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After a long wait, Congress has reauthorized the Violence Against Women Act (VAWA), with several new protections that are of relevance to immigrant clients and practitioners. President Obama is expected to sign the bill this afternoon.

VAWA evil (Photo credit: Wikipedia)

But first, what is VAWA? In 1994, Congress enacted the Violence Against Women Act (VAWA I), the first comprehensive federal legislation to address specifically the issue of violence against women. VAWA I improved greatly the availability of overall support and resources for domestic violence survivors through the creation of new criminal enforcement authority and enhanced penalties to combat domestic violence in federal courts, and provided grants to fund programs to fight violence against women.

Prior to VAWA I, immigrant spouses and children could only apply for legal residency if their United States citizen or legal permanent resident spouses filed legal residency applications on their behalf. VAWA I changed that by providing a way for battered immigrant spouses and children to gain legal immigration status by self-petitioning, so that they could escape abusive marriages with U.S. citizen or lawful permanent resident spouses. Additionally, VAWA I also provided a special form of suspension of deportation for battered spouses or children to apply to become lawful permanent residents if they could demonstrate extreme hardship to themselves or to immediate relatives. However, VAWA I proved to be ineffective and inaccessible for many due to subsequent changes and additions to immigration law, which unintentionally eliminated or rendered inaccessible many of the VAWA I protections for battered immigrant spouses and their children.

Despite its noble intentions, VAWA I fell short on several fronts. The battered immigrant had the burden to proof that the batterer was a U.S. citizen or lawful permanent resident, which was often difficult to establish. Additionally, under VAWA I, if a batterer lost U.S. citizenship or lawful permanent resident status prior to approval of the self-petition, the former INS could automatically deny the battered immigrant’s petition. Moreover, VAWA I prevented victims from divorcing their batterers prior to filing the petition. As such, battered immigrants with pending divorces could not request fee waivers for their VAWA petitions without the risk that such waiver requests would potentially delay the filing of the self-petitions until after their divorces had been finalized. Battered immigrants in removal proceedings had to prove “extreme hardship” to prevail, which often served as a bar to relief. VAWA I also had a “good moral character” requirement that served as a bar to abused immigrants who had been convicted of crimes against their perpetuators due to self-defense. In order to address these shortcomings, in 2000, Congress enacted the Violence Against Women Act of 2000 (VAWA II) to re-authorize grants and programs established under the original VAWA.

Title V of VAWA II, or the “Battered Immigrant Women Protection Act of 2000” (BIWPA), was enacted to improve access to immigration protections of VAWA for battered immigrant women, improve access to cancellation of removal and suspension of deportation, and create new VAWA II provisions, such as the “U” nonimmigrant visa, which allowed people without immigrant status to gain a visa for reporting serious crimes perpetrated against them. Under VAWA II, a battered immigrant retained the right to self-petition if the batterer was a United States citizen who died within the past two years or the batterer lost or renounced immigrant status within the past two years due to an incident “related” to the domestic violence. VAWA II also allowed the battered immigrant to self-petition even if the marriage had already been terminated if the battered immigrant could prove that the divorce was “connected” to battering or extreme cruelty by the United States citizen spouse or legal permanent resident. In addition, VAWA II permitted battered immigrant self-petitioners to remarry during the self-petition process, and allowed divorced victims to file for naturalization. It also created a good-faith exception for battered immigrants who married U.S. citizen or lawful permanent resident bigamists.

For battered immigrants in removal proceedings, VAWA II also removed the “extreme hardship” requirement for cancellation of removal. It also allowed a battered immigrant who had committed a crime to maintain “good moral character” if s/he could prove that the crime was connected to the abuse s/he had suffered and s/he not been the prime perpetrator of violence in the relationship.

Perhaps, most importantly, VAWA II created the U nonimmigrant visa to prosecute serious crimes, not limited to domestic violence, against abused non-citizens who are not in lawful immigration status as long as they cooperated with law enforcement. Such crimes include rape, torture, trafficking, incest, domestic violence, sexual assault, prostitution, kidnapping, or murder, among many others. This allowed non-citizen victims of violence not covered VAWA to gain lawful status and thus, filled an essential gap in VAWA. However, a central criticism of the U-Visa is that it is capped at 10,000 per year and easily reached within the first few months of the fiscal year.

As a response to the criticism of the U-Visa cap, in May 2012, the Senate passed a re-authorization of the Violence Against Women Act, where it raised the cap on U visas to 15,000. But the House of Representatives passed a separate bill, that omitted the cap increase, eliminated the ability of U-visa holders to apply for lawful permanent residency and presented a slew of new problems for victims. Congress never got around to reconciling the two different versions of VAWA, and hence it failed to issue a final bill to the President for reauthorization of VAWA.

In response to mounting public pressure, Congress reauthorized the VAWA last week. The relevant immigration provisions that made it into the final bill include:

• Adding “stalking” to the list of crimes covered by the U visa.
• “Widow penalty” extension – Allowing the surviving minor children of a VAWA self-petitioner to retain the ability to qualify for lawful permanent residence in the event that the qualifying relative passes away after the filing of the application.
• Child Status Protection – When victims of a qualifying crime, who cooperate in the investigation or prosecution of that crime, file for a U visa that includes their children under 21 years old, the children will not age out during the process. The child will be able to receive a visa alongside the parent even if the child turns 21 before final adjudication.
• Strengthening the International Marriage Broker Regulation Act (IMBRA) to provide vital disclosures regarding any violent criminal histories of the U.S. citizen spouse so that the foreign fiancé(e)s of U.S. citizens information they need to protect themselves from entering abusive marriages.
• Public Charge Bar – Clarifying that a VAWA self-petitioner, a U visa petitioner or holder, or an immigrant who was battered and is deemed a “qualified alien” under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 is not subject to the public charge bar.
• Clarifying the eligibility of crime and trafficking victims who are T or U Visa holders in the Commonwealth of the Northern Mariana Islands to adjust status after three years continuous presence

Unfortunately, the 2013 version of VAWA reauthorization passed by Congress did not permit a modest increase of U-visa numbers. Additionally, implementation difficulties remain with VAWA. The battered self-petitioner still needs to provide proof that the abuser is or had been either a United States citizen or lawful permanent resident and that the abuser’s loss of citizenship status was somehow due to an incident “related” to the domestic violence. The battered immigrant who has been divorced also finds it difficult to prove that the divorce was connected to the violence or cruelty through the marriage. In many instances, a battered spouse may not possess documentation necessary to prove that the marriage was entered into with good faith. VAWA self-petitioners are also hampered by the stringent good moral character requirements. Additional changes to VAWA provisions are also necessary to assist battered immigrants and non-immigrants with obtaining the legal and economic help necessary to combat.

Despite its drawbacks, VAWA remains a vital tool for victims of violence to escape abusive relationships. Since it was enacted, more than 98,000 people have filed petitions under VAWA, and 75% of these petitions have been approved. It is our hope that Congress will act to address any and all shortcomings remaining with the VAWA and the U-Visa as it takes up comprehensive immigration reform.