advocacy with immigrant survivors toolkit

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Help with Legal Cases: Immigration remedies

Survivor-specific: VAWA self-petitions

 

The Violence Against Women Act (VAWA) was first enacted in 1994. It creates immigration protections for some immigrant spouses, children, and parents abused by U.S. citizens and lawful permanent residents. Abused parents of US citizen sons or daughters may also apply for immigration relief under VAWA (in these cases, the immigrant survivor-parent does not have to be married to the aggressor, and/or the aggressor does not have to be a US citizen or lawful permanent resident).  

 

VAWA permits survivors of abuse by lawful permanent residents (LPRs) and US citizens (USCs) to obtain their own lawful permanent resident status (green cards) independently of their relationship with the abusive spouse or parent.  This protection is often called a “VAWA self-petition” because abused immigrants can petition for immigration status without depending on the support of their abusive family members.

 

This section of the Toolkit is intended to be a basic overview of VAWA self-petitions and is not considered legal advice.  For more information about VAWA practitioners in your area, visit the National Immigration Services Directory.

 

1. What are the requirements for a VAWA self-petition?

 

The main requirements for a VAWA self-petition are:

 

1) Valid qualifying relationship to an LPR or USC

2) If the application is based on marriage, proof of a good faith marriage

3) Battery or extreme cruelty

4) Residency with aggressor

5) Good moral character

 

2. Who may file a VAWA self-petition?

 

The following relatives are eligible to self-petition under VAWA:

  • An abused spouse or child (including step-child) of a USC or LPR;
  • A parent of a child who is abused by the parent’s USC or LPR spouse;
  • A parent abused by a USC son or daughter.

 

Important Note:  In 2015, the Supreme Court struck down laws prohibiting same-sex marriage.[1] This means that in every state and territory of the US, same-sex couples have the right to marry and have their marriages recognized across the country. Although the decision applies to some transgender persons (i.e., if they identify as male or female and have met the legal requirements for gender marker changes in the state in which they marry)[2], it is far from fully inclusive. Consequently, it is critical for survivors, advocates, and attorneys to know that both the US Department of Justice (DOJ), which administers VAWA funds, and the US Citizenship and Immigration Services specify for their services a more expansive understanding of gender:

·      The DOJ prohibits discrimination based on gender identity in “any program or activity funded in whole or in part with funds made available under [VAWA],” and states that “male, female, and transgender are all examples of gender identities.”[3]

·      USCIS “accepts the validity of marriage in cases involving transgender persons if the state or local jurisdiction in which the marriage took place recognizes the marriage as a valid marriage.”[4]

All abused immigrant spouses may apply for VAWA protections, provided that ceremony was legally valid in the state or country where it was performed.

 

3.  What benefits does a VAWA self-petition provide?

 

A VAWA self-petition allows for abused spouses or children (or abused parents of a USC child) to obtain their own green cards without having to live in an abusive relationship.  It also allows abused spouses to extend immigration benefits to minor children abroad so that families can be reunited.   How long it takes to get a green card will depend on whether the aggressor is a US citizen or a lawful permanent resident.   But all VAWA applicants are eligible to have a work permit once their applications are approved, which they can renew until they are ready to apply for their permanent residency.  

 

 4.  How does a VAWA self-petitioner apply for benefits?

 

All VAWA self-petitioners need to submit a Form I-360 to a special unit of US Citizenship and Immigration Services at the Vermont Service Center which has received extensive training working on victim-based forms of immigration relief.  Additional forms may be necessary depending on the status of the aggressor and certain other inadmissibility issues that may apply in the case.

 

In addition to this form, the VAWA self-petitioner must submit documents that prove they meet all the requirements, which depends on whether they are an abused spouse, child, or parent.

 

All VAWA self-petitionersmust include the following documents, regardless of their relationship to the aggressors:

                                       

·      Proof of status of aggressor. A self-petitioner must submit proof of the immigration status of the aggressor, that is, that the aggressor is a USC or an LPR. Proof of this may generally include the aggressor’s U.S. passport, aggressor’s birth or naturalization certificate, or official documents or records listing the aggressor’s name and place of birth. 

o   Note: It is important not to compromise a survivor’s safety by trying to obtain these documents.  If survivors cannot safely obtain proof of aggressors’ immigration status, then survivors may submit statements stating how they know aggressors are a USC or LPR (for example, attending their naturalization ceremony).

 

·      Proof of relationship with the aggressorSelf-petitioners must show their legal relationship with their aggressors.

o   For abused spouses:The marriage is considered valid for immigration purposes if it was legal in the place where it was performed. Although a marriage certificate is the most used proof of valid marriage, common law marriages  are considered valid if established in a state (or other jurisdiction) that recognizes common law marriages. If either spouse was married before, then proof of that prior marriage ending is required (divorce order, death certificate, annulment papers).

§  Abused spouses can also apply for VAWA if they divorced their aggressors within 2 years before they file for VAWA.  In these cases, a divorce order would also need to be included.

§  Abused spouses can also apply for VAWA if they believed the marriage was legal, but in fact the aggressor was married beforehand.  This “bigamy exception” allows self-petitioners to apply even if the marriage wasn’t legally valid.

o   For abused children: The most common way to show relationship with an abusive parent is a birth certificate, or for abused step-children, a copy of the birth certificate and the marriage certificate between the step-parent and natural parent.

o   For abused parents of US citizen children:Abused parents of US citizen children should submit a copy of the birth certificate listing the VAWA self-petitioners as parent to the child.

 

·      Proof of residency with the aggressor: Self-petitioners must submit proof that they lived with their aggressors. Documents that can show that an aggressor and a survivor lived at the same residence include leases or other property documents; school, medical, bank, tax or employment records; utility statements; letters from friends or family who knew that the survivor and the aggressor lived together; and the self-petitioner’s own personal statement. 

o   Note:Advocates can get creative to obtain documentation of joint residency.  If the survivor paid the phone bill which lists the joint address and the aggressor paid the cable bill listing the same address, then both utility statements can be used to show there was a shared address.

 

·      Battery or extreme cruelty: All VAWA self-petitioners must submit proof that they suffered battery or extreme cruelty.  Battery normally refers to physical or sexual violence, including (but not limited to) being punched, slapped, strangled, kicked, and/or forced to have sex.  Extreme cruelty has a more flexible definition.  An ASISTA newsletter states, “Extreme cruelty can include emotional abuse, frequent insults, humiliation, using the immigration system against the client, degradation, social isolation, accusations of infidelity, calling, writing or contacting the victim incessantly, interrogation of friends and family members, threats to victim and/or to family members, economic abuse, not allowing the victim to get a job, controlling all money in the family.”  Proof of battery or extreme cruelty can include

o   Survivor’s own personal statement

o   Copies of protection orders

o   Police reports or criminal court documents

o   Medical records

o   Photos of injuries

o   Letters from advocates or shelter staff

o   Letters from counselors or therapists

o   Letters from friends, family, neighbors, coworkers, who may have witnessed the abuse

 

·      Good moral character: All VAWA applicants must show they have good moral character.  Applicants older than 14 years of age must submit police clearances for every place they lived for more than 6 months in the three years before applying. Also, survivors’ personal statements should detail their involvement in the community, in the lives of their children, in the workplace, faith groups, etc.  Letters from family, friends, clergy, co-workers, and others are also helpful to show the survivor is a good person, parent, co-worker, relative, etc.

o   NOTE: It is important to encourage survivors to have honest conversations with their legal advocate or attorney about their criminal history, including arrests. Some criminal activity may negatively affect a finding of good moral character. The more the legal advocate or attorney knows up front, the better they are able to prepare a survivor’s application.

o   USCIS Good Moral Character Memo is a great reference guide on good moral character, potential problems, and how to address them.

 

·      Abused spouses of LPRs and USCs must also submit proof of good faith marriage. VAWA self-petitioners will need to show that they entered into their relationship with their US citizen or lawful permanent resident spouses in good faith, that is, that they married for love and not for immigration benefits.  Some common forms of proof of good faith marriage include (but are not limited to):

o   Personal statement from the applicant

o   Birth certificates of children born during the marriage

o   Leases, mortgage documents, or other property documents listing both spouses

o   Joint bank accounts, utilities, or tax returns

o   Insurance policies naming a spouse as a beneficiary 

o   Photos of when the couple was dating, or weddings or family events

o   Copies of emails, letters, or cards to one another

o   Declarations from family or friends who can say that the VAWA self-petitioner entered the marriage in good faith

 

5.  The role of the advocate in the VAWA process

 

Advocates are key partners in helping immigrant survivors of violence prepare their VAWA self-petitions, for example:

 

·      Find the right resources:  Advocates should identify and partner with immigration practitioners in their area with expertise on VAWA applications.  These partnerships are invaluable to share resources and areas of expertise to best help the survivor.

 

·      Find the right information: The immigration system is complex and changes rapidly. Domestic and sexual violence advocates can point immigrant survivors to the right information about the process and procedures for applying and help immigration practitioners identify any potential problems or issues.

 

·      Documentation: Advocates can help survivors collect documents that may help the VAWA self-petition (see “Document gathering for self-petitioning under the Violence Against Women Act,” a guide by the Immigrant Legal Resource Center). Advocates can also provide an important resource by writing a letter of support based upon their experiences working as an advocate for survivors of domestic or sexual violence (see “Domestic violence expert affidavit guidelines” by ASISTA for some practice tips for writing advocate letters of support).

 

Tools & Resources

 

VAWA Brochures:

·      Immigration options for victims of crime: Information for law enforcement, healthcare providers, and others (Opciones de inmigración para las víctimas de delitos: información para la policía, proveedores de servicios de salud y otros) by US Citizenship and Immigration Services

·      Immigrant victims of domestic violence: VAWA self-petition process for permanent residency by the Idaho Network to End Domestic Violence and Trafficking Against Immigrants

 

The Immigration Advocates Network Nonprofit Resource Center has an extensive VAWA library with many resources and checklists for advocates.  Registration is free for non-profit service providers.

 

ASISTA Immigration Assistance is a national organization serving the US Department of Justice’s Office on Violence Against Women (OVW) grantees with individual case assistance, extensive training, and practice advisories on VAWA self-petitions.  Private memberships are available to agencies that do not receive OVW funds.  Contact ASISTA at questions@asistahelp.org for more information.

 

The National Immigrant Women’s Advocacy Project has resources related to family law, public benefits and other immigrant victim protections. Click on “Immigration” for VAWA-specific resources.

 

The Immigration Legal Resource Center provides training and resources to immigrants, community-based organizations, and the legal system to advocate for the rights of immigrants. Click on “Info on immigration law” for VAWA-specific resources.

 

Catholic Legal Immigration Network offers resources and training to community legal immigration programs.

 

 



[2]Lambda Legal (n.d.). FAQs about transgender people and marriage law. New York: Author.

[3]US Department of Justice, Office of Justice Programs, Office for Civil Rights (2014, Apr 9). Nondiscrimination grant conditions in the Violence Against Women Reauthorization Act of 2013.

[4]US Citizenship and Immigration Services (2015, Jul 21). Ch. 2 – Marriage and marital union for naturalization.