In 1994, Congress passed VAWA (the Violence Against Women Act). It has many provisions, including an immigrant section enabling foreign nationals who have been abused by a spouse to self-petition for legal permanent residence, also known as a green card. Although it is titled “Women,” the act applies equally to foreign national men who are battered by a spouse.
The basics for obtaining a green card under VAWA are as follows.
1. The foreign national must have been abused (physical battery or extreme cruelty) by a spouse who is either a U.S. citizen or a legal permanent resident.
2. The foreign national must have entered into the marriage in good faith.
3. The foreign national must have lived with the spouse.
4. The foreign national must be a person of good moral character.
Generally, psychological abuse without any physical abuse is sufficient to meet the burden of extreme cruelty. Psychological abuse includes verbal abuse, social isolation, possessiveness, financial abuse, threatening to commit suicide, threatening or harming family pets, threatening to have the foreign national deported, refusing to file for legal permanent residence for the foreign national, etc.
There are numerous other noteworthy aspects to VAWA. The foreign national does not need to divorce in order to apply. If divorced, the divorce must have been less than two years old at the time of application to U.S. Citizenship and Immigration Services (USCIS). If the abuser has died, then if the death was less than two years ago, the foreign national can still apply. If the foreign national believed that he or she was married, but it turns out that the marriage was not valid, the foreign national may still be able to apply.
The most common use of VAWA is for the abused spouse of a U.S. citizen or legal permanent resident. But VAWA also covers the foreign national’s children, even if the children were not being abused. The foreign national spouse may also be able to apply even if the abuse is only towards their child. VAWA also applies if the U.S. citizen or legal permanent resident is abusing a foreign national parent or a foreign national child. The parent or child may self-petition. Sometimes the batterer loses legal permanent residence, and in some cases the battered spouse can still self-petition despite that loss.
U.S. immigration law is very harsh. Many immigration violations can make it difficult to immigrate despite being married to a U.S. citizen or legal permanent resident. Under VAWA, many of these violations are waived. Thus, it can sometimes actually be easier to immigrate through VAWA. Most criminal issues above a misdemeanor or past immigration violations may preclude some foreign nationals from being able to obtain legal permanent residence through VAWA. It may be possible to waive some of these with a strong showing of good moral character.
VAWA does not necessarily require that the spouse have police reports in order to be able to prove the abuse. There are many other types of documents that can be used. For example, here locally in Cooke County, an abused person who has gone to Abigail’s Arms for help will have proof of having sought help for the abuse and trying to improve their life through the many services offered there. Often, an abused person will need help to escape from the abuser, and that requires a team effort and significant time to relocate to a new house, find a job, and otherwise create a whole new life. Friends, neighbors, relatives and employers often will have some knowledge of the abuse, either because they will have seen bruises or witnessed behavior that tends to indicate abuse. The abuser will often have a criminal history showing a problem with drugs, alcohol or violence. These documents tend to show the character of the abuser. Married couples often have bank accounts and other assets in both names. If everything is just in one person’s name, that can often be because the abuser is trying to control the foreign national. One of the most important pieces of evidence is the foreign national’s written statement that details the relationship from its beginning up to the time of filing.
While many U.S. immigration cases can be filed without the assistance of an attorney, VAWA cases should likely be filed by an attorney, by Catholic Charities or by some other volunteer organization which is familiar with the process. These cases require a substantial amount of documentation. Both the attorney and the foreign national will spend many hours compiling the evidence.
While some unscrupulous foreign nationals may be tempted to falsely claim abuse, most such attempts will fail. Just as it really is difficult to fake a marriage for U.S. immigration purposes, it is equally difficult to fake abuse. While it is not impossible, the foreign national would need to be very familiar with the types of abuse that are typical or plausible. Most attorneys can sniff out when they are not being told the truth regarding abuse, mainly because the foreign national is simply not able to provide sufficient details, does not “present” as being in a mental state that is indicative of abuse, and is not able to provide outside witnesses to back up their story.
The process for applying for legal permanent residence through VAWA is very similar to applying for legal permanent residence based on marriage to a U.S. citizen, as the foreign national will submit evidence to show that there was a valid marriage and then also evidence of the abuse.
Alice Gruber has been practicing U.S. immigration and naturalization law since 1995. Since 2007, she has practiced in Cooke County for a range of small to medium-sized corporate clients nationwide, quarter horse ranches in Texas and individuals. She does regular pro bono immigration work for Abigail’s Arms Cooke County Family Crisis Center.