Cuprys & Associates/Serving Immigrants, Inc.
On this page, you find articles about important immigration and visa matters provided by Magdalena Cuprys.
Immigration Options for Victims of Violence at the hands of Abusive USC and LPR Family Members
As a brief historical background, as recent as thirty years ago, an immigrant who was the victim of family violence who was being sponsored for lawful permanent residence by a family member, there was little to nothing that could be done to help that immigrant victim pursue immigration status on her own. Today, after years of legislative changes to the INA for victims of domestic violence, spouses, children, and now, in some cases, even parents who suffer abuse at the hands of USC and LPR family members now have options available that allow them to pursue filing for legal immigration status on their own.
This article presents three specific options for immigrant victims of domestic violence:
1. VAWA self-petitions (also referred to as I-360 Petitions due to the specific US CIS Immigration Form utilized in the application process);
The second class of individuals eligible to pursue relief under domestic violence protections are:
2. Battered spouse or child waivers;
And, the third class of individuals are those which are called:
3. VAWA cancellations.
Imperfect Privacy Protections
Many victims of domestic violence may fear that abusive family members will try to interfere with their immigration filings, either by providing negative information to U.S. Citizenship and Immigration Services (USCIS) or U.S. Immigration and Customs Enforcements (ICE), or by seeking to obtain copies of documents filed with USCIS. It is extremely important to understand that the law protects the privacy of their I-360 (VAWA Self-petition), I-751 (battered spouse or child), EOIR-42B (VAWA Cancellation) Applications. One must be aware, however, that in practice, USCIS does occasionally make mistakes and accidentally provides limited information (such as receipts and notices of interview) to abusive family members.
Protections for domestic violence victims are weakest with respect to reports made to immigration authorities about victims’ immigration violations. It must be noted that VAWA prohibits government officials from making “an adverse determination of admissibility or deportability of an alien under the Immigration and Nationality Act using information furnished “solely by” the abuser or agent of the abuser.
Furthermore, if removal proceedings are initiated against a noncitizen domestic violence victim, the Notice to Appear (NTA), which is the charging document in removal proceedings, must contain a certification of compliance with the privacy mandate of VAWA.
ICE’s current policy with respect to protections for such applicants means that one cannot provide domestic violence victims with complete or false assurances that they are always protected from enforcement actions. This in mind, defense practitioners should stand ready to contest NTA’s not only for lack of certification of compliance with the VAWA privacy provisions where required, but also where such certification is present, as ICE’s actions can be easily challenged.
A Few Preliminary Thoughts on Working with Domestic Violence Victims
It is important to remember that an applicant or client (victim of domestic violence) may well be in danger. Every year in the United States, intimate partner “violence results in nearly 20 million injuries and nearly 1,300 deaths.” As an immigration lawyer, it becomes extremely important to refer one’s client to a domestic violence service provider who can guide the applicant/client through safety planning for herself and her children.
The heart of any immigration case for an immigrant victim of domestic violence is her story. When preparing for such applications, one must be prepared to be interviewed carefully with specific questions as to the violence or abuse, such as:
· Why did he hit you?
· Why did you ever marry him?
· Why did you stay with him?
The VAWA Self-Petition
A VAWA self-petition on Form I-360 is a variation on an Immediate Relative Petition. VAWA self-petitioning is open to close family members: the parents, spouses, and unmarried children under 21 of USCs (immediate relatives), as well as to spouses and unmarried children under 21 of LPRs.
· The VAWA self-petitioner keeps the same place in the queue or line (the priority date) of a Relative Petition filed under Preference Category 2A (whether or not the Relative Petition has been withdrawn); and
· If an application for adjustment of status is already pending, and the Relative Petition has not already been withdrawn or denied, no new application for LPR status is required.
The criteria for a VAWA self-petition may be summarized as follows:
· Good-faith marriage to a USC or LPR (for marriage-bases VAWA self-petitions, not parent/child-based ones);
· Qualifying relationship
o Legally valid marriage to a USC or LPR;
o Qualifying bigamy to a USC or LPR;
o Recognized parent/child relationship where abusive parent is USC of LPR; or
o Recognized parent/son or daughter relationship where abusive son or daughter is USC;
o Physical battery;
o Extreme cruelty
· Joint residence; and
· Good moral character
· If the marriage has been terminated within the past two years, the VAWA self-petitioner must demonstrate a connection between the divorce and the abuse; and
· If the abusive anchor relative has lost USC or LPR status within the last two years, the VAWA self-petitioner must demonstrate a connection between the loss of status and the abuse.
A Word of Caution: Barriers to Approvals of VAWA Self-Petitions.
Many immigrant victims of domestic violence have been in compromised situations and some have committed acts that create bars to obtaining approval of immigrant status as a VAWA self-petitioner.
· Prior Marriage Fraud: a noncitizen who has previously been the beneficiary of a Petition for Alien Relative on Form I-130 based on a marriage, which later has been determined by federal immigration authorities “to have been entered into for the purpose of evading the immigration laws” may not have a Petition for Alien Relative on Form I-130 or a VAWA self-petition on Form I-360 approved.
· Good moral character: Any activity in the domestic violence victim’s past (distant or otherwise) that is not related to domestic violence may preclude a finding of good moral character under INA § 101 (f). Under current USCIS interpretation of INA §204, many past acts serve as lifetime bars to VAWA self-petitioning on Form I-360.
The VAWA Self-Petitioner’s Statement
The most important part of any VAWA self-petition is the victim’s story in her own words.
Where you have an opportunity to influence the timing, it is preferable to file the VAWA self-petition prior to the issuance of a final divorce decree.
Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries.
Getting married to a United States Citizen or Lawful Permanent Resident (Green Card Holder) is one of the most common forms of Family-Based Immigration into the USA, and it is also one of the fastest ways to obtain Lawful Permanent Residence (i.e., a Green Card). In order to obtain full Lawful Permanent Residence Status, the couple must have been married for at least 2 years prior to the filing of the Application for Lawful Permanent Residence in order for the foreign spouse to obtain their green card.
Otherwise, the foreign spouse will only be granted temporary Conditional Residence. After this 2-year period, the couple must file an additional application to apply to have the Conditional Residence status removed, and once this application is approved by US CIS, only then does the foreign spouse becomes eligible to receive their full, permanent, green card status.
However, in reality, many individuals apply for Lawful Permanent Residence when they have been married for less than 2 years. In this instance one has a much higher burden of proof involved in the application process, as you must
demonstrate through documentary evidence that the marriage is real, was entered into in good faith, and is bona fide in nature (i.e. that it was not entered into fraudulently for the purpose of evading US Immigration Laws).
Evidence is critical at this juncture, and it is highly recommended that one utilize a qualified Immigration Attorney to assist in the collection, presentation and submission of such evidence to US CIS. Common examples of such evidence are correspondence between the spouses, be they letters, emails, social media conversations, photographs of the couple together, affidavits from family, friends, co-workers, etc. should be submitted. Evidence of financial ties together should also be gathered, such as copies of joint bank accounts, credit cards, insurance policies, health insurance, automobile titles, auto insurance policies, joint bills, tax returns, and mail which shows that both spouses live at the same address together. Anything which demonstrates a legitimate relationship that has been continuous and on-going is beneficial.
After one applies for the green card, it is thereafter required that both spouses will have to appear in person at their local USCIS Office for an Official US CIS Interview. The immigration officer will interview the couple and ask them many personal questions in order to determine that the marriage is real and
bona fide, i.e. questions of each spouse to ascertain and verify if they know things about the other, etc. These are such things that a married person should know about their relationship.
There also is a financial component to the Immigration process. The US Citizen (sponsoring spouse) has to attest and agree to provide financial support to the foreign spouse. This is done via the execution of a formal Affidavit of Support, which is a legal requirement in the process and must be included with the original Application for Lawful Permanent Residence at time of filing. Also, the sponsoring spouse must prove that they are financially capable and responsible, in which they must document and submit evidence that he or she is employed and has a salary that must meet at least 125% above the Federal Poverty Line (US Income Requirements). It is also required that they provide Federal Income Tax Returns for the past 3 years as evidence of the above.
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