Immigration Relief for Domestic Violence
A foreign spouse who is abused by a U.S. citizen or permanent resident green card holder may apply for immigration protection under the Violence Against Women’s Act, or VAWA. The abused spouse may file together with her or his unmarried child dependents who are under 21 years of age.
Although VAWA refers to women, abused spouses can be men as well.
Physical abuse normally involves injuries, but that’s not always the case. A witness who sees a husband striking the foreign spouse in anger can qualify along with other factors. The spouse must be against the abuse. Reporting abuse to the police or saving medical records helps.
Mental cruelty must involve suffering by the victim due to the intentional cruelty inflicted by the spouse. Circumstances matter greatly. Many couples argue, and even fight. The level of cruelty must be greater than the problems of a difficult marriage. Normally, the cruelty is over the course of time to show there is no love in the relationship and that the victim is not a willing participant in mutual aggression.
During the marriage
The abuse must have taken place during the marriage. There is no time limit when the abuse must have occurred. However, staying in the marriage long after the abuse stopped must be explained. If there is a divorce, the abuse must be the reason for the divorce.
A VAWA claim must be based on abuse by a spouse who is a U.S. citizen or LPR green card holder.
There is no VAWA claim if there is no marriage. Sometimes it happens that a marriage is invalid because the abuser was already married to someone else. A VAWA claim is still possible if the abused foreign spouse was unaware that the marriage is invalid.
The foreign spouse must have entered into the marriage in good faith and be an innocent victim.
You and your spouse must have resided together in the same household at some point during the marriage. It is not necessary to have resided in the same home during the abuse.
You may include your children with your petition so long as the children are under 21 and unmarried.
You may also file a VAWA petition for you and your children if the abuse was directed at any of your dependent children.
A child is not only your biological child. It can be a child through adoption, or perhaps a stepchild.
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 spouse to file a claim under VAWA at a U.S. consulate abroad if:
- The abuse occurred inside the U.S.; or if
- Either the abuser is an employee of the U.S. government or in the U.S. Armed Services.
It is also possible to file for VAWA while in removal (deportation) proceedings.
Limitation on filing
You must file your VAWA petition within 2 years after:
- The death of the abusive spouse; or
There is no such limitation if you are still married and the abuser is alive.
Your VAWA petition is invalid if you remarry before your VAWA petition is approved.
EAD Work Authorization
Normally, you may apply for work authorization in the U.S. 150 days after your VAWA petition is filed. 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 in your marriage and want solutions. All calls are confidential. Your spouse never needs to know you filed a VAWA claim, or even asked about it. We are here to help and to give you information so you can decide for yourself what you want to do.
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When you hire Allan S. Lolly & Assoc. P.C., you hire a team of experienced professionals with decades of knowledge who can help solve problems the right way. We take our work seriously. We want you to succeed, whether you are pursuing a green card, marriage visa, fiancé visa, bar waiver, victim rights, or other family or employment benefits.
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