VAWA green card status was created to help victims of domestic abuse remain in the Unites States and seek adjustment of status (a green card). The victims will benefit under VAWA if the abuser is or was a U.S. citizen or lawful permanent resident (LPR) spouse or parent.
VAWA allows applicants to self-petition on Form I-360 for immigrant benefits even if the marriage ended in divorce, as long as VAWA self-petitioner:
- demonstrates a connection between the divorce and the domestic violence, and
- files the petition within the statutory limit of two years from the termination of the alleged marriage (See Immigration and Nationality Act (I.N.A.) § 204(a) (1) (A) (iii) (aa) (CC) (ccc).)
Along with the I-360 form, a VAWA petitioner must submit documents proving that the marriage was bona fide, that he or she is a person of good moral character, and that the U.S. citizen or LPR either physically or mentally abused the spouse during the marriage, or the child during residence with the parent. (See 8 C.F.R. §§204.2(c)(1)(i)(E), (F), (e)(1)(E),(F).) This article will discuss how to prepare such documents.
Once USCIS approves the I-360 petition, the beneficiary will qualify for adjustment of status by filing Form I-485 (pursuant to 9 FAM 42.42 PN4).
Note: Applicants can qualify under VAWA even if the abuser has lost his or her U.S. citizen or LPR status.
Proving Bona Fide Marriage
The key requirement for a successful VAWA petition is solid evidence that the marriage was entered into in good faith. Your VAWA self-petition should contain the following:
- Mortgages, deeds, property title, insurance policies, or leases containing the names of both spouses showing joint ownership or tenancy of a common residence.
- Automobile titles and insurance policies jointly held in the names of both spouses.
- Bank records showing joint accounts with regular deposits and withdrawals, joint stock or mutual fund investments, or loans.
- Federal income tax returns showing the couple files as “married, filing jointly."
- Documentation of commingling of assets with the names of the spouses, such as joint residence address on bills, invoices, credit card statements, utility bills, and membership cards for health clubs or video rental stores.
- Birth certificates of children born to the marriage.
- Driver’s licenses showing that both spouses reside at the same address.
- Life and health insurance polices with the spouses listed as insureds or as beneficiaries, joint wills or trusts, joint beneficiary designations on 401(k) or pension plans.
- Proof of joint membership in clubs or other organizations.
- Photographs of the wedding ceremony or reception showing not only the couple but other people in attendance.
- Copies of bills related to wedding expenses, other documents pertaining to the wedding arrangements, and mementos.
- Vacation or holiday photos taken over the last few years.
- Letters from community organizations, churches, civic groups or other entities in which the couple had joint involvement.
- Affidavits from parents, relatives, friends, clergy members, and coworkers having knowledge of the bona fide marital relationship.
- Copies of previously filed I-130, I-765, and I-485 applications by the abusive spouse on behalf of the applicant, if available.
The law requires the VAWA petitioner to show that he or she lived with the abuser during the relationship. There is no specified duration of time the self-petitioner must establish, but it is very hard to prove abuse if the self-petitioner has never lived with his or her spouse or does not have proof of such cohabitation.
Proving That Abuse Occurred
VAWA requires the self-petitioner to show that he or she, or his or her child, “has been battered or has been the subject of extreme cruelty” by the U.S. citizen or LPR spouse or parent (see I.N.A. §§204 (a)(1)(A)(iii)(I)(bb) and (iv); (B) (ii)(I)(bb) and (iii)).
At Stientjes & Tolu we regularly research state and federal law describing conduct that falls within definition of mental and physical abuse. Generally mental abuse is defined as verbal abuse, social isolation, possessiveness, control or diminution of quality of life. We carefully examine the relationship and its progression, from the very start to its end. We gather documentation of the victim’s physical and mental health before abuse and after the abuse began. We present careful description of the acts of abuse collaborated with documentation as well as detailed description of victim’s life and ability to function as a result of abuse. While preparing VAWA petition we always work with psychologists, social workers, police, friends and family members of the abused, hospitals and emergency care, shelters and community organizations.
Showing Good Moral Character
To qualify for VAWA benefits, a self-petitioner must demonstrate that he or she is a person of good moral character. Evidence of good moral character includes:
- Affidavits from friends, family members, landlords, employers, and community organizations attesting to the applicant’s moral character.
- Evidence of participation in volunteer and charitable organizations.
- Letters from police showing that self-petitioner has no criminal violations.
In addition, a self-petitioner will qualify only if he or she is establishes that the abuser was or currently is a U.S. citizen or LPR. Your attorney can help you obtain a birth certificate of the abuser if you do not have access to this document.
Once the VSC approves the petition, the applicant may proceed for adjustment of status by filing Form I-485. Pursuant to 8 CFR § 204.2(H)(2) if the abuser previously filed I-130 for the victim, the self-petitioner may retain the priority date of the original I-130.
A Personal Statement and Witness Affidavits
To sum up the facts of the case, we recommend that our VAWA clients prepare a personal statement consistent with the VAWA application. The personal statement should provide details and timeline of the abuse.
In addition, it is helpful to gather information from witnesses to the abuse, and social workers or psychologists who have counseled the victim. Such statements serve to corroborate the personal statement of the self-petitioner.
USCIS Officers at Adjustment of Status Interviews Should Not Review Evidence of Abuse
The USCIS office that processes the applicant's Form I-485 based on the VAWA petition will conduct an adjustment of status interview. At this interview, the local immigration officer is not supposed to question the facts, degree, or sufficiency of abuse -- though some try to regardless.
USCIS is prohibited from gathering abuse evidence during the adjustment of status interview, and is not authorized to revoke an approved VAWA petition. Sometimes, however, the local USCIS office might recommend revocation of the approved VAWA petition based on additional evidence that it discovers during its review. In this case, the local USCIS officer might prepare a legal memorandum to the office’s supervisor, who subsequently may transfer the memorandum to the USCIS Service Center that approved the petition. Issues like these are good reasons to hire an immigration attorney to assist you with your VAWA petition and green card application.
This article is intended as general information and not as specific legal advice, and this communication does not create an attorney-client relationship.