March 6, 2012
Establishing a new life in a foreign country is an extremely difficult experience. The stress and pressure of adjusting to a new environment and culture are enough to overwhelm any individual. Unfortunately, for some individuals, the struggle to adapt to a new society is heightened with the nightmare of physical, emotional and/or psychological abuse. Their passion to remain in the US overwhelms their sensibilities and unwittingly forces many to endure the abuse. The immigration laws recognize this complex and unfair situation by allowing individuals to seek either a temporary visa or permanent residency, depending on the nature of the abusive situation.
Since 1994, the immigration laws have afforded individuals subjected to domestic violence the ability to self-petition for permanent residency under the Violence Against Women’s Act (VAWA). While the law specifically mentions “women,” the laws also apply to men.
Those eligible to self-petition include: (1) A battered spouse of a US citizen or permanent resident (with unmarried children under the age of twenty-one eligible to apply as derivative beneficiaries); (2) Aparent who has been subjected to extreme cruelty by their adult US citizen son or daughter; (3) The parent of a child who has been abused by a US citizen or permanent resident parent; and (4) An unmarried child under age 21 who has been abused by a US citizen or permanent resident parent. An unmarried child between 21 to 25 may apply only if they can prove that the abuse was at least one central reason for the filing delay. The child’s unmarried children could also be included as derivative beneficiaries.
To qualify for a green card, the spouse, parent or child seeking to self-petition must meet the following requirements: (1) Abuse must have been in the US, unless the abuser is a US government employee or member of the US military; (2) Applicant, or the applicant’s child, must have been battered or subjected to extreme cruelty during the marriage; (3) Applicant is a person of good moral character; and (4) Marriage must have been entered into in good faith.
Additionally, if there is a divorce or death of the abusive spouse, it is required that the self-petition be filed within 2 years. The applicant must also demonstrate that the divorce from the abusive US citizen or permanent resident is connected to the abuse.
To be successful, an applicant must be able to clearly identify the extreme cruelty that they have been subjected to. Evidence of the abuse should be documented through items such as police reports, court cases, medical reports, psychological reports, report by social workers, reports by clergy, personal affidavits from friends and relatives, and photographs.
For those who do not qualify under the VAWA provisions, the Victims of Trafficking and Violence Prevention Act of 2000 may still provide relief. This Act created the U Visa, which grants temporary lawful status that may ultimately be converted to permanent residency to an individual of certain serious crimes, including domestic violence. Unlike VAWA, the abuser and victim do not need to be married. As well, the abuser can also be an undocumented individual in the US.
To be eligible for a U visa as the victim of domestic violence, an individual must provide evidence establishing the following requirements: (1) the individual must have suffered substantial physical or mental abuse due to the domestic violence; (2) he/she has information concerning the domestic violence; (3) he/she has been helpful, is being helpful, or is likely to be helpful to law enforcement officials in investigating or prosecuting the perpetrator; and (4) the domestic violence violated US laws or occurred within the US.
An individual who has been the victim of domestic violence may obtain a U visa valid for 4 years entitling him/her to work and reside in the US. If the victim is under the age of 21, then his/her spouse, children, parents and unmarried siblings under age 18 are also eligible for a U visa. If the victim is age 21 or older, then the victim’s spouse and children may obtain a U visa as well. After 3 years, U visa holders may apply for permanent residency.
The VAWA and U visa regulations empower victims of domestic violence to not only ensure that justice against the criminal perpetrator is obtained, but also to secure justice for himself/herself as a victim deserving of an opportunity in the United States. The immigration laws provide refuge to those who are faced with an intolerable situation of abuse. No longer must victims of such heinous and inhumane crimes endure the pain. Victims of domestic violence, sexual assault and trafficking must take charge of their situation and realize that the laws are aimed to protect them and provide them with a future that can be safe and secure.