Immigration & Domestic Violence FAQ

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Frequently Asked Questions (FAQ)

• Can an immigrant petition for lawful permanent residence without their spouse's help? (Read answer)
• What are the basic requirements for self-petitioning without a spouse's help? (Read answer)
• What if someone is not married to a LPR or a U.S. Citizen? They are a ...
  • refugee or asylee. (Read Answer)
  • crime victim. (Read Answer)
  • victim of trafficking with a non-immigrant status. (Read Answer)
• Is there any legal assistance available for immigrants? (Read Answer)
• But aren't immigrants ineligible for public benefits? (Read Answer)
• Additional resources for advocates

Can an immigrant petition for lawful permanent residence without their spouse's help?

Short Answer: There is a law that allows certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge.

Long Answer:

Generally, U.S. citizens (USC) and Lawful Permanent Residents (LPRs) file an immigrant visa petition with the Bureau of Citizenship and Immigration Services (BCIS) on behalf of a spouse or child, so that these family members may emigrate to or remain in the United States. BCIS Form I-130, Petition for Alien Relative is filed by the USC/LPR, the petitioner, on behalf of the family member who is the beneficiary. The petitioner controls when or if the petition is filed. Unfortunately, some U.S. citizens and LPRs misuse their control of this process to abuse their family members, or by threatening to report them to BCIS. As a result, most battered immigrants are afraid to report the abuse to the police or other authorities.

Under the Violence Against Women Act (VAWA) passed by Congress in 1994, the spouses and children of United States citizens or lawful permanent residents (LPR) may self-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge, in order to seek safety and independence from the abuser.

Victims of domestic violence should know that help is available to them through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD] for information about shelters, mental health care, legal advice and other types of assistance, including information about self-petitioning for immigration status.

What are the basic requirements for self-petitioning without a spouse's help?

For a self-petitioning child:

• Must qualify as the child of the abuser as "child" is defined in the INA for immigration purposes.
• Any relevant credible evidence that can prove the relationship with the parent will be considered.

For a self-petitioning spouse:

• Must be legally married to the U.S. citizen or lawful permanent resident batterer. A self-petition may be filed if the marriage was terminated by the abusive spouse's death within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.
• Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.
• Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.
• Is required to be a person of good moral character.
• Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

What if someone is not married to a LPR or a U.S. Citizen? They are a refugee or asylee.

Refugees and Asylees are eligible for public benefits.

Refugee and Asylee spouses retain their status and can adjust status on their own a) regardless of whether they remain married to their spouse, and b) even if the spouse does not adjust status.

There are many public programs, particularly in Florida, dedicated to serving Refugees and Asylees, including the Haitian Refugee Domestic Violence Program in Dade, Broward, Palm Beach, and Collier Counties.

What if someone is not married to a LPR or a U.S. Citizen? They are a crime victim.

Crime Victims are eligible for the U non-Immigrant Visa. However, the rules have not yet been issued for this visa, so it is necessary to consult with an immigration attorney or Bureau of Citizenship and Immigration Services (BCIS) for more information on filing for this status.

(U) 4aa/ (i) subject to section 214(o), an alien who files a petition for status under this subparagraph, if the Attorney General determines that--

1. the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);
2. the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);
3. the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and
4. the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States;

Clauses:

(ii) if the Attorney General considers it necessary to avoid extreme hardship to the spouse, the child, or, in the case of an alien child, the parent of the alien described in clause (i), the Attorney General may also grant status under this paragraph based upon certification of a government official listed in clause (i)(III) that an investigation or prosecution would be harmed without the assistance of the spouse, the child, or, in the case of an alien child, the parent of the alien; and

(iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes; or 4aa/

What if someone is not married to a LPR or a U.S. Citizen? They are a victim of trafficking with a non-immigrant status.

When VAWA was reauthorized in 2000, it was attached to the Trafficking Victims Protection Act, which formally made trafficking in persons a crime by combining slavery laws with laws regarding organized crime.

Trafficking victims are generally used for sexual or labor purposes and their immigration papers are often held hostage too, if they have immigration papers at all.

Victims of trafficking are eligible for a T-non-immigrant Visa, which allows them to remain in the United States if they can prove that they will suffer if they return to their home country and if they cooperate in the prosecution of their captors. This is a difficult visa to get, and it does not grant immigrant status, though it does give work authorization and public benefits eligibility and refugee services eligibility.

Learn more about the application process for this visa.

Is there any legal assistance available for immigrants?

The following are two assistance programs available in Florida:

Florida Immigrant Advocacy Center: LUCHA, a Women's Project

LUCHA: A Women's Legal Project is a membership organization which helps low income immigrant women and children overcome domestic abuse and empowers them to become active in the broader community. The word lucha in Spanish means "the struggle." LUCHA assists battered immigrant women with their individual struggles, while providing the vehicle for them to become involved in a larger struggle on behalf of other women.

LUCHA represents battered immigrant women married to US citizens or legal permanent residents and assists these women in legalizing their immigration status without the cooperation or participation of the abuser under the 1994 Violence Against Women Act (VAWA). LUCHA is the only project in Florida specializing in representation of battered immigrant women under the VAWA's immigration provisions. While LUCHA focuses in VAWA, LUCHA also provides representation to battered women who may have immigration relief under other laws.

You can contact FIAC's LUCHA Project at (305)573-1106.

Legal Aid Society of Palm Beach County, Immigrant Victims of Domestic Abuse Project

The Immigrant Victims of Domestic Abuse Project provides legal assistance to battered immigrants living in Palm Beach County. The Project assists immigrant victims who are married to U.S. citizens or green card holders to gain legal immigration status without the abuser's participation; to obtain restraining orders against their abuser; and to obtain divorce, child support and/or child custody from their abuser. Additionally, the Immigrant Victims of Domestic Abuse Project assists battered immigrants living in Palm Beach County who are not married to U.S. citizens or green card holders to obtain a U-Visa if the battered victim is helpful in the investigation and/or prosecution of a criminal domestic violence case against the abuser.

Immigrant victims of domestic abuse may contact Legal Aid at (561)655-8944 ext 254. The Legal Aid Society of Palm Beach County is a private, non-profit 501(c)(3) corporation. The Immigrant Victims Domestic Abuse Project is funded through the generosity of Equal Justice Works, Greenberg Traurig, LLP and the Florid Bar Foundation.

But aren't immigrants ineligible for public benefits?

Public Benefits Eligibility for Immigrant Victims of Domestic Violence - After 5 years in the U.S. and 40 quarters of work requirements, immigrants may be eligible for TANF. There are exceptions. Victims of domestic violence with approved VAWA self-petitions, victims of trafficking, and refugees and asylees are all eligible for public benefits. Click on the link for more comprehensive information regarding immigrant eligibility for public benefits.

Additional resources for advocates

Now Legal Defense and Education Fund Immigrant Women Program

The NOW Legal Defense and Education Fund recently launched the Immigrant Women Program (IWP) that strives to protect and expand the rights of immigrant women and their children. The overarching goal of the program is to enhance the legal rights and basic economic security of this traditionally underserved group. The program pursues policies on a broad scale to protect immigrant women who, as victims of domestic violence, "fall between the cracks" of both our legal safeguards and our welfare support systems. The initial focus of IWP is the creation of a legal, institutional, and policy framework that allows battered immigrant women to end the destructive role that domestic violence plays in their lives and allows all immigrant women to achieve economic self-sufficiency. The ultimate agenda of the program is to address from a women's rights perspective the larger complex of social and legal challenges faced by women who emigrate to the United States.

To contact NOW Legal Defense and Education Fund about the Immigrant Women Program, call Leslye Orloff or Janice Kaguyutan in Washington, D.C. at 202-326-0040 or email them at iwp@nowldef.org.

National Immigration Project of the National Lawyers Guild

The National Immigration Project provides information and technical assistance regarding immigration issues such as Domestic Violence VAWA petitions, U-Visas, and Trafficking, providing regular updates on legislation and action alerts for important immigration issues. The National Immigration Project has available legal training materials on the immigration provisions of the Violence Against Women Act (VAWA) that include copies of BCIS memos, practice pointers, and samples unavailable elsewhere. These resources are essential for attorneys and domestic violence advocates for immigrant survivors of domestic violence. Their materials are available for $50 (cost of copying and mailing only) for those who are interested.

To find out more about the National Immigration Project of the National Lawyers Guild, visit their website or contact the National Immigration Project's office in Boston, MA by e-mailing Sandy Lin at sandy@nationalimmigrationproject.org.