New changes regarding the Violence Against Women Act

The Violence Against Women Act (VAWA) was passed in 1994. Frequent amendments have been made to the law in the last ten years. As it relates to immigration, the law allows abused immigrant spouses and children to seek lawful permanent residence in the United States. The law only applies to those persons who are married to a United States citizen or permanent resident.

As a general rule, an alien seeking adjustment of status must have been lawfully admitted into the United States. Federal immigration law renders an alien who enters the country illegally inadmissible. Previously, the VAWA cancelled that inadmissibility for any alien who could show a "substantial connection" between the alien's unlawful entry and the alien's having been subjected to battery or extreme cruelty.

On April 11, 2008, the USCIS issued new guidance for the VAWA and immigration petitions. As of that date, an alien is not required to show a "substantial connection" between the qualifying battery or extreme cruelty and the alien's unlawful entry into the United States. Therefore, any alien who is abused by their United States citizen or permanent resident spouse, no matter how that person entered the U.S., can apply to adjust their status to a lawful permanent resident.

Who is Eligible?

To be eligible to file a petition under the VAWA you must qualify under one of the following categories:

• Spouse: You may petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition.
• Parent: You may petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries.
• Child: You may petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries

What are the Basic Requirements?

The spouse:

• Must be legally married to the U.S. citizen or lawful permanent resident batterer. A petition may be filed if the marriage was terminated by the abusive spouse's death within the two years prior to filing. A petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.
• Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.
• Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.
• Is required to be a person of good moral character.
• Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

How does a battered spouse or child apply?

The battered spouse or child needs to fill out Form I-360 (Petition for Special Immigrant) and include supporting documentation of their situation. Approval of this petition will stay any removal proceedings. Furthermore, the approved alien can received authorization to work and the ability to apply for lawful permanent residence.

If you or someone you know needs assistance in filing a battered spouse petition, please contact us [link]. The experienced and skilled immigration attorneys at Shihab & Associates Co., LPA are fully prepared to help you along every step of the way.

Victims of domestic violence should know that help is available to them through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD] for information about shelters, mental health care, legal advice and other types of assistance.