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Legal Protections for Abused Aliens: VAWA & U Visas Stephen B. Yurik Lane Alton & Horst (614) 228-6885

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Presentation on theme: "Legal Protections for Abused Aliens: VAWA & U Visas Stephen B. Yurik Lane Alton & Horst (614) 228-6885"— Presentation transcript:

1 Legal Protections for Abused Aliens: VAWA & U Visas Stephen B. Yurik Lane Alton & Horst (614)

2 INTRODUCTION Abused Aliens sometimes stay with an abusive spouse to avoid loss of legal status and deportation. Abused Aliens sometimes stay with an abusive spouse to avoid loss of legal status and deportation. Protections provided by Federal Statutes make this unnecessary in many cases Protections provided by Federal Statutes make this unnecessary in many cases

3 STATUTORY PROTECTIONS Violence Against Women(‘94), Battered Women Protection Acts (’00) Violence Against Women(‘94), Battered Women Protection Acts (’00) Abused spouses of U.S. Citizens (USCs) or Lawful Permanent Residents (LPRs) can self-petition to become LPRAbused spouses of U.S. Citizens (USCs) or Lawful Permanent Residents (LPRs) can self-petition to become LPR Not dependent on USC or LPR spouse to obtain immigrant visa Not dependent on USC or LPR spouse to obtain immigrant visa

4 Victims of Trafficking and Violence Protection Act of 2000 Created U Visas U Visas – Available to Victims of substantial physical or mental abuse as a result of crimesU Visas – Available to Victims of substantial physical or mental abuse as a result of crimes

5 Immigration and the Family USCs and LPRs can sponsor family members for LPR USCs and LPRs can sponsor family members for LPR LPRs definedLPRs defined Most LPRs gain that status through family sponsorshipMost LPRs gain that status through family sponsorship Immediate relatives of USC (spouses, unmarried children under 21, parents) Immediate relatives of USC (spouses, unmarried children under 21, parents) Not subject to statutory capNot subject to statutory cap Can apply for LPR upon marriage to USCCan apply for LPR upon marriage to USC

6 Immigration and the Family Preference Immigrants Preference Immigrants 1 – Unmarried sons & daughters of USC1 – Unmarried sons & daughters of USC 2A – Spouses and unmarried children under 21 of LPRs2A – Spouses and unmarried children under 21 of LPRs 2B – Unmarried sons and daughters of LPR2B – Unmarried sons and daughters of LPR 3 – Married sons and daughters of USC3 – Married sons and daughters of USC 4 – Siblings of USCs4 – Siblings of USCs Wait time Wait time 4-10 years for most aliens4-10 years for most aliens Longer for Mexico, Philippines, China, IndiaLonger for Mexico, Philippines, China, India

7 Immigration and the Family Process of Adjust of Status Process of Adjust of Status I-130 Petition filed by USC or LPR spouseI-130 Petition filed by USC or LPR spouse Must establish own status; Must establish own status; And the qualifying family relationship And the qualifying family relationship Can withdraw anytime before residency granted Can withdraw anytime before residency granted I-485 Application for Adjustment of StatusI-485 Application for Adjustment of Status Immediate relatives file immediately Immediate relatives file immediately Preference relatives must wait for priority date to become current (4-23 years) Preference relatives must wait for priority date to become current (4-23 years)

8 Immigration and the Family Conditional Permanent Residency LPR status is conditional when granted if married less than 2 yearsLPR status is conditional when granted if married less than 2 years Petition for removal of conditions 90 days before 2 year anniversaryPetition for removal of conditions 90 days before 2 year anniversary Must prove good faith marriageMust prove good faith marriage Documents Documents Joint purchases and accountsJoint purchases and accounts PhotographsPhotographs Interview Interview

9 Potential for Abuse Immigrant seeking legal status Immigrant seeking legal status Immigrant stays in abusive marriage to obtain or maintain LPR status Immigrant stays in abusive marriage to obtain or maintain LPR status I-130 I-130 Petition to Remove ConditionsPetition to Remove Conditions

10 Self Petition under VAWA Criteria for Eligibility Criteria for Eligibility Good faith marriageGood faith marriage Battered or subjected to extreme crueltyBattered or subjected to extreme cruelty Joint residence (past or present)Joint residence (past or present) Current residence in U.S.Current residence in U.S. Good moral characterGood moral character Abuser is or was USC or LPRAbuser is or was USC or LPR

11 Self Petition Under VAWA Divorce does not Disqualify if Divorce does not Disqualify if Caused by battery or cruelty;Caused by battery or cruelty; Petition filed within 2 yearsPetition filed within 2 years Common disqualifiers don’t apply Common disqualifiers don’t apply Entry Without InspectionEntry Without Inspection Visa OverstayVisa Overstay Unlawful workUnlawful work

12 Self Petition Under VAWA Evidentiary Standard – any credible evidence Evidentiary Standard – any credible evidence Evidence of battery or cruelty Evidence of battery or cruelty Medical recordsMedical records Police reportsPolice reports Court documentsCourt documents Witness statementsWitness statements

13 Adjustment of Status (AOS) Immediate Relatives Immediate Relatives File for AOS simultaneouslyFile for AOS simultaneously Preference Immigrants Preference Immigrants Wait for Priority DateWait for Priority Date Eligible for Work Authorization Eligible for Work Authorization

14 U Visas To Encourage Exploited and Abused Illegal Aliens to Report Crimes To Encourage Exploited and Abused Illegal Aliens to Report Crimes Undocumented can qualifyUndocumented can qualify Doesn’t require marriage to LPR or USCDoesn’t require marriage to LPR or USC Provides path to legal statusProvides path to legal status

15 Qualifying Criteria Victims of Certain Crimes Victims of Certain Crimes Trafficking, kidnappingTrafficking, kidnapping Domestic violence, etc.Domestic violence, etc. Suffered Substantial Abuse Suffered Substantial Abuse Has information about the crime Has information about the crime Certified as helpful to the investigation or prosecution Certified as helpful to the investigation or prosecution

16 Benefits of U Visas Lawful Status Lawful Status Employment Authorization Employment Authorization LPR status in some circumstances LPR status in some circumstances Present in U.S. for 3 years after gain U statusPresent in U.S. for 3 years after gain U status Continued Presence justified on humanitarian, family unity or public interest groundsContinued Presence justified on humanitarian, family unity or public interest grounds

17 Conclusion Immigrants may be able to avail themselves of courts for divorce and keep or gain legal status Immigrants may be able to avail themselves of courts for divorce and keep or gain legal status VAWAVAWA U VisasU Visas


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