Selected Issues on Citizenship and Immigration Law:
U Nonimmigrant Visa and Status
Thursday July 21, 2011
1:30 p.m. – 3:00 p.m. EST
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Patricia Wonder
Instructor,
CUNY School of Professional Studies
Our Panel of Presenters
Julie Dinnerstein
Co-Director
Sanctuary for Families’
Immigration Intervention Project
U Visas and Nonimmigrant
Status
U Visa and Nonimmigrant Status:
Legislative Background
Julie E. Dinnerstein
• To encourage immigrant victims to
report crimes and seek protection of
law enforcement
• To encourage law enforcement officials
to work with immigrant crime victims
U Visa and Nonimmigrant Status Overview
Julie E. Dinnerstein
• Nonimmigrant status created in 2000
as part of Victims of Trafficking and
Violence Protection Act
• Benefits certain crime victims willing
to work with law enforcement
• Who have suffered substantial harm
as a result of the crimes
U Nonimmigrant Status Petition: 2 Levels
Julie E. Dinnerstein
LEVEL 1
LEVEL 2
Level 1:
• Establish eligibility for U nonimmigrant
status under
• INA §101(a)(15)(U), INA §214(p), 8 CFR
§214.14
Level 2:
• Establish that U petitioner (or U
derivative) is not “inadmissible”
• Grounds of inadmissibility listed at INA
§212(a)
• But, almost all grounds can be waived
under
INA §212(d)(14), 8 CFR §212.1 and .17
Overview
Julie E. Dinnerstein
• Petitioner suffered substantial physical
or mental abuse as a result of being a
victim of qualifying criminal activity;
• Petitioner has credible and reliable
information about the criminal activity;
• Certification required to establish that
petitioner has been, is being helpful to,
or is likely to be helpful to law
enforcement official;
• Criminal activity occurred in the United
States or is covered by US law; and
• Petitioner is not “inadmissible.”
Steps to Analyzing Eligibility
Julie E. Dinnerstein
1.
Is the client a victim of qualifying
criminal activity covered by a US
law (federal, state, tribal, local or
municipal)?
2.
Has the client suffered?
3.
Has the client cooperated with
government authorities?
4.
Can the required certification be
obtained?
5.
Is the client inadmissibile and, if
yes, can the inadmissibility be
waived?
Step 1: Qualifying Criminal Activities
Julie E. Dinnerstein
• Qualifying criminal activities include:
– sexual assault;
– domestic violence;
– felony assault; and
– manslaughter
• attempts, or conspiracies to commit
qualifying criminal activities
Step 2: Substantial Physical or Mental Abuse
Julie E. Dinnerstein
Nature of injury inflicted/suffered;
Severity of perpetrator’s conduct;
Severity of the harm;
Duration of the harm;
Pattern of abuse by this perpetrator
against victim
• Existence of permanent or serious
harm (physical or mental), including
aggravation of pre-existing condition
•
•
•
•
•
Step 3: Cooperation
Julie E. Dinnerstein
• Has your client spoken with the
investigating authorities?
• Is your client prepared to testify?
• Has your client provided updated contact
information to the investigating or
prosecuting government agencies?
Step 4: Form I-918, Supplement B:
The U Certification Form
Julie E. Dinnerstein
• The U Nonimmigrant Status Petition cannot be
filed without a certification on Form I-918,
Supplement B, signed within 6 months of the U
filing.
• No certification = no case.
• In New York City, common signatories include:
– the five District Attorneys’ Offices (most
common);
– child protective services (common);
– the police (less common)
– Family Court judges (relatively new)
Poll Question
A few years ago, Sandra was raped. At the time, Sandra had only
been in the U.S. for a few months. She did not want to tell the
police. She did not speak any English and she was afraid. She did
talk to a counselor at a community center in her neighborhood a
couple of months after the attack. She ended up spending three
years in counseling.
Is Sandra eligible to apply for U nonimmigrant status?
Step 5: Inadmissibility
Julie E. Dinnerstein
• INA §212(a) lists grounds of
inadmissibility.
• Waivers of grounds of inadmissibility
can be filed per INA §212(d)(14), 8
CFR §212.17 (discretion in public or
national interest).
• Only INA §212(a)(3)(E) cannot be
waived.
• With Form I-918, file Form I-192 to
seek waiver of inadmissibility grounds.
INA §212(d)(14) Waiver of Inadmissibility
Julie E. Dinnerstein
Form I-192
• Considerations:
− Risk of harm to society by applicant
(any indication of rehabilitation
helps)
− Seriousness of applicant’s violations
of criminal and/or immigration laws
− Applicants reason to apply for
nonimmigrant status (need not be
extraordinarily compelling)
Poll Question
Jesse entered the US in 2007 on a student visa but stopped going
to school a couple of years ago when he could no longer afford the
tuition. He has been working as an independent graphic designer
in Williamsburg and making reasonable money since then. One
night, he was mugged and ended up getting stabbed. A passerby
called 911 and he was taken to the hospital and released the next
day after treatment for his injuries.
Is Jesse eligible to apply for U nonimmigrant status?
Passports
Julie E. Dinnerstein
• A lack of a passport is both a ground of
inadmissibility under INA § 212(a)(7) and a
practical problem – particularly for those
outside the United States.
• Most adult clients, whether in the US or
abroad, can obtain passports.
• Many children cannot obtain passports as they
cannot obtain consent from abusive or missing
parent.
• Those in the United States who do not have
current, valid passports must file Form I-192.
• Those outside the United States who do not
have current, valid passports, file both Form
I-192 and Form I-193.
Qualifying Family Members
• Accompanying or following to join:
Julie E. Dinnerstein
– For petitioners 20 and under, the
spouse (U-2), children (U-3), parents
(U-4), and unmarried siblings under 18
(U-5) on the date on which such alien
applied for status
– For petitioner 21 or older, the children
(as defined at INA §101(b)) and spouse
• Cannot be granted U derivative
status until U-1 is granted.
• May request status on I-918,
Supplement A, at the same time
that the I-918 is filed or afterwards.
Excluded From Derivative Status:
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8 CFR §214.14(f)(1)
“A qualifying family member who
committed the qualifying criminal
activity in a family violence or
trafficking context which established
the principal alien’s eligibility for U
nonimmigrant status shall not be
granted U-2, U-3, U-4, or U-5
nonimmigrant status.”
Evidentiary Standard and Quotas
• Any credible evidence standard.
Julie E. Dinnerstein
• Non exclusive relief.
• Can be filed by those with final
removal, deportation and exclusion
orders.
• Quota of 10,000 per year (does not
apply to derivatives).
• If quota exceeded, U petitioner is
placed on waiting list and granted
deferred action and eligible to apply for
work authorization until such time as
U petitioner may be granted U status.
Duration
Julie E. Dinnerstein
• U status is for 4 years
• USCIS is currently granting less than 4
years of status to derivative children
who may turn 21 before the normal 4
year period. Any child who receives a
grant of less than 4 years should file
an appeal on Form I-290B within 33
days of date on notice indicating grant
of U-3 status for period of less than 4
years.
Adjustment of Status: INA §245(m)
Those in U nonimmigrant status may apply for
permanent residency if:
Julie E. Dinnerstein
• physically present in US in U nonimmigrant
status for 3 or more years,
• necessary based on humanitarian grounds
to ensure family unity, or in the public
interest; and
• no affirmative finding that the noncitizen
has unreasonably withheld assistance to law
enforcement
• since the grant of U status, the adjustment
applicant has not been out of the United
States for more than 180 days in total and,
at no point, for more than 90 days in a row.
Typical Case – Principal Petitioner
Julie E. Dinnerstein
Form I-918;
• I-918, Supplement B
• G-28 on blue paper
• Index
• Affidavit explaining “yes” answers.
• Affidavit describing substantial harm
• Copies of relevant documents
Form I-192 (if required)
• $585 fee (or fee waiver request)
• G-28 on blue paper
• Affidavit addressing ground(s) of
inadmissibility and hardship
Typical Case – Each Derivative
Form I-918 Supplement A
• Form must be signed by derivative if (a) in US; and
(b) 14 or older
Julie E. Dinnerstein
• Affidavit explaining “yes” answers on Form I-918
Supplement A (may be from petitioner or derivative)
Form I-192 (if required)
• $585 fee (or fee waiver request)
• G-28 on blue paper
• Affidavit addressing ground(s) of inadmissibility and
hardship (may be from petitioner or derivative)
• Must be signed by derivative if 14 or over.
• Form I-765
• $380 (or fee waiver request)
• G-28 on blue paper
• List office address for Question #3.
• Write (a)(20) for Question #16.
• Only file if derivative is in US.
Form I-918 – Page 1
Julie E. Dinnerstein
• It is a good idea to list the legal
office as the safe mailing address.
• If client has no A# (and most do
not), leave blank.
• If client has no SSN (and most do
not), leave blank.
• Marital status – list legal status,
regardless of whether couple is
together or not.
Form I-918 – Page 1 (cont.)
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• Passport information – list even if expired.
• Passport information – if issued in New York
City, be sure to indicate in the “Place of
Issuance” box.
• If no I-94 # (and clients who enter without
inspection will not have an I-94 card), write
“none,” and if card has been lost, write
“lost.”
• For most of our clients, their current
immigration status is “none.”
• Be sure to check off box on bottom right
hand corner indicating that you are filing a
G-28 and provide your state license number.
I-918 – Page 2
Julie E. Dinnerstein
• Answers to Question #s 1-5 and #7
are always “yes.”
• If client was ever stopped by
immigration officials but does not
have information regarding
proceedings, the answer to the
question is likely to be unclear so you
will write in “unclear” by hand.
• Question 9 only asks for the last 5
years.
I-918 – Page 3
• Part 2, Question 10 – this section is always left
blank for our clients.
Julie E. Dinnerstein
• Part 3, Question 1 – the answer to these
questions is frequently “unclear.”
• Part 3, Question 1 – if your client has ever
been stopped under color of law in the US or
abroad, whether or not client believes that he
or she was “arrested” or “detained” or
“imprisoned” or “convicted” please review how
to answer these questions carefully.
The Immigrant Defense Project
(www.immigrantdefenseproject.org;
212-725-6422) can provide helpful information
in analyzing how best to describe past
interactions with law enforcement and how to
gather official documents relating to any such
interactions.
I-918 – Page 4
Julie E. Dinnerstein
• Question 2 – the vast majority of our
clients answer “yes” as they or members
of their household have received some
form of government assistance. Where
clients have given birth in the US, they
have almost always received government
funded pre-natal care. Be sure to ask.
• Question 3, c. – Clients who have helped
their children or other family members
or friends to enter the US unlawfully will
answer “yes.”
I-918 – Page 6
• Question 11 - All of our clients will answer “yes” to one or more of these
questions.
Julie E. Dinnerstein
– Our clients have all been present as crime victims of physical or sexual
assault.
– Many clients have also been forced to move out of homes shared with
abusers or move to shelter or change residences in connection with
abuse.
• Question 12 – Many clients will answer “yes” to one or more of these
questions if they or an immediate family member has served in the police
force or military, including in the US.
• Question 14 – Many clients will answer “yes” or “unclear” to these
questions. Be sure to review these questions carefully with both client and
supervisor.
• Question 15 – I have never seen anyone in the New York City area with a
final order under INA §274C, so the answer to this question is generally
“no.”
• Question 16 – Many clients will answer “yes” to this question.
Page I-918 - Page 7
Julie E. Dinnerstein
• Part 3, Question 22 – Clients who have
tested positive for TB or who have been
hospitalized in connection with suicide
attempts or other mental illnesses may
answer yes to this question.
• Part 4 – Be sure to list legal spouse as
well as all children, whether born in the
U.S. or outside the U.S., whether single or
married and regardless of age and
immigration status. If there is not
enough room to list all of your clients
children, please use an additional sheet of
paper to list additional children.
Form I-918, Supplement A
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• If, and only if, derivative is (a) in the
U.S.; and (b) 14 or over, he or she
must sign in addition to the I-918
petitioner.
• Affidavit explaining responses can be
from the petitioner or derivative.
Form I-192
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• List actual address, unless living in a confidential
domestic violence shelter, in which case write
“confidential domestic violence shelter.”
• The answer to Questions 7, 8 and 9 is “N/A.”
• The answer to Question 10 is “indefinite.”
• The answer to Question 11 is “Already in
U.S. - filing U nonimmigrant status petition.”
• In response to Question 12, write a brief factual
summary. Examples include:
– Entered without inspection (EWI)
– Helped children to enter unlawfully
– Provided incorrect information on previous
immigration application
– Do not have current, valid passport
Form I-192: Supporting Evidence
• Where the only grounds of inadmissibility are either
(1) EWI; or (2) no passport, then no supporting
affidavit or other evidence is needed.
Julie E. Dinnerstein
• For most non-drug offense, non-violent grounds of
inadmissibility (including petty theft, illicit gambling,
unlawful reentry after deportation, etc.) a short one
to two page affidavit describing the equities,
combined with documents showing the nature and
resolution of the offense, should suffice.
• For potential mental health grounds of
inadmissibility, a statement from a mental health
professional explaining why the applicant is not a
danger to him- or herself should be included.
• For drug offenses and violent crime, numerous and
detailed statements and other forms of evidence
should be submitted to establish rehabilitation and
strong equities.
Form I-765: Employment Authorization
Document (EAD) Application
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• Not required for primary I-918 U petitioner;
only required for derivatives.
• Can only be submitted for derivatives in the
United States.
• It is a good idea to list office address in
response to Question 3.
• Write (a)(20) in response to Question 16.
• Should be filed for derivatives in the United
States, regardless of age or intent to work.
Form I-193
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• File only for those who are outside the
United States and cannot obtain
passports.
• Form I-192 is also required.
G-28s
Julie E. Dinnerstein
• File a G-28 on blue paper with each of the
following forms:
– I-918
– I-192
– I-193
– I-765
• This requirement means that you may be filing
several signed G-28s for each family member
who you represent.
Q&A: Our Panel of Presenters
Patricia Wonder
Julie E. Dinnerstein
CUNY School of Professional
Studies
Sanctuary for Families’
Immigration Intervention
Project
Instructor
Co-Director
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Acknowledgements
• Paul Russo
Director of Online Programs
CUNY School of Professional Studies
• Antonia Levy
Instructional Technology Fellow
CUNY School of Professional Studies
• Kelley Kawano
Instructional Technology Fellow
CUNY School of Professional Studies
• Allan Wernick
Director
CUNY Citizenship Now!
• A. Sofia Carreño
Communications Coordinator
CUNY Citizenship Now!
• David Sturniolo
Communications Assistant
CUNY Citizenship Now!
• Gabriel Espinal
Communications Assistant
CUNY Citizenship Now!
For further questions regarding the information
presented during this webinar please contact
Patricia Wonder
[email protected]
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