Immigration Remedies for Survivors of Domestic Violence
Immigrant survivors of domestic violence often face many barriers when trying to leave an abusive situation. For example, some immigrants might not understand English. Some do no know how the American legal system works. An abuser might lie to their victim, telling them because their victim is "illegal" the victim has no right to call the police. The abuser may say if the victim does, the victim will be deported. Abusers will often isolate their victims from family and friends. This problem is compounded for immigrants who may not know anyone in this country or anyone else who speaks their native language. Also, an abuser who is a United States Citizen (USC) or a Lawful Permanent Resident (LPR) is in control of their victim's immigration application. The abuser can refuse to apply for their victim or can withdraw the application at any time for no reason.
Congress recognized that many abusers were using their powerful role in the immigration process to further control their victims. Some were preventing victims from gaining lawful status in the United States. Congress passed the Violence Against Women Act (VAWA) in 1994 and reauthorized the Act in 2000 and 2005. The immigration provisions of VAWA allow certain victims of domestic violence and other violent crimes to petition for their own immigration status. They did not have to rely on the abuser?s participation. The most common remedies for immigrant survivors are listed here. However, immigration law is very complex. Each case is different. Factors include:
- current immigration status or visas (if any);
- how a person entered the U.S., and
- a person's criminal history.
It is important to contact an immigration attorney before applying for any type of immigration status.
The first type of remedy available for survivors is the VAWA Self-Petition. One must meet five requirements in a Self-Petition:
- Abuser is a United States Citizen or Lawful Permanent Resident.
The person responsible for the abuse must be a USC or LPR. The Self-Petitioner must be married to the USC or LPR or have been divorced within the last two (2) years.
- Good Faith Marriage
The Self-Petitioner must prove they did not enter the marriage for purposes of gaining immigration status. Evidence of this includes wedding photos, photos of the couple together, love letters, having children born during the marriage, joint bank accounts and property, and joint tax returns.
- Residency with the Abuser
The survivor must establish they live with the abuser. Proof can include mortgage documents or leases, utility bills, mail in both spouses names, and separate mail for each spouse sent to the same address.
- Good Moral Character
The Self-Petitioner must show good moral character by providing a police clearance from every location they have lived for more than six months in the past three years. This includes places outside the United States. If there are past criminal convictions, there are some exceptions for Self-Petitioners.
- Battery or Extreme Mental Cruelty
The Self-Petition must show battery or extreme mental cruelty has taken place. Evidence of battery or extreme mental cruelty can include anything from police reports, medical records, orders of protection, affidavits from witnesses and statements from advocates and counselors. However, many victims never tell anyone about the abuse. In those cases, the self-petitioner should write a personal declaration with the help of their attorney or advocate. Also, a person may qualify for the VAWA Self-Petition when there was never physical abuse if they can show extreme mental cruelty by the abuser.
If a survivor does not qualify for the VAWA Self-Petition, they may be eligible to apply for a U Visa. The U Visa law was part of the Victims of Trafficking and Violence Protection Act of 2000. The U Visa is a non-immigrant visa for people who have been victims of certain violent crimes and who help law enforcement investigate or prosecute the crime. Two of the listed crimes are domestic violence and sexual assault. Although regulations for the U Visa have not yet been published, the United States Citizenship and Immigration Service (USCIS) is granting interim U Visas. These visas allow a grantee to apply for a work permit and to stay in the U.S. temporarily. Once the U Visa regulations are published, grantees will be able to apply for their Lawful Permanent Residency after having a U Visa for three years. The statute outlines four requirements for the U Visa:
- The victim endured substantial physical or emotional abuse flowing from the criminal activity.
- The victim has information concerning the criminal activity.
- The criminal activity took place in the U.S. or otherwise violated U.S. law.
- Certification from a government official stating the victim has been, is being, or is likely to be helpful, as they investigate or prosecute criminal activity.
The VAWA Self-Petition and the U Visa are the two most common immigration remedies available for survivors of domestic violence. Again, it is important to talk to an immigration attorney before filing any petitions or applications with USCIS.
ACCESS TO SERVICES
Battered immigrants, regardless of immigration status, have the right to access the following services:
- Emergency medical care
- Civil and Criminal Protective Orders
- Police assistance
- Having their batterers criminally prosecuted
- Crime Victim Assistance
- Emergency Shelter
- Transitional Housing
- Public Benefits (with a prima facie determination on a VAWA Self-Petition)
WHO CAN HELP?
For details on the VAWA Self-Petition or U Visa, cthe Iowa Victim Service Call Center at 1-800- 770-1650.
Helping Iowans with safety and survival issues is a priority of Iowa Legal Aid. We can represent certain undocumented immigrants who are victims of domestic violence. For details, call 1-800-532-1275.