Family-Based Immigration Provisions and Issues

Violence Against Women Act (VAWA) and VAWA Petitions

Under the Immigration and Nationality Act (INA), as amended by the Violence Against Women Act (VAWA) otherwise qualified victims of abuse committed by a U.S.-citizen or LPR (Legal Permanent Resident or Green Card holder) spouse, ex-spouse, parent, or sibling, may self-petition for permanent residence.

The VAWA provisions in the INA allow battered spouses, children, and parents of U.S. citizens and LPRs to file for an immigrant visa petition for themselves, without the abuser’s knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing.

Below please see eligibility for each category of the victims of abuse:

Eligibility Requirements for a Spouse

• You are:
  • married to a U.S. citizen or permanent resident abuser, or
  • your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing, or
  • your spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing due to an incident of domestic violence, or
  • you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.
• You:
  • you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.
  • are the parent of a child who has been subjected to abuse by your U.S. citizen or permanent spouse.

• You entered into the marriage in good faith, not solely for immigration benefits.
• You have resided with your spouse.
• You are a person of good moral character.

Eligibility Requirements for a Child

• You:
  • are the child of a U.S. citizen or permanent resident abuser
  • were the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence
  • have been abused in the United States by your U.S. citizen or permanent resident parent
  • have been abused by your U.S. citizen or permanent resident parent abroad while your parent was employed by the U.S. government or a member of the U.S. uniformed services
  • have resided with the abusive parent
  • have evidence to prove your relationship to your parent
  • must provide evidence of good moral character if you are over the age of 14

Eligibility Requirements for a Parent

• You are the parent of a U.S. citizen son or daughter or were the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence or died within 2 years prior to filing
• You have been abused by yourU.S. citizen son or daughter
• You have resided with the abusive son or daughter
• You are a person of good moral character

What Follows VAWA Petition Filing:

If you meet all filing requirements, you will receive a notice (Prima Facie Determination Notice) valid for 150 days that you can present to government agencies that provide certain public benefits to certain victims of domestic violence.

If your petition is approved and you do not have legal immigration status in the United States, you may be placed in deferred action, which allows you to remain in the United States, apply for work authorization, and file for a Legal Permanent Resident (LPR or a green card).

Same-Sex Marriages

Eligibility for a wide range of benefits under U.S. immigration laws depends on the definitions of “marriage” and “spouse.” On June 26, 2013, the U.S. Supreme Court held in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA), limiting the federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, is unconstitutional. Immediately following this decision, President Obama directed all interested U.S. government agencies, including U.S. Citizenship and Immigration Services and the U.S. Department of State, to ensure that the decision and its implications for federal benefits for same-sex, legally married couples are implemented swiftly and smoothly. Pursuant to this presidential directive, U.S. Citizenship and Immigration Services announced that it would review immigration visa petitions filed on behalf of same-sex spouses in the same manner as those filed on behalf of opposite-sex spouses.

Adopted Children

A U.S.-citizen parent may petition for the immigration of a child adopted while under the age of 16. As an anti-fraud measure, however, the law requires that the adopted child was under the legal custody of and resided with the adopting parent or parents for at least two years prior to filing the visa petition on the adopted child’s behalf. The law now provides that the two-year period of legal custody and co-residence may have taken place before or after the adoption. The applicant must document that the adoptive parent or parents exercised primary parental control during the period of residence.

Complex legal issues, frequently involving the interpretation of foreign laws, often arise in connection with the immigration of adopted children, stepchildren and children born outside of a legal marriage.

K-3 Spouse Visa

A K-3 Spousal Visa allows the foreign spouse of a U.S. citizen to enter the United States on a temporary visa while awaiting processing of his/her Immediate Relative petition and subsequent lawful permanent residency (LPR status).

Children of the U.S. citizen are allowed to enter on K-4 Visas.

In those cases where the children are neither blood related to nor adopted by the U.S. citizen, they would be qualified as his/her foreign spouse’s derivatives, i.e. someone who couldn’t be called on by the U.S. citizen on his/her own was not for the occurrence the foreign marriage in the first place.