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VAWA – Violence Against Women Act

Many individuals who are victims of domestic violence remain in an abusive relationship because they believe that their immigrant status in the United States depends on their abuser’s status. The victim believes that if the relationship ends, s/he will not be able to gain legal status.

However, this is not always true. If you are eligible to apply for permanent residency based on your spouse’s status, you can go through the residency application process without notifying the abuser. If you present the required evidence to prove that you are victim of domestic violence, physical, emotional and/or mental, then you can receive permanent resident status.

VIOLENCE AGAINST WOMEN ACT (VAWA) & U Visas

There are two main options available for victims of domestic violence.

VAWA self-petitions; and
U-Visas.

What is VAWA?

In 1994 Congress passed the Violence against Women Act creating special routes to immigration status for certain battered noncitizens. Among the basic requirements for eligibility, a battered noncitizen must be the spouse or child of an abusive U.S. citizen or permanent resident. Through a self-petitioning process, the battered spouse/child may apply for immigration status without the knowledge or involvement of the abuser. Derivative status is available to certain children and parents of the principal immigrant.

If eligible, Form I-360 Self-Petition (VAWA petition) is filed with supporting documentation. There is extensive evidence that must be gathered including evidence of battery/abuse/extreme cruelty and proof of the qualifying relationship to the abuser. Immigrants who can establish the basic requirements outlined below will be given a “prima facie” determination and then be eligible for certain public benefits. If the VAWA petition is approved, the immigrant is granted deferred action status in most cases. Deferred action means that removal, or deportation, proceedings will not be initiated. Applicants are also eligible for work authorization upon approval of their VAWA petition.
Once the VAWA petition has been approved, immigrants are classified into categories based on a preference system. Self-petitioners who are immediate relatives of U.S. Citizens (spouses, parents, unmarried children under the age of 21) are eligible to adjust status to a lawful permanent resident status when their VAWA petition is approved. Spouses and children of lawful permanent residents must wait for an immigrant visa to become available for their category. These petitioners will be able to obtain work authorization until they are eligible to apply for permanent residency.

What is a U-Visa?

In October 2000, Congress created the Victims of Trafficking and Violence Prevention Act (Act). Finally, after seven years of interim rules, the U.S. Citizenship & Immigration Service (USCIS) has published final Regulations on U Visa’s, which became effective October 17, 2007. The U visa applies to immigrants who are the victims of certain serious crimes and who have cooperated with authorities in the prosecution of the perpetrator. The U visa is a nonimmigrant visa and only 10,000 U visas may be issued every fiscal year. The purpose of the U visa is that it gives victims of certain crimes temporary legal status and work eligibility in the United States for up to 4 years. Family members may also be included on the petition including spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents. An approved U visa petition will automatically grant the applicant work eligibility in the United States. An Employment Authorization Document will be included with all approved petitions, which can be shown to any employer to obtain a Social Security Number to start work legally. The U-Visa provides employment authorization and the opportunity to change to a non-immigrant legal status. After three years you can apply for permanent residency. There are different requirements that must be satisfied before an application can be submitted. The applicant must have suffered substantial physical or mental abuse due to a criminal activity in at least one of the following categories: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

All petitions must include information on how the victim can assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime. The victim must also be willing to work with local law enforcement. The crime must have occurred in the United States or in a U.S. territory, or violated U.S. law.

The form that must be submitted to USCIS “Form I-918” must be certified by a Federal, State or local law enforcement agency, such as a prosecutor or a Federal or State judge in charge of the investigation in which the petitioner is the victim. Without this certification, the U visa petition cannot be submitted. However, a certification alone is not enough to establish eligibility as all facts around the petition will be considered. The certifying individual must be the head of the agency or a person designated to issue U nonimmigrant certifications. If at any point the victim stops to cooperate with law enforcement, the certification can be withdrawn.

The first step is to determine whether you are eligible for a VAWA self-petition or a U-Visa. It all depends on the circumstances. There are some cases where you should apply for a U-Visa even if you are eligible for a VAWA and vice-versa. In order to speak confidentially about your case, please contact us to schedule a consultation.

The information contained on this page is for educational and informative purpose only. This response does not constitute legal advice. The readers of this information should not act based solely on information contained herein.

If you would like more information please contact us at 908-442-6792.

Refugee/Asylum

Refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.

Refugee

Refugee status is a form of protection that may be granted to people who meet the definition of refugee and who are of special humanitarian concern to the United States. Refugees are generally people outside of their country who are unable or unwilling to return home because they fear serious harm.

The Immigration and Nationality Act defines “refugee” in Sec. 101(a)(42) as:

(A) any person who is outside their country of origin/nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or

(B) in such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

A person may seek referral for refugee status only from outside the United States. Under United States law, a refugee is someone who:

Is located outside of the United States;
Is of special humanitarian concern to the United States;
Demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group Is not firmly resettled in another country; and
Is admissible to the United States

A refugee does not include anyone who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.

Asylum

People come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:

Race
Religion
Nationality
Membership in a particular social group
Political opinion

Asylum status is a form of protection available to people who:

Meet the definition of refugee
Are already in the United States
Are seeking admission at a port of entry

You may apply for asylum in the United States regardless of your country of origin or your current immigration status.

If you would like more information please contact us at 908-442-6792.

Naturalization

Naturalization is the legal process by which immigrant/permanent resident card holders become U.S. citizens.

To become a naturalized United States citizen, an applicant must:

Must be a Permanent Resident for at least five (5) years;
Permanent Resident for at least three (3) years if lawful permanent residence status was obtained by marriage to a United States citizen;
Resided continuously within the United States from the date of the application up to the time of admission;
Be a person of good moral character; and
Meet government requirements for literacy and knowledge of U.S. history.

Applicants are tested in their ability to read, write and speak words in ordinary usage in the English language Applicants are required to pass an oral history and government examination, even if exempt from the requirement of speaking English. Exceptions to this requirement exist. The exceptions are as follows:

Persons physically unable comply due to permanent disability are exempt from the literacy requirement with an attestation from a licensed medical doctor or licensed clinical psychologist to support their claim of disability.
Applicants who are more than 50 years of age and who have resided in the U.S. for 20 years as permanent resident aliens as of the date of filing the application may be examined in their native language.
Applicants who are more than 55 years of age and who have resided in the U.S. for 15 years as permanent resident aliens as of the date of filing the application may be examined in their native language.

Derivative/Acquisition of Citizenship

There are circumstances under which individuals born abroad to at least one United States citizen parent are also citizens. For this reason, many people are United States citizens without knowing it.
Some children born abroad acquire citizenship at birth; this is known as “acquisition” citizenship. If both parents were US citizens at the time of birth (and at least one parent resided in the United States for a required amount of time) the chances are good the child acquired citizenship. If United States citizenship is not acquired at birth, a child born abroad may automatically derive United States citizenship (“derivative citizenship”) if one parent is a citizen and that parent has been present in the US for a total of 5 years, at least 2 of which were after the age of 14.

To determine whether someone has derived/acquired citizenship is not a straightforward analysis. The law on this matter has changed over the years and it depends on various factors which may vary depending on each individual case.

If you would like more information please contact us at 908-442-6792.

Family Visas

Overview – Family-based Immigrant Visas

The Immigration and Nationality Act (INA) provides two (2) groups of family based immigrant visa categories, including immediate relatives and family preference categories.

Immediate Relative Immigrant Visas: These visa types are based on a close family relationship with a United States (U.S.) citizen also known as an Immediate Relative (IR). Immediate relative visa types include:

IR-1: Spouse of a U.S. Citizen;
IR-2: Unmarried Child Under 21 Years of Age of a U.S. Citizen;
IR-3: Orphan adopted abroad by a U.S. Citizen;
IR-4: Orphan to be adopted in the U.S. by a U.S. citizen; and
IR-5: Parent of a U.S. Citizen who is at least 21 years old.

Family Preference Immigrant Visas: These visa types are for specific family relationships with a U.S. citizen and some certain relationships with a Lawful Permanent Resident (LPR). There are numerical limitations on family preference immigrants, which can be seen at www.travel.state.gov/immigrants/types. The family preference categories are:

Family First Preference (F1): Unmarried sons and daughters of U.S. citizens, and their minor children, if any.
Family Second Preference (F2): Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least seventy-seven percent of all visas available for this category will go to the spouses and children; the remainder is allocated to unmarried sons and daughters.
Family Third Preference (F3): Married sons and daughters of U.S. citizens, and their spouses and minor children.
Family Fourth Preference (F4): Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age.

It is important to note that Grandparents, aunts, uncles, in-laws, and cousins cannot sponsor a relative for immigration.

If you would like more information please contact us at 908-442-6792.

Employment Visas

coming soon

If you would like more information please contact us at 908-442-6792.