February 22, 2013
New immigrants, whether in lawful or unlawful status, are often vulnerable to abuses. The special cultural, economic, and legal background of the immigrants also sometimes creates difficulties for immigrants to protect their rights when they are victimized. For example, a conditional permanent resident, who obtained her status through marriage to a US citizen, might choose to silently endure abuse from her spouse, for fear that her failed marriage might threaten her green card. Fearing that she might be facing deportation proceedings, an undocumented individual might be hesitant to cooperate with the law enforcement after being victimized. In fact, the immigration laws, in consideration of this type of dilemma, provide many different kinds of benefits. If a victim can timely seek legal assistance, not only her current immigration status may not be affected, she may even acquire other special immigration statuses which may ultimately lead to permanent residence.
Violence Against Women Act – First it is important to point out that this Act is not limited to women only. It also covers male victims. In the context of immigration law, this Act covers immediate relatives of US citizens or permanent residents. A victim must prove that the abuse is from her US citizen or permanent resident spouse, parents, or US citizen sons and daughters. Such victim can independently file an I-360 petition with the immigration services. This petition has no requirement for the applicant’s immigration status. In other words, a person currently in deportation proceedings may also apply. If this petition is approved, and the applicant has no other grounds of inadmissibility, she can then apply for permanent resident status. If the applicant has grounds of inadmissibility, she may file a waiver application regarding those grounds of inadmissibilities. If the wavier is approved, she can also apply for permanent resident status.
For a conditional resident, this Act also provides relief. In general, a conditional resident must file I-751 petition within 90 days of the expiration date of the conditional resident status so that her condition can be removed. The normal procedure is a joint filing by the applicant and her US citizen spouse (or step parent). However, when there is domestic abuse, this requirement can easily become an effective weapon for the abuser. Based on this consideration, the immigration provisions allow an applicant, who is a victim of demotic abuse, to apply independently. Apart from that, she can apply anytime, regardless of the 90-day rule.
U visa – This nonimmigrant status is designed for victims of crimes taken place in the US. A victim must at least prove the followings: 1. The criminal act falls into the category listed under the immigration law and regulations; 2. The victim suffered severe physical or emotional injury; 3. The victim cooperated with the law enforcement in pursuing the perpetrators; 4. A law enforcement agency certifies that the victim provided or is providing assistance in the investigation of the crime. What’s notable is that “law enforcement” is broadly defined. It includes not only the police, prosecutors, but also judges, and in some occasions, the department of labor (e.g. in cases where a labor dispute lead to the discovery of forced labor). To qualify this nonimmigrant status, there is no requirement regarding an applicant’s current immigration status. If granted, a person can apply for permanent resident status after three years.
In conclusion, for an immigrant, regardless of her immigration status, it is highly recommended to timely seek legal assistance if she is victimized. An immigration attorney can assist in analyzing the potential benefit she may seek under the immigration law.
Note: this article does not constitute legal advice for any individual cases.
Ralph Hua
Attorney
