Know the Laws:
UPDATED January 13, 2009
This page includes information for obtaining legal status if you are married to an abusive US citizen or lawful permanent resident.
- Basic Info
- How do I Self-Petition under VAWA?
- Cancellation of Removal Process
- What is Cancellation of Removal?
- What will I need to show to be elegible for VAWA cancellation of removal if deportation proceedings for me have already begun?
- Is there a list of contents that must be included in the VAWA cancellation of removal application?
- Where do I send my cancellation of removal application?
- Battered Spouse or Child Waiver
Basic Info
back to topWhat is VAWA?
VAWA is the acronym for the Violence Against Women Act, which was passed by Congress in 1994. Among other things, VAWA created special provisions in United States immigration law to protect battered noncitizens. These provisions were updated in 2000 by the Battered Immigrant Women's Protection Act.
back to topHow can I get lawful permanent residency under VAWA?
The special provisions that VAWA created under United States Immigration law may help you obtain Lawful Permanent Residence. Under VAWA, battered non-citizens who are married to, or recently divorced from US Citizens or Lawful Permanent Residents can, in certain circumstances, self-petition (without the help or knowledge of their abusive spouse) to obtain Lawful Permanent Residence or to remove the condition on their 2-year Conditional Permanent Residence cards. If you have never been married to your abuser, or if your abuser is not a US Citizen or Lawful Permanent Resident, then you most likely do not qualify to self-petition for Lawful Permanent Residence under VAWA. However, you may qualify for a U-visa. For more information, see U-Visa Laws and Procedures.
Normally, when petitioning for Lawful Permanent Residence as a spouse of a U.S. Citizen or Lawful Permanent Resident, your spouse must initiate the petition with the United States Citizenship and Immigration Service (USCIS) of the Department of Homeland Security, and attend an interview with immigration authorities along with you in order for your petition for Lawful Permanent Residence to be granted. In relationships of domestic violence, this often means that the abusive spouse uses their ability to control the immigration status of the victim as yet another method of abuse. To eliminate this deeply damaging power dynamic, VAWA allows battered non-citizens to "self-petition” for Lawful Permanent Residence. In effect, instead of depending upon their abusive spouse to apply for the victim’s immigration status with USCIS, a victim can apply on his or her own behalf and on behalf of her children. The abusive spouse plays no role in the process and does not have to know you are applying. In fact, the law is clear that USCIS may not inform an applicant’s spouse that a victim has applied for a VAWA self-petition.
Because the law is complicated, before you apply for a VAWA with the USCIS, you should first consult a shelter worker, immigration attorney, or a domestic violence or immigration organization for assistance. You will find a list of local domestic violence organizations on the State and Local Programs page for your state under the Where to Find Help tab at the top of this page.
VAWA created a second way for battered non-citizens to obtain Lawful Permanent Residence under VAWA: "Cancellation of Removal." Cancellation of removal is available to battered noncitizens who are in, or can be placed into, removal (deportation) proceedings before an immigration judge. If a battered noncitizen qualifies for Cancellation, an Immigration Judge may waive deportation and grant him or her lawful permanent residency. However, because a battered noncitizen must be in removal proceedings before he or she can apply for Cancellation of Removal, and being in removal proceedings carries with it a substantial risk of deportation, please be certain to consult with an immigration attorney before proceeding.
VAWA created a third way for battered non-citizens to obtain Lawful Permanent Residence under VAWA: Battered Spouse or Child Waiver. If you have the 2 year conditional permanent residence card and you are a victim of domestic violence, your conditional status can be removed before the two year period.
If you are a victim of domestic violence, but do not think that you qualify for either a VAWA Self-Petition or Cancellation of Removal under VAWA, there may be other ways that you can obtain lawful immigration status in the United States. The best way to determine your eligibility is to discuss your personal situation with an attorney who specializes in immigration law.
back to topWhat if I am divorced, widowed, or remarried? Am I still eligible to self-petition?
It depends. Certain changes in your legal status do not affect your eligibility to Self-petition or to obtain Cancellation of Removal under VAWA: *
- The spouse of an abusive US citizen or lawful permanent resident can self-petition up to two years after divorce, if there is a connection between the divorce and the abuse.
- The spouse of an abusive US citizen can self-petition up to two years after the death of his/her spouse.
- The spouse or child of an abusive US citizen or lawful permanent resident can self-petition up to two years after the US citizen or lawful permanent resident loses immigration status, if the loss of status is related to domestic violence.
- You may remarry, but not until after your VAWA self-petition is approved. If you marry before filing the application or while it is still pending, you will lose the opportunity to obtain Lawful Permanent Residence through VAWA.
What about my children?
- If victim files self-petition while children are less than 21 years old and unmarried, his/her children will remain eligible to obtain lawful permanent residence no matter how long it may take the authorities to process and approve his/her application.
- If victim files self-petition while her children are less than 21 years old and unmarried, they may be able to be included on her application and may not need to file VAWA self-petitions themselves.
- The child of an abusive U.S. Citizen or Lawful Permanent Resident may file a VAWA Self-Petition up to the age of 25, but only if (a) they remain unmarried and (b)can prove that the abuse they suffered at the hands of their US Citizen or Lawful Permanent Resident parent is one central reason why they could not file a VAWA before they turned 21.
*INA § 204(a)(1)(A)(iii), NA § 204(a)(1)(D)(v)
How do I Self-Petition under VAWA?
back to topWhat should I know about VAWA self-petitions?
VAWA self-petitions must all be filed at the Vermont Service Center (VSC) of the United States Citizenship and Immigration Service, which is part of the Department of Homeland Security. The Vermont Service Center makes a decision based on the VAWA application and on the evidence that the applicant includes in support of it. They do not interview the applicant. VSC has a special group of officers reviewing these applications; this group receives regular training in domestic violence.
If the abuser is a U.S. citizen, a noncitizen victim may apply for their VAWA Self-petition, for a work permit, and for Lawful Permanent Residence at the same time. Once the Vermont Service Center receives the applications, they will send the applicant a temporary work permit (in an average of four months). Once the VAWA Self-petition is approved, which may take the VSC over a year, they will send your file to a local service center, where you will have to attend an interview so that the United States Citizenship and Immigration Service may determine your eligibility for Lawful Permanent Residence.
If the abuser is a lawful permanent resident, the noncitizen victim can only file the VAWA Self-Petition, and must wait until it is approved, which may take over a year, to apply for a work permit. However, you must wait for a visa to become available to you via the visa quota system before you can apply for lawful permanent residence.
All approved VAWA self-petitioners may stay in the United States to obtain lawful permanent residence status, regardless of how they entered the United States or whether their visa has expired. Approved VAWA self-petitioners may not travel outside of the United States until they obtain lawful permanent residence or parole via a pending lawful permanent residence application.
back to topWhat will I need to show in order to be elegible for VAWA self-petition?
1. Their Relationship with an abusive US citizen or lawful permanent resident - Only those who are or have been spouses or children or parents of US citizens or spouses or children (not parents) of lawful permanent residents qualify for immigration status under the VAWA provisions. This means, you must be one of the following: *
- the spouse or child of an abusive US citizen or a lawful permanent resident;
- the spouse or child of an abusive US citizen or lawful permanent resident who lost his status within the past two years because of domestic violence;
- the former spouse of an abusive US citizen or lawful permanent resident and a final order of divorce was issued in the past two years and was related to domestic violence;
- the spouse of an abusive US citizen or lawful permanent resident who was a bigamist, and you married him in good faith and with an intent to legally marry;
- the spouse of an abusive US citizen who died within the past two years;
- a non-abused parent of children abused by the US citizen or a lawful permanent resident spouse, even if the children and abuser are not related (you may also petition for these children);
- an abused child of a US citizen or a lawful permanent resident, (you may petition for your children also)
- an abused parent who has been battered or subjected to extreme cruelty by their adult (over 21 yrs old) U.S. citizen son or daughter
- All child applicants must be less than 21 years old when filing the initial self-petition with CIS. If you qualify, you may also file for your children. However, you may petition up to age 25 so long as the child abuse was at least one central reason for the filing delay. [805(c)] If you qualify, you may also file for your children.
- The abuser must have subjected the applicant -- to "battery or extreme cruelty."
- You must have resided with your abusive spouse or parent in the USA.
3. Good faith marriage
- You must show that you didn't marry your abuser solely for the purpose of gaining immigration status in the US
- If your spouse is a bigamist, you must show that you married in good faith, and with an intent to legally marry.
4. Good moral character
- You must show that you have "good moral character." The CIS primarily is concerned with criminal records when determining good moral character.
NOTE: A prior removal, exclusion or deportation order is NOT a bar to showing good moral character.
5. United States residence
- You must show that you currently reside in the United States, or
- If you reside abroad, you must show that the abuser works for the US government, is a member of the US military, or subjected you to domestic violence in the United States. This last situation is the only time when at least some abuse must have occurred in the US
back to topShould supporting evidence be included in the self-petition?
Yes, below is a suggested list of evidence that should be include alongside a VAWA self-petition. Remember, a shelter worker, immigration attorney, or a domestic violence or immigration organization can help an applicant gather the materials he or she may need and help the applicant fill out all the necessary forms. The information below is meant to be a guideline -- there may be other documents individual applicants may want to submit with their application (especially those applicants who are filing additional applications alongside the VAWA Self-Petition).
- Cover letter - this is the "roadmap" for the USCIS examiner
- G-28 Notice of Entry of Appearance (if represented by an attorney or advocate)
- Form I-360 with $375 fee, or fee waiver request
- Index
- Self-petitioner's detailed affidavit
- Evidence of self-petitioner's identity
- Evidence of qualifying relationship to US citizen or lawful permanent resident
- Evidence of abuser's status as a US citizen or lawful permanent resident
- Evidence of good faith marriage
- Evidence of battery or extreme cruelty
- Evidence of past or present residence with abuser
- Evidence of current residence
- Evidence of good moral character (you can show this by an affidavit or a background check or report issued by a law enforcement authority)
*NOTE: Links to all forms are available at Immigration Forms
back to topIf I am approved for the VAWA self-petition, what will I receive?
Approved VAWA petitioners will receive:
- Deferred action status until eligible to adjust status (that means that the government will not move to deport you)
- Employment authorization, but you must establish economic necessity (that you need to work)
- Public benefits (you are eligible for public benefits once USCIS has made an initial check of your application and notified you that you have met the minimum requirements; you do not need to wait until a final decision is made on your application)
Application determinations by USCIS take about one year to complete.
Note: This information is from the National Immigration Project Outreach Brochure on immigration.
back to topWhere do I send my application?
VAWA self-petition applications should be sent to:
VAWA self-petition applications should be sent to:US Department of Homeland Security
US Citizenship and Immigration Services
Vermont Service Center
75 Lower Welden St.
Saint Albans, Vermont 05479
Be sure to write "VAWA" on large red letters on front of envelope.
Cancellation of Removal Process
back to topWhat is Cancellation of Removal?
Under VAWA, if deportation or "removal" proceedings for you have already begun, you may be able to file to have that process cancelled. This is called a cancellation of removal.
back to topWhat will I need to show to be elegible for VAWA cancellation of removal if deportation proceedings for me have already begun?
If removal proceedings have already begun for you, you need to show the following to cancel removal:
1. Qualifying relationship with US citizen or lawful permanent resident - You must be one of these: *
- the spouse or child of a US citizen or a lawful permanent resident;
- the spouse or child of a US citizen or lawful permanent resident who lost his status within the past two years because of domestic violence;
- the former spouse of a US citizen or lawful permanent resident and the divorce took place in the past two years and was related to domestic violence;
- the spouse of a US citizen or lawful permanent resident who was a bigamist if you married the US citizen or lawful permanent resident in good faith and with an intent to legally marry;
- the spouse of a US citizen who died within the past two years;
- a non-abused parent of a child abused by a US citizen or lawful permanent resident spouse, even if the child and abuser are not related;
- abused "intended spouses" (fiance) of a US citizen or a lawful permanent resident; or
- an abused child of a US citizen or a lawful permanent resident.
- an abused parent who has been battered or subjected to extreme cruelty by your adult U.S. citizen son or daughter (816)
All child applicants must be less than 21 years old when filing the initial self-petition with CIS. However, you may petition up to age 25 so long as the child abuse was at least one central reason for the filing delay. [805(c)] If you qualify, you may also file for your children.
2. Battery or extreme cruelty by the abuser
- The abuser must have subjected you -- the applicant -- to "battery or extreme cruelty".
- This abuse need not have taken place in the United States.
3. Good faith marriage
- You must show that you didn't marry your abuser solely for the purpose of gaining immigration status in the US
- If your spouse is a bigamist, you must show that you married in good faith, and with an intent to legally marry.
4. Good moral character**
- You must also show that you have "good moral character." The CIS primarily is concerned with criminal records when determining good moral character
- You can not have lied for any immigration purposes.
- CIS may disregard some criminal offenses (including offenses associated with your abuse in some cases).
5. Leaving the United States would subject you or your child to extreme hardship. You can prove this by showing any of the following:
- You need access to US courts to obtain criminal prosecutions against your abuser, child support or custody, or to enforce any protective orders;
- You need access to social, medical, mental health and other services for yourself or your child that are not reasonably accessible in your home country;
- The laws and customs of your home country would penalize or punish you or your children for being victims of abuse, leaving the relationship, seeking a divorce, or for any other actions you took in ending the abuse;
- You would not be protected from your abuser or his family and friends in your home country; and/or
- Any other justifications you may be able to show extreme hardship.
6. Three years continuous physical presence in the US prior to application. ***
*INA §240A (b)(2)(b)(2)
* *INA §240A (b)(2)(A)(iii)
***INA §240A (b)(2)(A)(ii)
back to topIs there a list of contents that must be included in the VAWA cancellation of removal application?
Yes, below is a list of contents that must be included. A shelter worker, immigration attorney, or a domestic violence or immigration organization can help you gather the materials you need and help you fill out all the necessary forms. The information below is meant to be a guideline -- there may be other things you need for your specific case.
- Cover letter - this is the "roadmap" for the CIS examiner
- Index
- G-28 Notice of Entry of Appearance (if represented by an attorney or advocate)
- Form EOIR-40 Application for Suspension of
- Deportation with $100 fee
- Form EOIR-42B Application for Cancellation with $100 fee
- Form G-325A (biographic information) with photograph and fingerprints
- Self-petitioner's detailed declaration
- Evidence of self-petitioner's identity
- Evidence of qualifying relationship to US citizen or lawful permanent resident
- Evidence of abuser's status as a US citizen or lawful permanent resident
- Evidence of good faith marriage
- Evidence of battery or extreme cruelty (self-petitioner's declaration can be enough)
- Evidence of current residence
- Evidence of good moral character (you can show this by an affidavit or a background check or report issued by a law enforcement authority)
- Evidence of extreme hardship
*NOTE: Links to all forms are available at http://uscis.gov/graphics/formsfee/index.htm
back to topWhere do I send my cancellation of removal application?
VAWA self-petition applications should be sent to:
US Department of Homeland Security
US Citizenship and Immigration Services
Vermont Service Center
75 Lower Welden St.
Saint Albans, Vermont 05479
Be sure to write "VAWA" in large red letters on front of envelope.
Battered Spouse or Child Waiver
back to topWhat do I need to show to be eligible for battered spouse or child waiver?
Bettered spouse waiver petitioner must establish: *
- Good- faith marriage
- Qualifying abuse (physical battery or extreme cruelty)
Note: Because the marriage (or parent -child relationship) and immigration status of the relative have previously been legally decided, these issues do not need to be reviewed.
*INA 216(c)(4)(C)back to topWhat is Battered Spouse or child waiver?
This is for abused immigrants who already have a green card. But the green card is still “conditional” because it was granted less than two years ago.
Usually, the procedure for removing the condition on LPR statutes is to file a joint petition 90 days prior to the second anniversary of the day you were given the status. Under a battered spouse or child waiver, a conditional resident may file form I-751 at any time.