Considering ‘normal‘ problems as those that commonly arise in marriages with USCs or LPRs, or in parent-child relationships when the child is a USC and +21, is it possible to regularize immigration status through these problems?
Abbreviations / Terms
- USC = United States Citizen
- LPR = Legal Permanent Resident
- Spouse = Husband or wife
- Parent = Father or mother
- Child = Son or daughter
- +21 = Over 21 years old
The VAWA visa is one of the Humanitarian Visas. Despite entering the USA illegally, having certain illegal entries and exits, returning to the USA illegally after a deportation order, or even having certain offenses on record, it can provide an immigration status that, depending on the case, can lead to US Permanent Residency.
There are different ways to apply through VAWA. It can be through problems in a marriage with a USC or LPR; being separated but still married to a USC or LPR, or divorced within the last two years; or through problems with a USC +21 child.
One of the main requirements for the VAWA visa is to demonstrate that there has been abuse or family violence by a USC or LPR spouse, an ex-USC or LPR spouse, or by a USC +21 child.
When talking about abuse or family violence, the first thing that may come to mind is physical violence and extreme domestic violence. While this is a form of abuse or family violence under US law, US law is broad. It encompasses things that some people may not consider as abuse or family violence at first glance, such as emotional abuse, psychological abuse, or verbal abuse.
It is by considering the entire context and behavior of the USC or LPR spouse, the ex-USC or LPR spouse, or the USC +21 child, and if it is truly extreme, that it can be determined if it is a case applicable for VAWA.
Now, if one has ‘normal’ problems like those anyone could have with a USC or LPR spouse, or with a USC +21 child, are these problems sufficient to apply for the VAWA visa?
No. Any ‘normal‘ problem one has with a USC or LPR spouse, or a USC +21 child is not sufficient to support a case under VAWA law. The law does not work that way. ‘Normal’ problems will not provide a path to obtaining immigration status through the VAWA visa.
This is where an immigration lawyer can make a difference. Through questioning, they will determine if the problems are ‘normal’, or if they already constitute abuse or family violence. These are common questions for people from certain countries where a certain level of violence may be normalized and where abuse or family violence may only be considered extreme domestic violence, such as physical abuse, which is also considered abuse under US law.
Every case is different. If one thinks they have a VAWA case, it is advisable to consult with an immigration lawyer.
An experienced lawyer will inquire about the relationship with the spouse or child, sometimes asking questions the immigrant may not feel comfortable answering; however, these questions will help understand the case, and the terms of the marriage or relationship with the child; and determine if it is VAWA applicable.
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VAWA applicable scenarios
Psychological abuse or emotional abuse, such as every time there is a discussion or disagreement, the spouse threatens to report to the Immigration Department and get a deportation order for their partner.
It is common, when one person has immigration status and the other does not, for the documented person to:
- threaten to report their spouse to the ICE
- threaten not to support their spouse in processing migratory documents
- demand money from their spouse to submit the petition to USCIS
- insult their spouse regarding their immigration status
Feeling intimidated by a spouse, or whenever there is a disagreement, the spouse behaves aggressively to the point of physical violence.
The fear, thinking that one should not speak, almost breathe, because the spouse will lose control and become even more aggressive if anything is said.
Extreme jealousy, such as when a spouse installs a GPS tracker on their partner without their consent; or every time their partner is out, the spouse calls repeatedly, even knowing, for example, that their partner works in industries like construction and cannot answer calls all the time.
Thinking that if one goes to the store and takes a little longer, the spouse will ‘explode’ when they return home.
Sexual abuse; is often uncomfortable to talk about, as one may feel ashamed to address these issues, however, it is something that happens in some people’s lives.
Sometimes, spouses may make comments trying to make their partner think that they must be available at all times and fully willing to engage in all sexual activities demanded; or else they will be forced even through the use of force.
Frequent false accusations of infidelity or offenses or violence for refusing sexual activity.
Non-applicable via VAWA scenarios
Minor problems with a USC or LPR spouse, or with a USC +21 child, will not provide a path to regularize migratory status through the VAWA visa.
For certain communities, it can be confusing to know where the line is, as in some of these communities, a certain level of violence may be normalized.
It should be noted that the law in the USA is broad; always remembering that minor problems are insufficient to support a VAWA case.
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