Joe Vail Workshop
October 3, 2014
Professor Susham M. Modi
Adjunct Professor & Clinical Supervising Attorney
Professor Janet Beck
Clinical Assistant Professor
Overview
- Violence Against Women Act (VAWA)
- Victims of Crimes (U Visa)
- Victims of Human Trafficking (T Visa)
Violence Against Women Act
(VAWA)
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Enacted in 1994 and amended in 1996,
2000, and 2006
Designed to help individuals who would
normally be able to obtain permanent
residence through family visa system, but
cannot because of domestic violence
Allows domestic violence survivor to file a
“self-petition” without his/her abuser
Many requirements relaxed for
adjustment of status, including
requirements regarding legal entry
Men, women, and children can qualify
WHAT DOES VAWA GIVE THE
VICTIM?
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Deferred Action
A Work Permit
Permanent Residency
VAWA: Requirements
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Who may qualify:
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Spouse or child of a U.S. citizen
Spouse or child of permanent resident
Parent of U.S. citizen
Parent of an abused child
Child over 21 under 25 years old if delay related to
violence
Child includes step-children and adopted children
What must they show:
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Must prove that the U.S. citizen or permanent resident
subjected spouse, child, or parent to abuse or extreme
cruelty
Good moral character
Good faith marriage
Cohabitation
INA § 101(a)(15)(U)
VAWA: USC/LPR Abuser
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Abuse could have occurred before
abuser USC or LPR
Can apply up to two years after
abuser loses/renounces USC or LPR
status
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Must be related to or due to incident of
domestic violence
VAWA: Marriage Issues
Common law marriage accepted if recognized in
jurisdiction
Can petition within two years after divorce
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There must is a connection between the divorce
and domestic violence
Can petition within two years if abusive USC
spouse dies
Can petition even if marriage not valid due to
bigamy/polygamy if self-petitioner believed
marriage to be valid and marriage ceremony
performed
Self-petitioner cannot remarry before approval
of the petition
VAWA: Good faith marriage
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Must establish that marriage or
intended marriage was entered into
in good faith
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Must not be for the sole purpose of
obtaining immigration benefits
Most important factor is whether
couple intended to establish a life
together at the time of the marriage
VAWA: Abuse issues
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8 CFR § 204.2(c)(1)(vi)
Definition of the abuse covered under the
immigration regulations and guidance is
flexible and broad enough to encompass
physical, sexual, and psychological acts,
as well as economic coercion.
Even if there is no physical abuse, the
abuse may rise to a certain level of
severity to constitute battery or extreme
cruelty
VAWA: Residence issues
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Self-petitioner must have lived with
the abuser
No minimum length of time required
Self-petitioner can live abroad if
subjected to abuse by LPR/USC
spouse in the US or LPR/USC
spouse is a member of the US govt.
or armed forces
VAWA: Good moral character
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Good moral character must be
demonstrated for the past three
years
INA § 101(f) lists bars to good
moral character
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Special exception if an act/conviction is
waivable and connected to the abuse
VAWA: Derivatives
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VAWA applicant can include his/her
children in VAWA self-petition as long as
children are unmarried and under age 21
Children need not have been abused or
be related to abuser
If child turns 21 after filing or approval,
their preference category will change but
they will still be eligible for adjustment
VAWA: Self-petitioning Children
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Child must be under age 21 and have a qualifying
relationship with an USC/LPR parent
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Abuser must be child’s parent or step-parent or adopted
parent; to be a step-parent under immigration law,
parents must have married before child turned 18;
adopted parent under the age of 16
Self-petitioner may file between 21 and under age 25 if
they can show that abuse was a central reason for filing
delay
Child must show that she has been subjected to
battery or extreme cruelty; witnessing abuse of mother
often will itself be extreme cruelty
Child must have resided with the abusive parent
Child must show they are a person of good moral
character
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Assumed if under 14
VAWA: Self-petitioning parents
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Abusive son/daughter must be over 21
and there must be a qualifying
relationship
Abuser is or was a USC
USC son/daughter must have abused the
parent
Self-petitioner resided with the
son/daughter
Self-petitioner is a person of good moral
character
VAWA: Adjustment of Status
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May file concurrently if self-petitioner is
an immediate relative or the priority date
is current
Otherwise the self-petitioner must wait
until an immigrant visa becomes available
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Priority date
Preference category
Check visa bulletin issues by the Department
of State
VAWA: AOS Requirements
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Approved I-360 or derivative
beneficiary
Visa must be available
Admissible under INA § 212 or
eligible for a waiver
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For VAWA, several inadmissibility
grounds do not apply
I-864W (exemption to Affidavit of
Support)
VAWA: AOS Process
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File I-485 with supporting documentation
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With the Vermont Service Center if filing I-360
concurrently;
Or with the Chicago Lockbox if filing
subsequently
Applicant may need to attend an
interview
If granted, LPR status is granted
If applicant is in removal proceedings,
must file AOS in Immigration Court
VAWA: Consular processing
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If the self-petitioner or derivative beneficiary is
not in the US or ineligible for AOS, that person
will need to consular process
Approved petition is sent to the National Visa
Center
National Visa Center collects fees, applications,
and documents
NVC will forward complete packet to the
appropriate consulate
Interview at the consulate
Admitted at a Point of Entry as Lawful Permanent
Resident
Victims with Conditional Permanent
Residence
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Conditional Residence is given to spouses
who obtain LPR status based on marriage
that occurred within two years of
admission
Must file joint petition to remove
conditions
Victims can apply for the removal of the
condition alone without abuser
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Must show person was victim of battery or
extreme cruelty
Must show marriage was in good faith
VAWA Cancellation of Removal
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Applicant must be in removal
proceedings
Persons eligible:
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Abused spouse of USC or LPR
Abused son/daughter of USC or LPR
Abused “intended spouse” of USC or
LPR
Non-abused parent of abused child of
USC or LPR
VAWA Cancellation: Requirements
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Victim of battery or extreme cruelty
Physical presence in the US for three
years
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Issuance of NTA does not stop accrual
Extreme hardship to self, child, or parent
upon return to home country
Good moral character
Not inadmissible or deportable under
certain provisions
Not been convicted of an aggravated
felony
VAWA Cancellation vs.
VAWA Self-petition
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You do not have to prove good faith
marriage or cohabitation
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Can apply even if divorced for more than
2 years
Faster path to residence
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Best for short marriages
4,000 annual cap
Derivatives cannot adjust but are eligible for
parole
Harder to get
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Judges not as educated
Traumatic for the victim
U nonimmigrant visa
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Available for victims of certain crimes and their
family members
Created by the Victims of Trafficking and Violence
Prevention Act of 2000. Amended in 2005 and
2008
Enhances law enforcement’s ability to investigate
and prosecute crimes
Furthers humanitarian interests by protecting
victims of serious crimes
From 2000 until 2007, only U Interim Relief was
available. U visa interim regulations became
effective in 2007. U visa interim adjustment
regulations became effective in 2009.
U visa eligibility requirements
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Suffered substantial physical or mental
abuse as a result of having been a victim
of certain criminal activity
Possess information concerning the
criminal activity
Has been helpful, is being helpful, or is
likely to be helpful in the investigation or
prosecution of the criminal activity
Certification from federal, state, or local
law enforcement authority
Criminal activity violated laws of the US
or occurred in the US
U Visa: Included Crimes
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Trafficking, sexual exploitation, slave trade,
peonage, involuntary servitude, rape, sexual
assault, abusive sexual contact, incest, domestic
violence, felonious assault, female genital
mutilation, torture, hostage taking, kidnapping,
false imprisonment, blackmail, extortion,
abduction, manslaughter, murder, witness
tampering, obstruction of justice, or perjury,
attempt, conspiracy, or solicitation to commit any
of the above-listed crimes, or any similar activity
in violation of federal, state, or local criminal law
INA 101(a)(15)(U)
U visa: Victim
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Direct victim- person who has suffered
direct harm or is directly/proximately
harmed as a result of criminal activity
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Bystander witness- suffers unusually direct
injury as a result of a qualifying crime
Indirect victim- family members of victim
of murder/manslaughter or is
incompetent/incapacitated as a result of
crime
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Spouse, unmarried children under 21, parents
if victim is under 21, siblings if under 18 and
victim under 21
Family members of USC victim may qualify
U visa: Harm
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Physical or mental abuse
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Substantial factors
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Mental abuse- impairment of emotional
or psychological soundness
Nature of the injury
Severity of perpetrator's conduct
Severity of harm inflicted
Duration of harm inflicted
“Any credible evidence” standard
U visa: Helpfulness
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Proof of help must be provided on Form I918 Supplement B
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No requirement that investigation led to
prosecution
Certification can come from Federal, State or
local prosecutor, Federal or State judge, a
police investigator, victim witness advocate
within DA’s office, Child Protective Service,
EEOC, Department of Labor, or others if they
have a criminal investigative jurisdiction
If under 16, helpfulness requirement can be
satisfied by parent, guardian, or next friend
U visa: Admissible
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Petitioner must be admissible or
have the ground of inadmissibility
waived
U visa-specific waiver does exist
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May waive any ground of
inadmissibility if it is in the public or
national interest except for grounds
applicable to perpetrators/participants
of Nazi persecutions, genocide, acts of
torture or extrajudicial killings
U visa: Process
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Form I-918 (A is for derivatives)
Form I-918 Supplement B
Evidence to establish requirements
Statement by petitioner
I-192 for inadmissibility waiver
I-765 (not needed for principal)
Passport
File with Vermont Service Center
U visa: Derivatives
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Spouse
Children (unmarried and under 21)
If principal applicant is under 21,
can include parents and siblings
under 18
Derivatives do not need to have
helped, show harm, or be present in
the US
U Visa: Benefits
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Work permit and permission to
remain in the country for four years
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10,000 annual cap
Eligible to apply for adjustment of
status (permanent residence) after
three years
The same applied to derivatives
U visa: Adjustment of Status
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Special adjustment provision
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INA § 245(m); 8 CFR § 245.24(b)
Requirements
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Granted and continues to hold U nonimmigrant
status
Continuous physical presence for three years
Not inadmissible under INA § 212(a)(3)(E)
Has not unreasonably refused to provide
assistance in investigation or prosecution
Presence in US justified on humanitarian
grounds, to ensure family unity, or is in the
public interest
U visa: AOS Process
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No interview with USCIS
Do not need to show they are admissible
by overcoming grounds of inadmissibility
USCIS has exclusive jurisdiction to
adjudicate the AOS even if applicant is in
removal proceedings
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For applicants with prior ORs, must reopen and
then terminate proceedings
File I-485 with required documentation
with the Vermont Service Center
U visa: Qualifying family members
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Upon approval of adjustment, USCIS can
also adjust status of principal’s spouse,
child, or parent who did not receive a U
nonimmigrant visa in order to avoid
extreme hardship
Procedure
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Step 1: Principal applicant files a petition on
behalf of the family member on Form I-929
Step 2: Family member adjusts status or goes
through consular processing
T Visa
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Visa available for victims of human trafficking
Requirements:
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Subject to “severe trafficking” (the use of force,
fraud, or coercion for sex trafficking and/or
involuntary servitude, peonage, debt bondage, or
slavery)
Physical present in the US on account of trafficking
Complied with reasonable requests from a law
enforcement agency in the investigation and/or
prosecution of the crimes
Would suffer extreme hardship involving unusual
and severe harm upon removal
T Visa: Benefits
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Work permit and permission to remain in
the country for four years under T
nonimmigrant status
Eligible to apply for adjustment of status
(permanent residence) after three years
Derivatives
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Spouse
Child
If under 21, can include parents and siblings
under 18
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