U-Visa (Domestic Violence)

The Violence Against Women Act (VAWA)

Enacted in 2000, created the U-visa to provide support to undocumented individuals who are victims of serious or violent crimes. The primary reasoning was to encourage individuals to report the crime and to cooperate with government officials to prosecute the criminal activity.

The eligibility requirements for a U-Visa are as follows:

1. The person must provide evidence of “substantial physical or mental abuse” as the result of one of the following types of criminal activity, which transpired in the United States:

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.

2. The applicant must possess information concerning the criminal activity;

3. The applicant can provide a “certification” that states the applicant is being, has been, or is likely to be helpful to the investigation or prosecution of the criminal activity (this certification must come from a federal, state, or local law enforcement official, prosecutor, judge, or authority that is investigating the criminal activity.); and

4. That the criminal activity violated United States law or occurred in the United States or the territories and possessions of the United States.

If the above requirements are satisfied, the U-Visa is obtainable. Furthermore, it is not necessary for the alleged criminal to have lawful immigration status and a conviction is not required. If approved, the U-visa petitioners will be granted temporary legal status and permission to work. After three years, the petitioner will be eligible to apply for lawful permanent resident status (LPR -green card). U-visa holders are permitted to remain in the United States for a period up to four years and there is a possibility of an extension.

In cases where the petitioner is under the age of 16 or is incapacitated or incompetent, the participation requirement can be fulfilled by the parent, guardian, or next friend* submitting the necessary evidence on behalf of the petitioner. This person must provide evidence of his or her qualifying relationship to the petitioner and evidence establishing the age, incapacity or incompetence of the petitioner.

*A next friend is a person who appears to act for the benefit of a non-immigrant who is under the age of 16, or who is incapacitated or incompetent.

U-Visa vs. Violence Against Women Act (VAWA).

The appropriate place to file a petition

If an immigrant is an abused spouse or child of a U.S. citizen or lawful permanent resident (LPR), he or she is eligible to self-petition to gain lawful status under the Violence Against Women Act (VAWA).

Victims of domestic violence who are not married to the abuser, or who have been abused by spouses who are not U.S. citizens or LPRs, are not eligible to self-petition under VAWA, but may seek status under the U-visa.

The petitioner is not required to be physically present in the United States to qualify for a U-visa. An individual can apply from abroad as long as the criminal activity has violated the laws of the U.S. or has occurred in U.S. territories. This would include a victim of a crime that occurred in the U.S. but the applicant was required to leave the United States or where the applicant was a minor and a U.S. citizen sexually abused the child outside the U.S.

Derivative Status

If an applicant is under the age of 21, they may include a spouse, children, parents, and/or siblings under the age of 18 on the application. If the applicant is over the age of 21, they may include spouses and/or children.

http://www.tripodilawfirm.com/UVisaDomesticViolence.html