August 16, 2014
Being a victim of domestic violence is an extremely difficult situation. Not only does the individual experience the physical, emotional and/or psychological abuse itself, but often times has no one to turn to for support out of fear or humiliation. Sometimes family members or friends even try to persuade the victim to not make the domestic abuse public because of the potential negative consequences that the abuser may face.
Victims of domestic violence must understand that these attitudes are absolutely wrong and that assistance is available to help get them out of the abusive situation. In addition to organizations that assist victims with basic needs, like shelter, food, and medical treatment, there are also immigration laws that allow victims of domestic violence to legalize their immigration status in the United States. The immigration laws provide assistance to anyone who is the victim of “extreme cruelty,” whether the abuser is a spouse, parent, step-parent, child, or unmarried partner.
Physical abuse is most commonly thought when individuals think of “extreme cruelty.” However, individuals must also recognize that psychological and mental abuse can also be deemed as domestic violence rendering an individual eligible for a visa.
In a recent court decision, an individual was granted a green card based entirely on non-physical abuse. The court agreed that the individual had been the victim of “extreme cruelty” due to her husband’s alcoholism and gambling. The individual had provided extensive testimony describing how her husband’s alcoholism had put himself and others in danger when he drives, socially isolated her, and caused him to be aggressive toward her. She also testified about how his alcoholism worsened his gambling addiction, causing him to psychologically abuse her and place her welfare at risk. As well, she testified as to how her husband failed to support her adjustment application because of his alcoholism. The court determined that the long-term impact of her husband’s alcoholism and gambling amounts to “extreme cruelty” as it affects her psychological, emotional and financial well-being.
Individuals subjected to extreme cruelty have options to seek either a green card or a U nonimmigrant visa.
Under the Violence Against Women’s Act (VAWA), which also applies to men despite the law’s name, a victim of domestic violence may file a self-petition for a green card as follows: (1) He/she is a battered spouse of a US citizen (USC) or lawful permanent resident (LPR); (2) He/she is a parent who has been subjected to extreme cruelty by an adult USC child; (3) He/she is the parent of a child who has been abused by a USC or LPR parent; or (4) He/she is an unmarried child under age 21 who has been abused by a USC or LPR parent.
To qualify for a green card, the applicant 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) Victim 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 the parties are divorced or the abuser has died, the self-petition must be filed within 2 years.
For those who do not qualify under VAWA, an individual may apply for a U visa in order to obtain temporary lawful status that may later on be converted to a green card. 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.
Eligibility for a U visa as the victim of domestic violence requires the following: (1) He/she 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.
The U visa grants an individual temporary lawful status and work authorization for 4 years. If the victim is under 21, then his/her spouse, children, parents and unmarried siblings under age 18 are also eligible for a U visa. If the victim is 21 or older, then the victim’s spouse and children may obtain derivative U visas. After 3 years, U visa holders may apply for permanent residency.
The VAWA and U visa regulations empower victims of extreme cruelty to not only ensure that justice against the abuser 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. There is help for victims of domestic violence and hopefully victims can find the strength within to take advantage of the various avenues of assistance so that they can have a safe, secure, and healthy future.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists.