Background. Title IV of the Violent Crime Control and Law Enforcement Act of 1994, contains the Violence Against Women Act of 1994 (VAWA). VAWA permits certain spouses and children of U.S. citizens and lawful permanent residents who were subjected to battery or extreme cruelty to self-petition for immigrant classification. Although the title of VAWA reflects the fact that many abuse victims are women, battered spouses and children of either sex can benefit from these provisions. The immigration provisions of VAWA were expanded by the Battered Immigrant Women Protection Act (BIWPA), on October 28, 2000. And the Violence Against Women and Department of Justice Reauthorization Act of 2005 further expanded the immigration provisions of VAWA. by providing certain parents who were subjected to battery or extreme cruelty by their U.S. citizen sons or daughters the ability to file a self-petition.
Eligibility Requirements. The self-petitioning parent must demonstrate that he or she:
(1) Possesses the requisite qualifying relationship to the U.S. citizen son or daughter. The following relationships qualify:
Note: In order for a son or daughter to confer immediate relative status upon a parent, the petitioner must be a U.S. citizen, at least 21 years of age, and must have qualified as the “child” of the beneficiary as defined in 101(b) of the Act. A child is defined as “an unmarried person under twenty-one years of age” in 101(b) of the Act. 101(b)(1)(A) of the Act further defines child to include a “stepchild…provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.” The stepparent of an abusive U.S. citizen son or daughter may file a VAWA self-petition if the abusive son or daughter had not reached the age of eighteen years at the time the marriage creating the step-relationship occurred and the step-relationship existed at the time of filing the VAWA self-petition. It need not continue after filing.
Filing Requirements. (1) Generally. An eligible self-petitioning parent must submit a properly completed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, to the Vermont Service Center (VSC) with the appropriate fee or request for a fee waiver and supporting evidence described in this section.
(A) Primary Evidence. Self-petitioners should submit primary evidence whenever possible, although adjudicators must consider all relevant credible evidence. The determination of what evidence is credible, and the weight to be given to that evidence, is left to the discretion of the adjudicator in accordance with the guidance provided in this section.
A self-petition filed under section 204(a)(1)(A)(vii) of the Act must include the following:
Note: In the case of a self-petitioning stepparent, evidence supporting the relationship as defined at 101(b)(1)(B) of the Act, and other relevant evidence of the parental step-relationship will be considered. Examples include but are not limited to: marriage certificate of self-petitioner and natural parent of the abusive stepson or stepdaughter showing that the marriage occurred before the U.S. citizen abuser’s 18th birthday, other legal or court documents supporting the same, birth certificates, affidavits, or other evidence.
Evidence the self-petitioner resides or has resided with the abusive U.S. citizen son or daughter. Examples include but are not limited to: employment records, school records, utility receipts, medical records, police reports, leases, mortgages, or affidavits;
Evidence of the battery or extreme cruelty. Examples include, but are not limited to: police reports, court records, medical records, or reports from social service agencies. If there is a protective order in place, a copy should be submitted; and
Evidence of the good moral character of the self-petitioner. Such evidence should be in the form of an affidavit and should be supported by a local police clearance and a state-issued criminal background check or similar report from each locality or state in which the self-petitioner has resided for at least six months during the three years prior to filing the self-petition.
(B) Secondary Evidence. Section 204(a)(1)(J) of the Act was not specifically amended to encompass consideration of secondary evidence submitted by self-petitioning abused parents. The discussion of evidence found at 8 CFR 204.1(f)(1) and (3) regarding self-petitions filed under section 204(a)(1)(A)(iii) of the Act shall apply to self-petition filed by battered parents of U.S. citizen sons or daughters. Agency records relating to the abusive son or daughter may also be used to verify his or her citizenship status.
(C) Filing from Outside the United States. There is no statutory requirement that a self-petitioning parent be living in the United States at the time the self-petition is filed. The filing requirements found at section 204(a)(1)(A)(v) of the Act relating to a self-petitioning spouse, intended spouse, or child living abroad of a U.S. citizen shall be apply to self-petitions filed by a battered parent of a U.S. citizen son or daughter. For these reasons, self-petitioners filing from abroad must file with the VSC and be in compliance with section 204(a)(1)(A)(v) of the Act. The self-petitioner should submit primary evidence whenever possible, although the adjudicator must consider all relevant credible evidence. The determination of what evidence is credible, and the weight to be given to that evidence, is left to the discretion of the adjudicator and in accordance with the guidance provided in this section.
(1) Review and Consideration of Documentary Evidence. The primary evidence to establish the relationship between the abuser and the self-petitioner and to establish the abuser’s United States citizenship submitted with Form I-360 by an battered parent is the same as that which is generally submitted by self-petitioning spouses and children pursuant to section 8 CFR 204.2(c)(2) and 204.2(e)(2). However, in view of the circumstances surrounding a self-petition, primary documentation may not be readily available. Adjudicators must consider whatever evidence is available, using agency records and secondary evidence when submitted in lieu of primary documents.
(2) Loss of Citizenship Status or Death of Abusive Son or Daughter. Eligibility to petition for classification as a parent who has been battered or subjected to extreme cruelty by a U.S. citizen son or daughter will be preserved if, within the 2 years immediately preceding the filing of the self-petition, the U.S. citizen son or daughter loses or renounces citizenship for a reason related to an incident of domestic violence or dies. In cases where the abusive U.S. citizen son or daughter has lost his or her status, The evidentiary requirements applicable to self-petitioning spouses and children in cases where there has been a loss of status shall be the same for self-petitioning parents.
A parent whose eligibility is thus preserved will be eligible for issuance of a visa or adjustment of status pursuant to section 201(b)(2)(A)(i) of the Act as though the abusive son or daughter were still a United States citizen at the time of visa issuance or adjustment of status.
(D) Closing Actions. An appeal from the denial of an I-360 petition filed by an abused parent may be filed on Form I-290B with the Administrative Appeals Office.
(E) Employment Authorization. (1) Eligibility. All self-petitioners (including self-petitioning parents) with approved self-petitions are eligible for work authorization. An Employment Authorization Document (EAD) may be issued upon approval of the Form I-765. Those self-petitioners who are living outside the United States will not be issued an EAD.
(F) Filing Requirements. A self-petitioner desiring an EAD must file Form I-765, Application for Employment Authorization, with the Vermont Service Center (VSC).
(G) Closing Action. If found to meet the criteria, the application will be approved for employment pursuant . There is no appeal from the denial of Form I-765, Application for Employment Authorization.
(H) Deferred Action. Although no longer necessary for providing employment authorization to a VAWA self-petitioner with an approved petition, consideration of placing a self-petitioner in deferred action will continue to be a part of the adjudication process.
Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 35 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..