Overview of Immigration Overview:
(Adapted from www.Womenslaw.org)

 

http://www.EndAbuse.org/vawa/
This site contains legal information on VAWA.

What is VAWA?

VAWA stands for the Violence Against Women Act, and is an act that was passed by Congress in 1994 that, among other things, created special routes to immigration status for certain battered noncitizens. These provisions were updated in 2000 in the Battered Immigrant Women's Protection Act.


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How can I get lawful permanent residency under VAWA?

Under VAWA, there are two ways for women who are married to US citizens or lawful permanent residents to get their residency. If you have never been married to your abuser, or if your abuser is not a US citizen or lawful permanent resident, then you do not qualify for residency under VAWA. However, you may qualify for a U-visa. For more information, see U-Visa Laws and Procedures.

The first way to get residency through VAWA is called "self-petitioning." Instead of depending upon your spouse to apply for your residency with CIS, you can apply on your own for yourself and your children. Your spouse plays no role in the process and does not have to know you are applying.

Because the law is complicated, before you go to the CIS, 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 Links & Resources page for your your state on this website.

The second way to obtain residency under VAWA is called "cancellation of removal." This is available to you only if you are in, or can be placed into, deportation proceedings. If you qualify for cancellation, the court may waive your deportation and grant you lawful permanent residency. However, because you must be in deportation proceedings before you can apply, be certain to see an immigration attorney before proceeding.

If you don't seem to qualify under VAWA, there may be other ways you can get legal status. The best thing to do is to discuss your situation with an immigration or domestic violence advocate. You should do this before calling the CIS.


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What should I know about VAWA self-petitions?

VAWA self-petitions must all be filed at the CIS Vermont Service Center. The Vermont Service Center makes a decision "on the papers," without an interview with you, the applicant. Vermont has a special group of CIS officers reviewing these applications; this group receives regular training in domestic violence.

If your abuser is a U.S. citizen, once the Vermont Service Center approves your self-petition, you may immediately apply for lawful permanent residence at your local CIS office.

If your abuser is a lawful permanent resident, once the Vermont Service Center approves your self-petition, you will also have work authorization. However, you must wait for your number to come up in the visa quota system before you can apply for lawful permanent residence.

All approved self-petitioners may stay in the United States to obtain lawful permanent residence status, regardless of how you entered the United States or whether your visa has expired. This is called "adjusting status."


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How do I self-petition?

You should always consult a shelter worker, immigration attorney, or a domestic violence or immigration organization for assistance in the self-petition process. For listings, see Local and Online Resources.

In most states, Catholic Charities will provide you with legal assistance relating to immigration. Go to www.catholiccharitiesinfo.org/states/ and search for the contact information in your state. (Note: You do not have to be Catholic to receive their assistance.)

To find someone that can help, see the Links & Resources page for your state on this website, or call the National Domestic Violence Hotline: 1-800-799-SAFE (7233) or (TTY) 1-800-787-3224.


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What will I need to show in order to win a VAWA self-petition?

To win a VAWA self-petition case, you must show four things:

1. Relationship with US citizen or lawful permanent resident - Only those who are or have been spouses or children or parents of US citizens or lawful permanent residents qualify for immigration status under the VAWA provisions. This means, 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, and you married him 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 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 "intended spouse" (fiance) of a US citizen or a lawful permanent resident; or
  • 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 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. 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.

2. Battery or extreme cruelty

The abuser must have subjected you -- the applicant -- to "battery or extreme cruelty."
This abuse need not have taken place in the United States. (except see #5 below)
At some point you must have resided with your abusive spouse or parent. You do not need to have resided together in the United States. And there is no minimum co-residency requirement.

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. You can not have lied for any immigration purposes.
CIS may disregard some criminal offenses (including offenses associated with your abuse in some cases). NOTE: A prior removal 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


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What if I am divorced, widowed, or remarried? Am I still eligible to self-petition?

It depends. Certain changes don't affect your eligibility to self-petition:

If you are a spouse of a US citizen, you can self-petition up to two years after the death of your spouse.


If you are a spouse of a US citizen or lawful permanent resident, you can self-petition up to two years after divorce, if there is a connection between the divorce and the abuse.


If you are a spouse or child of a US citizen or lawful permanent resident, you can self-petition up to two years after the US citizen or lawful permanent resident loses immigration status, if it is related to domestic violence.


As long as you file your self-petition while your children are unmarried and under the age of 21, then they do not age out. (Would they still be eligible to self-petition up to age 25 so long as child abuse was at least one central reason for the filing delay?)
Getting re-married after your self-petition is approved does not change the approval status of your petition.


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Is there a list of contents that must be included in the self-petition?


Yes, below is a list of contents that must be included in the self-petition. Remember, 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 below information is meant to be a guideline -- there may be other things you need for your situation.

  • Cover letter - this is the "roadmap" for the CIS examiner
    G-28 Notice of Entry of Appearance (if represented by an attorney or advocate)
  • Form I-360 with $185 fee, or fee waiver request
  • Index
  • 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 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)
  • Form I-765, application for employment authorization, with affidavit of need, photographs, and $175 fee


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Where do I send my 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" on large red letters on front of envelope.


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What is a U-visa?

The Victims of Trafficking and Violence Protection Act of 2000 created two new nonimmigrant visas for noncitizen victims of crimes, the T-visa and the U-visa. Both visas are designed to provide immigration status to noncitizens that are assisting or are willing to assist authorities investigating crimes.

The U visa is designed for noncitizen crime victims who have suffered substantial physical or mental abuse from criminal activity and who agree to cooperate with government officials investigating or prosecuting this criminal activity.

Your abuser does not need to be a U.S. citizen or lawful permanent resident, and you do not have to have been married to the abuser to be eligible for a U visa.

As of December 2004, CIS had not yet issued regulations on U visas. However, CIS has issued guidance on providing interim relief for you if you are eligible for a U visa. This means that you cannot apply for a U-visa at this time, but you may be able to apply for temporary status until those regulations are issued.

After three years, U visa holders may apply for lawful permanent residence.

The T-visa is for victims of severe forms of trafficking in persons who assist in the investigation or prosecution of trafficking and who would suffer extreme hardship involving unusual and severe harm if they were deported. For more information on the T-visa, see an immigration attorney, or contact the National Immigration Project.


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What is U-visa interim relief?

Because the CIS has not yet published regulations governing these visas, it is not yet possible to obtain a U-visa.

However, the CIS may grant temporary legal status, called U-visa interim relief, to those who are eligible until there is a process for applying. This temporary status is offered to victims until the U-visa regulations are published to ensure that they have a chance to apply for a U-visa.

The requirements for U-visas and U-visa interim relief are the same.

U-visa interim relief and employment authorizations are valid for one year. You must apply for an extension every year before the expiration of the current period.


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If a U-visa isn't available now, is there anything I should do?

If you qualify for the U-visa, you may apply for U-visa interim relief. You should start gathering documentation to establish eligibility for U-visa status. This includes collecting:

  • proof of being victim of a crime
  • proof of suffering substantial physical or mental abuse as a result of the crime; and
  • proof of being helpful to law enforcement officials in the investigation and/or prosecution of the crime.
  • You should get a certification from a law enforcement official who is working with you in the investigation or prosecution of the crime that the conditions listed above are met. It is very important to obtain this certification from law enforcement officials as soon as possible, while you are involved in providing information and assistance. In this way, you will have the documents you need when the application procedure is in place.


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What are the benefits of a U visa?

Approved U visa petitioners will be granted temporary legal status and work authorization. After three years, you will be eligible to apply for lawful permanent resident status.

Up to 10,000 U visas will be available each year for eligible applicants.


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Can I become a lawful permanent resident if I hold a U-visa?

Yes, once the U-visa regulations have been published and actual U-visas are issued. U-visas will allow you to apply to become a lawful permanent resident if:

  • you have been physically present in the United States for 3 years since you were issued the U-visa (or since you were given U-visa interim relief); or
  • you can show that your continued presence in the United States is supported by humanitarian grounds, to ensure family unity, or is otherwise in the public interest; or
  • CIS can decide, in its discretion, to reduce the three year wait to become a lawful permanent resident if it receives certification from law enforcement officials saying that they do not object.
    Note that the U-visa interim relief is not an actual visa, and it does not make you eligible for lawful permanent residence until the actual U-visas are available.


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Am I eligible to apply for a U Visa?

Maybe. Victims of a broad range of criminal activity listed in the legislation may qualify for U visas. Many of these victims will be women and children and include victims of domestic violence, nannies subjected to abuse from their employers, trafficking victims, and victims of rape in the workplace.

If you are already participating in removal (deportation) proceedings, you can still apply for a U visa.

To qualify for a U visa, you must show:

that you have suffered "substantial physical or mental abuse" as the result of one of the following forms of criminal activity (or "similar" activity) conducted in the US:

  • rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.
  • that you possess information concerning the criminal activity;
    that you can provide a certification that states that you are being, have been, or are likely to be helpful to the investigation or prosecution of the criminal activity. (This certification must come from a federal, state, or local law enforcement official, prosecutor, judge, or authority that is investigating the criminal activity.); and
  • that you are otherwise admissible to the US (that you are not barred from the US for any reason).
  • Judges are well qualified to provide the certification that you will need to obtain this protection. Certifications also may provide information on the mental or physical abuse you have suffered. They may also state that you possess information concerning the criminal activity.


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Is there a list of contents that must be included in the U- visa application?

Yes, below is a list of contents that must be included in the U visa application (and the interim relief application). Remember to consult with a shelter worker, immigration attorney, or a domestic violence or immigration organization to help you gather the required materials.

  • cover letter (this should be a "road map" for the CIS examiner)
    applicant's declaration (must be detailed, describe the abuse, and how the application meets each U visa requirement)
    personal information (including some form of identification)
  • description of the crime committed-can include any of the following
  • U Visa certification form (see below)
    a police report of the crime
  • a copy of a restraining order and
    any documents used to obtain the restraining order
    documents showing substantial physical and/or mental abuse-can include any of the following:
  • can be detailed in the applicant's declaration;
  • declarations of witnesses to the abuse;
  • declarations of police, health care workers, etc…;
  • medical reports documenting the effects of
    physical or mental abuse to the applicant;
  • reports or evidence of appointment with counselors, shelters, etc…; and/or
  • photographs that show the abuse
  • law enforcement certification signed within the last 6 months showing the following (note that there is no official form or format for this certification):
  • must state that the applicant was a victim of one or more crimes protected by the U Visa;
  • must identify the crime(s); and
  • must verify the victim is, has been, or is likely to be helpful to the prosecution or investigation of the criminal activity
  • The National Immigration Project has made a sample certification form available on its website, along with an explanation for law enforcement officers on the form


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Where do I send my U-visa interim relief application?

U visa interim relief applications should be sent to:

US C.I.S. Vermont Service Center
VAWA Unit, Box 1000
75 Lower Welden St.
Saint Albans, Vermont 05479


Be sure to write "DO NOT OPEN IN THE MAILROOM" in large red letters on front of envelope.


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How is my current temporary visa affected by U visa interim relief?

If you have a current temporary (non-immigrant) visa, you can apply for a U- visa or U-visa interim relief.

If you are granted U-visa interim relief, you will have to cancel your current nonimmigrant visa and not renew it.


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Can family members benefit from the U-visa?

Certain family members of persons granted U visa status can also qualify for a U- visa. These include the spouse and children of the principal applicant granted U status (as long as the spouse was not the person who committed the crime against you). Where the applicant is a child crime victim, the parent may qualify as well.

To qualify as a family member, a designated government official must certify that an investigation or prosecution would be harmed without the assistance of the qualifying relative.The CIS must unusually determine that the qualifying relative would suffer extreme hardship if a U visa is not granted, however in some cases you do not have to prove this "extreme hardship" requirement.


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Should I, as a U-visa applicant, go to CIS for "interim relief"?

You may not want to go to the CIS for "interim relief," even if you think you qualify as a potential U-visa applicant. There is always the possibility of deportation if you do not have a current legal status.

Because there are not yet regulations on the U visa, there are many questions about how CIS will interpret the eligibility requirements. If you are currently undocumented and you approach CIS for U visa interim relief, you could be deported if your U visa application is denied.

In all cases, you should consult with an immigration expert. S/he can help you figure out if you are likely to qualify or if there is a risk of being deported. To find help, please see Local and Online Resources.


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If I have been the victim of domestic violence, should I apply for VAWA or for a U-visa?

It depends. Some victims of domestic violence can seek immigration status under VAWA and do not need to wait for the U visa to be implemented to seek legal status.

If you are an abused spouse or child of a lawful permanent resident or US citizen, you are eligible to self-petition to gain lawful status under VAWA.

Victims of domestic violence who are not married to the abuser, or who have been abused by spouses who are not US citizens or lawful permanent residents, are not eligible to self-petition under VAWA, but may seek status under the U visa.

You should discuss either of these options with an immigration specialist BEFORE you go to the CIS. To find help, please see Local and Online Resources.
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