Dec 23, 2019
by Christopher Kerosky, Kerosky, Purves & Bogue, LLP, Sonoma County Human Rights Commissioner
Our laws provide legal status for immigrant victims of domestic violence (DV) and other serious crimes to stay in this country on a temporary status, similar to DACA. In addition, they can often be eligible for permanent residence status in this country. So few solutions exist for undocumented immigrants under our laws; this is one that should not be overlooked.
The purpose of these laws is not only to alleviate the harm suffered by victims of such violence, but also to encourage crime victims to come forth and report crimes so perpetrators can be caught and punished.
Here is a basic description of the options for DV victims.
Under the Violence Against Women Act (VAWA) passed in 1994, spouses and children of United States citizens or lawful permanent residents may request lawful permanent residency if they have been the victims of domestic violence or other abuse. If the VAWA application is granted, the person’s unlawful presence here is forgiven, and they may become eligible for a green card.
To qualify, the person applying must:
• have been legally married
• the perpetrator must have been their U.S. citizen or lawful permanent resident spouse
• and the domestic violence or abuse must have occurred in the U.S.
This law also allows the unmarried children of the battered spouse under the age of 21 to get status as derivative beneficiaries of the main applicant. VAWA also provides relief from deportation for a battered child under 21 years of age and unmarried. The parents of a child who has been abused and unmarried minor children can also apply as derivative beneficiaries.
It is not necessary to show that the victim suffered physical attacks under VAWA; emotional or psychological abuse also qualifies. The law requires the victim to prove they were subjected to “extreme cruelty”, which can include threats, verbal abuse, harassment and other forms of emotional abuse.
The limitations of VAWA are that it provides no relief to the victim if there was no legal marriage between the victim and the perpetrator, or if the perpetrator was undocumented.
Another possible solution for victims of domestic violence is the U visa category. An immigrant can apply for a U visa if they can show they were harmed by a crime occurring in the United States, they reported the crime, and they cooperated with the U.S. authorities in trying to apprehend or prosecute the perpetrator.
In 2000, the Congress authorized the U nonimmigrant status in the Victims of Trafficking and Violence Protection Act of 2000. The law’s purpose is to “to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes…while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.” U visa was created partly to protect victims who are from traditionally vulnerable immigrant communities.
Often the U visa provides status to a domestic or sexual violence victim who would be hesitant in coming forward to report her abuser for fear of contact with law enforcement agencies.
• the person has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity in the United States;
• the person possesses information concerning criminal activity;
• the person has been helpful to a Federal, State, or local law enforcement official, including police and/or a prosecutor investigating the crime.
The applicant must have suffered “substantial” harm as a result of the crime, although the crime can be emotional or physical. The visa does apply to victims of many violent crimes including felonious assault or assault with a deadly weapon; but a large number of the applicants are DV victims.
To apply for a U Visa, a person must obtain the certification that they have been a victim of an eligible crime and that they have cooperated with the police or prosecutor in the investigation of the crime. This can include the victims’ rights offices of the District Attorney or police, or even agencies like Child Protective Services, Equal Employment Opportunity Commission, the Department of Labor.
After three years, a U-visa holder is eligible to apply for adjustment of status to permanent resident if they have been physically present in the United States for a continuous period of at least three years since approval of their U-visa.
The U visa and VAWA laws can make the path to recovery a bit easier for women (and men) who are domestic violence victims. Eligibility for these visas has been narrowed and the processing times have grown substantially under the Trump Administration. Still they remain important and viable options for immigrants victimized by violence or abuse.
The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.
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