Only a spouse or unmarried child that has been abused by a U.S. citizen or lawful permanent resident (green card holder) or a parent that has been abused by a U.S. citizen, is eligible for VAWA. VAWA is not available to a parent who has been abused by a lawful permanent resident.
Spouse Eligibility for VAWA
An “abused spouse” is a person who enters into a bona fide marriage with a U.S. citizen or lawful permanent resident and is “battered” or suffers “extreme cruelty.” This means that when both people got married, they intended to establish a life together and it was not for immigration purposes. Abuse can take many forms. It may be physical harm, verbal abuse or control.
A VAWA spouse must prove:
1. Qualifying relationship: The marriage must be to a U.S. citizen or green card holder. You prove this by submitting a copy of their U.S. birth certificate, U.S. passport, U.S. naturalization certificate or green card. In some cases, a common-law marriage is sufficient and also if your marriage is invalid because your spouse committed bigamy, you may still qualify.
2. Evidence of Abuse: A detailed statement pointing to instances where a U.S. citizen or green card holder abused you is strong evidence that you should submit with you I-360 petition. In addition, police reports, court records, medical records, psychological reports and affidavits from witnesses who know of the abuse are examples of additional documentation that you should include in your evidence packet.
3. Bona Fide Marriage: Your marriage must be real from the beginning, even if it is breaking down. Photographs of the wedding, joint accounts such as bank accounts, utility bills, life insurance naming your spouse as the beneficiary, and joint health insurance and some types of evidence that can help you prove that your marriage was real.
4. Joint Residence: You must have resided with your abusive spouse. You may prove this by submitting a copy of the lease agreement or the deed to the marital home.
5. Good Moral Character: You must be a person of good moral character. This means that you are no worse than the average citizen in your community. A clean FBI background check is proof of good moral character. If you have blemishes on your record, some offenses won’t automatically disqualify you but it is best to consult with a qualified immigration attorney for a thorough review.
Child Eligibility for VAWA
“Who qualifies for VAWA?” also includes certain children. A “child” is an unmarried person, under 21 years old who suffers abuse at the hands of their U.S. citizen or permanent resident parent. This category includes step-children. Children up to 25 years old are eligible to file if he or she can prove that the abuse was the main reason for delaying the filing. The child must also have resided with the abusive parent/step-parent and be a person of good moral character. A child less that 14 years old is presumed to be a person of good moral character. The child may file an independent petition. In this case, the child must have resided with the abuser. The child may also be a derivative on the abused spouse’s petition, if the abuser abused his or her mother or father. In that case the child does not have to have lived with the abuser.
Parent Eligibility for VAWA
A VAWA parent must have resided with the abusive daughter or son and must prove the parent/child relationship. Strong evidence includes money order receipts or cancelled checks showing financial support, insurance policies listing the child as dependent, school records, correspondence between the child and the parent and notarized affidavits of friends or neighbors with knowledge of the relationship. The parent must also be a person of good moral character and present evidence of the abuse.