What Is the Violence Against Women Act (VAWA) and How Does Does It Impact Immigration?

What Is the Violence Against Women Act (VAWA) and How Does It Impact Immigration

You may have special access to U.S. immigration pathways under the Violence Against Women Act (VAWA). Under VAWA, the U.S. government commits to protecting victims of domestic and sexual violence. As the battered noncitizen spouse or child of an abusive U.S. citizen or permanent resident, you may be eligible to apply for a green card. In this article, you’ll learn more about the history of VAWA, how to qualify for a green card under VAWA, and how you can submit your application.

What Is the Violence Against Women Act?

The U.S. government first passed the Violence Against Women Act (VAWA) as part of the Violent Crime Control and Law Enforcement Act of 1994. At the time, current U.S. President Biden worked in the Senate and drafted the act. VAWA was the first federal legislation to acknowledge victims of crimes like sexual assault, domestic violence, dating violence, and stalking. VAWA also advocated for community responses to gender-based violence. Since 1994, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) have administered VAWA.

Congress passes a renewed Violence Against Women Reauthorization Act every five years. A VAWA renewal incorporates new amendments and initiatives to protect survivors. As of today, VAWA offers some of the following protections:

• Assurance that victims of all income levels won’t need to pay for their exams at rape crisis centers or to serve protection orders.

• Assurance that all state, tribal, and territorial jurisdictions in the United States will recognize and enforce protection orders.

• A stronger federal penalty for repeat sex offenders.

• A federal “rape shield law,” which prevents offenders from using victims’ past sexual conduct against them in a rape trial.

• Assistance to communities’ dedicated law enforcement agencies and prosecution units and domestic violence dockets. The U.S. government hopes that this objective will strengthen criminal justice and increase overall rates of prosecution, conviction, and sentencing of offenders.

• Assurance that police will respond to crisis calls.

• Funds to annually train over 500,000 judges, law enforcement officers, prosecutors, and victim advocates on the realities faced by domestic and sexual violence victims. 

• Special provisions for women in Indigenous communities. The U.S. government wants to ensure that Indigenous women in Native American or American Indian tribal communities outside of federal jurisdiction remain protected.

How Did VAWA’s Recent Reauthorization Strengthen the Law?

The most recent VAWA reauthorization happened in March 2022 under the Biden administration. According to the White House’s 2022 VAWA Reauthorization Fact Sheet, the law now offers these additional protections:

• Reauthorization of all current VAWA grant programs until 2027.

• Improved healthcare responses to victims of domestic violence and sexual assault and special training for sexual assault forensic examiners.

• The expansion of special criminal jurisdiction of tribal courts. This will allow tribal courts to hold non-Indigenous offenders accountable for their actions against Indigenous victims. This will also include sex trafficking, a form of human trafficking.

• More services and support for underserved populations, including minority and LGBTQ+ survivors of sexual violence and stalking. This will include community-based services and support for culturally specific services and services throughout rural communities.

• Creation of a federal civil cause of action for offenders who distribute victims’ intimate visual images without consent. Victims will be able to claim damages and recover legal fees.

• Creation of a National Resource Center on Cybercrimes Against Individuals.

• Greater support for the Rape Prevention and Education Program and Sexual Assault Services Program.

• Enactment of the Fairness for Rape Kit Backlog Survivors Act.

• Enactment of the National Instant Criminal Background Check System (NICS) Denial Notification Act.

• Revising the SMART Prevention Program and CHOOSE Youth Program to encourage dating violence prevention.

Green Card Eligibility Under VAWA

Certain abuse victims are entitled to petition for lawful permanent resident status in the United States. You may be eligible to apply for a green card if you are the spouse, former spouse, or child of an abusive U.S. citizen or green card holder. The abused parents of U.S. citizen children may also be eligible for green card status.

Fortunately, you won’t need your abusive relative’s permission to apply for your green card. Instead, those eligible under VAWA self-petition for the application process. The U.S. government asks that you self-petition for this application for your protection. Many victims are concerned that their abusers will further harm or prevent them from applying. Self-petitioning helps to ensure you’re safe from your abuser’s potential retaliation.

As a self-petitioner, you can request that your unmarried children also receive green card status. If U.S. Citizenship and Immigration Services (USCIS) approves you for a VAWA-based green card, they can also grant your children derivative green card status.

VAWA Self-Petition Requirements

As a self-petitioner, you must meet specific eligibility criteria to pursue a green card under VAWA. First, you need to demonstrate that you have one of the qualifying relationships under VAWA:

• You are the spouse, intended spouse, or former spouse of an abusive U.S. citizen or permanent resident. For this category, you must also prove one of the following:

  • You are married to an abusive U.S. citizen or permanent resident.

  • You were married to an abusive U.S. citizen or permanent resident but legally terminated the marriage. Acceptable reasons would include the death of your spouse or a divorce with a spouse holding either status. The divorce must be due to the abuse and must occur within no more than two years before you file your petition.

  • You were married to an abusive U.S. citizen or permanent resident, but your spouse lost or renounced their U.S. status. Sometimes, spouses lose their U.S. citizen or permanent resident status after domestic violence investigations. If this happens to your spouse, you should file to self-petition under VAWA within two years.

  • You thought you were legally married to an abusive U.S. citizen or permanent resident. This may occur if your marriage was illegitimate. For example, bigamy might invalidate your marriage’s legality. 

  • You are the child of an abusive U.S. citizen or permanent resident parent.

  • You are the parent of an abusive U.S. citizen child who is over 21 years old.

Other eligibiliy criteria include the following:

• You faced battering or extreme cruelty by your U.S. citizen or permanent resident relative during your relationship. Spouses can also apply if their U.S. citizen or permanent resident spouse committed child abuse.

• You reside or used to live with your abusive U.S. relative.

• If applying through an abusive marriage to a U.S. citizen, you must prove that you both began your marriage in good faith. In other words, you did not marry only to receive certain immigration benefits.

• You can prove that you are a person of good moral character. In other words, you are portraying your situation accurately.

Grounds for Inadmissibility 

You’ll need to be admissible to the United States to obtain a green card. There are certain cases where you might be inadmissible according to the Immigration and Nationality Act. Generally, you may be inadmissible for health, criminal, national security, fraud, misrepresentation, and immigration violation reasons.

In most cases, being a public charge or entering the United States without inspection would cause inadmissibility concerns. As an abuse victim, however, entry without inspection will not disqualify you from getting a green card. Being a public charge means the U.S. government believes you’ll likely need to rely on government assistance to survive. Abuse victims also won’t be disqualified from applying for a green card based on being a public charge.

In some cases, you may be able to apply for a waiver of inadmissibility. You should review the USCIS Policy Manual on Admissibility and Waivers if you have any concerns. With a waiver, USCIS can decide to proceed with your application.

The VAWA Application Process

There are two processes a VAWA self-petitioner can use to apply for a green card. You may apply for your green card from within the United States or abroad. The process from within the United States is known as adjustment of status (AOS). The overseas process is called consular processing. If applying from abroad, you’ll need to work with your local U.S. embassy or consulate.

If you apply from within the United States, you’ll need to check the visa bulletin to see whether an immigrant visa is available immediately. If so, you can file Form I-485, Application to Register Permanent Residence or Adjust Status. To qualify for a green card, you’ll also need approval on your Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. If an immigrant visa is available immediately, you don’t need to wait until USCIS approves your Form I-360 to file Form I-485.

Typically, a VAWA self-petitioner adjusting status as an immediate relative will have a visa immediately available. If you go through the AOS process through another family-based preference category, however, you may need to wait for a visa to become available.

If you apply abroad, USCIS will forward your VAWA self-petition to the National Visa Center (NVC), an agency of the U.S. Department of State. The NVC will forward your petition to your local consulate or embassy. They will also notify you about the next steps.

Suppose your abusive spouse, parent, or child had already filed a pending or withdrawn Form I-130 petition on your behalf. In this case, you may transfer the priority date from your Form I-130 to your Form I-360, resulting in a shorter waiting time for a green card.

Note that both immigrant women and men are eligible to apply. A VAWA self-petition is not limited by gender.

Seeking Help and Safety Now

Your green card application may take a while to process, depending on USCIS processing times. At any point, you should be able to view updates using the USCIS Case Status Tracker online.

If you self-petition under VAWA, you should be cautious about your abusive relative’s access to your devices, documents, or mail. USCIS will not directly alert them if you apply. You also won’t ever need to disclose your choice to apply to your abuser as you wait for approval. However, you should ensure that your abuser cannot access your accounts. You should also have official mailings sent to a trusted friend or relative.

You should be aware of several resources if you need any support during the waiting period. You may always reach out to the National Domestic Violence Hotline at 800-799-SAFE (7233) or 800-787-3224 (TTY). This hotline offers immediate victim services, and a representative can provide information about nonprofit organizations and community advocacy resources. For example, there may be shelters or medical, mental health, and legal assistance services near you.

You do not need to remain married to your abuser when filing to be eligible. Although USCIS has not updated its rules on this, it must follow recent statutory changes. Your grounds for marriage termination don’t need to cite battery or cruelty explicitly.

Conclusion

VAWA requires the U.S. government to maintain a special commitment to the abuse victims of its citizens and permanent residents. If you are or have been one of these victims, you may be entitled to certain immigration status pathways. You should apply for a green card to ensure that you’re safe and will never need to depend on your abusive relative for your immigration status.