RECENT UPDATES TO VAWA REMEDIES FOR IMMIGRANT SURVIVORS

By Pooja Asnani and Daria Campion, Immigration Intervention Project, Sanctuary for Families

Recognizing the specific power imbalance and additional vulnerabilities faced by immigrant victims of domestic violence, Congress enacted specific protections for immigrant survivors in its landmark 1994 legislation, the Violence Against Women Act (“VAWA”). The VAWA, among other things, empowers abused spouses, children and parents to confidentially file their own petitions to obtain legal permanent residence status through two specific remedies known as the VAWA Self-Petition and the Battered Spouse Waiver.  

After a four-year period during which the VAWA authorization expired, Congress in March of 2022 reauthorized and strengthened the VAWA. In parallel, United States Citizenship and Immigration Services (“USCIS”), announced several updates to its Policy Manual relating to the adjudication of VAWA self-petitions and battered spouse waivers, most of which as described below, offer a more generous interpretation of VAWA immigration protections.

VAWA Self-Petition 

On February 10, 2022, USCIS announced updates to the USCIS Policy Manual section about VAWA self-petitions related to joint residence, good moral character and stepchildren. 

Joint Residency Requirement

USCIS updated its interpretation of the joint residence requirement, now allowing VAWA self-petitioners to satisfy this requirement provided that they have resided with the abuser at any point prior to the filing of the self-petition. USCIS will apply the statutory definition of residence, found at INA section 101(a)(33): “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Merely visiting the abuser while maintaining a separate residence elsewhere will not fulfill the joint residence requirement. USCIS will no longer require VAWA self-petitioners to demonstrate that they resided with their abuser during the qualifying relationship. 

Additionally, USCIS explicitly recognizes that there is no requirement that a self-petitioner reside with the abuser for a specific length of time or that they reside together in the United States. 

For self-petitioning spouses and parents, it is also not required to demonstrate shared residence when the abuse occurred. However, note that for self-petitioning children, USCIS does require residence with the abuser at the time the abuse occurred. For those children, residence includes any period of visitation. 

Good Moral Character Requirement

USCIS additionally clarified its standard for determining whether a VAWA self-petitioner has established “good moral character.” Adapting as national policy the holding by the Third Circuit in Da Silva v. Attorney General, 948 F.3d 629 (3d Cir. 2020), USCIS may now find good moral character where a self-petitioner triggers a waivable bar and the “act or conviction was connected to the alien's having been battered or subjected to extreme cruelty.” In Da Silva, the Third Circuit held that, for the purposes of determining good moral character in VAWA cases, an act or conviction is “connected to” the battery or extreme cruelty when it has “a causal or logical relationship.”  In Da Silva, the VAWA self-petitioner was convicted of assault after attacking a woman who was having an affair with her abusive husband. The Third Circuit concluded that the adultery was part of the extreme cruelty and that the assault happened when Da Silva was confronting her husband and the woman about the affair, meeting the causal or logical relationship standard. USCIS updated the policy manual to adopt this standard and disavow the need to demonstrate that the abuser coerced or compelled the self-petitioner to commit the act. 

Stepchildren

USCIS also announced the nationwide implementation of Arguijo v. United States, 991 F.3d 736 (7th Cir. 2021), in which the Seventh Circuit held that a divorce does not terminate the stepchild relationship for the purposes of a VAWA self-petition. Therefore, stepchildren and stepparents continue to be eligible for VAWA self-petitions even if the parent and stepparent divorced, provided that (1) the marriage creating the relationship occurred before the stepchild turned 18 years old, and (2) the step relationship existed, by law, at the time of the abuse.

Battered Spouse Waiver

On April 7, 2022, USCIS announced a revision on its policy regarding interviews for I-751 petitions for conditional permanent residents, including battered spouse waivers. USCIS may now waive the interview if there is (1) sufficient evidence in the record of the bona fides of the marriage; (2) sufficient evidence to support a waiver of the joint-filing requirement, if applicable; (3) no indication of fraud or misrepresentation; (4) no complex facts or issues to resolve; and (5) no criminal history that would render the conditional permanent resident removable.