Unfortunately, some U.S. citizens and Legal Permanent Residents misuse their control of this process to abuse their family members, or by threatening to report them to the USCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.
Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPRs) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser’s assistance or knowledge, in order to seek safety and independence from the abuser.
In November 2000, the Violence Against Women Act II was passed into law. Among other things, this law made changes to previously existing immigration laws that had allowed abused immigrant women and children to seek legal residency in the US independently of their abusers.
The law allows women to petition for adjustment of status for themselves and exempts them from section 245(c) of the Immigration and Nationality Act, which prohibits immigrants who have engaged in unauthorized employment, those who have failed to maintain valid immigration status and a number of others from applying for adjustment of status. Under the revised VAWA, applicants no longer have to show that they would face extreme hardship and they are also allowed to apply for permanent residence from outside the US, if they can demonstrate that they were the victims of domestic violence in the US.
To be eligible for adjustment of status under the VAWA II, the woman must show one of the following:
- Their marriage was ended within the past two years for reasons connected to domestic violence;
- The abuser lost his or her immigration status within the past two years for reasons related to domestic violence;
- If a US citizen, the abuser died within the past two years; or
- The abuser was or is a bigamist
The VAWA II also created a new category of non-immigrant visa. To be eligible for this “U” visa, the applicant must have suffered “substantial physical or mental abuse” because of a variety of crimes, including domestic abuse and involuntary servitude. The applicant must have information relating to this crime that would be of assistance to law enforcement in investigating or prosecuting it. There is an annual limit of 10,000 U visas. U visa holders are work authorized, and are able to apply for adjustment of status after three years.
One of the eligibility requirements is that a self-petitioner must demonstrate that he/she is a person of good moral character. A VAWA-based self-petition will be denied or revoked if the record contains evidence to establish that the self-petitioner lacks good moral character. The inquiry into good moral character focuses on the three years immediately preceding the filing of the self-petition, but the adjudicating officer may investigate the self-petitioner’s character beyond the three-year period when there is reason to believe that the self- petitioner may not have been a person of good moral character during that time. A self-petitioner’s claim of good moral character will be evaluated on a case-by-case basis taking into account the provisions of section 101(f) of the Act and the standards of the average citizen in the community.
Other provisions in the VAWA II allow people who have adjusted status under it to apply for naturalization in three, rather than five years.