Law Talk Episode 32: U and VAWA Visas for Victims of Violent Crime

In today’s episode of Law Talk, Jacob and Andrew discuss the special U and VAWA visa preferences, which help victims of abuse stay in the country legally!

Last updated on May 2nd, 2019

Andrew: Okay, now we’re live.

Jacob: We’re live!

Andrew: Yes, it’s 11:00, we’re back from like snowy, winter disgustingness. We got like 13 inches at my house, it was horrible.

Jacob: Yeah, it’s crazy how much snow we got here.

Andrew: Yeah, back to like legal stuff though, we’re talking about visas today, we’re talking U Visas and VAWA Visas, which are a really interesting subset of like letting people stay in the country legally.

Jacob: Yeah.

Andrew: So I guess we can start with U Visas, because it’s sort of like somewhat of the broader category.

Jacob: Right, okay.

Andrew: So do you want to sort of like give a basic rundown of like what a U Visa is?

Jacob: Right, right. So U Visas and VAWAs, and we’ll get to VAWAs later like you said-

Andrew: Yeah.

Jacob: But both of them are intended to protect people who are in abusive situations, or situations that are difficult, like say for example when they’ve been the victim of a crime, or that kind of thing.

Andrew: Yeah.

Jacob: U Visas in particular were designed originally to protect victims of domestic violence. The idea being it’s common when you’ve got an abuser in the household, that they’ll say things like … and this applies to the VAWA as well, you know, “Oh, I’m so good, and being with me and I’ll eventually help you get legal status, because I’ve got legal status,” and that kind of thing.

Andrew: Yeah.

Jacob: And so that’s what a lot of abusers say. And then if you do something that they don’t like, they’ll say, “Well, I’ll just call ICE on you and you’ll be deported and that’ll be it.”

Andrew: Yeah. They basically use-

Jacob: Yeah.

Andrew: Like legally staying in the country is like leverage against the person that they’re abusing.

Jacob: Yeah, and that’s a terrible way to live in a relationship. And it’s super lame.

Andrew: Yeah.

Jacob: So anyway … and that’s a legal term there, that’s super lame. So but when these options were presented legislatively to Congress, providing a Visa for this issue, the U Visa kind of expands being a victim of any crime.

Andrew: Yeah.

Jacob: You can quality for a U Visa, and the idea there is, is we have vulnerable immigrants in communities where there is crime.

Andrew: Yeah.

Jacob: But they might experience fear, or be afraid of contacting law enforcement because they believe they might be deported.

Andrew: Yeah.

Jacob: And so the U Visa instead says, “No, no, no, if you’ve been a victim of a crime we want to incentivize reporting crime, particularly violent crime.”

Andrew: Yeah.

Jacob: We want you to report that, and we don’t want you to be afraid that it will effect your life in any negative way. So when an immigrant is the victim of a crime, and reports it to police, and cooperates with police and pursues justice, our country, thankfully, grants a Visa, or the ability to legally stay, or get legal status in the United States for immigrants who cooperate with police, and who do the right thing.

Andrew: Yeah.

Jacob: Yeah, and that’s a good thing.

Andrew: Yeah. So who generally sort of like qualifies for these? So you mentioned that like they have to be victims of a crime.

Jacob: Right, right.

Andrew: And this is one of the main things that distinguishes it from Visas, like the wide range of crimes that let you stay in the country, ranging from domestic violence, as you mentioned, to sort of like … think of this as like murder, blackmail, like criminal conspiracy, like there’s a whole bunch of stuff.

Jacob: Yeah, yeah, so there are … you mentioned murder, and I know that there’s at least one person out there thinking, “Well if you’ve been a victim of murder how can you apply for a Visa?”

Andrew: Well yeah, yeah.

Jacob: So you get … like if your child has been murdered, or your spouse has been murdered, and you cooperate with police, you’re a witness, you were still harmed by a murder. But typically, violent crimes are on the list, so victims of violent crimes. There is a list of qualifying crimes. But that list includes or any similar crime.

Andrew: Yeah.

Jacob: So if you’ve been … we’ve helped people who’ve been victims of armed robbery, or victims of simple assault, felonious assault is on the list but we’ve also helped victims of simple assault get a U Visa. So I guess step one is become a victim of a crime. I mean … nobody plans on being a victim of a crime, but if you happen to be a victim of a violent crime, that’s when it’s time to first of all, call the police, right?

Andrew: Yeah.

Jacob: And help them. But secondly, if you are an immigrant and you need legal status, I mean, there’s nothing wrong with taking advantage of this mechanism to get that part of your life squared away.

Andrew: And it’s not just victims too, right? Like you mentioned you can be a witness, as long as you’re helping the police in some way to solve a crime, I think you can petition, though it’s a little bit weaker.

Jacob: No, no, you have to be a victim.

Andrew: Oh, really? Okay.

Jacob: Except for in cases like I said, murder.

Andrew: Oh, yeah.

Jacob: Right, so you know, you can be a witness in the sense that like if it effects your minor child, right-

Andrew: Yeah, yeah.

Jacob: And they can no longer apply for whatever reason or maybe they’re a citizen or something.

Andrew: Okay.

Jacob: And so someone has kidnapped your US citizen child, and has done torture or something, I don’t know … you would probably qualify. But in general, like 98% of the time, you yourself have to be the victim of the crime to qualify for the U Visa.

Andrew: Okay, I didn’t know that, that’s pretty cool.

Jacob: Yeah.

Andrew: Well, not cool.

Jacob: I mean, not cool but-

Andrew: It’s interesting.

Jacob: Yeah.

Andrew: Just because I know a lot of places sort of talk about like, “If you’re a witness as well and you help law enforcement then … “

Jacob: Yeah, you’re not going to win that case.

Andrew: Yeah.

Jacob: And USCIS is going to send back and say, “No, no, no, you need to be a victim of a qualifying crime.”

Andrew: Yeah. So how do you actually petition for a U Visa? Like is it similar to other types of Visas, or like what are the extra steps you have to go through?

Jacob: Yeah, so I think it’s important, this is an important distinction that isn’t … most people don’t understand the difference between what’s known as a non-immigrant Visa and an immigrant Visa.

Andrew: Yeah.

Jacob: So an immigrant Visa is I enter the United States and I am immediately issued a green card. A U Visa is a non-immigrant Visa in the sense that it is temporary in duration, it’s four years, and you don’t get a green card from it, you get a work authorization document. And you can stay in the US, and if you establish three years of continuous presence in the US, and other discretionary factors, you can eventually get a green card, but those are separate applications. So that’s the first thing that I want to point out, is that the U Visa is not a direct path to a green card.

Andrew: Yes.

Jacob: But it is a path to a green card.

Andrew: Yeah.

Jacob: There’s a wait time, and there’s some other things. Now, how do you get a U Visa? Right, so there’s some evidence that you have to present and one of those big, huge pieces of evidence is was I helpful to the police?

Andrew: Yeah.

Jacob: Did I help the police? And so of course the government has a form that needs to be filled out, and that’s the I9-18 supplement B, and so typically your attorney that you work with submits that form to the local police jurisdiction that handled the crime, and it asks, “Hey, I’ve got this client, did they help you out? If they did, please fill out this form.” And that’s step one.

Andrew: Okay.

Jacob: So that’s the biggest piece of evidence and probably the most important piece of evidence. And here’s the kicker, police departments don’t have to fill them out. They can just say no. So sometimes we’ll have somebody who’s been the victim of a violent crime, but if they themselves have a criminal history, police departments don’t want to help out.

Jacob: And I get that. And sometimes even if they have been … even if they have committed crimes in the past, but are so helpful to a very significant case, will still get the U Visa, but that’s … that’s an uphill battle at that point. Yeah.

Andrew: So what happens if they do reject it? Like if your U Visa, for example, is declined by … or your petition thing is declined by the local police department? Because I would assume … well, let’s just assume they’re already in the country legally, does like … is it basically you’re not getting transferred into the U Visa, or like how does that sort of work?

Jacob: Well so, that’s … the supplement B that you need from the local police-

Andrew: Yeah, yeah.

Jacob: Is a piece of evidence that you include in your U Visa petition.

Andrew: Yeah.

Jacob: So, if they don’t give it to you, you can’t apply.

Andrew: Okay.

Jacob: But I mean, then that’s it.

Andrew: Yeah.

Jacob: And you’re not at a stage yet where you’ve noticed ICE you plan to apply for anything, you haven’t given them your address. So there’s literally no risk in asking for it. And a lot of times when we work with clients, the detectives and the police officers, they’re aware that this Visa exists, and when they’ve got a case that they want to win, and they’ve got an immigrant victim, they’ll say, “Hey, find an attorney and make sure they get in touch with me.” Because they believe, rightfully so, that hey, I’m going to get more cooperation out of this immigrant if I do some quid pro quo and offer to help out in return, so …

Andrew: I know one other thing that’s sort of related to like petitioning for the U Visa is the admissibility waiver for people that would otherwise be inadmissible to stay in the United States for whatever reason. So do you want to speak a little bit to that?

Jacob: Yeah, so the reasons the U Visa waives a lot of things that other Visas wouldn’t is actually pretty technical. It’s because it is technically a non-immigrant Visa, and so there’s a waiver that gets you past most ground of inadmissibility-

Andrew: Yeah.

Jacob: That you can’t get passed if you applied directly for an immigrant Visa. And then based on the three years of presence on a U Visa, you can apply for a green card. So it’s actually … it’s a pretty great work around for some things that you can’t get around in many other immigration contexts.

Andrew: Yeah.

Jacob: So for example, the permanent bar can be overcome with a U Visa. And that’s good, again, we want to incentivize people to report crime. And so things like 10 year bars, three year bars, and permanent bars are frankly, they’re artificial constructs that we impose for having been here without lawful status. And it’s not the crime of the century, but if you’ve been a victim and you help police, well by golly, you’re showing us that you’re going to be a good member of our society, and help out.

Andrew: Yeah.

Jacob: We want to incentivize having that in our country. So yeah, the U Visa overcomes a lot of grounds of inadmissibility, you won’t need to go through the same kind of long, and arduous, and expensive waiver processes you do in other contexts. If you do need to waive inadmissibility, and you’re applying for a U Visa, you still need to file a waiver. But the process itself is not as complicated as waivers in other contexts.

Andrew: Okay.

Jacob: Yeah.

Andrew: Is there anything sort of final about U Visas that you want to mention before we move into VAWA Visas? We’re going to sort of compare them later, but-

Jacob: Oh, okay, great. Yeah, so the thing I would add is that U Visas can, if they’re under 18, they can petition for their parents as beneficiaries, and their brothers and sisters.

Andrew: Yeah.

Jacob: And then once they’re older, they can petition for spouses and children. So U Visas are a great way to help your family get lawful status. I’ve spoken with a lot of immigrants in difficult situations, when they discover unfortunately things like child abuse, or if somebody gets kidnapped, I mean you wouldn’t believe what happens to some of these people. But yeah, don’t hide … don’t hide bad things that have happened. The best disinfectant to sunlight, reach out to an attorney, or to the police, get help if something secret is happening to you.

Andrew: Yeah.

Jacob: Report to police, provide as much help as possible, seek help. And you’ll be able to benefit from these laws that will serve your family for years, and years, and years.

Andrew: Yep.

Jacob: Yeah.

Andrew: All right. So to sort of move into something that’s a little more specific, but in the same vein-

Jacob: Okay.

Andrew: Let’s talk about the VAWA Visa.

Jacob: Yeah, let’s do it.

Andrew: So I guess, again generally, like what is the VAWA Visa? And then we can sort of talk about how it’s a little bit different from U Visas, and more specific. So yeah, you can …

Jacob: Yeah. So I’d say that the main difference is it is a direct path to a green card. Filing the VAWA Visa petition is … you’re immediately eligible for a green card at that point.

Andrew: Yeah.

Jacob: Assuming of course that they are Visa members, and they typically are. So basically … actually, yeah, I don’t know the Visa member thing … typically you can just apply concurrently for the green card when you file the VAWA application. So anyway, when you … how to qualify for a VAWA Visa, this is the specific circumstance of being in a relationship of domestic violence and abuse. You are married to a lawful, permanent resident, or US citizen, or you are the child or stepchild of a lawful, permanent resident or US citizen. Or you are the parent, immigrant parent of a US citizen child. So like elder abuse.

Andrew: Specifically a citizen?

Jacob: Yeah. Lawful permanent resident or citizen child. So elder abuse, child abuse, spouse abuse, all of those, as long as the relationships are formalized, so marriage is a prerequisite.

Andrew: Yeah.

Jacob: Then you can qualify for a VAWA and get a direct green card. The VAWA also waives a lot of things, like unlawful presence. You don’t need a waiver to get the green card. And so that can be advantageous. Now, I mentioned earlier, and we see this so frequently that it almost hurts, but abusers will say, “Hey, I’m going to help you get lawful status and unless you don’t do what I say, I’m not going to help you.” So basically the relationships that I just mentioned, the children to parent, spouse to spouse, stepfather to children, those relationships typically qualify for that US citizen or lawful, permanent resident individual to petition.

Andrew: Yeah.

Jacob: For the person they’re abusing.

Andrew: Yeah.

Jacob: And if they weren’t an abusive person, then they would do the petition, they would get the process started. And so the government says, “Hey, we know that you qualify, and if you weren’t married to an abuser, or you weren’t in a relationship with an abuser, you’d be getting your status worked out, so we’re going to let you do it without their consent or knowledge.”

Andrew: Yes, and that’s an important thing, too.

Jacob: Yeah. Well, for their safety it is, yeah.

Andrew: Yeah.

Jacob: And what it does is it … as long as you can prove it. So you have to prove that you’re in a situation, you’re in a difficult situation, and so it requires talking to people. And a lot of people maybe won’t know what to do, so lawyers are a good first person to talk to. And while we do charge for a consult, if you’re a victim of abuse, and you’re going through a hard time, I mean, we frequently waive the consult fee for people who are in those situations.

Jacob: So particularly if you’re a minor child, and you don’t see a way out, please, you can talk to us. Like if you’re watching this on Facebook and you need help, you don’t need 100 bucks to talk to us about a difficult issue like this, just come.

Andrew: Yeah.

Jacob: But also, many people in a battered situation, or an abusive situation, have trouble getting help. So some talk to us.

Andrew: Yeah. Another thing I know that we mention a lot on our blog posts and stuff is sort of like documenting that abuse. Because like you said-

Jacob: Okay.

Andrew: You need to be able to prove that you are actively being abused to, do I say us, or whoever you’re doing it to.

Jacob: Right.

Andrew: So for example, I know one thing we always recommend is like take pictures, even just keeping a journal, like, “This is what happened today.” Like there’s so much evidence that just helps your case that can then help you get out of this abusive situation.

Andrew: Sort of going back to that thing you mentioned where like you can petition without your abuser’s knowledge or consent-

Jacob: Right.

Andrew: I think that’s a really, really important thing to sort of talk about in relation to VAWA. Because like I know I was talking to Ben earlier, where he was basically like, “Yeah, you can set up like a PO Box, or just have all your stuff sent to like your law office,” and all this other kind of stuff.

Jacob: Right.

Andrew: Just to like keep yourself safe, which is really what this is all about, is like getting yourself out of a bad situation before it gets worse.

Jacob: Yeah, abuse is about control, and so an abuser who gets a piece of mail and sees that you’re applying for a green card without them, they know their control is slipping away, and that can make it more dangerous for you. And so yeah, the forms for applying a VAWA, and for a U Visa, allow you to indicate a safe mailing address, and then they prioritize sending mail only to safe mailing addresses.

Andrew: Yeah.

Jacob: So again, that can be your law office, you can set up a PO Box. But typically, we’ll get all the mail and help you with that process, we can be your safe mailing address.

Andrew: All right. So now that we’ve sort of generally covered both U Visas and VAWA, let’s sort of compare them. Because like, so you mentioned that like, for example, with VAWA, you automatically get your green card. Whereas you don’t really with U Visas. What are some other sort of like differences? Like why should I … if I’m, for example, a victim of domestic abuse, why should I petition under VAWA versus U Visas, or like other similar things like that?

Jacob: Well, yeah, so that is … that calculus is something we go through when we consult people.

Andrew: Yeah.

Jacob: So the first question is do you have a formalized familial relationship? So are you married, right? If you’re not married, you’re not going to qualify for a VAWA, right, so there has to be a marriage relationship for the spouse to spouse or stepparent to stepchild.

Andrew: Yeah.

Jacob: I suppose from the child to adult the birth certificate issue would take care of that. So no marriage is required in that specific scenario. But generally, we’ll meet people who are being abused or are harmed by a spouse. That’s one difference.

Jacob: The next difference is for the U Visa, you’ve got to help police, and you’ve got to depend on the police to help you. Whereas with a VAWA, I guess it’s a recognition by Congress that people who are victims of abuse frequently don’t report, and frequently have difficulty leaving a relationship where their intertwined financially, emotionally, socially. For example, if you have children. You can’t just leave that, and it’s harder, unfortunately, for people in that situation to make a police report. So the evidentiary standard is still there and it’s still hefty, you still have to prove you’ve been a victim of abuse, but you don’t have to actively make police reports.

Andrew: Yeah.

Jacob: Yeah, you don’t have to involve police. So that’s probably the biggest difference, is how many people get involved. A VAWA can be done very privately. We did a VAWA a number of years ago for a woman who didn’t want to get the police involved, didn’t even want to get a protective order, but she had other documentation of abuse which was very tragic. And she just wanted it to be done privately, and her plan was to leave after she got her greed card, and she did. We got her the green card, and then that is what gave her the freedom to get away. And that’s the point of the VAWA.

Andrew: Yeah.

Jacob: And so of course it’s more difficult when you don’t call the police. If you’ve got a VAWA scenario and they have called the police and they’ve got a protective order, those tend to be a bit easier. But you can do a VAWA very privately. Or at least you could before the Trump era. So we’ll see how that goes in the future, but yeah, if you’ve got a tricky situation at home, you can definitely talk to us.

Andrew: Yeah. I think one sort of last thing we should talk about is just sort of like … what are the alternatives to these two types of Visas? So for example, just as one more specific example, there’s like the T Visa for victims of like human trafficking-

Jacob: Right.

Andrew: Like there’s a whole bunch of different things. Like if VAWA is specifically for domestic violence, there are other similar things for specific other crimes.

Jacob: Right.

Andrew: In addition to just general like family based petitions. Like if you have, for example, a relative that’s different from your abuser, who can petition for you, like there are other routes-

Jacob: Right.

Andrew: That you can go through based on your situation.

Jacob: Yeah, well, and thinking about that, you actually made me think of one more difference I want to point out between VAWAs and U Visas. The wait time for U Visas right now is four to five years. Because so many people are applying.

Andrew: Because it’s limited to like 10,000 per year, or something-

Jacob: 10,000 per year, which is absurd that Congress would limit the number of U Visas, because we all know how many immigrants get mugged a year, right?

Andrew: Yeah.

Jacob: So whatever. But VAWA tends to be fairly immediate, and … you know, immediate in immigration and government speak-

Andrew: Yeah.

Jacob: So a year or two. But U Visa is going to take at least four or five years, which is just unfortunate that you have to wait that long. One of my biggest beefs and running lines that I tell people when I talk about this topic, U Visas are processed in the Vermont service center, the same place as athletic Visas. How long does it take to get an athlete Visa? Two weeks. How long does it take to get a U Visa? Four to five years. Something is very wrong about that picture and we need to fix it as a society.

Andrew: Yeah.

Jacob: So anyway. But you had a more specific question, right, it was what other options are there?

Andrew: Yeah, what other options are there? Because like I mentioned specifically like family based Visas-

Jacob: Okay.

Andrew: If you have another permanent resident or citizen family member in the United States.

Jacob: Yeah, I mean, if you’ve got other family relationships you should explore them. And again, this begins with a conversation with your attorney. I mean maybe you just have a dead ringer asylum case, and you should just talk that over with your attorney. Family relationships, like you mentioned, the T Visas for victims of human trafficking, if you cross the border and were trafficked, I mean, that can happen. The S Visa is also another similar Visa to the T and U in that you cooperate with police, but it’s very rare, it’s more like the FBI-

Andrew: Yeah.

Jacob: Cooperation, and they really want to help you because you’re a star witness in a big deal case. So those are a lot more rare, I’ve never actually taken an S Visa through, it typically stops when you reach out to the government agency. So, there are a lot of options out there. And again, all of this starts with a conversation with an attorney. If somebody’s holding your legal status over your head, and you’re in a difficult situation, speak with an attorney, you’d be surprised what kind of options kind of come out of the woodwork for you.

Andrew: Yeah, because there are a lot of ways. Like even in this era, like there are a lot of ways to gain legal status.

Jacob: Right.

Andrew: Outside of relying solely on your abuser, so …

Jacob: Yeah, yeah. Yep.

Andrew: All right. So were there any final notes you wanted to mention about these Visas, any final like, I don’t know …

Jacob: Yeah, I mean, I would just say we’re very, very sympathetic to victims of domestic violence in our office. And it’s always hard to know how to speak sensitively about the topic, and I hope we’ve done that today.

Andrew: Yeah.

Jacob: But if you are somebody who is in a situation where you are concerned about your safety, this is just generally, if you are in a home environment where you do not feel comfortable or safe, get help and get out. You don’t have to live with that.

Andrew: Yeah.

Jacob: But for immigrants specifically, come talk to us, because there are ways that you can get help, and you deserve them. That’s another thing, we will believe you, you deserve help, and we’ll have your back.

Andrew: Yeah.

Jacob: Yeah.

Andrew: I think that’s a very important note to end on.

Jacob: Yeah.

Andrew: So thanks for tuning in everybody. We’ll see everyone next week, same time, same place. And yeah, I hope everyone has a wonderful week. 

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