Immigration Corner | Can I file for VAWA?

Good day Mrs. Walker-Huntington:

I have been married for almost two years been together for three and had a baby seven months ago. My husband started the filing process but stopped due to him cheating on me. The documents are currently at NVC. I am currently residing in Jamaica and he is in the US with the person with whom he is cheating. I am wondering if I can continue the filing process on my own as a VAWA petitioner.

BG

Dear BG:

Sorry to hear that your marriage is not going well and that your petition has been abandoned.

As the petitioner, your husband does have the right to discontinue the filing at his discretion. You are then left without a path forward to a Green Card through your husband’s petition.

You have inquired about VAWA – Violence Against Women’s Act petition (that also applies to men). VAWA is a form of relief that was designed to help spouses, minor children and parents of American citizens and spouses and minor children of Green Card holders. The VAWA applicant (the self-petitioner) must demonstrate that they were the victim of battery or extreme cruelty by one of the above-named persons.

VAWA is a viable pathway for victims of abuse and the VAWA self-petitioner must demonstrate that they are legally related to the US citizen or lawful permanent resident and how the abuse took place. The abuse must be documented as best as possible. Abuse can take many forms and VAWA cases are fact specific. However, there has been a raft of fraudulent VAWA filings and any VAWA case is carefully scrutinized by US Citizenship &Immigration Services (USCIS). There are people on social media who lead others to believe that VAWA petitions are simple and that the status is easy to acquire – it is not. While a prima facie case may be found very early on in the process that a VAWA self-petitioner qualifies, the real test comes when full scrutiny is applied to the case. Filing a VAWA petition without basis or fabricated basis can lead to a finding of immigration fraud and have severe consequences on future US immigration filings.

If you reside outside of the United States, your eligibility for VAWA is further restricted by the requirement that (1) your abuser is a member of the US military, an employee of the US government, and the abuse happened while you were both living overseas, (2) the abuser is a spouse and abused your child while you were all living overseas, or (3) you are now outside the US and abuse against you or your child took place while you were in the US – this applies even if your abuser is still in the US.

Dahlia A. Walker-Huntington, Esq, is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com