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Obtaining Lawful Permanent Residency

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Obtaining Lawful Permanent Residency Through the Violence Against Women Act A VAWA Manual for Pro Bono Advocates

Legal Services Center for Immigrants Legal Assistance Foundation of Metropolitan Chicago 111 West Jackson Boulevard • Suite 300 • Chicago, Illinois 60604-3502 Telephone: (312) 341-1070 • Fax: (312) 341-1041 • TDD: (312) 431-1206 • www.lafchicago.org
March 2005

TABLE OF CONTENTS

Introduction and Welcome

2

PART 1

VAWA PETITIONS 3 4

VAWA Eligibility Outline “Barriers Faced by Noncitizen Survivors of Domestic Violence,” outline based on article by Gail Pendleton for ABA Commission on Domestic Violence

PART 2

INTAKE AND INTERVIEW GUIDE 8 9 14 16 19 20

VAWA Eligibility Questionnaire VAWA Interview Guide List of Suggested Documents in Support of I-360 (English and 14 other languages) Chicago Area Immigrant Battered Women‟s Services Chicago Area Immigration Legal Services Basic Procedures for LAF‟s Pro Bono VAWA Project VAWA PETITIONER’S AFFIDAVIT

PART 3

The Affidavit: Practice Tips Sample Affidavits

22 24

PART 4

THE I-360 FORM 28

Completing the I-360: Practice Tips

PART 5

OBTAINING SUPPORTING DOCUMENTS 31 37 38 39

Extreme cruelty questionnaire (in English and Spanish) Sample Certificate of Translator‟s Competence How to Get Proof for CIS of Outcome of Criminal Arrests Guidelines for letter of support from counselor, advocate, or other DV expert

PART 6

FILING THE VAWA PETITION 43 44

Filing the VAWA Petition: Practice Tips Sample Fee Waiver Requests (2 versions)

PART 7

RESPONSES FROM U.S. CITIZENSHIP AND IMMIGRATION SERVICES (CIS) 46

CIS Responses: Practice Tips PART 8

EMPLOYMENT AUTHORIZATION and SEEKING PUBLIC BENEFITS 48 50

Eligibility for Employment Authorization and Practice Tips Public Benefits for Immigrant Abuse Survivors PART 9

ADJUSTMENT OF STATUS TO LAWFUL PERMANENT RESIDENCY 51

Adjustment of Status for VAWA Petitioners

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Introduction and Welcome
Domestic violence, terrifying for anyone, presents special dilemmas for immigrants who lack legal residency status in the U.S. Take the case of Nayeli*, who came here from rural Mexico and later met and married her husband, a naturalized U.S. citizen. Intensely possessive of his young wife, he forbid her to study English, learn to drive, work outside the home, talk to neighbors, or even visit her own relatives. He began to insult her constantly, calling her an ignorant country girl who could never learn anything, and accusing her of only wanting to meet other men. Sometimes, he would slap or shove her. Though he petitioned her and got her legal residency application on file, he held this over her, threatening to cancel his petition if she ever dared to disobey him or call the police. With the birth of their son, Nayeli hoped her husband would change, but he seemed pleased that now it was even harder for her to go out. Then one night, the family went to a holiday party in their building. When Nayeli accepted an invitation to dance, her husband became enraged and demanded she return home at once. At their apartment, he began insulting and then beating her. Neighbors overheard and called 911, and Nayeli was rushed to the emergency room. On her release from the hospital, Nayeli returned home, desperate to be reunited with her baby. She felt she had nowhere else to go, and she feared what her husband always said -- that if she left him, he would get her deported, and if she called the police, they would believe him, the citizen -- not her, because she was “just a worthless illegal.” As the months went on, her husband grew ever more jealous and violent, but fearing separation from her child, Nayeli never called the police. Then a letter came from Immigration for her interview for adjustment to permanent residency. Her husband angrily told her he wouldn‟t attend. Instead, he said, he was calling INS so they would deport her, and he would keep their son. Desperate, Nayeli at last confided in a neighbor, who told her about a domestic violence support organization that a friend had gone to. They referred Nayeli to LAFMC, which helped her file a petition under the Violence Against Women Act (“VAWA”) and obtain permanent residency, independent of her husband. Now divorced, Nayeli is studying English, working to support herself and her young son, and slowly building a self-sufficient life in the U.S. On behalf of the Legal Assistance Foundation of Metropolitan Chicago and women like Nayeli, we thank you for taking on VAWA cases. By helping these courageous abuse survivors obtain permanent residency in the U.S., you open the door to a safe and promising future for them and their children. This manual contains all the information you need to file a VAWA petition. If you have any questions or concerns, please contact us. Legal Services Center for Immigrants Legal Assistance Foundation of Metropolitan Chicago 111 West Jackson Boulevard, Suite 300 Chicago, Illinois 60604-3502 (312) 341-1070 *This client‟s name and circumstances have been changed to protect her privacy

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VAWA ELIGIBILITY OUTLINE

1.   

SPOUSE OR CHILD (under 21) OF U.S. CITIZEN (USC) OR LAWFUL PERMANENT RESIDENT (LPR) If abuser was USC and dies, wife/child can still file within 2 years after his death If LPR spouse/parent was deported and lost LPR status because of domestic violence, wife/child can still file within 2 years after abuser‟s deportation If couple are divorced, wife/child can still file within 2 years after divorce became final, provided divorce was related to the abuse (but need not be sought or granted on grounds of physical or mental cruelty) VALID MARRIAGE IN “GOOD FAITH”    Must have married intending to establish married life together, not for sole purpose of gaining legal immigration status in U.S. Must have terminated own prior marriage before marrying abusive spouse (or in Illinois, if divorced only after 2nd marriage, must have been before last abuse by current spouse If unknowingly married bigamist, can still file VAWA if marriage ceremony was actually performed, and wife explains why she believed abusive spouse was free to marry (“intended spouse” provision) BATTERED AND/OR SUBJECTED TO “EXTREME CRUELTY” BY USC/LPR SPOUSE/PARENT Generous standard of proof: “any credible evidence”

2.

3.

4.   

RESIDENCE WITH ABUSER, AND CURRENT RESIDENCE IN THE U.S. Must have lived with the abuser, but no minimum time requirement Joint residence could have been within or outside of the U.S. Can file VAWA petition from abroad only if show:  was subjected to abuse in U.S.; or  abuser is employee of U.S. government or a member of uniformed services GOOD MORAL CHARACTER   Statutory requirement to show GMC, with emphasis on 3 years prior to filing CIS can also consider earlier facts (“residual” GMC)

5.

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BARRIERS FACED BY NONCITIZEN SURVIVORS OF DOMESTIC VIOLENCE The following outline is based on an article by Gail Pendleton, National Immigration Project of the National Lawyers Guild, with help from Heather Maher, ABA Commission on Domestic Violence (update of materials originally produced for ABA) (complete article available at www.nationalimmigrationproject.org under Immigrant Survivors) Battered noncitizens are often stopped from accessing legal system by common barriers: Lack of Knowledge and Misinformation about Legal System  abuser misinforms victim re her right to  protection under U.S. civil and criminal laws  apply for immigration status in U.S.         abuser says that because she is not U.S. citizen, he‟ll get custody of children under U.S. laws, or take children to a country where she can‟t go. legal system in victim‟s home country doesn‟t have laws, or doesn‟t enforce laws against domestic violence, or applies different evidentiary standards (e.g., oral testimony or testimony of women not admissible as evidence in court, or given half the weight of testimony of men). social mores in home country discourage women from using existing civil or criminal protections.

Fear of Police and Judicial System  in home country, police and judicial system o only assist those who have money or influence, or o are instruments of repression.     in immigrant community, judicial system has reputation for applying laws against people who live in poor areas, people of color, or immigrants. immigrants may view court system as racist and/or anti-immigrant because of its composition or because of well-publicized events that raise this concern. immigrant communities will not trust a judicial system that they believe will turn them over to INS. allowing INS to attend court hearings undermines trust. Noncitizens will not avail themselves of civil and criminal protections if they believe INS will attend or may be

4

called to hearings.

Fear of Deportation o Abusers often threaten to report victims to INS, whether for lacking legal immigration status, working without papers or with false or borrowed papers, or allegedly having married “only for papers” (marriage fraud). A victim may be unwilling to access judicial system or to speak frankly to judges if she believes that if she does, her abuser will report her to INS. o A victim may not access system because she fears that a judge or other court personnel will report her to INS. o A victim may fear deportation because her home countries do not have laws that will protect her from domestic violence. Fear Abuser Will Be Deported A victim may fear deportation of her abuser because: o abuser will take children abroad with him o abuser will stop making child support payments, causing her and her children financial hardship o abuser will stop sending money back to their community and family in homeland o she or her children may lose status or become ineligible for immigration status if abuser is deported. o relatives and community members in U.S. or in home land may retaliate against her or her family o abuser may become more dangerous if he returns to U.S. after being deported Language Barriers o Court personnel do not speak her language. o Inappropriate translators are used: gender differences family member, those with political, cultural or

Cultural and Religious Barriers Cultural and Religious BarriersCultural and Religious Barriers o Victim‟s culture or religion may disapprove of challenging domestic violence or male domination.

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o Victim‟s culture or religion may prohibit dissolving a marriage: divorce or even separation may violate social mores or bring shame to victim, her family, or her whole community. o Victim‟s family and community may ostracize or isolate her if she leaves marriage or makes public domestic violence. o Shelters and domestic violence programs do not provide culturally and linguistically appropriate services. Economic Barriers Economic BarriersEconomic Barriers o Abuser controls all income in family o Non citizens must obtain work authorization from INS to work legally in U.S. o Non citizens may only be able to find low-paying jobs without child care o Public benefits administrators often are ignorant about laws authorizing non citizens to receive benefits or are antagonistic to non citizens. Barriers to Participating in Prosecution Prosecuting abusers of non citizens may have consequences that would not occur were victim a U.S. citizen or legal permanent resident. Legitimate reasons for some non citizens not wanting to cooperate in prosecuting their abusers include. o Abuser who faces trial might retaliate against victim, including reporting her to INS -even when she has no control over whether prosecution goes forward or not (“victimless crime” prosecution, where to spare the victim the ordeal of facing her abuser in court, the state proceeds based on the testimony of the police officer who responded to a 911 call, or on other evidence). o If a battered undocumented non citizen is reported to Immigration, she might be deported without ever being notified of her right to apply for status. Few immigration officials see educating non citizens about their rights to obtain immigration status as part of their job. o If battered non citizen is deported, she will lose custody of her children, who will be left in hands of their abusive parent. o If abuser himself is a non citizen, even if he is a legal resident, he may be deported if convicted (see fear of abuser's deportation above) o Victim‟s immigration status is often tied to abuser‟s status: if abuser is deported, his

6

family members may automatically lose their immigration status too. Overcoming Barriers o Work with battered non citizens to explore their choices and consequences of those choices. o Help battered non citizens access services and immigration status they need to overcome barriers: o o o o o o o physical and legal safety protection orders, shelter, long-term housing economic survival access to public benefits work authorization divorce, child custody, etc. obtain legal immigration status to prevent deportation

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VAWA ELIGIBILITY QUESTIONNAIRE

Are you married? Yes ____: Date of Marriage ______________

No _____

Are you divorced or is a divorce pending? Yes ____ No ____ If yes, date judgment entered:____________ or date divorce was filed:______________ Is your husband a U.S. Citizen? Yes _____: ____Born in U.S. No ____

_____Naturalized

Or is your husband a Lawful Permanent Resident? (Does he have a “green card”?) Yes ____ No ____ Has your husband abused you? Yes ____ No ____ If yes, do you have any police reports, medical records, orders of protection, or other materials to document the abuse? If yes, please list them below: ________________________________________________________________________ ________________________________________________________________________
]li5040Do

you already have a “green card”? Yes ____

No ____

Do you have a work permit (EAD)? Yes ____

When does it expire?__________ No_____

Do you have an interview scheduled with USCIS (formerly called INS)? Yes ____ Date ________________ Address of interview: __________________ No ____ Has your husband filed a petition for you with USCIS? Yes ____ Type of Petition and Date Filed__________________

No ____

When, where, and how (visa, without inspection, etc.) did you first enter the U.S.? ____________________________________________________________________ When, where, and how (visa, without inspection, etc.) did you last enter the U.S.? ____________________________________________________________________ Do you have any family members who are U.S. citizens or lawful permanent residents? If yes, please state their name, relationship to you, and whether they are a USC or LPR: ____________________________________________________________________ ____________________________________________________________________ ____________________________________________________________________

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VAWA INTERVIEW GUIDE CLIENT INFORMATION Name: Other Names Used: Address:

Telephone Numbers: Date of Birth: Place of Birth: Have you ever been married before? ____Yes ____No Are you divorced? ____Yes ____No If so, do you have a copy of the divorce decree? Have you left the U.S. and returned since you first arrived? ____Yes ____No If so, please list the date you left, your reason for leaving, date you returned, and the place and way that you returned:

Explain that whenever someone applies for legal residency, Immigration will get a report from the FBI of every time they were fingerprinted. For this reason, it is very important that she tell her advocate now about any prior contact with the police or Immigration, whether at the border, or within the U.S. Have you ever been stopped or arrested by Immigration? happened? If yes, when, where, and what

Have you ever been taken before an Immigration Judge? If yes, when, where, and how did the case turn out? Were you ordered deported/removed? Or were you instead granted “voluntary departure,” i.e., the privilege of leaving the U.S. by a certain date? Have you ever been arrested by the police? If so, when, where and what happened? Ask client to get a copy of her arrest and/or certified court disposition showing the ultimate resolution of the case.

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INFORMATION ABOUT YOUR SPOUSE Complete Name: Address:

Telephone Numbers: Date of Birth: Place of Birth: Social Security Number: Immigration Status:____USC: _____Born in U.S. _____Naturalized: A#:_________________ ____LPR: A#:____________________ Do you have any documents that can verify your husband‟s status? ____Yes ____No (Birth certificate, naturalization certificate, passport, green card, INS/CIS documents) If so, please list them here:

Was your husband married before he married you? ____Yes ____No If so, was he divorced from his prior spouse(s)? ____Yes ____No If yes, do you have a copy of the divorce decree(s)? ____Yes ____No Or do you know where and when he was divorced?

INFORMATION ABOUT YOUR CHILDREN Number of Children: ____by abuser Name Date of Birth ____by other relationship(s) Place of Birth Father

Do any of your children have special needs (medical, educational)? If so, please name child and describe:

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INFORMATION ABOUT THE ABUSE (Before asking these questions, please say something to the client like: “I‟m sure that it must be very painful for you to remember all the things your husband has done to you, but I need to ask you some personal questions so we can put your case together.”) Have you ever been physically abused by your husband? Yes ____ If yes, when (or how often) and what happened? No ____

____ pushed ____kicked ____used weapon ____other (describe):

____slapped ____punched ____scratched ____pulled hair

____sexually assaulted

Have you ever been mentally/emotionally abused by your husband? Yes ____ If yes, when (or how often/how many times), and what happened?

No ____

___social isolation (won‟t let her use the phone, talk to family or friends, leave the house alone)

___obsessiveness and possessiveness (jealousy, accusations of infidelity)

___threats to harm her, her children, her pets, or her personal property

___economic abuse (controls all money, prevents her from working or takes her money)

___degradation (name-calling, humiliates, constant criticism of her and/or her family)

___other (describe):

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When was the first incidence of abuse? Describe in detail:

What was the worst incidence of abuse? Describe in detail:

If you have children, did your husband ever abuse you in front of them? If so, please explain:

Did he ever abuse the children? If so, please describe what happened:

Did you ever call the police or make a police report about the abuse? ____Yes If so, when and what happened or do you have a copy of the report?

____No

Were you ever hospitalized because of the abuse? ____Yes ____No If so, when, what happened and do you have records from the hospital?

Do any family or friends know about the abuse? ____Yes ____No If so, would they be willing to write a statement to support your case? Please list their names and relationship of each to you:

Have you ever sought help from a domestic violence or community organization? ____Yes

12

____No If so, when and what happened?

Is there anything else you can think of that would help document the abuse you suffered?

Notes:

13

Chicago Metropolitan Battered Women’s Network Immigrant Battered Women’s Committee Suggested Documents in Support of I-360 VAWA Self-Petition Proof of Self-Petitioner‟s Identity
_____ Driver‟s license or state ID, if any _____ Unexpired foreign passport _____ ID from country of origin (e.g., Mexican matricula consular) _____ Any INS/CIS documents _____ INS/CIS file number (“A#”), if any ___________________________________ Proof of Abuse Victim‟s affidavit detailing the abuse Order of Protection (emergency and if possible, plenary, including underlying petition or affidavit) _____ Detailed police report _____ Medical records from treating injuries _____ Photos of injuries _____ Detailed letters from DV providers _____ Letters from other counselors or therapists _____ Affidavits from abuse witnesses, including from children _____ Divorce petition that discusses abuse _____ Abuser‟s criminal records _____ Certification of completion of abuser treatment _____ Photos, tapes, any evidence of abuse or property damage ___________________________________ _____ _____ Proof of Victim’s Good Moral Character Police clearance letter listing all names ever used and showing no convictions _____ Fingerprint-based report (best from FBI, esp. if lived outside IL or ever arrested by INS/ICE, or from Ill. State Police _____ If neither of above is obtainable, or if convicted of any crimes, letters/ affidavits from witnesses attesting to VAWA petitioner‟s good moral character _____ Certified court disposition for any criminal arrest, and explanation of circumstances _____

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Proof of Abuser’s Status _____ U.S. birth certificate _____ U.S. passport or any immigration documents, especially if A# is shown _____ If A# not known, date and place of birth and parents‟ names ____________________________________ Proof of Valid Marriage to Abuser _____ Marriage certificate _____ Abuser‟s divorce from prior spouse _____ VAWA petitioner‟s divorce from prior spouse ____________________________________ Proof of Good Faith of Marriage and Past or Present Residence with Abuser _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ _____ Birth certificates of children of marriage Wedding pictures or later photos of couple together or with each other‟s relatives or friends Any document in married name Any document showing marital address Joint credit cards or in married name Lease or rent receipts from marital address(es), especially if joint Bills to either party at a marital address Joint bank statements or checks Jointly filed taxes, or W-2 Proof of jointly owned property Life insurance policy naming spouse as beneficiary Joint credit contracts of purchases made together (furniture or appliances) Joint correspondence, or envelope received by either at marital address Abuser‟s and self-petitioner‟s driver‟s license, state ID, consular ID, or other ID showing marital address Membership cards in married name Affidavits of witnesses to couple living together at marital address, e.g., landlord Children‟s school records listing spouse Letter from employer/business naming spouse or stating marital status

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Chicago Area Immigrant Battered Women’s Services City of Chicago Helpline 1-(877) 863-6338 24 Hours, All Languages DOMESTIC SERVICES VIOLENCE CRISIS LINE OFFICE PHONE LANGUAGES IN ADDITION TO ENGLISH

IN CHICAGO Central Casa Aztlan Life Span Mujeres Latinas en Accion The Resurrection Project Rainbow House – Little Village
Casa Segura– Pilsen/Little Village

312-666-5508 312-408-1210 312-738-5358 312-226-1544 312-666-1323 773-542-4175 312-925-5597

Spanish Spanish, arranged Spanish Spanish Spanish Spanish

Polish,

others

if

North Side Apna Ghar

773-334-4663

773-334-0173

Asian Human Services

773-728-2235

773-728-2235

Centro Romero Comprehensive Korean Self-Help Center HAS Korean American Community Services Korean American Women in Need 773-583-0880 Life Span Metro Family Services North 800-644-8991 Center Near North Health Service Corp Polish American Association South Asian Family Services South East Asia Service Center – DV Program Uptown Center Hull House

773-508-5300 773-545-8348 773-292-4881 773-583-5501 773-583-1392 773-777-8068 773-282-9535 312-337-7616 773-282-8206 773-761-5119 773-989-6927 773-561-3500

Hindi, Urdu, Punjabi,Tamil, Marathi, Malayalan, Gujurati, Mandarin Vietnamese, Hindi, Urdu, Korean, French, Khmer, Mandarin, Cantonese, Japanese Spanish Korean Spanish Korean Korean Spanish, Polish, arranged Spanish, Polish Spanish Polish Hindi, Urdu, Punjabi Vietnamese, Cantonese, French Spanish

others

if

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DOMESTIC SERVICES

VIOLENCE CRISIS LINE

OFFICE PHONE

LANGUAGES IN ADDITION TO ENGLISH

YMCA Korean Center

773-561-2877

Korean

West Side Casa Central 773-276-1902 Chicago Abused Women‟s Coalition Walk-In Program 773-278-4566 Hospital Crisis Intervention 312-433-2390 Project Greenhouse Shelter 773-278-4566

773-276-1902

Spanish

773-489-9081 312-433-2390

Spanish Spanish & ASL (American Sign Language) Spanish, Ukrainian, Polish, ASL, Farsi, French, Hindi

773-278-4110

South Side Arab American Action Network Family Rescue Heartland Alliance Women‟s Program Lithuanian Human Council Calumet Center Midway Center Services 800-644-8991 800-644-8991

773-436-6060 773-375-6863 773-847-4417

Arabic Spanish Spanish

773-476-2655 773-264-3010 773-884-3310 708-798-7737

Lithuanian

Spanish, Arabic Spanish

South Suburban Family Shelter

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DOMESTIC SERVICES

VIOLENCE CRISIS LINE

OFFICE PHONE

LANGUAGES IN ADDITION TO ENGLISH

IN SUBURBS North Life Span (Des Plaines) ChildServ/SIGA (Waukegan) West Lifelink-Latino Family Services 630-521-8061 (Bensenville) Sarah’s Inn (Oak Park, Cicero, 708-386-4225 Melrose Park) Hamdard Center (DuPage 630-860-9122 County) South South Suburban Family Shelter 708-798-7737 (Homewood, Calumet Park) Spanish 708-386-3305 630-860-2290 Spanish 847-824-4454 Center 773-867-7381 847-824-0382 Spanish, Polish Spanish

Spanish, Russian Hindi, Urdu, Gujurati, Punjabi, Arabic, Persian, Telugu

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Immigration Legal Services in Chicago
IMMIGRATION LEGAL OFFICE PHONE SERVICES IN CHICAGO Central Chicago Legal Clinic – Central
Chicago Volunteer Legal Services Midwest Immigrant & Human Rights Center, Heartland Alliance

LANGUAGES IN ADDITION TO ENGLISH

773-731-1762 312-332-1624

Spanish, French Spanish, others if arranged

Loop Office South Side Office Legal Assistance Foundation of Metropolitan Chicago (handles immigration cases for people living anywhere in Illinois Life Span Center for Legal Services North Side Asian Human Services

312-660-1370 ext. 0 312-660-1370 ext. 0
312-347-8374

Spanish, others if arranged Spanish, others if arranged Spanish

312-341-9617

312-408-1210

Spanish, Polish, others if arranged

773-728-2235

Interfaith Refugee & Immigration 773-989-5647 Ministries World Relief 773-583-3010 South Side Chicago Legal Clinic – South 773-731-1762 Latinos Progresando West Side Centro Cristo Rey 312-850-0572 630-851-6807

Vietnamese, Hindi, Urdu, Korean, French, Khmer, Mandarin, Cantonese, Japanese Spanish, many others Spanish Spanish, French, Italian Spanish Spanish (Aurora)

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Legal Assistance Foundation of Metropolitan Chicago (LAF) VAWA Pro Bono Project

Basic Procedures for Case Representation

1. Attorneys interested in representing VAWA clients must attend a training given by LAF. 2. Cases will be assigned by phone or through e-mail. The VAWA pro bono project coordinator will send out e-mails of VAWA cases as they become available. 3. If you would like to accept a case, send a reply e-mail or call the LAF project coordinator indicating which case you would like to take. 4. Once you are assigned a case, the file will be sent to you from LAF. You will be assigned an LAF attorney as your mentor for the case. Please call the pro bono coordinator with any questions or concerns; if need be, she will refer you to your mentor. 5. Within one week after you receive the case, call the client to let her know that you will be representing her and to set up an initial interview. 6. Please remember that you represent the client and are responsible for scheduling all interviews with her and providing an interpreter, if needed. 7. Call or e-mail the pro bono coordinator to let her know that you received the client‟s file and have scheduled an initial interview with the client. Thereafter, periodically call or e-mail the coordinator to update her on the progress of the case. 8. The I-360 should be filed within 2-3 months. Please consult with the pro bono coordinator if you require additional time. 9. When you are ready to file the I-360 packet, please send it to the pro bono coordinator so that your LAF mentor can review it and make any suggestions before you submit it. This step may be bypassed at the discretion of LAF once you have handled several VAWA cases. 10. If your client is eligible to file an adjustment application concurrently with her VAWA petition, it will be decided on your taking the case whether you will also prepare and file the adjustment, or whether LAF will prepare the adjustment on receipt of your draft VAWA packet. 11. When you send your final packet to CIS, send a copy simultaneously to the LAF project coordinator.

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12. Call or e-mail the pro bono coordinator as soon as you receive any correspondence from CIS on the I-360, including the Prima Facie Determination notice, requests for further evidence (“blue letters”), and the approval notice. Send copies of these notices to the pro bono coordinator. 13. After approval of the client‟s VAWA petition, please send the client a closing letter informing her that her case has been returned to LAF, and return the original case file to LAF. (Unless you will be representing your client in filing an Adjustment of Status (green card) application; in this case, please consult with the pro bono coordinator.)

Contacts at LAF: VAWA Pro Bono Project Coordinator (through August 2005): Julie Dona (312) 247-8324 jdona@lafchicago.org VAWA Attorney: Carol Waldman (312)347-8352 cwald@lafchicago.org

THE AFFIDAVIT: PRACTICE TIPS

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•

The affidavit, the most important part of the self-petition, is the woman‟s opportunity to explain her history and her reasons for self-petitioning. She can also use it to explain any lack of primary evidence, and provide details to help satisfy the VAWA requirements. Acknowledging the difficulties that abused women may face in documenting their cases, Congress dictated that CIS follow a more generous standard of proof in adjudicating VAWA petitions than in other types of applications: “any credible evidence,” as set forth in INA § 204(a)(1)(J); 8 U.S.C. § 1154(a)(1)(J). Submit primary evidence whenever possible (e.g., immigration documents, marriage and birth certificates, divorce decrees, and other contemporaneously created documents that prove the abuser‟s immigration status, the legal validity of the marriage, the good faith of the marriage and joint residence, and the abuse). Where these are not available, CIS can still give significant weight to secondary evidence, including affidavits and other later-prepared documents. All documents in support of a VAWA petition, including the affidavit, must either be in English, or be submitted in the original language and accompanied by a certified translation. As far as possible, the petitioner‟s affidavit should be in her own words, but she does not necessarily have to write out the final version herself. Committing her story to writing can be cathartic, but for some clients, it may be overwhelming, especially if their literacy is limited. You may wish to use your interview notes, facts from her documents, and any written statements she provides, e.g., her answers to the “extreme cruelty” questionnaire, to write out her story, then review it with her word for word to arrive at the final version. If an interpreter was used, conclude with: “This document has been read to me in my native language, and it is a true and accurate statement.” The affidavit should be written in the first person. It should address, chronologically, the relevant points in the VAWA petitioner‟s life, and should also address each statutory requirement, establishing the self-petitioner‟s identity and good moral character, the legal validity of the marriage and her abuser‟s U.S. citizen or LPR status, her having married in good faith, her present or past residence with the abuser, and the abuse.

•

•

•

Questions to Ask When Preparing the Affidavit: Note: Before meeting with your client, review the documents she has provided so far, and LAFMC‟s computer summary of her case. The answers to many of the following questions may already be there, so you can go over these with the client rather than asking her all over again. You may want to write up a chronology so that you are familiar with key date -- her date of entry to the U.S. (DOE), date of marriage (DOM), her children‟s dates of birth (DOB) – as well as who is shown as father on their birth certificates, what marital addresses are shown, etc. Story of the Marriage • Where and how did you and your husband meet? Describe your early relationship. • When did you first start living together? What was your first address together? • When did you marry? Why? What were your expectations of the marriage? What did he tell you your married life would be like? • How many children do you have?

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• • • • • • • • • • • • • •

• Which are by your husband? • Which are by other relationships? If you and your husband have no children, what did your husband say before you were married about wanting children? After? If you became pregnant, how did the marriage go during the pregnancy? When did your relationship with your spouse change for the worse? When did the abuse begin? What was the worst incident of abuse? Did your husband ever abuse the children, or abuse you in front of them? Did you ever seek help from the police, or any domestic violence agencies, e.g., support groups, individual counseling or therapy, court advocacy? If not, why not? What fears did you have that prevented you from seeking help? Was there any substance abuse in the home? Did you ever seek an order of protection, make any police reports, ask to have your husband arrested, or go to criminal court and keep pressing for him to be convicted? Reassure client that there are many good reasons that abuse survivors decide not to go to court, but that it helps her case if she explains why in her affidavit (see outline of Barriers), then ask: If you did not press charges in criminal court, why not? How did the abuse impact your life? When did you separate, and what was your last address together? Are you still married? Has a divorce been filed?

Immigration History: • When did you come to the U.S. for the very first time? • What date (at least month and year), place (city and state), and manner of entry? • “DOE, POE, and MOE”: Date of Entry Place of Entry, and Manner of Entry, e.g., without inspection, on a tourist visa, on a student visa, etc. • Since that first time you came, have you ever left the U.S.? • Around what date did you leave? Why? • Tip: To help your client establish dates, ask her if it was before or after major holidays like Easter, Christmas, or New Year‟s, the birth or birthday of a particular child, her own birthday or wedding anniversary, during summer vacation from school, during the cold part of the year, etc. • When was the next time you came? “DOE, POE, and MOE” as above • Have you left the U.S. since then? Why? Around what date did you leave? • When, where, how, and why did you return? “DOE, POE, and MOE” of each entry • In what towns have you lived since coming to the U.S.? (in chronological order) Key points to include in affidavit (to avoid a later CIS Request for Evidence on these): • Were you or your husband ever married before? If so, did you/he divorce that spouse? • Have you ever been arrested by Immigration or the police, aside from traffic violations? • Have you ever been in deportation or removal proceedings? Sample Affidavit

23

Tell what you saw or heard from your own direct experience, as if you were a news reporter. If you saw or heard the abuse yourself, say so. If your friend or relative told you about what had happened to her, say that, and if she seemed upset or sad when she told you, describe how she looked or sounded. You can type your affidavit, write it on the computer, or write it by hand on a blank page. STATE OF ILLINOIS ) ) COUNTY OF____________ )

SS

AFFIDAVIT OF _____________________________(your name) The undersigned, being duly sworn and upon oath, hereby deposes and states as follows: 1. My name is __________________________, and my date of birth was ___________________. I live at _______________________________________________________________________, and my daytime phone is ____________________________. 2. I am a _____________________________________[if you have legal immigration status, state it: for example, “permanent resident” or “U.S. citizen.” If you are undocumented or have not yet applied for adjustment of status to permanent resident, you can just leave this paragraph out.] 3. I am giving this statement letter in support of _____________________________. I have known her since ______________ because ________________________________________. (for example, we work(ed) together, are/were neighbors, attend the same church, are related, and/or are friends). 4. [Describe whatever you have seen or heard that make you believe the person‟s spouse abused her physically, verbally, emotionally, and/or economically: this might also include insults, threats or coercion, extreme jealousy or possessiveness, degradation, and/or social isolation. Give as much detail as you can remember, such as what you saw or heard, where it happened, and approximately when (date or season, and time of day)]. 5. Further affiant sayeth not. __________________________________________ (your signature) Subscribed and sworn to before me this day of , 200__. _____________________ Notary Public Wait to sign the affidavit until you are at a notary public. Most currency exchanges have them.

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Take your photo ID (driver‟s license, state ID, U.S. or foreign passport, or consular ID) with you, and after you show your ID to the notary, sign the affidavit. Then the notary will sign, date, and stamp the affidavit, and charge you about $1. If you can‟t get your affidavit notarized, end your letter with the following phrase: “I declare under pain and penalty of perjury that I am the undersigned person, and that the foregoing is true and correct to the best of my knowledge and belief.”

Sample Affdavit (spanish)

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Diga lo que Ud. vio o escuchó por su propia experiencia directa, como si fuera un periodista. Si Ud. mismo/a directamente vio o escuchó el abuso, dígalo. Si su amiga o pariente le contó lo que le había pasado, diga eso, y si le parecía alterada o triste al contárselo, descríbala. Puede escribir su declaración a máqina, en la computadora, o a mano en otra hoja, de la siguiente manera: ESTADO DE ILLINOIS ) ) CONDADO DE __________ )

SS

AFIDÁVIT DE ________________________(su nombre completo) La persona suscrita, bajo juramento solemne, con la presente declara lo siguiente: 1. Me llamo__________________________, y mi fecha de nacimiento es _________________. Vivo en (direccion completa)___________________, y mi teléfono durante el día es (__ )_____. 2. Soy un _____________________________________[si Ud. tiene estatus legal de inmigración, diga cuál es, por ejemplo, residente permanente, o ciudadano de los EE.UU. Si Ud. es indocumentado o no ha aplicado todavía para ajuste de estado a residencia permanente, puede pasar por alto este párrafo.] 3. Doy esta declaración en apoyo de _____________________________. La conozco desde ________________________________ porque ______________________________________. (por ejemplo, trabajamos juntos, somos/eramos vecinos, asistimos a la misma iglesia, somos parientes, y/o somos amigas). 4. [Describa cualquier incidente específico que Ud. ha visto o escuchado que le hace creer que el esposo de esta persona la ha sujetado a abuso físico, verbal, emocional, y/o económico: podria incluir insultos, amenazas o coerción, celos extremos o posesividad, degradación, y/o aislamiento social. Dé tánto detalle de lo que recuerda como le sea posible: lo que Ud. vio o escuchó, dónde ocurrió, y aproximadamente cuándo (fecha o temporada, y hora del día)]. 5. Con esto termino mi declaración. __________________________________________ (su firma de Ud.) Suscrita y jurada ante mí este día de , 200__. _______________________ Notario Público Espere a firmar su declaración hasta estar ante un notario público. Hay un notario público en muchas casas de cambio. Debe presentarle su identificación con foto (licencia de manejar, ID del estado, pasaporte estadounidense o extranjero, o identificación consular, como matrícula), y después de mostrarselo al notario, firme su declaración. El notario también firmará y pondrá su sello y la fecha, y le cobrará como $1. Si no puede llevar su declaración a un notario, termínela

26

con la siguiente frase: “Declaro bajo pena de perjurio que soy la persona suscrita, y que lo antedicho es verdadero y correcto a lo mejor de mi leal saber y entender.”

COMPLETING THE I-360 FORM

27

PRACTICE TIPS Parts 1 and 2: Where a self-petitioner is represented by counsel, the VAWA Unit (“Vermont”) will send correspondence regarding the case only to counsel, never directly to the client. However, because some self-petitioners file pro se, the VAWA Unit conducts a “safe address” review of every newly received I-360 to ensure that no CIS correspondence is sent to an address where the abuser might intercept it. If a self-petitioner resides with the abuser, is separated but might reconcile, or reports that her mailbox is not secure, list her actual address in Part 2, but also provide a safe mailing address in Part 1. This may be in care of you, a community organization that provides domestic violence services (e.g., Centro Romero), or a trusted friend or relative. Part 3, “Date of Arrival” (2nd to last line): Many CIS applications, such as the work permit application (I-765) and adjustment application (I-485) ask for “date of last arrival” – but on the I360, it is best to list the date of first arrival to U.S. When the self-petitioner seeks to adjust to permanent residence later on, listing this first entry date may help her overcome the consequences of having departed the U.S. after 9/27/97 and returned. Part 3, last line, “Current Nonimmigrant Status”: EWI visa overstay entered without inspection entered with a visa (e.g., B-2 visitor or “tourist”, F-1 student, K-1 fiancée, J-1 exchange visitor, V visa for spouse or child of LPR with I-130 filed before 12/21/00, etc.), but the period for which admitted has now expired spouse has already filed an I-130 for her, and she is waiting for her priority date to become current has already filed an adjustment application at the local CIS office (most often a “one-stop” I-485 together with a U.S. citizen spouse‟s 130), and is awaiting the interview or the decision

approved I-130 pending I-485 or adjustment applicant

Lower right: Be certain to complete the “Attorney or Representative” box, list your state license number (ARDC number), and attach a G-28 signed by you and by the client. Part 4, top line: Complete this even though your clients will be seeking to adjust status at their local CIS district office rather than at the U.S. consulate abroad. In each country, a single consulate or embassy handles applications for “immigrant visas,” e.g., in China, Beijing; in India, Bombay (Mumbai); in Korea, Seoul; in Mexico, Ciudad Juarez; in Pakistan, Karachi; in the Philippines, Manila; in Poland, Warsaw; in Russia, Moscow; in Ukraine, Kiev; in Vietnam, Saigon. Second line: Though it‟s very unlikely that CIS will ever need to send any correspondence to

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your client abroad, ask if she has any relatives abroad she could get mail, and show the address here. Fourth line: A self-petitioner who does not already have a work permit should almost always submit an employment authorization application and photos together with her I-360. (By contrast, in the sample I-360 at pages 5.10 - 5-13, the client is not filing a concurrent I-765 because she already has a (c)(9) work permit based on her pending adjustment application.) Work permits are explained in detail in Part 9 of this manual. Fifth and sixth lines: A self-petitioner‟s explanation of exclusion or deportation proceedings or of having worked without authorization can be either provided on a separate sheet, or incorporated in her affidavit. Work history need not be detailed; it can be simple, e.g., “Since I had no work permit, the only work I could find was through a temporary agency. I had to call each morning to see if they needed me that day.” Seventh line: Part 10 of this manual discusses adjustment of status applications. Some VAWA petitioners are already eligible to file an adjustment of status application with Vermont, concurrently with their I-360. Others become eligible to apply for adjustment because their priority date becomes current during the time that their VAWA is pending (awaiting adjudication) in Vermont.

Part 7: At the bottom of this section, after checking off whether any of the self-petitioner‟s children have filed separate petitions, be sure to request that any minor children of the spouse who are not already USCs or LPRs be included on the self-petition as derivative beneficiaries and be granted Deferred Action along with the principal. (In immigration law, the age of majority is 21.)

Part 8: Note that the I-360 does ask for information on any children of the abusive spouse, even those who are not children of the self-petitioner. As the self-petitioner is not likely to have complete names and dates of birth, provide as much as possible, such as first names and approximate age, if known. Sometimes, abuse includes the abuser favoring his children by prior partners over those he has with the self-petitioner, or fathering a child outside their marriage.

Notes on Derivative Beneficiaries • In immigration law, children and spouses normally qualify as derivative beneficiaries based on a “downward relationship” between the principal beneficiary and the derivative (e.g., self-petitioning mother to child). To qualify as a derivative beneficiary, a minor child need only be the biological child of the principal; the child need not have any legal relationship to the abuser. This allows a self-petitioner to include all her unmarried children under 21 in her self-petition, even those who are not “stepchildren” under the Immigration Act because they were already 18 when she married the abuser.
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•

Including minor children on the self-petition allows them to be granted Deferred Action along with the principal. Even if they are too young to work, they should apply for employment authorization and then a Social Security number. If their parent claims them on her tax return, she will then receive a larger tax refund, and this will remain the child‟s number for life. A child who has no need to renew her EAD should nevertheless request renewal of Deferred Action each year, along with her mother‟s own application to renew her work permit. VAWA law on derivative beneficiaries differs from normal family-based immigration law in two ways. First, VAWA allows derivative status not only for minor children of LPRs, but also for “immediate relative” minor children (children and stepchildren of USCs). Second, though VAWA beneficiaries are free to divorce their abusers and remarry after approval of a self-petition, even before gaining legal residency, the new spouse does not qualify as a derivative beneficiary, and thus lacks the right to seek LPR status when the VAWA principal does. For a child to qualify as a derivative beneficiary, the self-petition must list the child and include evidence of the child‟s relationship to the principal beneficiary, e.g., birth certificate showing the mother‟s name, or if not available, the child‟s baptismal records. “Aging-out” occurs when a derivative beneficiary child turns 21 before becoming an LPR. This generally moves the child to visa category with a much longer backlog, meaning that the child must wait many more years than the parent before applying to adjust, or proceeding with an interview if an adjustment was filed before the child turned 21. If a minor child and her parent both suffered abuse and the child is at risk of aging out, consider having the child file her own self-petition as an abused child. This “freezes” the child‟s age so that she will not “age out” on turning 21. The Child Status Protection Act of 2002 prevents aging-out for children of USCs. There is a more complicated formula for children of LPRs: their age for purposes of determining their preference category is reduced by the length of time it took for a petition be approved. CIS has indicated that it expects the CSPA to cover principal and derivative beneficiaries of VAWA I-360s as well as beneficiaries of I-130 petitions.

•

•

•

•

Extreme Cruelty Questionnaire
30

If your marriage included mental/emotional abuse, the standard which non-battering abuse must meet is that of extreme cruelty. A finding of extreme cruelty involves the examination of: • • • • the dynamics of your relationship your sense of well-being before the abuse the specific acts during the period of abuse, and your quality of life and ability to function after the abuse (the after-effects of the abuse).

The factors of extreme cruelty include social isolation, possessiveness, harassment, threats, economic abuse, degradation. For each of the first six categories listed below, it is very helpful if you can indicate (as best you can remember): a. how many times it happened and for each incident, as best you can remember: b. what happened c. the approximate date and time of day it happened d. where it happened (e.g. at our apartment at [give the address], or at my mother‟s house), and e. who else was present -----1. Coercion and threats: Did he ever:

coerce you to engage in illegal activity? threaten to kill you? threaten to get you deported? threaten to take your children away from you? by getting them deported? by kidnapping them? or through legal processes, such as getting legal custody in court? or by calling the Department of Children and Family Services? threaten to harm your children? try to control you through your children? How? use the children to relay threatening messages to you? intimidate you: by displaying a weapon? by smashing objects, especially objects with sentimental value for you? destroy property? use gestures that create fear?

2.

Verbal abuse:
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What specific words, insults, or names did he use? What tone of voice did he use? How did each incident end? Who left the room or residence? Did things simply go back to “normal,” or did you have to apologize, appease him, or “walk on eggshells”?

3.

Emotional abuse: Did he ever:

call you names? put down your home country and your family? devalue what you do? make you think you‟re crazy and no one will believe you? convince you that no one other than he would ever want you? minimize or deny that his behavior is or was abusive? blame you for causing the violence or other abuse?

4.

Isolation from family and friends:

Did he ever: refuse to let you speak on the phone, to family and friends here? or in your home country? restrict your access to mail, friends and family? refuse to let you learn English? refuse to let you leave the home? refuse to let you learn to drive? refuse to let you work outside the home? refuse to let you speak to people other than him or to people outside the family? Explain what specific things your spouse did, and also indicate: How long did it last? What did you do in response? How did you feel as a result of his actions?

5.

Possessiveness:

Was your spouse ever possessive or jealous? In what way? What did he do and say? What did you do in response? How did you feel as a result of his actions 6. Economic abuse: Did he ever:
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Limit your access to family financial resources (money)? Make family financial decisions without you? Control your paycheck? Misuse family funds? Steal money from you? Make other major household decisions, such as moving the family, without letting you have any say? without asking for your input? or without paying any attention to your opinion? Claim he was entitled to do these things because it was his privilege as the male in the family?

7.

Change in your quality of life:

What did you do to deal with the abuse? How did your life change from the abuse? How were you affected by the abuse? What do you feel caused the changes?

In addition to your own detailed affidavit, you may submit psychological reports, police reports, and/or notarized affidavits (sworn statements) from other persons which corroborate your claims. The people who write and sign these affidavits (“affiants”) may be required to testify before a U.S. Immigration and Citizenship Services officer, and should therefore include their address and phone number in their affidavits whenever possible. Your lawyer or advocate may be able to help them write these statements, so tell him or her who you think might be willing to provide one. In their statements, these witnesses should describe, with as much detail as they can, what they heard with their own ears, or saw with their own eyes, as if they were a news reporter describing a scene. This is especially important if they actually heard or saw any abuse as it was taking place. If they learned of the physical or emotional abuse only afterwards, they should describe how they learned of it, what you said to them and when, how you looked and sounded when you said it, and what they saw you do. If they saw any injuries that you received from your spouse, they should describe what they saw, where, and when, and what you told them about how you got them.

Extreme Cruelty Questionnaire (Spanish)
33

Si su matrimonio incluyó abuso mental/emocional, el nivel al cual tiene que llegar abuso que no fue físico es el de crueldad extremada. Un fallo de crueldad extremada requiere el examinar de: • • • • la dinámica de su relación su sentido de bienestar antes del abuso los actas específicos durante el periodo de abuso, y su calidad de vida y su poder funcionar después del abuso (los efectos o repercusiones del abuso)

Los factores de crueldad extremada incluyen a aislamiento social, posesividad, acoso u hostigamiento, amenazas, abuso económico, y degradación. Para cada de las seis categorías indicadas abajo, escriba (tanto como pueda): a. cuántas veces en total ocurrió, y por cada vez: b qué es lo que pasó c. la fecha aproximada y tiempo del día que pasó, si se acuerda d. en dónde ocurrió (por ejemplo, en nuestro apartmento en {de la direccion], o en casa de mi madre, y e. quién más estaba presente ------1. Coerción y amenazas: En alguna ocasión el:

la forzó a hacer algo ilegal? La amenazó con matarla? La amenazó con deportación? La amenazó con quitarle sus hijos? por hacer que ellos fueran deportados? por secuestrarlos? o usando trámites legales, como conseguir custodia legal en corte? o por hablar al Departamento de Servicios a Niños y Familias? Amenazarla con hacerles daño a sus hijos? Intentar controlarla a través de sus hijos? Cómo? Usar a los hijos para pasarle mensajes amenazantes? Intimidarla por: mostrar un arma de fuego o de otro tipo? Quebrar objetos, especialmente objetos que le tienen valor sentimental? Destruir propiedad? Usar gestos que causan miedo? 2. Abuso verbal:
34

Cuáles palabras, insultos, o nombres específicos usaba? Qué tono de voz tenia al decir estas cosas? Cómo se terminó cada incidente? Quién salió del cuarto o del hogar? Todo simplemente regresaba a “normal”, o tuvo Ud. que pedirle perdón, aplacarlo, o actuar con mucho cuidado para no volver a tener problemas con el?

3.

Abuso emocional:

Su esposo la insultaba? ofendía a su país natal o a su familia? devaluaba lo que Ud. hace? hacía que Ud. se pensara loca y que nadie le iba a creer? la convenzó que nadie más que el la podría querer? minimizaba o negaba que su conducta de el era o es abusiva? le echaba la culpa por haber causado la violencia y otro abuso?

4.

Aislamiento de familia y amistades:

Su esposo le negaba permitirle hablar por teléfono, a familia y a amistades aquí? o hablar a larga distancia, a su país natal? Le limitaba acceso a correo, a amistades, o a familia? No le permitía: estudiar inglés? salir de la casa sin el? aprender a manejar? trabajar fuera de la casa? Hablar con nadie más el y miembros de la familia? Explique qué cosas específicas hizo o hacía su esposo, y también indique: Por cuánto tiempo duró? Qué hizo o hacía Ud. en reacción? Cómo se sentía Ud. como resultado de las acciones de el? 5. Posesividad:

Si su esposo era posesivo o celoso, cómo se notó? Qué es lo que el hacía y decía? Qué hizo o hacía Ud. en reacción? Cómo se sentía Ud. como resultado de las acciones de el? 6. Abuso económico: Le limitaba acceso a los recursos económicos (dinero) de la familia? Hacia decisiones familiares de tipo económico sin consultar con Ud.? Le controlaba su pago?
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Malversó fondos de la familia? Le robaba su dinero? Hacía otras decisiones mayores del hogar, como cambios de dirección, sin o sin ni consultar con Ud.? o sin poner ninguna atención a su opinión? Decía que el tenía actuar así, como era su privilegio como el hombre de la familia?

7.

Cambios en la calidad de su vida:

Qué hacía Ud. para aguantar el abuso? Cómo cambió su visa a causa del abuso? Cómo fue afectada por el abuso? Qué que los que Ud. cree que causó los cambios?

Como evidencia de lo arriba mencionado, se permite someter reportes psicológicos, reportes de policía, y/o afidavits notarizadas (declaraciones juradas) de otras personas que corroboran o confirman sus reclamos. Las personas que escriben y firman estas afidavits (“declarantes”) tal vez sean requeridas atestiguar ante un oficial de Inmigración (USCIS), y por lo tanto deben incluir su dirección y teléfono en su declaración. Su abogado/a o representante legal tal vez pueda ayudarles a escribir estas declaraciones, y por eso, digale quién Ud. cree podría estar dispuesto darle una. Ellos deben de describir, con tánto detalle como sea posible, lo que oyeron o vieron por sí mismo/a, como si fueran periodistas describiendo una escena. Esto es especialmente importante si de veras directamente oyeron o vieron un incidente de abuso mientras ocurriera. Si ellos supieron del abuso físico o emocional sólo después, deben describir cómo llegaron a saber del abuso, que es lo que Ud. les dijo y cuándo, cuál era su aspecto de Ud. y cómo era su voz al contárselo, y qué vieron a Ud. hacer. Si vieron alguna lástima que Ud. recibió a manos de su esposo, deben describir lo que vieron y cuándo, y qué es lo que Ud. les dijo sobre cómo recibió la lástima.

Sample Certificate of Translator’s Competence
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CERTIFICATION BY TRANSLATOR

I, _______________ , certify that I am fluent (conversant) in the English and _______________ ___languages, and that the above/attached document is an accurate translation of the attached document, entitled _______________ _______________ . Signature: _______________________________________________________

Typed name: _______________________________________________________ Firm: _______________________________________________________ Address: _______________________________________________________ _______________________________________________________ _______________________________________________________ Date: ___________________

HOW TO GET PROOF OF OUTCOME
37

OF CRIMINAL ARRESTS FOR USCIS Most types of immigration applications require you to submit to fingerprinting. If you have ever had a non-traffic arrest and are self-petitioning under the Violence Against Women Act or applying for legal permanent residency or U.S. citizenship, then U.S. Citizenship and Immigration Services (USCIS) will probably learn of the arrest from your fingerprints. However, it is your responsibility to provide USCIS with an official document or “disposition” that shows how the case was resolved, certified by the clerk of the court. The information below is only for criminal cases originating in Chicago or elsewhere in Cook County. If you were arrested and/or prosecuted outside of Cook County, contact the clerk of court for that county instead. CERTIFIED DISPOSITION To get a “certified disposition” for a case from anywhere in Cook County, go to the clerk of the court either in your municipal district, or in Room 1006 on the 10th floor of the Daley Center in downtown Chicago. If you already know the case number(s), give it to the clerk at the counter at the far end of the room; if not, ask the clerk to search using your name, date of birth, and the approximate date of the arrest. The clerk will then print the disposition from the computer, and certify it by affixing a raised seal. The fee for a certified disposition as of March 2005 is $9. Your immigration advocate will probably also want to see a copy of any criminal complaints on which you had to appear in court. To get copies, you must first order the actual file. Room 1006 has access only to misdemeanor files, and only for cases from within Chicago itself (the First Municipal District), and only has same-day access to cases from the current year and the 3 prior years. Earlier cases must be ordered from the warehouse, and take 3 to 5 business days to arrive. When the file has arrived, you must pick it up from the long counter, then ask the clerk at the shorter counter at the far end of the room to make you a photocopy of the complaint and arrest report. The fee is $2 for the first page and $0.50 for each page thereafter. Address: Clerk of the Circuit Court of Cook County Daley Center, Room 1006 118 N. Clark St., Chicago, IL (312) 603-4641 Hours: Monday - Friday, 8:30 a.m. - 4:00 p.m.

Telephone:

If you need a felony complaint in Cook County, you must contact the clerk of court for felony court, such as at 26th & California. If you need a felony or misdemeanor complaint from outside Chicago, you must visit or call the clerk of that appropriate municipal district, e.g., 2nd = Skokie, 3rd = Rolling Meadows, 4th = Maywood, 5th = Bridgeview, 6th = Markham.

GUIDELINES FOR LETTER OF SUPPORT FROM
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COUNSELOR, ADVOCATE, OR OTHER DOMESTIC VIOLENCE EXPERT

1.

Introduction

Your client is filing a self-petition with the U.S. Citizenship & Immigration Services (CIS, the new name of the Immigration & Naturalization Service, or INS) under the Violence Against Women Act (VAWA). A VAWA self-petition allows the abused spouse or child of a legal resident or U.S. citizen to start or continue on with the process of obtaining legal permanent residency in the United States, taking control over the process out of the hands of the abuser. Your letter is needed to help prove to CIS that your client was in fact physically abused and/or subjected to extreme cruelty by her spouse. Please note: If a letter is needed for the case very soon and you do not have time to prepare a detailed one, ask your client or her immigration advocate if a very short, simple one would be enough for now, maybe just verifying having seen you for counseling related to the abuse in her marriage. Then provide a more detailed letter later.

2.

What to address

Your letter should be on agency letterhead, signed, and dated. If it is easy to notarize it, please do so. (If you would like to see examples of what to write, ask your client‟s immigration advocate to send you some sample letters.) First, provide your credentials: briefly describe your experience with domestic violence: your job title, how long you have worked with DV victims, etc. Then, if this information is available, state: - how many individual and/or group sessions the client has attended with you or at your agency. - the approximate duration of each session - the specific dates or inclusive dates of these sessions - the topics discussed: - Describe, in detail if possible, what the client told you about the domestic violence (physical violence and/or extreme cruelty). - If possible, explain why what she told you was credible to you, given your experience of working with survivors of domestic abuse (you may want to describe her appearance or emotional affect in speaking of the abuse). - Explain why what she told you IS domestic violence; and - Provide - an evaluation of her progress, and - an opinion on future counseling needs.

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3.

Extreme mental cruelty

Where there is little or no proof of any physical violence, then the client may need to prove that she was subjected to extreme cruelty. In deciding whether abuse constituted extreme cruelty, CIS wants to know how the abuser‟s conduct impacted on the self-petitioner‟s qualify of life. To make a finding of extreme mental cruelty, CIS needs have a sense of: o o o o the dynamics of the relationship the client‟s sense of well-being before the abuse what things she did to deal with the abuse as it was happening how her life changed as a result of the abuse: compare her quality of life and ability to function before, and afterwards o what she feels caused the changes Please read through the following outline and mention at least the major aspects of the nonphysical abuse that your client suffered, stating where possible both what she said the abuser did, and how she felt or was affected as a result: The factors of extreme cruelty include: Coercion: o for her to engage in illegal activity o trying to control her through her children (state how) o using the children to relay threatening messages to her Threats to: o kill her or hurt her o get her deported o harm her children o take her children away from her o by getting them deported o by kidnapping them or o through legal processes, such as:  getting legal custody in court  calling the Department of Children and Family Services against the client Intimidation: o by displaying a weapon o by smashing objects, especially objects with sentimental value for her o by destroying property o by using gestures that create fear Verbal and emotional abuse and degradation: o calling her names o putting down her home country and family o devaluing what she does
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o o o o

telling client she‟s crazy and no one will believe her convincing her that no one other than he would ever want her minimizing or denying that his behavior is or was abusive blaming her for causing his violence or other abuse

Isolation from family, friends, and society: refusing to let her o speak on the phone, to family and friends here or in her home country o speak to neighbors, relatives, co-workers, friends, or other people outside the family o visit her friends and family o have access to the mail o learn English o learn to drive o work outside the home o leave the home unaccompanied, or at all Extreme jealousy or possessiveness: interrogating her about things like: o where she went, why, and with whom, if she goes out at all, or if she gets back late o phone calls while he was out o checking her whereabouts by calling repeatedly o having a relative check on her or stay with her Economic abuse: o limiting her access to money and to family financial resources o controlling her paycheck o misusing family funds o stealing money from her o making family financial decisions and other major household decisions, such as moving, without consulting her o or without caring about her opinion  claiming “male privilege” to do these things

4.

Further evidence of abuse

Further evidence: In addition to her own detailed affidavit, your client may submit: o psychological reports or statements from counselors or social workers o detailed police reports or criminal complaints o notarized affidavits (sworn statements) from other persons corroborating her claims. Written statements have the most value as evidence if the people writing and signing them state that they are willing to testify before an officer of the U.S. Citizenship and
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Immigration Services (formerly INS), and include their address and daytime phone. Your client‟s lawyer or immigration advocate may be able to help them write these statements, so your client should tell him or her who she thinks might be willing to provide one. Your advocate may be able to send a guide for these people to use in writing their statements. These statements should describe, with as much detail as they can, what they heard with their own ears, or saw with their own eyes, as if they were news reporters describing a scene. This is especially important if they actually heard or saw any abuse as it was taking place. If they learned of the physical or emotional abuse only afterwards, they should describe how they learned of it, what she said to them, approximately when or under what circumstances, how she looked and sounded at the time, and what they saw her do. If they saw any injuries that she received from her spouse, they should describe what they saw, where, and when, and what she told them about how she got them.

FILING THE VAWA PETITION: PRACTICE TIPS
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•

File all materials related to VAWA (I-360 self-petitions, responses to RFEs, and VAWAbased applications for employment authorization), by U.S. mail or courier service, to:

Attn: VAWA Unit U.S. Citizenship & Immigration Services Vermont Service Center 75 Lower Welden St. St. Albans, VT 05479-0001 • • To doubly ensure that the self-petition reaches the VAWA Unit, write “VAWA” on the mailing envelope in large letters or in red. If the self-petitioner already has a priority date (PD) through an I-130 petition by her spouse, highlight this in a cover letter, requesting that her PD be preserved. In your support documents to the I-360, include a copy of an I-130 approval notice or receipt wherever possible, correspondence from the National Visa Center, or from the U.S. Department of State Immigrant Visa Section. Organize your index to supporting documents using the five VAWA requirements. One way that fits together nicely is: A) her identity, immigration history (admission stamps in her passport and other immigration documents, if any), and good moral character; B) her legally valid marriage to the abuser (termination of any prior marriages), and his immigration status; C) good faith of marriage and joint residence; and D) abuse. As of March 2005, filing fees are $185 for the I-360 and $175 for the I-765 (work permit application). A single money order, payable to “Department of Homeland Security,” can be submitted – but wherever possible, seek fee waivers instead. If the self-petitioner is requesting a fee waiver, highlight this in the caption of your cover letter, and also write “FEE WAIVER ATTACHED” at the top of each application (I-360, I-765, and where applicable, I-485). On top of the I-360, attach a fee waiver application signed by the self-petitioner, showing number and age of dependent children, and declaring under penalty of perjury her income, expenses, and assets, if any. Important: Attach copies of correspondence or other documents showing (a) receipt of public benefits in the last 6 months by her household members: food stamps and LINK card, children‟s KidCare or Medicaid card, her medical card during pregnancy, welfare (TANF, Temporary Assistance to Needy Families),WIC coupons (supplemental food for Women, Infants, and Children), or school lunch program; or if no benefits, document (b) her income and basic expenses (rent, etc.). When filing a concurrent adjustment application, attach a separate photocopy of the complete fee waiver application to the I-485, with copies of children‟s birth certificates. Sample Fee Waiver Request
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•

•

•

•

•

SWORN DECLARATION OF INCOME AND EXPENSES

The undersigned, under pain and penalty of perjury, hereby states as follows: 1. I am . I cannot afford to pay the filing fee for my selfpetition as an abused spouse, and my application for employment authorization, and am providing this information in support of my request for a fee waiver. 2. I live at________________________________________with my dependent children who are __________________________________years old. 3. My household present economic condition is: s MONTHLY INCOME: (net) Earnings: Other: Self: Spouse (child support) _______________ _ : _ : $______ _______ _______

TOTAL:

$

___

MONTHLY EXPENSES: Rent Gas for cooking/heating Electricity Telephone Water Food Clothing and shoes Medical and dental Non-auto insurance Car payments and insurance Gasoline Other transportation Child care Miscellaneous: $______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______ _______

TOTAL: $______ ASSETS other than furniture, clothing, and other personal effects and necessities for myself and my family:
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: : : TOTAL:

$______ _ _______ $______

DEBTS AND LIABILITIES: : : : TOTAL: $______ _______ _______ $______

4. I swear under oath and under penalty of perjury that the foregoing has been translated to me into Spanish, and that it truthfully states my household financial condition. Juro bajo s pena de perjurio que lo antedicho me ha sido traducido al español, y que verdaderamente indica la condición económica de mi hogar.

______________________________________ Date

CIS RESPONSES: PRACTICE TIPS

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•

Within two to three weeks after the I-360 arrives in Vermont, the VAWA Unit normally issues (a) an I-360 receipt, and under separate cover a week later, (b) a blue cover sheet for submitting any further evidence not specifically requested, and (c) a Prima Facie Determination (PFD). The PFD indicates that the VAWA petitioner has asserted facts in her affidavit which, if proven, would lead to approval of the petition‟s approval. The PFD‟s purpose is to help her and her non-U.S. citizen children access certain public benefits. Under a special “abused noncitizen” provision of the state public aid policy, she must be very low-income, have at least one child under age 18 at home, already live apart from the abuser or plan to within a month of receiving public benefits, and be able to show a connection between the abuse and the need for benefits. Explain to your client that under a special immigration rule for VAWAs, none of the public benefits she and her children get will prejudice their green card applications later on, and give her the original PFD to show at her local Illinois Department of Human Services office. If she lives in Cook County, tell her that if she has any trouble getting these benefits, she should immediately call LAFMC‟s free bilingual Public Benefits Hotline, 1-888-893-5327, and give her a copy of the Hotline flier at pages 9.18 – 9.19). This way, LAFMC may be able to intervene to ensure that the benefits are properly granted. For more on benefits, see pages 9.15 – 9.17. The I-360 receipt assigns the VAWA petitioner an A-number, if she does not already have one. This number will be the unique identifier for her entire immigration file and for her permanent resident card (“green card”) when she obtains LPR status. Using the receipt number, you can check status online for most applications and petitions filed with CIS, including VAWA petitions and EAD applications. (All personal identifying information – applicant‟s name, A-number, address, and so forth – remains confidential.) Go to the USCIS website, www.uscis.gov. In the column on the left, click on “Immigration Services and Benefits Programs,” “National Customer Service Center,” “Case Status Online,” and the word “online.” The system shows the most recent action on most CIS Forms, including the I-130, I-360, I-765, and I-485: date of receipt, date any Request for Evidence was sent, date a response was received, and date of approval. For trouble-shooting, leave a message on the VAWA Advocates’ Help-line, (802) 5274888. VAWA Unit staff usually respond within 24 hours. To maintain the help-line‟s efficiency, this number is for use by advocates only, not by VAWA petitioners themselves. Before calling, always check Case Status Online, and in your message, mention what you found. (You can skip the long recorded message by hitting the # key.) If Vermont does not decide the VAWA petition before the PFD expires, it usually issues a notice extending the PFD for 6 months. If the extension has not arrived but is needed for initial public benefits or for continuation of benefits, call the Advocates‟ Help-line and ask that one be faxed to you. The original will then be mailed. At present (3/05), Vermont usually sends a Notice of Action about 8 months after filing,

•

•

•

•

•

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either approving the VAWA petition, or requesting additional evidence. If you or your client obtain further evidence at any point during this initial period, such as her FBI fingerprint report, proof of termination of her or the abuser‟s prior marriage, a more detailed counselor letter, a plenary order of protection, or proof that the abuser has been convicted of domestic battery, send it to the VAWA Unit with the blue cover sheet on top. • If Vermont does send a Request for Evidence (RFE, or “blue letter”), it will set a 60-day deadline for your further evidence to arrive at the VAWA Unit. If you need more time as the deadline approaches, submit a written request for an extension; putting the original RFE on top, and make sure your request arrives at Vermont by the original due date. The VAWA Unit will send a notice granting another 60 days. Once all your additional evidence is ready to send, put the original RFE or extension grant on top, or a copy of the RFE if you requested more time but have not yet a response. It may be helpful to add a letter listing the new documents and explaining which requirement(s) they meet. APPROVAL NOTICES • The I-360 approval notice will show the priority date (either be the date the I-360 was received at Vermont, or if requested, a date an I-130 by the LPR spouse was received). VAWAs get to use this earlier PD even if the abuser withdraws the petition or dies, or the couple divorce. If any noncitizen children were listed on the VAWA petition, Vermont should also issue a Supplemental Notice of Dependent Children listing them as derivative beneficiaries. Notice of Deferred Action: Deferred Action is a formal decision that, given the approved petitioner‟s status as an abused immigrant, DHS will not take any steps to deport her for lack of papers. Deferred Action allows her to live legally in the U.S. until she can apply for adjustment to permanent residency, and entitles her to a work permit (Employment Authorization Document, or EAD), provided she shows an economic necessity to work. The initial Deferred Action grant is for 15 months. An application to renew an EAD is considered to be a request to renew Deferred Action for another year. If no new EAD is needed, Deferred Action alone can be renewed by written request. Once a VAWA I-360 petition is approved, not only can the petitioner/beneficiary have Deferred Action and an EAD until her priority date becomes current, she is also free to remarry and still use her VAWA to adjust later on. By contrast, when an I-130 petition by an LPR spouse is approved, the beneficiary does not get Deferred Action, is not entitled to a work permit while she waits for her priority date to become current, and cannot divorce (let alone remarry) without terminating her rights under the I-130. ELIGIBILITY FOR EMPLOYMENT AUTHORIZATION

•

• •

•

•

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When CIS approves a VAWA petition, it an approval notice and an Initial Notice of Deferred Action. Deferred Action is a formal decision by DHS not to initiate removal proceedings, inasmuch as approved VAWA petitioners are a very low priority for removal. Persons with Deferred Action qualify for work permits on showing an economic necessity to work. Each year, a timely application to extend the work permit is treated as a request to extend Deferred Action, allowing the VAWA petitioner to keep renewing both until she becomes an LPR. For a VAWA petitioner, the ability to obtain employment authorization and then maintain it without any gaps can be vital to her survival. She may have become the sole support of young children, and an expired work permit can mean losing her job. The need to keep an EAD current is especially important to those whose abusive husbands are or were lawful permanent residents, since they may have to wait as much as ten years before adjusting to LPR status through VAWA. CIS issues work authorization as an Employment Authorization Document (EAD) that bears the applicant‟s, A-number, birth date, photograph, and signature, and shows the “category” or subsection of the CIS regulation on which that particular EAD is based. 8 CFR § 274a.12 defines which immigrants are entitled to work in the U.S. See pages 9.4 – 9.7. Your client should take her initial EAD, with her original birth certificate (and if still using her married name, her marriage certificate) to her local Social Security office and apply for a Social Security number. Once the SS card comes (2 –3 weeks,), she can apply for a state ID and driver‟s license. PRACTICE TIPS ON EAD APPLICATIONS Approved VAWA: Deferred Action, Category (c)(14): If the VAWA petitioner is not yet eligible to adjust status because her husband is or was an LPR and her priority date (if any) is not current, it is best to submit an EAD application (CIS Form I765) to the VAWA Unit along with the VAWA petition. The VAWA Unit will hold the I-765 until approving the VAWA petition and granting Deferred Action, then issue the EAD. On the I-765, at Question 16 (“Category”), write “(c)(14).” This is for 8 CFR § 274a.12(c)(14), the Deferred Action subsection. If a fee waiver is sought for the I-765, it will also meet the economic necessity requirement. To seek or renew a (c)(14) EAD, send, Attn: VAWA Unit:  either a $175 money order, payable to “Department of Homeland Security,” AND proof of economic necessity (affidavit of dependents, income, assets, and expenses)  OR fee waiver request whenever possible, documented as for I-360, with FEE WAIVER REQUESTED written across top of I-765  I-765 signed by the client, and by you as the preparer  photocopy of unexpired, government-issued photo ID (driver‟s license, state ID, consular ID (e.g., Mexican matrícula consular), or unexpired foreign passport  photocopy of most recent EAD, if any

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 two passport photographs (not discontinued ¾ profile “green-card” type) Note: In December 2004, CIS announced that many types of applications must now be sent to a new P.O. Box, the “Chicago Lockbox Facility” (see below). These include I-765s based on Deferred Action, category (c)(14). CIS subsequently amended its regulations to clarify that if a (c)(14) I-765 (Deferred Action) is based on an approved VAWA, it does not fall under the new procedure, and should not be sent to the Chicago lockbox. Pending Adjustment Application (I-485): Category (c)(9): I-485 already pending: For VAWA petitioners who already have a pending adjustment application, use category “(c)(9).” One way to renew a (c)(9) EAD is by mailing the I-765 to the new “Chicago lockbox”: U. S. Citizenship and Immigration Services, P.O. Box 805887, Chicago, IL 60680-4120. When the applicant gets her I-765 receipt in the mail, she must call USCIS Customer Service to schedule her “biometrics appointment” at a USCIS Application Support Center. There, her photo will be taken and she will sign the card that will become her EAD, and affix a thumbprint. The EAD can then take several more months to arrive in the mail. A quicker option for renewing a (c)(9) EAD is to do it all by mail through Vermont. This is possible because the VAWA Unit requests any prior files of the petitioner for review before it can decide the I-360. Before sending a (c)(9) I-765 to Vermont, call the VAWA Advocates‟ Help-line at (802) 427-5888 to confirm that the adjustment file has arrived. I-485 will be soon be pending because it will be filed concurrently with VAWA: If an adjustment application is not yet on file, but either (a) the VAWA petitioner’s husband is a USC, or (b) he is an LPR and her priority date is current, she is immediately eligible to apply to adjust status. Sending her I-485 to Vermont while the VAWA is pending, including a (c)(9) I-765 and 4 photos, has several advantages: she can seek a fee waiver on all three applications (saving $675), her adjustment process is more efficient, and she gets her EAD much sooner than by waiting for her VAWA to be approved. Applications for EADs in category (c)(9) are adjudicated by the general VSC, not the VAWA Unit; the EAD arrives in two to four months. To seek or renew an adjustment-based EAD, send:  either a $175 money order (3/05), payable to “Department of Homeland Security”  OR whenever possible, fee waiver request, documented as for an I-360 and with FEE WAIVER REQUESTED written across top of I-765  I-765 signed by the client, and by you as the preparer  photocopy of an unexpired, government-issued photo ID  photocopy of most recent EAD, if any  photocopy of I-485 fee receipt, if any (issued by INS or CIS cashier, or I-797 receipt letter from USCIS National Benefits Center or Vermont Service Center)  two passport photographs (not discontinued ¾ profile “green-card” type) PUBLIC BENEFITS FOR IMMIGRANT ABUSE SURVIVORS

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Once a VAWA petition is on file, needy abuse survivors may qualify for public benefits that can help them escape from the abusive situation, or make ends meet when their abuser will not provide for food, clothing, health insurance, and other basic needs. To qualify, immigrant abuse survivors must be able to show a connection between the abuse and the need for benefits. If they have very low income, at least one child under 18 at home, and are recently separated or plan to separate soon, they may be able to receive medical cards and welfare money (TANF, Temporary Assistance for Needy Families). Their U.S. citizen children in low-income homes already qualify for food stamps (the LINK card), and under the special “abused noncitizen” provision of the Illinois Department of Human Services, noncitizen children of abuse survivors can also receive food stamps, and abused spouses can receive a medical card of their own. Many immigrants who hope to become permanent residents someday are afraid to seek any public benefit for themselves or for their U.S. citizen children. They fear that receipt of food stamps, welfare money, or medical care -- even labor and delivery or emergency medical services -- will count against them when they apply for their green cards, and might cause their immigration cases to be denied. This fear is largely unfounded. It is true that the public charge ground of inadmissibility at INA § 212(a)(4) requires intending immigrants to show they are “not likely to become a public charge,” and that the application for adjustment of status includes a question asking whether the he or she has ever received any public assistance, or is likely to in the future. However, as clarified by INS regulation in 1999, legal residency applications are never prejudiced by an intending immigrant or her household member‟s receipt of in-kind benefits, such as food stamps, WIC coupons, medical card, reduced-rate school lunch, etc. The only two types of public assistance that can affect an adjustment application are means-tested cash benefits, such as TANF and Supplemental Security Income (SSI) under Title XVI, and long-term institutional care. See INS‟s 10/99 “Quick Guide to „Public Charge‟ and Receipt of Public Benefits” at pages 9.16 – 9.17. In addition, the immigration statute specifically exempts VAWA beneficiaries from having cash benefits like TANF taken into consideration with regard to public charge. Please refer VAWA petitioners who live in Cook County and have questions or problems getting these benefits to the free, bilingual Public Benefits Hotline of the Legal Assistance Foundation of Metropolitan Chicago, Monday - Friday, 10 a.m. to 3 p.m., at (888) 893-5327. The Hotline‟s flier in English and Spanish is at pages 9.18 – 9.19. Food stamps and WIC coupons are particularly underused in the immigrant community. Whether a battered immigrant is contemplating leaving her abuser, or is already struggling to raise her children on her own with no child support, these benefits can provide desperately needed resources, and help her find a family life free of violence.

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ADJUSTMENT OF STATUS FOR VAWA PETITIONERS

Winning approval of a VAWA petition does not yet mean that your client has obtained legal permanent residency. An approved I-360 petition simply gives her the right to take the next step: applying for LPR status. In order to become an LPR, she must apply for “adjustment of status” to lawful permanent residency with USCIS in the U.S., or for an “immigrant visa” at a U.S. consulate abroad. (Since nearly all of your clients will be applying from within the U.S., only the procedures for adjustment of status are covered below.) To obtain legal residency, adjustment applicants must both be legally “admissible” to the U.S., and be accorded a favorable exercise of discretion by CIS. Please refer to the following section on admissibility to ensure that your client will not be barred from adjusting status. A complete VAWA-based adjustment of status application consists of: 1. 2. 3. 4. 5. Copy of I-360 approval notice (I-797 Notice of Action) G-28 Notice of Entry of Appearance, if represented, signed by client and counsel Form I-485 Application to Register Permanent Residence or Adjust Status Form G-325 Biographic Information (only if age 14 years or older) Form I-693 Medical Examination of Aliens Seeking Adjustment of Status and vaccination supplement (Supplemental Form to OF-157), completed by a physician designated as a “civil surgeon” by CIS. The Civil Surgeons Locator on the USCIS website, www.uscis.gov, can be used to find the nearest ones by zipcode. Under Hot Topics, go to How Do I? (FAQs), then Civil Surgeon or Medical Examination. Filing fee (as of 3/05, $315 if age 14 or older, $215 if under 14; by money order payable to “Department of Homeland Security”), or Fee Waiver Request Fingerprint fee (only if age 14 years or older) (as of 3/05, $70 -- cannot be waived) Two passport-type color photographs (not the discontinued ¾-profile “green card” type) If applicant ever entered the U.S. legally, copy of passport, admission stamps, visa, I-94 Copy of unexpired government-issued photo ID (passport, consular or state ID, or driver‟s license) Copy of birth certificate (with certified translation) Copy of marriage certificate (with certified translation)

6.

7. 8. 9. 10.

11. 12.

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13. 14.

Proof of employment, tax returns, or other proof of economic independence Application for Waiver of Inadmissibility Grounds (if necessary)

PROCEDURAL ISSUES

Abuser = U.S. Citizen (USC) If your client‟s husband is or was a USC, she is an “immediate relative” and is thus immediately eligible to apply for adjustment to permanent residence. She is not subject to the preference categories and visa backlogs, so her case is not governed by priority dates. To save time and obtain an EAD much quicker than through VAWA alone, she may submit her adjustment application and EAD application to Vermont together with her VAWA petition. In two to four months, Vermont will issue an EAD under Category (c)(9) (pending adjustment application) and then forward the I-485 to the Chicago district office of CIS. Chicago will then schedule her for fingerprinting. The published CIS policy is to hold adjustment cases in abeyance, on request, so long as a VAWA petition is filed before the adjustment application is adjudicated. If an adjustment interview is scheduled too soon, attend it with the client, offer a copy of the I-360 receipt, and ask that the adjustment application be held in abeyance until after the VAWA is approved.

Abuser = Lawful Permanent Resident (LPR), But No Petition Filed If your client‟s husband is or was an LPR, she is a “second-preference” immigrant, meaning she may have to wait up to eight years before she can apply to adjust her status. If her husband never filed any I-130 on her behalf, her priority date (PD) or “place in line” will be the date her I-360 arrived in Vermont. To find out which priority date holders are now eligible to apply for LPR status, consult the monthly Visa Bulletin published by the U.S. Department of State. You can find this at www.uscis.gov. In the column on the left, go to Immigration Services and Benefits Programs, and in the middle of the page, the link to Visa Bulletin. Once on the USDOS website, click on Current Bulletin. The coming month‟s bulletin is published around the 20th of each month. Look at the family “second-preference” category (spouses and minor unmarried children of LPRs, or F2A), in the column showing your client‟s country of citizenship (the first column, unless she is from Mexico, India, or the Philippines). When the priority date on the present month‟s Visa Bulletin for family second-preference is more recent than your client‟s priority date, her priority date has “become current,” meaning she is now eligible to apply to adjust her status. If your client‟s priority date is current and her VAWA petition is already approved, she mails her

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adjustment packet to a special post office box for the USCIS National Benefits Center; the NBC will review the packet for completeness and forward to her local CIS district office. If her priority date becomes current before her VAWA is filed, or before it is approved, she can file her adjustment to the VAWA Unit, with the advantage of getting an EAD much sooner than through VAWA alone.

Abuser = LPR and Petition Already Filed If your client‟s LPR spouse already filed an I-130 for her, she may be able to retain the earlier priority date of that petition, and save years of waiting to apply for permanent residency. Under the special rules for VAWAs, she can use the I-130 priority date even if her husband withdraws the petition, the couple divorces, or he dies.

Abuser = USC or LPR, and Adjustment Application is Pending If your client has already applied for adjustment and the application has not been denied, you should send a status inquiry to Customer Service of Chicago CIS to advise them that she will soon be filing a VAWA petition, and requesting that her adjustment application be held in abeyance until the I-360 is adjudicated. Once an interview is set, the national policy is to allow only 30 days after the interview to get a VAWA petition on file. Even if you can only file a skeletal petition with a very short and simple affidavit, this will be enough to protect your client under the abeyance policy. As soon as you get the I-360 receipt, file a second abeyance request status inquiry with a copy of the receipt attached. Then, when the I-360 is approved, submit a status inquiry with a copy of the approval notice attached, asking that your client be refingerprinted if needed, and that the case be set for interview. This way, the client can substitute her VAWA approval notice for the I-130 filed by her spouse, and can adjust status using her pending adjustment application instead of having to file a new one.

ADMISSIBILITY ISSUES In order to be granted lawful permanent residency, a person must be “admissible” to the U.S. The statutory inadmissibility grounds are found at INA § 212(a) (8 USC § 1182). Both general and VAWA-specific waivers are available for some of the grounds. The most relevant grounds of inadmissibility for VAWA petitioners are: Health-Related Grounds (communicable diseases, lack of vaccination records, threatening illnesses, drug abuser/addict) • Special waiver available for VAWA petitioners for communicable diseases. INA § 212(g)(1)(C)

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• •

General waiver available for lack of vaccination records. INA § 212(g)(2) General waiver available for threatening illnesses. INA § 212(g)(3)

Criminal and Related Grounds (criminal convictions) • • Special waiver available for VAWA petitioners for minor crimes INA § 212(h)(1)(C), as amended by the Victims of Trafficking and Violence Protection Act (“VTVPA”) § 1505(e) Special waiver for VAWA petitioners with domestic violence convictions. INA § 237(a)(7)(A), as enacted by VTVPA § 1505(b)

Security and Related Grounds (terrorist activity, membership in a totalitarian party)

Public Charge • Unlike other family-based adjustment applicants, VAWA petitioners are not required to file an Affidavit of Support (I-864), and they will not be deemed a public charge for receiving public benefits provided for under the abused noncitizen provisions. However, when applying for adjustment of status, VAWA petitioners must still establish that they will not become a public charge, normally by showing proof of employment, job offers, assets, etc.

•

Illegal Entrants and Immigration Violators • A special waiver is available for VAWA petitioners for “visa fraud” if they can show that they themselves, their USC or LPR parent, or their child (whether or not a USC or LPR) would suffer “extreme hardship” if they were removed from the U.S. INA § 212(i)(1), as amended by VTVPA § 1505(c).

Aliens Previously Removed (Deported) or Unlawfully Present Anyone who accumulates 6 months to a year of “unlawful presence” in the U.S. and then departs – no matter however urgent or valid the reason for the trip -- triggers a three-year period during which they cannot be readmitted to the U.S. The only exception is normally to remain abroad, apply for, and obtain a waiver of inadmissibility which requires showing that denial of admission would cause extreme hardship to the traveler or to her LPR or USC parent(s) or spouse. Hardship to the traveler herself, or to her LPR or USC children, is irrelevant. If she has accumulated more than a year and then travels, the bar is for ten years instead of three. These harsh consequences are known as the “3-year and 10-year bars.” If this same person returns to the U.S. without first winning the waiver, then she is “permanently” barred from being admitted or obtaining legal residency. In reality, she can be

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readmitted someday, provided she leaves the U.S. again, waits abroad for ten years from the date she leaves, and then applies for and wins the same waiver she neglected to obtain earlier. Although the law in this area is not written clearly and is not settled, advocates believe that approved VAWA petitioners are not subject to the unlawful presence bars in certain situations: • If she can show that she first arrived in the U.S. before April 1, 1997, she is not subject to the bar. Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) § 301(c)(2). If she first arrived in the U.S. on or after April 1, 1997, the bar can be waived if she shows a “substantial connection” between the abuse, and her unlawful presence in the U.S. IIRIRA § 301(c)(2). If she triggered the 10-year bar to admission by accruing one year or more of unlawful presence and then leaving the U.S., then triggered the “permanent bar” by reentering or attempting to reenter the U.S., the bar can be waived if she shows a “connection” between the abuse she suffered and her departure, reentry, or attempted reentry. INA § 212(a)(9)(C)(ii), as amended by VTVPA § 1505(a).

•

•

Inadmissibility waivers are applied for on Form I-601, with the filing fee or fee waiver request, and a complete set of supporting documents, as a freestanding packet separate from the adjustment application or VAWA petition. Please contact an LAFMC immigration attorney for assistance if your client appears to have any inadmissibility issues. The law on admissibility is complicated and often changes.

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PREPARING FOR THE INTERVIEW

After the I-485 is submitted, CIS will send her a notice telling her to go to a CIS Application Support Center to be fingerprinted for a criminal background check. A few months after fingerprinting, she should receive notice of her adjustment interview at the local CIS office, usually about six weeks before the interview date. Make sure you bring the following documents to the interview: • Your copy of the I-360 petition and supporting documents (CIS should have the VAWA file there), and the original I-360 approval notice to show • Your copy of the I-485 packet

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• •

Original marriage and birth certificates, and any divorce decrees Additional documents shown below under What to bring

Usually, the adjustment interview for an approved VAWA petitioner is uneventful and the CIS officer will only ask her a few routine questions. However, sometimes an inexperienced or difficult officer, or one who has not had the time to review the VAWA file, will start questioning your client about the abuse she suffered. If this happens, inform the officer that the I-360 has already been adjudicated by the Vermont Service Center, which retains authority to re-examine approved I-360s. Refer the officer to the August 5, 2002 INS Memorandum, “Revocation of VAWA-Based Self-Petitions (I360s),” and ask to speak to a supervisor. Some officers may try to trick your client into admitting information that could make her inadmissible and ineligible to adjust, e.g., “When was the last time you voted in the U.S.?” This is relevant because only U.S. citizens can vote, voting illegally is a ground of inadmissibility under INA § 212(a)(10)(D), and a false claim to citizenship makes a person permanently inadmissible under INA § 212(a)(6)(C)(ii). You should prepare your client for her adjustment interview by practicing with a mock interview. If your client does not feel confident speaking English, you must find an interpreter to accompany you to the interview. Under CIS policy, the interpreter cannot be the applicant‟s relative or attorney, but need not be a professional interpreter: a friend, domestic violence counselor or advocate, or another employee of the attorney‟s firm are all acceptable. Give your client the following guide for the adjustment interview. A Spanish translation will be available on the VAWA Pro Bono website soon after this writing (3/05).

Make sure you have reviewed all of the information on your I-485 application. The officer will question you to update the application, and to be sure you qualify for legal residency. You are likely to be asked some but rarely all of the following questions: What is your name? What are your home address and home telephone? What is your date of birth?

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What are your parents‟ first names? Are you married? Divorced? Remarried? (VAWA beneficiaries may remarry after their VAWA is approved and still adjust) Do you have any children? What are their names and dates of birth? In what country/ies were they born? Do they live with you? Are you working now? Where? How did you enter the U.S. for the first time? (DOE, POE, and MOE) when, where, and how: without inspection? or with a visa? If so, what type? manner of entry: on foot? in car/van/bus/truck/ ? by train? plane? Did you ever leave after that first entry? When? When did you return to the U.S.? When, where and how? (DOE, POE, and MOE -same information for all departures and reentries] Have you ever been arrested by the police for any reason, in the U.S. or elsewhere? Have you ever received any benefit from the government for yourself, other than emergency medical services? Have you ever been involved in any terrorist acts? Have you ever engaged in espionage? (spying) Do you intend to do any kinds of act to overthrow the U.S. government by force or violence? Have you ever been a member of the Communist Party? Have you ever discriminated against anyone based on race, religion, nationality or political opinion? Have you ever been deported? Are you currently in deportation proceedings?

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Are you currently going to court for any reason? Have you ever tried to enter the U.S. on false documents or on papers that didn‟t belong to you? OR Have you ever used someone else‟s papers (visa, green card, birth certificate, passport) for any immigration benefit, or to gain entry into the United States? Have you ever helped anyone else try to enter the U.S. illegally? Have you ever voted in the U.S.? Have you ever registered to vote in the U.S.? Have you ever told tell anyone that you are a U.S. citizen?

What to bring: Original + 2 photocopies: - dated letter by employer showing total hours you work per week + pay per hour or 3 recent earnings statements (paycheck stubs) - if receiving child support, proof of this (original + 2 photocopies) - certified court disposition from Clerk of Court, NOT police department, for all criminal arrests - birth certificates of any children born since the VAWA was filed - final judgment of dissolution of marriage, if divorced since the VAWA was filed - marriage certificate if have remarried since the VAWA was approved Originals to show CIS if asked: - all original primary documents: - your own original birth certificate - if have children, their original birth certificates - if divorced, original judgment of dissolution and 2 copies - any other documents for which you submitted copies with your VAWA petition, if you have originals - unexpired state ID, driver‟s license, or consular ID - employment authorization card - 2 passport-type photos, if not already submitted with application - current passport valid for at least 1 year, so CIS can stamp it to show approved for LPR status o NOTE: If client is Mexican and has never had a Mexican passport, she will have to turn in her original birth certificate at the Mexican consulate

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when she applies for one. Advise her to get a second original birth certificate now, while her VAWA is being prepared, so that she can get a passport in time for her adjustment interview. If she can‟t get a second birth certificate, it is more important to save the one she has for the interview than to have the passport. The FBI fingerprint report is good for 15 months. If they were taken longer ago than that, CIS will provide a new fingerprint appointment letter at the adjustment interview. Once your adjustment application is approved, your permanent resident card (I551) (Spanish mica) will take 1-9 months to arrive by mail. In the meantime, the I551 stamp that CIS will place in your passport serves as your temporary green card for purposes of showing that you are entitled to work in the U.S., for readmission to the U.S. after travel abroad, and all other purposes.

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FINAL STEPS At the interview, the client will be fingerprinted and processed for her I-551 (“green card”). The examiner will take her EAD and will stamp her passport with: “Processed for I-551 Temporary Evidence of Lawful Admission for Permanent Residency. Valid Until ____. Employment Authorized.” The stamp is valid for one year. The client should receive her I-551 card by mail within three to six months. If the card has not arrived by shortly before the passport stamp will expire, use the CIS website, www.uscis.gov, to make an InfoPass appointment to speak to a CIS official. At the appointment, the client should ask CIS to stamp her passport for another year, and see if Chicago can tell her what is causing the delay. She should also send a G-731 inquiry form to the Nebraska Service Center to inquire into the delay. Sometimes, the NSC replies that the card was already sent out to a former address and returned as undeliverable, in which case the client may have to file an I-90, with fee and new photos, for a replacement card. The I-551 card is proof of your client‟s lawful permanent residency and of her right to live and work in the U.S. An LPR can travel abroad and re-enter the U.S. by showing her passport and I-551 card. However, you should caution your client that absences from the U.S. of more than six months may jeopardize her LPR status. When an LPR returns from an absence of over 180 days, the immigration law enforcement agency, Immigration and Customs Enforcement (ICE), may determine that she has “abandoned” her residency and seize her I-551 card. For more information, see the CIS website for “Welcome to the United States: A Guide for New Immigrants,” in the right-hand column under “Hot Topics.” Advise your client to make several good-qualify photocopies of both sides of her new I551 card, so that she always has a photocopies at home and in her purse and each bag when she travels. If it is lost or stolen, this will facilitate her being readmitted to the U.S., and applying for a replacement (see Form I-90). VAWA petitioners may be eager to become naturalized U.S. citizens as soon as possible so that they can petition to bring their parents to the U.S. as LPRs, petition a new spouse, or petition their siblings, a much longer process. VAWA petitioners whose husbands were LPRs are eligible to apply for citizenship (“naturalization”) after residing in the U.S. as LPRs for five years. VAWA petitioners whose husbands were USCs may apply for naturalization after residing in the U.S. as an LPR for only three years, even if they have separated or divorced. This extends the same benefit to spouses of abusive USCs as to spouses of USCs who still live in an intact marriage with no separations. All applicants for naturalization can apply up to 90 days before their 3- or 5-year period as LPRs is complete.

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