A guide to the Violence Against Women Act and how it protects immigrant women

Violence Against Women Act signing ceremony, March 7, 2013 Flickr/usinterior

Written by Lumi Zogaj

Earlier this month, Attorney General Jeff Sessions reversed a ruling that granted asylum to a Salvadoran woman on the basis of domestic violence. In 2016, The Board of Immigration Appeals had found that the woman qualified for asylum on the grounds of her membership to a particular social group, because married women in El Salvador cannot leave their relationship and the government fails to protect them.

Sessions’ decision not only narrowed the use of the  particular social group category in asylum cases, as the Times reported, but it also undermines protections available to immigrant women under the Violence Against Women Act (VAWA). Here, we outline the key provisions of VAWA, including its protections for undocumented immigrant women. A forthcoming follow-up post will discuss the current state of VAWA in more detail.

What is the Violence Against Women Act?

The Violence Against Women Act (VAWA) is federal legislation that expanded resources for investigation and prosecution of violent crimes against women. It was signed into law by President Clinton in 1994, and also established the Office of Violence Against Women (OVA) within the US Department of Justice to carry out VAWA programs. The act was reauthorized with bipartisan support in 2000 and 2005, but got pushback in 2012 from some conservative Republicans who opposed protections for same-sex couples and undocumented immigrants. After a lengthy struggle, VAWA was reauthorized in 2013 to include provisions extending protections to both of those groups. In 2017, the United States Citizenship and Immigration Services (USCIS) received 15,921 VAWA petitions, including 10,221 from spouses of abusive US citizens or legal permanent residents.

How does VAWA apply to undocumented immigrants?

Under VAWA, undocumented immigrants who suffer from various forms of abuse can self-petition for legal protections without the aid and/or knowledge of their abuser. An undocumented immigrant may be eligible to become a lawful permanent resident if she can demonstrate that she is victim of battery or extreme cruelty perpetrated by:

• A US citizen spouse or former spouse
• A US citizen parent
• A US citizen son or daughter
• A  lawful permanent resident spouse or former spouse
• A lawful permanent resident parent

Process and eligibility requirements to claim protection under VAWA

The process begins with self-petitioning by filing Form I-360 with USCIS, without the knowledge or consent of the abuser. Extensive supporting documents must be submitted along with Form I-360. In particular, the petitioner must prove that she has endured or continues to endure physical battery and/or “extreme cruelty”. This includes physical abuse, threats of violence, sexual abuse or exploitation, verbal abuse and degradation, emotional abuse, isolation, intimidation, economic abuse, coercion, threats to take away children, and threats of deportation.  

Abused spouses must also prove that the marriage was entered in good faith, that the abuse took place during the marriage, that the abuse occurred in the US, that the abused spouse resided with her partner, and that the marriage is still valid or divorce took place less than two years prior to self-petitioning. Moreover, the self-petitioner must provide evidence of her “good moral character,” which includes a criminal background check and a review of any other violations of immigration law.  Certain arrests or legal problems may be forgiven if the self-petitioner can prove that the transgressions were connected to the abuse she endured.

Protections for undocumented immigrants during the petition process

Understandably, many undocumented immigrants are fearful of calling the police, so a police report is not required when pursuing a VAWA self-petition. Additional protections offered under VAWA include prohibiting Immigration and Customs Enforcement (ICE) officers from making arrests at domestic violence centers, rape crisis centers, and courthouses, which allows in particular for survivors of domestic abuse to obtain protective orders and/or appear in court for other matters without the fear of arrest due to their immigration status. VAWA also permits victims of domestic abuse to receive shelter and/or restraining orders regardless of their immigration status.  Moreover, the VAWA does not permit ICE to act on information provided solely by an abuser.

In addition, once Form I-360 has been submitted along with supporting documents, USCIS conducts an initial review of the case and may make a “prima facie” determination allowing the petitioner to be eligible for certain public benefits, prior to a final decision on the petition  

What happens after approval of a VAWA petition?

Upon approval of a VAWA petition, deferred action status is triggered in most cases, meaning that removal or deportation proceedings won’t move forward. Applicants are also eligible for work authorization, by filing Form I-765 after their VAWA petition is approved.   

In addition, following VAWA approval petitioners are classified into categories based on a preference system. Petitioners who are immediate relatives of US citizens are immediately eligible for lawful permanent resident status, while petitioners whose immediate relatives are lawful permanent residents are placed on a waiting list.

Look out for a follow-up post that will discuss the current state of VAWA.