Transcript How to Prepare a Winning Waiver of Inadmissibility

Assisting Family Members through
the U Nonimmigrant Status Process
September 30, 2010
Presented by
Susan Bowyer, Jessica Farb, Sally Kinoshita,
and Catherine Ward-Seitz
(c) Immigrant Legal Resource Center 2010
1
Immigrant Legal Resource Center
(ILRC)
(c) Immigrant Legal Resource Center 2010
2
ILRC Attorney of the Day
•
•
•
•
•
Mon-Thu 10am-3pm
Phone: (415) 255-9499 ext. 6263
Email: [email protected]
Fax: (415) 255-9792
Website: www.ilrc.org
(c) Immigrant Legal Resource Center 2010
3
ILRC Attorney of the Day
• Free Attorney of the Day
– IOLTA Legal Services Programs in California
– All San Francisco Bay Area Non-Profits
• Other Attorney of the Day
– Hourly rate pro-rated to the minute, or
– One-time consultation fee
(c) Immigrant Legal Resource Center 2010
4
Helpful Listservs
• VAWA Experts
– Contact [email protected]
– Interactive listserv
• VAWA Updates
– Contact [email protected]
– Moderated updates only
(c) Immigrant Legal Resource Center 2010
5
U/VAWA Hotlines
• USCIS Vermont Service Center
–(802) 527-4888
– [email protected]
– For advocates and attorneys only
– Must have a G-28 on file
– When to call versus when to email
(c) Immigrant Legal Resource Center 2010
6
The U Visa: Obtaining Status for
Immigrant Victims of Crime
• A guide to the entire
process– from eligibility
screening through
adjustment of status to
assisting eligible family
members – of a U case.
• Numerous sample
materials, checklists,
declarations, motions,
and more.
Order at www.ilrc.org
(c) Immigrant Legal Resource Center 2010
7
Agenda
• Family Member Definitions
• Direct Victims vs. Indirect Victims
• Derivative Family Members
– Duration of Status
– Age Out Issues
• Petitioning Qualifying Family Members
• Adjustment of Status for Family Members
(c) Immigrant Legal Resource Center 2010
8
Family Member Definitions
Jessica Farb,
International Institute of the Bay Area
(c) Immigrant Legal Resource Center 2010
9
Family Members
• Spouse: U-2
• Child: U-3
– Adopted children
– Children out of wedlock
– Stepchildren
• Sibling: U-4
• Parent: U-5
– Stepparent
– Parent of Married Child
(c) Immigrant Legal Resource Center 2010
10
Direct vs.Indirect Victims
They’re all principal applicants!
Sally Kinoshita,
Immigrant Legal Resource Center
(c) Immigrant Legal Resource Center 2010
11
Victim Definitions
• Applicant must be a “victim”
– Direct victim
• 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
– 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
(c) Immigrant Legal Resource Center 2010
12
Can Family Members of USC
Victims be “victims?”
(c) Immigrant Legal Resource Center 2010
13
Direct and Indirect Victims
Must Be Helpful
• Must have some knowledge of the crime
• Cannot refuse to provide reasonably
requested assistance through U status
• Ongoing responsibility to cooperate
• Those under 16 at time of criminal activity
can have someone else cooperate
(c) Immigrant Legal Resource Center 2010
14
Family Helping Minors
• For those under 16 a parent, guardian or
next friend can be helpful
• What is a “next friend”?
– Direct victim is incompetent, incapacitated or
under 16 years old
– Appearing in lawsuit to act for direct victim
– Definition only for providing info, not as victim
• In this case the parent, guardian or next
friend does not necessarily = victim
(c) Immigrant Legal Resource Center 2010
15
Derivative Family Members
Jessica Farb,
International Institute of the Bay Area
(c) Immigrant Legal Resource Center 2010
16
Derivative Family Members
• U applicants who are 21 or over
– spouses
– children
• U applicants who are under 21
–
–
–
–
spouses
children
parents
unmarried siblings under 18
• Derivative cannot have been a perpetrator
(c) Immigrant Legal Resource Center 2010
17
Derivative Process: Stage 1
• Form I-918 Supp A
– no filing fee
•
•
•
•
•
Juvenile records
Do they need to be helpful?
Possible conflicts
When and how to file (concurrently?)
EAD
(c) Immigrant Legal Resource Center 2010
18
U Nonimmigrant EAD Procedure
• Principal I-918 Applicants do not need to
file separate I-765
– Simply check box on I-918
– When might you file an I-765 for a principal?
• Derivative family members must file
separate I-765 as category (a)(20)
– Filing fee may be waived
• EAD will be valid for up to four years
(c) Immigrant Legal Resource Center 2010
19
Derivative Process Stage 1
(cont’d)
• Qualifying Relationship
– Birth/Marriage Certificate
• Passport
• Form I-192: Inadmissibility
– Filing fee may be waived
• Signatures
(c) Immigrant Legal Resource Center 2010
20
Derivative Process: Stage 2
• Biometrics or fingerprints process
– RFE
– email [email protected] for access to U visa
consular processing google document
• Travel
(c) Immigrant Legal Resource Center 2010
21
Derivatives Duration of Status
and Age Out Issues
Catherine Ward-Seitz,
Bay Area Legal Aid
(c) Immigrant Legal Resource Center 2010
22
Derivative Delays and Extensions
• May need to extend status
– Derivatives need 3 years too, but expire at the
same time as principal.
– For derivatives abroad, 3 years starts upon
first entry with U Visa.
– File I-539 90 days before status expires with
an explanation of why needed.
– Can file I-765 concurrently.
(c) Immigrant Legal Resource Center 2010
23
Extension of status
• 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
(c) Immigrant Legal Resource Center 2010
24
Issues with Marriage
• When the principal marries: What happens
to parents and siblings if the under-21
principal marries? (VSC has said ok)
• When the derivative marries: do they lose
eligibility?
– Derivative parent (no)
– Derivative child (yes)
– Derivative sibling (yes)
(c) Immigrant Legal Resource Center 2010
25
Marriage Timing Issues
• When can a derivative spouse be
included:
– If marriage pre-dates I-918 filing, then eligible
for I-918A (or I-929).
– If marriage post-dates I-918 filing, then only
eligible for I-929 (and must wait until AOS
stage and must show extreme hardship).
– Conflict Issue – may want to do spouse’s case
after principal’s approved.
(c) Immigrant Legal Resource Center 2010
26
After Acquired Family Members
• Children v. Spouses:
– What if give birth abroad after filing the I-918?
• I-918A or I-929
– What if marry after filing I-918?
• Only I-929
(c) Immigrant Legal Resource Center 2010
27
Divorce Issues
• When does divorce affect a derivative:
– While I-918A still pending,
– After I-918A approved,
– While I-485 pending,
– After I-485 approved.
• Ethics issues and conflicts:
– State by state – possible conflict waiver, but
maybe best to refer both out.
(c) Immigrant Legal Resource Center 2010
28
Age out issues
• Clients with interim relief
– Both parent and child
– Only parent because child was abroad (?)
• Clients without interim relief
– Request expediting!
– Consider Derivative’s age and Principal’s age when
approaching 21!!!
• Indirect victims
• Siblings
– Statutory protection
(c) Immigrant Legal Resource Center 2010
29
Age Out Problem Examples
• Principal applicant is over 21 and has
derivative children under 21 – request
expediting because case must be
approved before derivatives turn 21!
• Principal applicant is under 21 and has
derivative parents – request expediting if
principal might be turning 21 soon.
• What about siblings? Their age is locked
in, but what about the principal’s age?
(c) Immigrant Legal Resource Center 2010
30
Families and the 10,000 cap
• Statutory limit on annual number of U
nonimmigrant visa/status issued – INA §
214(p)(2)
• Only applies to principals
• If cap reached, principals (and family
members) placed in waitlist and issued
deferred action or parole
• But watch out for age out problem if cap
approaching!!
(c) Immigrant Legal Resource Center 2010
31
Petitioning Qualifying Family
Members
Susan Bowyer,
Immigrant Survivors’ Legal Aid
(c) Immigrant Legal Resource Center 2010
32
Petitioning for Qualified Family
Members – Overview
• I-929 process is for family members who
never had U Nonimmigrant Status
• Only for family members of U1 – principal
U nonimmigrant
• Must demonstrate extreme hardship
• Doesn't convey status itself – just first step
in immigrant visa process
(c) Immigrant Legal Resource Center 2010
33
Petitioning for a Family Member
• “Qualifying family member”
– Family members of U principals only
– Only family members who have never been granted U
nonimmigrant status
– If the U principal is under 21 years old
• Spouse, parents, and children
– If the U principal is over 21 years old
• Spouse and children
– Parent/Child relationship includes step, adopted, in or
out of wedlock – special instructions
– Not Siblings (might be eligible as victims themselves)
(c) Immigrant Legal Resource Center 2010
34
Eligibility to Petition Family
• U(1) Nonimmigrant must:
– Have adjusted already
– Have a pending adjustment application
– Be filing at the same time as the QFM Petition
• Family relationship must exist:
– At the time U Visa holder adjusts AND
– At the time QFM adjusts or consular
processes
(c) Immigrant Legal Resource Center 2010
35
Additional Requirements
• Must prove that if QFM can't remain in or
enter the US, the U1 and/or the QFM will
suffer extreme hardship.
• If the qualifying (petitioned) family member
possessed information about the crime,
may not unreasonably refuse to assist.
• Support for positive discretionary
determination
(c) Immigrant Legal Resource Center 2010
36
Family Petitioning Process
• Step One: Petition to Establish Eligibility
– Principal applicant files I-929 with
• $215 fee or fee waiver request
• evidence establishing relationship
– May be filed concurrently with the U1
Nonimmigrant's I-485 although instructions
say have to have receipt notice
– Can send all in one packet
• Step Two: Application for Permanent
Residence (discuss after I-929 process)
(c) Immigrant Legal Resource Center 2010
37
Documents for QFM Petition
• Photo of QFM
• Form I-929 for QFM
– Filing fee of $215 or fee waiver request
• Proof of petitioner’s I-485 filing or approval
• Evidence of relationship
• Evidence of extreme hardship to U1 or QFM if
QFM can't stay in or enter U.S.
• Evidence in support of favorable exercise of
discretion
• Petitioner (U1)'s signed statement (?)
– Must include QFM's signed statement
(c) Immigrant Legal Resource Center 2010
38
Proof of Petitioner’s
I-485 Filing or Approval
• Copy of front and back of permanent resident
card; or
• Copies of passport biographic page and page
showing admission as a permanent resident; or
• Other evidence of permanent resident status
issued by UCSIS; or
• Copy of approval notice of I-918 and receipt
notice showing I-485 has been filed
• How about concurrent filing?
(c) Immigrant Legal Resource Center 2010
39
Evidence of family relationship
–Primary evidence such as birth
certificates, marriage certificates
• Proof of divorce(s) from both spouses' prior marriage(s)
–Secondary evidence may be used
• Must prove unavailability of primary evidence
• Form I-929 instructions list types of acceptable
secondary evidence.
–Must be translated into English
(c) Immigrant Legal Resource Center 2010
40
Qualified Family Member’s
Signed Statement
• Describe eligibility under all of the grounds,
including:
– He or she would suffer extreme hardship if not
allowed to remain in or join the U1 in the U.S.
– He or she merits a favorable exercise of discretion
– Either that he or she had no information about the
qualifying crime, or that having information, he or she
did not unreasonably refuse to cooperate with the law
enforcement agency in charge of the investigation or
prosecution
• Sign it
(c) Immigrant Legal Resource Center 2010
41
Showing Extreme Hardship
• To U1 and/or QFM
• ““Must be a degree of hardship beyond that typically associated with
such a removal or refusal”
• To U1 and/or QFM
– Hardship to U1 if QFM leaves/can't enter US. Consider both:
• Will U1 leave US with QFM? What hardship if U1 effectively
removed?
• Will U1 remain in US without QFM? What hardships living
without QFM
– Hardship to QFM if he leaves/can't enter US
• If U1 leaves also
• If U1 remains in US
• Any credible evidence
(c) Immigrant Legal Resource Center 2010
42
Relevant Hardship Factors-Regs
• U1's lost access to US courts and justice system
• Nature, extent of U1's physical or mental abuse
• Likelihood that perpetrator or people acting for
him in home country would harm U1 or children
• Willingness of authorities in the home country to
protect U1 and children
• U1's need for social, medical, mental health/other
services
• Law/social practices in home country that punish U1
or children for leaving abuser
• QFM's age at entry to U.S. or adjustment application
(c) Immigrant Legal Resource Center 2010
43
Relevant Extreme Hardship
Factors (Instructions)
•
•
•
•
•
•
•
•
Age of U1 and QFM
Language/cultural assimilation
Health conditions
Medical treatment in home country
Ability to obtain work in home country
Relative length of US residence
Other family legally residing in U.S.
Financial impact of departure
(c) Immigrant Legal Resource Center 2010
44
Relevant Extreme Hardship
Factors (Instructions) continued
• Disruption of education opportunities
• Psychological impact
• Political, economic conditions in home
country
• Family ties (or lack) to home country
• Contributions to U.S. community
• Availability of QFM to adjust through other
means [what does this mean? .. that
unavailability of other option = hardship?]
(c) Immigrant Legal Resource Center 2010
45
Demonstrating Eligibility for
Exercise of Discretion
• Probably similar to I-192 guidelines for U
applicants and derivatives
– If only one EWI, just include equities and
hardships in QFM's signed STATEMENT
– The more adverse factors, the more equities
need to be shown
• In addition to QFM's statement, include good moral
character letters, volunteer activity, certificates,
etc.
(c) Immigrant Legal Resource Center 2010
46
Additional Extreme Hardship
Documentation
• Letters and declarations from people with
knowledge of community ties and potential
hardships
• Evidence of family members in US – birth,
marriage certificates
• Reports, declarations on adverse country
conditions in home country.
(c) Immigrant Legal Resource Center 2010
47
Step 2: QFM's Application for
Permanent Residence
• When the I-929 is approved,
QFM can apply for permanent
resident status
•Adjust status in the U.S. OR
•Consular process for an
immigrant visa
(c) Immigrant Legal Resource Center 2010
48
QFM's Adjustment Application
• I-485
– $1010 Fee or Fee waiver
• Copy of I-929 Approval
• May submit I-765 in C9 for employment
authorization pending adjustment adjudication (only
biometric fee if concurrent filing​? Aren't biometrics
with I-485?)
• [Request for favorable exercise of discretion even if
I-929 adjudicated it already?]
(c) Immigrant Legal Resource Center 2010
49
Adjustment of Status for
Family Members
Sally Kinoshita,
Immigrant Legal Resource Center
(c) Immigrant Legal Resource Center 2010
50
Adjustment for Family
• Derivative U nonimmigrants (U-2, U-3, U-4
and U-5) adjust under the same procedure
as U-1 principal nonimmigrants
• Approved I-929s will adjust under INA §
245(m) also, appears they can
concurrently file the I-485 with the I-929
(c) Immigrant Legal Resource Center 2010
51
Where to find the law
• Statutory Cites
– INA § 245(m): adjustment
• Interim Regulations
– Federal Register: December 12, 2008
(Volume 73, Number 240) [Pages 7554075564]
– 8 CFR § 245.24
• USCIS Memoranda
– See www.uscis.gov or www.asistahelp.org
(c) Immigrant Legal Resource Center 2010
52
U Adjustment of Status
Overview
• INA § 245(m) is not a variation of INA § 245(a)
– Restrictions under § 245(a) and § 245(c) do not
apply
• Principal and derivatives must apply to adjust
before U nonimmigrant status expires
• U nonimmigrant adjustment-eligible after 3 years
in U status
• USCIS has sole jurisdiction
– Vermont Service Center will adjudicate
(c) Immigrant Legal Resource Center 2010
53
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
• Justified on humanitarian grounds, to ensure
family unity, or in the public interest
(c) Immigrant Legal Resource Center 2010
54
Questions and Evaluation
(c) Immigrant Legal Resource Center 2010
55