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VAWA: Protection for immigrant victims of domestic abuse

Protection for abuse victimsUndocumented immigrants are frequently victims of crime and often feel they must keep silent because of their illegal status or worse yet may be overtly threatened with deportation by those victimizing them. However, as we discussed in our prior blog post, U.S. law provides protection and potential benefit to immigrants who become victims in these situations. This week we want to discuss similar protection available for immigrants who are the victims of domestic violence, under the Violence Against Women Act (VAWA). Spouses, children, and parents of children who have been abused all may be eligible for protection under VAWA, which includes the right to receive a work permit as well as apply for a Green Card.

Victims of domestic violence and abuse are often extremely reluctant to come forward not just because of their undocumented status. They are also fearful of getting their abusers in trouble with the law. For cultural, psychological or financial reasons the victims feel powerless or unable to report their abuser. And in many cases of domestic violence, an abused spouse may be rightfully concerned that coming forward to make an official complaint will only make the violence worse.

The VAWA program provides safeguards to enable victims of abuse to come forward in confidence, without triggering these concerns. First, victims can file a visa petition for themselves, without the abuser’s knowledge. Under the VAWA program, a spouse may file a visa petition alleging abuse, which will be kept confidential even if the abuser calls the immigration office directly to ask questions about the petition. Furthermore, victims may be eligible for protection under the law even if they have never filed a police report or order of protection. Proof of their abuse can be established by affidavits from witnesses and other circumstantial evidence without in any way requiring formal police intervention.

While VAWA provides a framework that enables victims to seek protection on a confidential basis, eligibility under the program is limited to those victims who can clearly demonstrate they qualify for relief based on a history of abuse or domestic violence. The key requirements for eligibility are:

  • The victim suffered battery/extreme cruelty at the hands of a spouse who is a U.S. citizen or permanent resident. Extreme cruelty may include verbal as well as physical abuse.
  • The victim is married to the abuser and originally entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.
  • The victim has resided with the spouse.
  • The victim is a person of good moral character.
  • Some exceptions exist for the requirement that the victim and abuser are married, such as if:
    • the marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing the petition, or
    • the victim believed that he/she was legally married to the abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of the abusive spouse.
  • Similarly, there is an exception to the requirement that the abusive spouse must be a U.S. citizen or permanent resident if the spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing the petition due to an incident of domestic violence.

In the case of abused children, a spouse may file for protection if a spouse who is a U.S. citizen or permanent resident abused their child. The child may also file on his/her own behalf.

The VAWA program also may afford protection for parents who are the victims of domestic violence or abuse. In such case, the abuser must be their son or daughter who is a U.S. Citizen and at least 21 years of age.

Under the rules, victims must file a Form I-360. Once approved, they are eligible to apply to work in the United States and they may be eligible to file for a green card.

If you think you’ve been a victim of domestic violence or have questions about VAWA, please contact us for a consultation.

Help is also available from the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD), or visit the National Domestic Violence website.

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Immigration News from ILW.COM

FAQs
  • Q: My employer wants to sponsor me to get a green card – can they?

    If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.

  • Q: How can I get a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit, but you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. Don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and immigration laws in the United States really work.

  • Q:  Can I apply for deferred action now?

    As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.

  • Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?

    The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.

  • Q:  Who can I contact for more help or information?

    It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status.  Do not take advice about your immigration case from a notary public or an immigration consultant.  The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice.  Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.

  • Q; What should I do now?

    You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.

  • Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?

    If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better, so contact one of our attorneys now to get started or browse our site to learn more about the different types of visas available for family members.

  • Q: My grandma is sick back home – can I go visit her?

    Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.

  • Q: Can our company sponsor an employee to get a green card?

    If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.

  • Q: What is a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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