representing immigrant survivors of domestic violence and sexual assault l.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
Representing Immigrant Survivors of Domestic Violence and Sexual Assault PowerPoint Presentation
Download Presentation
Representing Immigrant Survivors of Domestic Violence and Sexual Assault

Loading in 2 Seconds...

play fullscreen
1 / 73

Representing Immigrant Survivors of Domestic Violence and Sexual Assault - PowerPoint PPT Presentation


  • 287 Views
  • Uploaded on

Representing Immigrant Survivors of Domestic Violence and Sexual Assault . VAWA & U Visas. August 14, 2009 Winston & Strawn LLP. www.immigrantjustice.org. About the National Immigrant Justice Center.

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'Representing Immigrant Survivors of Domestic Violence and Sexual Assault' - ostinmannual


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
representing immigrant survivors of domestic violence and sexual assault

Representing Immigrant Survivors of Domestic Violence and Sexual Assault

VAWA & U Visas

August 14, 2009

Winston & Strawn LLP

www.immigrantjustice.org

about the national immigrant justice center
About the National Immigrant Justice Center
  • The National Immigrant Justice Center (NIJC), a program of Heartland Alliance for Human Needs & Human Rights, promotes human rights and access to justice for immigrants, refugees, and asylum seekers through legal services, policy reform, impact litigation, and public education. Throughout its 30-year history, NIJC has been unique in blending individual client advocacy with broad-based systemic change.
  • NIJC serves more than 8,000 immigrants annually with the support of a professional legal staff and a network of over 1,000 pro bono attorneys.
  • NIJC maintains a 90 percent success rate in representing asylum seekers.
  • Since 2004, NIJC has litigated over 100 due process and asylum cases in the federal courts in conjunction with pro bono attorneys.
  • In FY 2007, NIJC successfully represented 24 individuals seeking protection in the United States before the U.S. Seventh Circuit Court of Appeals.
nijc s pro bono projects
NIJC’s Pro Bono Projects
  • What we do:
  • Case screening, assessment and acceptance
  • Placement with pro bono attorneys
  • Case management
  • Attorney support and technical assistance
pro bono opportunities with nijc
Pro Bono Opportunities with NIJC
  • Asylum
  • Detention
  • SIJS
  • VAWA & U-visas
  • Citizenship
  • I-730s & Asylee Adjustments
pro bono case assignment process
Pro Bono Case Assignment Process
  • List of available cases, with brief description, sent out to our pro bono attorney network bi-monthly
  • Conflicts Check
  • Case Assignment
    • NIJC remains “of counsel”
    • NIJC provides on-going support and assistance
  • Pro bono attorney will set-up initial interview with client within 1-2 weeks of case assignment
  • Applications should be filed as soon as possible (8-12 weeks recommended preparation and filing time)
  • Pro bono attorney remains attorney of record throughout duration of case
    • If pro bono attorney cannot continue with case, must make efforts to reassign internally and notify NIJC
interviewing your client
Interviewing Your Client
  • Find volunteer interpreter, if necessary
  • Safety check
  • Stress confidentiality
  • Refer to counseling or other services, as needed
  • Sign Release of Information and Retainer Agreement
  • Build a relationship of trust
    • Physical and emotional space
    • Avoid legalese
  • Learn about client's family, and immigration and criminal history (i.e. prior marriages, children or other family members living in U.S., criminal history, entries/exits in the U.S., prior immigration applications filed or problems with immigration)
  • Explain domestic violence using P&C wheel
  • Explain application process, fees/fee waivers and processing times
    • Review list of documents that will be needed for filing
the cycle of abuse
The Cycle of Abuse

The Honeymoon

Denial

Tension-

Building

Explosion

domestic violence tactics used by abusers to exert power and control

Emotional Abuse

Isolation

Economic Abuse

Power

And

Control

Intimidation

Sexual Abuse

Using Citizenship or

Residency Privilege

Physical Abuse

Threats

Domestic Violence Tactics Used byAbusers to Exert Power and Control
how abusers can misuse immigration privilege
How Abusers Can Misuse Immigration Privilege
  • Failing to file immigration papers on behalf of family member
  • Filing an I-130 petition (or other application) and later withdrawing it
  • Threatening to contact immigration officials
  • Contacting immigration officials for the purpose of reporting family members
  • Providing immigration officials with false information about family members
cultural barriers facing immigrants
Cultural Barriers Facing Immigrants
  • Language limitations
  • Extreme Isolation
  • Cultural ideas of family shame and honor
  • Close-knit communities
  • Role of religion
basic overview of family based immigration
Basic Overview of Family Based Immigration
  • Obtaining lawful permanent residence through family members
  • Grounds of inadmissibility
  • Waivers of grounds of inadmissibility
  • Family based immigration and domestic violence
laws and reference sources
Laws and Reference Sources
  • Immigration & Nationality Act (Title 8 of U.S. Code)
  • Title 8 of Code of Federal Regulations
  • Agency Policy Memoranda and Guidance
  • Board of Immigration Appeals (BIA) and Federal Circuit Case Law
  • Kurzban’s Immigration Law Sourcebook
  • USCIS website (www.uscis.gov)
  • American Immigration Lawyers Association (AILA)
  • ILRC
  • NLG/NIP
  • Asista
terms and acronyms
DV: domestic violence

LPR: lawful permanent resident “green card”

USC: US citizen

EWI: entry without inspection

VAWA: Violence Against Women Act

U Visa: visa for victims of certain crimes

AOS: Adjustment of Status - the process applying for LPR (in the U.S)

Consular Processing: applying for LPR (outside of the U.S.)

USCIS & DHS. U.S. Citizenship & Immigration Services was created as part of the Department of Homeland Security in 2002 (former INS)

RFE: Request for Evidence

PRD: Priority Date

EOIR: Executive Office for Immigration Review

IJ: Immigration Judge

ICE: Immigration and Customs Enforcement

CBP: Customs & Border Protection

EAD: Employment Authorization Document (“work permit”)

DA: Deferred Action

Terms and Acronyms
family preference system v immediate relatives
Family Preference System v. Immediate Relatives
  • LPRs can petition for certain relatives. Due to limits placed on the number of visas available to such beneficiaries, persons who are not immediate relatives must wait to apply for LPR status. The waiting time depends on the status of the petitioner and the type of relationship between the petitioner and beneficiary.
  • Department of State Visa Bulletin: www.state.gov/travel
obtaining lawful permanent residency through family based petition
Obtaining Lawful Permanent Residency through Family-Based Petition
  • U.S. citizens can petition for:
    • Parents = immediate relative
    • Spouses = immediate relative
    • Children (under 21/unmarried) = immediate relative
    • Adult, married children
    • Siblings
  • LPRs can petition for:
    • Spouses
    • Unmarried children
applying for lawful permanent residence
Applying for Lawful Permanent Residence
  • Two-Step Process
  • Step 1: filing a visa petition form (Form I-130)
  • Step 2: applying for an adjustment of status (Form I-485)
step 1 filing an i 130 petition for alien relative priority date
STEP 1: Filing an I-130 Petition for Alien Relative (Priority Date)
  • If the beneficiary is an immediate relative can usually take both steps together
  • When the I-130 is approved, a PRD is set. The PRD is usually the same as the date on which I-130 was received by USCIS. The PRD establishes the date on which an applicant can take the second step and apply to adjust to LPR status.
step 2 filing form i 485 application for lawful permanent residence
STEP 2: Filing Form I-485 Application for Lawful Permanent Residence
  • Once an individual has an approved visa petition or current priority date, she can apply to adjust her status in the United States
  • If a person cannot adjust status to lawful permanent residence in the United States, she may consular process in her home country
ina 212 a and grounds of inadmissibility
INA § 212(a) and Grounds of Inadmissibility
  • Health-related grounds
  • Criminal and related grounds
  • Security and related grounds
  • Public charge
  • Illegal entrants and immigration violators
  • False claim to U.S. citizenship
  • Persons previously removed
  • Aliens unlawfully present
waivers for grounds of inadmissibility
Waivers for Grounds of Inadmissibility
  • There are waivers available for several grounds of inadmissibility
  • Under VAWA, applicants can obtain special waivers for certain (but NOT ALL) grounds of inadmissibility
  • Under U Visa, applicants can obtain waivers for almost all grounds of inadmissibility
the violence against women act vawa
The Violence Against Women Act (VAWA)
  • The Violence Against Women Act was signed into law by President Clinton in 1994 as part of a larger crime bill to address domestic violence, sexual assault and stalking
  • VAWA was amended in 2000 and 2005. VAWA includes special provisions for battered immigrants that allows them to gain legal immigration status without relying on their abusive US citizen or LPR spouses or parents

INA § 204; 8 CFR 204

vawa process
VAWA Process
  • Affirmatively –self-petition before USCIS
  • Defensively – adjustment of status based on VAWA or cancellation of removal before Immigration Court
who is eligible to self petition under vawa
Who Is Eligible to Self-PetitionUnder VAWA?
  • Abused spouses of U.S. citizens and LPRs;
  • Non-abused spouses of US citizens or LPRs whose children are abused (need not be children of abuser);
  • Abused children (must meet the definition of a “child” under INA § 101(b)) of USCs or LPRs;
  • Abused children of USCs may file until age 25 if central reason for delay is abuse (VAWA 2005);
  • Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith. See INA § 204(a);
  • Abused parents of USC children (VAWA 2005)
special vawa provisions
Special VAWA Provisions
  • An immigrant is still eligible to self-petition within two years following the occurrence of the following events:
    • Death of USC (Not LPR)
    • Divorce
    • Deportation where there is a connection to the domestic violence
self petitioners must prove
Self-Petitioners Must Prove
  • Status of Abuser (USC or LPR)
  • Marriage Requirements
    • Legal Marriage
    • Good Faith Marriage
  • Battery or extreme cruelty
  • Residency Requirements
    • Self-petitioner lived with abuser
    • Self-petitioner’s current residence
  • Good Moral Character (3 years prior)

See INA § 204

standard of proof
Standard of Proof
  • “Any credible evidence” standard applied to VAWA self-petitions
  • 8 CFR § 204.2(c)(2)(i)
client affidavit
Client Affidavit
  • Ok for client to write in her own in native language and translate
  • Can have client prepare with counselor or other advocate
  • Take what client wrote and organize in chronological order
  • Fill in important details
  • Must be comprehensive and address all eligibility requirements
abuser s immigration status
Abuser’s Immigration Status
  • U.S. birth certificate
  • U.S. passport
  • Resident Alien Card
  • Application for Marriage License
  • Child’s birth certificate
  • Request to search service records (if abuser legalized his or her status with USCIS)
good faith marriage
Good Faith Marriage
  • Self-petitioner cannot have entered into a marriage for the primary purpose of circumventing the immigration laws. 8 CFR § 204.2(c)(1)(ix).
  • KEY FACTOR is whether she intended to establish a life with spouse at the time of marriage.
battery or extreme cruelty
Battery or Extreme Cruelty
  • Is defined broadly to include “being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.”
  • 8 CFR § 204.2(c)(2)(vi).
  • See Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) for thorough legal analysis of what constitutes “extreme cruelty.”
good moral character
Good Moral Character
  • Must establish good moral character for the three years preceding the filing of the self-petition
  • See 8 CFR 204.2(c)(1)(vii) and (c)(2)(v).
  • See INA § 101(f)
confidentiality provisions
Confidentiality Provisions
  • Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 prohibits all DHS and DOJ employees from providing information about a self-petitioner to 3rd parties
  • Section 384 similarly prohibits DHS from making any decisions about removability based solely on information provided by the abuser

8 CFR § 1367

filing fees
Filing Fees
  • Form I-360 ($0)
  • Form I-765 without adjustment ($340)
  • Form I-485 ($1010 14 years or $930 under 14 years or if filing with one adult/parent, then $600)
  • All fees should be in form of money order and payable to “Department of Homeland Security”
  • Fee waiver request should be in form of notarized client affidavit demonstrating “inability to pay” and include evidence of income/expenses
filing procedures for vawa self petitioners
Filing Procedures for VAWA Self-Petitioners

File necessary applications and supporting evidence:

  • Detailed, argumentative cover letter & index of documents
  • G-28, Notice of Representation
  • Form I-360 (self-petition) with evidence supporting all requirements
  • Form I-765 (employment authorization – if eligible to adjust, otherwise, must wait until VAWA is approved)
    • Two passport photos if filing I-765
  • Form I-485 (adjustment application)
    • Two passport photos if filing I-485
    • G-325A, Biographic Information
    • I-693, Medical Exam
    • I-864W, Affidavit of Support Exemption
    • Fee Waiver Request, if applicable
filing tips
Filing Tips …
  • *Derivatives*
  • All foreign documents must be translated. Translator must certify that he/she is competent in both languages to render an accurate translation
  • Two-hole punch at top of application packet and bind with metal prong fasteners or binder clip
    • DO NOT use spiral binding
  • Place each application (I-360, I-485 & I-765) into a separate envelope
  • Write in large red letters 1) the type of application, 2) VAWA, and 3) “with fee waiver request” (if applicable)
  • Place all envelopes into one mailing envelope
  • Send via certified mail or overnight delivery
where to file
Where to File
  • Self-petition and all accompanying applications are sent to:

USCIS

Vermont Service Center

Attn: VAWA Unit

75 Lower Welden Street

St. Albans, VT 05479-0001

after filing the self petition
After Filing the Self-Petition
  • You will receive Form I-797, Notice of Action, indicating Receipt of your filing within about 2 weeks.
  • You will receive Form I-797, Notice of Action, indicating establishment of a prima facie case.
  • You will not hear anything else for approximately 10 months.
prima facie notice

U.S. Department of Justice

Bureau of Citizenship and Immigration Services

RECEIPT NUMBER

EAC-99-000-99999

NOTICE DATE

February 21, 1999

PAGE

1 of 1

CASE TYPE

I-360 Petition for Amerasian, Widow(er), or Special Immigrant

RECEIPT DATE

March 2, 1998

Petitioner

Ochoa, Graciela

FILE NUMBER

A76 000 999

Ochoa, Graciela

Attn: Sherizaan Minwalla ESQ

Midwest Immigrant and Human Rights Center

208 S. LaSalle, Suite 1818

Self-Petitioning Spouse of U.S.C. or L.P.R.

ESTABLISHMENT OF PRIMA FACE CASE

Prima Facie Notice
  • It is NOT an approval notice
  • It may be used to obtain public benefits
outcomes of self petition
Outcomes of Self-Petition
  • Request for Evidence (RFE)
  • Approval
  • Notice of Intent to Deny (NOID)
  • Denial
i 360 approval and deferred action
I-360 Approval and Deferred Action
  • Deferred Action initially valid for 15 months and renewable in 12-month increments
  • Low priority for removal from the United States
  • Legal basis for employment authorization
  • If I-485 was concurrently filed with I-360, application will be transferred to local district office for scheduling of interview and adjudication
employment authorization
Employment Authorization
  • You can file for employment authorization once the VAWA self-petition has been approved; or
  • You can file employment authorization if filing an I-485 with the VAWA self-petition
  • Employment Authorization may be renewed annually, provided there is still a legal basis for eligibility

See 8 C.F.R. 274a.12

adjustment of status interview
Adjustment of Status Interview
  • Purpose – To adjudicate I-485 and determine admissibility
    • Officer does not have authority to re-adjudicate I-360 or question validity of decision
  • What to bring
    • Originals with translations (birth certificates, marriage certificates)
    • Passport of I-94 (only if client has these)
    • Govt. issued form of photo identification
    • All prior work permits
    • Translator (non-relative, over age 18, with photo ID)
sample vawa case
Sample VAWA Case

Maria is a 32 year old Mexican citizen who entered the United States without inspection in 1997. She has not left the U.S. since entering at that time. In 2002, Maria married Alberto who is an LPR, and together they have two U.S. citizen children. Maria also has another child from a previous relationship who was born in Mexico. Maria’s husband was physically and verbally abusive throughout their marriage. Alberto always threatened her with calling immigration and never filed any papers for her. In December of 2008, Maria obtained an order of protection and moved into a domestic violence shelter. Maria is now seeking a divorce.

history of u visa
History of U Visa
  • The U Visa for non-citizen victims of crime was created in October 2000 as part of the Victims of Trafficking and Violence Prevention Act “VTVPA” See INA § 101(a)(15)(U)
  • Alien victims may not have legal status and, therefore may be reluctant to help in the investigation or prosecution of criminal activity for fear of removal from the United States.
  • 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.
  • Provides a mechanism to remain in the U.S. to assist in an investigation/prosecution of those who have perpetrated crimes against them.
legal basis
Legal Basis
  • Victims of Trafficking and Violence Protection Act, Pub. L. 106-386, October 28, 2000
  • INA § 101(a)(15)(U)
  • 8 CFR § 214.14
  • Trafficking Victims Protection Reauthorization Act, Pub. L. 108-193
  • Violence Against Women and Department of Justice Reauthorization Act, Pub. L. 109-162, January 5, 2006
u interim relief
U Interim Relief
  • Regulations implementing the U nonimmigrant status provisions of the INA were not published until September 2007.
  • Before the regulations were published, USCIS established a program to provide interim relief to those who appeared to be eligible for U nonimmigrant status; this was in the form of deferred action and employment authorization.
  • Between October 28, 2000 (date of enactment for VTVPA) and October 17, 2007 (effective date of U visa regulations), USCIS granted 10,846 individuals interim relief.
benefits limitations
Benefits & Limitations
  • Can apply for adjustment after 3 years in U nonimmigrant status
  • Annual cap of 10,000 per fiscal year
  • Can apply for family members. Derivative Relationship must exist at the time I-918 filed, at time adjudicated, and at time of admission. *Exception: Qualifying family members who were granted interim relief may use their age on the date of the U interim relief filing to prove eligibility http://www.uscis.gov/files/pressrelease/AFMUpdate_Ch39.pdf
  • Victim prohibited from petitioning for derivative U status for family member who committed battery, extreme cruelty or trafficking against victim which established eligibility for U status
u visa requirements
U Visa Requirements
  • Immigrant suffered substantial mental or physical abuse as a result of having been a victim of certain criminal activity; and
  • Immigrant (or in the case of a child under 16, the parent or guardian) possesses information concerning that criminal activity; and
  • The criminal activity violated U.S. law or occurred in the U.S.; and
  • The immigrant has been helpful, is being helpful, or is likely to be helpful to a Federal, State or local authority investigating or prosecuting the crime
  • INA § 101(a)(15)(U); 8 CFR § 214.14

*Any credible evidence standard applies

qualifying criminal activity
Involves one or more of the following or any

similar activity in violation of Federal, State,

or local criminal law:

Rape

Torture

Trafficking

Incest

Domestic Violence

Sexual Assault

Abusive Sexual Contact

Prostitution

Sexual Exploitation

Female Genital Mutilation

Being Held Hostage

Peonage

Involuntary Servitude

Slave Trade

Kidnapping

Abduction

Unlawful Criminal Restraint

False Imprisonment

Blackmail

Extortion

Manslaughter

Murder

Felonious Assault

Witness Tampering

Obstruction of Justice

Perjury

Includes attempts, conspiracy, or solicitation to commit any of the above.

Qualifying Criminal Activity
u visa certification form i 918 supplement b
U Visa Certification(Form I-918, Supplement B)
  • Certification required
  • Must be completed and signed by the head of the certifying agency or any person specifically designated by the head of the agency to sign such certifications, or a Federal, State, or local judge
  • Certification must have been signed within 6 months immediately preceding the submission of the petition package
  • Will not be conclusive evidence of any of the eligibility requirements.
slide51
Victim who has suffered substantial physical or mental abuse as a result of qualifying criminal activity
  • Not a list of specific statutory violations; list of general categories of criminal activity
  • May occur during the commission of non-qualifying criminal activity (ex. Embezzlement investigation)
  • Regulation states that any “similar activity” may be a qualifying crime. Applies to crimes where the nature and elements are substantially similar to the statutory list(e.x., sexual exploitation and video voyeurism)
  • Applicant would need to provide evidence demonstrating how the criminal activity of which he/she is a victim is substantially similar to one of the listed crimes
definition of victim
Definition of Victim
  • Direct Victim
  • Generally defined as one who is directly and proximately harmed by qualifying criminal activity
  • Can include bystanders
  • Those who witness violent crime and suffer unusually direct injury. (Ex. Pregnant woman who witnesses violent crime)

Indirect Victim

  • Criminal activity includes murder & manslaughter, obstruction, perjury, and witness tampering
  • Direct victims are deceased in murder and manslaughter crimes, or are incompetent or incapacitated
  • Obstruction, perjury and witness tampering are not crimes against a person
possession of information concerning the qualifying criminal activity
Possession of Information Concerning the Qualifying Criminal Activity
  • Must have knowledge of the details (specific facts) that would assist in the investigation or prosecution
  • If victim less is than 16 years or incompetent/incapacitated, a parent, guardian, or next friend may possess info
    • Look at age of victim on date qualifying criminal activity first occurred to determine whether exception triggered
    • “Next Friend”: person who appears in a lawsuit to act for the benefit of an alien who is under 16 or incompetent or incapacitated; not a party to legal proceeding and not appointed guardian; cannot qualify for U visa on own simply on this basis
helpfulness in investigation or prosecution of qualifying criminal activity
Helpfulness in Investigation or Prosecution of Qualifying Criminal Activity
  • Helpful means: assisting law enforcement in the investigation or prosecution of the qualifying criminal activity of which he/she is a victim
  • Those who refuse to assist after reporting the crime are excluded from eligibility
  • Requires an ongoing responsibility on the part of the petitioner to be helpful, assuming there is an ongoing need for the petitioner’s assistance
  • Exception for those under 16 or incompetent/incapacitated; same as for possession of information requirement
criminal activity that violated u s law or occurred in the united states
Criminal Activity that Violated U.S. Law or Occurred in the United States
  • Violation of U.S. Laws – distinction is not based on which laws are violated (foreign or U.S.) but rather where the violation occurred; if the violation of U.S. laws occurred outside the U.S. and violates a federal statute that specifically provides for extraterritorial jurisdiction, it may be deemed to have “violated U.S. law”
    • Generally requires a nexus between criminal activity and U.S. interests
    • Example is sex tourism statute
    • Prosecution does not need to occur as may be difficult to extradite defendant
u visa derivatives
U Visa Derivatives
  • If the victim is under 21 (at the time of filing):
    • Parents
    • Siblings under 18 at the time the application is filed
  • If the victim is over 21 (at the time of filing):
    • Spouses
    • Unmarried children

*Exception for those with U interim relief

inadmissibility
Inadmissibility
  • An inadmissible principal or derivative petitioner is not eligible for U status unless waiver (Form I-192) is granted
  • INA 212(d)(14) and INA § 212(d)(3) authorize waiver of all grounds found under INA § 212(a) (except 212(a)(3)(E) – participants in Nazi persecutions, genocide, acts of torture, or extrajudicial killing) if it is in the public or national interest
  • Waiver request is made on Form I-192 which costs $545.00. Applicant may request waiver of this fee if can demonstrate “inability to pay.” See 8 CFR § 103.5(c)(5).
applicants in removal proceedings
Applicants in Removal Proceedings
  • Alien in removal proceedings may seek agreement of ICE to file a joint motion to terminate proceedings w/o prejudice while petition being adjudicated; solely in ICE’s discretion.
  • Applicants with prior orders of removal:
    • Administrative orders will be canceled by operation of law upon U visa approval
    • IJ orders will need to be reopened and terminated upon U visa approval

See 8 CFR § 214.14(c)(5)(i)

gathering information
Gathering Information

Client Intake

  • Is client a victim of qualifying criminal activity?
  • Did client suffer substantial mental or physical abuse?
  • Did client cooperate with law enforcement in investigation or prosecution?
  • Get client’s complete immigration history (A#, prior deportation, all entries, exits, etc.)
  • Get client’s complete criminal history
gathering information60
Gathering Information
  • Intake, continued
    • Does client have any qualifying derivatives? i.e.children/spouse/parents (here or in home country)
      • Get data on all derivatives
      • Dates of birth
      • Countries of birth
      • Names
      • Immigration Status
      • Where are they living
      • Criminal history
    • Make no assumptions – ask questions!
documents needed
Documents Needed
  • Identity of applicant (and qualifying derivatives: children, non-abuser spouse, parent)
    • Passports and visas/I-94 cards
    • Birth certificates
    • Waiver of passport requirement available on Form I-192 (if applicant in the U.S.); if outside of the U.S., must file waiver request on Form I-193.
    • Any documentation from USCIS
  • Proof of physical/mental abuse
    • Applicant’s affidavit
    • Photos
    • Police reports
    • Protective/restraining orders
    • Medical records/psychological evaluation
    • Letter from counselor
    • Intake records from shelter
    • CPS reports
    • Affidavits from secondary sources
documents the affidavit
Documents: The Affidavit
  • Should be in applicant’s own words
  • Must address key issues
    • Applicant’s identity and derivatives
    • Substantial physical/mental abuse
    • Knowledge and Information about the crime
    • Cooperation/helpfulness with law enforcement/prosecution
    • Include supplemental answers for questions on Form I-918 and provide information to support request for waiver of inadmissibility (including hardship/good moral character factors)
  • Needs to be translated to English
  • Must be signed and notarized
filling out form i 192
Filling Out Form I-192
  • Question 7 – N/A
  • Question 8 – N/A
  • Question 9 – N/A
  • Question 10 – Permanent/Indefinite
  • Question 11 –
    • If applicant in US: I am already in the United States and I am filing this I-192 in connection with my Petition for U Nonimmigrant Status on Form I-918 to work and live in the US as permitted by the U visa and eventually adjust status to that of legal permanent resident.
    • If applicant out of US: I am filing this I-192 in connection with my Petition for U Nonimmigrant Status on Form I-918 to work and live in the US as permitted by the U visa and eventually adjust status to that of legal permanent resident.
  • Specify the activity that makes applicant inadmissible: “I entered without inspection,” “I entered without inspection after accruing one year of unlawful presence,” “I entered without inspection and in 1998 I was convicted of…”
  • Practice Tip: Cross off “212(d)(3)(A)(ii)” and write in “212(d)(14)” INA section for U visa waiver of inadmissibility
  • Include in U visa affidavit hardship factors and good moral character to show that it is in the “public or national interest” that applicant be granted a waiver for ALL inadmissibility factors triggered
putting the application together
Putting the Application Together
  • Detailed, argumentative cover letter and index of documents
  • G-28, Representation form
  • Form I-918, U visa application
  • Form I-192, Waiver of inadmissibility ($545 or fee waiver request), if necessary
  • Signed I-918, Supplement B (certification form)
  • Evidence that supports requirements
    • If I-192 waiver of inadmissibility is being included, will need to include evidence that supports “national or public interest”
  • Signed and notarized affidavit from victim
  • $80 Biometric fee (or fee waiver)
  • EAD (I-765) does not need to be requested for principal applicants, as included in I-918
  • *Form I-918A for Derivatives (must file separate I-765, Employment Authorization app.)
practical matters
Where to File:

U.S. Citizenship & Immigration Services

Vermont Service Center

Attn: U Visa Unit

75 Lower Welden Street

St. Albans, VT 05479-0001

Application Packet Should Be:

Two-hole punched at top and secured with metal-pronged fastener

Sent via certified mail or overnight delivery

Fees

Must be in form of money order and payable to “Department of Homeland Security”

Practical Matters

Practical Matters

what happens next
What Happens Next?
  • You should receive a receipt notice for each application filed from USCIS within approximately two months
  • Client and derivatives in the U.S. will receive a biometrics appointment
  • For clients with derivatives out of U.S. → Client will receive RFE with FBI print card to send to derivative. Derivative can get prints taken at U.S. embassy and embassy officials will process the prints and send to VSC.
what happens next cont d
What Happens Next? (Cont’d)
  • USCIS Decision
    • Processing times have not been published
    • As of Jan. 2009 USCIS Ombudsman report, only 2 full-time adjudicators processing over 12,000 applications and only approx. 80 applications have been adjudicated (approx. 10% denied or rejected)
    • U visa petitions are adjudicated based solely on the documentation provided
    • No interview
    • USCIS may request additional evidence
      • Even if they request evidence already submitted – resubmit it, along with additional evidence to prove the point in question
    • When U visa is approved, applicant will receive approval notice, work permit for four years
      • Travel Issues*
    • Eligible for adjustment with three years of U status
u adjustment of status eligibility requirements
U Adjustment of StatusEligibility Requirements
  • Admitted to the United States in U status
  • Continues to hold U status or accrued at least 4 years in U interim status and files for adjustment within 120 days of the approval of the I-918 (can apply prior to approval)
  • Continuous physical presence (CPP) for 3 years (no departures of more the 90 days at a time or 180 days in the aggregate) – exception if LEA certifies necessity
  • Not inadmissible under 212(a)(3)(E) (not a Nazi, perpetrator of genocide, torturer)
  • Has not unreasonably refused to provide assistance to LEA responsible for investigation/prosecution of the qualifying crime, based on affirmative evidence
  • See INA § 245(m); 8 CFR § 245.24
sample u visa case
Sample U Visa Case

Ana is an 18 year old woman from Guatemala who

entered the U.S. without inspection in 2002. In 2008, Ana

was a victim of repeated instances of domestic violence at

the hands of her undocumented boyfriend, Manuel. Ana

called the police on three occasions and obtained an

emergency civil order of protection which expired in

December of 2008. Ana has not pressed charges against

her abuser. Ana lives with her parents and her 14 year old

brother, Juan.

other resources
Other Resources
  • Immigration Court: (800) 898-7180
  • Vermont Service Center (for representatives only): (802) 527-4888
  • Chicago Domestic Violence Helpline: (877) 863-6338
  • National Domestic Violence Helpline: (800) 799-7233
nijc staff contacts
NIJC Staff Contacts
  • Heather Benno, Staff Attorney (for VAWA cases)
  • hbenno@heartlandalliance.org or 312-660-1615
  • Melissa Untereker, Supervising Attorney (for U visa cases)
  • muntereker@heartlandalliance.org or 312-660-1616
  • Megan Baumann, Pro Bono Coordinator (for non-legal
  • questions or for case assignment requests)
  • mbaumann@heartlandalliace.org or 312-660-1307
contact nijc
Contact NIJC
  • National Immigrant Justice Center
  • 208 South La Salle Street, Suite 1818
  • Chicago, Illinois 60604
  • (312) 660-1370
  • www.immigrantjustice.org