Immigration

If you answer “yes” to any of the questions below, you may qualify for a VAWA self-petition, regardless of whether your spouse is of the same sex¹ or the opposite sex:

1. Are you currently married to a US citizen or lawful permanent resident?
2. Did you get divorced from your US citizen or lawful permanent resident spouse within the past two years? And was the divorce connected to the abuse? Note: You must be able to answer “yes” to both questions to qualify under this category.
3. Did you marry your US citizen or lawful permanent resident spouse believing s/he was unmarried but later found out s/he was already married?
4. Were you married to a US citizen spouse who died within the past two years? Note: This does not apply if your spouse was a lawful permanent resident.
5. Were you married to your US citizen or lawful permanent resident spouse but s/he lost his/her immigration status within the past two years due to domestic violence?

Even if you answered “yes” to any of the questions above, you will still have to prove to USCIS that your marriage was in “good faith.”² This means that you didn’t marry your spouse primarily because you wanted to get immigration status.³ However, it’s OK if one of the reasons you got married was for immigration purposes – as long as you also got married because you wanted to spend your life together. For information on how to show good faith marriage, see How can I prove that I got married in good faith?

¹ Obergefell v. Hodges, 576 U.S. 644 (2015)
² INA § 204(a)(1)(A)(iii)(I)(aa), (a)(1)(B)(ii)(I)(aa)
³ See, e.g., Matter of Patel, 19 I&N Dec. 774, 783 (BIA 1988) (“Such marriages, entered into for the primary purpose of circumventing the immigration laws, have not been recognized as enabling a [noncitizen] spouse to obtain immigration benefits”) (citing Matter of McKee, 17 I&N Dec. 332 (BIA 1980); Lutwak v. United States, 344 U.S. 604 (1953); McLat v. Longo, 412 F. Supp. 1021 (D.V.I. 1976); Matter of M-, 8 I&N Dec. 217 (BIA 1958)); Matter of McKee, 17 I&N Dec. 332, 333 (BIA 1980) (“A marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, has not been recognized as enabling a [noncitizen] spouse to obtain immigration benefits”); Lutwak v. U.S., 344 U.S. 604, 613 (1953) (finding no good faith marriage where there was “no intention to marry and consummate the marriages even for a day”); U.S. v. Rubenstein, 151 F.2d 915 (2nd Cir. 1945) (holding that there was no valid marriage where marriage was entered into solely for immigration purposes, and not for ordinarily understood purpose of marriage)

A common law marriage could count as a marriage for immigration purposes if the laws of the state or country where you had the relationship recognize common law marriages. For a list of US states that recognize common-law marriage and each state’s legal requirements, you can go to the National Conference of State Legislatures website. You will need to work with an immigration lawyer to put together the documents to prove your common law marriage.

Immigration officials may look at the following factors to determine if you have a valid common law marriage:

• When and where did the relationship begin?
• What was the intent of you and the abuser with respect to what the relationship was to be?
• Were you generally known as spouses by neighbors, friends, and the community?
• Did either of you introduce one another as a spouse?
• Did either of you purchase a life insurance policy describing one or the other as the beneficiary spouse?
• Is there birth registration or school registration of your children showing each of you as the parents?
• Is there a credit card account describing one of you as the spouse of the other?
• Did either of you name the other one as the beneficiary spouse of the other’s pension rights?
• Is there any other information that would tend to demonstrate that you both have, from the beginning, lived the type of existence that would be normal for a lawfully married couple?¹

¹ See USCIS Policy Manual, Volume 3, Part D, Chapter 2(B)

If you are under age 21 and not married, you may qualify for a VAWA self-petition if you answer “yes” to any of the questions below:

1. Is your abusive parent a U.S. citizen or lawful permanent resident?
2. Is your abusive step-parent a U.S. citizen or lawful permanent resident and s/he married your parent when you were age 17 or younger?¹

Note: You could still qualify for a VAWA self-petition even if your parent and abusive step-parent are divorced.²

3. Is your abusive adoptive parent a U.S. citizen or lawful permanent resident and were you adopted before you turned 16?
4. Did your abusive parent lose her or his status as a U.S. citizen or lawful permanent resident within the past two years because of the abuse?¹

If you are over 21 and not married, you may still be able to file a VAWA self-petition if all of the following are true:

• you file before you turn 25;
• you remain unmarried;
• you can prove that the day before you turned 21, you would have qualified to file a self-petition; and
• you can prove that the abuse was ”one central reason” for not filing before you turned 21.³

Another possible immigration remedy for a child who was abused, abandoned, or neglected by a parent is Special Immigrant Juvenile Status (SIJS). It is important to know that you can still be considered to be “abandoned” by one parent even if you are living with, and being supported by, your other parent. If SIJS classification is granted, you may qualify for lawful permanent residency. You can read more about the requirements on the USCIS.gov website or on Immi.org. (WomensLaw is not affiliated with that organization.) Please talk to a lawyer who specializes in SIJS for specific advice.

¹ INA § 204(a)(1)(A)(iv), (a)(1)(B)(iii)
² Arguijo v. USCIS, 991 F.3d 736 (7^th Cir. 2021), USCIS Policy Manual, Volume 3, Part D, Chapter 2
³ INA § 204(a)(1)(D)(v)