By Erin Hernandez, California Rural Legal Assistance Foundation, and Gillian Sonnad, Legal Services of Northern California
Self-Petitioning under the Violence Against Women Act
Charlie, an undocumented immigrant, has been subjected to shouting tirades, called countless obscenities, threatened with adverse immigration action and potential separation from his children, financially exploited, and socially isolated from friends and family members by the his lawful permanent resident wife. He walks on egg shells never knowing what to expect next. Are you able to help? The Legal Service Corporation (LSC) mantra of “no legal status, no legal service” has notable exceptions. Legal service entities funded by LSC are able to provide legal services to individuals who have been battered or subjected to extreme cruelty by their United States citizen or lawful permanent resident spouse, parent, or child.[1]
The immigration provisions of the Violence Against Women Act (VAWA) are an overlay to an already complex family-based immigration system. This portion of the article focuses on the self-petitioning process. There are also VAWA-based provisions concerning the removal of conditions on permanent residence, seeking naturalization, and special rule cancellation of removal.
United States citizens and lawful permanent residents are accorded the ability to “petition” for qualifying foreign family members. This is generally accomplished through the filing of an I-130 Petition for Alien Relative with supplemental documentation evidencing the status of the petitioner and the qualifying relationship between the petitioner and the beneficiary (the qualifying foreign family member). It is important to note that the family member with status must file the petition not the intending immigrant. Even after the successful adjudication of the petition, the intending immigrant will not be able to apply for permanent residency without the petitioner accepting financial responsibility for the intending immigrant. These requirements place an enormous amount of control in the hands of the petitioner who retains the right to retract the petition and may refuse to accept financial responsibility for the intending immigrant.
Before the implementation of the VAWA, individuals in Charlie’s situation were placed in the precarious situation of not being able to regularize immigration status independent of the abusive spouse with legal status. Fortunately for Charlie, the immigration provisions of VAWA allow him to self-petition for status as the abused spouse of a lawful permanent resident. The mechanism for doing so is by filing Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant with the Vermont Service Center of U.S. Citizenship and Immigration Services. There is no fee to file this form. Charlie must show: (1) the immigration status of his abuser, (2) a lawful marriage between his abuser and himself, (3) that Charlie entered the marriage in good faith, (4) that Charlie was subjected to “battery or extreme cruelty” by his spouse, (5) that Charlie has lived with his abuser, (6) that Charlie suffered abuse in the United States or was abused abroad by a spouse (who was employee of U.S. government or military), and (7) that Charlie is a person of good moral character.
When assisting an individual self-petitioning under the provisions of VAWA, the majority of the work involves collecting documents to evidence the above-listed requirements and drafting the client’s declaration. The client declaration is the mechanism for communicating the client’s version of events with U.S. Citizenship and Immigration Services (USCIS). The Vermont Service Center adjudicates the I-360 self-petition under VAWA based upon written submission. An interview conducted by an immigration officer is not part of the self-petitioning process. As such, due care should be taken with the client declaration and conflicting or adverse information should be addressed by the client in the client’s declaration.
Upon approval of the self-petition, an applicant will generally be placed in a deferred action status while waiting for his or her priority date to become current.[2] At this stage, Charlie is eligible to apply for work authorization as an individual granted deferred action. He will need to review his deferred action by written request to the Vermont Service Center or by renewing his employment authorization until his priority date becomes current.[3] When his priority date becomes current, Charlie will apply for adjustment of status to lawful permanent resident by filing Form I-485. After an interview with USCIS, Charlie will be granted status as a lawful permanent resident.
Applying for a U Nonimmigrant Visa
Linda, a young mother of two, came to the U.S. with her legal permanent resident spouse and lived with him and their children for several years. However, a few years ago she and her husband separated. Linda’s husband departed for their home country, leaving Linda and their children here alone. A year or so later, feeling lonely and bereft in a strange country with only a part-time job and limited English skills, Linda met a man through a friend. This man was nice to her; he bought her presents and told her she was beautiful. He would help pay bills when she was not able to due to her meager income and her children liked him a lot. After a few months as friends, Linda began dating him. At first things were normal and they had a loving relationship. But soon he became extremely possessive and jealous and started invading every aspect of her life. Soon this behavior escalated into physical and sexual violence which, combined with verbal abuse and financial exploitation, made Linda feel isolated and trapped. Finally his behavior reached an extreme and his treatment of Linda was reported and she was able to assist the police in apprehending him following a particularly egregious incident. Linda had been afraid to report the abuse because she is undocumented and worried that law enforcement involvement would lead to her deportation. Linda was referred to the local legal services program from the local domestic violence shelter.
As discussed above, the Violence Against Women Act provides an avenue for victims of domestic violence to seek legal status in the U.S. However, one important requirement for a VAWA petition is that the victim was married to the abuser. In Linda’s case, she was in an intimate relationship, but she was not married to her abuser and thus would not qualify to petition under VAWA. However, this does not meant that Linda has no chance of applying for legal immigration status. The U Nonimmigrant Visa provides an alternate avenue for victims of domestic violence (and other crimes) to apply for legal status in the U.S. LSC programs are specifically authorized to assist clients with U visas, in addition to the important provision which allows extensive services to victims of domestic violence.
In order to qualify for a U-Visa, a client (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) must have “suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity; must possesses information concerning that criminal activity; have been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; have certification from a Federal, State, or local law enforcement authority certifying his or her helpfulness in the investigation or prosecution of the criminal activity; and the criminal activity involved must have violated the laws of the United States or occurred in the United States.”[4] The client must also be generally admissible to the U.S. or obtain a waiver for any grounds of inadmissibility.[5]
To apply, a client must submit Form I-918, “Petition for U Nonimmigrant Status” which includes the all important law enforcement certification supplement, Supplement B to Form I-918. A declaration and any additional documentation regarding eligibility criteria as well as identification documents and the proper fee or a fee waiver request are required as well. All of this is submitted to the Vermont Service Center just as a VAWA petition is. If your client is approved they will receive a notice of action saying such and then there are several things that you should impart to your client. First, traveling out of the country is risky and can raise additional issues with inadmissibility. Also, your client has a continuing obligation to cooperate with law enforcement regarding the criminal activity which is the basis of their application. Finally, they need to know that in order to apply for permanent residency after receiving a U-Visa they will need to show that they have three years’ continuous physical presence in the U.S. They will need to document this extensively so should keep copies of utility bills and other paperwork which will corroborate their time in the U.S..
Like most immigration work, applying for a U-Visa requires diligence and attention to detail, but unlike the VAWA petition, a U-Visa application can take less time to put together and has fewer requirements. The U-Visa provides a much needed avenue for victims of crime, particularly victims of domestic violence where the perpetrator is undocumented. We will be assisting Linda submit her U-Visa application in the next few months and she hopes that if she and her derivative children are granted that they will be able to lead a more stable and hopeful life in the U.S.
Though it may seem daunting, working with victims of domestic violence to apply for VAWA and U-Visa status is very rewarding and important work for LSC-funded programs and advocates to take part in. Our programs are often the only affordable option for many immigrants, particularly victims of domestic violence. And we are uniquely positioned to develop important community partnerships with local domestic violence centers and other community organizations where these victims may make first contact with someone who can help them out of their situation. LSC advocates, in partnership with local domestic violence services providers can play a crucial role towards stemming violence against undocumented people in their service areas.
[1] VAWA 2006 Amendments and LSC Program Letter 06-2.
[2] Individuals self-petitioning in removal proceedings will not be given deferred action. As a practical matter for individuals in removal proceedings, if the self-petition will not give the individual a current priority date this will not provide an adequate defense against removal.
[3] If the abuser had been a United States citizen, the individual could have filed an adjustment application and application for work authorization with the self-petition, gaining access to a work permit prior to the adjudication of the self-petition.
[4] INA § 101(a)(15)(U).
[5] INA § 214(a)(1); 8 CFR § 214.1(a)(3)(i).
