Adjustment of Status Residency without Legal Entry
Victims of Human Trafficking: T Nonimmigrant Status
Can my spouse and children qualify for T visa?
Yes, T nonimmigrant status is also available for certain qualifying family members of trafficking victims, which includes spouse and children under 21. T nonimmigrants are eligible for employment authorization and certain federal and state benefits and services. T nonimmigrants who qualify may also be able to adjust their status and become lawful permanent residents (obtain a Green Card).
Congress created this status (commonly referred to as a T visa) in October 2000 as part of the Victims of Trafficking and Violence Protection Act. Human trafficking, also known as trafficking in persons, is a form of modern-day slavery in which traffickers use force, fraud, or coercion to compel individuals to provide labor or services, including commercial sex. Traffickers often take advantage of vulnerable individuals, including those lacking lawful immigration status. T visas offer protection to victims and strengthen the ability of law enforcement agencies to investigate and prosecute human trafficking .
Under federal law, there are two types of “severe form of trafficking”:
- Sex trafficking: When someone recruits, harbors, transports, provides, solicits, patronizes, or obtains a person for the purpose of a commercial sex act, where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is under 18 years of age; or
- Labor trafficking: When someone recruits, harbors, transports, provides, or obtains a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt bondage, or slavery.
Can I apply to become a permanent resident (green card holder)?
Yes, T nonimmigrants may be eligible to apply for lawful permanent residence (a Green Card) after 3 years in T nonimmigrant status.
Can I apply before 3 years with T visa status?
Yes, after the investigation or prosecution of the trafficking is complete, which may occur earlier than 3 year period. Call us your Houston immigration attorneys to discuss if it is possible to file before 3 year period for adjustment of status (green card).
What if I have crimes or prior deportation order?
You can still apply for T nonimmigrant visa and apply for a waiver of your prior deportation order and other forms of inadmissibility. We helped clients who were charged with smuggling and misrepresentation.
Call your experienced Houston immigration lawyer for guidance and representation.
Victims of Criminal Activity: U Nonimmigrant Status
The U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of noncitizens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.
What are the legal requirements to apply for U visa?
You may be eligible for a U nonimmigrant visa if:
- You are the victim of qualifying criminal activity.
- You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
- You have information about the criminal activity. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf.
- You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.
- The crime occurred in the United States or violated U.S. laws.
- You are admissible to the United States. If you are not admissible, you may apply for a waiver
What type of crimes qualify me as a victim for U visa?
- Abduction
- Abusive Sexual Contact
- Blackmail
- Domestic Violence
- Extortion
- False Imprisonment
- Female Genital Mutilation
- Felonious Assault
- Fraud in Foreign Labor Contracting
- Hostage
- Incest
- Involuntary Servitude
- Kidnapping
- Manslaughter
- Murder
- Obstruction of Justice
- Peonage
- Perjury
- Prostitution
- Rape
- Sexual Assault
- Sexual Exploitation
- Slave Trade
- Stalking
- Torture
- Trafficking
- Witness Tampering
- Unlawful Criminal Restraint
What if the crime is not listed above?
There is an “other” category which allows an opportunity to argue to USCIS that that crime against you is a qualifying crime. Call us your Houston immigration attorneys to discuss if you are eligible for U visa.
What is a key requirement that most people forget?
As the victim, you need to call 911 for law enforcement officer to file a report. Many people call 911, but do not file a report. To qualify for U visa, you need to show you cooperated with any investigation to prosecute your abuser or perpetrator. Cooperation is required because our Houston legal team will request a certification form to be signed by police department or sheriff department, District Attorney Office or the criminal court (judge).
Can I apply for U visa if I am outside the United States?
Yes, if your petition is approved, you must consular process to enter the United States, which will include an interview with a consular officer at the nearest U.S. Embassy or Consulate.
Can my family members apply for U visa under me?
Yes, if you are under 21 as the principal main applicant, you may petition on behalf of your spouse, children, parents and unmarried siblings under age 18. If you are over 21 years age, you may petition on behalf of your spouse and children.
I heard USCIS takes a long time to process U visa applications. Why?
- The limit on the number of U visas that may be granted to principal petitioners each year is 10,000. However, there is no cap for family members deriving status from the principal applicant, such as spouses, children, or other eligible family members.
- If the cap is reached before all U nonimmigrant petitions have been adjudicated, USCIS will create a waiting list for any eligible principal or derivative petitioners that are awaiting a final decision and a U visa. Petitioners placed on the waiting list will be granted deferred action or parole and are eligible to apply for work authorization while waiting for additional U visas to become available.
- Once additional visas become available, petitioners on the waiting list and those who have received a bona fide determination will receive their visa in the order in which their petition was received. Petitioners do not have to take any additional steps to request the U visa. USCIS will notify the petitioner of the approval and the accompanying U visa.
Can I apply for resident status (green card) after having U visa?
Yes, you may be eligible to apply for a Green Card (adjustment of status/permanent residence) if you meet specific requirements, including:
- You have been physically present in the United States for a continuous period of at least three years while in U nonimmigrant status, and
- You have not unreasonably refused to provide assistance to law enforcement since you received your U visa.
Can my qualifying family member still qualify for resident status when I have a green card as the principal applicant even if he or she does not have U visa?
Yes, that is possible! Do not give up. Any qualifying family member who does not have a derivative U visa when the principal U nonimmigrant receives a Green Card is no longer eligible for a derivative U visa, but may still be eligible to apply for lawful permanent residence.
I have U visa now finally. When can I apply to become a permanent resident?
You can apply as soon as after 3 years with U visa status.
What should I be careful of?
Do not wait after 4 years of U visa to think about applying for permanent residence. You need to apply before 4 year period of U visa. There are very limited situations where USCIS could allow you to remain eligible if you file after 4 year period, but no guarantees on outcome.
Battered Spouse, Children and Parents
As a battered spouse, child or parent, you may file an immigrant visa petition under the Immigration and Nationality Act (INA), as amended by the Violence Against Women Act (VAWA).
The VAWA provisions in the INA allow certain spouses, children, and parents of U.S. citizens and certain spouses and children of permanent residents (Green Card holders) to file a petition for themselves, without the abuser’s knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing.
The VAWA provisions, which apply equally to women and men, are permanent and do not require congressional reauthorization.
Am I eligible if the abuser is my spouse?
Yes, here are the requirements
- Qualifying spousal relationship:
- You are married to a U.S. citizen or permanent resident abuser or
- your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition, or
- your spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing your petition due to an incident of domestic violence, or
- you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.
- You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse:
- You have been abused by your U.S. citizen or permanent resident spouse, or
- your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse.
- You entered into the marriage in good faith, not solely for immigration benefits.
- You have resided with your spouse.
- You are a person of good moral character.
Am I eligible if the abuser is my parent?
Yes, here are the requirements.
- Qualifying parent/child relationship:
- You are the child of a U.S. citizen or permanent resident abuser, or
- you are the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence.
- You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.
- You have resided with your abusive parent.
- You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.
Am I eligible if the abuser is my child?
Yes, here are the requirements.
- Qualifying parent/son or daughter relationship:
- You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed, or
- you are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence, or
- you are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition.
- You have suffered battery or extreme cruelty by your U.S. citizen son or daughter.
- You have resided with the abusive son or daughter.
- You are a person of good moral character.
When can I work?
If you have an approved Form I-360, you are eligible to apply to work in the United States.
When can I apply for resident status (green card)?
If you have an approved Form I-360, you may be eligible to file for a Green Card. If you are a self-petitioning spouse or child, your children listed on your approved Form I-360 may also be eligible to apply for a Green Card.
Can I still be eligible for VAWA and resident status if I entered without a visa?
Yes, it is most likely possible. There is an exception to the normal requirement of showing legal entry and inspection when applying for adjustment of status.
Military Parole in Place
USCIS may grant parole in place on a case-by-case basis for urgent humanitarian reasons or significant public benefit under section 212(d)(5)(A) of the INA. You may be eligible for parole in place in one-year increments if you are the spouse, widow(er), parent, son or daughter of an:
- Active-duty member of the U.S. armed forces;
- Individual in the Selected Reserve of the Ready Reserve; or
- Individual who (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged.
If you entered the U.S. lawfully but overstayed your visa (or are otherwise in the U.S. past your period of authorized stay), you are not eligible for parole in place because you are not an applicant for admission. However, you may qualify for deferred action.
Am I required to show that I legally entered the United States?
No, that is not a requirement for military parole in place.
Can I apply for adjustment of status with military parole in place?
Yes you could be eligible to apply as long as you have an immediate relative relationship. This includes a US citizen spouse or US citizen parent for under 21 child, or if US citizen adult child (over 21) is applying for a parent.
245i Grandfathered Benefit
Section 245(i) of the Immigration and Nationality Act (INA), as amended by the Legal Immigration Family Equity (LIFE) Act and LIFE Act Amendments of 2000 enables certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain lawful permanent residence (get a Green Card) regardless of:
- The manner they entered the United States;
- Working in the United States without authorization; or
- Failing to continuously maintain lawful status since entry.
To qualify for this provision, you must be the beneficiary of a labor certification application (Form ETA 750) or immigrant visa petition (Forms I-130, Petition for Alien Relative, or I-140, Immigrant Petition for Alien Worker) filed on or before April 30, 2001.
245i Grandfathered Benefit
No, that is not a requirement for 245i.
Is there an extra fee (penalty) to pay USCIS?
Yes, you must also pay an additional $1,000 fee.
My sibling filed a petition for me before April 30, 2001 and my child is about to become 21, am I eligible for 245i?
It appears you could be eligible for this. We need to verify all the facts. We can guide you for your adult son or daughter over 21 to file a petition for you.
My sibling filed a petition for me before April 30, 2001 and I lost the approval notice. What can I do?
You are not required to have the approval notice for the old petition. You only need to show the receipt notice.
What is the benefit of 245i?
The immigrant applicant is not required to attend a visa interview abroad if he or she entered the United States illegally (unlawfully) meaning without a visa upon last entry.
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