Does an Annulment Prevent a Plaintiff or Defendant from Filing a VAWA Application for Immigration Relief?

By Brian Figeroux, Esq. 

The Violence Against Women Act (VAWA) provides a pathway for survivors of domestic abuse to apply for immigration relief without relying on their abusive U.S. citizen or lawful permanent resident (LPR) spouse, parent, or child. VAWA allows these individuals to self-petition for a green card if they can demonstrate they were subjected to battery or extreme cruelty.

However, many individuals seeking VAWA relief may have had their marriages annulled, either by their own action (as the plaintiff) or by their abuser (as the defendant). This raises an important legal question: Does an annulment prevent a person from filing a VAWA petition?

The answer depends on several factors, including the timing of the annulment, the reason for the annulment, and whether the marriage was legally valid before annulment. This article explores these issues in depth.

Understanding the Legal Concepts: Annulment vs. Divorce

What Is an Annulment?

An annulment is a legal decree that declares a marriage void or voidable, meaning that in the eyes of the law, the marriage never existed or was never valid. Unlike a divorce, which ends a legally recognized marriage, an annulment treats the marriage as if it never occurred.

Common grounds for annulment include:

• Fraud or misrepresentation (e.g., one spouse lied about their identity, immigration status, or ability to have children).
• Bigamy (one spouse was already married).
• Lack of capacity (one spouse was underage, mentally incapacitated, or forced into the marriage).
• Failure to consummate the marriage due to physical or psychological reasons.

What Is a Divorce?

A divorce legally dissolves a valid marriage. After a divorce, the couple is no longer legally married, but their previous marriage remains recognized as legitimate for legal purposes.

Since VAWA requires proof of a qualifying marriage, the distinction between annulment and divorce is critical in determining eligibility for a self-petition.

How an Annulment Affects a VAWA Application

Because an annulment legally invalidates a marriage, it can create challenges for a VAWA self-petitioner.

1. Annulment May Eliminate a Qualifying Relationship

One of the primary requirements for a VAWA self-petition is that the applicant must have been legally married to the abusive U.S. citizen or LPR spouse.

• If the marriage is annulled, the law may treat it as though it never existed.
• As a result, USCIS may not recognize the petitioner as ever having been a “spouse” of the abuser.

Example:
Maria, an immigrant, marries John, a U.S. citizen, who later abuses her. She seeks an annulment based on fraud because John concealed a previous marriage. Since the annulment retroactively invalidates the marriage, Maria may lose eligibility for a VAWA self-petition because, legally, she was never married to John.

2. USCIS May Consider the Intent of the Annulment

In some cases, USCIS may still consider an annulled marriage for VAWA purposes if it was entered into in good faith. If the self-petitioner can prove that:

• The marriage was legally valid at the time of abuse, and
• The annulment was sought due to circumstances beyond their control (such as fraud by the abuser),

then USCIS may accept the relationship as valid for VAWA eligibility.

However, this is not guaranteed and often depends on how state law defines annulment. Some states provide limited recognition of annulled marriages for certain legal purposes, and USCIS may consider these exceptions on a case-by-case basis.

3. Timing of the Annulment Matters

The timing of the annulment can be crucial in determining VAWA eligibility:

• If the annulment occurs before the VAWA petition is filed, USCIS may refuse to recognize the marriage, making the self-petitioner ineligible.
• If the annulment occurs after the VAWA petition is filed, USCIS may still process the case, since the marriage was recognized at the time of filing.

Thus, filing a VAWA application before seeking an annulment may be a safer strategy.

How Being a Plaintiff or Defendant in an Annulment Affects VAWA Eligibility

1. If the Self-Petitioner Was the Plaintiff in the Annulment

If the self-petitioner initiated the annulment, they may face difficulties proving a qualifying relationship for VAWA. However, they might still be eligible if:

• The annulment was based on fraud committed by the abuser (e.g., the abuser concealed a prior marriage).
• The self-petitioner can show the marriage was entered into in good faith before discovering the fraud.
• They file the VAWA self-petition before the annulment is finalized.

2. If the Self-Petitioner Was the Defendant in the Annulment

If the abuser initiated the annulment, the self-petitioner may argue that:

• The annulment was coerced or manipulated by the abuser to avoid legal responsibility.
• The abuser weaponized the annulment to try and prevent them from seeking immigration relief.
• The annulment was based on false claims made by the abuser.

USCIS may take these factors into consideration when evaluating the self-petition.

Alternative Options for Immigration Relief

If an annulment prevents an individual from filing for VAWA, they may still have other immigration options, including:

1. U Visa – Available to victims of certain crimes, including domestic violence, who cooperate with law enforcement.
2. T Visa – Available for victims of human trafficking, including forced marriages.
3. Asylum – If the individual fears returning to their home country due to domestic abuse or gender-based violence.
4. Cancellation of Removal for Battered Spouses – Available for those in removal proceedings who can prove abuse and continuous physical presence in the U.S. for at least three years.

These alternative options can provide relief if VAWA is not available due to an annulment.

Conclusion

While divorce does not prevent a VAWA self-petition, annulment can create significant obstacles because it legally erases the marriage.

• If the marriage was annulled before filing, the self-petitioner may lose eligibility because USCIS may not recognize the marriage.
• If the annulment was initiated by the abuser, the self-petitioner may argue it was a tactic to evade legal responsibility.
• Timing matters—if the annulment occurs after the VAWA application is submitted, the case may still proceed.

Given these complexities, individuals considering a VAWA petition should consult an immigration attorney before pursuing an annulment. In some cases, alternative forms of relief may be available.

By carefully navigating these legal challenges, survivors of domestic abuse can protect their rights and pursue the immigration relief they deserve.