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Accessing Resources: Public benefits

Additional eligibility requirements & Practice issues

 

Date of entry into the US and “five-year waiting period”

 

Immigrants who are or become “qualified immigrants” and entered the US before August 22, 1996, are generally eligible for the same public benefits available to US citizens.

 

Immigrants who are or become “qualified immigrants” but entered the US on or after August 22, 1996 are generally prohibited from receiving “federal means-tested public benefits” - Temporary Assistance for Needy Families (TANF), Medicaid, Children’s Health Insurance Program (CHIP), and Supplemental Nutrition Assistance Program (SNAP) benefits - for the first five years after obtaining “qualified immigrant” status.[1]

 

A few groups are exempt from the five-year waiting period:

  • Refugees
  • Asylees
  • Victims of trafficking
  • Amerasians
  • Cubans/Haitian entrants
  • Iraqi and Afghan special immigrants
  • Immigrants granted withholding of deportation or withholding of removal
  • Veterans and immigrants on active military duty, their spouses (and surviving spouses, if they have not remarried), and dependent children

 

This means these groups of “qualified immigrants” may be eligible for federal means-tested public benefits without a waiting period, regardless of their date of entry into the US. 

 

Supplemental Security Income (SSI), however, is more restrictive.  These groups can receive SSI only during the seven year period after receiving the relevant immigration status:

  • Refugees
  • Asylees
  • Victims of trafficking
  • Cuban/Haitian entrants
  • Amerasians
  • Immigrants granted withholding of deportation (removal)
  • Iraqi and Afghan special immigrants

 

Optional state bar

 

A few states deny TANF and/or Medicaid to certain “qualified immigrants,” even if they complete the five year waiting period. In the states that choose to do so, the following groups are exempt from this restriction:

  • Refugees
  • Asylees
  • Victims of trafficking
  • Amerasians
  • Cubans/Haitian entrants
  • Iraqi and Afghan special immigrants
  • Immigrants granted withholding of deportation
  • Veterans and immigrants on active military duty, their spouses (and surviving spouses, if they have not remarried), and dependent children
  • Lawful permanent residents who meet a 40 work-quarter (10 years) requirement

Note that TANF laws and regulations include special provisions for “qualified immigrant” survivors (see “TANF Family Violence Option”).

 

See “State and locally-funded benefits” for a discussion of state options.

 

Sponsor deeming

 

“Sponsor deeming” rules may affect income eligibility for   some public benefits. Under immigration law, certain immigrants must have a US citizen or lawful permanent resident “sponsor” in order to receive lawful permanent residence:[2]

  • Family-based immigrant petitioners
  • Employment-based immigrant petitions where the immigrant is coming to work for a relative or a business where a relative owns 5% or more of the employing entity.

 

The family member must sign and file an affidavit of support with US Citizenship and Immigration Services (USCIS) that states the family member will “sponsor” the immigrant, which means to be financially responsible for the immigrant. Sponsor deeming rules in some public benefit programs assume that immigrant applicants have full access to the income and resources of their sponsors.

 

Sponsor deeming rules render many immigrants with sponsors ineligible for benefits. “Qualified immigrant” survivors, however, are exempt from sponsor deeming requirements.[3]

 

In addition, some family- or employment-based (as described above) immigrants are not required to file affidavits of support (i.e., they do not need sponsors):

  • Immigrant survivors who have applied for VAWA-specific immigration relief.[4]
  • Immigrants who have earned or can be credited with 40 qualifying work-quarters.[5]

 

Also, some family- or employment-based (as described above) immigrants who have a sponsor may be exempted from the sponsor-deeming requirements when filing for public benefits.[6]

  • Immigrants with family-based visas may be exempted from the sponsor deeming requirements:

o   If the affidavit of support was filed before December 17, 1997 or was filed after that date but is a Form I-134 affidavit of support (these are not legally enforceable) or

o   If they are survivors whose aggressor is their spouse or parent, or related to their spouse or parent and residing in the same household. This exemption is for a 12 month period but can be extended (with regard to theiraggressor’s income only) if the abuse has been recognized by a court, administrative law judge or the USCIS. To qualify for this exemption, the survivor cannot be living with the aggressor, and must show a substantial connection between the abuse and the need for the federal benefit.

  • Indigent immigrants determined by the benefits provider to “be unable [without assistance] to obtain food and shelter, taking into account the alien’s own income plus any cash, food, housing, or other assistance provided by other individuals, including the sponsor.” This exemption is valid for one year and may be renewable for additional one-year periods.

 

40 work-quarters

 

Lawful permanent residents who meet a 40 work-quarter (10 years) requirement may be eligible for some benefits without a waiting period. A qualifying work-quarter is:

  • a three-month period
  • with enough income earned to qualify as a Social Security quarter
  • during which the worker did not receive federal means-tested public benefits (this last point applies to work quarters counted after 1996).

The Social Security Administration (SSA) determines the required amount of income for a qualifying quarter (this amount changes every year, based on inflation).

 

A “qualified immigrant” may accrue 40 work-quarters before ten years by getting credit for quarters earned by a spouse or parent. A child applicant may count work done by a parent prior to the child applicant’s 18th birthday, and a married or widowed immigrant may count any work done by the spouse during the marriage. Divorced immigrants, however, cannot count work done by their spouses during the marriage.

 

A qualifying work-quarter is calculated based on how much a person earns over a calendar year. For example, if the SSA determines that during a calendar year a qualifying quarter is credited for every $830 earned, a “qualified immigrant” who worked four months that year and earned $1700 will be credited with two qualifying quarters during that year, if the person did not receive federal means-tested public benefits during those four months.

 

Most employment is valid for the purpose of counting qualifying quarters, including work performed when the immigrant was undocumented, did not have federal work authorization, and/or when no income taxes were withheld from earnings. The earnings, however, must be recorded by the SSA.  It is much easier to get an accurate record of work completed if the individual has a Social Security number (SSN) (see below), which is used to report an individual’s wages to the government.

 

See “Public benefits access for battered immigrant women and children” in the manual Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrantsfor tips on calculating qualifying quarters.[7]

 

PRUCOL

 

“Persons who are permanently residing in the US under color of law,” or PRUCOL, is not an immigration status, it is a benefits eligibility category used in some states.[8]  PRUCOL generally means that the Department of Homeland Security is aware of a person’s presence in the US and does not intend to remove (deport) the person. PRUCOL has been interpreted differently by different states and sometimes by different benefits programs within the same state. PRUCOL may include persons in the following groups:

  • Who have filed VAWA, T-visa, or U-visa immigration cases
  • With an approved immediate relative visa petition
  • Who filed for adjustment to legal permanent resident status
  • Who have been granted deferred action
  • Who have been granted family unity
  • Who have been granted a stay of removal (deportation)
  • Who have lived in the US continuously since before January 1, 1972

 

Advocates should find out whether any benefits programs in their communities use PRUCOL as an eligibility category, and if so, which categories of immigrants the program(s) consider to be PRUCOL, and what the documentation requirements might be.

 

Social Security numbers (SSN)

 

The Social Security Administration (SSA) issues two types of SSNs: work-authorized and non-work.

 

All federal means-tested public benefits - Temporary Assistance for Needy Families (TANF), Medicaid (except emergency Medicaid), Children’s Health Insurance Program (CHIP), Supplemental Nutrition Assistance Program (SNAP), and Supplemental Security Income (SSI) - require applicants to provide an SSN. In general, if an applicant does not have an SSN, the state agency must assist the individual in applying for one by providing a letter explaining why it is needed[9] and other documentation assistance.

 

Many resources are available without an SSN, for example:

  • SSNs are not necessary to register for school or apply for school lunch programs.[10] The school lunch application may ask for an SSN but cannot require it as a condition of eligibility.
  • Many private companies, such as banks and credit companies, may ask for SSNs for identification purposes, but they generally are not required (if requested, many organizations will accept another form of identification).
  • Although SSNs are required for the major public housing programs, if one individual in a household opts not to declare an eligible immigration status, they do not need to provide an SSN. The rent will be prorated based on the number of eligible persons in the household.

 

Work-authorized SSN

 

Only individuals who are US citizens or are immigrants with work authorization may receive a work-authorized SSN.

 

Immigrant survivors with approved VAWA self-petitions are eligible to apply for and receive work authorization[11] and, once received, they may apply for a work-authorized SSN.

 

In order to receive a work-authorized SSN, the applicant must prove:[12]

  • Age (documentation includes birth certificate, religious or hospital record of birth, or passport)
  • Identity (documentation includes driver’s license; passport; identity card; US Citizenship and Immigration Services document; school, medical, or marriage record)
  • US citizenship or work-authorized immigrant status and, for some immigrants, an employment authorization document

 

Non-work SSN

 

Non-work SSNs may be required for immigrant survivors without work authorization to apply for public benefits.[13] In order to receive a non-work SSN, the applicant must prove:[14]

  • Age (documentation includes birth certificate, religious or hospital record of birth, or passport), and
  • Identity (documentation includes driver’s license; passport; identity card; US Citizenship and Immigration Services document; school, medical, or marriage record), and
  • Legal requirement for SSN as a condition for receiving the federally-funded benefits or service, or
  • State government requirement for SSN to administer a state benefit program.

 

Immigrants without work authorization who are entitled to the following public benefits are eligible to apply for a non-work SSN:[15]

  • Temporary Assistance to Needy Families (TANF)
  • Old-Age, Survivors, and Disability Insurance (OASDI) (Title II benefits under the Social Security Act, commonly known as Social Security or retirement benefits[16])
  • Medicaid (except emergency Medicaid)
  • Children’s Health Insurance Program (CHIP)
  • Medicare benefits for end-stage kidney disease patients
  • Supplemental Nutrition Assistance Program (SNAP)

 

The SSA will not issue replacement non-work SSN cards. If the card is lost, stolen, or destroyed, the advocate or the immigrant survivor will need to contact the SSA each time evidence of the SSN is needed for an allowed purpose, and provide the name and phone number of the benefits worker, court clerk, or third-party agency that needs to know the survivor’s SSN. The SSA will contact them directly and notify them of the survivor’s SSN.[17]

 

SSNs for US-born children

 

The SSA automatically assigns an SSN to children at birth, regardless of whether the parent(s) has a valid SSN. If immigrant survivors are pregnant, they should be informed that their child can and should be assigned an SSN, regardless of whether the survivors have one. Advocates should be familiar with commonly-used birth options in their communities (e.g., hospitals, home births) and the processes and requirements for filing birth certificates, so they may advise survivors to speak to the person filing the birth certificate about obtaining an SSN card for their child.

 

Role of the advocate

 

  • Advocates should assist immigrant survivors to gather the documents needed to file for a work-authorized or non-work SSN. Advocates should accompany immigrant survivors to the Social Security Administration (SSA) offices when they apply, because SSA caseworkers may not fully understand the avenues through which an immigrant survivor may be applying for an SSN, especially regarding eligibility under VAWA (see above).[18]
  • Section 7 of the Privacy Act of 1974 generally prohibits states and benefits workers from denying benefits to individuals who refuse to disclose their SSN, unless it is required by federal statute.[19] The Tax Reform Act of 1976, however, exempts state agencies from Section 7 of the Privacy Act when SSNs are used “in the administration of any tax, general public assistance, driver’s license, or motor vehicle registration law within its jurisdiction.”[20],[21] Know your state’s laws and procedures for collecting taxes and accessing these resources.
  • States and benefits workers risk violating the Privacy Act if they require an applicant’s family members (i.e., persons who are not applying for benefits themselves) to disclose their SSNs as a condition for approving an applicant’s eligibility.[22] Although there is no prohibition against requesting the SSN of non-applicants, states that do so are required to inform the non-applicant if disclosure is voluntary or mandatory and what use will be made of the SSN, or information about the lack of am SSN.[23] Know your state’s benefits agencies’ policies and procedures regarding collecting SSNs of non-applicants.

Tools & Resources

 

See the following in the manual Public Benefits Toolkit:

·      “Evidence list for battered immigrant women seeking Social Security numbers”[24]

·      “Evidence list for an undocumented immigrant and/or child to obtain Social Security numbers”[25]

 

The SSA Program Operations Manual Systemgoverns the issuance of work-authorized and non-work SSNs (see, for example, RM 10210.010 Evidence policy for an original or new SSNfor the general requirements and related policy).



[1]Center on Budget and Policy Priorities (February 27, 2014). Introduction to the Supplemental Security Income (SSI) Program. 

[2] Interoffice Memorandum on Consolidation of Policy Regarding USCIS Form I-864, Affidavit of Support (AFM Update AD06-20) from Michael Aytes, Acting Director for Domestic Operations of US Citizenship and Immigration Services to Regional, Service Center, District, and National Benefits Center Directors (June 27, 2006).

[3]Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[4] Interoffice Memorandum on Consolidation of Policy Regarding USCIS Form I-864, Affidavit of Support (AFM Update AD06-20) from Michael Aytes, Acting Director for Domestic Operations of US Citizenship and Immigration Services to Regional, Service Center, District, and National Benefits Center Directors (June 27, 2006).

[5] US Department of Health and Human Services, Administration for Children & Families, Office of Family Assistance (April 17, 2003). TANF-ACF-PI-2003-03 (Deeming of sponsor’s income and resources to a non-citizen).

[6] Ibid.

[7] See pages 254-255 (“Quick tips”).

[8] Fata, S., Orloff, L.E. & Drew, M. (2013). Access to programs and services that can help victims of sexual assault and domestic violence. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[9] US Department of Health and Human Services (August 22, 2012). Access to HHS-funded services for immigrant survivors of domestic violence.

[10] Social Security Administration (August 2013). Social Security numbers for noncitizens.

[11] US Citizenship and Immigration Services (January 3, 2014). Battered spouse, children & parents.

[12] Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[13] Social Security Administration (July 31, 2014). RM 10211.600 Requests for an SSN from an alien without work authorization.

[14]Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[15] Social Security Administration (July 31, 2014). RM 102111.610 Valid reasons to assign an SSN for nonwork purposes.

[17]Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[18] Ibid.

[19] Ibid.

[20] 42 USC Sec. 405 (c)(2)(C)(i)

[21] US Department of Justice, Office of Privacy and Civil Liberties (June 17, 2014). Overview of the Privacy Act of 1974.

[22] Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[23] Ibid.

[24] See pages 164-166.

[25] See pages 709-712.

 

Accessing Resources: Public benefits

Eligibility requirements

 

Federal public benefits law distinguishes between three kinds of immigrants:

  • “Qualified immigrants” who entered the US before August 22, 1996
  • “Qualified immigrants” who entered the US on or after August 22, 1996
  • Immigrants who are not “qualified immigrants”

 

Immigrant survivors who meet certain conditions are a category of “qualified immigrant.” In this section, we will look at who is a “qualified immigrant,” and pay particular attention to who is a “qualified immigrant” survivor.

 

Who is a “qualified immigrant?”

 

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996[1] (the Welfare Reform Act) and, later, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996[2] (IIRAIRA) broadened access to public benefits to some immigrants who have been battered or subject to extreme cruelty.

“Qualified immigrants”[3] are those who are eligible to apply for public benefits and include:[4]

  • Lawful permanent residents
  • Persons granted conditional entry
  • Refugees
  • Asylees
  • Persons granted withholding of deportation or withholding of removal
  • Persons paroled into the US for a year or more
  • Cuban or Haitian  entrants
  • Victims of trafficking who have filed for and received prima facie determination, or have been awarded a T-visa[5]
  • Spouses, children, or parents of children who have been battered or subject to extreme cruelty by a US citizen (USC) or lawful permanent resident (LPR) spouse, parent, or other member of their household with the USC/LPR spouse or parent’s consent. These applicants must also have a pending or approved VAWA-specific immigration case or an approved family-based petition filed by the spouse or parent.

Note that U-visa applicants and recipients are not considered “qualified immigrants.”

 

The definition of “battered or subjected to extreme cruelty” includes but is not limited to:[6]

 

Being the victim of any act or threatened act of violence, including forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that in and of themselves may not initially appear violent but that are a part of the overall pattern of violence.

 

This definition is broader than that of many state domestic violence statutes in that it includes emotional abuse; it may be necessary, therefore, for advocates to educate state benefits agency staff about this more inclusive definition.

 

In order for a survivor to be recognized as a “qualified immigrant,” (1) their spouse or parent must be a USC or LPR, and (2) the aggressor must be the spouse, parent, or member of the spouse’s or parent’s family living in the same household as the immigrant survivor.

 

A “member of the spouse’s or parent’s family” is defined as:[7]

 

  • Any person related by blood, marriage, or adoption to the spouse or parent of the immigrant survivor.
  • Any person having a relationship to the spouse or parent of the immigrant survivor that is covered by the civil or criminal domestic violence statutes of the state or Indian country where the immigrant survivor resides.
  • Any person having a relationship to the spouse or parent of the immigrant survivor that is covered by the civil or criminal domestic violence statutes of the state or Indian country in which the immigrant survivor received a protection order.

 

“Qualified immigrant” status requirements for immigrant survivors

 

The US Attorney General issued additional guidance to determine if an immigrant survivor is a “qualified immigrant” for benefits purposes.[8]

  • The US Citizenship and Immigration Services (USCIS) or immigration judge:

o   Has approved a VAWA self-petition or family-based visa petition (filed by the abusive spouse or parent), OR

o   Has found that the survivor’s application for VAWA-specific immigration relief  sets forth a prima facie case; OR

o   Has granted cancellation of removal, OR

o   Has granted suspension of deportation, AND

 

  • The immigrant or immigrant’s child has been battered or subjected to extreme cruelty in the US by a USC or LPR spouse or parent, or by a member of the spouse’s or parent’s family living in the same household (the spouse or parent consented/acquiesced to the battery or cruelty and, in the case of a child, the immigrant did not actively participate); AND
  • There is a substantial connection between the abuse and the need for the public benefit sought; AND
  • The immigrant survivor or child no longer resides in the same household as the aggressor.

 

Proof of status as a “qualified immigrant” survivor

 

Immigrant survivor applicants for public benefits will need to establish that they meet the above criteria in order to be considered a “qualified immigrant:”

 

1.     “Qualified immigrant” survivors must provide with their applications for benefits a copy of the approval notice or notice of prima facie determination from USCIS or an immigration judge for their VAWA-specific immigration relief or family-based visa.

  • If they are applying under a family-based visa, they must also provide proof of the battery or extreme cruelty (e.g., order of protection, police report, photographs, medical records, declarations from others or their own credible testimony) having taken place in the US.
  • If they are applying under a VAWA-specific form of immigration relief, they are not required to provide evidence of abuse beyond their immigration case approval or prima facie determination letter. This is because in order to have received either one, the immigration authorities have already determined battery or extreme cruelty and the benefits agency should not re-adjudicate this issue.

 

 

2.     The “qualified immigrant” survivor’s benefits application must establish that there is a “substantial connection” between the abuse and the need for the public benefit.

Circumstances that indicate “substantial connection” include, but are not limited to, needs or events such as the following:[9]

 

  • To become self-sufficient after separation from the aggressor
  • To escape the aggressor or aggressor’s community
  • To ensure the safety of the survivor, or the survivor’s child or parent
  • To compensate for the loss of financial support after separation from the aggressor
  • The loss of a job or reduced earnings because of the abuse
  • The need to leave a job for safety reasons
  • The loss of a home after separation
  • Legal proceedings related to the abuse (child custody, divorce, etc.)
  • Fear of the aggressor jeopardizes the survivor’s ability to care for their children
  • Medical attention, mental health counseling, or disability
  • Nutritional risk or need resulting from the abuse or following separation
  • Medical care for a pregnancy resulting from the relationship with the aggressor, the abuse, or aggressor’s sexual assault
  • To replace medical coverage or health care services lost after separation

 

Although technically an immigrant survivor is not a “qualified immigrant” until they live separately from the aggressor, many immigrant survivors need the safety net of benefits before they do so. Consequently, the US Attorney General has stated that benefits workers should complete the eligibility determination process and approve the immigrant survivor for benefits before the survivor separates from the aggressor.[10]

 

3.     States have addressed this in two ways: Some determine eligibility and award benefits immediately, then require that immigrant survivors return within a month to show that they no longer live with the aggressor. Others determine eligibility and inform approved immigrant survivors they will receive benefits as soon as they no longer live with the aggressor. Evidence of separation includes but is not limited to:[11]

  • Orders of protection removing the aggressor from the survivor’s home
  • Orders of protection ordering the aggressor to stay away from the survivor’s home
  • Letters from the landlord, family, friends, neighbors, or victim advocates stating the aggressor no longer lives at the survivor’s home address
  • Affidavits from survivors stating the aggressor no longer lives with them
  • New lease agreement proving the survivor does not live with the aggressor
  • Utility bills proving the survivor does not live in the aggressor’s home

 

Advocacy notes

 

  • The definition of “qualified immigrant” is restrictive in its inclusion of survivors of sexual violence, in that it recognizes only sexual violence within the contexts of some forms of family violence (where the aggressor is a USC or LPR spouse or parent of the immigrant survivor, or a relative of the spouse or parent who lives in the same household) and trafficking. Advocates working with survivors of sexual violence at the hands of someone else (e.g., a non-spouse partner, an acquaintance, or an employer) should be aware that the survivors:

o   In the event of sexual violence in the workplace, may merit other forms of legal support based on the employers’ potential violations of trafficking and civil rights laws.

o   May be eligible for other classes of public benefits:

§  Benefits that have been explicitly exempted from eligibility requirements because they are necessary to protect life and safety;

§  State-level benefits established by state legislatures and funded by state (not federal) dollars to offer protections to more categories of immigrants; or

§  Benefits and services provided by charitable nonprofit organizations.

 

  • The definition of “qualified immigrant” is also restrictive because it requires an immigrant survivor to separate from the aggressor. This is clearly not appropriate for some survivors, and so they may not qualify for some public benefits. But they are still eligible for others:

o   Benefits that have been explicitly exempted from eligibility requirements such as those necessary to protect life and safety,

o   State-level benefits established by state legislatures and funded by state (not federal) dollars to offer protections to more categories of immigrants.

o   Benefits and services provided by charitable nonprofit organizations

 

  • An application for immigration relief is a prerequisite for an immigrant survivor to become a “qualified immigrant.” Evidence of eligibility and filing for certain forms of immigration relief helps in safety planning in that it can protect an immigrant survivor from immigration law enforcement detention and removal (deportation) and increase access to public benefits.

 

  • Families that include children and parents of different citizenship and immigration status are often called “mixed status” families. Children born in the US may be eligible for public benefits, regardless of whether they were born to citizens, lawful permanent residents, or undocumented immigrants. Immigrant survivors who are not “qualified immigrants” themselves may apply for benefits on behalf of their US citizen or eligible immigrant children.

 

Once immigrant survivors are considered “qualified” immigrants, they may have access to a wider array of services and benefits. Some programs, however, impose additional requirements  that can determine whether an individual is eligible, such as:

  • A waiting period based on an individual’s date of entry into the US or the date they obtained “qualified” status
  • Sponsor deeming rules
  • Work history requirements

See “Additional eligibility requirements & Practice issues” for more information.

 

Tools & Resources

 

The following tools, available in the manual Public Benefits Toolkit present an overview of benefits available, organized by the form of immigration relief accessed:

  • Trafficking victim benefits eligibility process (see pages 132-137).
  • U-visa victim benefits eligibility process (see pages 141-144).
  • VAWA public benefits eligibility process: VAWA self-petitioners, VAWA cancellation of removal, and VAWA suspension of deportation (see pages 148-156).

 

“Immigration status: Work authorization, public benefits, and ability to sponsor children,” also in the manual Public Benefits Toolkit, provides an overview of when individuals with different forms of immigration status receive work authorization, are considered “lawfully present,”[12] are considered “qualified immigrants,” and become eligible for federal public benefits and federal means-tested public benefits.[13]

 

“Evidence list for battered immigrant women seeking public benefits” in the manual Public Benefits Toolkit.[14]

 

 



[2] PL 104-208, Title V, Sec. 501.

[3] Although the term used in the Welfare Reform Act is “qualified alien,” we use the term “qualified immigrant.”

[5] Sec. 211 of the Trafficking Victims Protection Reauthorization Act of 2008 amended Sec. 431(c) of the Welfare Reform Act by recognizing victims of trafficking as qualified immigrants.

[6] Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Attorney General Order No. 2129-97, Federal Register Vol. 62, No. 221 (November 17, 1997). This definition mirrors that of regulations that govern VAWA-specific immigration relief (see Self-Petitioning for Certain Battered or Abused Spouses and Children, Federal Register Vol. 61, No. 59 (March 26, 1996)).

[7] Ibid.

[8] Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[10] Ibid.

[11] Ibid.

[12] See also “Documents typically used by lawfully present immigrants” (available here) by the National Immigration Law Center.

[13] See pages 311-321.

[14] See pages 160-163.

 

Accessing Resources: Public benefits

 

In recognition of the economic hardship that is often imposed by sexual and domestic violence, the federal government has lifted many of the restrictions on immigrant survivors’ access to public benefits.

 

The federal laws that govern public benefits specify that programs and services “necessary to protect life and safety” must be available to everyone, regardless of immigration status. Sexual and domestic violence programs are recognized as “necessary to protect life and safety,” and therefore should serve any immigrant survivor.

 

Moreover, nonprofit charitable[1] organizations have no obligation under these laws to either inquire about the immigration status of persons who seek services,[2] or report this kind of information to immigration authorities.

 

Enhance your practice

 

1. Understand whether or not an immigrant survivor you are working with is eligible for public benefits.

 

There are certain eligibility requirements and advocacy considerations that apply to immigrant survivors who seek access to public benefits available in your state and community. And while advocates should not need to double as public benefits workers, gaining knowledge on immigrant survivors’ eligibility for public benefits is important. It gives advocates a clearer understanding of immigrants’ options, so that they can advocate for the full range of benefits for which survivors may qualify. For example, understanding the technical aspects of who is a “qualified immigrant” can help connect survivors with school social workers and housing advocacy organizations whose work includes linking people with public benefits and services.

 

When working with immigrant survivors who need access to public benefits, advocates must consider these issues:[3],[4]

·      What is the survivor’s immigration status?

·      What are the survivor’s options for immigration relief?

·      Who perpetrated the violence?

·      How long has the survivor been in the US?

·      The state/community in which they reside.

·      Does the survivor have children who are eligible for benefits, even those for which the survivor does not qualify?

·      Can the survivor apply for benefits for themselves and their children without risking being reported to immigration authorities?

See “Prepare for intake” for additional practice guidance.

 

2. Accompany immigrant survivors when they apply for public benefits. As an advocate,

·      You can provide invaluable support and insight to navigating a complex system.

·      You are well-positioned to identify and intervene in instances where immigrant survivors are denied services and benefits to which they are entitled (including language access services; recognition and respect of their rights to confidentiality, privacy, and nondiscrimination, that permit full access to the application procedures; etc.), and inappropriate reports to immigration law enforcement.

·      Your institutional power permits you to do necessary individual advocacy, and also systems and policy advocacy that can help establish safety and security for all immigrant survivors of sexual and domestic violence.

 

3. Remember that federally-funded services designated as “necessary to protect life or safety” and services provided by nonprofit charitable organizations are available to all immigrants. These services can be critical to many immigrant survivors who do not qualify for certain public benefits, including those who are undocumented and those who choose to live with the aggressor.

 

4. Remember that only the federal government regulates immigration; and that state courts and immigration court are mutually exclusive.  

 

In order to qualify for benefits, applicants may need to establish that they are state residents. State residency determination is not the same as immigration status determination. For example:

·      Undocumented immigrants can establish that they are state residents for purposes of securing benefits such as emergency Medicaid or the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) program.

·      But for a small group of immigrants - those who are present in the US on certain non-immigrant visas (visitors, students, or other temporary visas), who are required to maintain residence abroad – it is important to ensure that declaring state residency will not affect their current immigration status, their ability to adjust their immigration status, or their ability to re-enter the US temporarily sometime in the future. Any survivor who has questions about whether declaring state residency could affect their immigration status on one of these types of visas should consult with an immigration attorney.

In all cases, however, state benefit agencies are not in a position to advise applicants about their immigration situation.

 

5. Ensure that immigrant survivors are aware that if their life circumstances change – their immigration status changes or they have a child, for example – their abilities to access benefits may also change. Therefore, it remains critical that advocates assure immigrant survivors that sexual and domestic violence program services are always available, now and in the future, regardless of whether or not another incident of abuse occurs.

 

This section of the Toolkit provides information, resources, and practice guidance on the following subjects to help you navigate public benefits systems and assist immigrant survivors to utilize them:

·      Immigrant-specific eligibility requirements for public benefits

·      Verification and reporting process benefits workers must use to determine eligibility

·      The different classes of public benefits, which include:

o   federal means-tested public benefits;

o   federal public benefits;

o   state public benefits;

o   services necessary to protect life and safety; and

·      Services provided by nonprofit organizations that receive federal funds



[1] See Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Attorney General Order No. 2129.97, 62 Federal Register 61,334 (November 17, 1997), Section D, for definitions of “nonprofit” and “charitable.”

[3] Olavarria, C., Baran, A., Orloff, L. & Huang, G. (2013). Public benefits access for battered immigrant women and children. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[4] Fata, S., Orloff, L.E. & Drew, M. (2013). Access to programs and services that can help victims of sexual assault and domestic violence. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

Accessing Resources: Connecting survivors to community-based resources and support

 

Every survivor brings great strengths, skills and creativity to meeting their everyday needs, even if those strengths and skills are not all obvious at the time that advocates first come in contact with survivors. When advocates try to get a picture of survivors’ networks, key resources, and opportunities to seek or receive additional support, they can help acknowledge and build upon survivors’ strengths and resilience.

 

For many immigrant survivors, community-based supports can be more helpful than systems-based supports for domestic violence. And many immigrant survivors may not qualify for public benefits and traditional “safety-net” types of resources, so thoroughly exploring informal networks and resources is key to being able to create reasonable and helpful goals and plans.

 

Connect survivors to community-based resources: Practice basics

 

The following steps can serve as a guide:

·      Support the participant to identify a few reasonable, practical goals that will be the focus of your work together.Consider how tone and body language can influence this type of conversation with a survivor who may be in crisis, experiencing the effects of trauma, or worried about retaining shelter or other services. These kinds of conversations, if not done sensitively, can feel like orders and/or judgment. For example, a survivor might identify “safety” as a goal. Ask the survivor what “safety” means, in order to (1) understand the things, relationships, actions, etc. that will enhance survivor safety, and (2) help identify current and additional resources that will be useful. Remember to let the survivor know why you are asking these questions, and try to engage the survivor in a conversation – give feedback, offer ideas, etc. – rather than an interview. Some questions you might ask could include, “How will you know that you are safer?” or “What does “safety” look or feel like to you?”

·      Explore existing resources or supports that the survivor already uses to enhance safety.Be creative in asking questions that help the survivor identify people, things, knowledge, etc. that are just part of a daily routine or have become habits. For example, a survivor’s mother and neighbor know that domestic violence is an issue in the family and the children know to call 911 for help.

·      Identify new resources or new ways to use familiar resources that help the survivor move toward their established goals.Advocates’ knowledge of additional resources, survivor rights, and legal remedies will be helpful, of course, but it is also important for advocates to explore how existing resources and opportunities may be more fully utilized. For example, the program could provide a survivor with a 911 cell phone, the survivor can store a copy of essential documents and cash in case of emergency with their mother, and the survivor can join a community group to meet neighbors at the new apartment.

 

 

The Goals, Strengths, and Resources Map  can be used as a guide to conversations with immigrant survivors about their strengths and resources, what they would like to accomplish while they participate in your program, and what additional resources or strategies would be helpful in reaching their goals. Using the examples above –

 

Sample Goals, Strengths, and Resources Map

 

Survivor Goals Existing Supports/Resources

New or Enhanced

Supports or Resources

Impact or Outcomes*

 
What do you want to accomplish or change while we are working together? Who do you call for help on this now? Who has helped you in the past? What resources or supports do you already use for this issue? What would help you get closer to this goal? What is different today than when we started working together on this goal?
1: Safety
  • Mom
  • Neighbor
  • Kids know 911
  • Order of Protection
  • Safety plan for mom and kids
  • Join community group to meet new neighbors
  • Kids have supervised visitation with their dad
Has 911 cell phone and updated safety plan
2: Housing Good rental history
  • Submit 3 rental applications
  • Apply for public benefits

New apartment with friend who shares rent payments

Public benefits for kids ($300/month)

3: Health
  • Exercise regularly
  • Doctor knows about domesti violence
  • Meet with faith leader for counseling
  • Kids in afternoon playgroup
  • Document injuries
Connection with church
4: Job/Employment
  • Makes and sells tamales
  • Brothers owns a restaurant
  • Good relationship with past manager

 

Developed business cards for tamales

 

* This column can be used for assessing or documenting progress toward a specific goal; or for recording impact and outcomes for advocates who want to use this tool for those purposes as well.

 

Connect survivors to community-based resources: Enhance your practice

 

With the survivor, think broadly about the resources available throughout the community, especially those that are not usually designated to address violence and abuse, and whether they are useful and accessible to the survivor. For example:

·      Immigrant communities’ stores, markets, and places of worship can be very helpful resources for survivors. Often these locations will post rooms for rent, employment opportunities, or resources that are culturally or linguistically appropriate. If the survivor frequents any specific store, agency or organization, there may be additional supports available there.

·      Some organizations and community resources are open to everyone. Food banks, for example often have fewer restrictions on who they can serve, and many of them are connected to other resources as well.

·      Families with school-age children often can access additional resources through a school social worker.

 

Some traditional resources might not be accessible or safe for immigrant survivors. Follow the survivor’s lead in order to assess if these resources require additional safety planning, or if alternatives will need to be developed. Some scenarios might include:

·      Some survivors will not want to seek support from culturally-specific resources because of a small or tightly-knit community.

·      Legal resources or law enforcement are not ideal options for survivors from families with mixed immigration status or whose partners have unresolved immigration status.

 

Economic security can be especially challenging for immigrant survivors, for reasons ranging from limited English proficiency to licensure (e.g., nursing) in country of origin that is not recognized in the US. Again, with the survivor, think broadly about the survivor’s skills, experience, and options, for example:

·      Many immigrant families utilize creative income-patching strategies to bring additional resources into the household. Ask survivors if they have any skills or talents that they could use to earn extra money (cooking, caring for children, cleaning, home/car repair, teaching/tutoring, cutting hair, sewing, etc.) Sometimes, these talents can turn into a career path. Be mindful, however, that US immigration law requires that immigrants receive permission to work (work authorization).

·      Think about whether there are opportunities for sharing or trading resources. For example, ask survivors if there is someone they could share an apartment with, or if there is someone else with children who can trade child care to enable the survivor to work, run errands, or apply for jobs or housing.

 

It is vitally important also that we expand our thinking beyond the bare necessities. Survivors deserve more than the bare minimum, and advocates can often elevate survivor resilience by connecting them with resources that build happiness, reduce stress, increase creativity and build social bonds.

 

Help with Legal Cases: Aggressor raises the survivor’s immigration status in family court

 

Many immigrant survivors fear aggressors using the survivors’ immigration status against them in family court and, as a consequence, causing survivors to lose or be separated from their children. These are well-founded fears, as aggressors often use child custody cases as a platform through which to maintain control over survivors and shift the focus away from their own violent acts.[1]

 

However, immigrant survivors are often undocumented for reasons directly related to the abuse, because aggressors refuse to file immigration papers for survivors or cause revocation of the survivors’ immigration status. For example,

  • The survivor is eligible for a spouse visa based on their marriage to a US citizen or to someone who holds a work visa, but the aggressor-spouse files for a more restrictive tourist or fiancé(e) visa for the survivor, instead.
  • The survivor is married to a US citizen or lawful permanent resident aggressor, who has filed a family-based petition in order for the survivor to enter the US. The aggressor then refuses to file the paperwork necessary to change the survivor’s status to that of a legal permanent resident.[2] In this situation, the aggressor uses their control over the survivor’s immigration status to revoke both the survivor’s legal immigration status and the authorization to work legally in the U.S.

 

A survivor’s immigration status should not be considered relevant in custody, orders of protection, divorce, legal separation, child support, visitation, domestic violence, child abuse, or other family law proceedings. If it were rendered relevant in these processes, immigrant survivors with less documentation would not seek protection for themselves or their children for fear of deportation and/or separation from their children, and aggressors would not be prosecuted for their uses of violence. However, aggressors frequently use their control of survivors’ immigration status as a tactic of abuse; and use threats of deportation to keep survivors from calling the police, seeking an order of protection, or talking to anyone about the abuse.

 

Immigrant survivor in family court: Enhance your practice

 

In court, the attorney and/or advocate should seek to establish that sexual and domestic violence has clear relevance to family court proceedings, and court outcomes can enhance safety and security of survivors and their child(ren).

 

The attorney and/or advocate should be very vigilant about monitoring aggressor attempts to reference survivors’ immigration status in family court, or anywhere outside the context of immigration court. These references signal ongoing abuse and attempts to deflect attention from the aggressor’s own behavior.

 

1.     Educate the court about the dynamics of immigration-related power and control, and the specific risks to immigrant survivors’ safety and security.

 

2.     When aggressors try to use a survivor’s lack of legal immigration status in family court proceedings, immediate and longer-term attorney and/or advocate responses should include:

  • Objection as to relevance. Consider having an immigration expert explain this to the court.
  • When children are involved, the survivor’s immigration status is irrelevant to decisions in the best interests of the child(ren).[3] The Uniform Marriage and Divorce Act states a child’s “best interest” includes:

o   The wishes of the child’s parent(s) as to the child’s custody

o   The wishes of the child as to their custodian

o   The interaction and interrelationship of the child with their parent(s), sibling(s), and any other person who may significantly affect the child’s best interest

o   The child’s adjustment to home, school, and community

o   The mental and physical health of all individuals concerned.

Most states also require that courts consider domestic violence when determining the best interest of a child. The American Bar Association has taken the position that any history of domestic violence must be considered a primary factor in the best interest standard.

  • Determine the survivor’s eligibility for immigration relief.

 

3.     When aggressors try to argue that survivors without legal immigration status are a “flight risk,” advocates and/or attorneys should urge the court to require proof that flight is imminent and seek evidence regarding:

  • The survivor’s connections to the US
  • The survivor’s plans to leave
  • Whether the survivor has acquired the means to carry out a plan to leave, such as by purchasing airline tickets

Advocates should assist survivors to gather and present evidence to the court that demonstrates little or no risk of flight.

 

4.     When aggressors try to argue that the survivor is at imminent risk of removal (deportation), advocates and/or attorneys should:

  • Respond that lack of legal immigration status does not mean deportation is imminent. Consider having an immigration expert explain this to the court.
  • Seek expert testimony on the likelihood of removal in the survivor’s case.
  • Educate the court that many immigrant survivors of domestic violence have options for immigration relief (VAWA or U-visa), based specifically on their victimization.

 

Advocates and attorneys should collaborate on judicial education (pre-court) and briefing (in trial court) strategies that best represent the interests of immigrant survivors and their children. Develop a strong “court packet” (resource materials that can be used as evidence, for briefings, and for training) that includes information on sexual/domestic violence against immigrants and VAWA-specific and U-visa immigration relief.[4] In addition to informing the court about the issues and laws, consider educating the court about how these laws enhance justice, safety, and security for survivors. For example:

  • One of the purposes of VAWA was to correct immigration laws that reinforced abuse of immigrant victims by placing their ability to gain permanent legal immigration status under the complete control of the aggressor. VAWA-specific immigration relief alleviates this problem by giving immigrant survivors some measure of control over their own and their children’s immigration status.
  • Similarly, under VAWA Confidentiality, immigration enforcement against the survivor cannot be based solely on information from the aggressor, including that which the aggressor is attempting to introduce in family court.

 

 

 



[1]Orloff, L., Noche, J., Olavarria, C., Martinez-McIntosh, L., Rose, J. & Baran, A. (2013). Countering abusers’ attempts to raise immigration status of the victim in custody cases. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[2]“Adjustment of status” is the process by which an individual’s immigration status is changed from nonimmigrant (i.e., someone who is present in the US on a time-limited visa) to lawful permanent status. For individuals who entered the US on a family-based visa (filed by a US citizen or lawful permanent resident spouse or parent), the instructions for adjustment of status require that the applicant provide proof of the US citizen or lawful permanent resident spouse’s or parent’s own immigration status and proof of the qualifying relationship (spouse or parent).

[3]See also “Countering allegations that immigrant victims are likely to flee the jurisdiction with the children if granted custody” (pages 357-360) in Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[4]See, for example, “Immigration status and family court jurisdiction” (pages 451-466) in Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrantsfor an overview of statutory and case law that supports access to family court for immigrant survivors.

Help with Legal Cases: Prosecutorial Discretion

 

There are several different ways a person could have a case in immigration court or come into contact with immigration law enforcement, including:

  • The denial of an application for immigration status
  • Involvement in criminal activity
  • Entry into the US without proper documentation (at airports or a land border)
  • Presence in the US without proper documentation

 

Undocumented immigrants often fear that if they have any interaction with the immigration system, they will immediately be deported.  Immigrant survivors of domestic and sexual violence may have a heightened fear of this due to misinformation or threats by the aggressors or people misinformed about the special routes to status for victims of domestic or sexual violence.  For this reason, it is important to inform survivors that, rather than simply being removed from the US:

  • There is a court process allowing them to pursue status based on being a victim of domestic or sexual violence.
  • In some situations involving “extraordinary circumstances,” that process may be expedited. “Extraordinary circumstances” include severe financial loss, extreme emergency, humanitarian reason, national interest, and US Customs and Immigration Services’ error or “compelling interest.”[1]
  • Attorneys and advocates may be able to assist survivors who have a case in immigration court or are in immigration detention.

 

Prosecutorial Discretion

 

a.    Prosecutorial Discretion Generally

 

Immigration and Customs Enforcement (ICE) does not have the capacity to enforce immigration laws against the millions of undocumented individuals in the United States.  For this reason, ICE can make decisions about what types of cases are and are not priorities (i.e., giving ICE “discretion” over which cases to “prosecute” or continue with).  In November 2014, ICE amended its guidelines to reflect their enforcement priorities. [2]  Under this new guidance, ICE has three enforcement priorities:

 

§  Priority One: threats to national security, border security and public safety. 

This includes individuals who are engaging in or suspected of terrorism, convicted of a gang-related offenses, felonies, and other serious crimes.  It also includes individuals apprehended at the border or ports of entry who are attempting to enter the country without proper documentation, which may include individuals who are seeking asylee status because they are fleeing domestic and sexual violence back home.[3]

 

§  Priority Two: misdemeanor offenders and new immigration violators.

  This category includes those who entered or re-entered the US unlawfully on or before January 1, 2014; and those who were convicted of multiple misdemeanors or “significant misdemeanors,” which can include crimes of domestic violence.  The issue of conviction is particularly problematic for immigrant survivors when aggressors use the criminal justice system against them, or when lack of language access or legal help results in a survivor’s conviction. The November 2014 ICE Guidance does mention, however, that careful consideration should be given to whether the convicted survivor was also the victim of domestic violence; if so, this should be a mitigating factor (a “mitigating factor” is any fact or circumstance that lessens the severity of or responsibility for a criminal act) in determining whether someone falls in this category.[4]

 

§  Priority Three: other immigration violations.

This category includes those who have been issued a final order of removal on or after January 1, 2014. This is the lowest priority area and the November 2014 ICE Guidance does mention that those in this category “should generally be removed unless they qualify for asylum or another form of relief under our laws or unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.”[5]

 

b.    Prosecutorial Discretion for Survivors

 

The November 2014 ICE Guidance[6] should be read in conjunction with other specific guidance regarding immigrant victims of crimes.  In particular, in June of 2011, the Director of ICE issued guidance with specific instructions for ICE to exercise its prosecutorial discretion when the individual may be a victim of domestic violence, human trafficking or other serious crimes; may be a witness in criminal matters; or may be pursuing civil actions related to protecting their rights (e.g., union organizing, housing, or discrimination disputes.).[7] The memo instructs ICE to exercise all appropriate discretion, on a case-by-case basis, when making and enforcing decisions including but not limited to:

 

  • Issuing or cancelling a Notice of a Detainer
  • Issuing, serving, or cancelling a Notice to Appear (NTA) to start proceedings in immigration court;
  • Determining whom to stop, question, or arrest for an immigration violation
  • Determining whom to detain or to release on bond, supervision, or personal recognizance;
  • Dismissing or settling a case in immigration court
  • Granting deferred action or parole
  • Executing a removal order
  • Joining on a Motion to Reopen

 

Advocates should use this memo in their interactions with ICE as a reminder that survivors of domestic and sexual assault should be afforded special consideration when determining whether an NTA should be issued, settling or dismissing a case in immigration court, or when someone should be released from immigration detention.  ICE may not always agree, especially if the victim has a history of criminal or immigration violations, but it is an important tool for advocates to be aware of and use in cases where it may apply.

 

c.     Prosecutorial Discretion for Parents

 

Another important tool for survivors who are parents is the ICE Parental Interest Directive.[8]  This memo instructs ICE to give special consideration (including exercising prosecutorial discretion with regard to the decision to detain) to parents who are primary caretakers of children, involved in family law litigation, and whose minor children are US citizens or legal permanent residents.  The memo also instructs ICE that should a detainee identify as a parent, efforts should made to permit that person to remain close to family; and to allow parents with pending family law matters to participate in those proceedings.  This memo is a very useful tool for survivors who are in detention and are parents of minor children.



[1]Szabo, K.E., Molina, R., Yang, E. & Orloff, L.E. (2014). Improve immigrant victim safety, gain protection from deportation: Practice tip – file now, get RFE-d later. Washington, DC: National Immigrant Women’s Advocacy Project of the American University Washington College of Law.

[2]Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson, Secretary of the US Department of Homeland Securityto Immigration and Customs Enforcement, Customs and Border Protection, Citizenship and Immigration Services, and the Acting Assistant Secretary for Policy (November 20, 2014).

[3]Individuals entering the country without documentation and who express a fear of returning to their country may request an interview to determine whether they may proceed with the asylum process (see “Protecting the credible fear and asylum parole processes” by the National Immigrant Justice Center). In addition, in August 2014, the Board of Immigration Appeals established that “married women in Guatemala who are unable to leave their relationship” can be a recognized social group for purposes of establishing asylum (Matter of A-R-C-G).  For more information on gender-based asylum claims, see the Center for Gender and Refugee Studies.

[4]Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson, Secretary of the US Department of Homeland Securityto Immigration and Customs Enforcement, Customs and Border Protection, Citizenship and Immigration Services, and the Acting Assistant Secretary for Policy (November 20, 2014).

[5]Ibid.

[6]Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson, Secretary of the US Department of Homeland Securityto Immigration and Customs Enforcement, Customs and Border Protection, Citizenship and Immigration Services, and the Acting Assistant Secretary for Policy (November 20, 2014).

[7]Memorandum on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffsfrom John Morton, Director of ICEto Field Office Directors, Special Agents, and Chief Counsel (June 17, 2011).

[8]Memorandum from John Sandweg, Acting Director, US Immigration and Customs Enforcement, Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities(August 23, 2013).

Help with Legal Cases: Immigration remedies

Other immigration benefits

 

There are other forms of immigration relief that may be accessible to immigrant survivors of domestic and sexual violence. These include, but are not limited to:

 

Family-based immigration

 

Certain relatives of legal permanent residents and US citizens may be able to obtain legal immigration status through a “family petition.”  US citizens (the “petitioner”) may petition for their:

·      Spouses

·      Parents

·      Minor children under 21 years of age

These family members are called “immediate relatives” and may be able to apply for their legal permanent residency or green card at the same time the U.S. citizen relative files the family petition.

 

US citizens may also file family petitions for their siblings and their adult children. For immigration purposes, a “child” is unmarried and under 21, whereas if a person is married and/or over 21, that person is defined as a “son” or “daughter.”[1]Other relatives for whom US citizens may file family petitions include:

·      Unmarried sons and daughters age 21 or over

·      Married sons and daughters

·      Brothers and sisters

The petitions for these family members take significantly longer to process than those for immediate relatives, depending on the type of relationship and the country of origin of the family member.  These family members must wait until visas are available and approved in order to come to the United States. An unmarried adult daughter of a US citizen, for example, must wait about 8 years for their visa number to process and be eligible to enter the US. 

 

Legal permanent residents may file family petitions for their:

·      Spouses

·      Minor children under 21 years of age

·      Unmarried sons and daughters age 21 or over

 

Important Note:Consult with an experienced immigration attorney before filing any family petition(whether by a US citizen or legal permanent resident), in the event a family member has barriers to receiving a green card.  For example, if a family member entered the country without documentation or has other criminal or immigration violations, this could be problematic and affect the outcome of the case, up to and including removal (deportation) of the family member.

 

Employment-based visas

 

Generally, people must apply for these visas from outside the country and then enter the US on a worker visa.  If a person is undocumented in the US and they leave to apply for one of these visas, however, they may trigger what is known as “unlawful presence” bars, which could preclude them from applying for another type of visa.[2]

 

See “Working in the US” (“Trabajar en los Estados Unidos”) by the US Citizenship and Immigration Services for an overview of employment-based visas and who may be eligible.

 

Asylum

 

People who have experienced or fear persecution in their home country based upon their race, religion, nationality, membership in a particular social group, or political opinion may be able to apply for asylum.  Generally, there is a one-year filing deadline for asylum; that means asylum applications should be submitted within the first year after one arrives to the US. There is an exception to this rule if an individual can establish either changed circumstances now create eligibility for asylum, or extraordinary circumstances related to the delay in filing.

 

In screening for asylum, it is important to review:

·      Is the person afraid to return to their home country and if so, why?

·      Has the person ever sought help from authorities in their home country? Why or why not?

·      What does the person think will happen if they were to return to their home country?

·      Would the person feel safe anywhere in their home country?

 

In August 2014, the Board of Immigration Appeals decided the case Matter of A-R-C-G, which established that “married women in Guatemala who are unable to leave their relationship” can constitute an acknowledged, particular social group that forms the basis of a claim for asylum. [3]  This means that abuse suffered abroad can be explored as a potential asylum remedy for survivors of domestic and sexual violence. 

 

See Pro se manual: Asylum, withholding of removal, and Convention Against Torture protection for survivors of domestic violence(Pro se manual: Protección de asilo, extención de expulsion y Convención Contra la Tortura para sobrevivientes de violencia doméstica) by the Center for Gender and Refugee Studies for support for survivors preparing their domestic violence asylum applications.[4]

 

Deferred Action for Childhood Arrivals (DACA)

 

In 2012, President Obama announced the creation of the Deferred Action for Childhood Arrivals (DACA) program in which certain young adults could receive deferred action (and a work permit) if they meet certain criteria:

·      Born on or after June 16, 1981

·      Came to the United States before turning 16 years old

·      Have lived in the United States since June 15, 2007 and were present in the United States on June 15, 2012 and at the time of the DACA application

·      Entered without documents or their lawful immigration status expired as of June 15, 2012

·      Currently in school or graduated high school, obtained GED, or are an honorably discharged veteran of the Coast Guard or armed forces of the US

·      Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

 

See “Consideration of Deferred Action for Childhood Arrivals (DACA)” (“Consideración de acción diferida para los llegados en la infancia”) by the US Citizenship and Immigration Services for information and videos on eligibility for DACA.

 

In November 2014, President Obama announced a DACA extension (extending DACA benefits to a wider range of individuals) and a Deferred Action for Parental Accountability (DAPA) program for parents of US citizen and legal permanent resident children.  Currently, however, implementation of both the DACA extension and the DAPA program is delayed upon review by the U.S. District Court in Texas.[5]  There is no DACA-extension or DAPA program, though the original 2012 program remains in effect. See “New immigration policies” (“Proyectos de ley más recientes”) by the National Latin@ Network for updates regarding DACA/DAPA program and how they affect survivors of domestic and sexual violence.



[2]Time in unlawful presence starts at age 18, thus any time spent unlawfully in the country before a person is 18 years of age will not be counted for unlawful presence purposes.

[3]Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014)

[4]Also available in Haitian Creole.

[5]See, for example, Markon, J. (7 Jun 2015). Obama administration stops work on immigrant program. The Washington Post.

Help with Legal Cases: Immigration remedies

Survivor-specific: U-visas

 

Congress created the U-visa program as part of the Victims of Trafficking and Victim Protection Act of 2000.[1] There are two primary goals for the U-visa:

1)    to help law enforcement increase public safety by facilitating crime reporting by undocumented immigrants

2)    to provide immigration protections to victims of crimes and their families.

These two goals are complementary – the U-visa exists to encourage immigrant crime victims’ collaborations with law enforcement, and a fair process of providing access to a specific form of immigration relief will promote these collaborations. Legal advocates have noted that law enforcement “that posses an understanding of the broader circumstances related to immigrant crime victims, the barriers they face in reporting crime, and their need for humanitarian assistance, act to benefit individuals and community policing efforts” [emphasis added].[2]

 

This is a basic overview of U-visas, eligibility requirements, and resources, and should not be considered legal advice.  For more information about U-visa practitioners in your area, visit the National Immigration Legal Services Directory (by Immigration Advocates Network) or the Directory of Service Providers (by the National Immigrant Women’s Advocacy Project).

 

1.     What’s a U-visa?

 

A U-visa is a nonimmigrant (temporary status) visa given to victims of certain crimes. A person is eligible for a U-visa if they:

  • Are a victim of qualifying criminal activity (see #3, below)
  • Had information about the crime (if the victim is under 16, incapacitated, or unable to give information about the crime due to disability, a parent, guardian, or “next friend” can provide information and assistance on the victim’s behalf)[3]
  • Suffered substantial physical or mental harm due to the victimization
  • Was, is, or will be helpful in the detection, investigation, prosecution, conviction, or sentencing of the crime (this means providing assistance when reasonably requested by law enforcement, prosecutors, judges, or other officials, even after the U-visa is granted). Note, however, that this also means “a current investigation, the filing of charges, a prosecution or conviction is not required to sign the law enforcement certification,” and that there is no time limit to signing a certification (one can be signed for a crime that happened many years ago, very recently, or for a closed case).[4]
  • Are admissible to the US or have an approved I-192 waiver of inadmissibility

 

The crime must have occurred in the US or violated U.S. law. The law does not require that the perpetrator be a US citizen or legal permanent resident (VAWA self-petitions do); or a criminal investigation, filing of charges, prosecution, or conviction by law enforcement.

 

2.     What are the benefits of applying for a U-visa?

 

An approved U-visa application confers to immigrant crime victim applicants a four-year visa and work authorization, enabling them to work and live legally in the US. After living continuously for three years in the US in U-visa status, victims may apply for legal permanent residence. In this way, U-visas can provide long-term security for immigrant victims of crime.

 

Family reunification is another important benefit of the U visa program. Victims of U-visa qualifying crimes may include in their applications certain family members (both in the US and abroad) who, through their relationship to the victim, can receive U-visa “derivative” status.

  • Victims who are over 21 years old may include their spouse and children under 21 in their applications. 
  • Victims who are under 21 years old may include their siblings under 18 years old, spouse, minor children, and parents in their applications.

 

U-visa “derivative” status cannot be given to family members who commit the qualifying crime(s) against the victim.  For example, the abusive spouse in a situation of domestic or sexual violence is not eligible to receive U-visa “derivative” status.

 

Note on conditional approvals:Currently, 10,000 U-visas are available annually. US Citizenship and Immigration Services (USCIS) has reached the U-visa cap every year for the past six years.  For U-visa applications that are filed and approved after the cap has been met, USCIS designates them “conditionally approved” and puts them on a waitlist until U-visas become available (at this point, about 2 years after receiving “conditional approval” status). Victims and family members who hold “conditionally-approved” U-visas also receive work authorization.

 

Victims can still apply for U visa status after the cap has been met! USCIS will evaluate cases to see whether they can be conditionally approved. For more information on conditional approvals, see ASISTA’s Practice Advisory on Conditional Approvals.

 

3.     What crimes count as qualifying crimes for U-visas?

 

The following crimes are considered qualifying criminal activity for obtaining a U-visa:

 

 

§  Abduction

§  Abusive sexual contact

§  Blackmail

§  Domestic violence

§  Extortion

§  False imprisonment

§  Female genital mutilation

§  Felonious assault

§  Fraud in foreign labor contracting

 

§  Hostage taking

§  Incest

§  Involuntary servitude

§  Kidnapping

§  Manslaughter

§  Murder

§  Obstruction of justice

§  Peonage

§  Perjury

§  Prostitution

 

§  Rape

§  Sexual assault

§  Sexual exploitation

§  Slave trade

§  Stalking

§  Torture

§  Trafficking

§  Witness tampering

§  Unlawful criminal restraint

 

Some of these crimes (like extortion, witness tampering, obstruction of justice, or sexual assault) may be issues that the survivor is facing at work. It is important to screen for any issues in the context of workplace violence.

 

In addition to these crimes, USCIS will also consider for U-visa purposes “substantially similar” crimes to one of the listed crimes; or attempts, conspiracy, or solicitation to commit any of the listed crimes as qualifying criminal activity.

 

Most U-visa cases filed with USCIS involve domestic or sexual violence.

 

4.     How would someone prove substantial physical or mental harm as a result of being a victim of a qualifying crime?

 

All U-visa applicants are required to write a personal declaration describing the criminal incident, their helpfulness to law enforcement, and what harm resulted as result of their victimization. 

 

The U-visa regulations state that in evaluating “substantial harm” USCIS will look at:

  • the nature of the injury
  • the severity of the perpetrator’s conduct
  • the severity of the harm suffered
  • the duration of the infliction of harm
  • any permanent or serious harm to appearance, health, and physical or mental soundness of the victim, including any aggravation of pre-existing conditions.

 

USCIS evaluates substantial harm as it applies to the individual applicant.  That is, what may be “substantial harm” for one person may not be for someone else.

 

The law states that no one factor is necessary to prove the abuse is substantial. Rather, “a series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level.”[5] But on the other hand, no single factor or combination of factorsautomatically means that the abuse suffered was substantial.

 

Tools & Resources

 

Evidence checklist for immigrant victims applying for the crime victim visa (U-visa)by the National Immigrant Women’s advocacy Project and Legal Momentum

 

U-visa application victim flow chartby the Bureau of Justice Assistance and the American University Washington College of Law

 

A U-visa factsheet for advocatesby Legal Momentum



[2] UNC School of Law Immigration/Human Rights Policy Clinic & ASISTA (n.d.). The political geography of the U visa: Eligibility as a matter of locale.

[3]INA Sec. 101(a)(15)(U); 8 USC Sec. 1101(a)(15)(U)

Help with Legal Cases: Immigration remedies

Survivor-specific: VAWA self-petitions

 

The Violence Against Women Act (VAWA) was first enacted in 1994. It creates immigration protections for some immigrant spouses, children, and parents abused by U.S. citizens and lawful permanent residents. Abused parents of US citizen sons or daughters may also apply for immigration relief under VAWA (in these cases, the immigrant survivor-parent does not have to be married to the aggressor, and/or the aggressor does not have to be a US citizen or lawful permanent resident).  

 

VAWA permits survivors of abuse by lawful permanent residents (LPRs) and US citizens (USCs) to obtain their own lawful permanent resident status (green cards) independently of their relationship with the abusive spouse or parent.  This protection is often called a “VAWA self-petition” because abused immigrants can petition for immigration status without depending on the support of their abusive family members.

 

This section of the Toolkit is intended to be a basic overview of VAWA self-petitions and is not considered legal advice.  For more information about VAWA practitioners in your area, visit the National Immigration Services Directory.

 

1. What are the requirements for a VAWA self-petition?

 

The main requirements for a VAWA self-petition are:

 

1) Valid qualifying relationship to an LPR or USC

2) If the application is based on marriage, proof of a good faith marriage

3) Battery or extreme cruelty

4) Residency with aggressor

5) Good moral character

 

2. Who may file a VAWA self-petition?

 

The following relatives are eligible to self-petition under VAWA:

  • An abused spouse or child (including step-child) of a USC or LPR;
  • A parent of a child who is abused by the parent’s USC or LPR spouse;
  • A parent abused by a USC son or daughter.

 

Important Note:  In 2015, the Supreme Court struck down laws prohibiting same-sex marriage.[1] This means that in every state and territory of the US, same-sex couples have the right to marry and have their marriages recognized across the country. Although the decision applies to some transgender persons (i.e., if they identify as male or female and have met the legal requirements for gender marker changes in the state in which they marry)[2], it is far from fully inclusive. Consequently, it is critical for survivors, advocates, and attorneys to know that both the US Department of Justice (DOJ), which administers VAWA funds, and the US Citizenship and Immigration Services specify for their services a more expansive understanding of gender:

·      The DOJ prohibits discrimination based on gender identity in “any program or activity funded in whole or in part with funds made available under [VAWA],” and states that “male, female, and transgender are all examples of gender identities.”[3]

·      USCIS “accepts the validity of marriage in cases involving transgender persons if the state or local jurisdiction in which the marriage took place recognizes the marriage as a valid marriage.”[4]

All abused immigrant spouses may apply for VAWA protections, provided that ceremony was legally valid in the state or country where it was performed.

 

3.  What benefits does a VAWA self-petition provide?

 

A VAWA self-petition allows for abused spouses or children (or abused parents of a USC child) to obtain their own green cards without having to live in an abusive relationship.  It also allows abused spouses to extend immigration benefits to minor children abroad so that families can be reunited.   How long it takes to get a green card will depend on whether the aggressor is a US citizen or a lawful permanent resident.   But all VAWA applicants are eligible to have a work permit once their applications are approved, which they can renew until they are ready to apply for their permanent residency.  

 

 4.  How does a VAWA self-petitioner apply for benefits?

 

All VAWA self-petitioners need to submit a Form I-360 to a special unit of US Citizenship and Immigration Services at the Vermont Service Center which has received extensive training working on victim-based forms of immigration relief.  Additional forms may be necessary depending on the status of the aggressor and certain other inadmissibility issues that may apply in the case.

 

In addition to this form, the VAWA self-petitioner must submit documents that prove they meet all the requirements, which depends on whether they are an abused spouse, child, or parent.

 

All VAWA self-petitionersmust include the following documents, regardless of their relationship to the aggressors:

                                       

·      Proof of status of aggressor. A self-petitioner must submit proof of the immigration status of the aggressor, that is, that the aggressor is a USC or an LPR. Proof of this may generally include the aggressor’s U.S. passport, aggressor’s birth or naturalization certificate, or official documents or records listing the aggressor’s name and place of birth. 

o   Note: It is important not to compromise a survivor’s safety by trying to obtain these documents.  If survivors cannot safely obtain proof of aggressors’ immigration status, then survivors may submit statements stating how they know aggressors are a USC or LPR (for example, attending their naturalization ceremony).

 

·      Proof of relationship with the aggressorSelf-petitioners must show their legal relationship with their aggressors.

o   For abused spouses:The marriage is considered valid for immigration purposes if it was legal in the place where it was performed. Although a marriage certificate is the most used proof of valid marriage, common law marriages  are considered valid if established in a state (or other jurisdiction) that recognizes common law marriages. If either spouse was married before, then proof of that prior marriage ending is required (divorce order, death certificate, annulment papers).

§  Abused spouses can also apply for VAWA if they divorced their aggressors within 2 years before they file for VAWA.  In these cases, a divorce order would also need to be included.

§  Abused spouses can also apply for VAWA if they believed the marriage was legal, but in fact the aggressor was married beforehand.  This “bigamy exception” allows self-petitioners to apply even if the marriage wasn’t legally valid.

o   For abused children: The most common way to show relationship with an abusive parent is a birth certificate, or for abused step-children, a copy of the birth certificate and the marriage certificate between the step-parent and natural parent.

o   For abused parents of US citizen children:Abused parents of US citizen children should submit a copy of the birth certificate listing the VAWA self-petitioners as parent to the child.

 

·      Proof of residency with the aggressor: Self-petitioners must submit proof that they lived with their aggressors. Documents that can show that an aggressor and a survivor lived at the same residence include leases or other property documents; school, medical, bank, tax or employment records; utility statements; letters from friends or family who knew that the survivor and the aggressor lived together; and the self-petitioner’s own personal statement. 

o   Note:Advocates can get creative to obtain documentation of joint residency.  If the survivor paid the phone bill which lists the joint address and the aggressor paid the cable bill listing the same address, then both utility statements can be used to show there was a shared address.

 

·      Battery or extreme cruelty: All VAWA self-petitioners must submit proof that they suffered battery or extreme cruelty.  Battery normally refers to physical or sexual violence, including (but not limited to) being punched, slapped, strangled, kicked, and/or forced to have sex.  Extreme cruelty has a more flexible definition.  An ASISTA newsletter states, “Extreme cruelty can include emotional abuse, frequent insults, humiliation, using the immigration system against the client, degradation, social isolation, accusations of infidelity, calling, writing or contacting the victim incessantly, interrogation of friends and family members, threats to victim and/or to family members, economic abuse, not allowing the victim to get a job, controlling all money in the family.”  Proof of battery or extreme cruelty can include

o   Survivor’s own personal statement

o   Copies of protection orders

o   Police reports or criminal court documents

o   Medical records

o   Photos of injuries

o   Letters from advocates or shelter staff

o   Letters from counselors or therapists

o   Letters from friends, family, neighbors, coworkers, who may have witnessed the abuse

 

·      Good moral character: All VAWA applicants must show they have good moral character.  Applicants older than 14 years of age must submit police clearances for every place they lived for more than 6 months in the three years before applying. Also, survivors’ personal statements should detail their involvement in the community, in the lives of their children, in the workplace, faith groups, etc.  Letters from family, friends, clergy, co-workers, and others are also helpful to show the survivor is a good person, parent, co-worker, relative, etc.

o   NOTE: It is important to encourage survivors to have honest conversations with their legal advocate or attorney about their criminal history, including arrests. Some criminal activity may negatively affect a finding of good moral character. The more the legal advocate or attorney knows up front, the better they are able to prepare a survivor’s application.

o   USCIS Good Moral Character Memo is a great reference guide on good moral character, potential problems, and how to address them.

 

·      Abused spouses of LPRs and USCs must also submit proof of good faith marriage. VAWA self-petitioners will need to show that they entered into their relationship with their US citizen or lawful permanent resident spouses in good faith, that is, that they married for love and not for immigration benefits.  Some common forms of proof of good faith marriage include (but are not limited to):

o   Personal statement from the applicant

o   Birth certificates of children born during the marriage

o   Leases, mortgage documents, or other property documents listing both spouses

o   Joint bank accounts, utilities, or tax returns

o   Insurance policies naming a spouse as a beneficiary 

o   Photos of when the couple was dating, or weddings or family events

o   Copies of emails, letters, or cards to one another

o   Declarations from family or friends who can say that the VAWA self-petitioner entered the marriage in good faith

 

5.  The role of the advocate in the VAWA process

 

Advocates are key partners in helping immigrant survivors of violence prepare their VAWA self-petitions, for example:

 

·      Find the right resources:  Advocates should identify and partner with immigration practitioners in their area with expertise on VAWA applications.  These partnerships are invaluable to share resources and areas of expertise to best help the survivor.

 

·      Find the right information: The immigration system is complex and changes rapidly. Domestic and sexual violence advocates can point immigrant survivors to the right information about the process and procedures for applying and help immigration practitioners identify any potential problems or issues.

 

·      Documentation: Advocates can help survivors collect documents that may help the VAWA self-petition (see “Document gathering for self-petitioning under the Violence Against Women Act,” a guide by the Immigrant Legal Resource Center). Advocates can also provide an important resource by writing a letter of support based upon their experiences working as an advocate for survivors of domestic or sexual violence (see “Domestic violence expert affidavit guidelines” by ASISTA for some practice tips for writing advocate letters of support).

 

Tools & Resources

 

VAWA Brochures:

·      Immigration options for victims of crime: Information for law enforcement, healthcare providers, and others (Opciones de inmigración para las víctimas de delitos: información para la policía, proveedores de servicios de salud y otros) by US Citizenship and Immigration Services

·      Immigrant victims of domestic violence: VAWA self-petition process for permanent residency by the Idaho Network to End Domestic Violence and Trafficking Against Immigrants

 

The Immigration Advocates Network Nonprofit Resource Center has an extensive VAWA library with many resources and checklists for advocates.  Registration is free for non-profit service providers.

 

ASISTA Immigration Assistance is a national organization serving the US Department of Justice’s Office on Violence Against Women (OVW) grantees with individual case assistance, extensive training, and practice advisories on VAWA self-petitions.  Private memberships are available to agencies that do not receive OVW funds.  Contact ASISTA at questions@asistahelp.org for more information.

 

The National Immigrant Women’s Advocacy Project has resources related to family law, public benefits and other immigrant victim protections. Click on “Immigration” for VAWA-specific resources.

 

The Immigration Legal Resource Center provides training and resources to immigrants, community-based organizations, and the legal system to advocate for the rights of immigrants. Click on “Info on immigration law” for VAWA-specific resources.

 

Catholic Legal Immigration Network offers resources and training to community legal immigration programs.

 

 



[2]Lambda Legal (n.d.). FAQs about transgender people and marriage law. New York: Author.

[3]US Department of Justice, Office of Justice Programs, Office for Civil Rights (2014, Apr 9). Nondiscrimination grant conditions in the Violence Against Women Reauthorization Act of 2013.

[4]US Citizenship and Immigration Services (2015, Jul 21). Ch. 2 – Marriage and marital union for naturalization.

 

Help with Legal Cases: Immigration remedies

 

There are several types of immigration remedies available to immigrant victims of crime, where “remedy” simply means a remedy to deportation, that is, that the person acquires some sort of authorization to be in the US. (Another common term is “immigration relief,” which, similarly, means relief from deportation.)

 

Some immigration remedies are specific to survivors of domestic and sexual violence:

  • The Violence Against Women Act (VAWA), first enacted in 1994, created immigration protections (the VAWA self-petition) for some immigrant spouses, children, and parents abused by U.S. citizens and lawful permanent residents.
  • The Victims of Trafficking and Victim Protection Act of 2000[1] created the U-visa program for victims of specific crimes. A U-visa is a nonimmigrant (temporary status) visa given to victims of qualifying crimes, which include but are not limited to sexual assault, stalking, and domestic violence.

 

There are other forms of immigration relief that may be accessible to immigrant survivors of domestic and sexual violence. These include, but are not limited to:

  • Family-based immigration
  • Employment visas
  • Asylum
  • Deferred Action for Childhood Arrivals (DACA)