Until the Violence Against Women Act (VAWA) was passes in 1994, only an U.S. citizen or Lawful Permanent Resident (LPR), also known as a green card holder, could petition for a spouse’s immigration. Under the old law, battered immigrant women married to citizens or LPRs had two immigration choices: stay with their abusive partners in order to qualify for LPR status, or leave their abusers and risk deportation.

The battered immigrant women provision of the VAWA provides more options to victims by allowing them to self-petition for an immigrant visa without the assistance or consent of a citizen or LPR abuser.

Self-petitioning Requirements

A victim of domestic violence who wishes to self-petition for herself and her children under the VAWA must satisfy several criteria. These are adapted from “Documentary Requirements for VAWA Cases”, Ayuda, Inc. (1998).

The petitioner must prove that she:

• Is currently the spouse or child of an abusive U.S. citizen or LPR.
• Is eligible for immigrant classification based on that relationship.
• Is currently residing in the U.S.
• Has previously lived in the U.S. with the abusive citizen or LPR.
• Has been battered or subjected to extreme cruelty by either the citizen or LPR spouse, or the parent during the marriage, or is the parent of a child who has been battered or subjected to extreme cruelty by the citizen or LPR during the marriage.
• Is a person of good moral character.
• Is a person whose deportation would result in extreme hardship to herself, or to her child, and…
• Entered into the marriage with the citizen or LPR on good faith.

While the legislation allows some battered immigrant women more options than they would have had under traditional immigration legislation and regulations, self-petitioning is an arduous process for immigrant women – especially for those who cannot afford to retain counsel. Petitioners must gather a long list of evidence in order to meet all the required elements. While the regulations governing the legislation state what the Immigration and Naturalization Service (INS) adjudicator should give due consideration to the difficulties some petitioners may face in gathering documentation, the burden of proof lies with the victim/petitioner. The most difficult evidence to obtain is often that which proves that the petitioner is the legal spouse of a citizen or LPR (e.g., marriage certificate or another form of proof of the marriage). Also necessary and difficult of obtain is proof of the abuser’s immigration status (e.g., birth certificate, U.S. passport, green card or other INS forms/certificates). Efforts to obtain this documentation may place battered immigrant women at risk of further harm by their abusers.

Deterrents to Use of the VAWA Provision

Recent Federal legislation places severe constraints on many battered immigrant women’s ability to escape their abusers and to utilize the options the VAWA offers them. In 1996, Congress passed welfare and immigration laws that limit public assistance for non-citizens, including battered immigrant women who have self-petitioned under the VAWA. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 make many “qualified aliens ineligible for Supplemental Security Income (SSI) and Food Stamps. The impact of this legislation on battered immigrant women is grave: many victims with pending or already approved petitions for immigration under the VAWA provision will be unable to receive the public assistance they desperately need as they begin to establish economic independence from their abusers. Additionally, domestic violence is now a deportable offense. Abusers who are arrested and convicted may be sent back to their home countries – along with the documentation that their victims need to satisfy VAWA’s self-petitioning requirements.

New legislation may be introduced in the next congressional session that will encourage battered immigrant women to continue to self-petition under VAWA. Anticipated provisions include relaxed evidentiary requirements to simplify the evidence collection process for victims whose abusers have been deported.

For more information on this topic, call the STOP T.A. Project or the member agencies of the National Network on Behalf of Battered Immigrant Women (Ayuda, Inc.: 202-387-0434; Family Violence Prevention Fund: 415-252-8900; National Immigration Project: 617-227-9727).

This article originally printed in the STOP T.A. Project Memo, March 1999

The relevant provisions of the VAWA (title IV of the Violent Crime and Law Enforcement Act of 1994, Pub. L. No. 103-332, 108 Stat. 1796 (1994)) may be found at 8 U.S.C. §§ 1151, 1154, 1186, 1186a note, 1254, and 2245.

However, if these documents are unavailable, the petitioner may present affidavits by persons who have knowledge of the marriage.

Battered immigrant women who are qualified aliens are undocumented women who have pending or approved applications for lawful permanent residency based upon a marriage to a U.S. citizen or an LPR. “An Advocate’s Primer on Immigration Law, Welfare and Battered Immigrant Women and Children,” Ayuda, Inc. (1998).

For more information call 800.838.8238 or email Hotline@vsdvalliance.org. E-mail is not a secure form of communication. To ensure confidentiality please call the Family Violence & Sexual Assault Hotline at 800.838.8238 (V/TTY).