IMMIGRATION LAW IMPACT ON CHILD ABDUCTION/MEDIATION CASES
LISA JOHNSON-FIRTH, ESQ.
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Immigrants First, PLLC - All Rights Reserved
NOVEMBER 9, 2015
Goals for Presentation
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To provide basic overview of key aspects of the
immigration system and law
To demonstrate the criticality of immigration status
on the status of each party (parent(s) and child
in abduction and custody mediation cases)
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Immigration Key Players Under Department
of Homeland Security (DHS)
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Immigration law is federal civil law found at Immigration and Nationality
Act (INA) 101; 8 U.S.C. 1101 and 8 CFR
DHS operates Interagency Border Inspection System (IBIS) with all
federal databases (incl FBI and Nat Crime Info Ctr)
Citizenship and Immigration Services (USCIS): adjudication of benefits
(affirmative filings):
www.uscis.gov; 1-800-375-5283
Customs and Border Protection (CBP): inspection of goods and persons
entering US – law enforcement
Immigration and Customs Enforcement (ICE): investigation, detention and
deportation (police of system); www.ice.gov; 703-285-6301; Fax
Washington Field Office 703-285-6216; missing children: 1-866347-2423
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4
Department of State and
Department of Justice - EOIR
U.S. Dep of State – governs all visa issuance and US
consulates, has Office of Children’s Issues. Contact State in
event of missing child suspected of being abducted
abroad: 2201 C St. NW, SA-29, Washington, DC 205202818; 202-736-9090; fax: 202-736-9132;
www.travel.state.gov. Has passport lookout program to
find out if child issued a passport; DS 3035 Statement of
Consent to remove child from US
Department of Justice, Executive Office for Immigration
Review: www.justice.gov/eoir; 1800-898-7180 for case
status information (such as prior removal orders)
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Immigration Definitions
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Admission – formal process of inspection and allowing entry into US
Aggravated Felony – any crime delineated in Immigration and
Nationality Act (INA) 101(a)(43) – can be misdemeanor under state
law
Alien – person who is not a citizen of the US
Asylum – granted where person has past persecution or well-founded
fear of future persecution on account of race, religion, nationality,
membership in social group, political opinion
Citizen – a person born in the US, derived status from USC parent or
was naturalized
Crime of Moral Turpitude (CMT) – a particularly depraved offense
Deportation (prior to 1996)/Removal – removal of person from US
because of status. Not form of punishment – civil sanction
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Immigration Definitions Cont’d
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Department of Homeland Security (DHS) – Est. 2003, legacy INS
EWI – Entry without inspection – “illegal alien”
“Green Card” – Form I-551 or “alien registration card” issued to
LPRs
Humanitarian parole – permission to enter and remain in US for
humanitarian reasons
I-94 Card – given by CBP to show duration of status in US
Immigrant – person who comes to US to remain permanently
Nonimmigrant – person in US for temporary period of time on
nonimmigrant visa
Priority Date – date on which person submitted documentation
establishing eligibility
for immigrant visa (green card)
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Immigration Definitions Cont’d
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Refugee – Person outside the US who is unable or unwilling to return to
his or her country because of persecution on account of race, religion,
nationality, membership in particular social group or political opinion
Temporary Protected Status (TPS) – a status allowing residence and
employment for a period of not less than 6 months and no more than
18 months when country of origin designated by US gov because of
extraordinary circumstances (Haiti; El Salvador)
Visa – official endorsement obtained from US consulate certifying
person may seek admission for either immigrant or nonimmigrant
purpose
Visa Waiver Program (VWP) – nationals of certain countries can waive
applying for visa and stay for up to 90 days
Voluntary Departure – Allows departure without deportation on record.
Max time granted to leave is 120 days.
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Immigration Laws Affect ALL
Persons Who Are NOT US Citizens
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Immigration laws affect all those persons who are not USCs –
including those who are in current legal status on non-immigrant
visas (e.g., H1Bs, B1-B2s, Js, Fs, etc.), deferred action for childhood
arrivals (DACA), temporary protected status (TPS) and immigrant
visas (lawful permanent residents, “green card” holders).
Therefore, all immediate family members of anyone who is not a
USC are also impacted.
Immigration status dramatically changes the way persons respond
to a family or criminal situation and significantly modifies the
power balance between the parties. Immigration status should
always be a consideration in any mediation/custody/potential
abduction situation.
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Immigration Background Is Essential:
Screening Questions
FOR EVERY CLIENT (MUST REQUEST EVIDENCE OF STATUS):
What country were you born in?
Of what country are you a citizen? (review ALL passports for visas and
stamps). Even if USC, get proof.
FOR NON-US CITIZENS ASK FOLLOWING CRITICAL QUESTIONS:
When did you enter the United States?
How did you enter?
Were you arrested/detained/deported at the border or asked to see IJ?
What is status in US? If lawful resident or other status get copy of green
card (Form I 551) or EAD card, visa in passport, I 94, stamps in passport.
What is complete criminal history AND, if possible, obtain COMPLETE criminal
history in US AND OTHER COUNTRIES:, including charging document, record
of conviction, police report.
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Screening Questions, Cont’d
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All entry dates into the United States (after vacation, etc)
Note dates of obtaining any immigration status (especially
lawful permanent residence – green card)
Obtain information on family background:
Marital status (citizenship of spouse and date of marriage)
Children (citizenship, DOB), parents and info on legal status
Any crime (including domestic violence, kidnapping, etc) of
which any member of family been a victim
Any hardship to client and family if client detained and/or
deported: medical/financial issues; emotional hardship;
learning disabilities of children.
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Ask For Documentation
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Passports, birth certificates and ID cards of all
parties/immediate family; and marriage
certificates/divorce decrees/custody orders
Prior immigration applications/evidence of status
Tax returns as far back as possible
Evidence of residence, esp. shared residence
Evidence of marriage and/or crime/domestic
violence (medical/legal /financial and counseling
records, phones and computers/photos)
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Engaging Immigration Counsel,
Cont’d
IMMIGRATION LAW IS NOT AN AREA TO PRACTICE CASUALLY
What to look for in an immigration attorney:
Member of American Immigration Lawyers Association
Referrals by other lawyers
Depth of experience in subsection of immigration required
(removal defense v. employment-based visas – there are
multiple subsections of expertise in immigration)
Ability to act quickly and be responsive, even if full case
load – time is usually of essence
ENGAGE COUNSEL AT EARLIEST OPPORTUNITY AND
PROVIDE INFORMATION FROM YOUR CONSULTATION
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13
All Persons Who Are Not USCs Are
Subject to Removal from the US
How does Immigration and Custom Enforcement (ICE)
apprehend a person?
ANY ENCOUNTER WITH CRIMINAL LAW
ENFORCEMENT – through the Priority Enforcement
Program that came into effect November 20, 2014 –
law enforcement agency screening – turn over to ICE
TRAVEL – in and out of the United States when either
removable or inadmissible
APPLICATION WITH USCIS when not eligible for
benefit
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Removal Proceedings – INA 240
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Before an immigration judge, who determines removability and
any relief from removal. A hearing may adjudicate a
person’s removability under INA 237 or inadmissibility under
INA 212 – either unfavorable determination = removed from
the US, unless there is another form of relief (USCIS benefit,
asylum, readjustment, naturalization).
Removal proceedings initiated by issuance of Notice to Appear
(charging document) (Form I 862). Can be issued by CBP, ICE
or OCC (office of chief counsel – DHS attorneys)
Venue is typically based on client’s residence, but ICE can
transport client to facilities around US, thus changing venue
for detained client – can be difficult to represent.
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Removability v. Inadmissiblity
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* Admission is important definition: means the lawful entry of
an alien into the United States after inspection and
authorization by an immigration officer; OR admitted for
LPR status. INA 101(a)(13)(A)-(C); 8 USC 101(a)(13)(A)(C).
Grounds of Removability apply where a noncitizen has been
admitted to the United States with an immigrant or
nonimmigrant visa and ICE wants to remove because
person is no longer in legal status or has committed a crime
that makes person deportable. Grounds of deportability
are at INA 237(a)(2); 8 USC 1227(a)(2).
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Removability v. Inadmissiblity,
Cont’d
Grounds of Inadmissibility, INA 212, apply where person
noncitizen is seeking admission to the United States or client is
inside the United States and is seeking to apply for lawful
permanent residency. LPRs can be subject to grounds of
inadmissibility when re-entering US if criminal convictions fall
within INA 212(a)(2); 8 U.S.C. 1182(a)(2) (criminal grounds of
inadmissibility).
Grounds of Removability, INA 237, differ in some important
respects from inadmissibility grounds (such as there is no
aggravated felony or domestic violence ground of
inadmissibility, and a conviction is not required under certain
provisions of INA 212(a)(2) (inadmissibility). Note: a client may
be subject to both grounds of removability and inadmissibility at
same time. Immigrants First, PLLC - All Rights Reserved
Common Grounds of Inadmissibility
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There are many grounds on inadmissibility under INA 212. The most
common are:
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Crimes of moral turpitude, poss of controlled substances/trafficking
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Illegal entrants into the US
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Misrepresentation to obtain an immigration benefit
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Not being in possession of valid immigration documentation
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Unlawfully present for 180 days to one year (3 year bar) or over
one year (10 year bar)
Previous removal
Unlawful presence of more than one year in the aggregate or
ordered removed and then illegal re-entry again (permanent bar)
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Common Grounds of Removability
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There are many grounds of removability under
INA 237. The most common are:
Being inadmissible (so all grounds of
inadmissibility)
Present in violation of the law (illegal
entry)/failure to maintain status
Termination of lawful permanent resident status
Many criminal grounds as listed next . . .
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INA 237(a)(2) Criminal Grounds of
Removability
Crimes of moral turpitude
Multiple criminal convictions
Aggravated felonies (defined at INA 101(a)(43))
High speed flight
Failure to register as sex offender
Domestic violence, stalking and child abuse
and/or violation of protective order
Crimes relating to controlled substances and
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Definition of Conviction,
INA(a)(48)(A)
Criminal grounds of deportability require a conviction (defined at INA
101(a)(48); 8 USC 1101(a)(48):
Formal adjudication of guilt entered by a court, or, if adjudication
withheld: defendant admits sufficient facts to warrant finding of
guilt; AND judge has ordered some form of punishment, penalty or
restraint on liberty (payment of court costs qualifies)
Expunged convictions still count as do deferred adjudications (as
opposed to withheld adjudications), but both can look better than
the usual conviction from a discretionary standpoint
Juvenile delinquency findings are not convictions – except for Deferred
Action for Childhood Arrivals (DACA)!
If juvenile sent to adult court, will be conviction.
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Definition of Sentence, INA
101(a)(48)(B)
Sentence is:
“Any reference to a term of imprisonment of a sentence with respect to
an offense is deemed to include the period of incarceration or
confinement ordered by a court of the law, regardless of any
suspension of the imposition or execution of that imprisonment or
sentence in whole or in part.”
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Balancing Criminal and Immigration
Goals
PLAN OF ACTION FOR CRIMINAL REPRESENTATION OF A
NONCITIZEN:
Minimize criminal consequences WHILE AT SAME TIME
Minimizing adverse immigration consequences AND
Preserving best possible immigration relief in case client is still
found removable (which will often be the case because client is
removable for unlawful presence)
Be aware that immigration consequences are often the MOST
important consideration because the immigration consequences
of the crime are MORE SEVERE THAN THE CRIMINAL
CONSEQUNCES. Often families do not realize this until too late
and one has reported the other.
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Waivers for
Inadmissibilities/Removability
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Can be challenging and lengthy time to get waiver
There is a complex array of waivers available for certain
categories of persons and grounds of inadmissibility. There
are few grounds for removability but it may be possible to do
a waiver of inadmissibility in a removability hearing
depending on the facts of each case.
Form I 601 is required for waivers and I 601A for provisional
waiver. If removed from the US and applying for re-entry, I
212 must be filed as well and for nonimmigrant visa applicants
form I 192 for a INA 212(d)(3) waiver
These issues should be dealt with before coming to border or
arrest by ICE
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Effect of INA 212 and 237
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The overall impact of INA 212 and 237 is that for
a person who is either in the US unlawfully or who
has a ground of removability/inadmissibility, his or
her position is very precarious.
This weakened position can severely impact the
obtaining of custody, mediation process or ability to
report/cooperate in a child abduction case.
Fear of deportation from the US is often a primary
consideration and impacts almost
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Immigration Basics:
Immigrants, Non-immigrants and Other Legal Statuses
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Immigrant Visas – LPRS – Ways to obtain immigrant status:

Family and employment-sponsored immigrants.

Diversity Immigrants: Allows citizens of countries designated as contributing
disproportionately fewer immigrants to apply for immigrant visas through a
lottery system.
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Refugees and Asylees: Granted to those who can prove that they have fled
their country because of past or fear of future persecution.
Non-immigrants have temporary stay and were granted
nonimmigrant visa for specific purpose of work, visitation,
study, exchange program, etc.
Other statuses include: obtaining temporary protected status
(TPS), prosecutorial discretion and relief in removal
proceedings.
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Family-Based Immigration:
Defining the Relationship
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Petitioner: Lawful permanent resident (LPR) or United
States citizen (USC) sponsoring alien spouse, parent,
child or sibling
Self-Petitioners Include: widows/widowers, battered
spouses and children of USCs/LPRs and special
immigrant juveniles
Beneficiary: alien seeking permanent residence
See INA 204(a)(1)(A); 8 C.F.R. 204.1(a)(1)-(5)
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What is a Marriage?
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Marriage must be legally valid and recognized in
the jurisdiction where created (includes common
law marriage) (Matter of Bautista 16 I&N Dec.
602)(BIA 1978).
There can be many reasons for marriage, except a
marriage entered into for immigration purposes.
Even if marriage valid in foreign country, must not
violate public policy: same-sex, polygamous,
incestuous, proxy (unless consummated).
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Who is a Child?
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Must meet definition of Immigration
and Nationality Act (INA)
101(b)(1), be unmarried and
under 21 years.
Child born out of wedlock may
immigrate through mother. May
obtain benefits through father if
there is a “bona fide parent-child
relationship” (recognizing child,
DNA testing, support, visitation)
See Matter of Vizcaino 19 I&N
Dec 644 (BIA 1988).
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Who is a Child? (continued)
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Step-Children: Can immigrate through
stepparent if child under 18 at time of
marriage to natural parent. INA
101(b)(1)(B).
Adopted children: eligible to immigrate
through adoption before age 16 if has
been in legal custody and resided with
adoptive parent for at least two years.
Orphans: USC can petition for orphan if
under 16 years and complies with INA
101(b)(1)(F).
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Who Can File a Petition?
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Immediate Relatives: A USC can petition for:
spouse, parent (if petitioner is 21 or over) or child
(must be unmarried and under 21).
Includes widow(er)s of USCs not legally separated at
time of death and did not re- marry before
immigrant visa (green card).
See Sections INA 201(b)(2)(A)(i) and 204.2(b)(2)(A)(i)
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Preference System
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Some relatives of USCs and all relatives of LPRs are subject
to a preference system of numerical limitation based on
Congressional limit of 480,000 p/y for family –based
immigration (immediate relatives subtracted from that)
and then quota for each preference category plus any
visas left over (See INA 203):
First preference: unmarried son or daughter over 21 of
USC (23, 400 p/y)
Second preference A: Spouse and unmarried (under 21)
children of LPR (87,900 p/y)
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Preference System (cont’d)
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Second preference B: unmarried son or daughter over
21 of LPR (26,300 p/y)
Third: married son or daughter of USC (23,400 p/y)
Fourth: brothers and sisters of USCs where USC is at
least 21 (65,000 p/y)
PRIORITY DATE: Is that that I-130 petition for alien
relative is properly filed (receipt notice)
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Adjustment/Immigrant Visa Process
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Process is started by USC or LPR relative filing an I130 petition for alien relative. If USC is petitioner
for an immediate relative then can file to adjust
status for alien relative (form I 485) at same time IF
alien relative is in the United States AND is
admissible. If relative is outside the US or is
inadmissible then relative will consular process (form
DS 230), with a waiver for the inadmissibility(ies), if
required.
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Adjustment/Immigrant Visa Process (cont’d)
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To adjust status (INA 245) or obtain an immigrant visa,
alien must not be inadmissible (INA 212) (evaluated
at time of entering US or at adjustment of status,
although grounds of inadmissibility can be
applicable during other processes such as
cancellation of removal).
Inadmissibilities include: unlawful entry and presence,
criminal offenses, false claim to US citizenship (I -9
form), public charge, fraud
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Immigrating through Marriage
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If couple is already married, process is started by filing
of I-130.
If couple is engaged, USC petitioner may file an I-129F
(K-1 visa) as long as couple has met in person within
two years preceding filing of I-129F. Meeting can be
waived where strict cultural practices forbid meeting
or where there is showing of extreme hardship. Once
K-1 visa granted and alien enters US, must marry
USC within 90 days. Children = K-2.
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Bona Fide Marriage
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For either K-1 or I-130 petition must prove bona fide
marriage or intent to marry (good faith marriage – not
for an immigration benefit). STANDARD IS: INTENT TO
ESTABLISH LIFE TOGETHER. Lutwak v. US 344 US 604
(1954).
Substantial amount of evidence required, especially if
shorter relationship. K-1 will not have as much evidence,
but still must demonstrate INTENT for good faith
marriage.
Marriage fraud is subject to civil and criminal penalties –
can bar any future adjustment. See INA 204(c).
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Conditional Residence
Immigration Marriage Fraud Amendments of 1986 (INA 216)
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Is imposed on aliens who obtain LPR status based on
marriage that occurred within two years of entering
US as LPR or adjusting to permanent resident status
within the US.
Is imposed on alien children who obtained LPR status
through alien LPR spouse.
Same privileges as permanent LPRs except must
“remove conditions” near end of two years after
admission as LPR.
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Removing Conditions
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Couple must file joint petition to remove conditions for
alien spouse to get permanent adjustment (green
card). Must produce evidence of good faith
marriage, may have interview. See generally INA
216 re: conditional status.
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Marriage-based Adjustment in
Removal Proceedings
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If couple gets married AFTER removal proceedings
commenced (issuance of Notice to Appear [NTA]),
couple must prove by clear and convincing
evidence that marriage is bona fide. INA 204(g).
Can adjust status before immigration judge rather
than before US Citizenship and Immigration
Services (USCIS), though USCIS has exclusive
jurisdiction over I 130.
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Impact of Separation and Divorce on
Conditional Residency
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If a couple remains happily married then they jointly petition to
remove conditions by form I 751.
If the conditional resident (CR) cannot file jointly with USC spouse,
one or more of 4 waivers must be filed (INA 216):
 Prove good faith marriage (GFM), but spouse died;
 Prove GFM, but marriage terminated by divorce or annulment;
 Prove GFM, but CR has been battered or subjected to extreme
cruelty by USC spouse;
 Termination of residency would result in extreme hardship to
CR (not required, but show GFM)
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Impact of Separation and Divorce on
Conditional Residency (continued)
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If a marriage breaks up during the two year conditional
residency period, it becomes very challenging to prove the
GFM, A LOT of evidence of GFM and credible story becomes
critical.
The most difficult scenario for the CR is where the couple has
separated but the USC spouse will not file jointly to remove
conditions. CR is in limbo: at risk of conditional residency
expiring with perhaps the only waiver available the extreme
hardship waiver, which is difficult. It is actually better for the
couple to divorce so that CR can do GFM/divorce waiver. USC
spouses in this situation often use immigration status as
leverage/abuse.
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Divorce/Annulment Wavier
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8 CFR 216.5(e)(2): To qualify, must show GFM and
Divorce
USCIS will allow CRs to apply for waiver with no final
decree, but will send a request for evidence giving
87 days to finalize divorce. If no divorce decree in
that time, waiver will be denied and CR will be
placed into removal proceedings.
Will need to file another waiver if suspect will not be
finalized in time.
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Battered Spouse Waiver
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8 CFR 216.5(e)(3): Allows for
waiver if during marriage the
alien spouse or child was
battered by or was the subject
of extreme cruelty perpetrated
by his or her spouse or citizen or
permanent resident parent.
CAN APPLY FOR THIS WAIVER
EVEN IF REMAIN MARRIED.
Family lawyer can help
document abuse, file restraining
orders, etc.
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Extreme Hardship Waiver
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8 CFR 216.5(e)(1): Based only upon those factors that arose
subsequent to the alien’s entry as a conditional resident.
USCIS will only look at EXTREME hardship factors (expected that
all removal from US would involve some degree of hardship).
Hardship can be to CR, new spouse, children.
Matter of Anderson 16 I&N Dec. 596 (1978): CR’s age; family
ties in US and abroad; length of time in US; health; economic
and political conditions in home country; CR’s occupation and
work skills; immigration history; position in community;
helpfulness to US; and ability to adjust by alternative means.
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Effect on Naturalization
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INA 319: A person who has resided as lawful
permanent resident for three years immediately
preceding application for naturalization AND living in
marital union with citizen spouse (except for battered
spouse) can qualify to naturalize, provided other
criteria for naturalization are satisfied.
Divorce or separation can affect naturalization in that
alien would have to wait another two years.
Be aware that USCIS can always look back to
determine GFM even if wait 5 years to naturalize.
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GMC: Adultery and Child Support
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8 CFR 316.10(b)(3): “Unless applicant establishes extenuating
circumstances, the applicant (for naturalization) shall be found
to lack good moral character (GMC) if during the statutory
period the applicant:
(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which tended to destroy
and existing marriage; or
(iii) Committed unlawful acts that adversely reflect upon
the applicants moral character, or was convicted or imprisoned
for such acts,” even if do not fall within 8 CFR 316.10(b)(1)(2).
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Immigration Relief For Victims of
Domestic Violence
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Gender-based Asylum (not covered here)
 VAWA Adjustment
 VAWA Cancellation
 VAWA
 U Visa
 T Visa (not covered)
 Special Juvenile Immigrant Status
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VAWA: Adjustment Under
the Violence Against Women Act
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Regular family-based immigration (See INA
204(a)(1)(A)(i):
Step 1: USC or LPR petitioner files I-130
 Step 2: If form I-130 approved, alien principal and
derivative beneficiaries (spouse and children) apply for
permanent residence. If preference immigrant, long delay
without legal status before getting to step 2.

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VAWA Self-Petition Adjustment
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In contrast, INA 204(a)(1)(A)(ii-v), VAWA Self-Petition
allows for an abused spouse of a USC or LPR to
self-petition on Form I-360 – does not rely on LPR
or USC abusive spouse at all.
If approved, receive deferred action and work permit
while adjusting status.
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VAWA – Who Qualifies?
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Abused spouse of LPR or USC, even if unknown
bigamy
Abused spouse within two years of divorce or death
Abused child of parent married to abusive LPR or
USC and non-abusive parent
Derivative children of abused parent
Abused parents of adult USCs
Child can petition until age 25, if show delay of
filing due to abuse, otherwise child = 21
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VAWA Requirements
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Abusive spouse is LPR or USC
Good faith marriage or intended marriage
Battery and extreme cruelty by USC or LPR spouse
during marriage
Good moral character
Past or present residence with abuser
Current resident in US, or, if abroad: US gov’t work
or abuse occurred in US
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VAWA Definitions
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Good faith marriage: intent to establish life together
Battery or extreme cruelty: physical, psychological,
sexual, economic, social abuse. Can also be
stalking, threats to report to ICE, harm to property
or others that victim cares about, forced detention
and/or isolation.
GMC: No statutory bar under INA 101(f), no bad
acts or criminal convictions and have positive factors
of GMC
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VAWA Cancellation of Removal
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For persons in removal proceedings (See INA
240A(b)(2)
It is cancellation of removal with relaxed standards
for victims of domestic violence. If granted, become
lawful permanent resident
Can apply for EAD
Dependents may later adjust
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VAWA Cancellation of
Removal Requirements
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3 years continued presence in US (instead of 10)
Good moral character
Battery or extreme cruelty by USC or LPR spouse or
parent
Extreme hardship to applicant or his/her qualified
alien child or parent (including abuse related
hardship in 8 C.F.R. 1240.58(c)
CAP at 4000 per year
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Evidence Needed From Family Lawyers
For VAWA Cases
55
Family lawyer may be first person that interacts with immigrant
victim of DV so make sure to get:
 Proof of spouse’s citizenship or LPR status
 Proof of abuse and past criminal history of abusive spouse
(photos, protection orders, police reports, all criminal records
involving client)
 Proof of adultery (although adultery does not, on its own,
constitute extreme cruelty)
 Divorce documentation
 Evidence of GFM and shared residence (marriage license,
shared bills, life insurance and retirement policies, etc.)
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U Visa – For Victims of Crime
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INA 101(a)(15)(U); 8 CFR 214.14 (Form I 918):
Person has suffered substantial physical or mental
abuse as a result of having been a victim of
qualifying criminal activity.
Person possess information concerning qualifying
criminal activity.
Person has been, is being or is likely to be helpful to
law enforcement in investigating and prosecuting
criminal activity.
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Substantial Physical or Mental Abuse
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Means injury or harm to victim’s physical person, or
harm or impairment of the emotional or
psychological soundness of the victim. Consider:
nature of injury; severity of perpetrators conduct;
severity of harm; duration of harm; permanent
injuries/scarring; mental or physical soundness;
aggravation of pre-existing cond.
Immigrants First, PLLC - All Rights Reserved
Qualifying Crimes for U Visa
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8 CFR 214(a)(9):
Rape
Sexual Exploitation
Torture
FGM
Trafficking
Hostage
Incest
Peonage
Domestic Violence
Involuntary Servitude Sexual Assault
Slave Trade
Prostitution
Kidnapping/Abduction Criminal Restraint
False imprisonment
Blackmail/Extortion
Murder/Manslaughter
Felonious assault
Witness tampering
Obstruction of justice
Perjury
Fraud in foreign labor contracting
Attempt/conspiracy to commit any of above
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U Visa Benefits
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10,000 visas per year
Where U-1 is under 21: can petition for family
members (spouse, parents and siblings under 18).
Visa is for 4 years
Adjust status if continuously present in US for 3 years;
continued presence justified for humanitarian
grounds, continually helpful
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U Visa Filing
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Requirements:
Form I 918
Certification from certifying agency: local, state or
federal law enforcement agency or judge that has
responsibility for investigating or prosecuting crime.
PWC police will not issue, but PWC Commonwealth
Atty office will – Paul Ebert certifying official.
Evidence of substantial physical or mental abuse.
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Special Immigrant Juvenile Status
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INA 101(a)(27)(J):
Covers a child:
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who has been declared dependent by a juvenile court in the
US or who has been placed by such court in custody of a state
agency or other individual entity and
whose reunification with one or both of his or her parents is not
viable to due abuse, neglect, abandonment, or similar basis
not in best interest of child to be re-united
File on form I 360 before 21 years and must be dependent
unless aged out of state custody through no fault of own
Not married
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62
Competing Interests – Delicate
Situation Where Immigration Issues
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Forms of relief and immigration status of parties can create
inherent conflicts to be dealt with. If wife reports DV then husband,
if not USC, can be removable. If wife out of status she may stand
to benefit from U visa or VAWA petition and be very motivated to
report crime of violence or even make up crime. Petitioner for
VAWA or U visa may have also been alleged to have committed
crime which could impact obtaining relief.
If person out of status can hinder taking action in abduction case
and certainly can prevent re-entry into US
SIJS cases can lead to parents splitting up and accusing other
parent of abuse in order for child to get status
Likewise, fleeing to protect children can result in criminal convictions
that would result in deportation, etc.
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