Lawyers Manual - Unified Court System

322 Lori Cohen
VAWA Self-Petitions for Victims Married to a USC or LPR 48
While the battered spouse waivers offer streamlined relief, they are available
only to the subgroup of victims whose abusers had assisted them in obtaining the
initial conditional residence status. Far more common is the scenario where the
abuser (1) never filed any immigration petitions on the victim’s behalf; or (2)
filed an initial family-based petition and subsequently withdrew it or refused to
file the subsequent adjustment of status application. A VAWA self-petition assists
current or former spouses of US citizens or permanent residents and their
children to seek permanent residence. 49 VAWA self-petitioners may adjust their
status to lawful permanent resident even if they entered the United States without
inspection or are “unlawfully present” in the United States. 50 A victim may also
self-petition if she already has received an approved Petition for Alien Relative
or has an adjustment of status application pending.
Elements of a VAWA Self-Petition
To qualify for a VAWA self-petition, the victim must demonstrate:
legal and valid marriage to a current or former USC or LPR
spouse; 51
good faith marriage;
physical battery or extreme cruelty suffered by her or her child;
joint residence with the abuser;
good moral character. 52
The first three elements overlap substantially with the provisions for the
battered spouse waiver for conditional residents. However, the legal and valid
marriage requirement differs from the waiver in two important aspects. First,
while the battered spouse waiver in practice requires the batterer to be a US
citizen (since spouses of permanent residents cannot currently obtain conditional
residence), the VAWA self-petition also enables spouses of permanent residents
to seek relief. Second, while a victim seeking a battered spouse waiver may file
at any time after the termination of her marriage, the VAWA self-petitioner faces
a two-year deadline between the termination and the filing of her application, and
there must be a connection between the divorce and the domestic violence. 53
Joint Residence with the Abuser and Current US Residence
A VAWA self-petitioner must show that she has resided in the past with her
abuser. A conflict currently exists between the USCIS and the regulations