If your marital situation is getting worse before you get your green card approval, you do not have to sacrifice yourself for any abuse. If abuse is happening, you need to get out of the house and seek government assistance. They provide shelter assistance and legal help. You can also file a petition for yourself as a victim of spousal abuse.
The self-petitioner must have a qualifying relationship to an abusive U.S. citizen or LPR relative as the:
- Spouse, intended spouse, or former spouse of a U.S. citizen or LPR;
- Child of a U.S. citizen or LPR; or
- Parent of a U.S. citizen son or daughter that is 21 years of age or older.
The self-petitioner must have been married in good faith (for self-petitioning spouses only).
The self-petitioner is eligible for immigrant classification as an immediate relative or under a family-based preference category.
What evidence is required to file for VAWA?
While self-petitioners are encouraged to submit primary evidence, when possible, USCIS must consider any credible evidence relevant to the petition. The self-petitioner may, but is not required to, demonstrate that primary or secondary evidence is not available. A petition may not be denied for failure to submit particular evidence. The petition may only be denied on evidentiary grounds if the evidence submitted is not credible or otherwise does not establish eligibility.
The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of USCIS. As with all petitions and applications for an immigration benefit, a self-petitioner must remain eligible to receive a benefit under VAWA at the time of filing through final adjudication.
The Self Petitioner must prove a Qualifying Relationship
Self-petitioners must demonstrate a qualifying relationship to an abusive U.S. citizen or LPR to be eligible for VAWA benefits.[13] Self-petitioners who have a qualifying relationship include:
- An abused spouse of a U.S. citizen or LPR or a spouse of a U.S. citizen or LPR whose child was abused by the U.S. citizen or LPR (self-petitioning spouse[14]);
- An abused child of a U.S. citizen or LPR (self-petitioning child); or
- An abused parent of a U.S. citizen son or daughter 21 years of age or older (self-petitioning parent).[15]
To establish a qualifying relationship, the self-petitioner must submit evidence to prove the requisite familial relationship to the abuser as well as evidence of the abuser’s U.S. citizenship or LPR status.
Abuser’s U.S. Citizenship or Lawful Permanent Resident Status
The self-petitioner’s abusive qualifying family member must generally be a U.S. citizen or LPR when the self-petition is filed. There are certain exceptions, however, where self-petitioners may preserve their eligibility in cases where abusers have lost or renounced their U.S. citizenship or LPR status for a reason that was related to an incident of abuse. Changes to the abuser’s U.S. citizenship or LPR status after the self-petitioner files the self-petition do not adversely impact approving a pending self-petition or the validity of an approved self-petition.
Primary evidence to demonstrate the abuser’s U.S. citizenship includes, but is not limited to:
- A birth certificate (or legible photocopy) issued by a civil authority that establishes the abuser’s birth in the United States;
- A copy of an unexpired U.S. passport issued initially for a full 10-year period to the abuser over the age of 18 at the time of issuance;
- A copy of an unexpired U.S. passport issued initially for a full 5-year period to the abuser under the age of 18 at the time of issuance;
- A statement executed by a U.S. consular officer certifying the abuser to be a U.S. citizen and the bearer of a currently valid U.S. passport;
- The abuser’s Certificate of Naturalization or Certificate of Citizenship or a copy of either document; or
- The abuser’s Report of Birth Abroad of a Citizen of the United States (Department of State Form FS-240).[20]
Other examples of evidence to establish the U.S. citizenship of the abuser may include a receipt or approval notice of a Petition for Alien Relative (Form I-130) filed by the abuser for an immediate relative category, the abuser’s A-Number with evidence of naturalization, or information on a marriage license or certificate showing the abuser’s birth in the United States.
Primary evidence to demonstrate the abuser’s LPR status is a copy of the abuser’s Permanent Resident Card (Form I-551) or other proof from the DHS reflecting LPR status. Other examples of evidence to establish the abuser’s LPR status include but are not limited to:
- A copy of the pages of the abuser’s passport with visas and entry stamps showing name and immigration status; or
- The abuser’s A-Number with verification of status.
If self-petitioners are unable to provide documentary evidence of the abuser’s U.S. citizenship or LPR status, they should provide some identifying information for the abusive U.S. citizen or LPR, such as a name, place of birth, country of birth, date of birth, or Social Security number. USCIS uses this information to conduct a search of DHS records to attempt to verify the abuser’s citizenship or immigration status.
An abused spouse or child of a U.S. national may also be eligible for VAWA benefits, as a U.S. national is accorded the same rights as an LPR. USCIS treats a self-petitioning spouse or child of a U.S. national as a self-petitioning spouse or child of an LPR when adjudicating the self-petition.
Note: This is not legal advice and presented for information purposes only.
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Chris Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers. He has practiced immigration law, bankruptcy, and income tax representation since June 1999. His contact phone is 1-877-456-9266, email: [email protected] Website: www.crispinlozanolaw.com/ with offices in Hayward and Cerritos, CA.
