Overcoming Common Hurdles in VAWA Applications
The “VAWA self-petition” is the shorthand term used by immigration practitioners to refer to an immigration status that is available to undocumented individuals who have been victims of domestic abuse at the hands of a United States Citizen or Lawful Permanent Resident spouse. (Note that despite the name, male applicants are also eligible to apply for status under VAWA.)
It’s called a “self-petition” because the government is allowing the abused spouse to apply for immigration status on their own, without depending on the assistance of their abusive partner to petition for them. To qualify, the victim must be in a bona fide marriage to the abuser (or widowed/divorced less than two years from the date of filing), and the abuser must be a U.S. Citizen or green card holder. The applicant also must have been battered or subjected to “extreme cruelty” as a result of the abuse.
VAWA Application Misconceptions
One common misconception about the VAWA application is that an abused person needs to have been seriously physically abused in order to qualify. I regularly speak with victims who assume they will not be eligible for VAWA because they never filed a police report or pressed formal charges against the abusive spouse. In fact, physical abuse is not required, and the applicant never has to have contacted the police or any other law enforcement agency about the abuse in order to be granted VAWA status. Sexual, emotional, psychological, financial, and verbal abuse can all be considered in these applications. No matter what kind of abuse it was, however, the self-petitioner does have to prove that it amounted to “extreme cruelty.”
Proving extreme cruelty to the government without hospital records, police reports, letters from therapists, or other types of “hard” evidence can be tricky. Much depends on the victim’s own declaration and the body of documents an individual can put together to prove the abuse rose to the required level. Because of the ambiguity in proving extreme cruelty, many people assume that this biggest evidentiary hurdle in VAWA cases. However, for many clients, the more straightforward requirements, like proving the marriage was legitimate and that the abuser was either a Citizen or Legal Permanent Resident, can prove much more challenging.
For example, one issue I run into regularly is a client who is unable to prove the marriage was legal. This is most common in cases where the marriage took place outside the United States and the applicant does not have a copy of the marriage certificate, either because it was lost, it was never properly issued, or because the abuser never allowed them access to it. Complicating this problem in many cases is the fact that the abusive spouse may not have allowed the applicant to put their name on legal documents in order to deprive them of the ability to apply for drivers’ licenses, credit cards, have access to bank accounts, or exercise any kind of autonomy outside of the relationship. This combination of a lack of a proper marriage certificate coupled with little or no “paper trail” to show marital status for the undocumented victim can make proving the lawful marriage a real challenge. It’s still something that can be overcome, but it’s advisable in these cases to work with an attorney who is particularly experienced in these types of evidentiary hurdles.
Other VAWA Application Challenges
Another documentary challenge that can present problems to some VAWA petitioners is proving their abusive spouse’s immigration status. If you’ve got the right documents, this requirement is extremely simple. All it takes is a copy of the spouse’s U.S. passport, “green card,” U.S. birth certificate, or certificate of naturalization. However, obtaining this can be exceedingly difficult—particularly in relationships where the abusive spouse had exclusive access to all legal documents. I know that it can be risky, but when I speak to clients who are still residing with the abuser or have access to shared property, I strongly advise them to do everything they can to at least snap a photo of a passport or birth certificate with a camera or smartphone before leaving. If they are unable to do so, and contacting the spouse for this information is not an option (which is usually the case), there are other ways of overcoming this. For instance, an applicant can provide the abuser’s social security number and, if possible, alien number, and the government may be able to confirm status this way. An applicant may also be able to submit a FOIA request to obtain some sort of document proving citizenship/residency through that. If neither of these tactics works, an applicant could go so far as hiring a private investigator to attempt to uncover something that would satisfy the requirement. Again, each case and therefore each strategy in obtaining these documents is different, so if you are facing this type of an evidentiary hurdle, it is in your best interest to work with an attorney who has dealt with this type of case before.