Options for Victims of Domestic Violence

If you are a victim of domestic violence (see Domestic Violence), you have the right to be safe, regardless of your legal status in the United States. You may worry that you don’t have the right to call the police if you are being abused, but that is not true.

"Domestic violence" refers to many kinds of abuse committed by a member of a family, a household, or an intimate partner against another member of the family, household, or against the intimate partner.

When you contact police about domestic violence, their duty is to protect you from your abuser. They are not supposed to call ICE to inform them you are in the United States without legal status.

If you are afraid of your abuser or think they may hurt you, you can go to the court or the police to ask protection by asking for a restraining order (see Abuse Prevention Orders).

If you are a victim of domestic violence and you do not have legal status in the US, you should contact immigration lawyers and advocates to help you.

Legal Status for Immigrant Survivors of Domestic Violence

If you are a victim or survivor of domestic violence, there are laws that can allow you to gain legal status in the United States.

Violence Against Women Act

The Violence Against Women Act (VAWA) was created to protect victims of domestic violence, and offers specific protections for people without legal status in the US. VAWA also protects men, children and parents who are victims of domestic violence.

If you are being abused by your U.S. Citizen or Lawful Permanent Resident ("green card") Spouse,  Parent, or Child (over 21) OR your child is being abused by his or her U.S. Citizen or Lawful Permanent Resident ("green card") Parent, VAWA can help you escape violence and gain legal permanent status.

If these immigration laws apply to you, you can get legal status without help from your abusive spouse or parent. By law, US citizens and lawful permanent residents (“green card holders”) can petition for their immediate family members to receive legal status.

However, abusers often may refuse to assist you with applying for immigration status, may promise to apply for you, but never actually help, or threaten to contact immigration and report you. VAWA helps victims of domestic violence by allowing them to self-petition for their own legal status without the abuser’s help or knowledge.

How do I petition for legal status through VAWA?

If you are a victim of domestic violence and your abuser is a citizen or lawful permanent resident (“green card holder”), you can apply by using the form titled “I-360, Petition for Amerasian, Widow(er), or Special Immigrant." In addition to this form, you need to include evidence to prove that you meet the requirements for VAWA. Contact an immigration lawyer if you want to self-petition under VAWA laws.

What are the requirements for VAWA?

If you have been abused by your spouse, you can self petition for status if:

• You are legally married to a U.S. citizen or permanent resident abuser OR you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate;
• You have suffered battery or extreme cruelty by your U.S. citizen or permanent resident spouse:
  • You have been abused by your U.S. citizen or permanent resident spouse, or
  • Your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse;
• You entered into the marriage in good faith, which means you did not get married  solely for immigration benefits;
• You have lived with your spouse;
• You are a person of good moral character, which often means a person who has not broken any US laws or committed any serious crimes.

If you have been abused by your parent, you can self petition for status if:

• You are the child of a U.S. citizen or permanent resident abuser;
• You have suffered battery or extreme cruelty by your U.S. citizen or permanent resident parent;
• You have resided with your abusive parent; and
• You are a person of good moral character, which often means a person who has not broken any US laws or committed any serious crimes. Immigration assumes that a child under the age of 14 has  good moral character.

If you have been abused by your child, you can self petition for status if:

• You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed;
• You have suffered battery or extreme cruelty by your U.S. citizen son or daughter;
• You have resided with the abusive son or daughter; and
• You are a person of good moral character, which often means a person who has not broken any US laws or committed any serious crimes.

What kind of evidence will I need?

Collecting the evidence you will need can be complicated, but you should try to get as much as possible of the following, without putting yourself or others in danger:

• Your marriage certificate if you are filing a petition based on an abusive spouse,
• Birth certificates if you are filing based on an abusive parent or child,
• Evidence that you and the batterer lived together such as birth certificates of children, bills, leases, family photos, tax returns, etc.,
• Proof of the abuse such as restraining or civil protection orders, police reports, medical records, criminal records of the batterer, a letter from a battered women's program, counseling records, photographs of injuries or bruises, affidavits of the witnesses describing the abuse, or affidavits from others who may know about the abuse, 
• Evidence of "good moral character" such as proof that you have no criminal record, a letter from your religious institution, or evidence of community involvement,
• You must provide a written statement describing your relationship with the batterer.

Here is a helpful guide for document gathering.

What if my abuser has died, has lost their legal status, or I am divorced?

If your abuser has died, you may still self-petition for legal status within 2 years of their death. If you are divorced, you may still file a self-petition within 2 years of when the divorce is final.  If your abuser has lost their own legal status due to domestic violence, you can still submit a self petition with no time limitations.

What if I am in immigration court?

You can still apply for VAWA or apply for another type of relief called "cancellation of removal" if you are in immigration court. You can be granted cancellation of removal even if you are divorced from your battering spouse when you apply. To qualify for cancellation of removal, you will also have to submit a regular self petition AND also show that you have been in the United States for at least three continuous years.

What happens if I win my VAWA case?

If you win your VAWA case, you will be given “deferred action” and a work authorization card. “Deferred action” will let you stay in the US legally and you can work legally. You may also be eligible to apply for lawful permanent residence (green card) based on VAWA. If you can apply for a green card and when you can apply will depend on a lot of factors, including your past immigration history, criminal history, and your abuser’s status (green card holder versus US citizen). 

What if I have a conditional or temporary green card?

If you have a conditional green card (valid for 2 years) but your spouse is abusive, you will file a different petition, titled I-751, Petition to Remove Conditions on Residence, which is an application for a permanent green card (valid for ten years at a time). Normally, you would file a petition together with your spouse, but you will explain that your spouse is abusive and will need to submit the same type of evidence described above for the VAWA petition(I-360).

What if my abuser is not a U.S. citizen or lawful permanent resident or if I was never married to my batterer?

Even if your abuser is not a U.S. citizen or permanent resident, there may be other ways for you to get protection through legal status. For example, a U-visa is a pathway to legal status if you have been a victim of a crime and you have been, or are willing to be, helpful in the investigation or prosecution of this crime.

In a domestic violence situation, you could be eligible for a U visa if you contacted the police, if your abuser was arrested, if you assisted the district attorney’s office, if you testified in court against your abuser, or helped in some other way. You should consult an immigration lawyer and ask about the U Visa.

What if my abuser is not a U.S. citizen or lawful permanent resident, or if I was never married to my batterer, AND I never contacted the police or other agency about the abuse?

If you are the victim of domestic violence but do not qualify for help through VAWA or a U Visa, you should still seek help from the police or other social services agencies if you are in danger. You may want to talk to an immigration lawyer to see if you may qualify for some other type of immigration benefit.

Links to VAWA manuals

• Pro Bono Attorney Manual on Legal Immigration Protections for Immigrant Survivors of Domestic Violence
• Preparing the VOWA Self-Petition and Applying for Residency

If you are in need of support, resources, and a safe place for yourself and your children:

Call SafeLink a 24-hour Hotline at 1-877-785-2020.

(Safelink is a project of Boston's Casa Myrna Vasquez, Inc)