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Thursday, March 7, 2013

Immigration Provisions of the Violence Against Women Act (VAWA)

William A. Kandel
Analyst in Immigration Policy

The Immigration and Nationality Act (INA) includes provisions to assist foreign nationals who have been victims of domestic abuse. These provisions, initially enacted by Congress with the Immigration Act of 1990 and the Violence Against Women Act (VAWA) of 1994, afford benefits to abused foreign nationals and allow them to self-petition for lawful permanent resident (LPR) status independently of the U.S. citizen or LPR relatives who originally sponsored them. Congress reauthorized VAWA with the Battered Immigrant Women Protection Act of 2000, which also created the U visa for foreign national victims of a range of crimes—including domestic abuse—who assisted law enforcement. A second reauthorization in 2005 added protections and expanded eligibility for abused foreign nationals. Authorization for appropriations for the programs under VAWA expired in 2011.

The 112
th Congress passed two bills, S. 1925 and H.R. 4970, reauthorizing most VAWA programs, among other provisions. Despite containing some related immigration provisions, H.R. 4970 differed in substantive ways from S. 1925. It did not extend protections to new groups to the same extent as S. 1925 and included more restrictions with the purpose of curtailing immigration fraud. Most notably, it maintained the annual number of U visas at its current limit of 10,000, in contrast with S. 1925, which would have increased the number to 15,000. To fund the increase in U visas, S. 1925 included a revenue provision that created a “blue slip” procedural complication. Negotiations stalled between the chambers, and neither bill was enacted into law.

In the 113
th Congress, the Senate passed S. 47, as amended on February 12, 2013. In the House, H.R. 11 was referred to committee. The VAWA-related immigration provisions, similar in both bills, are comparable to those found in S. 1925 from the previous Congress. On February 22, 2013, the House Committee on Rules issued its Committee Print 113-2 for S. 47—Violence Against Women Reauthorization Act of 2013, Text of Amendment in the Nature of a Substitute.

S. 47/H.R. 11 and the Committee Rules bill all would maintain the annual number of U visas at 10,000, thereby eliminating the associated “blue slip” procedural complication. The bills would extend VAWA coverage to derivative children of deceased self-petitioning parents and provide for public charge waivers. All three bills would include protections for petitioning children who “age out” of eligibility, unknowing bigamy victims, and foreign nationals under age 18. They all would increase annual reporting requirements and permit information sharing of VAWA data for national security purposes.

Regarding differences between the three bills, S. 47/H.R. 11 would amend current law by including “stalking” in the definition of criminal activity covered under the U visa. S. 47/H.R. 11 would require more extensive background checks and demand more consistent self-disclosures for U.S. citizen petitioners of alien fiancés or fiancées to provide the latter with greater information about potential abuse. The two bills would impose additional penalties for marriage broker violations as well as false or incomplete representations by U.S. clients to foreign nationals to foster dating or matrimonial relationships. The Rules Committee bill does not contain these provisions.

The Rules Committee bill would eliminate U visa certification eligibility for U visa petitioners described as likely to be helpful to law enforcement. It includes a provision that would grant the Attorney General the authority to go beyond the record of conviction to ascertain if domestic violence crimes constitute crimes of violence when determining if an individual is deportable. S. 47/H.R. 11 do not contain these provisions.

Two potential concerns for Congress have been emphasized regarding the immigration provisions of VAWA. The first is whether the proposed VAWA reauthorization provides sufficient relief to foreign nationals abused by their U.S. citizen or LPR sponsoring relatives. Advocates for battered foreign nationals suggest that additional provisions are needed to assist this population in obtaining legal and economic footing independently of their original sponsors for legal immigrant status. Critics of expanding immigration, however, question the extent to which these provisions may increase the number of legal immigrants, thereby incurring costs to U.S. taxpayers.

The second related concern is the degree to which VAWA provisions unintentionally facilitate immigration fraud. This may occur through what some perceive as relatively lenient standards of evidence to demonstrate abuse; as the unintended result of processing procedures between the District Offices of the U.S. Citizenship and Immigration Services (USCIS), which adjudicate most immigration applications, and the USCIS Vermont Service Center, which adjudicates VAWA petitions; or as an unintended consequence of the structure of current law. While some suggest that VAWA provides opportunities for dishonest and enterprising foreign nationals to circumvent U.S. immigration laws, empirical evidence offers minimal support for these assertions.

Date of Report: Febrary 27, 2013
Number of Pages: 40
Order Number: R42477
Price: $29.95

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