Immigration Options for Victims of Domestic Violence

Sep 22, 2014 | Domestic Violence

Miami immigration lawyers often face a disturbing conundrum. Many of us meet with immigrants who are victims of domestic violence. These immigrants are particularly vulnerable because many may not speak English, are often separated from family and friends, and may not understand the laws of the United States.  For these reasons, immigrants are often afraid to report acts of domestic violence to the police or to seek other forms of assistance.  Such fear causes many immigrants to remain in abusive relationships.  Below are some commonly asked questions about domestic violence.

Q.   What is domestic violence?

A.   Domestic violence is a pattern of behavior when one intimate partner or spouse threatens or abuses the other partner.  Abuse may include physical harm, forced sexual relations, emotional manipulation (including isolation or intimidation), and economic and/or immigration-related threats.  While most recorded incidents of domestic violence involve men abusing women or children, men can also be victims of domestic violence.

Domestic violence may include sexual assault, child abuse and other violent crimes. Sexual assault is any type of sexual activity that you do not agree to, even with your spouse, and can be committed by anyone.  Child abuse includes: physical abuse (any injury that does not happen by accident, including excessive punishment), physical neglect (failure to provide food, shelter, medical care or supervision), sexual abuse, and emotional abuse (threats, withholding love, support or guidance).

Under all circumstances, domestic violence, sexual assault and child abuse are illegal in the United States.  All people in the United States (regardless of race, color, religion, sex, age, ethnicity, national origin or immigration status) are guaranteed protection from abuse under the law. Any victim of domestic violence – regardless of immigration or citizenship status – can seek help.  An immigrant victim of domestic violence may also be eligible for immigration related protections.  If you, or a loved one is an immigration victim of domestic violence, I would highly suggest that you contact a Miami immigration lawyer to discuss your options.

Q.    What are the legal rights for victims of domestic violence in the United States?

A.    All people in the United States, regardless of immigration or citizenship status, are guaranteed basic protections under both civil and criminal law.  Laws governing families provide you with:

  • The right to obtain a protection order for you and your child(ren).
  • The right to legal separation or divorce without the consent of your spouse.
  • The right to share certain marital property.  In cases of divorce, the court will divide any property or financial assets you and your spouse have together.
  • The right to ask for custody of your child(ren) and financial support.  Parents of children under the age of 21 often are required to pay child support for any child not living with them.

Under U.S. law, any crime victim, regardless of immigration or citizenship status, can call the police for help or obtain a protection order.

Call the police at 911 if you or your child(ren) are in danger.  The police may arrest your fiancé(e), spouse, partner, or another person if they believe that person has committed a crime.  You should tell the police about any abuse that has happened, even in the past, and show any injuries.  Anyone, regardless of immigration or citizenship status, may report a crime.

Likewise, if you are a victim of domestic violence you can apply to a court for a protection order. A court-issued protection order or restraining order may tell your abuser not to call, contact or hurt you, your child(ren), or other family members.  If your abuser violates the protection order, you can call the police.  Applications for protection orders are available at most courthouses, police stations, women’s shelters and legal service offices.

If your abuser accuses you of a crime, you have basic rights, regardless of your immigration or citizenship status, including: the right to talk to a lawyer; the right to not answer questions without a lawyer present; the right to speak in your defense. As a Miami immigration lawyer who also practices criminal law, I would caution one to speak with both an immigration lawyer, and a criminal lawyer to understand all options available to you.

Q.    If I am a victim of domestic violence, sexual assault or other crime, what immigration options are available to me?

A.    There are three ways immigrants who become victims of domestic violence, sexual assault and some other specific crimes may apply for legal immigration status for themselves and their child(ren). A victim’s application is confidential and no one, including an abuser, crime perpetrator or family member, will be told that you applied.

  • Self-petitions for legal status under the Violence Against Women Act (VAWA)
  • Cancellation of removal under VAWA
  • U-nonimmigrant status (crime victims)

These immigration benefits each have specific requirements that must be established.  Consult a Miami immigration lawyer who works with victims of domestic violence to discuss how any of these immigration benefits may affect or assist you.

Q.    How does the marriage-based immigration process work?

A.    The marriage-based immigration process involves several steps to obtain legal immigration status in the United States, and over time, to be eligible for citizenship.  These steps depend on the type of marriage-based visa you travel on to the United States, as well as other factors.  The following information is an overview of some of these types of visas, as well as information on your legal rights.

K-1 nonimmigrant status (as the fiancé(e) of a United States citizen). You are required to either marry the United States citizen within 90 days of entry or to depart the United States.  Following your marriage to the U.S. citizen who petitioned for you, you must file an Application to Register Permanent Residence or Adjust Status (Form I-485).  If your Form I-485 is approved, your status will be adjusted from a K nonimmigrant to that of a conditional permanent resident.  You will have that conditional status for two years.

If you remain in the U.S. without marrying the U.S. citizen who sponsored your K-1 visa, or marry someone else, you will violate the terms of your visa, have no legal status, and may be subject to removal proceedings or other penalties.

K-3 nonimmigrant status (as the spouse of a United States citizen). You are allowed to enter the United States temporarily while waiting for approval of a family-based visa petition (Form I-130).  Once the Form I-130 is approved, you are entitled to lawful permanent residence (a “green card”) and will need to file an Application to Register Permanent Residence or Adjust Status (Form I-485).

Q.    What are the penalties for marriage fraud?

A.    Immigrants cannot receive immigration benefits if they knowingly enter into a marriage for the purpose of evading immigration law or solely for an immigration benefit.  Conviction for marriage fraud can involve imprisonment for up to five (5) years and fines up to $250,000 (U.S. currency).  Immigrants who commit marriage fraud may be removed from the United States and may be permanently barred from future immigration benefits in the United States.

Q.    If I am married to a U.S. citizen who filed immigration papers on my behalf, what is my immigration status?

A.    If you have been married less than 2 years when your Form I-485 is approved, you will receive a conditional permanent residence status or “green card” from USCIS.  Ninety (90) days before the second anniversary of your conditional residence, you and your spouse must apply together to remove the conditions on your lawful residence.  To do so, you must prove the marriage is in “good faith” and valid.  Once the conditions are removed, you have permanent residency that is not dependent on your U.S. spouse.

If you have been married more than 2 years when your Form I-485 is approved, you will receive permanent residence status from USCIS.  On that date you will no longer be dependent on your U.S. citizen spouse for immigration status.

There are three situations when the law allows conditional residents the option to request a waiver of the requirement that you and your spouse file jointly to request removal of the conditions. 1) The removal of a conditional resident from the U.S. would result in extreme hardship; OR 2) The marriage was legally terminated, other than by death, and the applicant was not at fault for failing to file a timely application to remove the conditional residency; OR 3) During the marriage the U.S. citizen or lawful permanent resident spouse subjected the conditional resident to battery or extreme cruelty. All three waivers are filed on Form I-751 and require you to prove your marriage was in “good faith” and not fraudulent.

My recommendation is that you contact an immigration attorney to fully understand all the options available to you.

Q. Can foreign spouses who are victims of domestic violence also be victims of human tracking?

A. Other forms of exploitation, including human trafficking, can sometimes occur alongside domestic violence, when the exploitation involves compelled or coerced labor, services, or commercial sex acts.

For more information about your options as an immigrant victim of domestic violence, please contact Miami immigration attorney The Law Office of Tatiane M. Silva, P.A., Esq. at (305)895-2500 or visit our website at www. mmurraylaw.com .