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.
