Family and Immigration Law are very different areas of law: one is based on statutory law and the other is federal. As a lawyer, one can practice immigration law all over the United States whereas family law is state specific and you must be licensed in that particular state before you practice law to walk into court with your client. But even though these two areas of law seem to be so different, they do cross paths once in a while. Imagine a client walking in to your office and telling you that they want to get a divorce but they fear their husband because he is physically and mentally abusive towards her. She tells you that she is illegal in this country and that he has threatened to call ICE and have her removed from the United States, not to mention the fact that she will never see her children again. What can you do? As a Family law lawyer, you tell her that she needs to obtain a restraining order against him which if she is able to show her abuse allegations are true, that restraining order will be granted for at last three years. Then what? The restraining order will be in effect and the local law enforcement will protect her from the abusive husband but who will protect her from ICE? Many women (and men) do not know that they do not have to stay in an abusive relationship with their abusers if immigration consequences is the only reason. There is help available for them.
The Violence Against Women Act (VAWA) was passed by Congress and signed into law by President Clinton in 1994. VAWA created special provisions in immigration law to protect battered noncitizens who are married to, or recently divorced from US Citizens (USC) or Lawful Permanent Residents (LPR) can, in certain circumstances, self-petition to obtain LPR status or to remove the condition on their 2-year Conditional Permanent Residence cards.
Under normal circumstances, the USC or LPR spouse petitions for their relative, i.e. immigrant (or illegal) spouse. This means that the USC or LPR initiates the immigration process and attend an interview with immigration authorities along with the immigrant spouse in order for the petition to be granted, i.e. green-card. In domestic violence relationship this could mean that the abusive spouse (USC or LPR) will use his/hers ability to control the immigration status of the victim as yet another method of abuse. VAWA eliminates this extremely damaging power dynamic and allows the victim to “self-petition” for their green-card. What this means is that a victim no longer needs the abusive USC or LPR to petition for them and obtain a “green card.” The victim can petition herself/himself and petition for the children as well. Essentially, the abusive USC or LPR plays no role in the immigration process and they do not even have to know the victim is self-petitioning—in fact, the law is clear, the government may not inform the abusive USC or LPR of the VAWA self-petition.
In order for an individual to qualify for a self-petition immigrant application, they must fall within one of these categories:
- Abused spouses of U.S. citizens and LPRs
- Non-abused spouses of US citizens or LPRs whose children are abused (need not be biological child of abuser)
- Abused children (must meet the definition of a “child” under INA § 101(b)) of USCs or LPRs)
- Abused children of USCs may file until age 25 if main reason for delay is abuse;
- Abused parents of USC children
- Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith
In order to self-petition, you must prove:
- That abuser is a USC or LPR
- You are legally married to abuser and the marriage was entered into in good faith
- You suffered from Battery or extreme cruelty
- You were residing in the United States
- Self-petitioner lived with abuser
- Self-petitioner’s current residence
- Good Moral Character (3 years prior)
There are very strict document gathering requirements and evidence which must be submitted along with the application to prove the abuse/violence, status of the abuser and the immigrant. Because the victim has already been through so much abuse, despair, distrust, fear and anguish, this is a job best left to an attorney whether is through free legal services or retaining a private attorney.
