• B VISA FOR VISITORS
• DOMESTIC VIOLENCE, VICTIM AND HUMAN TRAFFICKING VISAS
• STUDENT VISAS
• WORK PERMITS

B VISA FOR VISITORS

The most common nonimmigrant visa is the B visa. There are two types of B visas: B-1 visas for business visitors, and B-2 visas for visitors for pleasure.  For additional information regarding these visas see the section on Business Immigration, Non Immigrant Visas.

DOMESTIC VIOLENCE, VICTIM AND HUMAN TRAFFICKING VISAS

Protection Under the Violence Against Women Act (“VAWA”):
Spouses, children, and, in some cases, parents who have suffered abuse or extreme mental cruelty at the hands of United States Citizen (USC) of Lawful Permanent Resident (LPR) family members have options that allow them to pursue permanent residence or visa status independent of the abusive family member.

The Self-Petition Under VAWA:
The self-petition process under VAWA allows a spouse, child or parent to apply for a visa petition independent of the abusive family member.  The grant of the self-petition places the abused non-citizen in the same position he or she would have been in had the abusive family member applied for the non-citizen. 

The criteria for protection under the self-petition process for VAWA are as follows:

• Good faith marriage to a USC or LPR if the petition is based on a marriage;
• Qualifying relationship, i.e., legally valid marriage to a USC or LPR, or qualifying bigamous marriage to a USC or LPR;
• Parent/child relationship where the abusive parent is a USC or LPR;
• Parent/son or daughter relationship where the abusive son or daughter is a USC;
• Abuse, including physical battery or extreme cruelty;
• Joint residence; and
• Good moral character.

If the marriage that forms the basis of the VAWA petition has been terminated within the past two years, the VAWA self-petitioner must show a connection between the abuse and the divorce; and if the abusive relative has lost his USC or LPR status within the last two years, the VAWA self-petitioner must show a connection between the loss of status and the abuse.

United States Citizenship and Immigration Service (USCIS) should consider all credible evidence submitted with the application including the self-petitioner’s own statement of the abuse.

After filing the VAWA petition, the petitioner may receive a “prima facie” determination indicating that the petitioner has established a prima facie case for protection under VAWA, and in some cases, the individual may use the prima facie determination to qualify for certain federal benefits.  An individual should check the rules in his or her state to determine eligibility for such benefits.

If the VAWA self-petition is approved, the approved petitioner is placed in the same status that he or she would have been in had the abusive family member filed the petition.  Spouses, unmarried minor children and parents of U.S. Citizens over 21 are considered immediate relatives under the family-based immigration system, and there are no quotas for immediate relatives.  This means that the approval of the petition would render the person eligible to file for permanent resident status immediately upon the approval of the petition.  In fact, an individual who would qualify as an immediate relative may file the adjustment of status application concurrently with the VAWA self-petition.

For spouses and children of lawful permanent residents, the approval of the self-petition would place the person in a queue and subject to visa backlogs and wait times.  To remedy this problem, the individual who has an approved self-petition may request “deferred action” status.  Deferred action places the individual in a period of stay authorized by the Attorney General.  Deferred action also provides some protection against removal, although the individual may be subject to removal if he or she commits an offense that would otherwise subject him or her to removal after the grant of deferred action status.  With a grant of deferred action status, the individual may obtain work authorization.

Once the visa becomes current in the category in which the applicant filed, the individual may then file for adjustment of status and obtain permanent residence. 

The approval of the self-petition does not cure the grounds of inadmissibility for permanent resident status that would otherwise accrue to the individual.  Thus, the mere fact that the individual has been granted an approved self-petition does not automatically entitle that individual to permanent residence.  If the individual is otherwise subject to inadmissibility, he or she may not be able to obtain permanent residence or may need a waiver of the ground of inadmissibility in order to obtain permanent residence.

Battered Spouse and Child Waivers of the Joint Petition to Remove Conditions on Lawful Permanent Residence:
Spouses and children who obtain lawful permanent residence based on marriages that are less than two years old at the time the lawful permanent resident status is conferred are granted “conditional permanent resident” status.  The LPR status is conditional for a period of two years from the grant of the status, and, at the end of the two year period, the spouse or child must file a joint petition with the USC Spouse or parent to remove the conditions on residency.

If, however, the spouse or child becomes subject to abuse or cruelty during the marriage, the individual may file for a waiver of the requirement that the petition be filed jointly with the abusive spouse or parent.  As with the VAWA self-petition, the request for a waiver of the joint petition filing must establish that the marriage was entered into in good faith and that during the marriage, the spouse or child became subject to abuse or extreme cruelty.  The applicant may submit any credible evidence to establish the abuse or cruelty.

Joint residence does not need to be established and good moral character is irrelevant to the determination of a waiver of the joint petition.  Divorce or death of the USC spouse or parent does not affect the ability of the petitioner to have the waiver of the joint petition adjudicated. 

Children who obtain conditional permanent residence at the same time or within 90 days of the parent becoming a permanent resident do not need to file a separate waiver of the joint petition and are automatically included in the waiver request filed by the parent. 

VAWA Cancellation of Removal:
If a victim of battery or extreme cruelty is in removal proceedings, that individual can apply for Cancellation of Removal under VAWA.  To obtain VAWA Cancellation, the individual must demonstrate:

• 3 years of continuous physical presence;
• That he or she is the victim of battery or extreme cruelty; and
• Extreme hardship to the applicant him or herself or to a spouse, parent or child who is a USC or LPR.

The U visa for Victims of Crime:
The U visa is available to those who meet four basic requirements as follows:

• Noncitizens who can show substantial suffering as the result of physical or mental abuse as a result of being the victim of certain criminal activity;
• Noncitizens who possess information about that criminal activity;
• Noncitizens who have been, or is being, or will be helpful or is likely to be helpful to Federal, State, or local authorities; and
• The criminal activity described violated the laws of the U.S. and occurred in the U.S. or in territories of the U.S. 

Upon a showing of hardship, an applicants' spouse, children and parents of those U visa applicants under the age of 16 may also receive derivative U status.  Applicants for the derivative status must provide certification from a government official that an investigation or prosecution would be harmed without the assistance of the derivative applicant.

The T Visa for Victims of Human Trafficking:
The T visa allows people who have been trafficked into the U.S. to obtain a T visa.  To qualify for a T visa, the applicant must show that they will suffer “extreme hardship involving unusual and severe harm” if deported.  After three years, the victim is able to apply for permanent residency.

STUDENT VISAS

The F-1 and M-1 visas are for individuals entering the U.S. to attend private school, vocational school, language school or university.  As of November 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act prohibit any individual from receiving an F-1 student visa for attendance at any publicly-funded adult education program or public elementary school.  A student who attends a private school and then transfers to a public school will be considered to have violated his or her student status and his or her visa could be voided.  Students in grade 9 through 12 must pay the unsubsidized per capita costs of education in advance to be eligible for an F-1 student visa in order to attend a public secondary school.  There are 2 nonimmigrant categories for students wishing to attend full-time academic or vocational studies in the U.S. The M-1 category includes students in vocational or other non-academic programs, other than language training.  The second category, F-1, includes academic students and students in language training programs.  All students must apply and be accepted to a USCIS approved school in the U.S.  If a foreign national is accepted, the school will send the student the appropriate USCIS form for his or her field of study.  The student uses this form to obtain the requisite F-1 or M-1 student visa from a U.S. consulate.  Students will be required to prove to the consular officer that they have the financial resources required for their education and stay in the U.S. and that they intend on returning home at the end of their studies.

How do you maintain your student visa?
Once a student has obtained a visa for a period of stay in the U.S., he or she can apply to extend his or her stay in the U.S. if his or her studies are going to take longer than anticipated to complete the original dates listed on the student's school-issued academic forms.  If the program in which the student is enrolled is a vocational or academic program, the student should be able to document a health-related reason, or other serious reason for remaining.  The student should also complete the necessary USCIS forms for extending or changing nonimmigrant status.  The form must then be submitted to USCIS for approval.

WORK PERMITS

Those persons who are neither United States citizens nor lawful permanent residents and did not enter the U.S. on a specific employment visa will need to apply for a work permit, or "employment authorization" through USCIS to prove eligibility to work in the U.S.  The following individuals may qualify for a work permit through USCIS: asylum seekers and refugees; students seeking certain types of employment; those applying for permanent residency in the United States based on marriage to a U.S. Citizen; those applying for temporary protected status; dependents of foreign government officials; and others. Lawful Permanent Residents and Conditional Permanent Residents do not require independent work authorization. Likewise, individuals who are in the U.S. pursuant to a work authorizing visa do not need independent work authorization.

Disclaimer: The information contained here is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk, and individual eligibility should be verified by consulting with an attorney in our office.  If you would like to make an appointment with an immigration attorney regarding your immigration matter, contact Joseph Law Firm, P.C.