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VAWA and U presentation 2009 8 14ppt - Representing Immigrant

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VAWA and U presentation 2009 8 14ppt - Representing Immigrant Powered By Docstoc
					Representing Immigrant Survivors of
Domestic Violence and Sexual Assault


         VAWA & U Visas
               August 14, 2009
            Winston & Strawn LLP




         www.immigrantjustice.org
 About the National Immigrant
        Justice Center
The National Immigrant Justice Center (NIJC), a program of Heartland
Alliance for Human Needs & Human Rights, promotes human rights and
access to justice for immigrants, refugees, and asylum seekers through
legal services, policy reform, impact litigation, and public education.
Throughout its 30-year history, NIJC has been unique in blending
individual client advocacy with broad-based systemic change.

• NIJC serves more than 8,000 immigrants annually with the support of a
professional legal staff and a network of over 1,000 pro bono attorneys.

• NIJC maintains a 90 percent success rate in representing asylum
seekers.

• Since 2004, NIJC has litigated over 100 due process and asylum cases
in the federal courts in conjunction with pro bono attorneys.

• In FY 2007, NIJC successfully represented 24 individuals seeking
protection in the United States before the U.S. Seventh Circuit Court of
Appeals.
NIJC’s Pro Bono Projects

What we do:
 Case screening, assessment and
  acceptance
 Placement with pro bono attorneys
 Case management
 Attorney support and technical
  assistance
 Pro Bono Opportunities
       with NIJC

Asylum
Detention
SIJS
VAWA & U-visas
Citizenship
I-730s & Asylee Adjustments
                    Pro Bono Case
                  Assignment Process

 List of available cases, with brief description, sent out to our pro bono
  attorney network bi-monthly
 Conflicts Check
 Case Assignment
      NIJC remains “of counsel”
      NIJC provides on-going support and assistance
 Pro bono attorney will set-up initial interview with client within 1-2 weeks of
  case assignment
 Applications should be filed as soon as possible (8-12 weeks recommended
  preparation and filing time)
 Pro bono attorney remains attorney of record throughout duration of case
      If pro bono attorney cannot continue with case, must make efforts to reassign
       internally and notify NIJC
           Interviewing Your Client
   Find volunteer interpreter, if necessary
   Safety check
   Stress confidentiality
   Refer to counseling or other services, as needed
   Sign Release of Information and Retainer Agreement
   Build a relationship of trust
      Physical and emotional space
      Avoid legalese
 Learn about client's family, and immigration and criminal history (i.e. prior
  marriages, children or other family members living in U.S., criminal history,
  entries/exits in the U.S., prior immigration applications filed or problems with
  immigration)
 Explain domestic violence using P&C wheel
 Explain application process, fees/fee waivers and processing times
      Review list of documents that will be needed for filing
The Cycle of Abuse

            The Honeymoon



                Denial

Explosion                   Tension-
                            Building
Domestic Violence Tactics Used by
  Abusers to Exert Power and
             Control

                        Emotional Abuse
        Isolation                         Economic Abuse

                            Power
    Intimidation             And             Sexual Abuse
                            Control
 Using Citizenship or
 Residency Privilege                      Physical Abuse
                              Threats
  How Abusers Can Misuse
    Immigration Privilege

 Failing to file immigration papers on behalf
  of family member

 Filing an I-130 petition (or other
  application) and later withdrawing it

 Threatening to contact immigration officials

 Contacting immigration officials for the
  purpose of reporting family members

 Providing immigration officials with false
  information about family members
    Cultural Barriers
   Facing Immigrants
 Language limitations

 Extreme Isolation

 Cultural ideas of family shame and
  honor

 Close-knit communities

 Role of religion
           Basic Overview of
             Family Based
              Immigration
 Obtaining lawful permanent residence
  through family members

 Grounds of inadmissibility

 Waivers of grounds of inadmissibility

 Family based immigration and domestic
  violence
Laws and Reference
     Sources
 Immigration & Nationality Act (Title 8 of
  U.S. Code)
 Title 8 of Code of Federal Regulations
 Agency Policy Memoranda and
  Guidance
 Board of Immigration Appeals (BIA)
  and Federal Circuit Case Law
 Kurzban’s Immigration Law
  Sourcebook
 USCIS website (www.uscis.gov)
 American Immigration Lawyers
  Association (AILA)
 ILRC
 NLG/NIP
 Asista
             Terms and Acronyms
 DV: domestic violence                    USCIS & DHS. U.S. Citizenship &
                                            Immigration Services was created as
 LPR: lawful permanent resident            part of the Department of Homeland
  “green card”                              Security in 2002 (former INS)
 USC: US citizen                          RFE: Request for Evidence
 EWI: entry without inspection            PRD: Priority Date
 VAWA: Violence Against Women Act         EOIR: Executive Office for
                                            Immigration Review
 U Visa: visa for victims of certain
  crimes                                   IJ: Immigration Judge
 AOS: Adjustment of Status - the          ICE: Immigration and Customs
                                            Enforcement
  process applying for LPR (in the U.S)
                                           CBP: Customs & Border Protection
 Consular Processing: applying for
  LPR (outside of the U.S.)                EAD: Employment Authorization
                                            Document (“work permit”)
                                           DA: Deferred Action
     Family Preference
    System v. Immediate
         Relatives
 LPRs can petition for certain relatives. Due
  to limits placed on the number of visas
  available to such beneficiaries, persons
  who are not immediate relatives must wait
  to apply for LPR status. The waiting time
  depends on the status of the petitioner and
  the type of relationship between the
  petitioner and beneficiary.

 Department of State Visa Bulletin:
  www.state.gov/travel
Obtaining Lawful Permanent
Residency through Family-
       Based Petition
 U.S. citizens can petition for:
     Parents = immediate relative
     Spouses = immediate relative
     Children (under 21/unmarried) = immediate
      relative
     Adult, married children
     Siblings


 LPRs can petition for:
     Spouses
     Unmarried children
             Applying for
           Lawful Permanent
              Residence

                  Two-Step Process

 Step 1: filing a visa petition form (Form I-130)

 Step 2: applying for an adjustment of status (Form
  I-485)
   STEP 1: Filing an I-130 Petition for
     Alien Relative (Priority Date)

 If the beneficiary is an immediate relative can usually
  take both steps together


 When the I-130 is approved, a PRD is set. The PRD is
  usually the same as the date on which I-130 was
  received by USCIS. The PRD establishes the date on
  which an applicant can take the second step and apply
  to adjust to LPR status.
 STEP 2: Filing Form I-485 Application
   for Lawful Permanent Residence

 Once an individual has an approved visa petition
  or current priority date, she can apply to adjust
  her status in the United States

 If a person cannot adjust status to lawful
  permanent residence in the United States, she
  may consular process in her home country
             INA § 212(a) and
                 Grounds of
               Inadmissibility
   Health-related grounds
   Criminal and related grounds
   Security and related grounds
   Public charge
   Illegal entrants and immigration violators
   False claim to U.S. citizenship
   Persons previously removed
   Aliens unlawfully present
        Waivers for Grounds of
            Inadmissibility
 There are waivers available for several grounds of
  inadmissibility


 Under VAWA, applicants can obtain special waivers for
  certain (but NOT ALL) grounds of inadmissibility


 Under U Visa, applicants can obtain waivers for almost
  all grounds of inadmissibility
      The Violence Against
      Women Act (VAWA)

 The Violence Against Women Act was signed into
  law by President Clinton in 1994 as part of a larger
  crime bill to address domestic violence, sexual
  assault and stalking
 VAWA was amended in 2000 and 2005. VAWA
  includes special provisions for battered immigrants
  that allows them to gain legal immigration status
  without relying on their abusive US citizen or LPR
  spouses or parents
INA § 204; 8 CFR 204
  VAWA Process
Affirmatively –self-
 petition before USCIS

Defensively –
 adjustment of status
 based on VAWA or
 cancellation of removal
 before Immigration
 Court
  Who Is Eligible to Self-Petition
         Under VAWA?
 Abused spouses of U.S. citizens and LPRs;

 Non-abused spouses of US citizens or LPRs whose children are
  abused (need not be children of abuser);

 Abused children (must meet the definition of a “child” under INA §
  101(b)) of USCs or LPRs;

 Abused children of USCs may file until age 25 if central reason for
  delay is abuse (VAWA 2005);

 Abused intended spouses, meaning a spouse who entered into a
  bigamous marriage in good faith. See INA § 204(a);

 Abused parents of USC children (VAWA 2005)
      Special VAWA Provisions


 An immigrant is still eligible to self-petition within two
  years following the occurrence of the following events:
    Death of USC (Not LPR)
    Divorce
    Deportation where there is a connection to the
     domestic violence
  Self-Petitioners Must Prove

 Status of Abuser (USC or LPR)
 Marriage Requirements
    Legal Marriage
    Good Faith Marriage
 Battery or extreme cruelty
 Residency Requirements
    Self-petitioner lived with abuser
    Self-petitioner’s current residence
 Good Moral Character (3 years prior)
See INA § 204
          Standard of Proof

 “Any credible evidence” standard applied
 to VAWA self-petitions

8 CFR § 204.2(c)(2)(i)
      Client Affidavit
 Ok for client to write in her own in
  native language and translate
 Can have client prepare with
  counselor or other advocate
 Take what client wrote and
  organize in chronological order
 Fill in important details
 Must be comprehensive and
  address all eligibility requirements
 Abuser’s Immigration
       Status

 U.S. birth certificate
 U.S. passport
 Resident Alien Card
 Application for Marriage License
 Child’s birth certificate
 Request to search service
  records (if abuser legalized his
  or her status with USCIS)
Good Faith Marriage
 Self-petitioner cannot have
  entered into a marriage for the
  primary purpose of
  circumventing the immigration
  laws. 8 CFR § 204.2(c)(1)(ix).

 KEY FACTOR is whether she
  intended to establish a life with
  spouse at the time of marriage.
    Battery or Extreme
          Cruelty
 Is defined broadly to include “being
  the victim of any act or threatened act
  of violence, including any forceful
  detention, which results or threatens
  to result in physical or mental injury.”

 8 CFR § 204.2(c)(2)(vi).

 See Hernandez v. Ashcroft, 345 F.3d
  824 (9th Cir. 2003) for thorough legal
  analysis of what constitutes “extreme
  cruelty.”
Good Moral Character

 Must establish good moral character
  for the three years preceding the
  filing of the self-petition
 See 8 CFR 204.2(c)(1)(vii) and
  (c)(2)(v).
 See INA § 101(f)
     Confidentiality Provisions
 Section 384 of the Illegal Immigration Reform
  and Immigrant Responsibility Act (IIRIRA) of
  1996 prohibits all DHS and DOJ employees from
  providing information about a self-petitioner to
  3rd parties
 Section 384 similarly prohibits DHS from
  making any decisions about removability based
  solely on information provided by the abuser

8 CFR § 1367
                    Filing Fees

 Form I-360 ($0)

 Form I-765 without adjustment ($340)

 Form I-485 ($1010 14 years or $930 under 14 years or if
  filing with one adult/parent, then $600)

 All fees should be in form of money order and payable to
  “Department of Homeland Security”

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

USCIS
Vermont Service Center
Attn: VAWA Unit
75 Lower Welden Street
St. Albans, VT 05479-0001
               After Filing the
                Self-Petition

 You will receive Form I-797, Notice of Action, indicating
  Receipt of your filing within about 2 weeks.

 You will receive Form I-797, Notice of Action, indicating
  establishment of a prima facie case.

 You will not hear anything else for approximately 10 months.
                       Prima Facie Notice
It is NOT an approval notice
It may be used to obtain public benefits
    U.S. Department of Justice
    Bureau of Citizenship and Immigration Services

            RECEIPT NUMBER                                                      NOTICE DATE                        PAGE
                  EAC-99-000-99999                                                  February 21, 1999              1 of 1
     CASE TYPE                                                                                     RECEIPT DATE
     I-360 Petition for Amerasian, Widow(er), or Special Immigrant                                      March 2, 1998
     Petitioner                                                                                    FILE NUMBER
     Ochoa, Graciela                                                                                    A76 000 999



     Ochoa, Graciela                                                 Self-Petitioning Spouse of U.S.C. or L.P.R.
     Attn: Sherizaan Minwalla ESQ
     Midwest Immigrant and Human Rights Center                       ESTABLISHMENT OF PRIMA FACE CASE
     208 S. LaSalle, Suite 1818
    Outcomes of Self-Petition
Request for Evidence (RFE)

Approval

Notice of Intent to Deny (NOID)

Denial
   I-360 Approval and Deferred
             Action

 Deferred Action initially valid for 15 months and
  renewable in 12-month increments
 Low priority for removal from the United States
 Legal basis for employment authorization
 If I-485 was concurrently filed with I-360,
  application will be transferred to local district
  office for scheduling of interview and
  adjudication
     Employment Authorization
 You can file for employment authorization once
  the VAWA self-petition has been approved; or

 You can file employment authorization if filing an
  I-485 with the VAWA self-petition

 Employment Authorization may be renewed
  annually, provided there is still a legal basis for
  eligibility
See 8 C.F.R. 274a.12
        Adjustment of Status
             Interview

 Purpose – To adjudicate I-485 and determine admissibility
    Officer does not have authority to re-adjudicate I-360 or
     question validity of decision
 What to bring
    Originals with translations (birth certificates, marriage
     certificates)
    Passport of I-94 (only if client has these)
    Govt. issued form of photo identification
    All prior work permits
    Translator (non-relative, over age 18, with photo ID)
        Sample VAWA Case
Maria is a 32 year old Mexican citizen who entered the
United States without inspection in 1997. She has not
left the U.S. since entering at that time. In 2002, Maria
married Alberto who is an LPR, and together they have
two U.S. citizen children. Maria also has another child
from a previous relationship who was born in Mexico.
Maria’s husband was physically and verbally abusive
throughout their marriage. Alberto always threatened
her with calling immigration and never filed any papers
for her. In December of 2008, Maria obtained an order
of protection and moved into a domestic violence shelter.
Maria is now seeking a divorce.
               History of U Visa
 The U Visa for non-citizen victims of crime was created in October
  2000 as part of the Victims of Trafficking and Violence Prevention
  Act “VTVPA” See INA § 101(a)(15)(U)

 Alien victims may not have legal status and, therefore may be
  reluctant to help in the investigation or prosecution of criminal
  activity for fear of removal from the United States.

 The U visa was created to strengthen the ability of law enforcement
  agencies to investigate and prosecute cases of domestic violence,
  sexual assault, trafficking of aliens and other crimes while offering
  protection to victims of such crimes.

 Provides a mechanism to remain in the U.S. to assist in an
  investigation/prosecution of those who have perpetrated crimes
  against them.
      Legal Basis
 Victims of Trafficking and
  Violence Protection Act, Pub. L.
  106-386, October 28, 2000
 INA § 101(a)(15)(U)
 8 CFR § 214.14
 Trafficking Victims Protection
  Reauthorization Act, Pub. L.
  108-193
 Violence Against Women and
  Department of Justice
  Reauthorization Act, Pub. L.
  109-162, January 5, 2006
      U Interim Relief
 Regulations implementing the U
  nonimmigrant status provisions of the INA
  were not published until September 2007.

 Before the regulations were published,
  USCIS established a program to provide
  interim relief to those who appeared to be
  eligible for U nonimmigrant status; this was
  in the form of deferred action and
  employment authorization.

 Between October 28, 2000 (date of
  enactment for VTVPA) and October 17,
  2007 (effective date of U visa regulations),
  USCIS granted 10,846 individuals interim
  relief.
 Benefits & Limitations
 Can apply for adjustment after 3 years in U
  nonimmigrant status

 Annual cap of 10,000 per fiscal year

 Can apply for family members. Derivative
  Relationship must exist at the time I-918 filed, at
  time adjudicated, and at time of admission.
  *Exception: Qualifying family members who
  were granted interim relief may use their age on
  the date of the U interim relief filing to prove
  eligibility
  http://www.uscis.gov/files/pressrelease/AFMUp
  date_Ch39.pdf

 Victim prohibited from petitioning for derivative
  U status for family member who committed
  battery, extreme cruelty or trafficking against
  victim which established eligibility for U status
       U Visa Requirements
 Immigrant suffered substantial mental or physical abuse as a
  result of having been a victim of certain criminal activity; and

 Immigrant (or in the case of a child under 16, the parent or
  guardian) possesses information concerning that criminal
  activity; and

 The criminal activity violated U.S. law or occurred in the U.S.;
  and

 The immigrant has been helpful, is being helpful, or is likely to
  be helpful to a Federal, State or local authority investigating or
  prosecuting the crime

 INA § 101(a)(15)(U); 8 CFR § 214.14

*Any credible evidence standard applies
       Qualifying Criminal Activity
Involves one or more of the following or       Peonage
    any                                        Involuntary Servitude
similar activity in violation of Federal,      Slave Trade
    State,                                     Kidnapping
or local criminal law:                         Abduction
                                               Unlawful Criminal Restraint
   Rape                                       False Imprisonment
   Torture                                    Blackmail
   Trafficking                                Extortion
   Incest                                     Manslaughter
   Domestic Violence                          Murder
   Sexual Assault                             Felonious Assault
   Abusive Sexual Contact                     Witness Tampering
   Prostitution                               Obstruction of Justice
   Sexual Exploitation                        Perjury
   Female Genital Mutilation
   Being Held Hostage                      •   Includes attempts, conspiracy, or
                                                solicitation to commit any of the
                                                above.
  U Visa Certification
    (Form I-918, Supplement B)

 Certification required

 Must be completed and signed by the head
  of the certifying agency or any person
  specifically designated by the head of the
  agency to sign such certifications, or a
  Federal, State, or local judge

 Certification must have been signed within 6
  months immediately preceding the
  submission of the petition package

 Will not be conclusive evidence of any of the
  eligibility requirements.
 Victim who has suffered substantial physical
   or mental abuse as a result of qualifying
               criminal activity

 Not a list of specific statutory violations; list of general
  categories of criminal activity

 May occur during the commission of non-qualifying criminal
  activity (ex. Embezzlement investigation)

 Regulation states that any “similar activity” may be a
  qualifying crime. Applies to crimes where the nature and
  elements are substantially similar to the statutory list (e.x.,
  sexual exploitation and video voyeurism)

 Applicant would need to provide evidence demonstrating
  how the criminal activity of which he/she is a victim is
  substantially similar to one of the listed crimes
           Definition of Victim
Direct Victim
 Generally defined as one who is directly and proximately
  harmed by qualifying criminal activity
 Can include bystanders
 Those who witness violent crime and suffer unusually direct
  injury. (Ex. Pregnant woman who witnesses violent crime)
Indirect Victim
 Criminal activity includes murder & manslaughter,
  obstruction, perjury, and witness tampering
 Direct victims are deceased in murder and manslaughter
  crimes, or are incompetent or incapacitated
 Obstruction, perjury and witness tampering are not crimes
  against a person
  Possession of Information Concerning
     the Qualifying Criminal Activity


 Must have knowledge of the details (specific facts) that
  would assist in the investigation or prosecution

 If victim less is than 16 years or incompetent/incapacitated, a
  parent, guardian, or next friend may possess info
     Look at age of victim on date qualifying criminal activity first occurred to
      determine whether exception triggered
     “Next Friend”: person who appears in a lawsuit to act for the benefit of
      an alien who is under 16 or incompetent or incapacitated; not a party to
      legal proceeding and not appointed guardian; cannot qualify for U visa
      on own simply on this basis
       Helpfulness in Investigation
  or Prosecution of Qualifying Criminal
                 Activity

 Helpful means: assisting law enforcement in the investigation
  or prosecution of the qualifying criminal activity of which
  he/she is a victim

 Those who refuse to assist after reporting the crime are
  excluded from eligibility

 Requires an ongoing responsibility on the part of the
  petitioner to be helpful, assuming there is an ongoing need
  for the petitioner’s assistance

 Exception for those under 16 or incompetent/incapacitated;
  same as for possession of information requirement
         Criminal Activity that Violated
         U.S. Law or Occurred in the
                United States

 Violation of U.S. Laws – distinction is not based on
  which laws are violated (foreign or U.S.) but rather
  where the violation occurred; if the violation of U.S.
  laws occurred outside the U.S. and violates a
  federal statute that specifically provides for
  extraterritorial jurisdiction, it may be deemed to
  have “violated U.S. law”
    Generally requires a nexus between criminal activity and U.S. interests
    Example is sex tourism statute
    Prosecution does not need to occur as may be difficult to extradite
     defendant
   U Visa Derivatives
 If the victim is under 21 (at
  the time of filing):
    Parents
    Siblings under 18 at the time the
     application is filed
 If the victim is over 21 (at the
  time of filing):
    Spouses
    Unmarried children
*Exception for those with U interim relief
         Inadmissibility
 An inadmissible principal or derivative
  petitioner is not eligible for U status unless
  waiver (Form I-192) is granted

 INA 212(d)(14) and INA § 212(d)(3) authorize
  waiver of all grounds found under INA §
  212(a) (except 212(a)(3)(E) – participants in
  Nazi persecutions, genocide, acts of torture,
  or extrajudicial killing) if it is in the public or
  national interest

 Waiver request is made on Form I-192 which
  costs $545.00. Applicant may request waiver
  of this fee if can demonstrate “inability to
  pay.” See 8 CFR § 103.5(c)(5).
Applicants in Removal
     Proceedings
Alien in removal proceedings may seek
agreement of ICE to file a joint motion to
terminate proceedings w/o prejudice while
petition being adjudicated; solely in ICE’s
discretion.

Applicants with prior orders of removal:
     Administrative orders will be canceled by
      operation of law upon U visa approval
     IJ orders will need to be reopened and
      terminated upon U visa approval
    See 8 CFR § 214.14(c)(5)(i)
              Gathering
             Information
Client Intake
   • Is client a victim of qualifying criminal
     activity?
   • Did client suffer substantial mental or
     physical abuse?
   • Did client cooperate with law enforcement in
     investigation or prosecution?
   • Get client’s complete immigration history
     (A#, prior deportation, all entries, exits, etc.)
   • Get client’s complete criminal history
                Gathering
               Information
 Intake, continued
    Does client have any qualifying derivatives?
     i.e.children/spouse/parents (here or in home country)
        Get data on all derivatives
        Dates of birth
        Countries of birth
        Names
        Immigration Status
        Where are they living
        Criminal history

    Make no assumptions – ask questions!
  Documents Needed
 Identity of applicant (and qualifying
  derivatives: children, non-abuser
  spouse, parent)
    Passports and visas/I-94 cards
    Birth certificates
    Waiver of passport requirement available on Form
     I-192 (if applicant in the U.S.); if outside of the U.S.,
     must file waiver request on Form I-193.
    Any documentation from USCIS

 Proof of physical/mental abuse
      Applicant’s affidavit
      Photos
      Police reports
      Protective/restraining orders
      Medical records/psychological evaluation
      Letter from counselor
      Intake records from shelter
      CPS reports
      Affidavits from secondary sources
Documents: The Affidavit
  Should be in applicant’s own words
  Must address key issues
     Applicant’s identity and derivatives
     Substantial physical/mental abuse
     Knowledge and Information about the
      crime
     Cooperation/helpfulness with law
      enforcement/prosecution
     Include supplemental answers for
      questions on Form I-918 and provide
      information to support request for
      waiver of inadmissibility (including
      hardship/good moral character factors)
  Needs to be translated to English
  Must be signed and notarized
        Filling Out Form I-192
 Question 7 – N/A
 Question 8 – N/A
 Question 9 – N/A
 Question 10 – Permanent/Indefinite
 Question 11 –
     If applicant in US: I am already in the United States and
       I am filing this I-192 in connection with my Petition for U
       Nonimmigrant Status on Form I-918 to work and live in
       the US as permitted by the U visa and eventually adjust
       status to that of legal permanent resident.
     If applicant out of US: I am filing this I-192 in
       connection with my Petition for U Nonimmigrant Status
       on Form I-918 to work and live in the US as permitted
       by the U visa and eventually adjust status to that of
       legal permanent resident.
 Specify the activity that makes applicant inadmissible: “I
  entered without inspection,” “I entered without inspection
  after accruing one year of unlawful presence,” “I entered
  without inspection and in 1998 I was convicted of…”
 Practice Tip: Cross off “212(d)(3)(A)(ii)” and write in
  “212(d)(14)” INA section for U visa waiver of inadmissibility
 Include in U visa affidavit hardship factors and good moral
  character to show that it is in the “public or national interest”
  that applicant be granted a waiver for ALL inadmissibility
  factors triggered
          Putting the Application
                 Together
   Detailed, argumentative cover letter and index of documents
   G-28, Representation form
   Form I-918, U visa application
   Form I-192, Waiver of inadmissibility ($545 or fee waiver request), if
    necessary
   Signed I-918, Supplement B (certification form)
   Evidence that supports requirements
      If I-192 waiver of inadmissibility is being included, will need to
        include evidence that supports “national or public interest”
   Signed and notarized affidavit from victim
   $80 Biometric fee (or fee waiver)
   EAD (I-765) does not need to be requested for principal applicants, as
    included in I-918
   *Form I-918A for Derivatives (must file separate I-765, Employment
    Authorization app.)
                    Practical Matters
                    Practical Matters

                                           Application Packet Should Be:
 Where to File:                              Two-hole punched at top and
                                               secured with metal-pronged
U.S. Citizenship & Immigration Services        fastener
Vermont Service Center                        Sent via certified mail or
                                               overnight delivery
Attn: U Visa Unit
75 Lower Welden Street
St. Albans, VT 05479-0001
                                           Fees
                                              Must be in form of money order
                                                and payable to “Department of
                                                Homeland Security”
         What Happens Next?

 You should receive a receipt notice for each application filed
  from USCIS within approximately two months

 Client and derivatives in the U.S. will receive a biometrics
  appointment

 For clients with derivatives out of U.S. → Client will receive
  RFE with FBI print card to send to derivative. Derivative can
  get prints taken at U.S. embassy and embassy officials will
  process the prints and send to VSC.
          What Happens Next?
                (Cont’d)
 USCIS Decision
    Processing times have not been published
    As of Jan. 2009 USCIS Ombudsman report, only 2 full-time
     adjudicators processing over 12,000 applications and only approx. 80
     applications have been adjudicated (approx. 10% denied or rejected)
    U visa petitions are adjudicated based solely on the documentation
     provided
    No interview
    USCIS may request additional evidence
         Even if they request evidence already submitted – resubmit it, along with
          additional evidence to prove the point in question
     When U visa is approved, applicant will receive approval notice, work
      permit for four years
         Travel Issues*
     Eligible for adjustment with three years of U status
          U Adjustment of Status
          Eligibility Requirements
 Admitted to the United States in U status
 Continues to hold U status or accrued at least 4 years in
  U interim status and files for adjustment within 120 days
  of the approval of the I-918 (can apply prior to approval)
 Continuous physical presence (CPP) for 3 years (no
  departures of more the 90 days at a time or 180 days in
  the aggregate) – exception if LEA certifies necessity
 Not inadmissible under 212(a)(3)(E) (not a Nazi,
  perpetrator of genocide, torturer)
 Has not unreasonably refused to provide assistance to
  LEA responsible for investigation/prosecution of the
  qualifying crime, based on affirmative evidence
See INA § 245(m); 8 CFR § 245.24
          Sample U Visa Case
Ana is an 18 year old woman from Guatemala who
entered the U.S. without inspection in 2002. In 2008, Ana
was a victim of repeated instances of domestic violence at
the hands of her undocumented boyfriend, Manuel. Ana
called the police on three occasions and obtained an
emergency civil order of protection which expired in
December of 2008. Ana has not pressed charges against
her abuser. Ana lives with her parents and her 14 year old
brother, Juan.
  Other Resources
 Immigration Court: (800) 898-
  7180

 Vermont Service Center (for
  representatives only): (802) 527-
  4888

 Chicago Domestic Violence
  Helpline: (877) 863-6338

 National Domestic Violence
  Helpline: (800) 799-7233
                    NIJC Staff
                    Contacts

Heather Benno, Staff Attorney (for VAWA cases)
hbenno@heartlandalliance.org or 312-660-1615

Melissa Untereker, Supervising Attorney (for U visa cases)
muntereker@heartlandalliance.org or 312-660-1616

Megan Baumann, Pro Bono Coordinator (for non-legal
questions or for case assignment requests)
mbaumann@heartlandalliace.org or 312-660-1307
       Contact NIJC
 National Immigrant Justice Center
208 South La Salle Street, Suite 1818
      Chicago, Illinois 60604
           (312) 660-1370

     www.immigrantjustice.org
Thank you to Winston & Strawn LLP for
 hosting this training and providing the
                materials.

				
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