By Attorneys Robert L. Reeves and Lorena Larios Shah
Undocumented immigrants who are victims of domestic violence, trafficking, or other crimes often face obstacles which prevent them from seeking help, such as fear of deportation, poverty, separation from their children, cultural and language barriers. Too often, the abuser uses the undocumented status of the immigrant to prevent him or her from leaving or calling the police. In turn these immigrants are often trapped in violent relationships. There are however a number of legal options that these victims can pursue. These options are not easy, but, with the assistance of an experienced immigration attorney relief can be achieved. This article explores various types of relief that is available.
Self Petition Pursuant to the Violence Against Women’s Act (VAWA)
An immigrant married to a U.S. citizen or a permanent resident who is in an abusive relationship or was in one, may be eligible to apply for relief under section 204(a)(1) of the Immigration and Nationality Act (Act). This section of the Act allows an undocumented immigrant to file a self-petitioning spouse application as long as he/she meets certain requirements, such as a having a qualifying relationship, residing in the U.S., has resided with the abuser, has been battered by or been subjected to extreme cruelty (including children, if any) perpetrated by the citizen or permanent resident.
If the applicant divorces the abusive spouse, the applicant must apply for this benefit within two years from the date of divorce. If the applicant divorces the abusive spouse and remarries he/she may no longer be eligible for this relief. Once the self petition application is approved, the applicant may file for adjustment to obtain resident status.
Many victims of trafficking migrate to the U.S. due to desperate economic conditions in their home countries. Others, are lured to the U.S. with the promise of a job, but instead are forced to work in sweatshops, or in the fields or as prostitutes. Victims of trafficking may be eligible for a T Visa. T Visas are intended for victims of severe form of trafficking of people and may include qualifying family members. To be eligible for this form of relief, the principle applicant must show he or she is or has been a victims of a severe form of trafficking in persons and, is either in the U.S., at a port of entry on account of trafficking, in America Samoa, or the Commonwealth of the Northern Mariana Islands. Victims over 18 comply with reasonable requests for assistance in a Federal, State or local investigation of crimes of acts of trafficking, or, the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime. The applicant must also show he or she will suffer extreme hardship involving unusual and severe harm upon removal.
The U Visa allows immigrant crime victims who cooperate with law enforcement to obtain lawful immigration status and protection against deportation. U Visas may include qualifying family members. To be eligible for a U‐visa, immigrant victims must meet certain statutory requirements and they must include a certification from a certifying official or agency that they have been, are being, or are likely to be helpful in the detection, investigation, or prosecution of a qualifying criminal activity. The applicant must show he or she suffered substantial physical or mental abuse as a result of having been a victim of a listed criminal activity and possess information concerning such criminal activity, including assisting in the investigation or prosecution of a crime. Lastly, the victim will have to show criminal activity that occurred in the United States or violated the laws of the United States.
If the U Visa is granted the applicant may become eligible to apply for adjustment to permanent resident after three years.
Victims of domestic violence, trafficking and certain crimes are not alone and should feel encouraged to seek the assistance of a qualified immigration attorney.