Violence Against Women Act (VAWA) Self-Petitions: How to Apply
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Violence Against Women Act (“VAWA”) protects immigrant children, parents and spouses of U.S. citizens and permanent residents who have been abused by their relative. Such protection is necessary, because it would remove the power of the abuser to impede the immigrant’s adjustment of status in the U.S. Generally, the U.S. citizen or permanent resident spouse, parent or child has to petition for and sponsor their relative. VAWA removes such requirement and allows the abused immigrant to petition for themselves.
ELIGIBILITY
The requirements are as follows. Every applicant has to show that they suffered battery or extreme cruelty at the hands of their relative; that they resided with the abuser, and that the applicant is a person of good moral character.
There are some specific requirements for different categories of applicants. For instance, spouses have to show that either they or their child was abused by the U.S. citizen or permanent resident spouse.
The applicant has to be married to their abuser or their marriage to the abuser has been terminated by death or a divorce (related to the abuse) within the 2 years prior to filing the petition. Of course, the applicant has to prove that the marriage was bona fide, i.e. that they did not get married just to get immigration benefits.
An abused parent has to provide evidence that they were abused by their U.S. citizen son or daughter. Notice that parents of U.S. permanent residents do not qualify. They also have to show that the abuser is at least 21 years old when the self-petition is filed.
An abused child has to be under the age of 21 and unmarried (or under the age of 25 if they can demonstrate that the abuse was the main reason for the delay in filing). If the child is less than 14 years old, they are presumed to be a person of good moral character.
If you decide that you are eligible, you can submit a self-petition using Form I-360 and the supporting evidence. The petition should be submitted to United States Citizenship and Immigration Services (“USCIS”).
EVIDENCE
Evidence of the abuser’s U.S. citizenship or lawful permanent resident status;
Evidence of your legal relationship to the abuser (marriage certificate, birth certificate);
Evidence showing that you and the abuser have resided together (mortgage, lease, utility bills, medical records, insurance policies; affidavits from friends and family);
Evidence of the abuse (police reports, court records, hospital records, social workers’ reports);
If you are 14 years of age or older, your affidavit of good moral character accompanied by a local police clearance, state-issued criminal background check, or similar report from each locality or state in the United States or abroad where you have resided for six or more months during the 3-year period immediately before the filing of your self-petition; and
If you are a spouse, evidence showing your marriage was entered in good faith (insurance policies, property leases, tax returns, bank statement, affidavits of friends and family).
TWO-STEP PROCESS
Generally, the VAWA green card process includes two steps: first, Form I-360 self-petition, then adjustment of status application using Form I-485. Form I-485 can only be filed if Form I-360 is approved. Similarly, you can apply for an Employment Authorization Document only after your I-360 was approved.
However, if you are a self-petitioning battered spouse or child of U.S. citizen spouse or parent, you can file Form I-360 and Form I-485 at the same time (concurrently). In that case you can apply for an Employment Authorization Document at the same time. This is a much faster process.
DENIAL
If your case is denied, you will receive a denial letter with instructions. To appeal, you will have to file a Notice of Appeal along with the required fee or a fee waiver request within 33 days of receiving the denial. If you miss the 33 day deadline you will be placed in removal proceedings.
The appeal will first be reviewed by the officer who originally denied the self-petition to make sure that the case should not be reopened based on the new evidence and arguments submitted with the appeal. If the officer decides that the case should not be reopened, it will be referred to the Administrative Appeals Office.
The AAO will issue a decision on the case. The denial of the appeal by the AAO can be challenged in a federal district court. When a case is appealed in Federal Court, the burden of proof for the appellant is very high. A Federal Court will reverse an administrative decision only when it was arbitrary, capricious, or not otherwise in accordance to the law.
RISK OF DEPORTATION
Pursuing a VAWA self-petition can land you in removal proceedings in the following circumstances:
If you file your I-360 at the same time as an adjustment of status application and your adjustment application is denied;
If you have a criminal conviction;
If you committed misrepresentation or fraud.
Absent these egregious negative factors, your I-360 self-petition should not open you to removal proceedings.
LAST TIP
If you proceed without an attorney, you should be aware that one of the most important parts of your self-petition is your affidavit. The affidavit should provide as much detail as possible in your own words. The affidavit is basically the story of your relationship with your abuser, and should explain how the abuse occurred. The affidavit should be designed to elicit sympathy from the immigration officer and be supplemented with supporting evidence, to paint a detailed and comprehensive picture of your relationship and abuse.