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Effects of Death on applications for protection under the Violence Against Women Act

By December 2, 2022Immigration
A hand protecting a house

The Violence Against Women Act also known as VAWA is a law that protects the rights of noncitizen victims of battery or extreme cruelty by certain U.S. Citizen or legal permanent resident family members to obtain protection from deportation and gain lawful permanent resident status also known as a green card.

Qualifying relationships include relationships where the noncitizen victim is married to the abuser or where the parent of an abused noncitizen child is married to the abusive stepparent. We have discussed VAWA and its requirements here.

Can a noncitizen spouse still be eligible for VAWA protection if the abuser died?

Abusive U.S. Citizen’s Death

The spouse or parent of an abusive U.S. citizen relative continues to remain eligible for VAWA for 2 years after the death of the abuser. If the abuser was a son or daughter, the son or daughter must have been at least 21 years of age when the son or daughter died.

If the U.S. citizen parent abuser dies before the child files the self-petition, the child becomes ineligible for VAWA protection.

However, if the self-petitioning spouse, child or parent had a pending or approved self-petition at the time of the U.S. citizen’s death, the death does not affect eligibility for the pending self-petition or require revocation of an approved self-petition.

Abusive Lawful Permanent Resident’s Death

If the legal permanent resident, “LPR” relative dies before an abused spouse or child files a self-petition, the spouse or child becomes ineligible for VAWA.

If the abusive LPR died while a self-petition is pending or was previously approved, the United States Citizenship and Immigration Service, “USCIS” may approve the self-petition or continue adjudicating an application based on adjustment of status as a matter of discretion under the following circumstances:

  • The noncitizen resided in the United States when the LPR relative died.
  • The noncitizen continues to reside in the United States on the date the pending self-petition or adjustment of status is approved.

Note that it is not required for the self-petitioner and each derivative child to meet the residence requirements.

Effects of death of Self-Petitioning noncitizen on derivative children

If the self-petitioning noncitizen dies while the VAWA petition is pending, or after it is approved, USICS may approve the self-petition or continue adjudicating an application for adjustment of status based on a VAWA petition for any derivative child of the self-petitioning noncitizen as a matter of discretion.

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