Immigration Relief
for Battered Immigrants
ISLA
Immigrant Survivors’ Legal Aid
(510) 267-8845
info@islabay.org
Unique Challenges Facing
Abused Immigrants
• Lack of Knowledge Regarding the
American Legal System
• Fear of Deportation
• Language Barriers
• Cultural Barriers to Seeking Help
• Inability to Work Legally
• Precarious Immigration Status
IMMIGRATION RELIEF FOR
BATTERED IMMIGRANTS
• Violence Against Women Act (VAWA) SelfPetition
• U Visa
• VAWA Cancellation of Removal
• Battered spouse waiver of joint petition
requirement
• Gender-related asylum
• Special Immigrant Juvenile Status
Benefits of Immigration Relief
• Lawful immigration status
• Lawful work authorization
• Some applicants are eligible for
public benefits like CalWORKs and
full scope MediCal
WHO CAN SELF-PETITION
UNDER VAWA
• Abused Spouse of U.S. Citizen or
Permanent Resident (current or divorce
due to abuse)
• Non-abused Spouse of U.S. Citizen or
Permanent Resident whose child is
abused by spouse
• Child of U.S. Citizen or Permanent
Resident
• Parent of adult U.S. Citizen
SELF-PETITIONER MUST PROVE
• Relationship to abuser: spouse, child,
parent
• Abuser is U.S. citizen or permanent
resident
• Abuse during marriage or parent/child
relationship (battery or extreme cruelty)
• Applicant lived with abuser
• Applicant lives in U.S.
• Applicant has good moral character
SELF-PETITION PROCESS
• Determine eligibility
• Submit self-petition and documentation of
eligibility (lots of it). If USC abuser, apply for
permanent residence and work authorization
• 4-6 weeks later: prima facie eligibility
determination
• 6-9 months: approval and eligibility for work
authorization
• Renew VAWA and work authorization every year
• Application for permanent status (may be 5-10
years): show that applicant is “admissible”
U Nonimmigrant Status
(The U Visa)
BENEFITS
– Nonimmigrant status in U.S. for 3 years
– Employment authorization
– “Derivative” nonimmigrant status for
(nonabuser) spouse, minor children, plus
parent or siblings of child victim
– Can apply for permanent residence after 3
years
– CalWORKs, Medi-Cal eligibility
– Deportation process terminated
U VISA QUALIFICATIONS:
Victim of Certain Criminal Activity
A victim of certain criminal activity: Rape,
torture, trafficking, incest, domestic
violence, sexual assault, abusive sexual
contact, sexual exploitation,hostage
taking, involuntary servitude, kidnapping,
false imprisonment,manslaughter, murder,
felonious assault, obstruction of justice,…
AND attempt, conspiracy, or solicitation to
commit any above-listed crime, or similar
activity
Applicant is/was “Helpful”
- Applicant has information and
– Is OR was OR is likely to be
helpful to the
– Investigation OR prosecution of
crime
Applicant Suffered
“Substantial Abuse”
USCIS will analyze:
– Nature, Severity, Duration of Injury
– Harm Suffered, including aggravation of
existing condition (or pattern of abuse)
– Severity of Perpetrator’s Conduct
– Seriousness of Harm to Appearance, Health,
Physical or Mental Soundness
Law Enforcement Certification
o Law Enforcement agency must certify that
applicant has been or is being helpful in
investigation or prosecution of the criminal
activity.
o Each LEA must designate certifying agent
o “Agency” includes police, sheriff, prosecutor,
other administrative agency with capacity to
investigate criminal activity, including CPS,
EEOC, DOL
Applicant is Admissible
• No immigration or criminal
problems or threat to public
health or safety UNLESS
• Applicant can prove that it is in
public interest to get U visa
U Visa Application
• I-918 Form for principal applicant. No fee for I-918
• I-918 Supplement B must be completed and
signed by Law Enforcement Agency. Certifying
Agent specifically designated by the Agency Head.
•
•
•
•
Declaration of applicant
Evidence of “helpfulness”
Evidence of substantial abuse
Application for waiver of grounds of inadmissibility.
– Documentation depends on seriousness of violation
• I-918 Supplement A must be filed for each
derivative beneficiary
– Must qualify as a derivative at time of filing
VAWA Cancellation of Removal
Grant by Immigration Judge
Who is Eligible:
Abused Spouse of U.S. Citizen or Permanent Resident
–
–
•
Includes “spouse” definition from VAWA Self Petition Process
Includes parent of abused child who is not spouse of abuser (broader than VAWA self petition)
Abused “sons and daughters”.
–
–
–
Includes “child” definition from VAWA Self Petition Process
Includes “sons and daughters” over 21
No “derivative beneficiary”
What Applicant Must Show
•
Has been battered or suffered extreme cruelty
•
Has been physically present in U.S. for 3 years before applying
•
Extreme Hardship to immigrant herself, or her child or parent if she were removed
•
Has been a person of Good Moral Character for 3 years
•
Is not inadmissible for
–
–
–
Crimes
Marriage Fraud
Security
Process: Application can only be filed in Removal Proceedings before an Immigration Judge.
•
If eligible to Self Petition, file petition with CIS VSC
•
If not eligible to Self Petition, file application with court
•
Other relief possible, including adjustment of status
BATTERED SPOUSE EXCEPTION TO
JOINT PETITION REQUIREMENT
• Applies to “conditional permanent residents” who gained legal
residence through a marriage to a U.S. citizen that occurred
less than two years earlier.
• Condition must be removed by petition jointly filed by both
spouses
• Joint Filing requirement may be waived if:
– U.S. citizen subjects conditional resident to battery or
extreme cruelty
– Failure to remove condition (that is, termination of status)
would result in extreme hardship to conditional resident
– Couple divorces, but conditional resident can prove
marriage was entered into in good faith
• Waiver may be filed at any time
• Showing of good faith marriage and abuse very similar to
VAWA self petition.
GENDER-RELATED ASYLUM for
ABUSE OUTSIDE THE U.S.
• Well founded fear of persecution in home country on account of
race, religion, social group, ethnicity, political opinion (or imputed
political opinion).
• Domestic or gender violence is not a specific ground for asylum
– Must argue case within one of specifics grounds (e.g. social
group)
• Must not have had option for safety elsewhere before coming to
U.S.
• Home government must have been perpetrator, or been unable or
unwilling to protect
• Generally must apply within one year of entry to U.S. or dramatic
change in conditions
SPECIAL IMMIGRANT JUVENILE
STATUS
• Eligible Child under 21 and unmarried
– Under jurisdiction of juvenile court with declaration
that child is dependent on court of legally committed
to state department or agency.
– Child must remain under jurisdiction until SIJS
process is complete
• Court Order that:
• Child cannot be reunified with parent because of abuse,
neglect, or abandonment AND
• Not in child’s best interest to be returned to home country
IMMIGRANTS AND PUBLIC
BENEFITS
• Is someone with this immigration status
eligible for the relief?
• Will receiving the benefit cause problems
with the “public charge” ground of
inadmissibility?
– “Totality of Circumstances” Standard: is
person likely to be primarily dependent on
public benefits to maintain the basic needs of
her household
Public Charge:
Relevant Questions
– Is the person planning to apply for permanent
resident status soon?
– If so, will circumstances have changed so that
she will no longer need public benefits at the
time of her interview?
What Counts in “Totality of
Circumstances”
• The US citizen or permanent resident who filed a family
petition for the immigrant must file a binding Affidavit of
Support (I-864) which obligates him/her to repay any
public benefits received by the immigrant. This I-864 is
counted as a significant part of the “totality of
circumstances” test.
• Non-cash benefits (like Medi-Cal) don’t count in this
analysis. (see “INS” explanation of exempted benefits)
• Benefits received by a US citizen child are not benefits
received by the parent for public charge purposes
(unless the family depends primarily on those benefits to
maintain basic needs of the household).
Victims of Trafficking and other Serious
Crimes in CA (SB 1569)
• If they meet other requirements for the
benefit, U Visa Applicants can get:
– Full-Scope Medi-Cal
– State Food Stamps
– CalWORKs job development, day care and cash benefits
• USCIS says: “receipt of public benefits will not
adversely impact a U Nonimmigrant or U-based
Adjustment of Status application”
• If otherwise ineligible for CalWORKs, may
qualify for Refugee Cash Assistance
– 8 months of cash benefits
Social Security Numbers
• SB 1569 applicants/participants are not
required to provide SSN
• Do not refer to SSA
• Do not deny aid due to lack of SSN
• Benefits Officials Must assist
• battered noncitizens (including VAWA) and
• ORR-certified trafficking victims
without SSN to apply for non-work SSN