Legal Protections and Pathway to Citizenship Available to Victims of Domestic Violence in Immigration Limbo

There is ample evidence to show that domestic violence has been on the rise across the world since Coronavirus lockdown began in March. In the U.S., it is much more prevalent in marriages where a spouse is on a dependent nonimmigrant visa like H-4, according to advocacy organizations that work with South Asian victims.

Research shows that women who experience domestic violence also have high rates of depression and emotional pain. Pressures such as immigration, bringing shame to the family prevent South Asian women from reaching out. When we look at these pressures our community silently lays on us, we see increases in symptoms such as low self-esteem, difficulty eating/sleeping, feeling scared. What’s even scarier is that research shows over 42% of South Asian women believed domestic violence to be part of their kismet (faith), leaving women to think they cannot and should not reach out for support. There is also a taboo against women using mental health services.

Many South Asians who migrate to the U.S. actually have no knowledge of intimate partner violence and related services – it is believed this is a silent experience you have to endure. This feels especially important since social isolation was a high predictor of domestic violence and channels into mental health symptoms of depression and anxiety. The stigma related to abuse reporting allows violence to remain unaddressed in our community while the rates of violence are on a rise. 

Rampant Violence Against South Asian Women

Research conducted by Boston University found that over 40% of South Asian women admitted to experiencing physical or sexual violence in their current relationship – and these rates are even higher for women who migrated to the states for marriage. Much of the shame comes from being socially ostracized when victims seek support since there is the notion of breaking izzat or family honor. And we may not like to admit this, however, the reality is South Asian culture historically supports the subjugation of women.

In the last three decades, Congress has made numerous changes to U.S. immigration laws to offer protections for noncitizen victims of domestic violence and crime. The Immigration Reform Act of 1990 created the “battered spouse waiver,” which allows victims of domestic violence who obtained conditional permanent residency based on their marriage to a U.S. citizen to file an application to remove that conditionality without the assistance of their spouse if they are in an abusive relationship. 

The Violence Against Women Act (VAWA) of 1994 included provisions to allow noncitizen victims of domestic violence to obtain immigration relief independent of their abusive spouse or parent through a process called “self-petitioning.” The Battered Immigrant Women Protection Act of 2000 (VAWA 2000) created new forms of immigration relief for noncitizen victims of violent crime (“U” visas) and victims of sexual assault or trafficking (“T” visas). Finally, the Violence Against Women Act of 2005 expanded these protections and included some victims of elder abuse.

Protection Against Deportation

If eligible, Form I-360 Self-Petition (VAWA petition) can be filed with supporting documentation. There is extensive evidence that must be gathered including evidence of battery/abuse/extreme cruelty and proof of the qualifying relationship to the abuser. Immigrants who can establish the basic requirements outlined below will be given a “prima facie” determination and then be eligible for certain public benefits. If the VAWA petition is approved, the immigrant is granted deferred action status in most cases. Deferred action means that removal, or deportation, proceedings will not be initiated. Applicants are also eligible for work authorization upon approval of their VAWA petition.

If the VAWA petition is approved, the immigrant is granted deferred action status in most cases. Deferred action means that removal, or deportation, proceedings will not be initiated.

Once the VAWA petition has been approved, immigrants are classified into categories based on a preference system. Self-petitioners who are immediate relatives of U.S. Citizens (spouses, parents, unmarried children under the age of 21) are eligible to adjust status to a lawful permanent resident status when their VAWA petition is approved. Spouses and children of lawful permanent residents must wait for an immigrant visa to become available for their category. These petitioners will be able to obtain work authorization until they are eligible to apply for permanent residency.

The process to apply for lawful permanent residence includes a criminal check by fingerprinting and completion of a medical exam. Applicants might be barred from permanent residency if they have a record of involvement with drugs, prostitution, or other crimes, if they committed visa fraud, were previously deported, or have certain other “bad marks” against them. Waivers are sometimes available for criminal or immigration issues but intending immigrants with these complications are advised to have their cases reviewed by an immigration attorney. 

Battered spouses or children of U.S. citizens or permanent residents who are the subjects of deportation proceedings may also be eligible for this form of relief through VAWA cancellation of removal. Successful cancellation of removal results in LPR status for the victim, and his or her noncitizen children ultimately receive a green card as well. To qualify for VAWA cancellation of removal, a victim must prove: He or she has been battered or subjected to extreme cruelty by a U.S.-citizen or LPR spouse or parent; Physical presence in the United States for 3 years; Good moral character; That removal would cause extreme hardship.

As an alternative to VAWA if the abuser is not an U.S. Citizen or LPR and a serious crime has been committed by the abuser against the victim then he or she can apply for U visa.  For an immigrant survivor of crime to qualify for U nonimmigrant status, they must obtain and submit to USCIS a certification of their helpfulness to law enforcement. A law enforcement agency (LEA) must complete Form I-918, Supplement B, “U Nonimmigrant Status Certification,” attesting to the survivor’s assistance. In July 2019, the Department of Homeland Security issued an updated guide to LEAs.

One drawback to the U visa is that the law limits the number given out to 10,000 per year. In the past, the cap has been reached before the end of the year. There is no similar restriction on VAWA. The U visa cap has the added side effect of creating an enormous backlog for U visa petitions. In February 2020, for example, the Vermont Service Center was processing U visa applications from September 2015. After a petition is approved, applicant might be placed on a waitlist known as “deferred action” for several years while waiting for a U visa to become available. After receiving a U visa, applicant will have to wait another three years before applying to adjust status and get a green card.

By contrast, in February 2020 the processing time for a VAWA self-petition was about two years. In most cases, applicant can file to adjust status at the same time as their petition. If his or her adjustment of status application is already pending, he/she can incorporate it into their VAWA self-petition. Unequivocally, VAWA is a much faster path to a green card than a U visa.

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Amy Ghosh is a practicing lawyer in Los Angeles.  She migrated to USA in 1987 and has been married to a (retired) rocket scientist for 35 years. She has two adult children. Before becoming an attorney, she was a biochemist and worked for several well-known hospitals and laboratories. Ghosh continues to be very much in touch with her motherland India and her favorite city Calcutta.  She has recently produced a Bengali movie Urojahaj-The Flight by highly acclaimed film maker Buddhdeb Dasgupta. Ghosh is continually looking for meaningful opportunity to contribute to the society through her legal and social work.