Coleman Jackson, P.C. | Video Transcript of Watching Laws
Published May 21, 2021.
Seeing Laws
A great welcome to our Law Watch viewers.
I’m Reyna Munoz. I’m the immigration legal assistant at Coleman Jackson, PC.; we’re located here in Dallas, Texas. Our law firm represents clients around the world in taxes, litigation, government contracts, and immigration.
This presentation is word for word from the Q&A session I had with the lawyer. Our topic today is: VAWA and the alternatives for immigrants who have been abused.
Attorney Coleman Jackson is the attorney at Coleman Jackson, P.C Other members are Yulissa Molina, Tax Attorney, Leiliane Godeiro, Legal Litigation Assistant, Mayra Torres, Public Relations Associate, and I, Reyna Munoz, Immigration Legal Assistant.
Lawyer Interview: Reyna Munoz
Question 1
Are we going to talk about a brief description and history about VAWA?
Lawyer: Coleman Jackson
Domestic abuse and violence is a very serious problem in America, not just immigrants.
Many people suffer emotional snubs, psychological abuse and physical violence at the hands of their loved ones and family members every day! Domestic abuse is absolutely terrible; this violence is simply uncivilized.
To address domestic violence against immigrants, the U.S. Congress first passed the Violence Against Women Act in 1994. This compassionate federal law contains protections and provisions that allow spouses and children abused by their U.S. citizen spouse or (USC) or legal permanent resident (LPR) or parent to file a self petition to obtain a green card without the help of their abuser. In fact, the abuser is not even notified of the self-request.
In addition, VAWA also allows parents abused by their U.S. citizen sons or daughters to make a “self-petition” to obtain a green card, without having to convince the abusive relative to file an immigrant petition on their behalf. VAWA is truly a confidential process; everything is kept secret and absolutely no cooperation from the abuser is needed or required.
VAWA’s immigration provisions are an attempt to correct a widespread situation, many immigrants are forced to remain in abusive relationships because their abusive relative can “hold them as ransom” because of their immigration status. For example, too often an abusive spouse will refuse to file a family visa petition to control an undocumented spouse. Either the abusive spouse will threaten to withdraw a petition or even call Homeland Security Department officials to deport the immigrant spouse if he or she tries to leave, resist abuse, or call the police.
In addition, under President Obama there was a reauthorization of VAWA that includes certain non-discrimination provisions. These non-discrimination provisions mean that applicants should now not be discriminated against on the basis of race, color, religion, national origin, sex, gender identity, sexual orientation or disability.
Also, the House recently passed the Violence Against Women Reauthorization Act that renews and strengthens this law. This expansion provides protection to native American women and survivors of under-served communities and improves efforts to prevent intimate partner violence.
Lawyer Interview: Reyna Munoz
Why did Congress decide to pass VAWA?
Attorney Coleman Jackson
For the exact reasons mentioned a moment ago. Congress simply did not want U.S. immigration laws to be used as another weapon in an abuser’s arsenal to terrorize his own loved ones. Therefore, the United States Congress passed the Violence Against Women Act, commonly known as “VAWA”, to allow a spouse or child in this uncivilized domestic situation to make a self-petition on their own, without having to rely on the abusive spouse or parent to file the immigrant visa application. Victims of abuse simply do not have to suffer in silence and endure the uncivilized behavior of their U.S. citizen or LPR relative. Again in 2005, Congress expanded these VAWA protections and provisions to allow parents of abusive U.S. citizens to also file their own petitions. VAWA is based on humanity!
Interview by: Reyna Munoz
What are some benefits that come with VAWA?
Lawyer: Coleman Jackson
VAWA offers self-petitioners the following types of benefits:
As long as the self-petition is approved, even if no adjustment request has been filed, VAWA’s petitioner can work legally in the United States and will not be deported during the months or years that may take for the petitioner’s priority date to become current.
VAWA self-petitioners can apply for a status adjustment in the United States, rather than having to leave the United States to process their visas at a consulate in the country of origin.
VAWA’s self-petitioner can receive many public benefits that are not available to other non-citizens.
And finally; The entire VAWA application process is completely confidential. VAWA’s confidential protections cannot be underestimated because many immigrants seeking VAWA have been emotionally, psychologically and physically harmed by their abuser. Many are very fragile at this time when they apply for VAWA protections; and most victims of immigrant abuse are away from their family, away from their friends and away from their natural social networks at home. They often feel alone; in fact, they are often alone. They left home to come here to get married and they’re Americans. VAWA is like an umbrella in the rain.
Interviewer: Reyna Munoz
Question 4:
Can only women apply for VAWA or can men and individuals of different sexual orientation also apply for protection and relief under the Violence against Women Act?
Lawyer interview: Coleman Jackson
The vast majority of victims of domestic violence are women in this country, if not around the world. However, it is important to note that men are sometimes victims of domestic violence. Sometimes women are abusers. Domestic violence is not limited to any particular gender. Therefore, VAWA immigration protections and provisions are available to abused husbands and wives, as well as to abused children and parents of any gender. In addition, as I mentioned earlier, several years ago when President Obama was in charge, Congress enacted additional VAWA provisions extending protections of acts of violence against women to eligible LGBT people and eligible Native Americans.
VAWA also protects children abused by USC or LPR parents. Let me point this out to be clear: even if the child was abused and the parent was not abused, the non-citizen parent may also qualify for VAWA, or if the parent was abused and the child was not abused, the child may also qualify. Simply put: Abused immigrant children can file a self-petition under VAWA.
Interviewer: Reyna Munoz
Question 5:
What are the requirements for self-requesting for VAWA?
Lawyer: Coleman Jackson
The spouse of the self-petition must prove that:
The abuser was (is) a permanent resident (LPR) or U.S. Citizen (USC)
The petitioner’s order is (or was) the spouse of the LPR or USC abuser, or the parent of a child who was abused by the LPR or USC spouse of the petitioner’ self-
The LPR or USC abused the self-petitioner during their marriage.
The marriage that forms the basis of self-petition was a marriage of good faith.
Either the petitioner resides in the United States, or if you live abroad, the LPR or USC abuser subjected the petitioner or your child to abuse in the United States or is an employee of the U.S. government or armed forces.
The self-petitioner has lived with the abuser.
The self-petitioner is a person of good moral character.
The attorney would like to clarify again how VAWA protections work when a child is involved. This is a very important point that I am about to make. In some circumstances, an immigrant child of the abused spouse qualifies for status, even if the child was not abused, and also, in some circumstances, the parent of an abused child qualifies for status even if the parent themselves was not abused.
Interviewer: Reyna Munoz
Question 6
What behaviors qualify as “extreme or mistreated cruelty” for a victim to qualify for VAWA?
Lawyer: Coleman Jackson
USCIS may consider a wide range of abuser behaviors, such as:
Threatened with beating or terrorizing the victim;
Hitting, punching, slapping, kicking or hurting the person in any way;
Emotionally abuse of immigrants, such as insults at home or in public;
Sexual abuse or exploitation, including abuse or forcing the immigrant to have sex; or, forcing the immigrant into prostitution;
Threatened with taking the victim’s children or hurting children in any way;
Threatening to deport the victim, threatening to withdraw the family immigration petition, or threatening to hand over the immigrant to immigration authorities;
Exercise control over the immigrant, whether physical restrictions, emotional control or psychological control over the immigrant or their children. Actions and threats to control where the immigrant is going, what the immigrant does; how they dress and live and with whom they socialize and similar controlling behavior.
By force detained the immigrant or physically arrested the immigrant or otherwise restricted the immigrant’s free movement;
Participate in a series of acts that, on their own, would not normally constitute abuse; but together it demonstrates private and abusive and destructive behavior for the immigrant, whether emotionally, psychologically or physically;
Threatened or committed acts of violence against a third person in order to frighten the immigrant; such as abuse, neglect or neglect of minors.
The abusive and uncivilized behaviors I have mentioned are not exhaustive because the imagination and cruelty that people can exercise over others can have all kinds of intentions and show all kinds of human depravities. Immigrants seeking VAWA protection should seek advice from professionals working with victims of abuse. Violence in any form is uncivilized; everyone should be treated with dignity and respect.
Interviewer: Reyna Munoz
Question 7
Does the victim making the self-petition have to live in the United States to apply for VAWA?
Lawyer: Coleman Jackson
A petitioner must reside in the United States when they file the petition; unless there are some special conditions that I will talk about in more detail in a few minutes. A petitioner who recently moved to the United States may also be eligible. In other words; the time the immigrant is in the United States is not relevant as to whether he or she is eligible to apply for VAWA in the United States.
Now as for abused immigrants residing abroad at the time they apply for VAWA; The following non-citizens can apply for VAWA outside the country:
The immigrant is married or married to the abusive spouse who is an employee of the U.S. government or member of the U.S. military, or
The immigrant is married or married to the abusive spouse who subjected the petitioner’s or petitioner’s child to extreme aggression or cruelty in the United States.
VAWA’s statute requires that the immigrant have lived with the abuser at some point. But I must point out here that the law does not impose any time period rules on how long the petitioner must have lived with the abuser, nor does VAWA require the victim of abuse to live with the abuser at the time the self petition is filed. Therefore, a petitioner can qualify even if the victim only lived with the abuser for a short time, or only in another country under the circumstances I just mentioned.
Interviewer: Reyna Munoz
Question 8
Aside from VAWA, are there other relief options for immigrants abused in U.S. immigration law?
Attorney Coleman Jackson
If there are other immigrant relief options, such as:
Conditional Residency: Conditional residency means that the USC or LPR spouse filed a petition, the petition was approved, and the immigrant spouse actually received a conditional “green card” that lasts two years. In cases of conditional residence, the married couple must file a petition to eliminate the condition near the end of this two-year conditional residence period. Instead of enduring an abusive or harmful relationship during this period and waiting for your spouse to help file the joint petition, the conditional resident may have the option to leave the relationship and obtain a special “abused spouse waiver” to eliminate the condition. In the event that this self petition is granted, the abused immigrant would receive his/her permanent residence card. Like VAWA, the elimination of conditional residency status is humanitarian relief in which abused immigrants are not subjected to rampant abuse in a failed marital situation.
Victim of crime/investigation or prosecution witness: The “U” visa: Abused men and women who do not qualify for VAWA (for example, because they are not legally married or their abusive spouse is not a USC or LPR) may be eligible for non-immigrant status or “U” visa which was a federal law enacted by the United States Congress around 2000. The U visa benefits victims of felonies who are willing to assist in a criminal investigation in the U.S. The U visa is not limited to domestic violence offences committed by LPR or USC spouses. The law does not lay down requirements on the status against the immigrant victim: the perpetrator may be a stranger or a family member, a citizen or an undocumented worker; the perpetrator could be a non-citizen visitor to the United States. Types of criminal offenses can range from sexual assault, physical assault, kidnapping, incest to many other types of felonies. The “U” visa provides temporary status and can lead to permanent residency.
However, another possible option for certain immigrants is the “T” visa, which is available to immigrants who were victims of felonies. Generally the person must have endured conditions of forced labour or been a minor immigrant forced into prostitution or other depraved sexual exploitation activity.
Cancellation of domestic violence deportation under VAWA: Some qualifying immigrants may instead wish to apply for VAWA deportation cancellation because they are not eligible for self-petition, or because waiting for legal permanent residency will take too long. This could be the case when abused immigrants were married to an LPR. In that case, they must wait until the visa is available; which could take years in some cases. Non-eligible citizens who have been abused and who are in deportation for any reason may ask the immigration judge to cancel the deportation by VAWA.
Interviewer: Reyna Munoz
Those are all the questions for now. I want to thank the lawyer for educating us about VAWA and the alternatives for immigrants who have been abused. Our audience who wants to watch more videos like this should subscribe to our Youtube channel and our listeners who want to listen to a podcast like this should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever they listen to their podcast. We are here in Dallas, Texas at 6060 North Central Expressway, Suite 620 Dallas, Texas 75206.
English calls: 214-599-0431 | Calls in Spanish: 214-599-0432. Portuguese calls: 214-272-3100.
Thank you for giving us the opportunity to inform you about VAWA AND the alternatives for immigrants who have been abused.
Again, I’m Reyna Munoz, Immigration Legal Assistant with Coleman Jackson, P.C. a tax, litigation, government contract litigation, and immigration firm based here in Dallas, Texas.
This is the end of Law Watch for now; Share our Law Watch video with family and friends.
This has been a word for word presentation from the Q&A session I had with the lawyer. I’m Reyna Munoz, Assistant Legal Of Coleman Jackson, P.C. Everybody be all right and take care.
Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation, and immigration legal matters.
This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Mayra Torres, the Public Relations Associate of Coleman Jackson, P.C.
The topic of discussion is “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?” You can listen to this podcast by clicking here:
You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.
TRANSCRIPT:
ATTORNEY: Coleman Jackson Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW
ATTORNEY: Coleman Jackson
Welcome to Immigration Thoughts
My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, and immigration law firm based in Dallas, Texas.
Our topic for today is: “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?”
Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant and Mayra Torres, Public Relations Associate.
On this “Legal Thoughts” podcast our law firm’s Public Relations Associate, Mayra Torres will be asking the questions and I will be giving the answers as she and I will be discussing: “Employment Authorizations for Immigrants: Who Qualifies and How to Apply?”
Mayra Torres Introduces Herself to the Audience:
Hi everyone, I am Mayra. I am the Public Relations Associate at the tax, litigation and immigration law firm of Coleman Jackson, P.C. Right here in Dallas, Texas.
Now Attorney: this is a follow up on a podcast that we did a couple of weeks ago where you and I were discussing “Green Cards & Work Permits” during this dread…………full pandemic!
Let’s go deeper into immigrants and work authorizations in the U.S. First of all:
What are the different types of work permits and who qualifies to work in the United States?
Attorney Answers Question 1:
Wow Mayra; that is a gigantic question since there are over 50 or 60 different categories of work authorizations defined in the U.S. Immigration Nationality Act, or INA, 8 United States Code. Each of these categories apply to different categories of immigrants, non immigrants, and their family members. Each category has different qualifying criteria. The duration for each category may also differ depending upon the specific authorizing provision of the INA.
We might have to address your question in several separate podcast over the next few weeks or even months. Interested listeners should subscribe to our podcast. For now, I intend to cover maybe 10 categories of work permits in this particular podcast. And for the most part I will merely mention the technical references to the applicable INA Section numbers authorizing the particular work permit category. I will also try to leave out the legal jargon and speak in ordinary language to see if I can explain work authorizations so that normal people can understand the different categories of work permits and their specific qualifying requirements.
Mayra Comments on That Approach
Oh exactly attorney. Its best to explain this in simple, easy to understand words;so that, people can follow along and understand what you are saying; you know! I mean …talk in language that regular people can understand.
And oh yeah; we can have a series of conversations on this topic in future podcast. Anyone who wants to know more about work permits for immigrants can subscribe to our law firm’s podcasts. Okay let’s go… my first question is this:
What are the different types of work permits and who qualifies?
Attorney Continues with Answer of Question1:
I am going to start by discussing those classes of immigrants who are authorized to be employed in the United States without restrictions as to location or type of employment:
An immigrant who is a Lawful Permanent Resident (with or without conditions pursuant to INA section 216). These are immigrants issued Form I-551 or Green Card by the Department of Homeland Security.
An immigrant who is a lawful temporary resident of the U.S. pursuant to INA section 245A or section 210 of the Immigration Nationalization Act. These temporary residents of the U.S. have been issued an EAD or Employment Authorization Document.
An immigrant who has been paroled into the U.S. under INA section 207 as refugee.Refugees in the U.S. have been issued an EAD or Employment Authorization Document.
An immigrant who has been granted asylum under INA section 208. Asylum seekers whose applications have been pending for more than 90 days can also be granted a work authorization while their asylum applications are pending decision at the Asylum Office.
An immigrant who has been granted Temporary Protected Status (TPS) under INA section 244 has been issued an Employment Authorization Document (EAD).
Any immigrant who has been granted U-1 crime victims status pursuant to 8 CFR 214.4 are issued a work authorization so long as they are in that status.
Any immigrant who has been granted VAWA status under the Violence Against Women’s Act has the authority to work in the United States as long as they are in that status.
All immigrants who are authorized employment incident to their status, must apply to U.S.Citizenship and Immigration Services (USCIS) for a work authorization with the exception of the Green Card holder and the immigrant granted VAWA status; a VAWA self-petitioner can request authorization to work directly on the Form I-360 Petition. And Green Card Holders or Lawful Permanent Residents have the authority to work anywhere.
Again, all work permits discussed so far falls into the category where the immigrant can be employed in the United States without restrictions as to location or type of employment. They can work anywhere. Now less turn to the category of work authorization which are restrictive as to location and employer.
Interviewer: Mayra Torres, Public Relations Associate
Question 2:
You mean some immigrants are restricted as to who they can work for and when!
What kind of restrictions are we talking about here? You mean there are immigrants who can’t work for anyone they want and anywhere in the United States … they want?
Attorney Answers Question 2:
Yes Mayra; that is exactly right. Some immigrants are issued work permits that restrict who they can work for and where they can work in the United States. I am only going to cover about three in this podcast. These are the most popular types; but again, we might revisit this topic in future podcast. For now, I am going to limit my discussions of immigrants who are restricted by law to work for a specific employer or otherwise restricted to employment authorized in the INA to these three:
First: A non immigrant treaty trader in the E-1 category and treaty investor in the E-2 category pursuant to INA section 214.2(e) are restricted to working only for the treaty-qualifying company through which they attained their status. They cannot work for anyone else in the United States.
Second: A non immigrant student must have a valid F-1 student status and are restricted pursuant to INA section 214.2(f) to working no more than 20 hours per week when the school is in session or full-time when school is not in session if the student intends to and is eligible to register for the next term or session. Moreover, the INA provides that students can engage in employment in the form of curricular practical training (internships, cooperative training programs, or work-study programs which are part of an established school curriculum) after being enrolled as a full-time student for a full academic year. These employment matters are handled on campus by the Designated School Official at the student’s college or university on Form I-20.
Third: An intra-company transferee in the L-1 status pursuant to INA section 214.2(l) is authorized to work only for the employer who filed the petition through whom they obtained the L-1 status.An immigrant on L-1 status cannot work for anyone else in the United States. I might add that the type of work they can perform is also restricted to the representations made by their employer in their petition. They must be high-level managerial or executive level individuals coming to the U.S.to oversee some specified areas or providing expertise in growing the domestic enterprise.
Attorney Interview: By Mayra Torres
QUESTION 3:
Wow! Attorney thanks for giving such comprehensive overview of these 10 types of work permit categories.
I have so many more questions, such as,
What is the duration of each one of these work permits that you have discussed; and
Whether the immigrant’s family members, such as, their spouse, children, and parents can work too; and
How can an immigrant with a work permit get a Green Card (we might have covered that in our previous podcast on Green Cards, but I can’t remember your answer now)?
Maybe we can discuss those questions in future podcast or blogs or something.
But a big question right now with this pandemic deals with workers getting sick on their jobs.
Question number 3 is this one: Undocumented Immigrants are not authorized to work in the United States; so… what if they catch Covid-19 at work and get sick or …worst…dies…. Are they entitled to receive any money for lost wages or earnings?
Attorney Answers Question 3:
That is a very complex question and the law could be in flux because of federal, state, or local rules changes being discussed in many circles. These protections could impact whether employees can recover damages of any kind resulting from injuries allegedly sustained as the result of Covid-19.So, I will limit my answer to Texas law pre-Covid 19.
Well established law in Texas says that injured workers and/or contractors are not required to be U.S. citizens nor are they required to possess immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity due to injury on the job. There is case law that goes as far back as 1993 that holds this legal principle.
But the law in this area could change as law catch up with legislative and other changes at the federal, state, and local level as it pertains to the response to Covid-19. And let me just say, federal law can be an affirmative defense whenever it conflicts with state or local law. So bottom line; the answer to this question is unclear at this time.
Attorney’s Summary: Coleman Jackson
Mayra thanks for asking some very important questions regarding work permits.
I know we did not answer all of the questions you might have on this very important immigration topic. We might revisit it in our future blogs, podcast, or videos on our U-Tube Channel. For now,we have to go.
Attorney’s concluding Remarks:
THIS IS END OF “LEGAL THOUGHTS” FOR NOW
Coleman Jackson, Attorney’s concluding remarks:
Thanks for giving us the opportunity to inform you about the Immigrant Work Authorizations in the U.S. We might discuss other aspects work permits and their requirements in follow up podcasts or blogs in the near future. If you want to see or hear more taxation, litigation, and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Subscribe to our podcast and Stay tune! We are here in Dallas, Texas and want to inform, educate, and encourage our communities on topics dealing with taxation, litigation and immigration. Until next time, take care.
By Coleman Jackson, Attorney & Counselor
June 23, 2020
Under U.S. law an immigrant who is the victim of crime and abuse could be eligible to become a lawful permanent resident (get a green card) if they or themselves or child or parent are a victim of a crime or extreme cruelty under certain circumstances. The particulars of the circumstances are the determinants as to whether the immigrant victim should pursue green card status through:
the United States federal law (Title IV, Sections 40001-40703 l Violent Crime and Law Enforcement Act, as amended | VAWA Status
the Immigration & Nationalization Act Section 101(a)(15)(U) visas or
the Immigration & Nationalization Act Section 1101(a)(15)(T) visas.
In a civilized society, unchecked violence against anyone cannot be tolerated for it violates the social compact between peoples. Injustice is violence; its abuse and it goes against truth and all notions of decency and order. Injustice cannot be tolerated for without justice peace is impossible to achieve.
Immigrants like all peoples have fundamental human rights given to them by their creator. For a long time now, United States federal law has set forth protections for immigrants in (1) VAWA status, (2) U visa and (3) T visa. Some of the most significant comparisons and differences between VAWA status, U Visa and T Visa are as follows:
Differences and Comparisons Between Three Types of Protections for Immigrant Crime and Abuse Victims
VAWA STATUS
U VISA
T VISA
WHO
Applies to Immigrant spouses, children, parents abused by their U.S. Citizen spouses, parents or children or Green Card Holders
Applies to Immigrant crime victims
Applies to Immigrant human trafficking victims
WHAT
Battered spouses, children and parents who have endured substantial physical, emotional and psychological abuse at the hands of a U.S. citizen or Lawful Permanent Resident.
Victims of abduction, abusive sexual contact, hostage, blackmail, domestic violence, extortion, murder, incest, involuntary servitude, rape, prostitution, sexual assault, stalking, trafficking, witness tampering, perjury and other specifically listed crimes perpetrated inside the United States by any perpetrator.
Victims who tricked, deceived, hoodwinked, coerced, recruited, transported, harbored, housed in the U.S. for the purpose of violence& abuse, sexual exploitation, pornography, forced labor, debt slavery, involuntary servitude, or like evil acts.
WHEN AND WHERE MUST THE ABUSE OR CRIME OCCUR
During a bona fide marriage or within specified familial relationships with U.S. citizen or LPR
While immigrant victim is In the United States and is victim of specified crimes by any perpetrator.
While victim is inside or outside of the United States and is a victim of a crime by any person bringing or receiving the trafficking victim in U.S.
HOW TO APPLY FOR THE IMMIGRATION BENEFIT
File I-360 Application with USCIS if inside the U.S.
File I-918 Application with USCIS if inside the U.S.
File I-914 Application with USCIS if inside the U.S.
DO THE IMMIGRANT NEED TO HELP LAW ENFORCEMENT
Does not have to help law enforcement and does not need law enforcement Application Certifications
Must help law enforcement and must get law enforcement to help complete Application Certifications
Does not have to help law enforcement and does not need law enforcement Application Certifications
These are some highlights of the differences and comparisons of these three options available for immigrants; who unfortunately, find themselves abused or otherwise victimized. They simply need to know that they don’t have to suffer injustice in any form in silence and all alone. There are laws designed to protect immigrant abuse and crime victims. And there are many social agencies available for abuse victims throughout the nation. Don’t let anyone ever take away your humanity. You have been created with hope and dignity and a purpose.
This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader. You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.
Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432
By Coleman Jackson, Attorney & Counselor at Law
July 12, 2017
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).
Self-petition for legal status under the Violence Against Women Act (VAWA)
Cancellation of removal under VAWA
U-Visa (nonimmigrant crime victim’s visa)
A victim’s application is confidential and no one, including an abuser, crime perpetrator or family member, will be told that you applied.
This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader. You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.
Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432
Any foreign person who is physically present in the United States of America or who arrives here or is brought here regardless of their legal status may apply for asylum complying with the requirements set forth in 8 U.S.C.A. §1158, Immigration and Nationality Act §208.
The foreign person seeking asylum bears the responsibility to establish that they are a refugee, within the meaning of U.S. Immigration Law. Credible evidence will need to be presented that shows that the foreign person is a refugee within the meaning of the Immigration and Nationality Act under one or more of the following categories:
RACE;
RELIGION;
NATIONALITY;
MEMBERSHIP IN A PARTICULAR SOCIAL GROUP; or
POLITICAL OPINION
Asylum seekers must allege and demonstrate that at least one of the listed categories is the central reason for the past, or perceived future persecution in their homeland. One of these five categories must be central to the asylum seekers’ past persecution or credible fear of persecution upon returning home.
In this blog post, we will limit our discussion of asylum to the asylum seekers membership in a particular social group. In modern times in U.S. asylum law, victims of domestic violence have had success filing for asylum under the membership in a particular social group category. This category has been used to apply for asylum based on gender-based persecution, such as, forced marriages, child marriages, female genital cutting, rape, domestic violence and sexual crimes against the victim.
If a foreigner enters the United States and claims persecution as a member of a particular social group, U.S. Department of Homeland Security examining officers at the border must conduct a credibility screening. The standard used at the credibility screening is very low. At this credibility screening the examining officer is not to make eligibility determinations or weigh the evidence or decide the credibility of the asylum seeker’s claims or statements. The examining officer must decide whether to refer the asylum seeker for a credibility determination hearing or send them back to their homeland. If the examining officer finds that the asylum seeker’s claim is not credible, they must expedite the removal of the foreigner’s return to their home country. If the examining officer decides that the claim is credible, they must refer the case for a full asylum credibility hearing; the referring officer must give the asylum seeker Form M-444 and explain the purpose of the credibility determination hearing. The asylum seeker may have legal representation at the credibility determination hearing. In the credibility determination hearing, the demeanor, candor, and responsiveness of the asylum applicant (and witnesses, if any) are all relevant. The basic logic and plausibility of the applicant’s or witness’s story are relevant to making the credibility determination. Consistency in the applicant’s, witnesses’ oral and written accounts is extremely important factors in a credibility determination. U.S. Department of State country condition reports are also used in asylum credibility determination hearings.
Even if the asylum seeker has a credible fear of persecution based on membership in a particular social group, their asylum application can still be impeded and denied pursuant to any of the factors listed in INA §208(2)(A) and INA §208(2)(B).
In the event the asylum officer grants the asylum seekers application based on their membership in a particular group, the foreigner enjoys the following immigration benefits:
They cannot be removed or returned to their home country (country of nationality);
They may be authorized to work or engage in employment in the United States;
They may be allowed to travel abroad with the prior consent of the U.S. Attorney General; and
One year after the grant of asylum, the foreigner can apply for Lawful Permanent Residence status (Green Card).
Filing asylum is serious business and is complex. Foreigner’s who are contemplating filing for asylum in the United States should consult legal counsel before they file because filing a frivolous asylum application will prevent the foreigner from receiving any immigration benefit under the Immigration and Nationality Act. That means the foreigner would be prohibited from even visiting the U.S. for any reason. This bar is permanent under the INA.
This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader. You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.
Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432
Before the 2005 amendments to Section 101(b)(1)(E) of the Immigration and Nationality Act (INA), to file a self-petition for immigration to the United States of America, adopted alien children were required to demonstrate that they had completed two years of legal custody and residence with the United States citizen or lawful permanent resident adoptive parent. There weren’t any exceptions even if those adoptive parents were abusive to the adopted child. Due to this, abused adopted children were required to remain in the abusive household for at least two years.
Section 805(d) of VAWA 2005 eliminated these two requirements (2 years legal custody and 2 years residence) in amending the definition of an adopted child under INA section 101(b)(1)(E)(i) for a child who has been battered or subjected to extreme cruelty by the adoptive parent or by household family members of the adoptive parent.
The 2005 VAWA changes allow abused adopted children to leave an abusive household without adversely affecting their eligibility to file a VAWA self-petition. The abused child submits a petition for classification as a lawful permanent resident under INA section 204. The child still must show a valid adoption and that (s)he shared a residence for some period of time with the abusive adoptive parent.
For confidential advice and thorough assistance in specific abusive situations consult an experienced Immigration Attorney.
A self-petition by an abused child must satisfy the following requirements:
Removal of 2 Year Legal Custody and 2 Year Residency Requirement
Generally, to obtain immigration benefits by adoption, the petitioner must submit credible evidence to establish eligibility of an adopted child under INA sections 201(b)(2)(A)(i) or 203(a)(2)(A):
A legal adoption took place. That is, the adoption is completed before the adopted child’s 16th birthday (or 18th if the child is the birth sibling of another child 16 or under who was adopted by the same adoptive parent at the same time)
The adoptive parent(s) had two years of legal custody, and two years of residence with the child.
However, section 805(d) of VAWA 2005 amended INA section 101(b)(1)(E)(i). The 2005 amendments to the Violence Against Women’s Act removed the two year legal custody and the two year residency requirement for adopted children who were battered or subjected to extreme cruelty by their adoptive parent(s) or household family members.
Applicability of 101(b)(1)(E)(i)
The amendment to 101(b)(1)(E) is applicable to a child who is the beneficiary of a Form I-130, Petition for Alien Relative, and to the self-petitioning child filing a VAWA-based Form I-360, Petition for American, Widow(er) or Special Immigrant.
If the self-petitioning child demonstrates that he or she was battered or subjected to extreme cruelty by the adoptive parent or by member(s) of the adoptive parent’s household, then in this type of case, the child is not required to establish two years legal custody and two years residency with the adoptive parent.
Eligibility Requirements
Self-Petitioning Child of Abusive USCs and LPRs (Generally)
INA section 204 allows for alien children of abusive U.S. citizens and lawful permanent residents to self-petition for classification as lawful permanent residents (Green Card). The child self-petitioner is required to provide evidence that (s)he:
Is the child of a U.S. citizen or lawful permanent resident
Is eligible to be classified under INA section 201(b)(2)(A)(i) or 203(a)(2)(A)
Resides or has resided with the abusive U.S. citizen or abusive lawful permanent resident parent
Has been battered by or has been subjected to extreme cruelty perpetrated by the U.S. citizen or lawful permanent resident parent or member of their household
Is a person of good moral character
Self-Petitioning Adopted Child of Abusive USCs and LPRs
The VAWA 2005 amendments to the definition of an adopted child (i.e., the removal of the two year custody and two year residency requirements for abused adopted children) do not remove the need for adopted children to establish all other requirements for self-petitioning children under INA section 204. The self-petitioning adopted child is required to provide evidence demonstrating that (s)he:
Was legally adopted before attaining age 16, or before attaining age 18 if the child is the birth sibling of another child who was adopted by the same adoptive parent
Was legally adopted by a U.S. citizen or lawful permanent resident, or that his or her adoptive parent is legally married to a U.S. citizen or lawful permanent resident
Resided for some period with the abusive U.S. citizen or abusive lawful permanent resident
Was battered by or subjected to extreme cruelty perpetrated by the U.S. citizen parent or lawful permanent resident parent or a member of the U.S. citizen’s or lawful permanent resident’s family residing in the same household
Is a person of good moral character
Filing from Outside the United States
There is no statutory requirement that a self-petitioning adopted child be living in the United States at the time the self-petition is filed. The filing requirements found in INA sections 204(a)(1)(A)(v) and 204(a)(1)(B)(iv) relating to a self-petitioning spouse, intended spouse, or child living abroad of a U.S. citizen or lawful permanent resident shall be applicable to self-petitions filed by an abused adopted child.
Late-filing After Age 21
The provisions of INA section 204(a)(1)(D)(v) which provide continued eligibility to file as a self-petitioning child after attaining age 21, if the abuse was one central reason for the delay in filing, shall be applicable to self-petitions filed by an abused adopted child.
Evidence
Standard of Proof
The standard of proof applied in the adjudication of a self-petition filed by an abused adopted child is “preponderance of the evidence”. This evidentiary standard is met if the self-petitioning child submits sufficient evidence to establish that the facts of the case are more likely true than not true.
Evidentiary Requirements
A copy of the legal adoption decree issued by the appropriate civil authority, or other relevant credible evidence of the self-petitioning child’s legal relationship to the abuser should be submitted with the I-360. If a copy of the legal adoption is unavailable, the self-petitioning adopted child should provide any other credible evidence to demonstrate that a legal adoption took place. Additionally, the self-petitioning adopted child must provide credible evidence demonstrating the following:
Some period of shared residence with the abusive parent
The self-petitioning child’s good moral character, if age 14 and over
The battery and/or extreme cruelty perpetrated by the U.S. citizen or lawful permanent resident parent or perpetrated by a member of that parent’s family residing in the same household
The abuser’s U.S. citizenship or lawful permanent resident status
Consideration of Evidence
United States Citizenship & Immigration Services (USCIS) adjudicators will consider all relevant, credible evidence when making a determination regarding claims to all eligibility requirements. The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of USCIS.
This blog is written by
Coleman Jackson, PC | Immigration & Tax Law Firm. www.cjacksonlaw.com | 214-599-0431(English) | 214-599-0432(Spanish)
