Applications for U Nonimmigrant Status

Immigration Volunteer Training January 15, 2010

Unique Challenges Facing Abused Immigrants

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Lack of knowledge regarding the American legal system Fear of Deportation Language Barriers Cultural Barriers to Seeking Help Inability to Work Legally Precarious Immigration Status

Gaining Legal Immigration Status Generally: First Step • • • • • •

Petition filed that shows eligibility for immigration category through… Close Family Member ** Can Be Used to Control Immigrant ** Employer (skilled employment) Asylum of Refugee process Special category (e.g. diversity visa, U visa)

Gaining Legal Status: Second Step

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Immigrant’s Application for Permanent Status When: Some family petitions have multi-year waiting lists Where: In U.S. only in special circumstances – 10 year bar for most applicants who have to leave U.S. to apply Eligibility: Immigrant must prove that she is admissible violations. Not likely to become public charge – no immigration, criminal

Immigration Relief for Survivors of DV and other crimes

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Violence Against Women Act self petition U Visa VAWA Cancellation of Removal Gender-related asylum Special Immigrant Juvenile Status

U Visa Purpose

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Law Enforcement:

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Overcome victim fear of detection; and

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encourage reporting and other cooperation

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Humanitarian: help domestic violence and other crime survivors

Benefits

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Lawful U visa status for 3-4 years Employment Authorization Possible to adjust status after 3 years Eligible for public benefits upon application

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Terminate removal proceedings U status to derivative beneficiaries

Brief History

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U Visa Created in 2000, But no Regulations until 2007.

“Interim relief” to thousands of prima facie eligible applicants

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No new applications for interim relief No time limits for new applicants

Requirements

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Victim of Designated Crime Includes Immediate relative of deceased victim Is/Was/Is Likely to be Helpful to Law Enforcement Law Enforcement must Certify helpfulness Can’t unreasonably refuse to help Substantial “abuse” as result of crime Admissible or eligible for waiver

Victim of Certain Criminal Activity

Rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, sexual exploitation, hostage taking, involuntary servitude, kidnapping, false imprisonment, manslaughter, murder, felonious assault, obstruction of justice, … AND any attempt, conspiracy or solicitation to commit any above-listed crime, or similar activity

Applicant Is/Was Helpful

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Applicant has information AND Is OR was OR is likely to be helpful to the

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Investigation OR

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Prosecution of the crime

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Has not/will not unreasonably refused request for assistance

Applicant Suffered “Substantial Abuse”. USCIS Will Analyze:

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Nature, Severity, Duration of injury Harm Suffered, including aggravation of existing condition or pattern of abuse Severity of perpetrator’s conduct Seriousness of harm to appearance, health, physical or mental soundness

Law Enforcement Agency Certification

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I-918 Supplement B States that applicant is victim of listed crime, suffered, and is/was/likely to be helpful May only be signed by Agency Head OR officer designated by Agency Head “Agency” includes any agency with capacity to investigate criminal activity

– CPS, EEOC, DHS, DOL, etc.

Educate LEAs

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Law says “was/is/is likely to be Investigation OR Prosecution Not a marginal law: Near Unanimous Passage No statute of limitations U visa determination made by USCIS, not police

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Other requirements include substantial abuse, admissibility, background check

Derivative beneficiaries may also get U Visa

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Of Adult U Visa Applicant

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Spouse (not Abuser) Children (unmarried, <21 at time of I-918) Of Minor [unmarried?,<21] U Visa Applicant

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Parent (Not Abuser) Sibling Under 18 (at time of I-918) Derivatives May Be Living Outside U.S.

Derivatives must also be admissible or eligible for a waiver

Application Process: Confidentiality

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Applicant Must Use Own Address No Negative Determination Based Solely on Information From Abuser

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VSC May Share Information With Selected Agencies if Applicant is a security threat

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No ICE referral for mere denial

Application Packet: Principal Applicant

• I-918 for principal (many questions about admissibility) • I-918 Supplement B • I-192 • Eligibility evidence • $625 in fees or fee waiver application • NEW process 10/1/09: I-765 for prima facie eligibility EAD

Eligibility Documentation (1)

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“Any Credible Evidence” Principal Applicant Must Include

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A Declaration That States: What the Crime Was How the Applicant Was Helpful How the Applicant Suffered Substantial Abuse

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Police Report(s) for the Crime(s)

Eligibility Documentation (2)

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Application May Include the following to document any or all of three factors:

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Subpoenas to Testify

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Medical Record(s) Eligibility Documentation For Victim Services Mental Health Evaluation Letters From Witnesses to Crime, Helpfulness, or Substantial Abuse Also need to document waiver application

Application Packet: Derivative(s)

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I-918 Supplement A, completed by PRINCIPAL $80 for biometrics or join principal’s fee waiver request

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I-765 (procedure in flux) I-192 if needed + $545 fee Documentation to Support I-192

Application for complex inadmissibility waiver

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U Visa is NonImmigrant Visa, so Need Waivers of Each Nonimmigrant Ground of Inadmissibility

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U Specific Waivers 212(d)(13)

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Everything except threats to public safety

Common Inadmissibility Grounds

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Present without permission. 212(a)(6)(A) Visa Fraud. 212(a)(6)(C)(i) False Claim of US Citizenship. 212(a)(6)(C)(ii) No specific I-918 question – just visa fraud?

Alien Smuggling. 212(a)(6)(E) Previously removed. 212(a)(9)(A ) Entry after unlawful presence. 212(a)(9)(B) EWI after unlawful presence/removal 212(a)(9)(C) Crimes 212(a)(2) et seq Public Charge 212(a)(4) NOT A PROBLEM

Waiver adjudication factors

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Waiver adjudication factors

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From INA 212(d)(13): AG’s DISCRETION:

• HARDSHIP (Include being crime victim) • EQUITIES

Positive (Include helpfulness) Negative (Inadmissibility, other factors) Public and National Policy From Interim Regulations: “Humanitarian Considerations” From USCIS: Applicant’s statement of taking responsibility/rehabilitation important

Waiver documentation

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Simple “Present w/o Permission” only requires form and fee (waiver) More Serious Violations May Require More Significant Evidence Include Brief Declarations With:

– Without Waiver, No U visa, and I’m eligible for the U visa because… – Account of crime(s) and cooperation – Hardship factors if no U visa

Positive equities outweigh violation Public/National Interest: Oakland, SF policy statements

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Inadmissibility Waivers for derivatives May be harder – no victimization or helpfulness Derivatives with crimes need risk analysis If entered as child, state lack of intent to violate law Say how derivative helped investigation Say how derivative supports principal’s recovery

Immigration history special procedures

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Simple Grounds of Inadmissibility

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Request Waiver Prior Removals

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Applicants in US Should File for Stay of Removal Expedited Removal WILL Automatically Be Cancelled When U Visa Approved

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Removal After Hearing: Usually Must Seek Joint Motion to Reopen, which DHS May Join in Its Discretion Current Removal Proceedings

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Motion to Terminate