Domestic Violence and the Immigrant: Violence Against Women Act (VAWA) and U Visa
Contributor: Van T. Doan
Domestic violence encompasses much more than physical abuse. One common component of domestic violence is the abuser's attempt to exert control over the victim. When an abused immigrant is dependent on the sponsorship of his or her abuser, the threat to withhold sponsorship of legal immigration is one of the abuser's most effective tools for controlling the victim's behavior.
Recognizing this, the United States government has provided some options for victims of domestic violence, so that their immigration status need not be at the mercy of an abusive spouse, parent, or child. This article will discuss the qualifications needed to self-petition under the Violence Against Women Act (VAWA) and those needed to obtain a U Visa, and will compare the the two benefits.
VAWA and Immigration
Despite the name of the law, the Violence Against Women Act is available to both men and women. VAWA gives abused non-citizen spouses, and under some circumstances abused noncitizen parents and children, a path to legal permanent resident status (a green card) without having to rely upon an abuser to petition on their behalf. In order to be eligible to self-petition under VAWA, you must be:
- married in good faith to a spouse who is a citizen or lawful permanent resident of the U.S. who battered or abused you or your child who is under age 21; or
- divorced (after a good-faith marriage) from a citizen or lawful permanent resident of the U.S. who battered or abused you and whose abuse was connected with, or led to, the divorce in some way; or
- unmarried and under 21 years of age, and have been battered or abused by a parent or stepparent who is a citizen or lawful permanent resident of the U.S.; or
- the parent of a child over the age of 21 years who is a citizen or lawful permanent resident of the U.S. and who has battered or abused you.
Once a Form I-360 (Petition for Amerasian, Widow(er) or Special Immigrant) VAWA self-petition has been submitted and approved, the petitioner may file a Form I-485 (Adjustment of Status) to become a lawful permanent resident.
Although the categories listed above include many victims of domestic violence, they do not encompass all. For example, VAWA does not allow domestic violence victims who are simply living with or engaged to their abusers to self-petition, nor does it help those who have been abused by someone who is not a citizen or lawful permanent resident.
Eligibility for U Visa
If you are a non-citizen and you are a victim of criminal activity such as domestic violence, you may file for U Non-immigrant status, regardless of the abuser or alleged criminal's immigration status. U Non-immigrant status may be granted to victims of crime who have suffered substantial mental or physical trauma as a result of the criminal activity, and who also are willing to assist law enforcement agencies or government officials in their investigation of the activity.
In order to file for a U Visa, the non-citizen victim must provide certification from a federal, state, or local agency authorized to certify that the non-citizen victim:
- has been a victim of qualifying criminal activity;
- has information about the qualifying criminal activity; and
- has been, is being or is likely to be helpful to the investigation and/or prosecution of the criminal activity in question.
In addition to law enforcement agencies, certain agencies such as Child Protective Services or the Department of Labor may also provide certification. No agency is under obligation to provide certification, but certification is necessary in order for the alien to receive a U Visa. The certification does not, in and of itself, confer the benefit. The decision to issue a U Visa is the in the sole discretion of the United States Citizenship and Immigration Services.
Comparing VAWA Self-Petition and U Visas
As noted above, victims of abuse may not be eligible to self-petition under VAWA because either their relationship to the abuser may not qualify, or the abuser is not a lawful permanent resident or citizen of the United States. Similarly, falling outside of certain age categories may preclude self-petition under VAWA, such as if a victim of abuse by parents is older than 21.
Furthermore, VAWA requires that an alien be of "good moral character." To receive a U Visa, in contrast, an alien must show only that he or she is not "inadmissible" to the United States. Inadmissibility may stem from a number of circumstances, not all of which have to do with moral character or conduct. Also, a U Visa may be available based on having been the victim of crimes other than domestic violence.
There are, however, circumstances under which a U Visa is unattainable. If the alien seeking a U Visa has no information to offer law enforcement, or refuses to offer assistance, certification may be withdrawn or denied. Also, there is a cap of 10,000 on the number of U Visas that can be granted in a given year; this cap may be reached only a few months into the year.
Victims of domestic violence are often made to feel as if they are trapped in a cycle of abuse and have no choices. With regard to immigration status, however, the law provides options for these victims. If you are unsure whether you qualify for a U Visa or for help under VAWA, or which you should pursue if you are eligible for both, contact Howard County, MD immigration lawyer Van T. Doan.