How an Immigrant Can Self-Petition for a Green Card Under VAWA

Although victims of domestic violence can be male or female, the vast majority of victims of intimate partner violence are women. According to the Department of Homeland Security (DHS) Office of Immigration Statistics, most of immigrants who self-petition under VAWA are spouses of abusive U.S. citizens or lawful permanent residents (LPRs).

VAWA was created to help victims of domestic abuse to remain in the Unites States and seek adjustment of status. The victims will benefit under VAWA if the abuser is or was a U.S. citizen or 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:

1. connection between the divorce and domestic violence
2. files the petition within the statutory limit of two years from the termination of the alleged marriage (INA § 204(a) (1) (A) (iii) (aa) (CC) (ccc)).

Applicants can qualify under VAWA even if the abuser has lost his or her U.S. citizen or LPR status. In addition VAWA petitioners must prove that he/she is a person of good moral character, and show the U.S. citizen or LPR either physically or mentally abused the spouse during the marriage or the child during residence with the parent (8CFR §§204.2(c)(1)(i)(E), (F), (e)(1)(E),(F)).

Preparation and Procedure for VAWA Green Card Petitions

To prove the abuse under VAWA self-petitioner must provide detailed and credible information related to the domestic abuse. VAWA petition is filed with the Vermont Service Center (VSC). Once the VSC approves the petition, the beneficiary will qualify for adjustment of status by filing Form I-485 pursuant to 9FAM 42.42 PN4.

The USCIS office which processes Form I-485 based on the VAWA Petition will conduct an adjustment of status interview. Stientjes & Tolu attorneys always attend these interviews to make sure that the local immigration officer does not question the facts, degree, or sufficiency of abuse. The USCIS is prohibited from gathering abuse evidence during the adjustment of status interview. Therefore, the local USCIS office which processes adjustment of status application 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. 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 VSC. At Stientjes & Tolu LLC we always accompany our VAWA client to the adjustment of status interview to anticipate any concerns or problems that a local USCIS office might have with respect to adjustment of status application.

At Stientjes & Tolu LLC we always recommend our VAWA clients to prepare a personal statement consistent with the VAWA application. The personal statement must provide details and timeline of the abuse. In addition, we gather information from the witnesses of abuse to collaborate the personal statement of self-petitioner. To preserve welfare of the VAWA applicant and to further support her/his application under VAWA, we refer the victims of abuse to psychologists, social workers, or other mental health workers for a series of counseling sessions. We also provide our clients with the list of valuable references which offer such services. Once services are established we work closely with our sources to prepare a successful VAWA petition.

Bona Fide Marriage

The key requirement for a successful VAWA petition is solid evidence that the marriage was entered in good faith. Therefore, we carefully review all the documents and witness testimony for inconsistencies and credibility issues.

To provide that VAWA self-petitioner entered into marriage in good faith, VAWA application must contain the following information:

• 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 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, co-workers, having knowledge of the bona fide marital relationship
• Copies of previously filed I-130, I-765m and I-485 applications by the abusive spouse on behalf of the applicant, if available.

The law requires VAWA petitioner to show that the petitioner 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 co-habitation. In the past we have been very successful with the cases posing documentary challenges by proving that, in fact, petitioner and abuser were co-habitants.

What Constitutes Abuse Under VAWA

The VAWA law 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 INA §§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 of a Good Moral Character Under VAWA

To qualify for VAWA benefits codified in Pub. L. No. 106-386, div. B, 114 Stat 1464, 1491-539 a VAWA petitioner must demonstrate that he/she is a person of good moral character. Evidence of good moral character includes:

1. affidavits from friends, family members, landlords, employers, and community organizations attesting to the applicant’s moral character
2. participation in volunteer, charitable and charitable organizations
3. 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. We will obtain a birth certificate of the abuser if the victim does 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.

While working with a VAWA applicant, attorneys at Stientjes & Tolu continuously communicate with their client to gather all necessary documentation for a successful VAWA petition. Please contact us to determine whether you can qualify for VAWA immigration benefits.

This article is intended as general information and not as specific legal advice, and this communication does not create an attorney-client relationship.

Evita Tolu, Esq.
Stientjes & Tolu LLC
9378 Olive Blvd., Ste. 325

Saint Louis, Missouri 63132

(314) 872-3988 telephone-general number
(314) 323-6022 telephone-direct dial
(314) 872-9556 facsimile

evitatolu@yahoo.com