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ADRIANA GUZMAN-ROUSELLE IMMIGRATION ATTORNEY., P.A. 3858 MANATEE AVENUE EAST BRADENTON FLORIDA 34208 Tel: 941 8704971 March 2, 2010. AGR. Victims of Trafficking and Violence Protection Act of 2000 Violence Against Women Act, T Visa, U Visa. PL 106-386, 114 Stat. 1464 (October 28, 2000).

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adriana guzman rouselle immigration attorney p a
ADRIANA GUZMAN-ROUSELLE IMMIGRATION ATTORNEY., P.A

3858 MANATEE AVENUE EAST

BRADENTON FLORIDA 34208

Tel: 941 8704971

March 2, 2010

AGR

victims of trafficking and violence protection act of 2000 violence against women act t visa u visa

Victims of Trafficking and Violence Protection Act of 2000Violence Against Women Act, T Visa, U Visa

PL 106-386, 114 Stat. 1464 (October 28, 2000)

slide3
Established T Visa for victims of severe form of trafficking in persons ( use of force fraud of coercion for sex trafficking and or involuntary servitude, debt bondage, or slavery); (Created grounds of inadmissibility for persons involved in Human Trafficking)
  • Established U Visa for persons who have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;
  • Battered spouse/ child exceptions. Amends INA §245(a)&(c) making all approved self petitioners eligible to adjust.
slide4
“Inspection and admission or parole” requirement does not apply to an alien who is seeking adjustment of status as an approved VAWA self-petitioner.
  • Battered spouse/child provision amended to allow spouses who were not lawfully married because of their abuser’s bigamy or who are divorced to self petition in certain circumstances.
  • Remarriage of a battered spouse does not invalidate an approved petition. The self-petitioner's remarriage, however, will be a basis for the denial of a pending self-petition.
slide6
Victims can bring civil action against perpetrator;
  • Raised age of cooperation with law enforcement authorities for T visa from 15 to 18
  • Added unmarried sibling under 18 of the victim as persons who may also obtain T status is there is extreme hardship.
  • Siblings and children under 21 do not age-out if application is filed before they are 21.
slide7
Permitted the use of statements of state and local law enforcement regarding the applicant’s cooperation for T visa purposes.
  • Exempted public charge as a ground of inadmissibility.
  • Added as aggravated felons the perpetrators of slavery, involuntary servitude, and trafficking in persons;
violence against women and department of justice reauthorization act of 2005
Violence Against Women and Department of Justice Reauthorization Act of 2005

PL. 109-162, 119 Stat. 2960

January, 5, 2006

slide9
Applied VAWA confidentiality provisions to T visa applicants;
  • Limited T and U status to 4 years unless law enforcement officials certify they need her to assist an investigation or prosecution.
  • Amended U visa provisions to facilitate the entrance of the family of a U visa holder without a showing of extreme hardship or necessity for an investigation.
  • Allows children of U.S. citizens subject to abuse to petition until the age of 25 if they can demonstrate that the abuse was at least one central reason for the filing delay.
  • Defined VAWA Self-Petitioner under INA §101(a) (51), as an alien or child of an alien who qualifies for relief.
slide10
Exempt VAWA self-petitioners from penalties for failure to voluntarily depart under INA §240(b)(d), the restrictions for relief shall not apply, for cancellation of removal, adjustment of status, and suspension for battered spouses and children if extreme cruelty or battery was at least one central reason for the alien’s overstaying.
  • Provided for employment authorization for VAWA self petitioners when the petition is approved
  • Allows self petitioning for Abused Parent. Must be the parent of a U.S.C. parent must be a person of good moral character, resides or has resided with USC, and has been battered or subject to extreme cruelty by USC child
slide11
VAWA

VIOLENCE AGAINST WOMEN ACT8 C.F.R. 204.2(c)(2)(i)

INA §204

definition
DEFINITION
  • VAWA Act was passed by congress in 1994
  • The spouses and children of United States citizens or lawful permanent residents (LPR) mayself-petition to obtain lawful permanent residency. The immigration provisions of VAWA allow certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge.
who can file for relief under vawa
WHO CAN FILE FOR RELIEF UNDER VAWA
  • Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.
  • Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.
slide14
Parent: You may self-petition if you are the parent of a U.S.C. a person of good moral character, resides or has resided with USC, and has been battered or subject to extreme cruelty by USC child.
  • Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent. For more information, including those who may not have been abused, may be included on your petition as derivative beneficiaries
ways to obtain relief under vawa
WAYS TO OBTAIN RELIEF UNDER VAWA

1) Self-petitioning;

2) Cancellation of Removal;

3) Removing conditional status before the 2 year period.

requirements under vawa
REQUIREMENTS UNDER VAWA
  • To be the spouse/child of a citizen or lawful permanent resident of the United States; may be filed if the marriage is still in place, if it was terminated by the abusive spouse’s death or if there was a divorce related to the abuse within the two years prior to filing.
  • Marriage was entered in good faith by the alien;
  • Applicant is residing in the United States;
  • Has resided in the United States with the citizen or lawful permanent resident spouse or parent, or child. The self-petitioner is not required to be living with the abuser when the petition is filed
slide17
Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States.
  • Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.
  • Is a person of good moral character, and
  • Is a person whose deportation would result in extreme hardship to himself, herself, or his or her child.
battery or extreme cruelty
BATTERY OR EXTREME CRUELTY
  • The phrase "was battered by or was the subject of extreme cruelty" includes, but is not limited to, 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. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence. The qualifying abuse must have been committed by the citizen or lawful permanent resident spouse, must have been perpetrated against the self-petitioner or the self-petitioner's child, and must have taken place during the self-petitioner's marriage to the abuser.
good moral character
GOOD MORAL CHARACTER
  • A self-petitioner will be found to lack good moral character if he or she is a person described in § 101(f) of the Act. A person who was subjected to abuse in the form of forced prostitution or who can establish that he or she was forced to engage in other behavior that could render the person excludable under § 212(a) of the Act would not be precluded from being found to be a person of good moral character, provided the person has not been convicted for the commission of the offense or offenses in a court of law.
slide20
A self-petitioner will also be found to lack good moral character, unless he or she establishes extenuating circumstances, if he or she willfully failed or refused to support dependents; or committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, although the acts do not require an automatic finding of lack of good moral character. A self-petitioner's claim of good moral character will be evaluated on a case-by-case basis, under INA§ 101(f) and the standards of the average citizen in the community. If the results of record checks conducted prior to the issuance of an immigrant visa or approval of an application for adjustment of status disclose that the self-petitioner is no longer a person of good moral character or that he or she has not been a person of good moral character in the past, a pending self-petition will be denied or the approval of a self-petition will be revoked.
extreme hardship
EXTREME HARDSHIP
  • The Service will consider all credible evidence of extreme hardship submitted with a self-petition, including evidence of hardship arising from circumstances surrounding the abuse. The extreme hardship claim will be evaluated on a case-by-case basis after a review of the evidence in the case. Self-petitioners are encouraged to cite and document all applicable factors, since there is no guarantee that a particular reason or reasons will result in a finding that deportation would cause extreme hardship. Hardship to persons other than the self-petitioner or the self-petitioner's child cannot be considered in determining whether a self-petitioning spouse's deportation would cause extreme hardship.
evidence
EVIDENCE
  • The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of the USCIS;
  • A self-petitioner must file evidence of citizenship of the USC or proof of the immigration status of the lawful permanent resident abuser.
  • Relationship: marital relationship with a marriage certificate issued by civil authorities, and proof of the termination of all prior marriages, if any, of both the self-petitioner and the abuser. or parenthood relationship by birth certificate;
  • Residence: documents showing that the self-petitioner and the abuser have resided together in the U.S., and showing that the self-petitioner is residing in the U.S. when the self-petition is filed.
  • Employment records, utility receipts, school records, hospital or medical records, birth certificates of children born in the United States, deeds, mortgages, rental records, insurance policies, affidavits or any other type of relevant credible evidence of residency may be submitted.
evidence of abuse
EVIDENCE OF ABUSE
  • May include, but is not limited to: reports and affidavits from police, judges, court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel.
  • Persons who have obtained an order of protection against the abuser or have taken other legal steps to end the abuse are strongly encouraged to submit copies of the relating legal documents.
  • Evidence that the abuse victim sought safe-haven in a battered women's shelter or similar refuge may be relevant, as may a combination of documents such as a photograph of the visibly injured self-petitioner supported by affidavits.
  • Other forms of credible relevant evidence will also be considered. Documentary proof of non-qualifying abuse may only be used to establish a pattern of abuse and violence and to support a claim that qualifying abuse also occurred.
cancellation of removal under vawa
CANCELLATION OF REMOVAL UNDER VAWA
  • Person has been battered or subjected to extreme cruelty by spouse or parent; or is the parent of a child of a USC or LPR who has been the victim of the above;
  • Person physically present in the US for at least 3 years immediately prior to the application;
  • Person has good moral character for those 3 years;
  • Person is not inadmissible, and has not been convicted of an aggravated felony;
  • Removal would cause extreme hardship to applicant, her child or parents.
derivative beneficiaries
DERIVATIVE BENEFICIARIES
  • If the victim files a self petition while children are less than 21 years old and unmarried, his/her children will remain eligible to obtain Lawful Permanent Residence no matter how long it may take the authorities to process and approve his/her application;
  • If victim files self-petition while her children are less than 21 years old and unmarried, they may be able to be included on her application and may no need to file VAWA self-petitions themselves;
  • The child of an abusive USC or LPR, may file a VAWA Self-Petition up to the age of 25, but only if (a) they remain unmarried and (b) can prove that the abuse they suffered at the hands of their USC or LPR parent is one central reason why they could not file a VAWA before they turned 21.
u visa
U VISA

INA §101(a)(15)(U)

Regulated on September 17, 2007

Effective since October 17, 2007

u visa definition
U VISA DEFINITION
  • Is a non immigrant visa given to victims of certain crimes providing to them temporary legal status and work eligibility in the US for up to 4 years, with possible extensions in certain cases.
  • After three years, U visa holders may apply for lawful permanent residence.
  • The U visa holders automatically qualify for employment authorization.
  • There are only 10,000 per year available
  • Family members may also be included, spouses, children, unmarried sisters and brothers under 18, parents.
requirements u visa
REQUIREMENTS U VISA

1) The applicant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity which includes:

  • 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, or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law.
more requirements u visa
MORE REQUIREMENTS U VISA

2) The applicant (or his or her parent, guardian, or next friend if the applicant is under 16 years of age) possesses information concerning the criminal activity and “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of that activity;

3) The criminal activity occurred in the United States or its territories or possessions, or if it occurred abroad, the criminal activity violated the laws of the United States;

4) The applicant must submit a written certification from a federal, state, or local law enforcement official, prosecutor, judge, or local authority investigating criminal activity, or from a U.S. immigration official, stating that the applicant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity.

more requirements u visa30
MORE REQUIREMENTS U VISA

5) The abuser does not need to be a U.S. citizen or lawful permanent resident, and the victim does not have to have been married to the abuser to be eligible..

6) Victim is not required to be physically present in the US to qualify for a U visa.

7) Victim can apply from abroad as long as the criminal activity violated US law or occurred in US territories.

cooperation with the authorities
COOPERATION WITH THE AUTHORITIES
  • In cases where the petitioner is under the age of 16 or is incapacitated or incompetent, this requirement can be satisfied by the parent, guardian, or next friend* submitting the necessary evidence on behalf of the petitioner. Such person must provide evidence of her or his qualifying relationship to the petitioner and evidence establishing the age, incapacity or incompetence of the petitioner.
  • A next friend is a person who appears to act for the benefit of a nonimmigrant who is under the age of 16, or who is incapacitated or incompetent.
grounds of inadmissibility
GROUNDS OF INADMISSIBILITY
  • All grounds of inadmissibility except for INA§212(a)(3)(E) [Nazi persecutors] are waivable by DHS in the “public or national interest.
  • Change of status is allowed even if the Applicant entered the United States without visa or without inspection, or entered with a visa with restrictions. INA §248 bars do not apply to a change of status to U classification.
adjustment of status under u visa provisions
ADJUSTMENT OF STATUS UNDER U VISA PROVISIONS
  • Unless DHS determines based on affirmative evidence that the U visa holder unreasonably refused to provide assistance in a criminal investigation or prosecution s/he may adjust if:
  • s/he has been physically present in the US for a continuous period of 3 years;
  • Her continued presence is justified on humanitarian grounds to ensure family unity or is otherwise in the public interest.
i have been the victim of domestic violence should i apply for vawa or for a u visa
I have been the victim of domestic violence, should I apply for VAWA or for a U-visa?
  • It depends. If you are an abused spouse or child of a lawful permanent resident or US citizen, you are eligible to self-petition to gain lawful status under VAWA.
  • Victims of domestic violence who are not married to the abuser, or who have been abused by spouses who are not US citizens or lawful permanent residents, are not eligible to self-petition under VAWA, but may seek status under the U visa. You should discuss either of these options with an immigration specialist BEFORE you go to the USCIS.
t visa
T VISA

INA§101(A)(15)(T)

8 C.F.R.214.11(a)

t visa definition
T VISA DEFINITION
  • Is a non Immigrant visa given to victims of  "severe forms of human trafficking“, on the condition that they help law enforcement officials investigate and prosecute the crime.*  However, if the victim is under 18 years of age, the law does not require cooperation with police to obtain a T-visa.
  • T-visas allow victims of severe forms of trafficking to stay in the U.S. for four years from the date the T-visa application is approved.  Extensions can be approved if a law enforcement authority certifies that having the victim remain in the country for longer is necessary for investigating or prosecuting the crime.
  • The T visa holders automatically qualify for employment authorization.  There are only 5000 visas available per year.
  • T-visa status may also be available for immediate family members such as spouses, children, and parents of applicants under 18.
severe forms of trafficking definition
SEVERE FORMS OF TRAFFICKING DEFINITION
  • Severe forms of trafficking in persons means 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 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.
forms of severe trafficking
FORMS OF SEVERE TRAFFICKING

1.) Sex trafficking: such the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.

2)Trafficking that leads to debt bondage / peonage – This is when the victim is forced to work indefinitely (without any reasonable limits on services or time) to pay off the person who smuggled her into the U.S. Usually, the victim has no way to know when her debt is going to be paid off or how much her debt has been reduced by the work she has already performed.

3) Trafficking that leads to involuntary servitude / slavery / forced labor – The trafficker uses threats or physical force to make the victim work.  Traffickers could threaten to physically harm to the victim or the victim’s family and loved ones, but may also threaten to report the victim to the police (for her immigration status, prostitution, etc.) if she does not continue to work for the trafficker.  The threats to report the victim to the police are known as “abuse of the legal process.”**

t visa requirements
T VISA REQUIREMENTS
  • Victim of severe form of trafficking
  • You are in the United States, or its territories, or at a port-of-entry because of human trafficking;
  • You would suffer extreme hardship if removed or forced to leave; and
  • You satisfy one of the following three conditions:
  • You have cooperated and are willing to cooperate with reasonable requests for assistance by federal, state, or local law enforcement in investigating or prosecuting crimes related to human trafficking; or
  • You are excused by the attorney general from failing to cooperate with reasonable requests for assistance by federal, state, or local law enforcement in investigating or prosecuting crimes related to human trafficking because of physical or psychological trauma; or
  • You are under 18 years of age.*
evidence of victim of form of trafficking
EVIDENCE OF VICTIM OF FORM OF TRAFFICKING

1) To prove that you are the victim of a severe form

of trafficking, it is necessary to submit:

  • An endorsement from a Law Enforcement Agency or qualified federal agency.  This form is considered "primary evidence" that a person is a survivor of a severe form of human trafficking.
  • "secondary evidence" can include victim’s statement, affidavits of other witnesses, transcripts, court documents, police reports, medical reports, etc. 
  • If available, any documents that show that victim was granted "continued presence status"* as a survivor of human trafficking.
evidence of physical presence
EVIDENCE OF PHYSICAL PRESENCE

2) To prove that victim is in the US, or its territories, or a port of entry because of human trafficking, it is no necessary to file additional documents.However, the documents and statements that the victim should submit must include:

  • When, where, and how victim arrived;
  • Why victim was trafficked;
  • That s/he is in the US, its territories, or port of entry because of victimization; and
  • If victim escaped from traffickers before contacted law enforcement, that victim did not have a clear chance to leave the US.  Circumstances that may have prevented you the victim from leaving can include trauma, injury, lack of resources, and lack of travel documents that were seized by the traffickers.
evidence of hardship
EVIDENCE OF HARDSHIP

3) To prove that victim would suffer extreme hardship involving unusual and severe harm upon removal from the US, evidence of the following may be included:

  • Age and personal circumstances;
  • Any serious physical or mental illness that requires special attention not available in the foreign country;
  • Nature and extent of the trauma suffered as a result of victimization;
  • Impact of losing access to the US courts and criminal justice system;
  • Stigmatization due to being the victim of trafficking;
  • The likelihood of re-trafficking; and/or
  • Presence of civil unrest or civil conflict.
evidence of cooperation with authorities
EVIDENCE OF COOPERATION WITH AUTHORITIES

4) To prove that victim has cooperated with authorities:

  • An endorsement from a Law Enforcement Agency on Form I-914;
  • Statements from state and local law enforcement; and/or
  • Evidence that shows that victim is seeking or has sought law enforcement assistance.
immediate family members
IMMEDIATE FAMILY MEMBERS
  • If the victim is under 21 years old, s/he can apply for: spouse, unmarried children under 21, parents, and/or unmarried siblings under 18
  • If the victim is over 21 years old, s/he can apply for spouse and unmarried children under the age of 21.
waiving grounds of inadmissibility
WAIVING GROUNDS OF INADMISSIBILITY
  • If victim is inadmissible because of grounds specified in INA Sec. 212, victim should file a Form I-601 "Application for Waiver on Grounds of Inadmissibility."
  • If victim is inadmissible (because s/he is currently outside of the US and require advance permission to enter the US), victim should file Form I-192 “Application for Advance Permission to Enter as Nonimmigrant.” 
continued presence status
CONTINUED PRESENCE STATUS
  • "Continued presence status" is for victims of severe trafficking who lack legal status but who are potential witnesses (have not yet  assisted law enforcement, but will likely be able to provide useful information).  It provides temporary immigration relief under the continued presence provisions of Section 107(c) of the VTVPA.  Immigration relief may include granting parole, voluntary departure, stay of a final order, or nonimmigrant visas (T-visas or U-visas).  Only law enforcement authorities can seek continued presence status.  In other words, victim would need to have a federal law enforcement agency petition the INS on her behalf for continued presence. 
sources used for this presentation
SOURCES USED FOR THIS PRESENTATION
  • Immigration and Nationality Act
  • Code of Federal Regulations (8 C.F.R)
  • United States Code (22 U.S.C.)
  • www.uscis.gov
  • www.womenslaw.org
  • Ira J. Kurzban, Immigration Law Sourcebook Tenth Edition, American Immigration Law Foundation.