VAWA has incredible benefits. It can give a way to regularize migratory status without leaving the US. A VAWA case can have higher possibilities of succeeding by considering certain factors.
In immigration law, there is what is called Humanitarian Visas. There are 3 Humanitarian Visas: VAWA Visa, T Visa, and U Visa.
Humanitarian Visas can pardon things that other immigration processes cannot.
There are people who have even up to 30 years struggling to regularize migratory status due to not having a way to submit a family petition (I-130 petition); not being able to regularize their status through their US citizen or legal resident spouse; and not being able to get documents through a son/daughter since lawyers have told them that if leaving the US in order to ask for pardon at Ciudad Juarez, could end up out of the US with a 10-years bar, thus, having to wait for several years a way to become a legal immigrant.
VAWA visa can be the opportunity some people are looking for, since, even after entering the country unlawfully or being under the Permanent Bar, VAWA Visa can give the way to fix migratory status without leaving the US, sometimes even enabling an Employment Authorization Document, Social Security Number and protection against deportations in up to eight months.
The Permanent Bar can be imposed for several unlawful enters and exits, or an unlawful entrance after a deportation order. Despite having been deported and having gone back unlawfully to the US, if meeting the requirements of a VAWA visa, there can be a way to obtain a pardon even for the Permanent Bar.
When talking about the VAWA visa, it can be thought that it will be an easy process, when is not always that way.
What can help to succeed with a VAWA case?
The first thing is to have the requirements in mind. An important requirement for the VAWA Visa is to demonstrate having suffered mistreatment from a US Citizen or Legal Resident spouse, or ex-spouse from whom divorced in a time window not over 2 years; or from a US Citizen son/daughter. If it’s through a son/daughter, abuse or mistreatment should have happened after he/she turned 21.
About the family abuse or mistreatment, it is important to highlight that, due to it being a completely confidential procedure, it is something that only the applicant, the lawyer, and the immigration officer know about.
There are people who, even meeting VAWA visa requirements in terms of abuse or mistreatment, might be afraid of filing a VAWA case due to thinking that they might prejudice the spouse, sometimes having the wrong idea that they will have to divorce or that they won’t be able to have more children with this person.
VAWA Visa is a noble visa, in the sense that it doesn’t prejudice the person on whom the process is based. The person ends up with a clean record. It is not necessary to divorce nor separate. In fact, it is possible to have more children.
This is known as a self-petition. In an auto-petition, the applicant is who signs the paperwork. If applying to regularize migratory status through VAWA Visa basing the process on mistreatment from a spouse, the immigrant signing the paperwork is who might have an interview with immigration. Neither the signature nor the presence of the person on whom the process is based is asked for. If it’s through a spouse or ex-spouse, it is not necessary for him/her to know about the VAWA process, precisely due to it being a confidential process.
Same if applying through an over-21-years US citizen son/daughter. The son/daughter doesn’t need to know about it. He/she won’t be prejudiced; and ends up with a clean record. In fact, there is a $5,000 USD penalty fee for those immigrant officers who provide information about this type of case.
There is nothing to worry about when submitting an application through VAWA Visa in terms of possible prejudices for the spouse or son/daughter on whom the process is based.
Besides demonstrating having suffered family abuse or mistreatment, another requirement is to demonstrate a clean record during the last three years; there must be no crimes or felonies, such as drug traffic/possession.
Those are the main requirements to succeed with a case under VAWA Visa.
Now, how difficult is it to succeed with a case under VAWA Visa? The law states that given a 1-100 scale, a VAWA Visa case requires at least 51% in order to succeed with it. I.e., a case doesn’t need extremely strong in order for it to have chances of succeeding through VAWA Visa.
It doesn’t have to be one of the strongest cases ever, since that’s not something the law requires.
It is not advised to submit weak nor merit-lacking cases, but, by reaching a 51% of strength in the case, i.e., a bit more than half, VAWA cases can be succeeded with. If 51% of strength is reached, the case will not be exposed to judges’ criteria. The law states that if 51% of strength in the case is reached, this might be approved under VAWA Visa.
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Useful types of evidence for a VAWA case
If went through difficult situations, either with a spouse or son/daughter, but there is no evidence of it nor a way to obtain it; the law states that to demonstrate family abuse or mistreatment, it could be with any credible evidence.
There is no list of documents or specific evidence, police reports, restriction orders, or photos of the hurts caused by the violence to count with.
To demonstrate mistreatment, any credible evidence that takes the case up to its 51% strength is enough.
Evidence that can be submitted for VAWA cases
The most basic is a declaration that explains the mistreatment and abuse in a detailed and specific way. It must be explained point by point what is happening. For some people, it can be hard to relive these moments, however, the declaration must explain in a highly detailed way the problems and mistreatment. Examples and the whole situation context must be provided.
The only thing required to succeed with a case is the declaration. However, it is recommended to have more proof than just the declaration. It’s a good practice to prepare the cases with enough evidence about the mistreatment and abuse.
It might be thought that there is not any evidence, however, in most cases, there is something that can be considered evidence. There are elements that, at the first moment, might not be contemplated as evidence, such as text messages with threats and offenses; however, they are.
Sometimes, text messages can tell the full story. Phone calls too: logs from several calls in short periods of time might work. it might be a good practice to take screenshots or pictures of missed and incoming call logs. That might work as evidence to demonstrate the control the spouse is trying to exert on the relationship.
It might be that the spouse doesn’t allow the immigrant to work out of home and has him/her under vigilance through cameras trying to make sure he/she is home. Photos of the cameras in the house can also work as evidence. If the spouse installed a GPS somewhere in his/her belongings, that might also work as evidence.
If difficult points where physical violence arises have been reached, evidence from the bruises or scars caused by fights might also work as evidence.
It is not necessary to have reached physical violence in order to succeed with a VAWA case. There is also the possibility with another type of evidence.
Another scenario that can arise is that the immigrant gets home tired and his/her spouse unfoundedly suspecting that he/she is being unfaithful, takes his/her phone, throws it against the floor, and breaks it. In that scenario, a photo of the broken phone can constitute evidence for the case.
It can also happen that the immigrant gets home after buying some groceries, while the spouse is suspecting, starts a heated argument, and throws objects against the floor or walls. Again, photos from this can work as evidence in the case.
In case there are police reports or restriction orders, these can also constitute evidence, since they give a clear message on what’s happening.
Succeeding with these types of cases might not be that hard. Even more if counting on witnesses. Both witnesses as psychological evaluations tend to be helpful.
Bear in mind that each case is different, reason for which each strategy is different.
The immigration attorney handling the case must have a deep conversation with the applicant in order to better understand the situation.
By assessing the situation properly, the lawyer might suggest certain evidence, even when clients think they don’t have any.
It’s a good practice to prepare cases with all possible evidence. If having a clean record, a solid case can be built.
The strategy and the lawyer are determining factors.
If meeting the requirements, i.e., if the case reaches a 51% strength, the VAWA Visa will be approved without depending on the judges’ discretion.
Again, VAWA Visa, despite having entered the country unlawfully, having unlawful enters and exits, not being able to regularize migratory status by attending to Ciudad Juarez or home country consulate by any reason, or having been deported previously; it can provide a way to regularize migratory status without leaving the US.
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