Escaping Domestic Abuse-- Legal Residence Held Hostage
The Violence Against Women Act (VAWA) was enacted in 1994, in an effort to assist the spouses and children of United States Citizens and lawful permanent residents who are quagmired in physical and/or mentally abusive homes. With VAWA, these spouses and children that were formerly dependent on the abusive spouse to bring I-360 petitions for permanent residency can now independently file without the assistance, approval or knowledge of the abusive spouse.
Abused spouses, their unmarried children under the age of 21 and parents of United States citizens or lawful permanent residents can file a self petition with the United States Customs and Immmigration Service (USCIS) for legal permanent residency. VAWA is gender neutral as it equally protects both men and women. The self petitioner must successfully show that they have been victims of extreme cruelty, be it physical, mental or both. They must also be capable of proving the following:
1. That their marriage was entered into in good faith and not a sham marriage for purposes of obtaining immigration benefits.
2. That the abuser was a United States citizen or lawful permanent resident.
3. That the petitioner is a person of good moral character.
4. That the abuse took place inside of the United States unless the abuser was an employee of the United States government or a member of the armed services.
5. That the abuse occurred within two years of a judgment for dissolution of marriage or within two years of the death of the abuser.
6. That they have been continuously physically present in the United States for at least three years prior to the filing of their petiiton.
A VAWA petitioner is not permitted to remarry prior to the filing of a petition or while a decision on a filed petition is pending. A U-Visa is available for unmarried abuse victims of a United States citizen or lawful permanent resident. The U-Visa permits temporary legal status and employment for only 4 years though. Family members that can be included under the U-Visa are spouses, children, unmarried brothers and sisters under the age of 18, parents and step parents. Those seeking or obtaining a U-Visa are required to cooperate in any prosecution of the abuser for crimes that avail the victim to the U-Visa.
Cancellation of removal is a defense to deportation raised by abused individuals. A grant of cancellation of removal results in a judge conferring lawful permanent residency. If not eligible for an independent self petition under VAWA, the following persons are eligible for cancellation of removal:
1. The divorced spouse of an abuser more than two years after entry of judgment for dissolution of marriage.
2. The abused spouse of a lawful permanent resident who has died, or any abused children of a United States citizen or lawful permanent resident parent who has died.
3. The unmarried parent of a child abused by a United States citizen or lawful permanent resident.
4. An abused step child having a parent is an immigrant and has been divorced from the abusive step parent for more than two years.
5. The abused spouse or child of a United States citizen who renounced citizenship or a lawful permanent resident who lost their permanent residency more than two years ago.
6. Incest or child abuse victims that were abused when they were under twenty-one years of age and did not file an independent self petition who are now over twenty-one years of age.
7. Victims of child abuse who are unable to prove that they lived with the abuser.
Cancellation of removal is available to a person not involved in removal proceedings however, significant risks are involved and those risks must be weighed.
Credible and relevant evidence is pivotal in supporting a VAWA petiiton. Proof of the marriage can be proved with the certificate itself. If it is unavailable, a certified copies of the marriage license and certificate can be obtained from the city or county where the marriage took place. A prior immigration petition showing a marriage can also be used. That prior immigration file can also be used to show that the abuser was indeed a United States citizen or lawful permanent resident. Evidence of a bona fide marriage can be shown by joint land titles or leases, joint bank accounts or investments, joint vehicle titles or childrens' birth certificates. Evidence of physical and/or mental abuse can be proved through police reports, records of conviction, photographs of injuries, medical, pyschological or psychiatric records, radiological images, and affidavits or direct testimony of any occurrence or non-occurrence witness.
As VAWA petitions are complicated, tedious, and turn on specific evidence, it is strongly recommended that the petitioner be assisted with an experienced immigration attorney.
Abused spouses, their unmarried children under the age of 21 and parents of United States citizens or lawful permanent residents can file a self petition with the United States Customs and Immmigration Service (USCIS) for legal permanent residency. VAWA is gender neutral as it equally protects both men and women. The self petitioner must successfully show that they have been victims of extreme cruelty, be it physical, mental or both. They must also be capable of proving the following:
1. That their marriage was entered into in good faith and not a sham marriage for purposes of obtaining immigration benefits.
2. That the abuser was a United States citizen or lawful permanent resident.
3. That the petitioner is a person of good moral character.
4. That the abuse took place inside of the United States unless the abuser was an employee of the United States government or a member of the armed services.
5. That the abuse occurred within two years of a judgment for dissolution of marriage or within two years of the death of the abuser.
6. That they have been continuously physically present in the United States for at least three years prior to the filing of their petiiton.
A VAWA petitioner is not permitted to remarry prior to the filing of a petition or while a decision on a filed petition is pending. A U-Visa is available for unmarried abuse victims of a United States citizen or lawful permanent resident. The U-Visa permits temporary legal status and employment for only 4 years though. Family members that can be included under the U-Visa are spouses, children, unmarried brothers and sisters under the age of 18, parents and step parents. Those seeking or obtaining a U-Visa are required to cooperate in any prosecution of the abuser for crimes that avail the victim to the U-Visa.
Cancellation of removal is a defense to deportation raised by abused individuals. A grant of cancellation of removal results in a judge conferring lawful permanent residency. If not eligible for an independent self petition under VAWA, the following persons are eligible for cancellation of removal:
1. The divorced spouse of an abuser more than two years after entry of judgment for dissolution of marriage.
2. The abused spouse of a lawful permanent resident who has died, or any abused children of a United States citizen or lawful permanent resident parent who has died.
3. The unmarried parent of a child abused by a United States citizen or lawful permanent resident.
4. An abused step child having a parent is an immigrant and has been divorced from the abusive step parent for more than two years.
5. The abused spouse or child of a United States citizen who renounced citizenship or a lawful permanent resident who lost their permanent residency more than two years ago.
6. Incest or child abuse victims that were abused when they were under twenty-one years of age and did not file an independent self petition who are now over twenty-one years of age.
7. Victims of child abuse who are unable to prove that they lived with the abuser.
Cancellation of removal is available to a person not involved in removal proceedings however, significant risks are involved and those risks must be weighed.
Credible and relevant evidence is pivotal in supporting a VAWA petiiton. Proof of the marriage can be proved with the certificate itself. If it is unavailable, a certified copies of the marriage license and certificate can be obtained from the city or county where the marriage took place. A prior immigration petition showing a marriage can also be used. That prior immigration file can also be used to show that the abuser was indeed a United States citizen or lawful permanent resident. Evidence of a bona fide marriage can be shown by joint land titles or leases, joint bank accounts or investments, joint vehicle titles or childrens' birth certificates. Evidence of physical and/or mental abuse can be proved through police reports, records of conviction, photographs of injuries, medical, pyschological or psychiatric records, radiological images, and affidavits or direct testimony of any occurrence or non-occurrence witness.
As VAWA petitions are complicated, tedious, and turn on specific evidence, it is strongly recommended that the petitioner be assisted with an experienced immigration attorney.