Immigration Relief for Battered Immigrants

Immigration Relief for Battered Immigrants ISLA Immigrant Survivors’ Legal Aid (510) 267-8845 info@islabay.org

Unique Challenges Facing Abused Immigrants • Lack of Knowledge Regarding theAmerican Legal System • Fear of Deportation • Language Barriers • Cultural Barriers to Seeking Help • Inability to Work Legally • Precarious Immigration Status

IMMIGRATION RELIEF FOR BATTERED IMMIGRANTS • Violence Against Women Act (VAWA) Self-Petition • U Visa • VAWA Cancellation of Removal • Battered spouse waiver of joint petition requirement • Gender-related asylum • Special Immigrant Juvenile Status

Benefits of Immigration Relief • Lawful immigration status • Lawful work authorization • Some applicants are eligible for public benefits like CalWORKs and full scope MediCal

WHO CAN SELF-PETITION UNDER VAWA • Abused Spouse of U.S. Citizen or Permanent Resident (current or divorce due to abuse) • Non-abused Spouse of U.S. Citizen or Permanent Resident whose child is abused by spouse • Child of U.S. Citizen or Permanent Resident • Parent of adult U.S. Citizen

SELF-PETITIONER MUST PROVE • Relationship to abuser: spouse, child, parent • Abuser is U.S. citizen or permanent resident • Abuse during marriage or parent/child relationship (battery or extreme cruelty) • Applicant lived with abuser • Applicant lives in U.S. • Applicant has good moral character

SELF-PETITION PROCESS • Determine eligibility • Submit self-petition and documentation of eligibility (lots of it). If USC abuser, apply for permanent residence and work authorization • 4-6 weeks later: prima facie eligibility determination • 6-9 months: approval and eligibility for work authorization • Renew VAWA and work authorization every year • Application for permanent status (may be 5-10 years): show that applicant is “admissible”

U Nonimmigrant Status(The U Visa) BENEFITS • Nonimmigrant status in U.S. for 3 years • Employment authorization • “Derivative” nonimmigrant status for (nonabuser) spouse, minor children, plus parent or siblings of child victim • Can apply for permanent residence after 3 years • CalWORKs, Medi-Cal eligibility • Deportation process terminated

U VISA QUALIFICATIONS:Victim of Certain Criminal Activity A 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 attempt, conspiracy, or solicitation to commit any above-listed crime, or similar activity

Applicant is/was “Helpful” - Applicant hasinformation and • Is OR was OR is likely to be helpful to the • Investigation OR prosecution of crime

Applicant Suffered“Substantial Abuse” USCIS will analyze: • 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 Certification • Law Enforcement agency must certify that applicant has been or is being helpful in investigation or prosecution of the criminal activity. • Each LEA must designate certifying agent • “Agency” includes police, sheriff, prosecutor, other administrative agency with capacity to investigate criminal activity, including CPS, EEOC, DOL

Applicant is Admissible • No immigration or criminal problems or threat to public health or safety UNLESS • Applicant can prove that it is in public interest to get U visa

U Visa Application • I-918 Form for principal applicant. No fee for I-918 • I-918 Supplement B must be completed and signed by Law Enforcement Agency. Certifying Agent specifically designated by the Agency Head. • Declaration of applicant • Evidence of “helpfulness” • Evidence of substantial abuse • Application for waiver of grounds of inadmissibility. • Documentation depends on seriousness of violation • I-918 Supplement A must be filed for each derivative beneficiary • Must qualify as a derivative at time of filing

VAWA Cancellation of Removal Grant by Immigration Judge Who is Eligible: Abused Spouse of U.S. Citizen or Permanent Resident • Includes “spouse” definition from VAWA Self Petition Process • Includes parent of abused child who is not spouse of abuser (broader than VAWA self petition) • Abused “sons and daughters”. • Includes “child” definition from VAWA Self Petition Process • Includes “sons and daughters” over 21 • No “derivative beneficiary” What Applicant Must Show • Has been battered or suffered extreme cruelty • Has been physically present in U.S. for 3 years before applying • Extreme Hardship to immigrant herself, or her child or parent if she were removed • Has been a person of Good Moral Character for 3 years • Is not inadmissible for • Crimes • Marriage Fraud • Security Process: Application can only be filed in Removal Proceedings before an Immigration Judge. • If eligible to Self Petition, file petition with CIS VSC • If not eligible to Self Petition, file application with court • Other relief possible, including adjustment of status

BATTERED SPOUSE EXCEPTION TO JOINT PETITION REQUIREMENT • Applies to “conditional permanent residents” who gained legal residence through a marriage to a U.S. citizen that occurred less than two years earlier. • Condition must be removed by petition jointly filed by both spouses • Joint Filing requirement may be waived if: • U.S. citizen subjects conditional resident to battery or extreme cruelty • Failure to remove condition (that is, termination of status) would result in extreme hardship to conditional resident • Couple divorces, but conditional resident can prove marriage was entered into in good faith • Waiver may be filed at any time • Showing of good faith marriage and abuse very similar to VAWA self petition.

GENDER-RELATED ASYLUM for ABUSE OUTSIDE THE U.S. • Well founded fear of persecution in home country on account of race, religion, social group, ethnicity, political opinion (or imputed political opinion). • Domestic or gender violence is not a specific ground for asylum • Must argue case within one of specifics grounds (e.g. social group) • Must not have had option for safety elsewhere before coming to U.S. • Home government must have been perpetrator, or been unable or unwilling to protect • Generally must apply within one year of entry to U.S. or dramatic change in conditions

SPECIAL IMMIGRANT JUVENILE STATUS • Eligible Child under 21 and unmarried • Under jurisdiction of juvenile court with declaration that child is dependent on court of legally committed to state department or agency. • Child must remain under jurisdiction until SIJS process is complete • Court Order that: • Child cannot be reunified with parent because of abuse, neglect, or abandonment AND • Not in child’s best interest to be returned to home country

IMMIGRANTS AND PUBLIC BENEFITS • Is someone with this immigration status eligible for the relief? • Will receiving the benefit cause problems with the “public charge” ground of inadmissibility? • “Totality of Circumstances” Standard: is person likely to be primarily dependent on public benefits to maintain the basic needs of her household

Public Charge:Relevant Questions • Is the person planning to apply for permanent resident status soon? • If so, will circumstances have changed so that she will no longer need public benefits at the time of her interview?

What Counts in “Totality of Circumstances” • The US citizen or permanent resident who filed a family petition for the immigrant must file a binding Affidavit of Support (I-864) which obligates him/her to repay any public benefits received by the immigrant. This I-864 is counted as a significant part of the “totality of circumstances” test. • Non-cash benefits (like Medi-Cal) don’t count in this analysis. (see “INS” explanation of exempted benefits) • Benefits received by a US citizen child are not benefits received by the parent for public charge purposes (unless the family depends primarily on those benefits to maintain basic needs of the household).

Victims of Trafficking and other Serious Crimes in CA (SB 1569) • If they meet other requirements for the benefit, U Visa Applicantscan get: • Full-Scope Medi-Cal • State Food Stamps • CalWORKs job development, day care and cash benefits • USCIS says: “receipt of public benefits will not adversely impact a U Nonimmigrant or U-based Adjustment of Status application” • If otherwise ineligible for CalWORKs, may qualify for Refugee Cash Assistance • 8 months of cash benefits

Social Security Numbers • SB 1569 applicants/participants are not required to provide SSN • Do not refer to SSA • Do not deny aid due to lack of SSN • Benefits Officials Must assist • battered noncitizens (including VAWA) and • ORR-certified trafficking victims without SSN to apply for non-work SSN

Immigration Relief for Battered Immigrants