Certain abused spouses, parents or children of U.S. citizens or permanent residents can self-petition for permanent residence under the Violence Against Women Act (VAWA).
Except for immediate relatives, obtaining lawful permanent residence is a two-step process. First, the abused self-petitioner must file the self-petition. Second, when the petition is approved the self-petitioner must wait until a visa becomes current based on the self-petitioner’s priority date in his or her preference classification. Once the petition is approved, the self-petitioner can remain in the US and can get a work permit, advance parole and public assistance if needed while waiting to file the adjustment of status application which can take years before a visa becomes available.
Immediate relatives can file both the self-petition and the adjustment of status application concurrently.
In order to adjust status, the self-petitioner must prove that he/she is not inadmissible. A few grounds of inadmissibility do not apply to self-petitioners and some can be waived if the self-petitioner is eligible.
Persons who can self-petition:
Abused spouses of USC or LPR;
Spouses of USC or LPRs whose children were abused by the USC or LPR spouse;
Abused children of USC or LPR;
Abused parents of USC children;
Abused intended spouses of USC or LPR where the marriage is invalid due to bigamy by the USC or LPR.
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Self-petitioning spouses or intended spouses of USC or LPR must prove the following:
Good moral character;
Marriage to the USC or LPR;
Marriage was in good faith or intended marriage was in good faith;
During the marriage the, the foreign national spouse or his/her child was battered by or subject to extreme cruelty by the USC or LPR spouse;
The spouse resides or resided in the US with the USC or LPR spouse;
The self-petitioning spouse resides in the US and the USC or LPR battered or subjected the foreign spouse or child to extreme cruelty in the US or is living abroad because the abusive spouse is an employee of the U.S. government or a member of the US armed forces;
The self-petitioning foreign national child of an abusive or LPR must prove:
Good moral character (children under 14 are presumed to have good moral character)
A parent-child relationship with the abused USC or LPR parent;
The child resides or has resided with the abusive USC or LPR parent;
Was battered or subjected to extreme cruelty by the USC or LPR parent;
Is residing in the US or if living abroad was abused by the USC or LPR in the US or the abusive USC or LPR is a member of the US armed forces or an employee of the US government;
The self-petitioning parent of an abusive USC child must prove:
Good moral character;
The parent-child relationship including step-parents or adoptive parents)
The abusive USC child must be 21;
The self-petitioning parent resides or resided with the USC son or daughter;
Was battered or subject to extreme cruelty by the USC son or daughter.
If USCIS makes a prima facie determination that the self-petitioner was abused, he/ she can apply for work permit and/or welfare if needed. If the petition is approved and the self-petitioner is an immediate relative in the US, he/she can apply to adjust status. A preference beneficiary who is in the US will have to wait until a visa becomes available in his/her preference category before he/she can apply for adjustment of status.
If the self-petitioner resides abroad, when the petition is approved USCIS will send the approved petition to NVC for visa processing. If the self-petitioner is an immediate relative, NVC will commence visa processing immediately but if the self-petitioner is a preference relative, the self-petitioner will have to wait until a visa becomes available to begin visa processing.
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