Every year, thousands of immigrants become victims of domestic violence and/or emotional cruelty, however few seek help for fear of negative immigration consequences. The U.S. laws, however, offer extensive protections to victims of such abuse, whether the perpetrator is a U.S citizen or not. Taking into account that abusers may attempt to control or intimidate their immigrant partners by threatening to have them deported, the law provides for ways in which victims can obtain or maintain lawful immigration status without their abuser’s knowledge or participation. Outlined below are several common immigration scenarios and a brief description of the solutions available under U.S. immigration law.
The immigrant does not have lawful status in the United States and is married to a U.S. citizen or Lawful Permanent Resident (“LPR”). The U.S. citizen or LPR spouse has abused the immigrant spouse and refuses to file immigration documents on behalf of the immigrant spouse.
Under this scenario, the immigrant spouse may be eligible to file a “self-petition” under the Violence Against Women Act (“VAWA”) and obtain his or her green card without relying on the abusive spouse to file immigration documents. Among other things, the immigrant spouse will have to demonstrate that he or she was subject to either physical or emotional abuse at the hands of his or her U.S. spouse. The immigrant spouse should keep in mind, however, that “abuse” is defined broadly, and what may not be considered abuse in the immigrant’s native culture could qualify as abuse for immigration purposes. Evidence of abuse may include, among other things, copies of protective injunctions, police reports, domestic violence shelter records, the immigrant’s own sworn statement and affidavits from others who witnessed the abuse. The immigrant may be eligible for a VAWA self-petition even after divorcing from the abusive U.S. spouse, provided certain conditions are met.
The immigrant has obtained his or her conditional green card based on marriage to a U.S. citizen or LPR. The immigrant has been abused by his or her U.S. spouse and the U.S. spouse refuses to jointly file documents for the permanent green card.
Typically, during the 90 days preceding the 2 year anniversary of when the immigrant obtained his or her conditional green card, the U.S. spouse and the immigrant spouse must file a “joint petition” with the Immigration Service to convert the conditional green card to a permanent one. In marriages involving abuse, the U.S. spouse may refuse to file the joint petition, or use the need to file the joint petition as a tactic to further abuse and manipulate the immigrant spouse. Under this scenario, the immigrant may be eligible to petition to receive his or her permanent green card without the participation of the abusive spouse.
In this situation, the immigrant spouse is not required to divorce the abusive U.S. spouse prior to filing for the permanent green card. However, he or she may divorce his or her spouse, if he or she wishes, without affecting the right to file independently for a permanent green card. In order to file independently, the immigrant spouse, will have to provide, among other things, evidence of the abuse, including police reports, domestic violence shelter records, the immigrant’s own sworn statement and affidavits from others who witnessed the abuse.
The immigrant does not have lawful status in the United States and was abused by an individual who is either without lawful status in the U.S. or who is not the immigrant’s lawful spouse.
An abused immigrant who is married to an individual without lawful immigration status in the U.S. would not be eligible for a VAWA self-petition described in scenario #1 above. Similarly, a person whose abuser is not their lawful spouse is also ineligible to file a self-petition under VAWA. However, such individuals may benefit from a form of immigration relief called the U-Visa. The U-Visa is available to victims of certain serious crimes, including domestic violence, who cooperate with law enforcement and prosecutorial authorities in investigating and prosecuting these crimes. In order to file for a U-Visa, the immigrant will need to first obtain a certification from the police or the prosecutor, attesting to the immigrant’s full cooperation.
Once the law enforcement certification is obtained, it is forwarded to the Immigration Service, together with other evidence, including evidence that the immigrant was the victim of a qualifying crime, that he or she suffered mental or physical injury as a result of the crime and that he or she fully complied with all requests for cooperation from the prosecutor and/or law enforcement. It is important to note, that a U-Visa is not a green card. Rather it gives the immigrant lawful status and work authorization in the United States. Provided certain conditions are met, the U-Visa holder will eventually be able to apply for a green card.
Cases involving abused immigrants are incredibly complex and individuals who find themselves in any of the situations described above should seek the counsel of a duly licensed immigration attorney with experience representing victims of domestic violence. For questions regarding domestic violence immigration options or any other immigration matter, please contact one of our top rated Orlando immigration lawyers.
