Presentation Transcript

1. Basic Eligibility Requirements and Related Strategies

   U-visas and T-visasFor Victims of Crime &Trafficking

2. REVIEW: COMMON BARRIERS FACING IMMIGRANT VICTIMS OF CRIME Fear of the consequences of reporting the crime deportation of self, children, father of children giving child to abuser Language barriers Economic barriers Unsuccessful attempts to seek protection in the home country Misinformation from the perpetrator about legal rights and protections and about available services
3. The “U Visa” in Brief:A Remedy for Immigrant Crime Victims A nonimmigrant status for certain crime victims including victims of “domestic violence” who cooperate with law enforcement Employment authorization eligible Path to permanent residence Derivative eligibility for certain family members Annual cap of 10,000 per fiscal year Confidentiality protections as with VAWA
4. U-Visa Goal The U visa was created to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while offering protection to victims of such crimes.
5. Legal Authority Created by the Victims of Trafficking and Violence Protection Act of 2000 (Public Law No: 106-386, 114 Stat. 1464) Important modifications in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Pub. Law 110-457, 122 STAT. 5044) INA §§ 101(a)(15)(U), 214(p), 212(d)(14), 245(m), 248(d) 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.asistaonline.org (also join their VAWA listserv to keep updated on policy/practice advice!)
6. Requirements for U Visa Victim of “qualifying criminal activity” Possesses information regarding the crime Has been, is being or likely to be helpful to investigation or prosecution of the crime Criminal activity occurred in or violated laws of U.S. Suffered “substantial physical or mental abuse” as a result of the crime
7. 1 – “Qualifying Criminal Activity” Principal applicant must be victim of at least one from a specific list of crimes in 101(a)(15)(U), for e.g. Homicides and felonious assault (aggravated assault in PA) Many types of kidnapping/unlawful restraint crimes Many types of sexual assault, exploitation and abuse Blackmail, extortion, obstruction of justice, witness tampering Domestic violence – broad Attempts and conspiracy/solicitation
8. What are some examples of “domestic violence” criminal activity that have been successful, especially is USCIS required convincing? What if my client was a victim of robbery or another crime not listed in the statute? What if the crimes under active investigation don’t qualify but qualifying crimes happened too?

   Falling within the qualifying crime categories

9. 1 – “Victims” Applicant must be a “victim” Cannot apply if also culpable for qualifying criminal activity Direct victim Direct and proximate harm Bystanders who suffer unusually direct injury
10. “Victims” cont’d Indirect victim Certain family members if direct victim is deceased due to murder or manslaughter, or incapacitated or incompetent Minor child victim viewed as incompetent; allows a parent to apply for U nonimmigrant status as an indirect victim
11. 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 (at the time of the crime); incapacitated/incompetent victims:information may be possessed by parent, guardian or next friend Don’t have to know EVERYTHING
12. 3 – “Helpfulness” Means: 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
13. 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 reasonably requested assistance That is: active failure to cooperate – not simply that investigate did not go forward
14. Law Enforcement Certification Required 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 File U visa application within 6 months of signing
15. 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
16. What are some of the challenges? How do you approach reluctant or unknown LEAs with certification requests? What are recommended “best practices” for LEAs and certifications?

    Obtaining Law Enforcement Certifications

17. Main points to emphasize with LEAs Law/Regs say “was/is/is likely to be” helpful Investigation OR Prosecution Not helpful = REFUSAL to help 3 Purposes of visa: (1) facilitate this investigation; (2) build bridges between law enforcement and immigrants and discourage criminals from targeting immigrant communities; (3) American humanitarian values U visa determination made by USCIS, not police Other requirements include substantial abuse, admissibility, background check Cert is not conclusive evidence of any requirement They can always contact USCIS with questions
18. 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
19. 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 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 or victimization (as in many DV situations) will be considered, as will aggravation of pre-existing condition
20. U Inadmissibility Waivers Discretionary waivers of ALL grounds of inadmissibility (INA sec. 212) 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 Clients should be encouraged to disclose all grounds of inadmissibility and all known grounds should be specifically included on the Form I-192
21. U Visa Process All required forms filed with Vermont Service Center Form I-918, I-918B certification Inadmissibility waiver application on Form I-192 if applicable Client statement covering all elements is required Include evidence of identity and immigration history Current passport is required or waiver is needed
22. U Process, cont’d Include supporting evidence for each required element (same document can support multiple elements) Standard is “any credible evidence” Use cover letter as road map and tab evidence Include fee (for I-192) or fee waivers (Form I-912) as applicable As with VAWA, check all evidence for consistency Processing times vary Always consult form instructions
23. What should the applicant’s statement include? What evidence do you include regarding the criminal activity, helpfulness and substantial abuse? What evidence do you include in support of the waiver?

    What does your typical filing look like?

24. U Visa Derivatives Children under 21 (qualifying age determined at time of filing petition) Spouse Applicant under 21 > parents Applicant under 21 > siblings under 18 Otherwise eligible family member cannot be U derivative if they are the perpetrator of the crime Derivatives must submit own application form (I-918, supplement A), work authorization application (I-765) and if needed waiver application (I-192) Make sure to include evidence of qualifying relationship
25. What happens after an approval? What happens after a denial? What about for clients in proceedings? What do you tell your clients who want to travel abroad after receiving U status? What do they have to do to prepare for adjustment of status?

    U visa decisions: what next?

26. “Aging out” Consular processing abroad Passports Need for extensions and/or considering I-929 instead

    What issues commonly arise for derivatives?

27. The “T Visa” in Brief:A Remedy for Human Trafficking Victims A nonimmigrant status for victims of sex or labor trafficking who, unless minors, cooperate with law enforcement Employment authorization eligible Path to permanent residence Derivative eligibility for certain family members Confidentiality protections as in VAWA/U
28. The Trafficking Victims Protection Act defines severe forms of trafficking in person as – (A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery What is trafficking?
29. 1 2 3 PROCESS MEANS END Recruiting OR Harboring OR Moving OR Obtaining a person, by Force OR Fraud OR Coercion For the purposes of Involuntary Servitude OR Debt Bondage OR Slavery OR Sex Trade Three Elements of Trafficking
30. Modern-Day Slavery Manipulation Threats of physical sexual, emotional violence Shame Verbal abuse Promises/excuses from trafficker Debt Instilled fear and distrust of police or other people Cultural connections in country of origin Control Confinement Confiscation of documents Physical, sexual, emotional violence Language barrier Dependence Isolation, no money Lack of familiarity with language, culture, practices, laws, transportation Needs are met
31. Trafficking vs. Smuggling Trafficking Crime or violation against a person Smuggling Unauthorized border crossing crime or violation against a country Contains element of coercion (cannot consent to enslavement)‏ No coercion Facilitated illegal entry of person from one country to another Can include smuggling, plus subsequent exploitation and/or forced labor Smuggled people typically viewed as violators by law Trafficked people seen as victims by the law
32. Continued Presence (CP) is a temporary immigration status provided to individuals identified by law enforcement as victims of human trafficking. This status allows victims of human trafficking to remain in the U.S. temporarily during the ongoing investigation into the human trafficking-related crimes committed against them. CP is initially granted for one year and may be renewed in one-year increments. Under the statute a Federal law enforcement official must: Determine an alien is a victim of severe form of trafficking and may be a potential witness to such trafficking File request and appropriate applications Form I-102 Form I-765 Fingerprints While investigating and prosecuting the suspected traffickers, Federal law enforcement shall make reasonable efforts to protect the safety of victims, including taking measures to protect trafficked persons and their family members from intimidation, threats of reprisals and reprisals from traffickers and their associates. * 22 USC Sec. 7105(c)(3) and 28 CFR 1100.35 Continued Presence*
33. In October 2000 through the Victims of Trafficking and Violence Protection Act (TVPA) Congress created the T nonimmigrant status for foreign nationals who are victims of trafficking. T nonimmigrant status is granted for up to 4 years and is a path to lawful permanent status here in the United States. Under the statute an applicant must demonstrate the following: Is or has been a victim of a severe form of trafficking in persons Is physically present in the United States, American Samoa, or at a port-of-entry thereto, on account of such trafficking in persons Has complied with any reasonable request for assistance in the investigation or prosecution of acts of such trafficking OR is under the age of 18 Would suffer extreme hardship involving unusual and severe harm upon removal * INA Sec. 101(a)(15)(T) and 8 CFR Sec. 214.11 T visa*
34. Is or has been a victim of a severe form of trafficking in persons What facts would help a victim state that they was force, fraud or coercion? What is the age of the victim at the time the trafficking situation took place? Was the victim promised a job once in the United States? Was the victim being paid? Was the victim afraid to leave the situation? Is physically present in the United States, American Samoa, or at a port-of-entry thereto, on account of such trafficking in persons Having entered the United States without inspection and then facing a trafficking situation would still make someone eligible for a T visa If they left the United States and then re-enter all in relation to the trafficking situation the individual may still be eligible for a T visa Pursuant to regulations, a victims who escaped the situation before law enforcement became involve has to explain why they did not depart the United States? Going through the Elements
35. Has complied with any reasonable request for assistance in the investigation or prosecution of acts of such trafficking OR is under the age of 18 Reporting to law enforcement is necessary for all adults unless the victim has suffered severely and would not be able to cooperate Cooperation might mean an interview, it might be helping law enforcement identify individuals, testifying in court A victim can still move forward and apply for a T visa even if law enforcement does not believe he/she is a victim as defined by the TVPA Would suffer extreme hardship involving unusual and severe harm upon removal Would the trafficker harm the individual if he/she was in the home country? Is there an open investigation in the U.S. which would allow the victim to seek justice? Going through the Elements
36. U.S. Secretary of State Hillary Clinton in June of 2012 estimated that there are as many as 27 million people believed to be trafficking victims around the world. The U.S. is still believed to be a top destination with estimates ranging from 14,000-17,000 victims There are 5,000 T visas that can be given out each year In FY 2011, there were 1,524 T visa petitions filed only 557 were approved So far this FY 2012 there have been 1,178 T visa petitions filed with 489 approved In FY 2010, 92 eligibility letters were issued by the Department of Health and Human Services to children Of those victims certified, 62% were victims of labor trafficking, 29% were victims of sex trafficking and 9% were victims of both labor and sex trafficking In 2009, 235 males and 844 females under the age of 18 were reported to the FBI as having been arrested for “prostitution” The Numbers
37. What happens after an approval? What happens after a denial? What about for clients in proceedings? What do you tell your clients who want to travel abroad after receiving U status? What do they have to do to prepare for adjustment of status?

    T visa decisions: what next?

38. What are the key differences between VAWA self-petitions, and U and T? How do you decide what to use in which situation? For what DV victims are both VAWA and U unavailable?

    VAWA versus U versus T

39. Contacting VSC (802) 527-4888 or HotlineFollowUpI918I914.Vsc@dhs.gov 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