by Kasey Husk

Each October, the United States places a special emphasis on combatting the nation’s epidemic of domestic violence during Domestic Violence Awareness Month. Advocates come together to celebrate progress made so far, work towards a better future, and mourn those lives lost to domestic violence. At Eagan Immigration, we stand with survivors of domestic violence. We hear you. We believe you. And we will use all the legal tools at our disposal to protect you.

In the United States, more than 1 in 3 women and 1 in 4 men will experience some form of physical or sexual violence at the hands of an intimate partner during their lifetime. Psychological abuse is even more common, with nearly half of all women and men experiencing some form of this abuse. While a common refrain among people outside an abusive situation is “just leave,” the truth is that escaping an abusive relationship is far more difficult than most people realize. On average, individuals will try to leave their abusers seven times before ending it for good.

In mixed-status families – meaning a relationship where one partner has legal status in the United States and the other does not – escaping a bad situation can be even harder. Lack of status in the United States makes people experiencing intimate partner abuse uniquely vulnerable to abuse. Abusive partners often use the power differential created by their victims’ lack of status to control them, often by convincing them that they will be deported or lose their children if they try to report the abuse to authorities. Other times, they weaponize the financial challenges that are often inherent in being undocumented to force their victims to stay in the relationship. While abusers who have legal status in the United States often have options for helping their partners gain status, they can be reluctant to surrender this “power” by following through on such a petition.

This is where VAWA self-petitions can help

The Violence Against Women Act allows undocumented individuals who are the victims of physical, psychological, sexual or financial abuse to seek lawful permanent resident status in the United States based on their relationship to their abuser. Individuals can submit this petition on their own, without their abuser even knowing they are doing so. Contrary to the name, both men and women can apply for this protection.

Applicants can even be separated or divorced from their abusers already, as long as they have divorced within the last two years and have not remarried. Even individuals who might otherwise be inadmissible to the United States can often apply for waivers alongside their VAWA self-petition, allowing them to overcome grounds that would normally mean they could not adjust their status. Simply put, these petitioners are a lifeline that can help people in abusive situations gain the status they need to allow them to ultimately leave a bad relationship.

DID YOU KNOW? VAWA self-petitions are not limited to only romantic relationships. Immigrant parents who are being psychologically, physically or financially abused by their adult U.S. citizen children are eligible to apply for VAWA, as are the undocumented children of U.S. citizen or lawful permanent resident parents.

A brief history of VAWA self-petitions

The Violence Against Women Act (VAWA) was first passed by Congress in 1994 as a broad program designed to help prevent and respond to domestic violence. While numerous programs and laws sprang from this initial legislation, the most consequential impact for immigrants was the birth of the VAWA self-petition.

Under family-based immigration process, U.S. citizens and lawful permanent residents could already petition for certain relatives to immigrate to the United States or to adjust their status if already here, depending on the circumstances.

However, in 1994, Congress recognized that leaving the power of petitioning for a partner exclusively in the hands of the U.S. citizen or LPR partner was enabling many abusers to continue oppressing their victims. By allowing victims to self-petition for themselves, it deprives abusers of this specific method of control. In the nearly 30 years since this legislation has passed, Congress has repeatedly reauthorized the Violence Against Women Act, and each time expanded the eligibility for and benefits to VAWA self-petitioners.

What qualifies as abuse?

Physical abuse is often the easiest for victims of abuse to identify: it can mean shoving, hitting, punching, slapping, throwing things at someone, “accidentally” hurting them or even leading someone to believe they will hurt them through violent actions, such as punching walls. But while many people think of “abuse” as referring purely to physical violence, the truth is that a relationship can be abusive even if the perpetrator never lays a hand on you. At Eagan Immigration, we often build VAWA spousal abuse cases based exclusively on psychological, sexual and financial abuse. Wondering if your relationship could be considered abusive? Here is a brief list of just a few psychological, sexual and financially abusive behaviors.

These are very far from an exhaustive list of possibly abusive behaviors. A good rule of thumb is thinking about how your partner makes you feel. Do you feel like you are always in the wrong? Like you cannot do anything right in your partner’s eyes? Are you constantly tiptoeing around to avoid making your partner angry? Do you worry they will retaliate in some way if you do something “wrong”? If so, you may be in an abusive relationship. Not sure? Eagan can help you figure it out.

What are the advantages to seeking a VAWA self-petition?

The primary benefit of seeking a VAWA self-petition is that it allows the immigrant self-determination; there is no need to wait for a spouse to decide to petition for you. An approved VAWA can lead to a green card and, ultimately, citizenship. Other advantages of VAWA petitions include:

• Applicants can receive a work permit within six to 12 months of applying.
• Applicants who are separated from their abusive spouse or who divorced him/her less than two years ago (and have not remarried) can still apply for VAWA.
• Applicants can, in specific circumstances, include their undocumented children as derivatives on their application.
• Applicants who are normally inadmissible to the United States due to prior immigration violations can sometimes get these violations forgiven by applying for waivers of the grounds of inadmissability.
• Applicants can apply for VAWA based on marriage even if not legally married, if their state recognizes common-law marriage and their relationship qualifies.
• Applicants in same-sex marriages are treated the same as heterosexual couples.

Possible alternatives to VAWA self-petitions

While VAWA self-petitions are the classic way of adjusting status based on an abusive relationship, they are not the only available avenue. If applying for a VAWA self-petition is not the right path for you, other options exist to help you gain legal status in the United States.

T Visas. T Visas are available to victims of human trafficking. In certain situations, a romantic relationship can turn into a human trafficking situation, even if an individual initially entered it willingly. The difference in this case is motivation; is the abusive partner forcing their victim to perform some kind of domestic labor, such as childcare, cooking or cleaning to their exact specifications, or perhaps working and handing over all pay? Are they using force, fraud or coercion to bend the victim to their will?

It is important that the trafficker/partner is, explicitly or implicitly, using the victim’s lack of status against them in some way. These are complicated cases, but one benefit of seeking a T Visa based on domestic violence/involuntary servitude is that the abuser need not be a U.S. citizen or LPR.

If T Visa status is granted, it protects the applicant from deportation for four years and allows them to work legally. After three years of continuous presence in the United States, applicants can apply for lawful permanent resident status.

U Visas. U Visas are available to the victims of certain serious crimes in which a victim suffered mental or physical abuse. The victim must help law enforcement or government officials in the investigation or prosecution of the crime.

Domestic violence can qualify as the type of serious crime for which victims could seek a U Visa. If U Visa status is granted, victims will have legal status in the United States for four years, allowing them to live and work legally without fear of deportation. After three years of continuous presence in the United States, applicants can apply for a green card.

Each set of circumstances is different, as are the specific set of requirements for each visa, so figuring out the right path for seeking status in the United States can be tricky. The experienced immigration attorneys at Eagan, however, can help you figure out whether any of these routes are the right next step for you.

No one should feel trapped in an abusive relationship. Abusers want you to believe that being undocumented means you have no rights and no power. Eagan Immigration wants you to know that’s not true. If you are undocumented and in a bad situation, talk to an immigration specialist today at 202-709-6439.