Foreign VAWA beneficiaries and special treatment.

By: Jonathan MontagJ.D.

While immigration is often in the news, the nitty gritty of immigration law, which I write about in this blog, is not. Now, the nitty gritty is in the news with the raging debate about VAWA (Violence Against Women Act). The Republican House of Representatives seeks to modify the current version of VAWA, or the package of laws and amendments that make up the protections for battered people (VAWA does not just apply to women, but to all battered spouses or putative spouses). House Republicans state that they are opposed to special treatment of certain people, such as aliens, in the current version of the law.

Just what special treatment Republicans are talking about in VAWA is not much discussed. What about VAWA provides unique benefits to aliens? More specifically, what do alien VAWA beneficiaries enjoy that other aliens do not? 

What VAWA does for foreigners is allow them to self-petition for permanent residence. Ordinarily, if a foreign woman (or man) marries a United States citizen or permanent resident man (or woman), the United States citizen spouse petitions for the foreign spouse. The approval of the petition and the availability of a visa then allows the foreign spouse to apply for permanent residence. In the case of a relationship in which there is domestic violence, the victimized foreign spouse can self-petition and then apply for permanent residence. The idea is that rather than having to stay in a relationship and endure abuse, an abused spouse can free herself (or himself) from the abuse without being compelled to leave the United States. This seems to most to be imminently fair and a humane way to deal with domestic violence perpetrated against foreigners. It is fair in particular because it is said that the threat of deportation is used to compel the alien spouse to stay with the abuser. “Either do as I say and endure what I shell out, or I will call ‘immigration’ and get you deported.”

There are, however, certain advantages to being a battered spouse beneficiary, rather than the beneficiary of a petition in a regular marriage. Here are some of the advantages. First, to adjust status, i.e., to obtain permanent residence in the United States, as opposed to going to a U.S. consulate abroad, an alien must have been admitted to the United States through a border or paroled into the United States. As I have discussed, without such an admission or parole, an alien must leave the United States to get a visa at a U.S. Consulate, which would then trigger a 3 or 10 year bar to returning to the United States. INA § 212(a)(9)(B). A VAWA beneficiary is not subject to this admission or parole requirement. INA § 245(a); INA § 212(a)(6)(A)(ii). Thus, while a VAWA beneficiary who entered without inspection can adjust status, a normal beneficiary through marriage cannot. It should be noted, in defense of this leniency, and it is a huge leniency, that the 3 and 10 year bars are waivable. To qualify for a waiver of this bar, extreme hardship to a United States citizen or permanent resident spouse or parent is necessary. Most often it is the spouse’s hardship that results in the grant of the waiver. In the case of a battered spouse, it would be absurd to show hardship to the citizen or permanent resident spouse from the separation of the couple to motivate a waiver – if not simply for the fact that it is the abusive relationship that caused the couple to separate, not the requirement to go abroad to get a visa. It should also be noted that widows, beneficiaries whose spouses have died, who, like victims of domestic violence, can self-petition, who need waivers of the three or ten year bars to adjust status are presumed to have the requisite hardship to merit a waiver, essentially providing the same circumvention of the 3 and 10 year bar issue, but not obviating the need to get the visa abroad if the widow (if her spouse was a United States citizen) had not been admitted or paroled.

Beneficiaries of visa petitions who are permanent residents also must be in lawful status and have current petitions (while visas are immediately available to the spouses of United States citizens, there are wait lists for the visa availability to spouses of permanent residents). VAWA beneficiaries whose spouses are permanent residents can adjust status even if they are not in status, such as if they have overstayed a visa or violated the terms of their visa, like, for example, a foreigner with a student visa who stopped attending school. In addition, while in a normal relationship, being the beneficiary of a visa through a permanent resident spouse does not provide any protection from being deported or otherwise compelled to leave the United States, a VAWA beneficiary through a permanent resident spouse’s petition is afforded “deferred action,” which allows her (or him) to remain in the United States while awaiting for a visa to become available.

VAWA beneficiaries are not required to have financial sponsors and can take public money, while normal beneficiaries cannot. The availability of public money is part of the VAWA benefits of all VAWA beneficiaries – United States citizen and foreigner – and it would seem absurd to not allow foreign women to take advantage of battered women’s shelters and the like, but nonetheless, this is a distinction.

Finally, ordinarily, an alien who enters the United States without inspection is removable simply for this reason, INA § 212(a)(6)(A). If an alien enters the United States illegally because he or she is fleeing an abusive spouse, this ground of inadmissibility does not apply. While it affords the abused person no benefits, this provision insulates some domestic violence victims from being removed for coming to the United States for entering without inspection. Similarly, aliens who have been in the United States unlawfully for more than a year (in aggregate), depart, and then come back without permission, cannot become permanent residents without first being outside the United States for ten years. INA § 212(a)(9)(C)(i)(I). In the case of VAWA beneficiaries, if the person came back because he or she was fleeing a domestic violence situation, this harsh bar does not apply.

An example of how provisions unique to VAWA beneficiaries can play out may be instructive. Suppose a United States citizen man marries a foreign woman who entered the United States without inspection. Because she did not enter with inspection or parole, she cannot adjust status in the United States. She must go abroad to the consulate of her native land and apply for a visa there. Assuming she had been in the United States for more than 180 days, she will need a waiver based on hardship to her spouse (or her permanent resident or United States citizen parents). Assuming they are newly wed, have no children, and the husband is young and healthy, (and her parents have no connection to the United States) her prospects of obtaining a waiver are slim as she will not be able to show extreme hardship to her spouse. Now, if this same young, healthy husband were to smack his foreign spouse in the face, she would be eligible to self petition and could adjust status. To some, this shows an unfair special benefit that accrues to battered spouses – and an invitation for fraud. To others it highlights the unnecessary harshness of the 3 and 10 year bars to normal couples. If a change in the law is warranted, perhaps it should not be to make VAWA legislation more cruel and harsh, but to make the laws for the rest of us less so. Posted May 20, 2012.

 

 

 


 

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