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How do I get Legal Status?

Some Battered Immigrants Because of the Abuse May Qualify to Obtain Legal Immigration Status Without Their Abuser's Help or Knowledge

There are five ways you or your child might qualify to obtain legal immigration status without your abuser's knowledge, help or control. Whether or not you qualify for legal immigration status because of the domestic violence and which form of immigration relief you qualify for will depend on who abused you, whether or not you are or were married to your abuser, whether it was your child who has been abused, the immigration status of your abuser, whether your spouse ever filed immigration papers for you and whether you came to the United States on a fiancé visa.

If you think you may qualify, seek help from an immigration lawyer or advocate who works with battered immigrant women or a battered women's advocate who has been trained on immigration protections for battered immigrants. These advocates and lawyers can help you determine whether you qualify to attain legal immigration status. You can find such person in you area by calling the telephone numbers provided in the resources section.

The 5 immigration options for battered immigrants are:

The self-petition under the Violence Against Women Act;
Cancellation of Removal under the Violence Against Women Act if you have been placed in deportation proceedings;
The battered spouse waiver;
The crime victims visa which is called a U visa; and
Gender-based asylum

Self-petitions Under the Violence Against Women Act (VAWA)

VAWA creates two ways for women and children to get their residency. The first is called "self-petitioning." Instead of depending upon your husband to apply for your residency with CIS, you can apply on your own for yourself and your children. VAWA lets abused women and children get lawful permanent residency without help from their abusive husbands or parents. Your husband will not be part of the application, and he does not have to know that you are applying on your own to CIS for legal permanent residency. Because the law can be hard to understand, you should not go to the CIS without first getting help from a shelter worker, immigration attorney, or one of the agencies listed on the back of this brochure.

If you are or were married and you or your child have been abused by your husband, you may qualify for help under the Violence Against Women Act (VAWA). VAWA is available to women and children whose abusive husbands or parents are U.S. citizens or lawful permanent residents. Unmarried children under the age of 21 who are being abused by a parent who is a citizen or a lawful permanent resident are also eligible for VAWA. If your citizen or lawful permanent resident spouse has abused your child, you may also qualify for VAWA even if you have not been abused yourself. If you do not know your abusive husband's or parent's immigration status, contact an immigration attorney who may be able to help you find out.

IF YOU ARE:

Married to a US citizen or a lawful permanent resident, or
Were divorced less than two years ago from a U.S. citizen or lawful permanent resident spouse; AND
You are living in the United States; or
You are living abroad and
you were abused in the United States; or
your abusive spouse is either an employee of the U.S. government or a member of the U.S. armed forces; AND
You were physically or sexually abused by your husband or you suffered extreme cruelty;

You may be able to get a "green card" (permanent residence in the United States) without your abuser's help or knowledge through the Violence Against Women Act (VAWA).

If your husband has never filed for your "green card," if he filed for your green card and then withdrew the application, or if he has filed but you fear he may not continue to help you get your "green card," you may be able to apply for a VAWA SELF-PETITION.

Abusers who are not citizens of the United States may be deported if convicted of domestic violence. If your husband was deported within the last two years, you may still petition under VAWA if you can show that his deportation was related to an incident of abuse.

VAWA Cancellation of Removal - Defense for Battered Immigrants Against Deportation

Sometimes battered immigrants who qualify for VAWA immigration relief are reported to CIS by their abusers or are picked up by CIS at their place of employment. For these battered immigrants, there is a second way that someone can get residency is called "cancellation of removal (formerly suspension of deportation)." This method is only available to you if you are in, or can be placed into, deportation/removal proceedings. To qualify:

You must have lived continuously in the United States for more than three years;
You must be in the United States illegally;
You or your child must have been battered or suffered extreme cruelty;
The person who battered or harmed you or your child by extreme cruelty must have been:
Your current or former spouse who is a U.S. citizen or lawful permanent resident;
Your citizen or lawful permanent resident parent; or
The citizen or lawful permanent resident other parent of your abused child;
You must have been abused in the United States; AND
You must prove that your deportation would cause extreme hardship to yourself or your child.

If you qualify, the court may waive your deportation/removal and grant you legal permanent residency. If you are granted cancellation of removal, any children under the age of 21 that you have whether living with you in the United States or living outside of the United States can receive humanitarian parole which gives them legal permission to live with you in the United States while you file applications for your children to receive legal immigration status.

Note: If you lose your VAWA cancellation case, you can be deported. If you are a battered immigrant and you end up in deportation proceedings before an immigration judge, call the numbers in the resources section to obtain help.

Battered Spouse Waiver

Some battered immigrant women are married to abusive spouses who did file immigration papers for them. If your U.S. citizen spouse filed immigration papers for you and you were married for less than two years on the date you went with your spouse to your interview with CIS. What you received from CIS is called "conditional temporary residency." This conditional residency lasts only for two years. At the end of that two-year period, you and your spouse are required to file joint petition requesting that you be granted lawful permanent residency. If you have conditional residency and are waiting during this two-year period, you may qualify to file a BATTERED SPOUSE WAIVER. You qualify for a battered spouse waiver if:

You have a conditional "green card" that lasts for two years;
You or your child have been battered or subjected to extreme cruelty by the citizen spouse; AND
You must prove that your marriage was valid.

You can file for a battered spouse waiver at any time. You need not wait for two years. Your batterer will not be able to find out that you filed the battered spouse waiver, and you can file even if you are still living with your abuser or if your abuser divorced you.

Crime Victim U Visas

In October of 2000, Congress created a new immigration remedy that can help many battered immigrants who do not qualify for either VAWA or the Battered Spouse Waiver. The U visa may be available to undocumented victims who have suffered substantial physical or mental abuse as a result of being the victims of certain crimes designated by the VTVPA (including domestic violence, rape, sexual assault, being held hostage and some other violent crimes) that violate federal, state, or local laws or have occurred while in the United States (including in Indian country and military installations) or its territories or possessions. To be eligible for a U visa, the victim must possess information concerning the crime, and the U visa petition must include a certification from a government official stating that the victim is helping, has helped, or is likely to be helpful in the investigation or prosecution of the crime.

Your abuser does not need to be a U.S. citizen or lawful permanent resident, and you do not have to have been married to the abuser to be eligible for a U visa.

CIS (formerly INS) has not issued regulations for applying for the U visa yet. Until the regulations are published, CIS is granting interim relief for those eligible for a U visa. This means that while you cannot apply for a U visa, you may be able to apply for temporary status until those regulations are issued. U-visa interim relief and employment authorizations are valid for one year. You must apply for an extension every year before the expiration of the current period

After three years, U visa holders may be eligible to adjust their status to that of lawful permanent residence in accordance with federal law and CIS regulations.

This visa will be especially helpful to battered immigrants who are abused by their boyfriends, girlfriends, or by their spouses or parents who are not citizens or lawful permanent residents. It will also help crime victims whose abusers are their employers, other family members or are strangers. The immigration status of the abuser does not matter. They can be undocumented, diplomats, persons with legal work visas, citizens or permanent residents.

Gender Based Asylum

In some cases battered immigrants may also qualify for a form of relief called gender based asylum. This will be the most difficult form of relief to obtain and victims who qualify must seek the assistance of an immigration lawyer with expertise in gender-based asylum. If you think you might qualify, contact one of the organizations listed in the resource section.

Persons who may qualify for gender-based asylum are:

Domestic violence victims who were abused in their home country and fled to the United States;
Domestic violence victims who are abused in the United States by someone comes from the same country as they do, particularly if their abuser is a non-citizen being prosecuted for a domestic violence crime; or
Immigrant women who experience gender based violence or persecution in their home country.

Some battered immigrants who will qualify for gender based asylum may also qualify for a U visa if the domestic violence was committed against them in the United States. They should consult with an immigration attorney to determine which form of immigration relief to pursue.

Special Issues for Women Who Met Their Spouses Through International Matchmaking Agencies

If your fiancé or spouse is a U.S. citizen whom you met through an international matchmaking agency, through an arranged marriage or if you entered the United States on a fiancé visa there are special immigration rules that you need to know about. If you were brought to the United States on a fiancé visa you must:

Marry the fiancé who brought you to the United States; and
You must marry your fiancé within 90 days of entering the United States on a fiancé visa.

If you fail to comply with either of these requirements you will not qualify for either the battered spouse waiver or to file a VAWA self-petition. If you entered the United States on a fiancé visa and our fiancé did not marry you, you married another citizen who is abusing you or if your fiancé married you after the 90 day period had passed, you must seek help from an immigration attorney who will help you learn what immigration benefits may be open to you as a battered immigrant.

Do not go to the CIS without a lawyer or talking to a lawyer:

YOU HAVE THE RIGHT TO CONSULT WITH AN IMMIGRATION ATTORNEY ABOUT IMMIGRATION OPTIONS THAT ARE AVAILABLE TO YOU. If you do not understand what your immigration status is, call an immigration attorney. Your conversation with the lawyer will be confidential and he or she cannot report you to the CIS.

If you cannot afford to pay a lawyer, contact the nearest domestic violence shelter or legal services office or call one of the organizations listed in the resource section for help finding advocates and/or a lawyer who can help you for free or at low cost.

IMPORTANT

If you are undocumented and planning to get a divorce, contact an immigration attorney before filing your divorce papers. A divorce may prevent you from attaining legal immigration status.