The state of Texas has been a steadfast opponent against illegal immigration. The state has some of the toughest laws on the books to discourage those who would sneak into or otherwise violate US immigration laws. However, now and then you see a ray of light, a rare case where good sense seems to prevail despite any politics. This is one such case.
In December 2008, the Governor of Texas signed House Bill (HB) 1514 which amends Texas law dealing with ‘U’ Visas In HB1514 Section 2(C)(5)(b), it states: “an alien who has been battered, sexually assaulted, abused, or subjected to extreme cruelty by a spouse or immediate family member.” Under this provision, an illegal alien or lawful permanent resident may petition the local or state police for a U visa. It’s important to remember that these ‘U’ visas are not available under federal law, but only under Texas State Law.
HB 1514 states: “Entitles an applicant…to file with the appropriate official a petition which attests to being a victim of family violence and states that the person is willing to assist in investigating or prosecuting such conduct”. Exceptions from deportation exist under 8 USC Section 1231(b)(3) dealing with informants providing information about crimes involving national security, murder, rape, human trafficking, certain felonies committed against children, slavery, and smuggling If you have been victimized by your spouse then there is a strong argument that you can obtain a U visa from the Texas authorities.
To obtain your ‘U’ visa you must first file a petition for residency as a battered spouse with the US Citizenship & Immigration Services (USCIS) office in Houston, Texas. Once approved by USCIS, you can then send your application for a green card to the Texas Department of Public Safety (DPS). You must also provide DPS with certified copies of all police and court documents relating to any charges brought against your abuser.
Most undocumented immigrants will not qualify because they have been arrested at some point in their past, even if these arrests led nowhere. This is where it pays to have an experienced immigration attorney on hand who knows how things work down in Texas. In other words, for this to work you must be able to prove that you’ve never broken the law while in Texas. If you can do that then it’s very possible a U visa could make a green card a reality.
This is the first step toward legalization and is important because if your spouse has beaten or otherwise abused your chances are good that there’s more where that came from unless he’s put behind bars. As most undocumented immigrants will tell you, filing a police report against your abuser seldom ever happens even though laws exist which require local authorities to file such reports on behalf of victims. In other cases, immigrants may not want their spouses deported, but they’re tired of being hit around and they desperately want out of an increasingly abusive relationship. They hope by filing the police report it will send a message to their husbands/boyfriends that there are consequences for violent behavior.
If your abuser is an American citizen or lawful permanent resident then the immigration authorities could initiate removal proceedings against him if they receive copies of reports filed with the police where he has beaten you up, threatened you, etc. That way everyone wins because not only do you get immediate protection from abuse but your husband/boyfriend is also removed from the country who’s no longer eligible to become a U.S. citizen or green card holder until he can prove that he’s reformed his bad ways i.e., stayed out of trouble with the authorities for five years as required under 8 USC Section 1227(a)(4)(B).
The U visa is particularly useful when an illegal immigrant male has beaten, raped, or otherwise abused a female relative causing her to become pregnant. In this case, she would apply for a U visa on behalf of herself and any children who were born as a result of the unwanted pregnancy. This is because under Texas law, being the victim of domestic violence includes “sexual assault or abuse.” Since most undocumented immigrants have overstayed their visas they are not eligible to adjust their status here in the United States. However, if they can get a ‘U’ visa by applying for it from the Texas authorities then they might be able to get a green card through one of several family-based immigration petitions. Your abuser must have been referred to DPS by the police department to qualify for a ‘U’ visa. This means that it’s the cops, not you who are doing the referring. All U visas are certified by local police departments or county sheriffs’ offices before being sent to DPS for additional verification purposes.
It’s also important to point out that when applying for a U visa you can include any qualifying relatives regardless of whether they were abused by your spouse/boyfriend too or not if they have suffered mental or physical abuse at your hands. This means you can get your U visa if you’ve ever been arrested and/or convicted of a crime even if it was a minor or nonviolent offense. Even though this might seem unfair it’s the law under 8 USC § 1101(a)(15)(U). That being said, I suppose if one is going to be fair about these things then they should also include parents, siblings, children, etc., in the mix when applying for a ‘U’ visa because everyone else seems to be getting in on the action.
More importantly, and this is where your case gets interesting, if you can show that your husband/boyfriend abused you and/or your kids while living here in the U.S., then he can be kicked out of the country on account of being a threat to “public safety” under INA § 237(a)(2)(E). If successful, such an action would also allow him to be banned from returning for many years i.e., ten years at least under INA §§ 212(a)(9)(B), 237(a)(9)(B). So not only does his removal mean you get custody of the children — by default — and some kind of financial support (see below) but it also gives you another valuable bargaining chip in your divorce/custody battle.
For more information, you may ask or consult with Houston immigration lawyers.