SELF PETITIONS BY ABUSED SPOUSES, CHILDREN & PARENTS UNDER VAWA

Under the Violence Against Women Act (VAWA) the following may my self-petition for immigrant status (a green card):

• An abused spouse (male or female or same-sex spouse) or child (unmarried and under twenty-one years of age)of a US Citizen or Legal Permanent Resident (LPR)
• An abused child (unmarried and under twenty-one years of age)of a US Citizen or Legal Permanent Resident (LPR)
• A Spouse of USC or LPR whose child has been abused by the USC or LPR
• Children (Including children not related to the abuser) of the parent of a child abused by LPR or USC
• An abused parent of an adult (over 21 years of age)US Citizen (but not LPR) son or daughter.
• Non-abused children of a qualifying abused spouse or child if they are listed on the abused spouse or child’s VAWA self-petition.

To qualify for a self-petition under VAWA one needs to establish;

• In the case of Self-petitions by spouses the abuse by an USC/LPR spouse took place during the marriage, the marriage was entered in good faith and the marriage had not ended two years before filing the Petition.  
•  Self-Petitioner subjected to battery or extreme cruelty by the USC or LPR spouse/parent,  or by the USC son or daughter.
• Self-Petitioner has lived with the abuser at some point in time.
• Self-Petitioner is living in the U.S or the abuse occurred in the U.S. or the abuser is a U.S. government/Armed forces employee
• The self-petitioner has good moral character.

If a VAWA petition appears approvable before providing a decision on the VAWA petition USCIS will provide the Petitioner a notice of prima facie eligibility that can be used to obtain certain government aid like Medicare and TANF. Once USCIS approves the Petition, an approval notice will be sent to the Petitioner, this can be used to apply for employment authorization, and to apply for adjustment of status or an immigrant visa through consular process to obtain permanent residence. USCIS if requested would also provide a  notice of deferred action indicating USCIS has exercised discretion to not deport. This is important if the abuser is a LPR and the Petitioner’s has to wait to apply for permanent residence because their  priority date is not current.

Consequences of a denial of VAWA petition.

In 2018 under the Trump Administration USCIS issued a memorandum mandating USCIS to issue Notices to Appear (NTA) in Immigration Court for removal (deportation) proceedings when a petition is denied and the Petitioner has not legal immigration status, this memorandum was withdrawn by the Biden Administration on January 20, 2021. USCIS will now issue an NTA to a denied VAWA-based adjustment applicant only if a Statement of Findings substantiating fraud is part of the record. Thus, USCIS will no longer issue NTAs to denied applicants solely on the basis that they are not lawfully present in the U.S. at the time USCIS denies the application. During USCIS’s adjudication of a VAWA-based adjustment application, USCIS will now refer applicants to ICE, allowing ICE to make an independent determination as to whether to issue an NTA, if USCIS identifies any of the following “Egregious Public Safety” (“EPS”) concerns:

• the applicant is under investigation for, has been arrested for (without disposition), or has been convicted of any of the following aggravated felonies:
  • murder, rape, or sexual abuse of a minor 
  • illicit trafficking in firearms or destructive devices
  • offenses relating to explosive materials or firearms
  • crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year 
  • offenses relating to the demand for, or receipt of, ransom
  • offenses related to child pornography 
  • offenses related to peonage, slavery, involuntary servitude, and human trafficking or
  • offenses related to alien smuggling
• the applicant is a “Human Rights Violator”;
• the applicant is a known or suspected street gang member;
• the applicant has Interpol hits; or
• the applicant unlawfully re-entered the U.S. after a felony conviction and without the approval of a Form I-212.

If ICE declines to issue an NTA in EPS cases, USCIS will not override that decision and independently issue its own NTA.

After USCIS adjudicates a VAWA-based adjustment application, USCIS will now refer applicants to ICE, allowing ICE to make an independent determination as to whether to issue an NTA, if:

• it appears that the denied applicant is inadmissible or removable for a criminal offense not included on the above EPS list; or
• USCIS denied the application based on a National Security Entry Exit Registration System violation.