Transcript Advanced VAWA and U Visa San Francisco, California October

Adjustment to Lawful
Permanent Resident Status for
U Nonimmigrants
AKA “U-AOS”
Introduction to Adjustment
• Adjustment is application process to become
Lawful Permanent Resident (green card)
• U Visa Adjustment is unique: INA 245(m)
• Principal and Derivative applicants must apply
before U Nonimmigrant Status expires
• U Nonimmigrant is eligible to Adjust Status after
3 years in U status
• May submit application 3 months early
• Application adjudicated at USCIS U Visa Unit
Adjustment Requirements
• Lawfully admitted as U nonimmigrant
• In lawful U nonimmigrant status
• 3 years continuous physical presence since
grant of U nonimmigrant status
• Not inadmissible under INA 212(a)(3)(E)
• Has not unreasonably refused to provide
assistance in investigation/prosecution
• Applicant is admissible = discretionary
determination
Discretionary Determination by
USCIS
• Burden on applicants to show that they
merit favorable exercise of discretion
• Family ties, hardship and length of
residence in U.S. may be sufficient
• Do not need to use Form I-601 but should
document merits
Statutory Guidance for
Discretionary Determination
• Humanitarian grounds
• Ensure family unity and/or
• Otherwise in the public interest
Making Case for Discretion
• Discretionary Factors are basically the same as
an I-192 inadmissibility waiver
– equities & hardships substantially outweigh adverse
factors
• IIBA approach: if no negative factors since U
Visa grant, ask USCIS to refer to I-192
documentation
• If I-192 insufficiently documented, or adverse
factors arise after grant of U Visa, use I-192
approach.
Adverse Factors
• May offset by with evidence establishing
mitigating equities for favorable exercise of
discretion
• Some adverse factors may ALSO require
showing exceptional and extremely unusual
hardship
– Serious violent crime, sexual abuse committed upon
a child, multiple drug-related crimes, or where there
are security- or terrorism-related concerns
Continuous Physical Presence
• Requirement is for 3 years after U visa grant
– Interim Relief period counts toward 3 years
• Trips out of the US of more than 90 days each or
180 days in the aggregate will break continuous
physical presence
– Exceptions
• If absence is necessary to assist in criminal investigation or
prosecution, or
• An investigation/prosecution official certifies it is otherwise
justified
Documenting Continuous Physical
Presence
• Applicant’s
declaration of
continuous physical
presence
REQUIRED.
• Income tax returns
• Government or nongovernment official
documents
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School transcripts
Employment records
Monthly rent receipts
Utility bills
Letters from people
with direct knowledge
of residence, and
explanation why other
evidence unavailable
“Unreasonable Refusal to Assist”
• USCIS Regulatory Requirement (not in
INA) to continue to provide assistance in
investigation/prosecution after grant of U
nonimmigrant status.
– What it IS: unreasonable refusal
– What it ISN’T: affirmative responsibility of
cooperation by applicant
Documenting Reasonableness
Option One
• Newly executed I-918 Supplement B
signed by U Visa Certifying Official
• 99% of IIBA clients will use Option One
Documenting Reasonableness
• Option Two – If Supplement B too
burdensome
– Submit declaration describing efforts to get
new I-918B and whether LEA received
requests
– Evidence might also include court documents,
police reports, news articles, copies of
reimbursement forms for travel to and from
court, affidavits of other witnesses or officials
Documenting Reasonableness
• Option Three
– Detailed description of why refusal to provide
assistance was reasonable
– USCIS determination of reasonableness
subject to review by US Department of Justice
• DOJ has 90 days to respond or ask for extension
of time
• After that, USCIS may adjudicate regardless of
whether DOJ has provided response
Factors in Determining Whether
Refusal to Assist is Unreasonable
• General law enforcement,
prosecutorial and judicial
practices
• Kinds of assistance
asked of other victims
involving an element of
force, coercion or fraud
• Nature of the request
• Nature of the victimization
• Applicable guidelines
for victim and witness
assistance
• Specific circumstances
of the victim, incl. fear,
severe physical or
mental trauma
• Age and maturity of the
applicant
Adjustment Documents
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I-485
G-325A (one page)
Filing and biometrics fee or fee waiver request
Copy of U approval notice
Copy of all passport pages including I-94
I-918B or other evidence relating to requests for
assistance
• Applicant’s declaration
• Evidence of continuous physical presence
• Evidence related to discretion