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Know the Laws:

UPDATED April 20, 2013

VAWA Laws for Abuse Victims

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Immigration laws can be extremely complicated.  Here we provide some basic information about immigration benefits available to victims of domestic violence. WomensLaw.org strongly recommends that you consult with an immigration lawyer with experience in VAWA before applying for any type of immigration status to see if you qualify for these or other forms of immigration relief.  You may contact us through our Email Hotline if you would like referrals to organizations with experience in VAWA in your state. For national organizations with experience in general immigration law, please see our Immigration/ International page.  You can also find legal referrals on our Finding a Lawyer page.

VAWA self-petition

back to topWhat is a VAWA self-petition?

A self-petition is a way to apply for lawful status in the US on your own by submitting an application to the US Citizenship and Immigration Service (USCIS) requesting lawful status in the US without the assistance of the abuser.  This application is called a self-petition because you are applying for legal status by yourself and you are not sponsored by anyone.  You may be eligible to self-petition for lawful permanent residence without the assistance of the abuser if you are abused by:

  • your spouse and s/he is US citizen (USC) or legal permanent resident (LPR) (or if you are the spouse of a USC or LPR and s/he has abused your child),
  • a USC or LPR parent (including a step-parent), or
  • a USC adult son or daughter (not LPR son or daughter).*
  • Note: Please continue on to the next question (Who is eligible to self-petition?) because these categories are explained in more detail.
To determine if you qualify for a VAWA self-petition or another form of immigration relief, you should consult an immigration lawyer with experience in VAWA.  Our Immigration/ International page lists national organizations working in the area of immigration law and our Finding a Lawyer page includes the contact information of legal organizations and lawyer referral services by state.

* INA § 204(a)(1)(A) & (B)

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back to topWho is eligible to self-petition?

Immigration law allows the following relatives of abusive US citizens (USC) and legal permanent residents (LPR) to self-petition for lawful status in the US (if they meet all other self-petitioning requirements under VAWA):

  • Abused spouses of a USC or LPR, and the abused spouse’s children if they are under 21 years old and unmarried (the children would be included in the spouse's application as "derivatives");*
  • Non-abused spouses of a USC or LPR if the USC or LPR spouse has abused your unmarried and under 21 child. The non-abused spouse’s children who are under 21 years old and unmarried may also be eligible (the children would be included in the spouse's application as derivatives);*
  • Abused children (under 21 years old and unmarried) of a USC or LPR, and their children (under 21 years old and unmarried) as derivatives.**  Note: It may be possible for an abused child between the ages of 21 and 25 to self-petition if s/he can show s/he qualified when she was under 21 and the abuse was at least one central reason for the delay in filing.***
  • Abused parents of a USC (not LPR) son or daughter (son/daughter must be over 21 years old).****
  • Note: In the following questions, you will find information about additional requirements for each of the above categories. It is important that you read these to fully understand what you may have to prove to qualify.
* INA § 204(a)(1)(A)(iii), INA § 204 (a)(1)(B)(ii)
** INA § 204(a)(1)(A)(iv), INA § 204(a)(1)(B)(iii)
*** INA § 204(a)(1)(D)(v)
**** INA § 204(a)(1)(A)(vii)

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back to topDoes a same-sex marriage count as being "married" to the abuser for immigration purposes?

Yes.  A marriage is valid under immigration law if it is valid in the jurisdiction where it took place.  Now that the U.S. Supreme Court has ruled that it is unconstitutional for states to ban same-sex marriages,* any valid same-sex marriage performed in the United States should be recognized by USCIS (Immigration).

* Obergefell v. Hodges, 576 U.S. ___ (2015)

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back to topDoes a common-law marriage count as being "married" to the abuser for immigration purposes?

A marriage is valid under immigration law if it is valid in the jurisdiction where it took place unless there's a U.S. national policy that over-rides it.   For purposes of common-law marriages, a common-law marriage can be valid under immigration law as long as it was formed in a U.S. state or a country that recognizes common-law marriages under the law.  In other words, you and your spouse must have lived in a state that recognizes common-law marriages and you must have met the legal definition of common-law marriage in that state.  If a common-law marriage was properly, validly formed in a state that recognizes such marriages, it can be still be valid even if you are now applying for VAWA in a different state.*  For a list of U.S. states that recognize common-law marriage and each state's legal requirements, click here

Immigration officials may look at the following factors to determine if you have a valid common-law marriage:

  • When and where did the relationship begin?
  • What was the intent of you and the abuser with respect to what the relationship was to be?
  • Were you generally known as spouses by neighbors, friends, and the community?
  • Did either of you introduce one another as a spouse?
  • Did either of you purchase a life insurance policy describing one or the other as the beneficiary spouse?
  • Is there birth registration or school registration of your children showing each of you as the parents?
  • Is there a credit card account describing one of you as the spouse of the other?
  • Did either of you name the other one as the beneficiary spouse of the other’s pension rights?
  • Is there any other information that would tend to demonstrate that you both have, from the beginning, lived the type of existence that would be normal for a lawfully married couple?*
For help in gathering the necessary evidence to prove that you had a valid common-law marriage, please talk to an attorney who is properly trained in filing VAWA self-petitions – please do not attempt to apply for a VAWA self-petition on your own.  For national organizations with experience in general immigration law, please see our Immigration/ International page. You can also find legal referrals by state on our Finding a Lawyer page.

* See USCIS website, Adjudicator's Field Manual, section 74.2(e)(no longer available online); see also USCIS Policy Manual, Part G, Chapter 2(B)

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back to topWhat are some additional requirements to self-petition under VAWA as the spouse of a USC or LPR?

In addition to meeting the abusive relationship requirement explained in Who is eligible to self-petition? you must meet all additional requirements listed below if you are self-petitioning as the spouse of an abusive US citizen (USC) or legal permanent resident (LPR):

  • Marriage to a USC or LPR: You must meet one of the following:
    • be married to a USC/LPR (including common-law marriage);
    • your USC spouse (not LPR) died within the past 2 years;
    • your USC/LPR spouse lost his/her citizenship or residency within the past two years related to an incident of domestic violence;
    • you believed that you married a USC/LPR and a marriage ceremony was performed but you later found out that your marriage was not valid because your spouse was committing bigamy (s/he was already married when s/he “married” you); or
    • you were divorced from your USC/LPR spouse within the past two years and you can show a connection between the abuse that you suffered and the divorce.*
  • The marriage was a good faith marriage:*1 You married in good faith and not only to obtain immigration benefits.*2
  • Battery or extreme cruelty: During your marriage, your USC/LPR spouse must have battered (physically abused) you or your child or subjected you or your child to “extreme cruelty.”*3  Extreme cruelty is any form of power and control, including but not limited to, the following:
    • being a victim of any act or threatened act of violence, including any forcible detention that results in physical or mental harm, psychological or sexual abuse, rape, molestation, incest, forced prostitution, and acts that may not appear violent but are part of a pattern of violence.*4  Note: You must have been abused in the United States, or if you were solely abused abroad, then your spouse must have been an employee of the US government or a member of the US uniformed services (the military).*5
  • You must have lived with the abuser at some point ;*6 and
  • You are a person of “good moral character.”*7  Note: Even if you believe you have committed an act which may affect your ability to prove good moral character (for example, certain crimes), please talk to an immigration lawyer with experience in VAWA to see if there is an exception available for your situation.
* INA § 204(a)(1)(A)(iii), INA § 204 (a)(1)(B)(ii)
*1 INA § 204(a)(1)(A)(iii)(I)(aa), INA § 204(a)(1)(B)(ii)(I)(aa)
*2 USCIS website – Battered Spouse, Children & Parents
*3 INA § 204(a)(1)(A)(iii)(I)(bb), INA § 204(a)(1)(B)(ii)(I)(bb)
*4 8 CFR § 204.2(c)(1)(vi)
*5 INA § 204(a)(1)(A)(v), INA § 204(a)(1)(B)(iv)
*6 INA § 204(a)(1)(A)(iii)(II)(dd), INA § 204(a)(1)(B)(ii)(II)(dd)
*7 INA § 204(a)(1)(A)(iii)(II)(bb), INA § 204(a)(1)(B)(ii)(bb)

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back to topWhat are some additional requirements to self-petition under VAWA as a child of a USC or LPR?

In addition to meeting the abusive relationship requirement explained in Who is eligible to self-petition?, you must meet all additional requirements listed below if you are self-petitioning as the child of an abusive US citizen (USC) or legal permanent resident (LPR):

  • You are a child abused by his/her USC or LPR parent:
    • You are the child (unmarried and under 21 years old) of a USC/LPR;
    • You are the child (unmarried and under 21 years old) of someone who was a USC/LPR but s/he lost his/her citizenship or residency within the past two years related to an incident of domestic violence;* or
    • You are between the ages of 21 and 25 and can show you qualified before you turned 21 and that the abuse was at least one central reason for not filing a self-petition before turning 21 years old.*1
  • Battery or extreme cruelty: Your USC/LPR parent must have battered you or subjected you to “extreme cruelty.”*2  Extreme cruelty is any form of power and control and includes, but is not limited to, the following:
    • being a victim of, or threatened with, an act of violence, forcible detention that results in physical or mental harm, psychological or sexual abuse, rape, molestation, incest, forced prostitution, and acts that may not appear violent but are part of a pattern of violence.*3  Note: You must have been abused in the United States, or if you were solely abused abroad, then your parent must have been an employee of the US government or a member of the US uniformed services (military) at the time; *4
  • You have lived with the abuser at some point;*5
  • If you are over the age of 14, you must be a person of “good moral character.”*6  Note: Even if you believe that you have committed an act which may affect your ability to prove good moral character (for example, certain crimes), please talk to an immigration lawyer with experience in VAWA to see if there is an exception available for your situation.
* INA § 204(a)(1)(A)(iv), INA § 204 (a)(1)(B)(iii)
*1 INA § 204(a)(1)(D)(v)
*2 INA § 204(a)(1)(A)(iii)(I)(bb), INA § 204(a)(1)(B)(ii)(I)(bb)
*3 8 CFR § 204.2(c)(1)(vi)
*4 INA § 204(a)(1)(A)(v), INA § 204(a)(1)(B)(iv)
*5 INA § 204(a)(1)(A)(iv), INA § 204 (a)(1)(B)(iii)
*6 8 CFR § 204.2(e)(2)(v), 8 CFR § 204.2(e)(1)(i)(F)

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back to topWhat are some additional requirements to self-petition under VAWA as a parent who has been abused by his/her USC son or daughter?

In addition to meeting the abusive relationship requirement explained in Who is eligible to self-petition?, you must meet all additional requirements listed below if you are self-petitioning as the parent of a US citizen (USC) son or daughter (son/daughter must be over 21 years old) who has abused you:

  • The USC (not LPR) son or daughter (son/daughter must be over 21 years old) abused his/her parent: You must be:
    • the parent of an abusive USC son or daughter who is still alive or who died within the past two years; or
    • the parent of a USC son or daughter who lost his/her citizenship within the past two years related to an incident of domestic violence.*
  • Battery or extreme cruelty:* Your USC son or daughter (over 21 years old) must have battered you (physically abused you); or subjected you to "extreme cruelty."  Extreme cruelty is any form of power and control, and includes, but is not limited to, the following:
    • being a victim of, or threatened with, an act of violence, forcible detention that results on physical or mental harm, psychological or sexual abuse, rape, molestation, incest, forced prostitution, and acts that may not appear violent but are part of a pattern of violence.**
  • You must have lived with your abusive son or daughter at some point;* and
  • You must be a person of “good moral character.”Note: Even if you believe that you have committed an act which may affect your ability to prove good moral character (for example, certain crimes), please talk to an immigration lawyer with experience in VAWA to see if there is an exception available for your situation.
Note: This is the only category of self-petitioners where the abuser must be a USC – s/he cannot be an LPR.

* INA § 204(a)(1)(A)(vii)
** 8 CFR § 204.2(c)(1)(vi)

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back to topCan I file for a VAWA self-petition if I am in another country?

Possibly, yes.  Assuming that the abuser is a U.S. citizen or legal permanent resident, and you are living abroad (in another country), you can file for a self-petition if any of the following are true:

  • The abuser is an employee of the U.S. government, and while you are/were both living abroad, s/he subjected you (or your child) to battery or extreme cruelty;
  • The abuser is a member of the uniformed services (the U.S. military), and while you are/were both living abroad, s/he subjected you (or your child) to battery or extreme cruelty; or
  • You are living abroad and you (or your child) were subjected to battery or extreme cruelty by the abuser while you were in the United States.*  (It does not matter if the abuser is living with you abroad or not.)
* INA §§ 204(a)(1)(A)(v), 204(a)(1)(B)(iv)

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back to topWhat happens after my lawyer files my self-petition?

When a self-petition is accepted, the US Citizenship and Immigration Services (USCIS) sends a receipt to the address given on your petition (make sure that a safe address is used, such as your lawyer’s) stating the date when the application was received.  While reviewing the application, the USCIS may request additional evidence from you.  If the USCIS believes that you would meet all of the requirements if all of the information in your application were true, it will issue a “notice of prima facie case.”  This notice is a letter that may allow you to qualify for certain public benefits (please consult with an attorney familiar with public benefits for immigrants to determine what public benefits you may be eligible for), but it is not a final approval notice.  If the applicant establishes that s/he is eligible for self-petitioning under VAWA, the USCIS will grant the petition and issue an approval notice.  All approved self-petitioners are eligible for work authorization.*

* USCIS website – Instructions for Form I-360; and National Immigrant Justice Center website – VAWA Self-Petition Flow Chart

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back to topIf my self-petition is approved, when can I apply for legal permanent residence status (green card)?

If your self-petition is approved, the amount of time you will need to wait to apply for legal permanent residence (also known as “adjusting status”) depends on the family immigration system.  The family immigration system is a set of immigration laws that allow someone to obtain an immigration benefit through family relationships.

You can apply immediately for LPR status if you are the:

  • spouse of a US citizen (USC);
  • unmarried child (under 21 years old) of a USC; or
  • parent of a USC who is over 21 years old.*
When other self-petitioners (spouses and children of legal permanent residents (LPRs)) are able to apply will depend on something called the “family preference system.”*1   Because there is a limit in the number of people who can immigrate under certain categories each year, there is generally a waiting period until spouses and children of LPRs can apply for legal permanent residence.*2  How long the wait is will depend on a number of factors such as the nationality of the self-petitioner, his/her relationship with the LPR, and his/her “priority date.”*1  “Priority date” means the date when the self-petition was received by USCIS.*3  If the abuser filed a family petition on your behalf before you filed the self-petition, the priority date may be the date of that earlier filing.  Please check with an immigration lawyer for more information.

Additionally, if your self-petition was approved and you are applying for legal permanent residence status, you will have to demonstrate that you are not “inadmissible.”*4  There are many “inadmissibility grounds,” which are reasons why people cannot be “admitted” into the US (for example, criminal and fraud-related grounds, among others).*4   In other words, the inadmissibility grounds are reasons why someone may not be able to receive an immigration benefit, such as a green card.  An immigration attorney can tell you if you fall under one or more of the inadmissibility grounds, and also if there are exemptions or waivers available to you.

* INA § 201(b)(2)(A)(i)
*1 See generally US Department of State website – Visa Bulletin
*2 See generally INA § 203(a); and USCIS website – Green Card for a Family Member of a Permanent Resident
*3 USCIS website – Glossary
*4 INA § 212

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back to topIf my self-petition is approved, what can I get?

Depending on each case, once your self-petition is approved, you may be able to apply for some of the following things:

  • Deferred action: This means that Immigration will probably not try to remove (deport) you until you are able to apply for legal permanent residence.*
  • Work authorization: This means permission to work legally in the country – it is often called a “work permit.”**
  • Some public benefits:*** Please consult with an attorney who is familiar with public benefits for immigrants to determine what benefits you might qualify for.
  • Legal permanent residence status: For more information, see If my self-petition is approved, when can I apply for legal permanent residence status (green card)?
* See 8 CFR § 274a.12(c)(14)
** INA § 204(a)(1)(K)
*** See generally National Immigrant Justice Center website – VAWA Self-Petition Flow Chart

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WomensLaw.org is grateful to Gail Pendleton, Esq., Co-Director of ASISTA, for her invaluable help in editing this information.

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