Procedures and the Requirements to Apply VAWA Self Petition

How to apply:

One has to file Form I-485, Application to Register Permanent Residence or Adjust Status to apply for a Green Card without leaving the country. One must have an approved Form I-360 in order to qualify for a Green Card. If a visa is immediately available to them, they do not have to wait until your Form I-360 is approved to file Form I-485.

A VAWA self-petitioner seeking to adjust status as an immediate relative, may file Form I-485 at any time because visas are always immediately available for immediate relatives. A VAWA self-petitioner seeking to adjust under a family-based preference category may need to wait for a visa to become available.

If a visa is immediately available, you may file your Form I-485:

• Together (“concurrently”) with your Form I-360;

• While your Form I-360 is pending; or

• After your Form I-360 is approved (and remains valid).

If there is already a pending Form I-485 based on an approved Form I-130, Petition for Alien Relative that the abusive family member filed, one may request to convert Form I-485 so that it is based on VAWA self-petition. To make this request, one must notify the USCIS field office adjudicating the pending Form I-485 that has been filed a VAWA self-petition or that one will do so within 30 days. One should also provide the USCIS field office with a safe address where they can mail all future correspondence to you.

If one does not submit evidence that you filed a VAWA self-petition within 30 days of requesting to convert your Form I-485, USCIS may make a decision on your pending application based on the original Form I-130 filed by the abusive family member. Otherwise, if USCIS approves your VAWA self-petition, your application to adjust status will be based on the VAWA self-petition instead of the original Form I-130.

While beginning the process of filing for U.S. residence under the Violence Against Women Act (VAWA), one must not only fill out and submit a self-petition on Form I-360 to U.S. Citizenship and Immigration Services (USCIS), but also submit evidence showing that s/he meets the VAWA eligibility requirements and qualifies for relief.

Evidence to Include With USCIS Form I-360

A self-petitioning spouse must satisfy seven requirements to establish eligibility for a VAWA self-petition.

1. Relationship to the abuser:

Generally, self-petitioning spouses can demonstrate the existence of a marital relationship with a valid marriage certificate. A self-petitioning child must prove that s/he is the natural child, stepchild, or adopted child of a citizen or lawful permanent resident. A self-petitioning parent must prove a parental relationship to their U.S. citizen son or daughter.

If the self-petitioner is currently not married to the abuser by reason of the abuser’s bigamy, death, or divorce, the self-petitioner may still qualify if she can prove that:

• She believed that she has legally married the abuser, but the marriage was invalid due to her abuser’s bigamy.

• She was the spouse of a U.S. citizen who died within the past two years

• She was divorced from the abuser within the past two years

2. The abusive spouse or parent is a U.S. citizen or Lawful Permanent Resident:

A self-petitioner must prove that his or her spouse or parent is a U.S. citizen or lawful permanent resident.

• Loss of citizenship or lawful permanent resident status: In cases where the abuser has lost or renounced his immigration or citizenship status within the past two years, the self-petitioner must demonstrate that the loss of status (for example being found deportable under 237(a)(2)(E) or renunciation of citizenship is related to an incident of domestic violence.

3. Residence within the United States:

Generally, self-petitioners must currently reside in the United States at the time of application.

Some self-petitioners may file from abroad if they meet one of three requirements:

• The abusive spouse or parent is an employee of the U.S. government;

• The abusive spouse or parent is a member of the uniformed services; or

• The abusive spouse or parent has subjected the immigrant spouse to battery or extreme cruelty while physically present in the United States.

4. Residence with the abuser:

A self-petitioner does not have to reside with the abuser at the time of filing, but must still prove that she at one time resided with the abuser. Self-petitioners DO NOT have to separate from the abuser in order to file a self-petition.

5. Battery or extreme cruelty:

The Department of Homeland Security will consider any credible evidence, including civil protection orders, police and court records, medical reports, and affidavits of school officials, social workers, and shelter workers.

Examples of “battery” or “extreme cruelty” include:

• Any act or threatened act of violence (including forceful detention) which results or threatens to result in physical or mental injury

• Psychological or sexual abuse or exploitation, including rape, molestation incest (if the victim is a minor) or forced prostitution

According to VAWA regulations, sexual assault is a form of battery and extreme cruelty.

6. Good moral character:

“Good moral character,” as described below, is a term of art in immigration law. To show good moral character, a self-petitioner should submit a local police clearance or state-issued criminal background check from each locality or state, within or outside the United States, in which she has lived for six or more months during the three years immediately preceding the filing of the self-petition.

7. Marriage in good faith:

Self-petitioners, whose petition is based on a marriage relationship, need to demonstrate that they married or intended to marry (in cases of bigamy) in “good faith,” and not for the purpose of evading immigration laws. Note that self-petitioning elder parents do not need to satisfy this requirement to be eligible to receive a VAWA self-petition. Step-children will have to satisfy this requirement.