Monday, March 29, 2021
Jessica Alvarez Staff Reporter (2020 – 2021)
Immigrants—both undocumented and documented—are particularly vulnerable to crimes such as sexual assault, human trafficking, and domestic violence.¹ This vulnerability is attributed to factors including sense of isolation, fear of deportation, lack of understanding of laws, and fear of law enforcement.² In recent decades, Congress has enacted numerous pieces of legislation that provide protections to immigrant victims of crimes. This article breaks down some of those forms of protection and provides basic eligibility requirements for immigrant victims seeking relief.
Violence Against Women Act: Battered Spouses, Children, and Parents In 1994, Congress enacted the Violence Against Women Act (“VAWA”), which among other things, established immigration provisions for abused immigrants.³ Not only did VAWA address immigration-related problems faced by battered individuals, but it laid out the process for battered foreign national spouses and their children. Under this process qualifying spouses and children could substitute a self-petition for lawful status that was previously based on sponsorship by the abusive spouse.⁴ In 2005, VAWA was amended to include self-petitioning parents who suffered battery and extreme cruelty at the hands of their U.S. citizen sons and/or daughters.⁵
Abused spouses, children, and parents of U.S. citizens and permanent residents may self-petition for permanent status without the abuser’s knowledge, allowing them to seek both safety and independence from the abusive family member.⁶ Divorced spouses may also self-petition if the marriage to the abuser was terminated within two years prior to the filing of the petition, as long as the termination was related to the abuse.⁷ Generally, children may self-petition if they are under 21, however, they may also self-petition before age 25 as long as they demonstrate that the abuse was the main reason for the delay in filing.⁸ All self-petitioners must provide proof of the abuse, the relationship to the abuser, the legal status of the abuser, residence with the abuser, and proof of the self-petitioner’s good moral character.⁹ Self-petitioning spouses and former spouses must also demonstrate that they entered the marriage in good faith and not solely for immigration benefits.¹⁰ For more details on the filing process, please visit www.uscis.gov/i-360.
U-Nonimmigrant Status: Victims of Criminal Activity and T-Nonimmigrant Status: Victims of Human Trafficking In 2000, Congress enacted the Victims of Trafficking and Violence Protection Act (“VTVPA”) which created the U and T visa classes for immigrant victims of certain crimes.¹¹ Both visa classes provide temporary status to undocumented individuals as long as the individual cooperates with government officials in the reporting and prosecution of qualifying crimes.¹² Qualifying crimes generally include abduction, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage, incest, involuntary servitude, kidnapping, manslaughter, rape, sexual exploitation, torture, stalking, and other related crimes.¹³ This also includes attempt, conspiracy, or solicitation to commit any of previously mentioned crimes or related crimes.¹⁴
An individual may be eligible for U-nonimmigrant status if they are a victim of a qualifying crime, have suffered substantial physical or mental abuse as a result of being a victim of the crime, have information about the crime, were helpful or are likely to be helpful to law enforcement in the investigation or prosecution of the crime, the crime occurred in the U.S. or violated U.S. laws, and are admissible to the U.S.¹⁵ Certain family members may also be eligible to receive U-nonimmigrant status as derivatives.¹⁶ There is a limit of 10,000 U-visas granted to principal applicants each year.¹⁷ Once the cap is reached, U-visa applicants are placed on a waitlist until the following year.¹⁸
Fortunately, individuals on the waitlist may apply for deferred action or parole and are eligible for work authorization.¹⁹ For more details on the filing process, please visit www.uscis.gov/i-918. An individual may be eligible for T-nonimmigrant status if they are a victim of a severe form of such as sex trafficking of a minor or specific types of labor trafficking.²⁰ Like U-nonimmigrant status, certain qualifying family members may be eligible for T-nonimmigrant status.²¹
Sources
¹ Id. ² Id. ³ American Immigration Council, Violence Against Women Act (VAWA) Provides Protections for Immigrant Women and Victims of Crime (2019). ⁴ U.S. Citizenship and Immigration Services, Victims of Criminal Activity: U Nonimmigrant Status, USCIS, https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-othe... (last visited Feb. 28, 2021). ⁵ Id. ⁶ U.S. Citizenship and Immigration Services, Victims of Criminal Activity: T Nonimmigrant Status, USCIS, https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-othe... (last visited Feb. 28, 2021). ⁷ U.S. Citizenship and Immigration Services, Victims of Criminal Activity: T Nonimmigrant Status, USCIS, https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-othe... (last visited Feb. 28, 2021). ⁸ Id. ⁹ Id. ¹⁰ American Immigration Council, Violence Against Women Act (VAWA) Provides Protections for Immigrant Women and Victims of Crime (2019). ¹¹ National Immigration Project, Protecting Victims of Crimes Including Intimate Partner Violence and Workplace Crimes. ¹² Congressional Research Service, The Violence Against Women Act (VAWA): Historical Overview, Funding, and Reauthorization (2019). ¹³ Id. ¹⁴ U.S. Department of Homeland Security: U.S. Citizenship and Immigration Services, PM-602-0046, Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen; Revisions to Adjudicator’s Field Manual (AFM) Chapter 21.15(2011). ¹⁵ U.S. Citizenship and Immigration Services, Battered Spouses, Children and Parents, USCIS, https://www.uscis.gov/humanitarian/battered-spouse-children-and-parents/ (last visited Feb. 28, 2021). ¹⁶ Id. ¹⁷ Id. ¹⁸ American Immigration Council, Violence Against Women Act (VAWA) Provides Protections for Immigrant Women and Victims of Crime (2019). ¹⁹ U.S. Citizenship and Immigration Services, Battered Spouses, Children and Parents, USCIS, https://www.uscis.gov/humanitarian/battered-spouse-children-and-parents/ (last visited Feb. 28, 2021). ²⁰ Department of Homeland Security: U.S. Citizenship and Immigration Services, USCIS Publishes New Rule for Nonimmigrant Victims of Human Trafficking and Specified Criminal Activity, USCIS News Release (Dec. 8, 2008). ²¹ U.S. Citizenship and Immigration Services, Victims of Criminal Activity: U Nonimmigrant Status, USCIS, https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-othe... (last visited Feb. 28, 2021).
