Legal Protections for Abused Aliens: VAWA & U Visas

1. Legal Protections for Abused Aliens: VAWA & U Visas Stephen B. Yurik Lane Alton & Horst (614) 228-6885 syurik@lanealton.com

2. INTRODUCTION • Abused Aliens sometimes stay with an abusive spouse to avoid loss of legal status and deportation. • Protections provided by Federal Statutes make this unnecessary in many cases

3. STATUTORY PROTECTIONS • Violence Against Women(‘94), Battered Women Protection Acts (’00) • Abused spouses of U.S. Citizens (USCs) or Lawful Permanent Residents (LPRs) can self-petition to become LPR • Not dependent on USC or LPR spouse to obtain immigrant visa

4. Victims of Trafficking and Violence Protection Act of 2000 Created U Visas • U Visas – Available to Victims of substantial physical or mental abuse as a result of crimes

5. Immigration and the Family • USCs and LPRs can sponsor family members for LPR • LPRs defined • Most LPRs gain that status through family sponsorship • Immediate relatives of USC (spouses, unmarried children under 21, parents) • Not subject to statutory cap • Can apply for LPR upon marriage to USC

6. Immigration and the Family • Preference Immigrants • 1 – Unmarried sons & daughters of USC • 2A – Spouses and unmarried children under 21 of LPRs • 2B – Unmarried sons and daughters of LPR • 3 – Married sons and daughters of USC • 4 – Siblings of USCs • Wait time • 4-10 years for most aliens • Longer for Mexico, Philippines, China, India

7. Immigration and the Family • Process of Adjust of Status • I-130 Petition filed by USC or LPR spouse • Must establish own status; • And the qualifying family relationship • Can withdraw anytime before residency granted • I-485 Application for Adjustment of Status • Immediate relatives file immediately • Preference relatives must wait for priority date to become current (4-23 years)

8. Immigration and the Family Conditional Permanent Residency • LPR status is conditional when granted if married less than 2 years • Petition for removal of conditions 90 days before 2 year anniversary • Must prove good faith marriage • Documents • Joint purchases and accounts • Photographs • Interview

9. Potential for Abuse • Immigrant seeking legal status • Immigrant stays in abusive marriage to obtain or maintain LPR status • I-130 • Petition to Remove Conditions

10. Self Petition under VAWA • Criteria for Eligibility • Good faith marriage • Battered or subjected to extreme cruelty • Joint residence (past or present) • Current residence in U.S. • Good moral character • Abuser is or was USC or LPR

11. Self Petition Under VAWA • Divorce does not Disqualify if • Caused by battery or cruelty; • Petition filed within 2 years • Common disqualifiers don’t apply • Entry Without Inspection • Visa Overstay • Unlawful work

12. Self Petition Under VAWA • Evidentiary Standard – any credible evidence • Evidence of battery or cruelty • Medical records • Police reports • Court documents • Witness statements

13. Adjustment of Status (AOS) • Immediate Relatives • File for AOS simultaneously • Preference Immigrants • Wait for Priority Date • Eligible for Work Authorization

14. U Visas • To Encourage Exploited and Abused Illegal Aliens to Report Crimes • Undocumented can qualify • Doesn’t require marriage to LPR or USC • Provides path to legal status

15. Qualifying Criteria • Victims of Certain Crimes • Trafficking, kidnapping • Domestic violence, etc. • Suffered Substantial Abuse • Has information about the crime • Certified as helpful to the investigation or prosecution

16. Benefits of U Visas • Lawful Status • Employment Authorization • LPR status in some circumstances • Present in U.S. for 3 years after gain U status • Continued Presence justified on humanitarian, family unity or public interest grounds

17. Conclusion • Immigrants may be able to avail themselves of courts for divorce and keep or gain legal status • VAWA • U Visas