Many immigrants who have been victims of crime, domestic violence, or human trafficking do not report these crimes to law enforcement authorities out of fear that interaction with law enforcement will jeopardize their ability to remain in the United States. In some cases, this fear causes immigrants to remain in abusive relationships or working environments, or not to seek law enforcement assistance or medical attention when they need it most, compounding the problem. If you or someone you know has been the victim of a crime, including domestic violence, Benach Collopy attorneys will provide a safe and confidential environment for you to tell your story and to explain your circumstances. If we determine that you qualify for one of the visa options available to victims, you can rest assured that we will provide caring and confidential advice and will guide you safely through every step of the process.
Protection Under the Violence Against Women Act (“VAWA”)
Immigrants are particularly vulnerable to abuse where their immigration status rests on the petition of – and therefore is in the control of – an abusive spouse or family member. The potential for abuse of immigrant family members led Congress to enact certain provisions of the Violence Against Women Act (“VAWA”) that permit abused spouses and family members to leave their abusers without fear of deportation or other immigration consequences. It is important to remember that VAWA provisions protect both women and men from abusive U.S. citizen family members.
Spouses, children, and parents who have suffered physical abuse or extreme mental cruelty at the hands of U.S. citizen or permanent resident family members may pursue their own permanent residence or visa status independent of the abusive family member. This “self-petition” places the abused non-citizen in the same position he or she would have been in had the abusive family member applied for the non-citizen. A VAWA self-petition, where the U.S. citizen abuser is or was the spouse, requires that the petitioner demonstrate that he or she is or was in a valid, good faith marriage to a U.S. citizen or permanent resident; joint residence with the abuser; abuse, which includes physical battery or extreme mental cruelty; and good moral character on the part of the victim. USCIS is expected to consider all credible evidence submitted with the application including the self-petitioner’s own statement of the abuse.
Once the self-petition is approved, the petitioner is placed in the same status that he or she would have been in had the abusive family member filed the petition; therefore, if the self-petition was filed by an abused “immediate relative” (spouse, parent, or child – see our practice page on Family Based Immigration), approval of the petition would render the individual eligible to file for permanent resident status immediately upon the approval. Spouses and children of lawful permanent residents are subject to visa backlogs and wait times, but an individual in this circumstance with an approved self-petition may request “deferred action” status that places the individual in a period of authorized stay and provides some protection against removal. Once the visa becomes current in the category in which the applicant filed, the individual may then file for adjustment of status and obtain permanent residence. The approval of a self-petition does not cure any grounds of “inadmissibility,” and an approved self-petitioner may require a waiver of the ground of inadmissibility in order to obtain permanent residence. See our practice page on Waivers of Inadmissibility.
Spouse and Child Waivers of the Joint Petition to Remove Conditions on Lawful Permanent Residence
Spouses and children who obtain permanent residence based on marriages that are less than two years old at the time the permanent resident status is conferred are granted “conditional permanent resident” status. (See our practice page on Family-Based Immigration.) At the end of the two year period, the spouse or child must file a joint petition with the U.S. citizen spouse or parent to remove the conditions, or risk losing permanent resident status.
However, if the spouse or child is subject to abuse or cruelty during the marriage, that individual may file for a waiver of the requirement that the petition be filed jointly with the abusive spouse or parent. As with the VAWA self-petition, the request for a waiver of the joint filing requirement must demonstrate that the marriage was entered into in good faith, and that during the marriage, the spouse or child became subject to physical abuse or extreme mental cruelty (demonstrated by any credible evidence). Unlike the VAWA self-petition, the applicant need not establish joint residence and good moral character. Divorce or death of the U.S. citizen spouse or parent does not affect the ability of the petitioner to waive the joint petition requirement.
Special Rule Cancellation of Removal (“VAWA Cancellation”)
If a victim of physical abuse or extreme mental cruelty at the hands of a U.S. citizen family member is in removal proceedings, he or she may be eligible for Special Rule Cancellation of Removal under VAWA, which is adjudicated by the immigration judge, and which, like a VAWA self-petition, places the applicant in the position he or she would be in had the abusive family member filed an application (for permanent residence) in immigration court. VAWA Cancellation applicants must demonstrate 3 years of continuous physical presence; that he or she is the victim of physical abuse or extreme mental cruelty; and extreme hardship to him or herself or to a U.S. citizen or permanent resident spouse, parent, or child should the applicant be returned to his or her home country.
Victims of Crime (U Visa)
The U visa is intended to encourage immigrant victims of crime to cooperate with law enforcement in the investigation and prosecution of that criminal activity without fear of negative immigration consequences of that cooperation – it is a tool for law enforcement and a form of relief for immigrant victims of crime. A U visa is available to a foreign national individual who can demonstrate (1) “substantial suffering” as the result of physical or mental abuse resulting from being the victim of certain criminal activity; (2) that they possess information about that criminal activity; (3) that they have been, are being, will be, or are likely to be helpful to Federal, State, or local law enforcement authorities in investigating the criminal activity; and (4) the criminal activity of which the violated the laws of the U.S. and occurred in the U.S. or in territories of the U.S. An applicants’ spouse, children, and the parents of U visa applicants under the age of 16 also may receive derivative U status. A U visa applicant may not have been involved in the criminal activity for which he or she was a victim, and the applicant must also seek a waiver of any grounds of inadmissibility that would render him or her ineligible for U visa status. See our practice page on Waivers of Inadmissibility.
The law enforcement authority to which the victim has provided helpful information must certify the victim’s involvement and cooperation on a special supplement form that must be filed with the U visa petition.
10,000 U visas are available in a given year. If an individual has established eligibility for a U visa but no visa is available, the victim will be granted “deferred action” status until a U visa is available. (Please see our page on Deferred Action.)
Generally speaking, a U visa petition must be supported by extensive documentary evidence of the suffering experienced by the victim and the victim’s cooperation with law enforcement, above and beyond the required supplement. It is essential that a U visa petitioner provide as much information as possible both to law enforcement authorities and to the attorney preparing the petition.
Victims of Human Trafficking (T Visa)
Trafficking in persons is a contemporary form of slavery, in which victims often are lured to comply with the trafficker’s demands under the false pretenses of good jobs and better lives, and then forced to work under brutal and inhumane conditions, often as sex workers, but sometimes in factory, sweatshop, or domestic work. They often are told they must “earn” their release, or that they are captives of their traffickers. Victims are often individuals who are poor, unemployed, underemployed, or who lack the safety and protection of strong social networks.
Like a U visa, the T visa is intended to encourage immigrant victims of human trafficking to cooperate with law enforcement in the investigation and prosecution of such activity without fear of negative immigration consequences – it is a tool for law enforcement and a form of relief for immigrant victims of crime.
To qualify for a T visa, the applicant must demonstrate that he or she has been a victim of trafficking, that he or she is in the U.S. as a result of the trafficking, that he or she has complied with any reasonable law enforcement requests for assistance in the investigation or prosecution of the activity, and that he or she will suffer “extreme hardship involving unusual and severe harm” if removed from the United States. Certification of law enforcement cooperation is not required in support of a T visa, but other extensive supporting evidence, including a victim’s statement, is strongly recommended in the absence of law enforcement documentation. If a T visa is approved, the victim may apply for permanent residence after three years.