Frequently Asked Questions for Abused Immigrants
What is the U-visa?
The U visa is a special visa for the victims of certain crimes, including crimes of domestic violence and sexual assault, among others. The person must be the victim, or “indirect victim” of the crime, cooperate with law enforcement in the investigation of the crime and show that they have suffered on account of the crime. Some of the victim’s family members can be included in a U-visa application. You attorney or representative will talk with you more about which family members can be included.
What is a waiver? Why do I need it? What does it require?
Immigration law defines many categories of people who are not eligible to receive visas.
These include people who commit crimes, people who have been deported, or entered the country illegally, or who have stayed in the U.S. illegally for certain periods of time. It also includes have certain health related conditions, including mental health issues and drug or alcohol problems, and people who have committed immigration fraud (lied to immigration), or who have said they are U.S. citizens when they are not. These are just some examples.
Can I be deported while my case is pending?
As a general rule, immigration has not been deporting U visa applicants, but it could happen. When you submit your application for a U visa, immigration will have your address and will know where to find you. If you are picked up by immigration while your case is pending, you should call your attorney immediately to see what can be done. It is also possible to obtain approval of the U visa after deportation and visa process back into the United States. It is important to remember that if you are in the U.S. illegally, you are always at risk of being placed in removal, or deportation proceedings.
Will immigration deport me if my case is denied?
There is not a “confidentiality” agreement within immigration offices in the U visa filing process. This means that immigration could decide to forward your information to another branch of the Department of Homeland Security, including ICE (deportation) if they decide to do so. However, this is true with most applications that are filed with immigration. While it is possible, we have not yet seen this happen.
It is important to remember that if you are in the U.S. illegally, you are always at risk of being placed in removal, or deportation proceedings.
What if I was deported before?
If you have an outstanding order for deportation, or if you came back to the U.S. after being deported, there are additional legal issues to consider in your case. Your attorney or representative will talk with you in detail about this. In general, immigration has the right to “reinstate” deportation papers, or execute an old deportation order. There are special legal procedures that can be used to try stop this process if immigration decides to take action to remove you from the country if you qualify for a U visa. This is called a “Stay of Removal.” Again, your attorney or representative will talk to you in detail about this if it applies to your case.
Can my family members be at risk for deportation if I file for a U visa with USCIS?
Identifying information for family members that you include on your application as “qualifying family members” will be listed on the forms. The answer for them is the same as for you. It is possible that immigration could share their information with other offices in their system, like ICE (deportation). However, we have not yet seen this occur.
Other people who live with you, and are here without legal status but are NOT included in your application could be at risk if ICE (deportation) decides to take action against you. Remember, we have not seen this happen with U visa applications. Again, it is important to remember that if a person is in the U.S. illegally, he/she is always at risk of being placed in removal, or deportation proceedings.
What about the person who committed the crime against me? Will he/she be deported if I file for a U visa?
Your U visa application is not an application against the person who committed the crime against you. It is an application for you as the victim. It is important to remember that if you are in the U.S. illegally, you are always at risk of being placed in removal, or deportation proceedings. Seeking assistance from shelters, hospitals, or lawyers is extremely unlikely to result in the deportation of your husband/intimate partner. If you contact the police and your husband/intimate partner is convicted of a crime, he may be deported, depending on his immigration status and the seriousness of the crime.
It is important to remember that you must keep yourself and your children safe. It is your husband/intimate partner that has put himself at risk by his actions.
Will immigration contact the person who committed the crime against me? Will he/she find out what is in my application?
Your application and documentation will not be revealed to the person who committed the crime against you, or to others individuals in the community. The person who committed the crime will not be contacted or interviewed about your U visa case.
When will my case be approved by USCIS?
We cannot tell you how long it will take to process your case. We can tell you that there are thousands of cases pending at the Vermont Service Center, where your case will be filed. As time goes on, we may be able to give you a better estimate. Cases that have recently received decisions were pending for many years.
Can I get a work card to work in the United States? When?
Some people who filed their cases before 11/17/07 were given something called “interim relief” and received work card under a status called “deferred action”. These people can renew their work cards and “deferred action” status every year while their cases are pending. For U visa cases filed after 11/17/2008, no work cards have been issued yet. There is a provision in the law for you to get a work card while your case is pending, but the actual filing process has not been defined. We are watching this issue carefully because we know that a work card is one of the most important things for you. We will let you know as soon as there is a way to file an application for a work card.
Can I continue to work if I have been working in the past?
It is against the law to work in the United States without proper documents if you are an immigrant.
What happens after I file my application with USCIS?
You will receive several notices of receipt for your applications, usually a few weeks after the case is sent. These are very important because they contain case numbers and prove that you have filed your application.
Within several weeks of filing, you will also receive an appointment letter to complete your biometrics process. Immigration will take your fingerprints and picture at this appointment. This is to begin a background check. Your attorney or representative will send you more information about this when it arrives. This process is very simple, but it is very important. Please let your attorney or representative know if you cannot go to the appointment or if you miss it. Typically, you will go to this appointment without your attorney or representative, since there is no interview or any questions about your case at this appointment.
Will I be interviewed about my application?
The U visa application is filed in Vermont. You will not be personally interviewed on your U visa application. For this reason it is very important to submit strong statement and as much evidence as possible with your case. The person who makes the decision on your case will never meet you in person.
What happens if my case is approved by USCIS?
If your case is approved, immigration will grant you U visa status for four years.
If immigration needs more information before making a decision in your case, they will send a Request for Evidence. Your attorney or representative will notify you with more information if this happens.
Can I become a Lawful Permanent Resident in the United States? Can I get my green card?
If you are approved for a U visa for four years, you will have the right to apply for your
Lawful Permanent Residency three years from the date of the approval. You will need to be eligible for residency at that time.
What if I move while my case is pending with USCIS?
It is very important to let your attorney know right away if you move or change phone numbers! By law you must do a change of address with immigration within 10 days if you move. Your attorney or representative can help you with this. In addition, your attorney or representative must be able to communicate with you at all times.
What else should I know about while I am waiting for my application to be processed?
• Do not leave the U.S.
• Do not commit any crimes
• Continue to participate in your community, be a good community member, participate with your children’s school, volunteer, learn English!
• Notify your attorney if there are any changes, or if you have any questions.
Should I contact an attorney if I have questions about my immigration status?
YES. If you are not sure about your immigration status, do not go to the INS without a lawyer or without consulting a lawyer about your immigration status. If you choose our representation, your conversations with us or any other attorney who represents you, will be confidential and we will not report you to the INS.
If I am a lawful permanent resident or legal refugee, will a divorce or separation affect my immigration status?
If you have nonconditional permanent resident status or are a legal refugee, your legal status may not be affected. However, you should keep the following items to show that your marriage was real and not entered into only for immigration purposes: a lease or mortgage showing that you share a home or apartment; joint bank accounts or other joint financial records, any love letters, photos and cards from the wedding, photos of you and your husband or wife as a couple, and phone numbers and addresses of friends who knew you as a couple.
Can I get a divorce, if I am not yet a legal permanent resident and my husband or wife is not willing to sponsor me?
It may be possible. A divorced spouse who was subject to extreme cruelty from his or her legal permanent resident or U.S. citizen spouse may apply for an immigrant visa as an abused spouse (eventually leading to a green card) if the petition is filed with CIS (INS) within 2 years following any final divorce decree. Thus, if you are already divorced, you can still file for VAWA protection, but only if your divorce is 2 years old or less at the time you file and can prove that the abuse was related to the reason for or was the reason for the divorce, itself. The divorced battered spouse must still prove the basis elements of a VAWA self-petition including bona fide marriage as well as prove that s/he lived with the abuser when they were married at some point.
This provision allowing for divorce spouses to file applies to all cases that are pending on or filed on or after October 28, 2000. There are exceptions to this date, however, so if this situation applies to you, contact an immigration attorney who regularly deals with VAWA (Violence Against Women cases) to determine if you are eligible to file for immigration protection.
What if I choose NOT to file a VAWA based immigrant visa petition?
If you choose to not file a VAWA-based immigrant visa petition and choose to rely on your spouse to sponsor you, if s/he fails to sponsor you or the case s/he is sponsoring you on is not approved by the time the two of you get divorced, that case will be denied and you will have to start over with either a VAWA-based immigrant visa (if eligible) or some other potential immigrant visa or will be stuck without the means to obtain a green card.
If you think that your spouse is going to file for divorce or has already filed for a divorce and you have a case based on your spouse’s sponsorship currently being decided by INS (CIS), there may be a way to save the green card (adjustment of status) application that is attached to your spouse’s immigrant visa filing and file for VAWA immigrant visa to protect yourself from his or her threats, and retain your work card and travel authorization instead of having to start all over again with a new green card application. If this applies to you, feel free to contact us to understand more.
If I am already a lawful permanent resident or legal refugee, will a divorce or separation affect my immigration status?
If you have non-conditional permanent resident status or are a legal refugee, your legal status may not be affected. However, you should keep the following items to show that your marriage was real and not entered into only for immigration purposes: a lease or mortgage showing that you share a home or apartment; joint bank accounts or other joint financial records, any love letters, photos and cards from the wedding, photos of you and your husband or wife as a couple, and phone numbers and addresses of friends who knew you as a couple.
If I am a conditional permanent resident, will a divorce or separation affect my immigration status?
If you are a victim of battery or extreme cruelty and you have obtained conditional residency based on your marriage, you should still be able to keep lawful immigration status. If your husband will not cooperate in removing your conditional status, you can ask for a waiver, where his consent or participation is not needed.
My husband is threatening to take my children away if I leave him. What can I do?
If your husband/intimate partner is threatening to take your children away or take them to his home country, you should:
1. Immediately get a custody order. The order can include an order to prohibit your husband/intimate partner from removing the children from the country in which you live.
2. If the children are U.S. citizens, send a copy of this order to the embassy of your husband’s/intimate partner’s home country and a copy to the U.S. Department of State (Office of Passport Services, (202) 326-6168) to prevent the issuance of passports and visas for the children.
3. Give a copy of the order to the children’s schools and tell the schools not to release the children to anyone but yourself.
4. Make sure that you have recent photos, passports, and birth certificates for the children. Keep a list of addresses and phone numbers of your husband’s/intimate partner’s friends and relatives in his home country.
Will I be deported if I take any of the above actions?
If you are now a U.S. citizen, lawful permanent resident or possess a valid visa, you cannot be deported unless you entered the U.S. on fraudulent documents, violated conditions of your visa, or have been convicted of certain crimes.
If you are undocumented or are unsure about your immigration status, contact us or another reputable immigration attorney to determine if there is some way to legalize your immigration status. Until then, you should do what you need to do to make yourself safe, even if this means moving into a temporary shelter or a friend’s house or contacting the police for assistance. Even if your husband/intimate partner were to report you to the INS, all hope is NOT lost as deportation may not follow, would not be immediate, and you would have the opportunity to present your case to a judge.
I have heard of protective orders. What do they do?
A protective order can prohibit the abuser from contacting, attacking, sexually assaulting, or telephoning you, your children, and other family members. Along with this protective order, in most states you can also ask for custody of your children, child support, and exclude the abuser from your home. For a protective order to be effective, you must be willing to call the police to enforce it.
Can I get a protective order even if I am not a U.S. citizen?
YES. You do not need to be a citizen or legal permanent resident to get a protective order. Civil courts generally do not ask about a woman’s immigration status when she asks for a protective order, a child custody order, or a dissolution of an abusive marriage. We can advise you on the policy of the court within your area. Please feel free to contact our compassionate and experienced Los Angeles immigration attorneys. We offer a confidential, free initial consultation. [LINK TO CONTACT JCS]