent residency through VAWA can apply for U.S. citizenship after three years.
Additionally, you can apply for United States citizenship 90 days before completing your three years as a lawful permanent resident. This is a confusing rule, but can be a nice benefit to you. Be careful to count out the 90 days exactly. Three months does not always equal at least 90 days. If you apply for citizenship 91 days early, you will lose your money and your application will be denied. However, you can apply fewer than 90 days early, just as long as it is not more than 90 days before your waiting period is completed.
Some immigration applications require you to go to a biometrics appointment. Also known as an ASC (Application Support Center) appointment, the main purpose is for Immigration to take your picture and fingerprints for their records.
To show U.S. Immigration that you have good moral character you must present a case that you are an upstanding person, but more importantly, you need to know how to defend any potential problems on your personal record.
All immigrants who use their marriage as a part of their immigration process will need to demonstrate that they have a legitimate relationship. Proving a good faith marriage will not look the same for all couples, but ultimately you need to show that you share a life together.