VAWA

As a battered spouse, child or parent, you may file an immigrant visa petition under the Immigration and Nationality Act (INA), as amended by the Violence Against Women Act (VAWA).

The VAWA provisions in the INA allow certain spouses, children, and parents of U.S. citizens and certain spouses and children of permanent residents (Green Card holders) to file a petition for themselves, without the abuser’s knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing.
 
The VAWA provisions, which apply equally to women and men, are permanent and do not require congressional reauthorization.

Help is also available from the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD). The hotline has information about shelters, mental health care, legal advice and other types of assistance, including information about filing for immigration status. For more information, visit the National Domestic Violence website.

Q. What if my Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, is denied?

A. If your petition is denied the denial letter will tell you how to file an appeal. You may file a Notice of Appeal along with the required fee at the Vermont Service Center within 33 days of receiving the denial. Once the fee is collected and the form is processed at the service center, the appeal will be referred to the Administrative Appeals Office in Washington, D.C.

Q. Can A Man File A Petition For Himself Under The Violence Against Women Act?

A. Yes, VAWA applies equally to victims of either sex.

Q. Do I Have to Remain Married to My Abusive Spouse Until my Form I-360 is Approved?

A. Effective Oct. 28, 2000, you may file a Form I-360 if you are still married to your abusive spouse or, in certain circumstances, if you are not still married to your abusive spouse. If you are not still married to your abusive spouse when you file Form I-360, you must meet one of the following exceptions:

•  You believed you were legally married to your abusive spouse but the marriage is not legitimate solely because of the bigamy of your abusive spouse.
• Your abusive spouse died within 2 years of filing the petition.
• Your abusive spouse lost or renounce his citizenship or lawful resident status due to an incident of domestic violence
• Your marriage to your abusive spouse was terminated within the 2 years prior to filing of the petition, and there is a connection between the termination of the marriage and the battery or extreme cruelty. 

The actual grounds for the termination of the marriage do not need to explicitly cite battery or extreme cruelty. After your petition has been filed, legal termination of the marriage will not usually affect the status of your petition. Unfortunately, current USCIS regulations do not reflect these statutory changes and still state that you must be married at the time of filing. USCIS is obligated to follow the statute, and you are no longer required to be married to your abusive spouse at the time of filing. You may wish to seek advice from an immigration attorney or legal advocate regarding this provision.

Q. Can A Divorced Spouse Seek Relief By Filing A Form I-360?

A. Yes. Effective Oct. 28, 2000, you may file a Form I-360 if the marriage was terminated within 2 years prior to the date of filing, if you can demonstrate a connection between the termination of the marriage and the battery or extreme cruelty. A battered spouse who cannot demonstrate such a connection may be eligible for battered spouse cancellation of removal. To qualify for battered spouse cancellation of removal, you must meet the other requirements that would be necessary for approval of a self-petition. In addition, you must have been physically present in the United States for 3 years immediately preceding the filing of the application for cancellation of removal, and you must demonstrate that your removal from the United States would result in extreme hardship to you or your child.

Your Form I-360 will be denied if you re-marry prior to the approval of the Form I-360. Remarriage after the Form I-360 has been approved will not affect the validity of the petition.

Q. What if My Abusive U.S. Citizen or Permanent Resident Spouse or Parent (or U.S. Citizen Son or Daughter) Filed a Form I-130, Petition for Alien Relative, on My Behalf, Which is Still Pending or Was Withdrawn?

A. If you are the beneficiary of a Form I-130, Petition for Alien Relative, filed by the abusive spouse, parent or child, you will be able to transfer the priority date of the Form I-130 to the Form I-360. This is extremely important for you if since it may result in an earlier priority date and a shorter waiting time for getting a Green Card.

Q. Can Anyone Else Assist Me?

A. If you need additional advice, you may contact the USCIS field office nearest your home for a list of community-based, non-profit organizations that may be able to assist you in applying for an immigration benefit. Please see the Find a USCIS Office page for more information on contacting USCIS offices. In addition, see the Finding Free Legal Advice page.

You should also know that help is available to you through the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 [TDD]. The hotline has information about shelters, mental health care, legal advice and other types of assistance, including information about self-petitioning for immigration status.

Introduction

Immigrants are particularly vulnerable because many may not speak English, are often separated from family and friends, and may not understand the laws of the United States.  For these reasons, immigrants are often afraid to report acts of domestic violence to the police or to seek other forms of assistance.  Such fear causes many immigrants to remain in abusive relationships.

This fact sheet will explain domestic violence and inform you of your legal rights in the United States.  Also, this fact sheet provides the same information as the pamphlet titled, “Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa (PDF, 52 KB).”  The International Marriage Broker Regulation Act (IMBRA) requires that the U.S. government provide foreign fiancé(e)s and spouses immigrating to the United States information about their legal rights as well as criminal or domestic violence histories of their U.S. citizen fiancé(e)s and spouses.  One of IMBRA’s goals is to provide accurate information to immigrating fiancé(e)s and spouses about the immigration process and how to access help if their relationship becomes abusive.

Questions & Answers

Q1.   What is domestic violence?
A1.   Domestic violence is a pattern of behavior when one intimate partner or spouse threatens or abuses the other partner.  Abuse may include physical harm, forced sexual relations, emotional manipulation (including isolation or intimidation), and economic and/or immigration-related threats.  While most recorded incidents of domestic violence involve men abusing women or children, men can also be victims of domestic violence.

Domestic violence may include sexual assault, child abuse and other violent crimes.  Sexual assault is any type of sexual activity that you do not agree to, even with your spouse, and can be committed by anyone.  Child abuse includes: physical abuse (any injury that does not happen by accident, including excessive punishment), physical neglect (failure to provide food, shelter, medical care or supervision), sexual abuse, and emotional abuse (threats, withholding love, support or guidance).

Under all circumstances, domestic violence, sexual assault and child abuse are illegal in the United States.  All people in the United States (regardless of race, color, religion, sex, age, ethnicity, national origin or immigration status) are guaranteed protection from abuse under the law. Any victim of domestic violence – regardless of immigration or citizenship status – can seek help.  An immigrant victim of domestic violence may also be eligible for immigration related protections. 

If you are experiencing domestic violence in your home, you are not alone.  This fact sheet is intended to help you understand U.S. laws and know how to get help if you need it.

Q2.    What are the legal rights for victims of domestic violence in the United States?
A2.    All people in the United States, regardless of immigration or citizenship status, are guaranteed basic protections under both civil and criminal law.  Laws governing families provide you with:

• The right to obtain a protection order for you and your child(ren).
• The right to legal separation or divorce without the consent of your spouse.
• The right to share certain marital property.  In cases of divorce, the court will divide any property or financial assets you and your spouse have together.
• The right to ask for custody of your child(ren) and financial support.  Parents of children under the age of 21 often are required to pay child support for any child not living with them.

Consult a family lawyer who works with immigrants to discuss how any of these family law options may affect or assist you.

Under U.S. law, any crime victim, regardless of immigration or citizenship status, can call the police for help or obtain a protection order.
 
Call the police at 911 if you or your child(ren) are in danger.  The police may arrest your fiancé(e), spouse, partner, or another person if they believe that person has committed a crime.  You should tell the police about any abuse that has happened, even in the past, and show any injuries.  Anyone, regardless of immigration or citizenship status, may report a crime.

Likewise, if you are a victim of domestic violence you can apply to a court for a protection order. A court-issued protection order or restraining order may tell your abuser not to call, contact or hurt you, your child(ren), or other family members.  If your abuser violates the protection order, you can call the police.  Applications for protection orders are available at most courthouses, police stations, women’s shelters and legal service offices.

If your abuser accuses you of a crime, you have basic rights, regardless of your immigration or citizenship status, including: the right to talk to a lawyer; the right to not answer questions without a lawyer present; the right to speak in your defense.  It is important to talk with both an immigration lawyer and a criminal lawyer. 

Q3.    What services are available to victims of domestic violence and sexual assault in the United States?
A3.    In the United States, victims of crime, regardless of their immigration or citizenship status, can access help provided by government or non-governmental agencies, which may include counseling, interpreters, safety planning, emergency housing and even monetary assistance.

The national telephone numbers or “hotlines” listed below have operators trained to help victims 24-hours a day free of charge.  Interpreters are available and these numbers can connect you with other free services for victims in your local area, including emergency housing, medical care, counseling and legal advice.  If you cannot afford to pay a lawyer you may qualify for a free or low-cost legal aid program for immigrant crime or domestic violence victims.

National Domestic Violence Hotline
1-800-799-SAFE (1-800-799-7233)
1-800-787-3224 (TTY)
www.ndvh.org

National Sexual Assault Hotline of the Rape, Abuse
and Incest National Network (RAINN)
1-800-656-HOPE (1-800-656-4673)
www.rainn.org

National Center for Missing and Exploited Children
1-800-THE-LOST (1-800-843-5678)
www.missingkids.com

The National Center for Victims of Crime
1-800-FYI-CALL (1-800-394-2255)
1-800-211-7996 (TTY)
www.ncvc.org

Note: These are organizations whose primary mission is safety and protection.

Q4.    If I am a victim of domestic violence, sexual assault or other crime, what immigration options are available to me?
A4.    There are three ways immigrants who become victims of domestic violence, sexual assault and some other specific crimes may apply for legal immigration status for themselves and their child(ren). A victim’s application is confidential and no one, including an abuser, crime perpetrator or family member, will be told that you applied.

• Self-petitions for legal status under the Violence Against Women Act (VAWA)
• Cancellation of removal under VAWA
• U-nonimmigrant status (crime victims)

These immigration benefits each have specific requirements that must be established.  Consult an immigration lawyer who works with victims of domestic violence to discuss how any of these immigration benefits may affect or assist you.

Q5.    How does the marriage-based immigration process work?
A5.    The marriage-based immigration process involves several steps to obtain legal immigration status in the United States, and over time, to be eligible for citizenship.  These steps depend on the type of marriage-based visa you travel on to the United States, as well as other factors.  The following information is an overview of some of these types of visas, as well as information on your legal rights.

K-1 nonimmigrant status (as the fiancé(e) of a United States citizen). You are required to either marry the United States citizen within 90 days of entry or to depart the United States.  Following your marriage to the U.S. citizen who petitioned for you, you must file an Application to Register Permanent Residence or Adjust Status (Form I-485).  If your Form I-485 is approved, your status will be adjusted from a K nonimmigrant to that of a conditional permanent resident.  You will have that conditional status for two years.

If you remain in the U.S. without marrying the U.S. citizen who sponsored your K-1 visa, or marry someone else, you will violate the terms of your visa, have no legal status, and may be subject to removal proceedings or other penalties.

K-3 nonimmigrant status (as the spouse of a United States citizen). You are allowed to enter the United States temporarily while waiting for approval of a family-based visa petition (Form I-130).  Once the Form I-130 is approved, you are entitled to lawful permanent residence (a “green card”) and will need to file an Application to Register Permanent Residence or Adjust Status (Form I-485). 

All other marriage-based immigration status holders should refer to the information given to them from the U.S. consulate.  Additional information may be found online at http://www.uscis.gov.

Q6.    What are the penalties for marriage fraud?
A6.    Immigrants cannot receive immigration benefits if they knowingly enter into a marriage for the purpose of evading immigration law or solely for an immigration benefit.  Conviction for marriage fraud can involve imprisonment for up to five (5) years and fines up to $250,000 (U.S. currency).  Immigrants who commit marriage fraud may be removed from the United States and may be permanently barred from future immigration benefits in the United States.

Q7.    If I am married to a U.S. citizen who filed immigration papers on my behalf, what is my immigration status?
A7.    If you have been married less than 2 years when your Form I-485 is approved, you will receive a conditional permanent residence status or “green card” from USCIS.  Ninety (90) days before the second anniversary of your conditional residence, you and your spouse must apply together to remove the conditions on your lawful residence.  To do so, you must prove the marriage is in “good faith” and valid.  Once the conditions are removed, you have permanent residency that is not dependent on your U.S. spouse.

If you have been married more than 2 years when your Form I-485 is approved, you will receive permanent residence status from USCIS.  On that date you will no longer be dependent on your U.S. citizen spouse for immigration status.

There are three situations when the law allows conditional residents the option to request a waiver of the requirement that you and your spouse file jointly to request removal of the conditions. 1) The removal of a conditional resident from the U.S. would result in extreme hardship; OR 2) The marriage was legally terminated, other than by death, and the applicant was not at fault for failing to file a timely application to remove the conditional residency; OR 3) During the marriage the U.S. citizen or lawful permanent resident spouse subjected the conditional resident to battery or extreme cruelty. All three waivers are filed on Form I-751 and require you to prove your marriage was in “good faith” and not fraudulent.

Q8.    What other ways does the U.S. government try to inform foreign fiancé(e)s and spouses about their rights and protect them and their children from abuse?
A8.    As mentioned above, the International Marriage Broker Regulation Act of 2005 (IMBRA) is a law in the United States that changed the marriage-based immigration process to help foreign fiancé(e)s and spouses.  IMBRA mandates that the U.S. government give immigrating foreign fiancé(e)s and spouses information and self-help tools to help protect them against violence from the partners who sponsor their visas.  Immigrating fiancé(e)s and spouses are often unfamiliar with the U.S. laws and unsupported by family or friends to escape violence at home.

IMBRA required a pamphlet be written and distributed to tell you about laws and services that can help you in the United States if you are abused.  The pamphlet is titled, “Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa.” The pamphlet presents the same information as this fact sheet.  IMBRA prevents U.S. citizens from sponsoring multiple visas for foreign fiancé(e)s if they have a history of violent crimes. IMBRA requires the U.S. government to give foreign fiancé(e)s and spouses of U.S. citizens a copy of the criminal background check that USCIS does on U.S. citizen-sponsors, as well as a copy of the visa sponsorship application.

Q9.   How does the U.S. government regulate “International Marriage Brokers”?
A9.   If an agency qualifies as an “international marriage broker,” it is prohibited from doing business with you if you are under 18 years of age.  The agency is required to give you background information on the U.S. client who wants to contact you, including information contained in federal and state sex offender public registries, and get your written permission before giving the U.S. client your contact information. The agency is required to give you a copy of the pamphlet mentioned above.  

Q10. Can I rely on the criminal background information on my U.S. citizen fiancé(e) or spouse?
A10. The criminal background information compiled by the agency comes from various public sources, as well as information provided by the U.S. citizen clients on immigration applications.  USCIS does not have access to all criminal history databases in the United States.  The U.S. citizen sponsor may not tell the truth in the sponsorship application.  It is also possible the U.S. citizen has a history of abusive behavior but was never arrested or convicted.  Therefore, the criminal background information you receive may not be complete.  The intent of IMBRA is to provide available information and resources to immigrating fiancé(e)s and spouses. Ultimately you are responsible for deciding whether you feel safe in the relationship. 

Q11. Can foreign spouses who are victims of domestic violence also be victims of human tracking?
A11. Other forms of exploitation, including human trafficking, can sometimes occur alongside domestic violence, when the exploitation involves compelled or coerced labor, services, or commercial sex acts. Help regarding human trafficking may be found at:

• National Domestic Violence Hotline
• Violence Against Women Reauthorization Act of 2013