Immigration Relief for Abused Children
A foreign child who is abused by a parent who is a US citizen or lawful permanent resident (green card holder) may apply for immigration protections under the Violence Against Women’s Act, or VAWA.
Note: Although VAWA refers to women, an abused child can be male as well.
Physical abuse normally involves injuries, but that’s not always the case. A witness who sees a parent striking the foreign child in anger can qualify along with other factors. Reporting abuse to the police or saving medical records helps. Injury to the child is not necessary, but is persuasive evidence; or
Mental cruelty must involve suffering by the victim due to the intentional infliction of suffering by the parent. Circumstances matter greatly. Many families argue, and even fight. The level of cruelty must be greater than not so unusual problems in the family. The age of the child is a factor. Normally, the cruelty is over the course of time to show there is no love in the relationship from the parent toward the child victim.
VAWA petition for a child
Filed by a parent:
An abused parent may include dependent children with the petition so long as the children are under 21 and unmarried. The parent may also file a VAWA petition for herself and her children if the abuse was directed at any of the dependent children.
A dependent child is not only a parent’s biological child. It can be a child through adoption, or perhaps a stepchild from a different marriage.
Filed by the child:
Stepchild: A stepchild may file under VAWA so long as the marriage between the abusive step parent and the stepchild’s biological parent occurred prior to the child turning 18 years of age. The abuse must have occurred while the stepchild was residing with the abusive step parent. The step parenting relationship must have existed at the time of abuse. In the event of death, separation, or divorce from the stepchild’s biological parent, the abusive step parent must have maintained a parenting relationship with the abused child at the time the abuse occurred.
Adopted child: An adopted child may file under VAWA if the adoption occurred prior to the 16th birthday of the abused child and such parent and child lived together at least 2 years after either adoption or legal guardianship was obtained. So, in the case of adoption, it appears that the child victim and the abusive parent must have lived together in the same home when the child was no older than 16. The abuse must also have occurred while the stepchild was residing with the abusive step parent.
Other General Requirements
A child must be under 21 years of age at the time the VAWA petition is filed. A child who is over age 14 at the time the petition is filed must show they are of good moral character, which generally means no criminal convictions or juvenile delinquencies, but it can also mean other things as well. The decision whether to grant VAWA protection is at the discretion of the USCIS.
Where to file a VAWA claim:
Most VAWA victims are inside the U.S. As such, a claim is filed with the USCIS. However, it is possible for a foreign child or the parent of an abused child to file a claim under VAWA at a U.S. consulate abroad if:
- The abuse must have occurred inside the U.S.;
- The abuser is an employee of the U.S. government; or
- The abuser is in the U.S. Armed Services.
It is also possible to file for VAWA while in removal (deportation) proceedings.
EAD Work Authorization
Normally, a child who is eligible to work in the US should be able to apply for work authorization in the U.S. 150 days after the VAWA petition is filed provided it appears the child is eligible for VAWA. Lately, there have been delays in the issuance of EAD cards. Working without authorization is not advised, but sometimes is necessary to survive.
All decisions by the USCIS and judges are discretionary. It is important to work with a competent immigration attorney in order to increase your chances of success and secure your VAWA immigration benefits.
We are very easy to talk to in this office, so please just call if you are having difficulties and want solutions. All calls are confidential. Your parent never needs to know you filed a VAWA claim, and you don’t need to discuss it. We are here to help and to give you information and guide you as needed.
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