Should You Apply for a U Visa or for VAWA?
U.S. immigration law provides three possible visas allowing victims of crimes to stay in or even come to the U.S. and testify or otherwise assist in law enforcement efforts:
- the “U” visa for victims of serious crimes
- the “T” visa for victims of human trafficking, and
- the Violence Against Women Act (VAWA) self-petition for abused spouses and certain parents and children of U.S. citizens and permanent residents.
If you are the victim of a violent or serious crime, determining which of these immigration categories is the best match for you given your circumstances can be difficult. This is especially true as you might qualify for more than one of these visas. For example, because human trafficking is a qualifying criminal activity for both the U and T visa categories, you might be eligible for either one.
Additionally, if you are the victim of domestic violence, you may be eligible for either a U visa or the VAWA self-petition. Both forms of relief provide a path to U.S. permanent residence (a green card). This article discusses when it is best to apply for a U visa and when you would be better served by filing the VAWA self-petition with U.S. Citizenship and Immigration Services (USCIS).
There Is a U Visa Cap, But No Limit on VAWA Self Petitions
One drawback to the U visa is that the law limits the number given out to 10,000 per year. In the past, the cap has been reached before the end of the year. There is no similar restriction on VAWA self-petitions. This means that U visa applicants may have to wait until at least the next year for their applications to be processed -- which could ultimately hurt their eligibility, if their assistance with the criminal case is no longer needed.
VAWA Petitioners Must Have a Qualifying Relative to Apply
VAWA is a means for battered and abused spouses (and certain parents and children) to obtain a green card without the cooperation of the U.S. citizen or permanent resident relative who is abusing them. Despite being authorized by the Violence Against Women Act, men and women may both self-petition. You may qualify if:
- your spouse is a U.S. citizen or legal permanent resident and he or she battered or abused you or your child (under 21 years old)
- your parent or stepparent is a U.S. citizen or legal permanent and he or she battered or abused you (and you are unmarried and under 21), or
- your adult child (over 21 years old) is a U.S. citizen and he or she battered or abused you.
However, if you are applying as a battered or abused spouse (or a spouse whose child was abused), you must:
- have been or be married to a U.S. citizen or legal permanent resident and have lived together at some point, and
- if you divorced, you must be able to show a connection between the divorce and the abuse you suffered, and
- your marriage must have been entered into in good faith.
This means that if you are not married to your partner (for example, you are just living together or are engaged), you will not be eligible for VAWA immigration relief. If the relative who is abusing you is not a permanent resident or U.S. citizen, VAWA relief is not available to you. Additionally, VAWA does not offer protection for people in same-sex marriages, civil unions, or other such relationships.
Similarly, if you are battered or abused by your parents and you are over 21 (or your U.S. citizen child has abused you but is under 21) you cannot VAWA self-petition.
If you cannot prove that you entered into marriage with your abuser in good faith (in other words, that your intention was not to skirt U.S. immigration law), you will not receive a green card with a VAWA self-petition. You may, however, qualify for a U visa if you have suffered substantial injury and have helpful information to provide to authorities. You will not be asked questions about good faith marriage, but any sort of immigration fraud on your record will be considered when reviewing your U visa petition.
You Must Be “Helpful” to Authorities to Qualify for a U Visa
U visas were created for the immigrant victims of serious crimes who have suffered physical or mental injury due to this criminal activity, and can provide helpful assistance to law enforcement agencies. The public policy behind the U visa is that these immigrant victims could aid police officers and prosecutors by providing information that is helpful in investigating these crimes and bringing the criminals involved to justice. For more on the U visa, which crimes qualify, and who is eligible to apply, see “U Visas for Crime Victims Assisting Law Enforcement: Who Is Eligible?”
If you have been subjected to domestic violence, and are not able to VAWA self-petition, you may apply for a U visa. Like VAWA, you will need to provide evidence of this battery or abuse and that it violated U.S. law. But you do not have to have a qualifying relative to apply, which makes the U visa more useful than VAWA in situations where, for example, your abuser is a not authorized to live in the U.S. or the two of you are not married or you are in a same-sex relationship.
In addition, for the U visa, you will need to have helpful information for a law enforcement official and he or she will need to “vouch” for your application by submitting a “Certification of Helpfulness.” You will need to show serious mental or physical injury and you will have to cooperate with authorities in providing information to help them investigate and prosecute your abuser. To learn more about what will be required, see “What’s Needed for a U Visa Certification of Helpfulness.”
You Must Show “Good Moral Character” for VAWA
Approval of a VAWA self-petition requires that you show “good moral character.” A U visa requires only that you not be “inadmissible” to the U.S. (based on things like criminal convictions, medical grounds, and immigration violations), due to which you will have to answer questions about your background. However, a U visa does not require an affirmative showing of good character like a VAWA self-petition.
Remember that, regardless of what type of visa you apply for, you will need to submit plenty of evidence to show that you are eligible, so it is advisable to seek the help of an experienced immigration attorney or domestic violence advocate before you apply.