Frequently Asked Questions

Definitions

“undocumented person”- someone who is in the country who is not a United States citizen, lawful permanent resident (LPR, green card holder) and does not have any lawful immigration status. These persons enter the United States without legal permission from a BCIS official or they have entered legally, but overstayed their visas.

“lawful permanent resident”- also referred to as a greencard holder or LPR. These persons have the right to live and work permanently in the United States. They may apply to the BCIS to bring certain relatives to the U.S. and can apply for citizenship after being in the U.S. for five years, or three years if married to a U.S. citizen.

United States Citizen. There are several possible ways to gain citizenship in the United States including:

  • Through birth in the U.S., its territories, or certain possessions, e.g. Puerto Rico, Guam and the Virgin Islands;
  • Through naturalization (ex: petitioned by U.S. citizen spouse);
  • Through parents/grandparents; or
  • Through adoption by a citizen parent.

What are an immigrant or undocumented person’s basic rights?

If stopped by any law enforcement official (local police, FBI, immigration authorities…), a non-United States citizen (immigrant, undocumented person) has the right to remain silent, especially in regards to disclosing her immigration status. These persons also have the right to speak to a lawyer before answering any questions or signing any documents.

If accused of a crime, a non-US citizen (regardless of immigration status) has the same rights as a US citizen in the criminal context. For example, any person has the right against unreasonable search and seizure.

In the immigration context, you have:

  • The right to an attorney or agency specializing in immigration law
  • The right to communicate with the Consulate of your country of origin, and
  • The right to a hearing before an Immigration Judge. (An immigrant could be deported without a hearing if she waives this right or agrees to leave, has criminal convictions, was arrested at the border or has been ordered deported in the past.)

NOTE: In the immigration context, these rights must be asserted. The immigration courts will not provide an attorney, though an immigrant/undocumented person has the right to consult an attorney.

What types of assistance are available to immigrant survivors of family violence?

Immigrant survivors have the right to be safe and seek help. Regardless of her immigration status, a survivor can obtain:

  • Police assistance,
  • Emergency medical care,
  • Shelter,
  • Protective orders, and
  • Divorce and/or Custody of children.

Further, survivors and witnesses of crimes have no obligation to state their place of birth or immigration status when accessing emergency assistance, filing a report or applying for a protective order.

Also, immigrant survivors have the right to speak to police or medical personnel without their partners present. Immigrant survivors have the right to seek legal advice at any time without their partner’s cooperation.

What are the changes at INS? How does the change regarding INS becoming part of the Department of Homeland Security impact immigrants?

As of March 1, 2003, all services that were formerly conducted under the INS are now part of the Bureau of Citizenship and Immigration Services (BCIS). For the most part, the biggest change is in name only. How an immigrant applies for services and benefits, obtains forms, and accesses information and assistance has not changed. All INS offices continue to have the same functions and locations (Service Centers, Asylum Offices, and Application Support Centers). To obtain updated information or forms please call the National Customer Service Center at: 800-375-5283 or TTY 800-767-1833.

If an application is pending with INS, does the individual have to reapply to BCIS?

No. Pending application(s) will be reviewed by BCIS. The Bureau of Citizenship and immigration Services will continue to provide notification about key steps as they process applications.

Are INS documents (green card, naturalization certificate, etc.) with an INS seal on them still valid, or will people have to replace them?

INS-issued documents remain valid and will still be accepted as evidence of status.

How does the Violence Against Women Act help immigrant survivors?

The Violence Against Women Act (VAWA), originally passed by Congress in 1994, includes immigration provisions that allow immigrant survivors of domestic violence, who are married to a United States citizen of lawful permanent resident, and their children, obtain lawful permanent residence without the cooperation of their U.S. citizen or lawful permanent resident spouse or parent. VAWA created two primary forms of relief for battered immigrants: VAWA self-petition and VAWA cancellation of removal.

Who is eligible to self-petition under the Violence Against Women Act?

Self-petitions are available to:

  1. Abused spouses married to U.S. citizens or lawful permanent residents (or if divorced within 2 years of filing). These persons may apply for themselves and for their abused or non-abused children, even if the children are not related to the U.S. citizen or lawful permanent resident.
  2. Abused children of U.S. citizens or lawful permanent residents.
  3. Immigrant parent of a child who has been abused by the child’s U.S. citizen or legal permanent resident parent.

What do you need to prove aVAWA self-petition?

A person who falls into one of the above categories will be allowed to file on her own under VAWA, without the sponsorship of the abusive spouse, if:

  1. She files her application within two years of a final divorce
  2. His or her spouse or parent is a U.S. citizen or lawful permanent resident, or has lost status within the two years prior to the filing of the application;
  3. She has resided in the United States with the citizen or lawful permanent resident spouse or parent;
  4. She was battered or subjected to extreme cruelty during the marriage;
  5. She is a person of good moral character; AND
  6. She married her spouse in good faith. If the marriage is not legitimate solely because of bigamy on the part of the USC or LPR abusive spouse, but the victim can prove that she believed she was entering a bona fide marriage, she is still eligible to self-petition through VAWA. Bigamy is the criminal offense of knowingly contracting a second marriage while the first marriage is still subsisting and un-dissolved.

What is VAWA cancellation of removal?

VAWA cancellation of removal is a defense to deportation. This is a remedy available to an immigrant survivor who is in deportation proceedings. If cancellation of removal is granted, the judge will cancel the deportation and the applicant will be granted lawful permanent residency status. This remedy is only available to immigrants in deportation proceedings. To be eligible for cancellation of removal, an applicant must be in one of the following categories:

  • Currently or formerly abused spouse of a U.S. citizen or lawful permanent resident,
  • Abused child of U.S. citizen or lawful permanent resident parents, or
  • Immigrant parent of a child who has been abused by the child’s U.S. citizen or legal permanent resident parent.

What do you need to qualify for VAWA cancellation of removal?

Immigrant women in any of the above categories are eligible for cancellation of removal if they prove the following:

  1. She has lived in the United States continuously for 3 years immediately preceding filing the application for cancellation of removal;
  2. She was subjected to battering or extreme cruelty by her spouse while in the United States;
  3. She is determined to have “good moral character”;
  4. She is currently deportable. She will not be eligible for cancellation if she is deportable for marriage fraud, certain criminal convictions or because she is a threat to U.S. national security, AND
  5. She or her child, in the opinion of the Attorney General, would suffer extreme hardship if deported.

Can parents of abused children benefit from VAWA self petitioning or cancellation of removal?

Yes! A parent of a child abused by an LPR or USC parent may self petition or apply for cancellation of removal under VAWA, if she/he is the spouse of the abusive parent. The non-abused parent can also include other children as derivatives, even if the children are not related to the LRP or USC abuser. (INA §204(a)(1)(B)(ii)).

Are there other legal remedies for immigrant survivors of abuse, especially if a victim is not married to LPR or USC abuser?

Yes! Recently, two other visas have been created that are available to survivors of crime (U Visa) and survivors of trafficking (T Visa).

What is a U visa?

VAWA 2000 created a new non-immigrant visa that is available for certain crime survivors. This visa is available to survivors who have suffered substantial physical or emotional injury as a result of being subjected to specific crimes committed against them in the United States. In order to qualify for a U visa, a crime victim must:

  1. Show that she has suffered “substantial physical or mental abuse” as the result of a form of criminal activity (or “similar” activity);*
  2. Show that she possesses information concerning the criminal activity, AND
  3. Provide a certification from a federal, state or local law enforcement officer, prosecutor or judge or authority investigating the criminal activity designated in the statute that certifies that the victim has been helpful, is being helpful or is likely to be helpful in the investigation or prosecution of the crime.

*Criminal activity includes rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy or solicitation to commit any of the above mentioned crimes.

What is a T visa?

On January 31, 2002, the Department of Justice (DOJ) issued interim regulations governing the T visa (trafficking visa). To be eligible for a trafficking visa, a non-citizen must show the following:

  1. She is or has been a victim of a severe form of trafficking;*
  2. Is physically present in the United States or at a port of entry on account of trafficking;
  3. She has contacted a federal law enforcement agency (the BCIS, FBI, local US Attorneys Office or the Civil Rights Division of the Department of Justice) and has complied with any reasonable request for assistance in investigating or prosecuting trafficking; AND
  4. Would suffer extreme hardship involving unusual and severe harm upon removal.

*Severe forms of trafficking include: sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or service, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.

Are any of these remedies available to male survivors of abuse?

Yes! All of the above listed remedies, including VAWA remedies, are available to male survivors of abuse.

Should an immigrant who seems eligible for one of these remedies consult with a legal services provider?

Yes. Persons interested in applying for any of these legal remedies for immigrants are strongly encouraged to speak with an attorney or certified legal services advocate before sending any application into the BCIS.

Note: Immigrants should beware of notarios and other fraudulent agencies purport to perform immigration legal services at high prices, even though they are not qualified nor certified to assist in these matters. They not only steal money from the survivors but also may jeopardize future possibilities of adjusting immigration status.

Are survivors with a prima facie or approval notice of a VAWA self petition eligible for federal public benefits?

Yes. Survivors are immediately eligible for federal public benefits, such as subsidized housing. Their children are eligible for CHIP (State Children’s Public Health Insurance Program) and Food Stamps. Survivors with a prima facie notice may also be eligible for federal means tested benefits (such as TANF and Medicaid) if they entered the country on or before August 22, 1996.

Are undocumented immigrants eligible for any public benefits?

Yes. All immigrants, regardless of their status or when they entered the county, are eligible for emergency benefits including:

  • Emergency medical care, emergency Medicaid, immunizations, diagnosis and treatment of communicable diseases, emergency mental health and substance abuse services,
  • WIC;
  • Summer food programs and school lunch programs;
  • Public education; and
  • Any program necessary to protect life and safety that is not income conditional (shelters, food banks).

Workers at these programs are not required to ask for verification of immigration status.

For more detailed information on theses legal remedies and on public benefits available to immigrant survivors of abuse, please see the “Assisting Immigrant Survivors of Abuse” protocol on this website.

The Texas Council on Family Violence’s Public Policy Department can answer questions and requests for technical assistance regarding options for immigrant survivors of abuse. TCFV also offers resource materials and trainings on issues affecting immigrant survivors. Please contact us at (800) 525-1978.