BASED ON ABUSE
If you were abused by a U.S. Citizen or a Green Card holder who has filed an immigration petition for you, then you may be protected by the Violence Against Women Act (VAWA).
The first thing to remember is that, despite its name, the VAWA applies to both women and men, and our office has successfully handled cases for wives and husbands who have been abused by their U.S. citizen or Green Card holding spouses.
Background
Under U.S. immigration law, U.S. citizen and Green Card holding spouses have a lot of power. There is no rule that requires them to submit a petition for their foreign spouses.
In some cases, a U.S. citizen or Green Card holding spouse uses this power as a way to threaten or intimidate a foreign spouse, essentially forcing the foreign spouse to put up with physical and/or psychological abuse or else face the threat of the spouse either not submitting a petition that could legalize the foreign spouse or even reporting the foreign spouse to Immigration to face potential deportation!
The Violence Against Women Act (VAWA) has attempted to remedy this situation. The VAWA permits certain abused spouses, children, and parents of U.S. citizens and Green Card holders to petition for legal status independently of their abusive sponsors (self-petition).
There are two basic applications that abused spouses can file under special rules for abused spouses: Adjustment of Status or Cancellation of Removal.
Adjustment of Status
In general, the following individuals may self-petition for Adjustment of Status through VAWA:
• Abused noncitizen spouses married to U.S. citizens or Green Card holders
• Noncitizen parents whose children were abused by U.S. citizens or Green Card holders
• Unmarried noncitizen children under age 21 abused by a U.S. citizen or Green Card holder parent; and
• Noncitizen parents abused by U.S. citizen adult children.
Note: If a divorce occurs after the VAWA petition has been submitted, this usually will not affect the petition; a person may still be able to get a Green Card under VAWA as long as the marriage was still in existence at the time the VAWA petition was filed. (A VAWA petition may still be filed even if the divorce occurred before the VAWA petition was filed if it can be shown that the divorce was because of the abuse.)
Adjustment of Status applications filed under VAWA require evidence of the following conditions:
For spouses
1) The marriage was entered into in good faith and not solely for immigration benefits;
2) The immigrant spouse and the U.S. citizen/Legal Permanent Resident spouse shared a residence together; and
3) The immigrant is a person of good moral character.
For children
1) Proof of the relationship to the U.S. citizen or Green Card holder parent;
2) Residence with the abusive parent; and
3) Good moral character for children over age 14.
For parents
1) Abuse by a U.S. citizen son or daughter;
2) Residence with the abusive son or daughter; and
3) Good moral character.
Note: VAWA only alleviates the issue of the Petitioner’s power in Adjustment of Status applications; it does not change most of the other rules, so a person who would not be eligible for Adjustment of Status under the non-VAWA rules will generally not be eligible for Adjustment of Status under the special VAWA rules, either.
For instance, a person who entered the USA illegally is generally not eligible for Adjustment of Status. Filing a petition under VAWA will not change this, and such a person would still not be eligible for Adjustment of Status (unless one of the rare exceptions to this bar applies).
Cancellation of Removal
Cancellation of Removal is one of the defenses that a person can use in Immigration Court during "removal" (deportation) proceedings.
Cancellation of Removal applications filed under VAWA must meet the following conditions:
1) The immigrant was battered or subjected to extreme cruelty by a spouse or parent who either is or was a U.S. citizen or Green Card holder; or
2) The immigrant's child was battered or subjected to extreme cruelty by a spouse or parent who either is or was a U.S. citizen or Green Card holder; or
3) The immigrant was battered or subjected to extreme cruelty by a U.S. citizen or Green Card holder who the immigrant tried to marry but could not legally marry because the U.S. citizen or Green Card holder was already married to someone else.
In addition, every applicant for Cancellation of Removal under the special VAWA rules must meet the following conditions:
1) The immigrant was physically present for at least three years before submitting his or her application for Cancellation of Removal;
2) The immigrant has been a person of Good Moral Character during those three years (unless it can be shown that any convictions that would normally cause a person to be held to lack “good moral character” were a result of the abuse);
3) The immigrant has not been convicted of certain crimes; and
4) The immigrant's removal from the United States would pose an extreme hardship to himself/herself, his/her child, or his/her parent.
Adjustment of Status and Cancellation of Removal under VAWA are complicated and require a lot of evidence that must be presented clearly to the government. If you have been abused by a U.S. citizen or Green Card holder, speak to an attorney immediately to find out if you can petition for yourself, and get the abuser out of your life.
Success with either Adjustment of Status or Cancellation of Removal under the VAWA rules will result in a Green Card.
Other Options for Victims of Abuse
If you are a victim of abuse and do not qualify to self-petition based on VAWA, there are still other ways of obtaining temporary legal status in the U.S. based on abuse. The temporary visas you can obtain as a victim of abuse are a U-Visa or a T-Visa. Please note that while a T-Visa is available specifically for victims of human trafficking, a U-Visa is available for victims of a broad range of crimes.
“U” Nonimmigrant Visa for Victims of Criminal Activity
In October 2000 Congress created the U-visa status when it passed the Victims of Trafficking and Violence Protection Act (VTVPA) in order to ease the work of law enforcement agencies by making it safer for people to cooperate with the investigation and prosecution of criminal activity, regardless of their immigration status.
An immigrant may be eligible for a U-Visa if they meet the following criteria:
1) They suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity;
2) They have information concerning that criminal activity;
3) They have been helpful, are being helpful, or are likely to be helpful in the investigation or prosecution of the crime; and
4) The criminal activity violated U.S. laws.
The U-Visa application is a two-step process, which requires obtaining a certification from a law enforcement agency and then filing the application, including all of the required supporting documentation, with the U.S. Citizenship and Immigration Services.
“T” Nonimmigrant Visa for Victims of Human Trafficking
Human trafficking is a form of modern-day slavery that targets the most vulnerable. As a result, when Congress passed the Victims of Trafficking and Violence Protection Act (VTVPA), it also created the T-visa, in order to protect victims of this terrible crime.
An immigrant may be eligible for a T-Visa if they meet the following criteria:
1) They are a victim of human trafficking;
2) They are in the U.S., its territories or a port of entry due to trafficking;
3) They comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (or they are under the age of 18, or they are unable to cooperate due to physical or psychological trauma); and
4) They demonstrate that the would suffer extreme hardship involving unusual and severe harm if they were removed from the U.S.
Note that while the U-Visa and T-Visa are nonimmigrant visas that do not grant permanent immigrant status, they may potentially be the best option to save someone who is a victim of a crime or human trafficking from deportation. Consult with an immigration attorney to find out if either of these visas is the best form of relief in your individual case.
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