The Violence Against Women Act (VAWA), first passed in 1994, created a number of protections for women and others who are subject to abuse. Among its provisions are some that provide additional forms of relief to immigrants (men and women) who are victims of abuse.
U.S. immigration law puts a major emphasis on family—uniting families and maintaining them intact is one of the chief goals of immigration officers, though this goal is of course subject to the larger project of upholding immigration regulations.
The most common way for an alien to adjust status to become a lawful permanent resident (LPR) is through a family petition, usually based on a spousal or parent/child relationship. The beneficiary is the foreign national (immigrant) and the petitioner is either a U.S. citizen (USC) or an LPR. The petitioner is the one who drives the application forward and can revoke it at any time. If the beneficiary is an illegal alien, s/he cannot legalize status except through the relationship with the petitioner. (links to citizenship and LPR, respectively).
But what happens if the petitioner is abusive to the beneficiary? The beneficiary would be trapped: s/he would want to complete the application and gain residency, but to do so s/he would have to continue suffering abuse. Fortunately, immigration law provides escape.
Help for Victims of Human Trafficking
The Victims of Trafficking and Violence Protection Act of 2000 created two new kinds of visas, the U and T categories. These are for people who suffered physical or mental abuse in connection with criminal activity and/or human trafficking. Human trafficking can include activities such as forced prostitution, slavery, or forced labor.
The U and T Visa categories provide important protections to those who need them most. For more resources and information on these visas, please contact us today.
Help for Immigrants on a Valid Visa
An immigrant present on a valid visa is entitled to an Adjustment of Status through an immediate relative (spouse, child, or parent) who is a USC/LPR. In the event of abuse, the immigrant can self-petition independently of the abusive relative if s/he can show:
- that s/he resided with the USC/LPR
- that s/he was battered or subjected to extreme cruelty (or his/her
- child was abused) during this time
- the marriage was entered into in good faith
- evidence of his/her Good Moral Character
The immigrant does not need to be married to the abusive USC/LPR. Children of the abused spouse can be derivative beneficiaries even if they were not abused themselves.
Self-petitioning (I-360) is the first part of the process, and once the I-360 has been approved the immigrant is eligible for a work permit. S/he would then have to file an Adjustment of Status (I-485) to become an LPR. (link to AOS under Family)
Help for Illegal Immigrants - Deportation
Illegal immigrants or other foreign nationals who are subject to deportation also have an opportunity to adjust status if they are victims of abuse.
You can apply for a special kind of Cancellation of Removal if you are an immigrant who has been battered or subjected to extreme cruelty by a USC/LPR who is your:
- spouse
- parent
- child’s father/mother (where the child is the one who has been abused)
Other minor requirements include that the victim of abuse must be:
- physically present in the United States for a continuous period of three (3) years leading up to the applications
- a person of Good Moral Character
- not inadmissible or deportable (see an immigration lawyer for guidance)
- not ineligible due to certain criminal convictions
- your inability to stay in the country would cause hardship to you, your child, and/or your parent(s)
Help for Illegal Immigrants – Unlawful Presence
Immigration law also provides relief in some circumstances to foreign nationals who are unlawfully present and are the victims of abuse. If there a foreign national is/was abused and there is a causal link between that abuse and the alien’s unlawful presence, the problems of unlawful presence are ignored.
For instance, if a woman entered on a fiancé visa and was abused by her partner and fled him, she would violate the terms of the fiancé visa but would be eligible for relief under this provision of the law.
In this case, the alien might be able to self-petition with an I-360 and gain a Green Card independent of the abusive partner.
If you or you child have been the victim of abuse by a USC/LPR and want to know if you can get immigration relief, please contact our office for a free consultation with our experienced Nevada immigration attorney.
Special Note for Visa Waiver Aliens
A foreign national who entered under a visa waiver is not eligible for the above. If you entered with a visa waiver and are the victim of abuse, you should consult with an immigration lawyer immediately to discuss your options.