Immigration Options for Victims of Domestic Violence
An application for permanent residency based on family requires spousal support or the support of a parent or child who is a US citizen or a legal permanent resident (LPR). However, what about those sponsors, partners, or spouses who are abusive, violent, threatening, and all-around tormenting?
Domestic violence is not a new problem, but over the past several decades, the issue has grown increasingly prevalent. Federal law defines domestic violence as abusive and threatening behavior or acts between intimate partners, spouses, or other individuals with whom one shares a child, lives with, or has previously cohabitated. According to the US Justice Department, protections from a particular person’s acts are provided under domestic or family violence laws in the appropriate jurisdictions.
However, threats of potential deportation or other immigration-related consequences can make nonvictims of domestic violence feel even more muted, powerless, and trapped. Is it possible for an immigrant family member to escape an abusive relationship without damaging their immigration status?
Options For Immigrants Suffering Domestic Abuse
US immigration law does acknowledge the challenges, risks, and hardships that come with the fear of immigration concerns. Individuals experiencing real and threatening domestic violence have some remedies under these laws.
There are resources and options available to victims of domestic violence through VAWA (Violence Against Women Act).
Aside from legal protections, VAWA may also help victims obtain a green card separate from the abuser if they meet the eligibility criteria.
Note: Intimate relationship abuse and violence, including violence against same-sex partners, are protected by law. Legal marriage between same-sex partners and common-law marriages are valid under VAWA. Men and women alike are protected.
Legal Permanent Residency Through Self-Petition Under VAWA
Generally, immigrant spouses of US citizens (USC) or LPRs require sponsorship in obtaining legal permanent residency. The vast majority of family immigrations are sponsored by close family members (immediate relatives, spouses, children, and partners). In contrast, domestic violence victims and dependent children may request relief under the law, allowing them to “self-petition” or submit their own application for permanent residence.
Note: Adding your children as derivative beneficiaries require that they are under 21 years old and not married at the time of filing.
Under VAWA, immigrants who have experienced domestic violence have access to three types of relief:
Abused immigrant victims may be entitled to “self-petition” for legal permanent residency without the participation and consent of the abuser.
- If your abuser was your spouse, who is a USC or LPR, you may qualify for eligibility to self-petition for LPR without the involvement of the abuser. Furthermore, the above applies if your spouse abused your child(ren).
- If the abuser is your parent or stepparent and a USC or LPR, you may be eligible for self-petitioning.
- Lastly, if the abuser was your adult son or daughter and an American citizen or LPR, you may be eligible under VAWA.
What is the “Joint Filing” requirement; can you have it waived as a battered spouse or child?
Immigrants with conditional permanent residence and who are victims of abuse are eligible for protection under VAWA utilizing the battered spouse or battered child waiver.
Immigrants married to US citizens (or to LPRs) approaching the two-year mark of your marriage or the issuance of your green card should apply for removal of the “conditions” (as well as for your children should you have any). The paperwork (Form I-751 or Petition to Remove Condition) is typically filed within the 90-day window ahead of your green card’s second anniversary (i.e., the expiration of permanent residence). To lawfully submit for the removal, your spouse, who previously filed the original application on behalf of your status, must provide and sign a “joint petition.”
Usually, the process must be completed when an immigrant gets a green card based on a marriage less than two years old.
Domestic violence can, however, lead to the abusive spouse refusing to file a joint petition or using it as a mechanism to inflict further abuse and control over you. Fortunately, Congress enacted VAWA as a safe path forward for instances of such abuse; the battered spouse and child waiver. If you’re an immigrant living in an abusive situation and cannot file a joint petition with your respective abusive spouse or parent, you may be eligible for an abuse waiver.
To qualify for such a waiver, an immigrant must demonstrate the following:
- As a spouse (and in other instances as the child) of a USC or LPR, you were granted conditional legal permanent resident status.
- In good faith, you entered the marriage that led to your conditional lawful permanent residence.
- The USC/LPR spouse abused or subjected you or your child to extreme forms of cruelty within the duration of your marriage. Being threatened or a victim of violence, being detained forcibly causing bodily injury or mental distress or anguish, or having been raped, molested, trafficked, or forced into prostitution are all examples of such cruelty.
- In the case of children, witnessing violence and brutality of this degree can also qualify as abuse.
Protections from Deportation
Courts can grant protection from removal if an immigrant faces removal (deportation) due to immigration violations. The legal remedy obtained in Immigration Court is called “cancelation of removal.” For cancellation of removal to be granted, an immigrant shall have resided in the United States for ten years, exhibit good moral character, and exhibit extreme and exceptionally unique hardship. Exceptions are made for victims and dependent children in instances surrounded by abuse. For example, the requirement regarding the length of residence is lessened in most cases to only three years.
There are legal protections if you are living with abuse but are worried about how your immigration status might be affected. Contact an experienced and compassionate immigration attorney immediately and know you are not alone.
Contact an Inland Empire Immigration Lawyer at Castillo & Associates
At Castillo & Associates, our immigration attorneys are proud to represent individuals and families throughout the Inland Empire and including San Bernardino County, San Diego County, Riverside County and Los Angeles County. Your immigration status is too important to trust just any law firm. You need a law firm with the experience and resources needed to tackle these complex cases.
Call us today at 1-800-497-9774 or fill out our confidential contact form. We offer a free 15 minute consultation regarding your immigration matter, after which there will be a consultation fee. We want to meet with you to discuss your case personally — don’t delay! With five offices located in Indio, San Diego, Cathedral City, Riverside, and Pomona, we are here whenever and wherever you need us most.
Attorney Domingo Castillo handles workers’ compensation, personal injury, family law & immigration throughout Southern California from our 5 offices: Indio, Pomona, Riverside, San Diego & Cathedral City. We help clients file injury claims, obtain residency & citizenship, and we assist families through divorce, child custody and all family law matters.
