It is unfortunately all too common that some abused noncitizens stay in abusive relationships because an abusive family member, such as a spouse, parent, or child, holds a vital key to their immigration status in the United States. The abused noncitizens rightfully fear that they may be deported, which can happen at any time until the noncitizen has obtained legal immigrant status. In addition, undocumented noncitizens are not eligible for some types of government aid such as food stamps, which is critical assistance to victims of domestic violence. As a result, the abusive spouse uses the immigration process to control the undocumented spouse either by refusing to file a family petition, or by threatening to withdraw a pending petition, or even calling immigration authorities to start deportation proceedings. The abused undocumented spouse then does not leave the abusive relationship, does not object to the abuse, and does not call the police to report the abuse.
In 1994, Congress took note of this problem and enacted The Violence Against Women Act (VAWA), which was amended in 1996, 2000, 2006 and 2013. VAWA allows victims of abuse to gain lawful immigrant status on their own, or self-petition, without having to rely on an abusive relative to start and complete the process. Despite the name, protection under VAWA is available to both men and women.
VAWA, thus, allows a spouse, child (under 21), parent of an abused child (unmarried and under 21), or a parent who is physically battered and/or subjected to “extreme cruelty” by a U.S. citizen or legal permanent resident spouse, parent or adult U.S. citizen child, to self-petition for immigration benefits. In the case of an abused spouse, he/she must demonstrate that (1) he/she entered into the marriage in good faith and that the marriage is still valid, or was terminated less than two years prior to the filing of the self-petition (an exception exists for marriages where the abuser committed bigamy without the self-petitioner’s knowledge); (2) he/she resided with the abuser during the marriage; (3) he/she was battered or subjected to extreme cruelty during the marriage (note that police required are good evidence but not required for the reasons described above); (4) he/she is a person of good moral character (no crimes), although a waiver may be available for certain crimes if they are connected to the history of domestic violence.
Given the limitation noted above, time is of the essence for those who have a final decree of divorce. In addition, a thorough immigration history of the undocumented immigrant is required to assess the case and determine the best way to proceed.
Marie E. Wood is an Immigration Attorney in Riverside County. Let her help you achieve your immigration dreams!