Should I apply for a U-Visa or VAWA?

Should I apply for a U-Visa or VAWA?

The U-visa and VAWA have many similarities. Which one is appropriate for your situation involves complex legal analysis, and your case should be evaluated by an experienced attorney, before filing for either.

All things being equal, VAWA is usually preferable; however, in many instances, the U-visa is the better or only option.

You can find an overview of U-Visa basics here, and an overview of VAWA basics here.

In What Situations is VAWA Best?

  • If you have been the victim of domestic violence and your abusive spouse or parent is (or was) a U.S. citizen or lawful permanent resident.
  • If the above applies to you and you did not file a police report or make contact with law enforcement concerning the domestic violence.
  • You are admissible to the United States. (Although, VAWA automatically waives a few grounds of inadmissibility including, public charge, entry without inspection, being unlawfully present, and working without authorization).

In What Situations is the U-Visa Best?

  • You have been the victim of a crime besides domestic violence.
  • The aggressor, in your case, is not a family member.
  • The aggressor, in your case, is not and has never been a U.S. citizen or lawful permanent resident.
  • You filed a police report (or a report with an appropriate labor entity).
  • You are inadmissible to the United States.
  • You can obtain certification from law enforcement.

Benefits & Pitfalls to the U-Visa

Benefits

  • Waives almost all grounds of inadmissibility;
  • Path to lawful permanent residency: After three years on a U-visa, you can apply for your lawful permanent residency.
  • You do not have to leave the country to adjust to lawful permanent resident: Even if you entered without inspection, you will be able to adjust your status in the United States. The U-visa provides for a waiver of having entered without inspection, among others.
  • If you are under 21, your minor siblings are also eligible to apply for a U-visa.
  • Deferred Action: While the U-visa application is pending, USCIS may issue Deferred Action to waiting applicants. After Deferred Action is issued, an applicant can apply for work authorization while they await their U-visa.

Pitfalls of the U-Visa

  • Backlogs in Processing: USCIS can only approve 10,000 U-visa applications each year. Derivative approvals are not counted against the cap. This cap has resulted in a backlog in approvals. Each year USCIS obtains 10,000 ‘new’ visa numbers on October 1st, and they approve the next 10,000 U-visa applications in the order that they were received. U-visa applications take years for a decision.

Benefits & Pitfalls to VAWA

Benefits

  • Shorter Wait Time: There is no VAWA cap, although if your spouse is an LPR, you’ll have to wait for your priority date to become current.
  • Can qualify for VAWA even if you’ve never filed a police report.

Pitfalls

  • Qualifying Relative: You must have a qualifying relative to apply for VAWA, and your relative must be or have been an LPR or a U.S. citizen.
  • Must Be Otherwise Admissible: VAWA automatically waives certain grounds of inadmissibility, but not all. However, special waivers are available for VAWA applicants.

If you have been the victim of a crime, including domestic violence, and would like information about the U-visa or VAWA, please contact an immigration attorney who is trustworthy and knowledgeable! Our attorneys at Landerholm Immigration, APC, have extensive experience with U-visa and VAWA applications. Please feel free to call us at 510-488-1020 to see how we can help!

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