The Violence Against Women Act, or VAWA, gives abused spouses and children of U.S. citizens or lawful permanent residents (LPRs) who are living in the U.S. a procedural mechanism by which to "self-petition" for lawful permanent resident status (a U.S. green card). It's a substitute for the usual application process, in which the immigrant must rely on the U.S. spouse or parent to take responsibility for sponsoring the immigrant. That gets problematic if the U.S. spouse or parent is abusive and non-cooperative. VAWA effectively cuts the abuser out of the process and limits that person's control over the immigrant.
But how long will this way of applying take, compared to the usual process of applying for a family-based green card in the United States? This article will address that question, looking at the various steps in the process and how the VAWA aspect of the application might affect the timing of those steps.
Safety and Privacy Considerations for Victims
Be sure to consider the privacy of your computer, smartphone, or tablet when seeking help online or over the phone. Some victims might use the same device, network, or phone plan as the abuser, allowing the abuser to see the victim's search or call history or otherwise track their activity. Many smart devices contain cameras or GPS tracking that can be used to locate and monitor your whereabouts. An abuser can even slip a small tracking device into your car, bag, pocket, or other belongings without your knowledge. If you're concerned about your privacy or safety, several organizations provide assistance and resources, including National Domestic Violence Hotline and RAINN. You can also check out our Resources for Victims of Crime.
Applying for a U.S. green card under VAWA involves many of the same steps as applying for any family-based green card. However, the process can take longer, for the reasons described below. It will also be different for immediate relatives (namely the spouses and children of U.S. citizens) than for preference relatives (spouses and children of LPRs). We'll explain both the similarities and the differences here.
With a non-VAWA family-based petition, a U.S. citizen or permanent resident prepares a petition on behalf of the immigrant beneficiary, on Form I-130 (issued by U.S. Citizenship and Immigration Services or USCIS). Somewhat similarly, a self-petitioner under VAWA prepares a self-petition, using USCIS Form I-360. There is no fee to file it.
In all cases, the person preparing the USCIS form must also include supporting evidence, starting with a marriage or birth certificate and proof of the U.S. citizen or LPR's status. However, because the self-petitioner has to prove the abuse as well as the legitimacy of the marriage, gathering all the required evidence might take longer. If you ask friends who know about the abuse to write affidavits describing what they observed, for example, that won't happen overnight. And your doctor or psychiatrist's office might need at least a few days to create copies of your files, which would be important in showing that you sought help and that the doctor observed your injuries or emotional state.
At the point of filing the I-360 with USCIS, however, the process splits in two for different types of applicants. Those who are preference relatives must submit the I-360 visa petition to USCIS as a separate package and have to wait a bit for approval. Those who are immediate relatives can combine the I-360 with their application to adjust status (get a green card), as discussed further below.
Because the spouse and children of U.S. lawful permanent residents are not immediately eligible for a green card, they must submit a visa petition to USCIS for approval before going any further with the green card process. (This is true whether it's a VAWA case or not; in other words, whether Form I-130 or I-360 is being submitted.) There is no fee to file this.
Upon receipt of the I-360 visa petition, USCIS will, within about 30 days, issue an I-797 Notice of Action "Receipt Notice." This contains a receipt number as well as a Priority Date. The Priority Date is the date that USCIS receives the petition (we'll talk about its importance in the next subsection of this article). If your petitioner had previously submitted an I-130 petition on your behalf, however, there's good news: You may retain your original (and probably earlier) priority date.
The receipt number can be used to track the status of USCIS action on the petition. To get an idea of how long USCIS is taking to decide particular types of petitions, check the USCIS Processing Time Information section of its website, and choose the Service Center that will be handling your application from the drop-down menu. Unfortunately, USCIS tends to take longer to decide on an I-360 than an I-130, probably because it has to review all the included evidence.
Once the petition is approved, USCIS issues an I-797 Notice of Action "Approval Notice." USCIS's approval of your I-360 petition does not, in and of itself, provide any legal status in the United States. It merely means you have completed the first step in the process of obtaining permanent residency, and must wait for a current priority date to continue. Most beneficiaries would simply be expected to leave the U.S. in order to await their eventual interview at a U.S. consulate, and the sooner the better, so as to avoid accruing "unlawful presence" and facing the three- and ten-year time bars on returning.
However, the U.S. government is sympathetic to the situation of VAWA applicants. USCIS may exercise discretion to place self-petitioners in a status called "deferred action," which simply that it won't try to deport you and that you'll be able to apply for a work permit while you wait. Deferred action is granted in most cases, but only for a limited time period. You might need to renew it more than once before getting the green card. Talk to an attorney for the details and for help.
Because of annual and per-country limits on visas for preference relatives, the self-petitioning spouse or child of an LPR might have to wait, sometimes years, for a visa number to actually become available, allowing them to move forward toward a green card. It's a first-come, first-served waiting list. Your place on the list can be tracked using the priority date listed on the I-797 Notice of Action.
Until your priority date is current, you are not yet eligible to adjust your status on Form I-485. Again, however, you may be given the original priority date if your petitioner filed an I-130 on your behalf, in which case you might not have to wait as long to apply to adjust status.
Whether you're a preference relative with an approved I-360 and a current priority date or an immediate relative who has prepared (but not necessarily submitted) your Form I-360, here's what you need to do next in order to adjust status to LPR or green card holder.
You must prepare and submit to USCIS (by mail) an I-485 Application for Adjustment of Status, along with optional other forms (Form I-765 for a work permit and I-131 for an advance parole travel document) and supporting documents and fees. In most cases, that fee will be $1,140 plus $85 for biometrics. (These are early 2023 figures; see USCIS's Fee Calculator for the latest, particularly since the agency has proposed fee changes.)
Although you will send your adjustment packet to a central USCIS office, it will be passed along to your local USCIS Field Office. To find out processing times for Form I-485 at the field office, check the USCIS Processing Time Information section of its website, and choose the name of the city Field Office (probably in the big city nearest to you) that will be handling your application from the drop-down menu.
Once you have successfully submitted your I-485 Application for Adjustment of Status, you are considered to be in a period of authorized stay in the United States. Assuming you included Form I-765 in your adjustment packet, you will receive a work permit card to last you until you get your green card. (If you didn't include it, you can still submit Form I-765, along with your USCIS receipt notice for Form I-485, to avoid an additional fee.)
Within a period of months, you will be called into a USCIS office for a personal interview, at which time you will hopefully be approved for LPR status. Unlike with regular family cases, your abusive spouse or parent will not be required to accompany you to that interview. If you have any new evidence of the abuse, you should bring it at that time, along with the other documents USCIS requests of you.
Unfortunately, U.S. immigration laws and regulations set no limits on how much time USCIS can take in deciding on your application for lawful permanent residence.
The best-case scenario is where the petitioner is a U.S. citizen and no delays occur due to lack of evidence (in which case USCIS would ask you to send more documents) or other issues of eligibility. Even in such a case, however, some applicants wait several years for approval.
To maximize the chances that everything goes smoothly and that your green card application is ultimately approved, consult an immigration attorney with experience in this area. A charitable, nonprofit organization might be able to provide free or low-cost help, but make sure you will be working with a licensed attorney or someone closely supervised by one. Also see Is an Immigration Lawyer Worth the Cost?.