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Victims of Domestic Abuse and U.S. Citizenship

The Violence Against Women Act (VAWA) is a law that protects and aids victims of abuse. Though the law states “women”, it applies to men, women, and children. As a result of the passage of VAWA, programs that protect and provide services to victims have increased and expanded in America.

For immigrants, this law is especially helpful to victims who want to become U.S. citizens, but are worried for their safety. If you’re a victim of violence and the abuser (spouse, child, or parent) is a U.S. citizen or holds a green card, you may be eligible to petition for a visa. More importantly, the process can take place in a way that would be safest for you: all paperwork can be filed without the abuser’s knowledge. The National Domestic Violence website contains more information for victims.

Roughly there are three categories for those who can petition for a visa using VAWA:

1. Spouse: if your spouse has abused you, and he or she is a U.S. citizen or permanent resident, you can file a petition for yourself. You can also apply for your children, if they are unmarried.

2. Parent: if your spouse has abused your child, you can petition for yourself and your child. In addition, you can petition for your children who were not abused. Sometimes, parents are abused by their children. In this case, if your son or daughter is a U.S. citizen, you can also petition for a visa.

3. Child: you qualify as a child if you are under the age of 21, have not been married, and the parent who abused you is a U.S. citizen. If your parent(s) abused you and you have children of your own, you can petition for them. If you have passed the age of 21, but younger than 25, then you can still apply but you will need to demonstrate that the delay in filing was due to the abuse.

If you belong to one of the categories listed above, you may be eligible to petition. But you must meet another set of requirements. This is a common feature of immigration forms. You must not only meet an initial set of criteria, but your specific case must fall into eligibility requirements as well.

If your spouse abused you but is not a U.S. citizen or green card holder, you might still be able to petition if the marriage ended due to death or separation (divorce) – but you must file within 2 years of the end of the marriage. Or, your spouse lost his citizenship or status as a permanent resident because of a domestic violence issue (again, you must file within 2 years of your spouse losing the status). Another option is that you thought you were legally married but your spouse was married to another person, making your marriage unlawful. These are just some of the conditions that must be met in order to establish that you were a victim of abuse. In addition, several other qualifications must be met. For example, it must be true that you lived with the abuser and that you did not get married just for immigration purposes.

There is a different set of requirements for a child who is petitioning or if you are petitioning for a child. The child must be able to prove his/her relationship to the abuser. If you are older than 14, you have to demonstrate that you have “good moral character”. And again, you had to have lived with the abuser.

For parents, the criteria are quite similar to the facts mentioned above. You had to have been abused, living or lived with the abuser, and have “good moral character”. If the abuser is no longer a U.S. citizen or had their green card revoked, it had to have been because of an action of domestic violence, and you must apply within 2 years of their change in status.

If you believe you are eligible to petition for a visa through VAWA, you will need to file Form I-360 plus all other documents that provide USCIS with evidence. The form comes with other benefits besides granting you a visa. If your form is approved, you might be eligible to apply for a work visa. Victims of abuse often remain with their abuser due to financial constraints. With a work visa, you may be able to finance yourself and your children independently.

An approved I-360 also opens the doors to green card issuance. Additional forms must be filed in order to apply for a permanent residence.

For more information about petitioning through VAWA, contact specialized Immigration Attorney Phillip Kim.

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Immediate Relative of a U.S. Citizen? How You can Apply for a Green Card

One of the most popular ways of becoming a U.S. citizen is through an immediate family member. When it comes to applying for a visa, immediate relatives are given top priority.

There are an unlimited number of visas available for family members. So, if you are an immediate relative of a U.S. citizen, you will not need to be waitlisted until a visa number becomes available. Usually, a visa should be available right away.

You are designated as an immediate relative if you are the spouse, child, or parent of a U.S. citizen. As a child, you must be under the age of 21 and unmarried. If you are applying as the parent, the U.S. citizen must be at least 21 years of age.

You may apply for a green card either while you are in the U.S. or while you are abroad.

If you are currently in the U.S., you can complete the application process in one step: you file an I-485 and your U.S. citizen relative petitions with Form I-130. This must be done at the same time. Filing forms can be complicated, and one mistake could result in a rejection of your request. It is recommended that you seek the assistance of an attorney who is specialized in immigration to help you file these forms.

Sometimes, the petitioner (the U.S. citizen you are related to) files the I-130 early. In this case, you can still file an I-485 as long as the petitioner’s request has not been rejected. When you receive a Notice of Action that tells you that the I-130 has been approved, you can submit from I-485. You will have to include a copy of the receipt or approval notice.

If you are not currently in the U.S., but are an immediate relative of a U.S. citizen, you have a different process to go through. First, the U.S. citizen must file form I-130 and it must be approved by USCIS. When USCIS approves of the petition, you must wait until they notify you that you are eligible to apply for a visa. When a visa is available, it will be issued to you. Once you have your visa, you can travel with it and you will become a U.S. permanent resident when you enter the U.S. If you fail to apply for a visa within one year after the Department of State has told you that you are eligible, your petition could be terminated. This entire process is known as consular processing.

Some conditions make it difficult for you to apply for a visa or green card through an immediate relative. In immigration, good timing makes all the difference. If you are applying as a child of a U.S. citizen, you must apply before you reach the age of 21. Once you pass that age, you will be moved into a different visa preference category that will make it more difficult to apply through a U.S. citizen parent. A visa may not be available to you immediately, and this will cause a delay in adjusting your status or processing your request for a green card. So, it’s important to begin the visa application process as early as possible.
On the same note, sometimes it is possible for a person to pass the age of 21 and still legally be called a “child”. Under the Child Status Protection Act, it is possible that USCIS will determine your age based on the date your parent files the I-130 for you. For example, if a parent files the form while the child is 20 years old, it may be possible to request that the child’s age be determined by that date.

Another factor that will make the immigration process lengthier and sometimes impossible is marriage. If you are under the age of 21, applying for a green card through a U.S. citizen parent, and married, then you no longer fall in the category of “immediate relative”. This means that your status will change from top priority for a visa to third priority, and a visa will not be available for you right away. It is important to keep USCIS updated on any change in your marital status after the I-130 has been filed and before you receive a visa or permanent status.

Finally, some situations we have come across specifically include:

A spouse has entered the U.S. with a different type of visa (sometimes a student visa or visitor’s visa)

The spouse of family member’s visa has expired and they are seeking a change in status or to apply for a green card through an immediate relative

Green card renewal – you can renew your green card whether it is expired or not. Past criminal convictions will affect your chances for obtaining a renewal.

If you have any questions about applying for a visa or green card through an immediate relative, please contact Immigration Attorney Phillip Kim.