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An Overview of the VAWA Self-petitioning Process

April 1, 2002

Author: Barbara Weiner

Background: General process for petitioning INS to permit the entry of relatives to the United States.

Who can file family based petitions:

  • Citizens can petition for their immediate relatives, defined to include spouses, children and parents (so long as the citizen petitioning for the parent is at least 21 years old). There are no numerical limitations on the number of immediate relatives of citizens who can immigrate. Once the family based petition is granted, the sponsored immigrant is eligible to adjust to permanent residency. See 8 USC § 1151(b)(2)(A)(i).
  • Citizens can also petition for siblings and adult, married and unmarried, sons and daughters, but there are annual
    limits on the number of visas granted for these relatives. See 8 USC §§ 1153(a)(1), (3) and (4).
  • Lawful permanent residents (LPR) may petition for their spouses, theirr children and/or their adult unmarried sons or daughters but there is a cap on the number of visas available for the immigration of these relatives. LPRs cannot file family petitions for their parents or siblings. 8 USC § 1153(a)(2).

Applying for permanent residency for family based immigrants is a two part process:

  • First the citizen or LPR must submit a "Petition for Alien Relative" to INS, called an I-130. See 8 USC § 1154(a).
  • If the I-130 is approved by INS, the next step is for the sponsored immigrant to file for adjustment of status or, if the sponsored relative is still abroad, consular processing. See 8 USC § 1255. At this time, to address the "public charge" ground of inadmissability, the immigrant's sponsor must file an I-864 affidavit, promising to support the relative on whose behalf the I-130 was filed. See 8 USC §§ 1182(a)(4) and 1183a.
    • If the sponsor is a citizen and the immigrant is an immediate relative, the sponsored immigrant is eligible to adjust to permanent resident status right away. However, only "conditional residency" will be granted to the spouse of a citizen (and to the immigrants spouse's child) if the marriage is less than 2 years old at the time the adjustment is sought. A joint application to remove condition must be filed at the end of the 2 year conditional residency period. See 8 USC § 1186a.
    • If the sponsor is an LPR, the immigrant's eligibility to adjust status to permanent resident after the family petition is approved by INS will be governed by the numerical limitations on immigrants coming to the United States from his or her country. This process can take years, even for the spouses and children of LPRs.

Immigration remedies for battered spouses and children.

  • In 1986, Congress passed the Marriage Fraud Act. One of its provisions is that immigrants married to US citizens or LPRs whose application for adjustment of status is filed within 2 years of the date the marriage was entered into can only be granted conditional residency status. See 8 USC § 1186a(a). A joint petition by the spouses to remove the condition has to be filed within 90 days of the termination of a two year period. At the time, Congress also provided for a waiver of the joint petition filing requirement if the immigrant could show extreme hardship (to herself or her child) or that, although the marriage was entered into in good faith, it had terminated before the joint petition could be filed. In 1990, Congress added abuse of the immigrant spouse or her child as a ground for granting a waiver of the joint filing requirement (also known as the battered spouse waiver). See 8 USC § 1186a(c)(4).
  • The 1994 Violence Against Women Act (VAWA) provided two additional forms of relief to battered spouses and children of citizens and LPRs, recognizing that abusive sponsors often used their control over the immigration process of the battered immigrant as another means of abuse. The 1994 Act granted:
    • battered spouses and/or children of citizens or LPR abusers the right to self petition (for the self-petition rules for spouses and children of citizens, see 8 USC §1154(a)(1)(A); for the rules for spouses and children of LPRs, see §1154(a)(1)(B)) and
    • battered immigrants placed in proceedings by INS, the opportunity to apply for suspension of deportation or cancellation of removal as long as the immigrant victim of violence had continuously resided in the country for 3 years. (See 8 USC § 1229b(b)(2).)
  • VAWA recognized that the immigrant's dependency on the citizen or LPR spouse for immigration status provides additional opportunity for an abuser spouse (or parent) to exert power and control, by, for example:
    1. Failing to file necessary immigration papers with INS on behalf the non-citizen spouse (or child);
    2. Threatening to report the immigrant spouse (or child) to INS and expose her undocumented status;
    3. Threatening to separate the immigrant spouse from her children by reporting her to INS;
    4. Threatening to report her if she works without a green card, and/or
    5. Intimidating her by hiding or destroying important papers.
  • VAWA 2000, the Battered Immigrant Women Protection Act, improved VAWA remedies, in large part by exempting victims of domestic violence from some of the harsher provisions of the 1996 Illegal Immigrant Responsibility Act that made it much harder for immigrants in general to enter or remain in the U.S. The VAWA 2000 improvements are noted below.

To be eligible to self-petition under VAWA as amended, the battered spouse (or child) must show that the abuser spouse (or parent) is a US citizen or lawful permanent resident; that the marriage (including an intended marriage) was entered into in good faith (battered spouse only); that the immigrant spouse or her child (or a self-petitioning child) has suffered battery or extreme cruelty; that the abused spouse (or child) resided with the abuser spouse (or parent); and that the self-petitioning spouse (or child) is a person of good moral character. Elaboration of each of these requirements including, in certain cases, the supporting evidence that should be submitted by the self petitioner, follows:

  • The abuser spouse (or parent) is a US citizen or LPR:
    • Primary evidence - the abuser's US birth certificate, passport, residency (green card) or naturalization papers.
    • If such primary evidence is not available, INS must apply a liberal evidence standard. In addition, INS must check its own records to verify the status of an abuser who is alleged to be a naturalized citizen or a lawful permanent resident.
    • What if abuser loses status? The VAWA 2000 amendments provide that the loss or renunciation of an abuser's citizen or LPR status will not affect the VAWA application if the abuser's loss of status did not occur more than two years before the self-petition was filed and is related to the domestic violence (for example, if the abuser LPR is deported for conviction of the crime of domestic violence).
    • What if an LPR abuser becomes a citizen while the VAWA petition is pending? Here the VAWA 2000 amendments also made things better. Now if an abuser naturalizes, a pending or approved VAWA petition is automatically classified as self-petition filed by a spouse of a US citizen, which allows the applicant an opportunity to file immediately for adjustment upon the approval of her petition. 
  • The marriage or intended marriage to the abuser was entered into by the battered immigrant spouse in good faith. The VAWA 2000 amendments added "intended marriage" (the self-petitioner is the "intended spouse") to provide relief to petitioners of abusive citizen or LPR spouses whose marriages are not legitimate because of the bigamy of the abusive spouse.
    • Evidence of the marriage: a copy of the marriage certificate or, if the ceremony took place in a country or state recognizing customary or common law marriages, documents showing that the relationship meets the requirements of the country or state recognizing such unions (currently Washington DC, Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas and Utah).
    • Evidence of "good faith":
      1. self-petitioner's own detailed affidavit (and any of friends or family)
      2. wedding pictures, photos, letters and other evidence of genuine courtship
      3. evidence of cohabitation: lease, utility bills and mail addressed to both the abuser and the non-citizen spouse at the same address
      4. financial interdependence: joint credit cards, joint tax returns, joint bank accounts, insurance policies showing self-petitioner as beneficiary
      5. birth certificates of children of the relationship
    • What if the abuser dies or the marriage ends in divorce? Under VAWA 2000, a divorce or the death of the abuser no longer operates as a bar to the filing of self-petition as long as:
      1. in the case of divorce, the petition is filed within 2 years of the divorce and the divorce is connected to abuse, or
      2. in the case of the death of the abuser, the abuser was a citizen and the petition is filed within 2 years of his death.
    • Remarriage of the victim will not nullify an approved self petition.
  • The immigrant spouse or her child, or a self-petitioning child, suffered battery or extreme cruelty at the hands of the abuser citizen or LPR. The immigration status of a self-petitioner's child or his/her relationship to the abuser is not relevant when the basis of the immigrant spouse's self-petition is the battery of her child.
    • The abuse can be psychological or physical and includes acts of violence or threatened violence, psychological or sexual abuse, and includes acts that "...in and of themselves may not initially appear to be violent but that are part of an overall pattern of violence" (e.g. violence towards pets or physical objects designed to instill fear in the self-petitioning spouse or child).
    • The abuse must have taken place during the marriage, though not necessarily while the battered spouse was living with the abuser (similarly, though a self-petitioning child must have resided at some point with the abuser parent, the abuse need not have occurred during that time).
    • Evidence of abuse should include, as far as available:
      1. self-petitioner's detailed affidavit, supplemented by friends, family, neighbors who may have witnessed abuse;
      2. copies of temporary and final protective orders;
      3. domestic violence shelter records or other evidence that the victim sought shelter away from the abuser;
      4. medical records, photos substantiating abuse;
      5. police reports;
      6. counseling records and expert affidavits of social workers, shelter counselors, psychologists, etc. (these will be especially critical if the battered immigrant, out of fear, did not go to the police, to court or to seek medical care at the time the abuse was taking place).
  • The self-petitioner meets VAWA's residency requirements:
    • The self-petitioning spouse or child must be residing, or have resided some time in the past, with the abuser spouse or parent (in the case of a self-petitioning child, residence includes visitation).
    • The self-petitioning spouse or child must be residing in the United States at the time of application for residency under VAWA, or,
    • If the self-petitioner is residing in a country outside the US at such time, the battered immigrant must show that the abusive spouse or parent:
      1. is an employee of US government, or
      2. is a member of the armed forces, or
      3. subjected the self-petitioning spouse (or her child) or the self-petitioning child to battery or extreme cruelty in the United States.
  • The self-petitioner is a person of good moral character.
    • The self-petitioner must show that there is no statutory bar to a finding of good moral character or that the bar, if it exists, is waivable:
      1. Pursuant to INA § 101(f), a person is not eligible to be considered a person of good moral character if he or she has committed or is convicted of certain acts, for example, prostitution, gambling, drug possession, crimes of moral turpitude. However, if the act or conviction is connected to the abuse and is waivable as a bar under INA § 212 (admissibility) or § 237 (deportability), the Attorney General has been given the discretion by VAWA 2000 to find good moral character not withstanding the conviction or the act.
      2. If there is charge or conviction on her record, the self-petitioner must submit the charging document, indictment and disposition.
      3. In the case of such convictions, the self-petitioner's own affidavit and the affidavit of any other knowledgeable party should explain the connection of the offense to the abuse suffered by the self-petitioner.
    • Evidence of good moral character includes:
      1. affidavits from clergy, teachers, friends, neighbors or community organizations;
      2. police clearance letters from all places where the self-petitioner has lived for 6 months or more within the last 3 years.
  • A note about extreme hardship. Before the amendments to VAWA were enacted in the Fall of 2000, VAWA self-petitioners had to show that deportation would cause them extreme hardship. This is no longer required. However, there is no prohibition against the self-petitioner addressing that issue in her affidavit and it may be helpful to do so, particularly if there is some negative information about the self-petitioner in the record and the exercise of discretion by INS is being sought.

Confidentiality and the prohibition against INS use of information supplied by abuser.

  • In its 1996 immigration legislation, Congress included a provision that prohibits employees of the Department of Justice (which includes INS and the immigration court) from making any adverse determination about a person's application for status using information furnished by the applicant's "...abuser, an abusive member of the applicant's household or someone who has abused the applicant's child." (See § 384 of IIRAIRA.)
  • This provision also prohibits the use or disclosure of information relating to self-petitioners, conditional residents requesting battered spouse waivers or applicants for cancellation of removal, to anyone except other INS officers and then only for legitimate agency purposes.

Assembling the papers and filing.

  • All self-petitions are filed at the Vermont Service Center and not with regional INS centers. The petition, called a "Petition for Amerasian, Widow or Special Immigrant" and numbered I-360 must be filed with a $130 fee. For self-petitioners who have no means to pay the fee, immigration regulations provide for the waiver of fees for indigent applicants.
  • What to include in the filing:
      1. self-petitioner's detailed affidavit describing relationship to abuser; the abuse; though not necessary, if available, hardship to the applicant or her children if deported;
      2. proof of self-petitioner's identity and status (birth certificate, passport, INS documents);
      3. proof of qualifying relationship, including the marriage certificate and divorce certificates of any prior marriage, etc.;
      4. proof of abuser's status such as US birth certificate, naturalization certificate, residency card, previously filed I-130 family petition;
      5. proof of good faith marriage;
      6. proof of battery or extreme cruelty;
      7. proof of residency together; and
      8. proof of good moral character.

Receipt by Vermont Service Center (VSC) and adjudication of self-petition

  • Once the self-petition is properly filed, INS will issue a receipt. If not everything that should have been submitted has been included, INS may send notice of what additional information should be supplied.
  • The Notice of Receipt contains a receipt date and, for battered spouses or children of LPRs, a priority date. This is generally the same date unless a family based petition had already been filed earlier by the abuser spouse, in which case the priority date from the family petition will be transferred to the self-petition.
  • After it receives the petition, the VSC first makes a determination about whether or not the self-petitioner has made out a prima facie case for relief. This is essentially a determination that the petitioner has provided information addressing each of the eligibility requirements under VAWA. If the INS determines a prima facie case has been made, a Prima Facie Notice is issued.
  • The Prima Facie Notice may entitle the self petitioner to qualify for certain federal public benefits, providing that the petitioner is otherwise eligible and the benefits provider determines that the need for benefits is substantially related to the domestic
  • If the self-petition is granted, INS will issue an Approval Notice and generally grant Deferred Action status. At that time, the applicant is also notified of her eligibility to apply for employment authorization by filing form I-765 and an affidavit of economic necessity. The grant of Deferred Action and employment authorization are time limited but application for extensions can be made numerous times (always with additional filing fees).
  • If the self-petition is not granted, INS may:
    • Ask for additional information, by way of a Notice of Action giving the self-petitioner 60 days to respond (time can be extended), or
    • Issue a Notice of Intent to Deny, setting forth the reasons and, again, giving applicant additional time to respond before a final denial is issued.
  • If the self-petition is denied, INS will issue a Notice of Denial. The self-petitioner then has 30 days to file a Motion to Reconsider or Reopen with the Administrative Appeals Unit.

U and T visas: U visas are for non-citizen victims of crimes including victims of domestic violence. The crime victim must provide certification from law enforcement that the U visa applicant has been, or is likely to be, helpful in the prosecution of the criminal activity. T visas are similar to U visas but are designed specifically for those who have been subjected to sex trafficking or other severe forms of trafficking. T visa applicants must show extreme hardship involving unusual and severe harm if they are removed from the U.S. Both U and T visa holders can apply for LPR status after 3 years. See 8 USC § 1255(l).

Cancellation of removal: An immigrant spouse (or intended spouse) or an immigrant child who is placed into removal proceedings and who has been battered or subjected to extreme cruelty by a citizen or lawful permanent resident spouse or parent may apply for cancellation of removal. An immigrant who has been placed in removal proceedings and who is the parent of a child who has been battered by the child's citizen or lawful permanent resident parent may also apply for cancellation of removal. See USC § 1229b(b)(2). (The application for cancellation of removal is one place where abused immigrants who are not married to their abusers but who have children in common can obtain relief.) The immigrant seeking cancellation must show three years continuous residence, good moral character and that removal would result in extreme hardship, either to the immigrant, her child, or, in the case of an immigrant child, his/her paren

 





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