Civil Law Attorney – A Common Misconception
When it comes to individuals suffering from domestic violence at the hands of their U.S. citizen or permanent resident spouse or parent can file for immigration status without the abuser knowing or assisting. In that case an immigration lawyer will be the one that should assist with applying for permanent residency
The Violence Against Women’s Act (VAWA) was passed by Congress in 1994 and contains immigration-related provisions to protect noncitizen battered spouses, children and parents. VAWA allows certain spouses and children of U.S. citizens and lawful permanent residents (LPR) to apply by themselves, or “self-petition,” for permanent residency. Under VAWA, individuals suffering from domestic violence at the hands of their U.S. citizen or permanent resident spouse or parent can file for immigration status without the abuser knowing or assisting. The objective of the law is to provide an opportunity to individuals who have been battered or subject to extreme cruelty to obtain permanent residency safely and independently of a harmful relationship.
An individual, regardless of gender, may be eligible for VAWA protection if he or she is: (1) the abused spouse of a U.S. citizen or permanent resident; (2) the parent of a child who has been abused by the U.S. citizen or permanent resident spouse; or, (3) a child who has been abused by a U.S. citizen or permanent resident parent. Such individuals may be eligible to either self-petition for their lawful permanent residency by filing a Petition for Alien Relative (Form I-130) or through requesting that an Immigration Judge grant him or her what is known as cancellation of removal. If the individual was not married to his or her abuser, or if the abuser is not a lawful permanent resident or U.S. citizen, he or she may still qualify for protection under the U nonimmigrant visa category.
Normally, the U.S. citizen or lawful permanent resident spouse will start the paperwork necessary to obtain his or her spouse’s LPR status by filing the I-130 Petition with U.S. Citizenship and Immigration Services (USCIS). Once approved, an interview is scheduled for the couple and, if the paperwork is in order, the spouse is generally granted LPR status. However, in abusive relationships, the U.S. citizen or LPR sometimes uses his or her ability to control the immigration status of the spouse as another method of abuse. In order to protect such victims, VAWA permits them to petition for their residency without the consent or involvement of the abusive spouse. Additionally, battered spouses who have conditional permanent residency can have their conditional status removed before the two-year deadline for applying for permanent status by self-petitioning as well.
VAWA also permits cancellation of removal for those battered individuals who are in removal proceedings before the Immigration Judge. In order to be eligible for VAWA cancellation of removal, the individual must prove that he or she:
Has been battered or subject to extreme cruelty by a spouse who is or was a U.S. citizen or LPR;
Has been battered or subject to extreme cruelty by a parent who is or was a U.S. citizen or LPR;
Has been battered or subject to extreme cruelty by a U.S. citizen or LPR whom he or she intended to marry, but whose marriage is not legitimate because of the U.S. citizen or LPRs’ bigamy; or,
Is the parent of a child of a U.S. citizen or LPR and the child has been battered or subject to extreme cruelty by a parent who is or was a U.S. citizen or LPR.
Additionally, the individual must establish that he or she has three years continuous physical presence in the United States prior to filing the application, that he or she has no disqualifying criminal convictions and that removal would result in extreme hardship to him or herself and his or her child or parent(s). Finally, the individual must establish that good moral character. If the individual satisfies these criteria to the satisfaction of an Immigration Judge, he or she will be granted cancellation of removal and lawful permanent resident status.
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Victims of certain designated crimes in the United States who have consequently suffered physical or mental harm may be eligible for U visas. In order to qualify for a U visa, the individual must be willing to assist law enforcement officials in the investigation or prosecution of the underlying crime. Individuals who have been granted U visas may apply for permanent residency after three years of being in U visa status if they also meet certain requirements.
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