Immigration IMPACT
VAWA and U Visa Training for Legal Volunteers
Presented by Lisa Hurlbutt, Brenda Gorski & Valentine Brown
Training Agenda
• 9:00 AM:
• 9:30AM:
• Break
• 10:00 AM:
• 10:20 AM
• Break
• 11:30 AM:
• 12:20 PM:
Immigration Essentials and Basic Concepts
VAWA Video
General Considerations
Violence Against Women Act Applications
The U visa
Questions and Answers
Immigration Essentials
Basic Legal Concepts and Inadmissibility
Overview
• Government Agencies in the Process
• Definitions & Terms
• Types of Immigration Status
• Normal Routes to Legal Permanent
Residence
• Grounds of Inadmissibility
Agencies
• Department of Homeland Security (DHS)
• US Citizenship & Immigration Service (USCIS)
• Non-Immigrant/Immigrant Visa Applications
• Customs and Border Protection (CBP)
• Ports of Entry
• Immigration & Customs Enforcement (ICE)
• I-9 Enforcement; Investigations/Deportation
• Department of State (DOS)
• US Embassies and Consulates
• Department of Labor (DOL)
• Prevailing Wages
• H-1B Program
• PERM/Labor Certification
U.S. Immigration System Structure
Department of Justice
DHS
US Citizenship
and Immigration
Service (USCIS)
US Customs
and Border
Protection
(CBP)
Department of State
US
Immigrati
on and
Customs
Enforcem
ent (ICE)
Federal Courts
Board of
Immigration Appeals
Immigration Court
National
Visa Center
US
Embassies
and
Consulates
abroad
Key to Acronyms
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DHS = U.S. Department of Homeland Security
USCIS = U.S. Citizenship & Immigration Services
ICE = Immigration Customs & Enforcement
CBP = Customs & Border Protection
DOJ= U.S. Department of Justice EOIR= Executive Office For Immigration Review
IJ = Immigration Judge
BIA = Board of Immigration Appeals
USC= US Citizen
LPR= Legal Permanent Resident
FN= Foreign National
EAD = Employment Authorization Document
• US Citizens
• Legal Permanent Residents
• Temporary Work Authorization
• Non Immigrants
• Undocumented
• Visa Overstays
• Entered Without Inspection
10 November 2010
Immigration Status in the US
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Definitions
• Citizen: A person with full rights to live, work and travel into
and out of the US without restrictions
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Passport Holder
Birthright v. Naturalization
Possible to hold more than one citizenship/passport
“Naturalized” after five years as a permanent resident (or after
three years if married to USC)
• Can never be deported
• Can work legally and receive public benefits
• Can petition for legal status for spouse, child, parent, or sibling
Naturalization Certificate
Document issued by
USCIS as proof of a
person obtaining U.S.
citizenship through
naturalization
Paths to Citizenship
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Hold LPR Status for 5 years
Married to USC and Hold LPR for 3 years
Approved I-360/I-751 VAWA Waiver and Hold LPR for 3 Years
Serve as Active Duty Military in Combat Zone
• Eligibility Requirements
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18 years Old
Meet Physical Presence Test
Be a Person of Good Moral Character
Read. Write and Speak English
Pass History & Government Test
Definitions
• Permanent Resident: In general will have full rights to live,
work and remain in the US without restrictions
• Legal Permanent Residents can lose status if they remain outside
of the US for too long
Paths to Legal Permanent Residence
• Family Based Petitions (I-130)
• Spouses, Children, Siblings of USCs
• Spouses and Children (unmarried) of LPRs
• Employment Based Petitions (I-140)
• Asylum/Refugee Status
• Diversity Lottery
• VAWA (I-360) & U Visa Petitions
• Special Programs
• Cubans, Amnesty, Cancellation of Removal et al
How long does it take to get LPR?
• Spouses, unmarried children <21 years old &
parents of USCs
• “Immediate relatives”
• No official waiting period, but can take 6-24 months to
become LPR
• All other beneficiaries
• “Preference relatives”
• Amount of time spent waiting depends on status of
petitioner, relationship to beneficiary, and age/marital
status/country of origin of beneficiary
• Typical wait is 5-10 years to become LPR
• US Citizens
• Legal Permanent Residents
• Temporary Work Authorization
• Non Immigrants
• Undocumented
• Visa Overstays
• Entered Without Inspection
10 November 2010
Immigration Status in the US
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Temporary Work Authorization: EAD
• Must meet eligibility Requirements
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Another application in process
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I-485/I-589
Special Status approved
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TPS; Deferred Action; VAWA I-360 approved
• Duration is limited 1-2 years
• Must reapply 4 months prior to expiration
Definitions
• Nonimmigrant/Temporary Visitor (US) Any FN who is in the
US temporarily for a specific purpose.
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A-1 Diplomats
B-2 Temporary Visitor
F-1 Student
H-1B Temporary Worker
J-1 Interns and Trainees
L-1 Intra-company Transferee
O -1 FN of Extraordinary Ability
P-1 Athletes & Entertainers
R-1 Religious Workers
U-1 Victims of Crime
VISA : A document issued by a the United States allowing the holder to enter
Most often is a sticker/stamp placed into the applicant’s passport
Most often must be applied for prior to arriving in the country
I-94 Card
•Indicates
client’s date of
entry into US
•Place of entry
•Visa type
•Authorized stay
•I-94
number and
• Name used at the time of
entry
The I-94 card is the most important document indicating the client’s lawful entry to the US.
Undocumented Immigrants
• Who is undocumented? Most
common:
• “Entered Without Inspection” (EWI)
• Entered with valid visa but overstayed
• Entered with fraudulent paperwork
• Had legal status which was revoked
Living Undocumented in U.S.
• No work permit > turned down for better
jobs & at risk for exploitation in poor jobs
• No SSN > no state ID, no driver’s license
• Can’t undertake basic financial transactions
• Constantly fear detention, deportation and
separation from U.S. Citizen children
• Can’t travel abroad and return if relative
there is ill, or if need to escape abuse
Undocumented in an Abusive
Relationship
Victims feel trapped and without rights
• Afraid to call the police, seek protection of the
courts from fear of deportation or discrimination
• Unable to leave the abuser due to financial
pressures, lack of ability to work legally or access
public benefits
• Isolation imposed by abuser deepened by
language cultural barriers
• Family supports may be outside the U.S.
Cycle of Abuse is exacerbated by lack of
Immigration Status
• Abusers often use immigration status to control
spouse and children
• Refuse to file immigration papers or threaten to
sabotage the process, take the children, or get
spouse deported if they…
• Abused family member feels unable to call police
or seek help from courts for fear of deportation
& separation from children, or out of economic
dependence
Becoming a LPR: Family Based Process
• I-130 Petition for Alien Relative
• I-485 Adjustment of Status Application &
Interview
• If married <2 years, immigrant is issued a Conditional
Resident card
• Valid for 2 years and must then file to remove the conditions
• I-751 Petition to Remove Conditions on Residence &
Interview
• Lawful Permanent Status
What is Inadmissibility and Why does it
Matter?
• Principal and derivatives must be “admissible” to
receive U visa or LPR status through VAWA–see INA
212(a)
• It is important to assess applicant admissibility and
can be quite complicated – be sure to consult with an
expert
• An inadmissible applicant may in some cases be
denied a benefit for which s/he is otherwise eligible
• Many waivers and exceptions are available/applicable
in VAWA/U visa contexts
Common Grounds of Inadmissibility
• Present without inspection and admission or parole
(EWI) – INA sec. 212(a)(6)(A)(i)
• Visa overstay does not need waiver
• Multiple EWIs or re-entries after prior overstay may trigger
additional bars
• Past fraud or misrepresentation to obtain immigration
benefits – INA sec. 212(a)(6)(C)(i)
• No currently valid passport – INA sec. 212(a)(7)(B)(i)(I)
• “Smuggling” – INA sec. 212(a)(6)(E)(i)
• Certain criminal convictions – INA 212(a)(2)
VAWA/U Inadmissibility Waivers
• VAWA: SOME special waivers available for selfpetitioners, and one unlawful entry is automatically
waived
• U: Discretionary waivers of ALL grounds of
inadmissibility but one authorized for U visa
applicants and derivatives if “in the public or
national interest”
• Exception: participants in Nazi persecutions, genocide, acts
of torture, or extrajudicial killings are not waiver-eligible
• Ground not included on application will not be
waived
• See VAWA and U visa sections for more details
Video
Immigrant Victims of Domestic Violence
Nationalities Service Center
15 Minute Break
Be Back at 10:00 AM
Representing Survivors
Barriers; Dynamics; Language & Culture
Role of the Advocate
Barriers to Seeking Help
• Fear of deportation
• Language access
• Cultural / family pressure
• May not consider situation to be DV
• Serious stigma to divorce / separation / DV
disclosure
• Lack of knowledge of U.S. legal system
• May not know DV is a crime in U.S.
• Believe they will lose custody of children
• Believe they will lose immigration status
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Barriers Continued
• Lack of knowledge of DV service providers (Shelters
counseling, pro bono attorneys)
• Fear of police
• based on immigration status / community experience
in U.S.
• negative experience with police in country of origin
• Dependent on spouse
• Believe they are dependent on abusive spouse for
immigration status
• Financial support / not authorized to work/
undocumented cannot access public benefits except
for USC children
• Lack of other family support in the US
Should Immigrant Victims
Contact the Police?
• It depends…
• Police in Philadelphia are directed not to ask about
victim’s immigration status
• In practice, individual police officers may act based on their own
beliefs
• In court, victims can be asked about immigration status by
defense attorneys
• Any police contact can result in client being placed in
removal (deportation) proceedings
• Because they are undocumented
• Because they are an LPR with a criminal record
• If possible, have client consult with immigration legal
representative prior to calling police
• If client is in immediate danger, advise to call police
• Police contact can sometimes create a path to legal
immigration status through a U or T visa
Working with VAWA & U Clients
• Might be nervous, upset, intimidated,
unresponsive/“shut-down” -- PTSD
• Be patient and express sympathy / encouragement /
empowerment
• Try to gain trust and put at ease
• Ask questions in different ways if needed
• Offer chance to write out their story (maybe)
• Never use relative as interpreter
• Encourage to use DV support services (counselors,
support groups, shelters)
Role of advocate/service provider
Ways that DV organization counselor , advocate
or case worker may be useful in legal matters:
• Help collect evidence of relationship / abuse
• Evidence of counseling/ services provided
• Affidavits / notes
• Court testimony
• Emotional support
• Safety Planning
What is cultural competence?
• A short answer: Obtaining cultural information
and then applying that knowledge
• Requires awareness of one’s own as well as
other cultures
• Requires flexibility and respect for the views of
others
• Requires finding out from a survivor what her
viewpoint is, and acting out of respect and
understanding of that viewpoint
(http://www.scmcbws.org/)
• Individual variations within same culture/cultural background
• Relationships to others (i.e., individualistic vs. collectivistic, or
community-oriented)
• Family structures (i.e., hierarchies, or expectations between family
members)
• Relationships to authority (including attorneys), power distance
• Corruption versus rule of law
• Concepts of justice
• Ideas of privacy and shame
• Taboo subjects
• Categorization (linear/chronological thinking versus different orientation)
• High and low uncertainty avoidance
• Accepted/preferred communication practices (eg directness/indirectness,
expression of emotion, body language, physical distance)
(Also see Susan, Bryant, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 CLINICAL L. Rev. 33 (2001);
http://wws.peacecorps.gov/wws/educators/enrichment/culturematters/index.html and
http://www.poynter.org/uncategorized/3331/eight-steps-toward-cultural-competence/).
Prohibition on Disclosure of Information
for VAWA and U
• Section 384(a)(2) of the Immigration and Nationality Act
prohibits the release of any information relating to aliens who
are seeking or have been approved for immigrant status
under the Violence Against Women Act.
• This section also prohibits immigration from relying on
information provided solely by the abusive spouse, parent
or other member of the household.
• There is no guarantee that immigration wouldn’t act on
information in self-petition to take action against abuser.
• Exception for national security threat
Where to File
• ALL VAWA- and U-related petitions and
applications are filed with:
USCIS - Vermont Service Center
ATTN: VAWA/U/T UNIT
75 Lower Welden St.
St. Albans, VT 05479-0001
Contacting VSC
• (802) 527-4888,
hotlinefollowupI360.vsc@dhs.gov (VAWA), or
hotlineFollowUpI918I914.Vsc@dhs.gov (U)
• Use only ONE of these routes
• For advocates and attorneys only
• Must have a G-28 on file or attach to email, also
include your email address in email
• Leave a message with your case information and
question and an adjudicator will return your call or
email back
VAWA Petitions
Violence Against Women Act Immigration
Applications
I-360 VAWA Self Petition
Eligibility, Requirements, Process & Procedure
Violence Against Women Act
(VAWA)
• Immigration & Nationality Act (INA) §
204(a)(1)(A) and (B)
• 8 USC § 1154(a)(1)(A) and (B)
• VAWA was created in 1994 in order to provide
protection and assistance to victims of domestic
violence regardless of their immigration status.
• VAWA allows immigrant victims to obtain
immigration relief without their abuser’s
cooperation or knowledge
I-360 Self Petition
• The self-petition is available for immigrant victims of
domestic violence who are married to a USC or LPR.
• The self-petition is also available for the parents,
children, and stepchildren of abusive USCs or LPRs.
• The self-petition may be filed by male or female
victims of abuse.
• Children under 21 and unmarried are automatically
included as derivatives.
• Approval of the self-petition entitles the selfpetitioner to apply for adjustment of status to
permanent resident
Requirements for the I-360 Self
Petition
• The self petition is filed on form I-360 and must be
accompanied by evidence to satisfy five statutory
requirements:
1. Spouse, child, or stepchild of USC or LPR (or
parent of USC) via legally valid marriage
2. Good faith marriage
3. Past or present residence with the abuser
4. Physical abuse or extreme cruelty
5. Good moral character
VAWA Deadlines
USCIS must receive I-360 self-petition
within 2 years after:
• Couple divorces
• USC abuser dies, or
• LPR abuser is deported due to DV incident.
• Some children can still file if over 21 years
old – must show delay tied to abuse, and
must file before age 25.
Documenting VAWA
Requirements
Generous standard of proof = “any credible evidence”
• Make proof as strong as you can
• See Document Gathering for Self-Petitioning
under Violence Against Women Act, A Step-byStep Guide, Published by the Immigrant Legal
Resource Center (2008) www.ilrc.org
VAWA Petitioner’s Affidavit =
the Most Important Document!
• Client’s story in their own words
• Chronological is best:
• History of entries into/departures from U.S.
• Date, time & manner of entries, why left + why
returned
• History of Marriage Relationship and Abuse
• How couple 1st met, courtship, wedding, marriage,
children, if any
• When abuse began, details of 1st and worst
incidents at minimum, separations, show
pattern/frequency and all tactics of abuse, use of
DV services
Self-Petitioner’s Affidavit, cont.
• List all marital addresses (at least what
towns and states)
• Assert own good moral character
• E.g., “I have never been arrested or
convicted of a crime in the U.S. or
elsewhere.”
• State whether they were ever under
immigration proceedings (e.g.,
deportation, removal, etc.)
Spouse/child of a USC or LPR
via legally valid marriage
For Spouse you will need: Marriage certificate & divorce
certificates for prior marriages of both
For Child you will need: Birth certificate and/or parents’
marriage certificate (stepchild) or adoption papers
If abuser is a USC:
• Abuser’s birth certificate indicating birth in the U.S.
• Abuser’s U.S. passport
• Abuser’s naturalization certificate
If abuser is an LPR:
• Abuser’s green card or any other immigration
document indicating status or alien number
Good Faith Marriage
• Must have married intending to establish a life together,
not just for papers
• Key = intent at Date of Marriage
• Children’s birth certificates
• Photographs of the wedding ceremony and couple together over
time
• Letters or emails to/from applicant & abuser during courtship
• Documents such as joint taxes, deeds, bank accounts, etc.
• Affidavits from people that knew the couple before and during
the marriage
• Custody, child support, divorce documents
Residence with abuser
• No minimum time requirement, but
must be during marriage
• Letters or cards addressed to both the applicant and
the abuser, separately from around the same time or
together
• Lease agreements
• Utility bills (electricity, gas, water, telephone, cable,
etc.)
• Joint health insurance
• Joint tax returns
• Joint bank accounts
• Property deeds, titles to automobiles
• Letters from friends, neighbors or landlord
• Other legal documents in both names
Physical abuse or extreme
cruelty
What counts?
• Abuse of spouse or stepchild must have occurred
during marriage
• Violent acts or threats of violence
• including sexual abuse or exploitation
• “Extreme cruelty” = mental/emotional abuse
• Often = a pattern of behavior intended to intimidate
and control
Physical abuse, cont.
• Abuse prior to marriage is still relevant.
• Violence includes slapping and pushing
even if no physical injury results or she
didn’t call police.
• What do you do when client denies or
minimizes abuse?
• Ask questions in a different way. Try to
draw out specific experiences.
What is extreme cruelty?
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Verbal abuse and degradation
Isolation
Intimidation
Economic abuse
Extreme possessiveness and jealousy
Degradation and constant criticism
Coercion and threats to get them deported and/or take away
children away if
• victim leaves,
• calls police,
• goes to court against abuser
• (Especially for male self-petitioners) Threaten to have victim
arrested for domestic violence
Evidence of abuse
• Affidavit of the battered woman telling her story
• Witnesses’ affidavits for each incident of abuse
• Protection from Abuse records (petition, temporary + final
– watch for discrepancies between PFA petitions and VAWA
statement, and explain if necessary in VAWA statement)
• Police reports
• Photographs of any injuries or damaged property
• Medical records documenting domestic violence in the
marriage
• Criminal court records if a batterer was arrested or
convicted for any act of violence
• Domestic Violence shelter records
• Counseling/ mental health records if applicant attended
counseling, or letter from therapist
Good Moral Character
• Three years before filing = statutory period
• Earlier period also relevant
• Criminal background checks (FBI fingerprint record is best for those
who have lived in other states, otherwise PA https://epatch.state.pa.us/Home.jsp)
• Documents to prove the applicant’s involvement in her community,
church, her children’s school
• Client’s educational records
• Letters from friends, employer and others
• Misdemeanor convictions may not bar GMC,
especially if connected to abuse.
Filling in the gaps
If you lack primary evidence for any
requirement,
• Explain why in client’s affidavit
• For example, why doesn’t she have a
copy of her husband’s documents (and
why does she believe he has status)?
Why didn’t she call the police? Why
didn’t she seek counseling or a PFA?
Where are the joint bills and
accounts?
I-360 Self Petition Checklist
• Cover letter as “road map” to case
• Table of contents, tabs ON BOTTOM of pages, organizing documents
by 5 statutory requirements – helpful to characterize each, list dates
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Form G-28 Notice of Appearance
Form I-360 Self Petition
Petitioner statement
Copies of client’s and derivative children’s birth certificates,
passports and I-94s
Proof of legal marriage to a USC or LPR
Proof of good faith marriage
Proof of residence with the abuser
Proof of physical abuse and extreme cruelty
Proof of good moral character
Processing Time
• Once the I-360 self petition is submitted, it can take
12 months or more before the self petition is
approved
• About four weeks after the I-360 self petition has
been submitted, the USCIS will send a notice of
“Establishment of Prima Facie Case.”
• This notice is valid for 180 days and it might help
your client get some benefits (cash assistance, food
stamps, Medicaid). It can be renewed while
petition is pending.
I-485 Application for
Adjustment of Status for VAWA
• The I-485 Application for Adjustment of Status
form (green card application) is filed at the same
time as the I-360 only if
• the self-petitioner is the child of or married (or was
married) to a USC, or
• the self-petitioner has a current “priority date” from a
petition filed previously by the abusive spouse.
I-485 Process, Continued
• USCIS will issue receipts, then appointment notices
for biometrics collection (applicants 14 years and
older) at an Application Support Center
• The I-485 application will be reviewed after the I-360
Self Petition is approved.
• The client will be called for an interview before an
immigration officer, who will consider whether she is
“admissible” and entitled to LPR status.
• See inadmissibility waiver information above and below
• If the I-485 application is approved, the client will
become a permanent resident of the U.S.
I-485 Application Checklist
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Form G-28
Form I-485 Application to Adjust Status
Two passport photos
Form G-325A Biographic Information
Money order or check for the I-485 & biometrics fees
• Currently $1070, but could change; check www.uscis.gov. A fee
waiver application on Form I-912 can be submitted if the client
is unable to pay.
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I-864W Affidavit of Support Exemption
Medical Examination on Form I-693 (sealed envelope)
Copy of client’s birth certificate
Copy of I-360 approval or receipt notice
VAWA: Inadmissibility Waiver
Process
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Less common to require waiver in VAWA
context due to automatic waiver of one
EWI (multiple EWIs may require waiver)
Waiver grounds vary with the ground of
inadmissibility applicable to the client –
see INA 212
Waiver is requested on Form I-601
and filed with the Vermont Service
Center in connection with Form I-485
Fee of $585 or fee waiver
What if my client has an approved I360 but can’t adjust yet?
• Deferred Action = formal decision that as
abuse victim, she’s too low a priority for
DHS to initiate removal proceedings
• Deferred Action entitles client to
Employment Authorization Document
(EAD), renewable until she becomes LPR
What is the I-765 Application for
Employment Authorization
process?
• If the self-petitioner is eligible to and files an I485 at the same time as her I-360, she is eligible
for employment authorization while the I-360
and I-485 are pending.
• Category Question 16 on Form I-765: C9
• For everyone else, the I-765 Application for
Employment Authorization may be submitted
and reviewed after the I-360 Self Petition is
approved.
• Category Question 16 on Form I-765: C14 (deferred
action) or C31 (approved VAWA self-petitioner)
I-765 Process, cont.
• The Employment Authorization Card
is valid for one year and has to be
renewed three months before the
expiration date (automatically renews
deferred action if category is C14).
I-765 Application Check List
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Form G-28 Notice of Appearance
Form I-765 Application for Employment Authorization
Two passport pictures
$380 money order or check payable to US Dept. of
Homeland Security unless in category C31 (Or fee waiver
application)
• Based on deferred action: Include statement explaining
need for EAD
• I-360 approval notice, I-485 receipt, Deferred Action
Notice
• I-94 card and copy of prior EAD or gov’t photo ID
I-751 Battered
Spouse Waiver
Removal of Conditional
Residency for Abused Spouses
• What is Conditional Permanent Residency?
• A person is granted conditional residency if
they are married less than two years at the
time they are issued the immigrant visa or LPR
status
• Conditional Residency is granted for two years
• The couple must file a joint petition to remove
the conditions (Form I-751) prior to the two
year expiration date
• A waiver of the joint filing requirement is
available for abused spouses
I-751 Battered Spouse Waiver
Requirements
• Good Faith Marriage
• Physical abuse or extreme cruelty
• A waiver for extreme cruelty may be
supported by an credible evidence INA
Section 216(c)(4)
• For documentary requirements see 8
C.F.R. Section 216.5(e)(3)(iii)
I-751 Requirements, cont.
• Evidence of good faith of marriage and
abuse will be same as for I-360 selfpetition.
• Practice tip:
• Make sure client hasn’t potentially
abandoned her permanent residence by
traveling >180 days in one trip.
Assembling the I-751 Packet
• Fee Waiver or money order of $590 (incl.
biometrics fee) written to “US Dept. of
Homeland Security”
• G-28 Notice of Entry of Appearance
• I-751 Petition to Remove Conditions on
Residence
I-751 Packet, Continued
• Copy of LPR card or I-551 stamp in
passport
• Copy of Passport with travel dates
• If relevant, divorce decree
• Statement of Applicant
• Evidence of bona fide marriage
• Evidence of abuse or extreme cruelty
I-751 Process
• Receipt notice extends conditional status for 1 year &
can continue to extend as long as application is
pending
• Must comply with biometrics requirement
• Takes about 1 year for application to be adjudicated
• Interview is sometimes required. The focus is heavily
on the good faith and breakdown of the marriage.
• Approval results in receiving unconditional 10 year
green card
• Client can continue to travel and have other rights of
LPRs while pending. Processing times vary.
BREAK
Please return by 11:30
U Nonimmigrant
Status
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6.
7.
Summary
Authority
Eligibility Requirements
Required and Suggested Evidence
Inadmissibility Waivers
Procedures
After the U is Granted
The “U Visa”:
A Remedy for Immigrant Victims
• A nonimmigrant status for certain crime victims
including victims of “domestic violence” who
cooperate with law enforcement and their
derivatives
• Employment authorization eligible
• Certain public benefits, varies by state
• Deportation process is terminated
• Leads to permanent residence after three years
in valid U Visa status
• Derivative eligibility for certain family members
Legal Authority
• Created by the Victims of Trafficking and Violence
Protection Act of 2000 (Public Law No: 106-386, 114
Stat. 1464)
• INA §§ 101(a)(15)(U), 214(p), 212(d)(14), 245(m)
• 8 C.F.R. § 103, 212, 214, 248, 274a, 299, 245.23
and 245.24
• Federal Register: September 17, 2007 (Volume 72,
Number 179) [Pages 53013-53042] & 73 Fed. Reg.
75540-75564 (December 12, 2008)
• USCIS Memoranda
• See www.uscis.gov or www.asistahelp.org
Requirements for U Visa
•
Victims apply using form I-918, which must be
accompanied by evidence to satisfy 5 statutory
elements:
1. Victim of “qualifying criminal activity”
2. Possesses information regarding the crime
3. Has been, is being or likely to be helpful to
investigation or prosecution of the crime
4. Criminal activity occurred in or violated laws of U.S.
5. Suffered “substantial physical or mental abuse” as a
result of the crime
1 – “Qualifying Criminal Activity”
Principal applicant must be victim of at least one from a specific list of
crime categories in 101(a)(15)(U):
• Domestic Violence
• Stalking
• Serious assaults and homicides: Felonious Assault, Manslaughter,
Murder, Female Genital Mutilation, Torture
• Sexual assault and abuse: Abusive Sexual Contact, Incest, Rape, Sexual
Assault
• Kidnapping and related: Abduction, False Imprisonment, Hostage,
Kidnapping, Unlawful Criminal Restraint
• Trafficking and Labor exploitation: Involuntary Servitude, Peonage,
Prostitution, Sexual Exploitation, Slave Trade, Trafficking, Fraud in
Foreign Labor Contracting
• Other exploitation and interference with justice: Blackmail, Extortion,
Obstruction of Justice, Perjury, Witness Tampering
• Other Related Crimes
1 – “Victims”
• Applicant must be a “victim”
• Direct victim
• Person that suffered direct and proximate harm
• Bystanders who suffer unusually direct injury
• Indirect victim
• Certain family members if direct victim is deceased due to murder
or manslaughter, or incapacitated or incompetent
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Spouse
Children under 21 and unmarried
Parents and siblings under 18 if the direct victim is under 21 years old
Age at time of qualifying criminal activity
Minor victim is a USC – parents may qualify as indirect victims
• Cannot apply if also culpable for qualifying criminal
activity
2 – Possession of information regarding
crime
• Must have knowledge of the details (i.e., specific
facts) concerning the criminal activity that would
assist in the investigation or prosecution of the
criminal activity
• Victims under 16; incapacitated/incompetent
victims:
information may be possessed by parent,
guardian or next friend
• Under 16 exception is triggered by age of the alien
victim on the day when act constituting an element of
the qualifying criminal activity first occurred
3 – “Helpfulness”
• “Helpful” –
• assisting law enforcement authorities in the investigation
(includes detection) or prosecution (includes
sentencing/conviction) of the qualifying criminal activity of
which he or she is a victim
• Ongoing requirement –
• Cannot refuse or fail to provide “reasonably requested”
information even after U status granted
• Can be helpful at different stages –
• just filing a police report could be “helpfulness” so long as
help continues as requested
• Victims under 16/incapacitated/incompetent –
• Parent, guardian or next friend can meet helpfulness
requirement
3 - “Helpfulness” : What it
ISN’T
• U Visa Regulations define helpfulness by
defining what is NOT helpful:
• Victim only reports crime and is not
willing to provide information to allow
investigation to move forward; or
• Refuses to continue to provide
assistance
• That is: active failure to cooperate – not
simply that investigate did not go forward
4 – Violation of U.S. laws
• Criminal activity on which application is
based can have occurred in or outside U.S.
• If outside the U.S.:
• Must violate U.S. law and statute must
provide for extraterritorial jurisdiction
(e.g. sexual abuse of minor statute)
• Still need law enforcement certification
from authority with responsibility to
investigate or prosecute crime
5 – Substantial Physical or Mental Abuse
• Injury or harm to the victim's physical person, or harm to or
impairment of the emotional or psychological soundness of
the victim
• Factors to consider
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the nature of the injury inflicted or suffered;
the severity of the perpetrator's conduct;
the severity of the harm suffered;
the duration of the infliction of the harm; and
the extent to which there is permanent or serious harm to the
appearance, health, or physical or mental soundness of the victim
• Cumulative harm from pattern of conduct (as in many DV
situations) will be considered
• Prior condition/injuries exacerbated by the crime will also be
considered
U Visa Derivatives
• Children under 21 (qualifying age determined at time of
filing Principal 918 petition) and unmarried
• Age-out during processing appears to be fixed by
VAWA 2013
• Must remain unmarried until granted adjustment
• Spouse
• Applicant under 21 at time of filing 918 and 918A (to be
cautious) > parents
• Applicant under 21 at time of filing 918 and 918A (again,
cautious) > siblings under 18 at time of filing
• Otherwise eligible family member cannot be U
derivative if they are the perpetrator of the crime
• Separate application form (I-918, supplement A)
Required evidence: Law
Enforcement Certification
• A law enforcement official must provide certification
of victim helpfulness in investigation or prosecution
of criminal activity, and must not have withdrawn it
• Certification is provided on Form I-918, Supplement B
• Attorney can draft or LEA may prefer drafting own
• DEADLINE: USCIS must receive I-918 within 6 months
of signing
Certifying Officials
• Official with federal, state or local law enforcement
agency (LEA)
• Includes any agency with responsibility to investigate
crimes - not just police or district attorney
• Signing official should be head of the certifying agency
or any person(s) in a supervisory role who has been
specifically designated by the head of the certifying
agency to issue U nonimmigrant status certifications
on behalf of that agency
• Judge
LEA Interpretation of Standard
• LEAs have the authority to interpret it
• Some LEAs have very conservative policies
• Organized education and advocacy may be
necessary
• Philadelphia: Established procedures with DA’s
office and Philadelphia police
• Chester County: Established procedures with
DA’s office; municipal police departments vary
Other Evidence of Eligibility
• Applicant statement detailing facts of
crime, abuse suffered, information
possessed, and helpfulness – required
• Copy of applicable criminal statute required
• Any other “credible evidence” to establish
applicant meets requirements,
for e.g. … (cont’d next slide)
Possible Evidence of Eligibility, Cont’d
• Reports, affidavits and records from police, school officials, medical
personnel/hospital, clergy, domestic violence counselor, or other
witnesses
• PFA documents, if applicable
• Photographs of injuries
• Trial transcripts
• Court documents (e.g., witness subpoenas, criminal complaints)
• Public dockets available on PA Unified Judicial System web site
(http://ujsportal.pacourts.us/)
• News articles
• Copies of reimbursement forms for travel to and from courts or victim
compensation funds
• DV cases: Evidence of domestic relationship if not obvious from other
documents (eg marriage certificate, birth certificates for kids in common)
U inadmissibility waivers
• Reminder: Discretionary waivers of ALL grounds of
inadmissibility but one authorized for U visa
applicants and derivatives if “in the public or
national interest”
• Exception: participants in Nazi persecutions, genocide, acts
of torture, or extrajudicial killings are not waiver-eligible
• Demonstrate equities in the U.S., good moral character/potential
contributions, hardship if denied status in the US or if deported
• Use applicant’s own statement and as needed, supporting
documents eg birth certificates for USC children, supporting letters
from community/employers, medical documentation, tax returns
U Visa Application Checklist
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•
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Form G-28
Form I-918
I-918B law enforcement certification (signed within 6 months of
filing)
I-918A for derivatives (or file I-918A separately w/ cc of I-918
packet)
No fee for I-918/I-918A
2 passport photos of principal
• 3 passport style photos for derivatives; derivatives in
the U.S. must also file I-765 plus 2 additional photos
and fee of $380 or fee waiver request using I-912
• Copy of current passport for each applicant/derivative or
application to waive this requirement (Form I-192 if in the U.S.)
U Filing Checklist, cont’d
• Copy of birth certificate for each applicant/derivative – to
show identity and qualifying relationship (for spouse include
marriage certificate)
• Documents showing immigration history (eg entry visa &
stamp/I-94, any prior petitions or immigration court docs)
• Documents to support each required element including
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Applicant statement (required)
Copy of applicable criminal statute(s) (required)
Other supporting documents listed above, as available
Certified English translations of all foreign language docs
Use cover letter as “road map” to case
Tab your submission along the bottom
Send by certified mail or courier for proof of delivery
U Process Cont’d: Inadmissibility
Recommended: include I-192 waiver of
inadmissibility package(s) with I918/I918A package(s) if applicable
• Or indicate in cover letter whether
waiver will be filed and wait for RFE
•
Derivatives must file their own separate applications
•
•
$585 fee or fee waiver request
List waiver evidence (if any)
separately in cover letter
U Visa Process, Cont’d
3) USCIS will issue receipt notices for I-918, I-918As, I765s, I-192s (usually within 4 weeks)
4) USCIS will issue appointment notices for biometrics
collection (applicants 14 years and older) here or
abroad
5) The application packet is considered by staff in a
specialized victim services unit at the Vermont
Service Center –could take 8 months
6) USCIS may issue Request for Evidence (RFE) and/or
Notice of Intent to Deny (NOID)– this requires
response and will further delay a decision
U Visa Approvals
•
Receive U nonimmigrant status and work
authorization for up to 4 years unless more
time required for investigation or prosecution INA § 214(p)(6)
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•
•
May be eligible file an I-539 to extend status
Annual cap of 10,000 principal applicant grants
– if met, deferred action + EAD eligible
After 3 years “continuous physical presence” in
U nonimmigrant status, eligible to apply for
adjustment of status to permanent resident on
Form I-485
What is the I-485 adjustment of status
process for U-Nonimmigrants?
• Must be in U status at time of application
• Can apply after 3 years continuous physical presence
in U status
• Applicant affidavit required + other evidence, e.g. tax
returns, employment records, rent receipts
• Departures from the United States for more than 90 days or
for any periods exceeding 180 days in the aggregate will cut
off continuous physical presence
• Establish adjustment justified “on humanitarian
grounds, to ensure family unity, or is in the public
interest”
I-485 process, Cont’d
• Obligation to comply with reasonable requests for
cooperation with law enforcement is ongoing
• Must submit new I-918B or other documentation signed by
law enforcement official for cases that were open when U
granted
• Grounds of inadmissibility and normal bars to
adjustment (e.g., unauthorized work) do not apply at
adjustment except for Nazi/genocide perpetrators
because statutory authority is separate
• Grounds of inadmissibility will be considered by
USCIS in exercising discretion to grant LPR status
U Visa Process, Cont’d
• USCIS will issue receipts, then appointment
notices for biometrics collection (applicants 14
years and older) here (at an Application
Support Center) or abroad (U.S. Consulate)
• 8 to 12 months to receive other response
• USCIS may issue Approval, Request for
Evidence (RFE) and/or Notice of Intent to Deny
(NOID)– this requires response and will
further delay a decision
Extension of status
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Initial period was less than 4 years in the aggregate
LEA attestation
Exceptional circumstances
During the pendency of the I-485
Derivatives delayed through consular processing
Use Form I-539 to extend status (fee waiver
available)
→ Consider if the I-929 is an option (a mechanism to
bring U holder derivatives concurrent with or after
adjustment of status to LPR)
U Denials
• I-918 denial could result in removal
proceedings, but so far, is low risk
• Appeal to Administrative Appeals
Office (AAO) or re-file
Travel Risks
• Applicants should not travel while application is pending,
unless they have an independent status allowing for
entry and do not have inadmissibility problems (rare)
• Even after U nonimmigrant status, is granted, issues
include:
• Inadmissibility factors that have not been waived
• Consulates do what they want
• Substantial delays or worse
• Cannot obtain permanent residence later if more than
90/180 days out
• Possibility of LEA letter that absence was “otherwise
justified”
Derivative Processing Issues
• Fingerprinting abroad
• Consular Processing
• Passports
• Need to extend status
• Age out issues
Resources
• www.ilrc.org
• asistahelp.org
• www.uscis.gov
• Scott Whelan at scott.whelan@dhs.gov
• HotlinefollowupI-918I914.VSC.@dhs.gov or
• Call the VAWA Unit at Vermont Service Center
at 1-802-527-4888
• www.immigrationadvocates.org
Speakers’ Contact Information
• Valentine Brown
• vbrown@duanemorris.com
• 215 979 1840
• Brenda Gorski
• bgorski@nscphila.org
• 215 893 8400
• Lisa Hurlbutt
• lhurlbutt@hiaspa.org
• (215) 832-0900