domestic violence victim visa

VICTIMS OF DOMESTIC VIOLENCE AND OTHER CRIMINAL ACTIVITY, ASYLUM PROTECTION, AND HUMANITARIAN RELIEF

There are solutions available to you if you are a victim of domestic violence and other criminal activity. See how we can help.

VIOLENCE AGAINST WOMEN ACT (VAWA)

Under the Violence Against Women Act (VAWA) some foreign nationals can file a self-petition (i.e. VAWA petition) for lawful permanent resident status if they have been battered or subjected to extreme cruelty. Despite its name, VAWA does not only apply to women. Men and children may also file VAWA petitions. A foreign national may file a VAWA petition if he/she is the victim of battery or extreme cruelty committed by either a:

  • His/her spouse or former spouse who is a U.S. citizen or a lawful permanent resident;
  • His/her parent, who is a U.S. citizen or a lawful permanent resident; or
  • His/her son or daughter who is a U.S. citizen.

To be eligible for lawful permanent residence under VAWA, you must:

  • Have to a qualifying relationship with your abuser;
  • Have entered into the marriage in good faith with abuser and not solely for immigration benefits;
  • Have suffered battery or extreme cruelty at the hands of a U.S. citizen or lawful permanent resident;
  • Have resided with your abuser; and
  • Be a person of good moral character.

Abuse includes not only physical violence, but also nonviolent abuse used to control the victim. Conduct that can be considered “extreme cruelty” includes:

  • Threats to have the you “deported”;
  • Threats to divorce you, especially where divorce is taboo in your culture or religion;
  • Threats of physical violence to you or your loved ones;
  • Invasion of your personal privacy including monitoring phone usage and showing up at your work/school unannounced;
  • Withholding of money or food;
  • Forbidding contact between you and your family or friends;
  • Taking your important documents;
  • Malicious destruction of your personal property; and
  • Repeated, uncontrollable displays of anger, accusations, screaming, name-calling, or cruel insults.
U VISAS

You may be eligible for U nonimmigrant status (i.e. a U visa) if you have been a victim of criminal activity. To be eligible, you must be a victim of qualifying crime, have suffered mental or physical abuse, and are helpful to law enforcement or government officials in the investigation and/or prosecution of criminal activity. The U visa is designed to strengthen law enforcement’s ability to investigate and prosecute criminal cases while at the same time protecting victims of crimes who have suffered substantial mental or physical abuse as a result of the crime and are willing to help law enforcement investigate and/or prosecute the criminal activity.

Not only may you be eligible for U nonimmigrant status, but certain qualifying family members may also derive U nonimmigrant status based upon their relationship to you. If you are under 21 years of age, your spouse, children, parents, and unmarried brothers and sisters under the age of 18 may derive U nonimmigrant status. If you are over the age of 21, your spouse and children may derive U nonimmigrant status.

You may qualify for U nonimmigrant status if:

  • You have been the victim of a qualifying crime;
  • You have suffered substantial physical or mental abuse due to being victimized;
  • You possess information about the crime you were a victim of;
  • You have been helpful or will likely be helpful to law enforcement during the investigation and/or prosecution of the crime;
  • The crime of which you were a victim occurred in the United States or violated U.S. laws; and
  • You are admissible to the U.S. or eligible for a waiver.

If approved, you may be authorized to remain in the United States for a maximum period of 4 years; this period may be extended. You will also be eligible for employment authorization. You may also be eligible to apply for lawful permanent resident status (i.e. a green card) if you have been physically present in the United States for at least 3 years while in U nonimmigrant status and since receiving U nonimmigrant status you have not unreasonably refused to assist law enforcement in the investigation and/or prosecution of the crime.

T VISAS

T nonimmigrant status was created to combat human trafficking. Human traffickers often target vulnerable foreign nationals, including those lacking lawful immigration status. However, the T visa offers victims of human trafficking protection and strengthens the ability of law enforcement to investigate and prosecute incidents of human trafficking. You can apply for T nonimmigrant status (i.e. a T visa) if you have been a victim of human trafficking and have assisted law enforcement in the investigation and/or prosecution of human trafficking. Human trafficking includes both sex and labor trafficking.

Not only may you be eligible for T nonimmigrant status, but certain qualifying family members may also derive T nonimmigrant status based upon their relationship to you. If you are under 21 years of age, your spouse, children, parents, and unmarried brothers and sisters under the age of 18 may derive T nonimmigrant status. If you are over the age of 21, your spouse and children may derive T nonimmigrant status.

You may qualify for T nonimmigrant status if:

  • You are or have been the victim of human trafficking;
  • You are in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry as a result of the trafficking;
  • With limited exceptions, you comply with reasonable requests from law enforcement for assistance in their investigation and/or prosecution of the human traffickers;
  • You would suffer extreme hardship involving unusual and severe harm if you were forced to leave the United States; and
  • You are admissible to the United States or eligible for a waiver.

If approved, you may be authorized to remain in the United States for a maximum period of 4 years; this period may be extended. You will also be eligible for employment authorization and certain federal and state benefits and services. You may also be eligible to apply for lawful permanent residence after holding T nonimmigrant status for at least 3 years or once law enforcement has completed its investigation and/or prosecution, whichever occurs first.

ASYLUM

If you are afraid to return to your home country, you may be eligible for asylum. Asylum is a form of protection offered by the U.S. Government to foreign nationals who are in the United States and are afraid to return to their home countries. To be eligible for asylum, you must have suffered persecution or fear that you will be persecuted in the future because of your race, religion, nationality, political opinion, or membership in a particular social group. The term “persecution” encompasses acts such as physical violence, rape, torture, threats of harm, unlawful detention, unlawful surveillance, forcing you to engage in conduct abhorrent to your deepest beliefs, severe discrimination and harassment, and substantial economic deprivation.

Even if you establish you have or will be persecuted because of your race, religion, nationality, political opinion, or membership in a particular social group, you may be ineligible for asylum. You may not be permitted to apply for asylum if you:

  • Did not file your Form I-589, Application for Asylum and for Withholding of Removal within one year of your last arrival in the U.S. unless you can establish an extraordinary or changed circumstances excusing your delayed filing;
  • Had a previous asylum application denied by the Immigration Court or Board of Immigration Appeals; or
  • Can be removed to a safe third country under an agreement between the United States and other countries.

In addition, you will not be granted asylum if you:

  • Ordered, incited, assisted, or otherwise participated in the persecution of others, because of their race, religion, nationality, political opinion, or membership in a particular social group;
  • Have been convicted of a “particularly serious crime” and you pose a danger to the United States;
  • Have committed a “serious nonpolitical crime” outside the United States;
  • Pose a danger to United States’s security;
  • Firmly resettled in another country before arriving in the United States;
  • Are engaged, have engaged, or are likely to engage in terrorist activity or are the spouse or child of an individual who engaged in terrorist activity during the last 5 years;
  • Have been convicted of unlawfully re-entered the United States;
  • Have been convicted of alien harboring or smuggling;
  • Have been convicted of crimes that the adjudicator knows or has reason to believe were related to the activity of a criminal street gang;
  • Have been convicted of driving while intoxicated or impaired where such impaired driving was the cause of serious bodily injury or death of another;
  • Have been convicted of a second or subsequent offense for driving while intoxicated or impaired;
  • Have been convicted of crimes involving conduct amounting to a crime of stalking, child abuse, child neglect, or child abandonment, as well as various domestic violence-related offense (you are also barred from asylum if the adjudicator knows or has reason to believe have engaged in battery or extreme cruelty within the context of domestic violence, regardless of whether you were convicted of a crime);
  • Have been convicted of a misdemeanor offenses related to the possession or use of false identification, the receipt of a public benefit, or possession of a controlled substance or paraphernalia (other than a single offense involving possession for one’s own use of 30 grams or less of marijuana); and/or
  • Have been convicted of any felony.

You may request asylum by filing either an “affirmative” or “defensive” asylum application. An “affirmative” asylum application is where you file an asylum application with USCIS without being placed in removal proceedings. You will file your asylum application with USCIS and be interviewed at the local Asylum Office. A “defensive” asylum application is filed while you are in removal proceedings and you are trying to avoid being removed from the U.S. Your asylum application will be considered by an Immigration Judge at an Individual Merits Hearing.

The process for seeking asylum is complicated. Asylum law is constantly evolving and extremely nuanced. There are many questions that need to be addressed such as (1) what harm were you subjected to?; (2) who harmed you?; (3) why were you harmed?; and (4) are there any mandatory or discretionary grounds for denial present? Our team of experienced and compassionate immigration attorneys can help you navigate this complex landscape and present your strongest case.

IMPORTANT INFORMATION:

  • Ability to work in the U.S.

    You may apply for employment authorization if your asylum application has been pending for at least 150 days, excluding any delays you may have caused such as requesting to reschedule your interview, and a final decision has not been made on your asylum application.

    If you are granted asylum, you are authorized to work immediately. You do not need an Employment Authorization Document (i.e. EAD) to begin working. as an asylee. However, many asylees choose to obtain an EAD for convenience or identification purposes.

  • Bringing your family to the U.S.

    When you apply for asylum, your spouse and/or unmarried children under the age of 21 who are in the United States with you can be included as derivative beneficiaries. This means that if your asylum application is granted, your spouse and unmarried children who were under 21 at the time of you filed your asylum application will also be granted asylum status. If you are granted asylum and your spouse and/or unmarried children under 21 are not in the United States or were not included on your asylum application, you may petition to bring your spouse and children to the United States by filing a Form I-730, Refugee/Asylee Relative Petition with USCIS. You must submit this petition within 2 years of being granted asylum. This deadline can only be extended if there are humanitarian reasons to excuse your failure to file within 2 years.

    To be eligible to derive asylee status through you, you must be married and/or your children must be born at the time your asylum application is granted.

  • Traveling outside the U.S.

    If you are granted asylum, you and your family members who derive asylee status may apply for a Refugee Travel Document. A Refugee Travel Document will allow you to return to the United States after traveling abroad.

  • Becoming a lawful permanent resident (i.e. green card holder)

    You may apply for adjustment of status to lawful permanent resident one year after being granted asylum. To apply for a lawful permanent residence, you must file a Form I-485, Application to Register Permanent Residence or to Adjust Status with USCIS. Each family member who received derivative asylee status through your application must submit their own Form I-485, Application to Register Permanent Residence or to Adjust Status. To be eligible for adjustment of status, you must:

    • Be physically present in the United States at the time you file your application for adjustment of status;
    • Have been physically present in the United States for at least 1 year after being granted asylum;
    • Continue to meet the definition of a refugee, or be a refugee's spouse or child;
    • Have not firmly resettled in any foreign country;
    • Not have had your grant of asylum terminated;
    • Be admissible to the United States or qualify for a waiver of inadmissibility; and
    • Merit the favorable exercise of discretion.
SPECIAL IMMIGRANT JUVENILE (SIJ) QUALIFICATION

You may qualify for lawful permanent residence (i.e. a green card) as a special immigrant juvenile (i.e. SIJ). You can be found to be a special immigrant juvenile if (i) you were born outside the U.S.; (2) have been abused, abandoned, or neglected by one or both of your parents; and (3) it is in your best interest to remain in the U.S. Seeking lawful permanent residence (i.e. a green card) as a special immigrant juvenile is a multi-step process that requires the involvement of both a state court and USCIS. To be found to be a special immigrant juvenile, you must meet the following criteria:

  • Be under the age of 21;
  • Be physically present in the U.S.;
  • Be unmarried;
  • Be a dependent of a “juvenile court”;
  • Be unable to reunite with one or both of your parents, because of abuse, abandonment, or neglect; and
  • It would not be in your best interest to return to your home country.

The first step is to petition a “juvenile court” for an order finding you were abused, abandoned, or neglected by one or both of your parents and that it is not in your best interest to return to your home country. The procedures and legal standards for obtaining such an order vary from state to state.

Once the “juvenile court” issues its order, you can file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant with USCIS. The petition must be filed with evidence establishing your age and a valid juvenile court order. An approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant gives you the ability to apply for lawful permanent residence. You can seek lawful permanent residence by filing a Form I-485, Application to Register Permanent Residence with USCIS.

It is important to note that if you obtain lawful permanent residence (i.e. a green card) as a special immigrant juvenile, you cannot sponsor either of your parents in the future for an immigrant visa.

HUMANITARIAN PAROLE

You may be eligible for humanitarian parole if you have a humanitarian reason to travel to the United States and are unable to obtain a visitor visa. Humanitarian parole allows you to enter the U.S. for a temporary period of time. Humanitarian parole is rarely granted. It is reserved for those who need to travel to the U.S. as the result of a compelling emergency. Examples of when humanitarian parole is appropriate include requests for the purpose of receiving medical treatment, reuniting families particularly when young children or individuals with disabilities are involved, and attending civil and criminal court proceedings.

TEMPORARY PROTECTED STATUS (TPS)

You may be eligible for Temporary Protected Status (i.e. TPS) if your home country has been designated for TPS by the Department of Homeland Security. TPS designation can be made when conditions in your home country temporarily prevent you and others from your country from returning safely. Your home country can be designated for Temporary Protected Status due to the following:

  • Ongoing armed conflict such as a civil war;
  • An environmental disaster such as a hurricane or earthquake;
  • An epidemic such as an Ebola outbreak; or
  • Other extraordinary and temporary circumstances.

To be eligible for TPS, you must meet the following criteria:

  • Be a national of a foreign country that has received TPS designation (or if stateless, have last habitually resided in a country that has received TPS designation);
  • Be continuously physically present in the U.S. since the effective date of the TPS designation;
  • Have continuously resided in the U.S. since the date specified by the Department of Homeland Security in the TPS designation; and
  • Not be inadmissible to the U.S. or be barred from asylum for criminal or national security-related reasons.

You will not automatically receive TPS upon your home country’s TPS designation. You must request TPS during the specified registration period. IF USCIS grants your application for TPS, you

  • Will be granted a temporary stay of removal from the United States;
  • Can be issued an employment authorization document (i.e. an EAD or work permit);
  • May be granted advance parole, which allows you to travel overseas and return to the U.S.; and
  • Cannot be detained by Immigration and Customs Enforcement (i.e. ICE) simply because of your lack of immigration status in the U.S.

It is important to keep in mind that TPS is a temporary benefit. Being granted TPS does not give you a path to lawful permanent residence (i.e. a green card) or citizenship. However, as a TPS recipient, you are not prevented from:

  • Applying for nonimmigrant status;
  • Seeking adjustment of status to a lawful permanent resident through a family or employment-based immigrant visa petition; or
  • Applying for any other immigration benefit for which you may be eligible.

Once TPS designation ends, you will return to the immigration status you had prior to being granted TPS unless that status has expired or you changed/adjusted your immigration status. If you entered the U.S. without inspection (i.e crossed the border without permission) or are otherwise without a valid immigration status, you would return to undocumented status and could be subject to removal from the U.S.

DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

You may be eligible for Deferred Action for Childhood Arrivals (i.e. DACA) if you came to the U.S. as a child. DACA has existed since June 15, 2012. The Trump Administration attempted to end DACA. However, on June 18, 2020, the U.S. Supreme Court issued its much anticipated decision in the Department of Homeland Security, et. al. v. Regents of the University of California, et. al. concluding the Trump Administration’s September 2017 decision to terminate the DACA program violated the Administrative Procedure Act (i.e. APA). At this time, USCIS will continue to accept DACA renewal applications from anyone who previously was previously granted DACA. Given the U.S. Supreme Court’s decision, USCIS should also accept first-time DACA applications, but to date, has refused to do so.

You may be eligible for Deferred Action for Childhood Arrivals, if:

  • You were under the age of 31 on June 15, 2012;
  • You entered the United States before reaching your 16th birthday;
  • You have continuously resided in the United States since June 15, 2007 to the present time;
  • You were physically present in the United States on June 15, 2012 as well as at the time of you filed your request for DACA with USCIS;
  • You had no lawful immigration status on June 15, 2012;
  • You are currently attending school, have graduated or earned a certificate of completion from high school, earned a GED, or were honorably discharged from the Coast Guard or Armed Forces of the United States; and
  • You have not been convicted of a felony, significant misdemeanor, or 3 or more other misdemeanors, and you do not otherwise pose a threat to national security or public safety.

In addition, you must be at least 15 years of age or older to apply for DACA unless you are currently in removal proceedings or are subject to a final order of removal or grant of voluntary departure.

DACA recipients are also eligible for employment authorization. It is important to understand that DACA is a form of prosecutorial discretion deferring removal action against you. Deferred action does not provide you with a lawful immigration status. Nor does it create a path to lawful permanent residence or United States citizenship. However, being granted DACA does not prevent you from seeking adjustment of status to a lawful permanent resident through a family or employment-based immigrant visa petition, if otherwise, eligible.

Not sure which option is right for you? Request a confidential consultation today.

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