Legal Protections for Abused Aliens: VAWA & U Visas

Stephen B. Yurik Lane Alton & Horst (614) 228-6885 [email protected]

INTRODUCTION

 Abused Aliens sometimes stay with an abusive spouse to avoid loss of legal status and deportation.

 Protections provided by Federal Statutes make this unnecessary in many cases

STATUTORY PROTECTIONS

 Violence Against Women(‘94), Battered Women Protection Acts (’00) • Abused spouses of U.S. Citizens (USCs) or Lawful Permanent Residents (LPRs) can self-petition to become LPR  Not dependent on USC or LPR spouse to obtain immigrant visa

Victims of Trafficking and Violence Protection Act of 2000 Created U Visas • U Visas – Available to Victims of substantial physical or mental abuse as a result of crimes

Immigration and the Family

  USCs and LPRs can sponsor family members for LPR • LPRs defined • Most LPRs gain that status through family sponsorship Immediate relatives of USC (spouses, unmarried children under 21, parents) • Not subject to statutory cap • Can apply for LPR upon marriage to USC

Immigration and the Family

  Preference Immigrants • 1 – Unmarried sons & daughters of USC • 2A – Spouses and unmarried children under 21 of LPRs • 2B – Unmarried sons and daughters of LPR • 3 – Married sons and daughters of USC • 4 – Siblings of USCs Wait time • 4-10 years for most aliens • Longer for Mexico, Philippines, China, India

Immigration and the Family

 Process of Adjust of Status • I-130 Petition filed by USC or LPR spouse  Must establish own status;   And the qualifying family relationship Can withdraw anytime before residency granted • I-485 Application for Adjustment of Status  Immediate relatives file immediately  Preference relatives must wait for priority date to become current (4-23 years)

Immigration and the Family

Conditional Permanent Residency • LPR status is conditional when granted if married less than 2 years • Petition for removal of conditions 90 days before 2 year anniversary • Must prove good faith marriage  Documents • • Joint purchases and accounts Photographs  Interview

Potential for Abuse

 Immigrant seeking legal status  Immigrant stays in abusive marriage to obtain or maintain LPR status • I-130 • Petition to Remove Conditions

Self Petition under VAWA

 Criteria for Eligibility • Good faith marriage • Battered or subjected to extreme cruelty • Joint residence (past or present) • Current residence in U.S. • Good moral character • Abuser is or was USC or LPR

Self Petition Under VAWA

 Divorce does not Disqualify if • Caused by battery or cruelty; • Petition filed within 2 years  Common disqualifiers don’t apply • Entry Without Inspection • Visa Overstay • Unlawful work

Self Petition Under VAWA

  Evidentiary Standard – any credible evidence Evidence of battery or cruelty • Medical records • Police reports • Court documents • Witness statements

Adjustment of Status (AOS)

   Immediate Relatives • File for AOS simultaneously Preference Immigrants • Wait for Priority Date Eligible for Work Authorization

U Visas

 To Encourage Exploited and Abused Illegal Aliens to Report Crimes • Undocumented can qualify • Doesn’t require marriage to LPR or USC • Provides path to legal status

Qualifying Criteria

    Victims of Certain Crimes • Trafficking, kidnapping • Domestic violence, etc.

Suffered Substantial Abuse Has information about the crime Certified as helpful to the investigation or prosecution

Benefits of U Visas

   Lawful Status Employment Authorization LPR status in some circumstances • Present in U.S. for 3 years after gain U status • Continued Presence justified on humanitarian, family unity or public interest grounds

Conclusion

 Immigrants may be able to avail themselves of courts for divorce and keep or gain legal status • VAWA • U Visas