Generally, in order to obtain permanent residence, a spouse or child of a U.S. Citizen or Permanent Resident must be sponsored by that relative through filing an immigrant visa petition. Under the Violence Against Women Act (VAWA) a spouse or child of a U.S. citizen or Lawful Permanent Resident may self-petition to obtain lawful permanent residency. In other words, a person who qualifies under VAWA, may obtain permanent residence without the cooperation – or even the knowledge– of the U.S. Citizen or Permanent Resident. Both males and females may qualify under VAWA.
A qualifying spouse must:
- Be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse’s death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse. If the applicant has remarried before filing the special immigrant petition, the petition will be denied.
- Have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.
- Have been battered inside the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.
- Be a person of good moral character.
- Have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.
- A child must be unmarried and under 21. the child must be related to the US citizen or permanent resident through birth, marriage, or adoption.
The Special Immigrant Petition is filed with the US Citizenship and immigration Service (CIS) by mail. After initial review, the CIS will issue a Notice of Prima Facie Determination. The applicant may present this Notice to state and federal agencies in order to receive public benefits (welfare, food stamps, or other public benefits or assistance).
If the Special Immigrant Petition has been approved, the CIS will take the following action:
- If the applicant is or was married to (or a child of) a US citizen, the CIS approval notice will direct the applicant to file an application for adjustment of status, if eligible. If not eligible for adjustment of status, the applicant may need to leave the US for processing of an immigrant visa at a US Embassy overseas.
- If the applicant is or was married to (or a child of) a permanent resident, the CIS approval notice will inform the applicant to wait until a visa number is available under the family 2A immigrant quota.
- If the applicant is or was married to (or a child of) a permanent resident and the applicant does not hold valid temporary immigration status, the CIS will usually grant the applicant “deferred action” status. “Deferred action” means that the Service will not initiate removal (deportation) proceedings against the self-petitioner. Deferred action status will be valid for up to 24 months beyond the date a visa number becomes available. With Deferred Action status, the applicant may obtain a work permit while waiting for visa number availability.
For more information about VAWA, please contact our office.