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Immigration Relief for Victims of Crime -- for Victim - Home

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					Immigration Relief
for Immigrant Crime Victims:
VAWA and U visas


   Susan Bowyer
   Family Violence Law Center


   May, 2010
    Small Group Discussion: The
      Immigrant Experience
Break into small groups, and answer:
1. Who was the first (or most interesting) member
   of your family to immigrate to the U.S.?
2. Why did she or he come to the U.S.?
   - Economic or education opportunities
   - Involuntary (slavery)
   - Fear of persecution
   - Other?
3. Do you know what immigration provision made it
   possible for her to come?
4. What kind of work did she or he do?

                                                2
     Discussion Report-back
 Each group decide which
  answers/stories were the most
  interesting, and
 Report those answers to the group




                                      3
           Background on U.S.
           Immigration Policy
 Historic swings between “bring us your tired, you
  poor, your huddled masses” and restrictive laws like
  Chinese Exclusion Act.
 We have prioritized:
   Workers
   Family Unity
   Humanitarian immigrants
       Refugees, Asylum
       VAWA, Trafficking
    Public Policy
       National security interests
       Address unintended consequences of other provisions


                                                              4
       Background on U.S.
    Immigration Law and Policy
    TYPES OF IMMIGRATION STATUS
   U.S. Citizen
   Permanent Resident
   Non-Immigrant
   Undocumented



                                  5
           U.S. Citizen
 Born in US or “naturalize” after 5
  years as permanent resident
 Can never be deported
 Can work legally and receive public
  benefits
 Can petition for legal status for
  spouse, child, parent, sibling


                                   6
Lawful Permanent Resident

 AKA “Green Card”
 Two step process – qualify for category
  and not barred by immigration law
 Permission to live and work
  permanently in the U.S. unless serious
  criminal or immigration violation
 Can petition for legal status for spouse
  or child
 After five years, can become U.S.
  citizen
                                         7
            Non-Immigrant
 Legal temporary status
     Student
     Business visitor (up to 6 years)
     Tourist
     Etc.
 Must not intend to immigrate
 If fraud, “overstay,” or violate terms of
  visa: become undocumented. High
  percentage of undocumented immigrants
  came on legal visas
                                              8
          Undocumented
 No permission to live in U.S.
 Not authorized to work
 Can be deported, or have deportation
  proceedings started at any time
 No access to public benefits
 How people become undocumented
   Out of nonimmigrant status
   Entered U.S. “without inspection”/illegally



                                                  9
Gaining Permanent Legal Status
           Step One

Petition shows eligibility for immigration
   category through…
   Close family member. Can be used to
     control immigrant
   Employer (skilled employment)
   Asylum or refugee process
   Special category (e.g. diversity visa,
    NACARA)


                                             10
Gaining Permanent Legal Status
           Step Two
 When: Immediate if US citizen petitioner;
  multi-year wait if LPR petitioner (visa
  bulletin)
 Where: US if entered legally and spouse or
  child of US citizen; home country if entered
  illegally and/or not spouse or child of USC
 What: Must prove
   No immigration or criminal violations
   Not likely to become public charge
   Not danger to public health

                                             11
Family Member waiting period from
petition to immigration application
    Wait lists in months, February, 1996
            China India     Mex    Phil     Other
   1        0       0       10     120      0
   2A       42      42      48     48       42
   2B       66      66      66     66       66

   Wait lists in months, May 2010
            China India    Mex      Phil    Other
   1        67     67      209      189     67
   2A       57     57      61       57      57
   2B       98     98      216      150     98

   1= adult children of US citizen
   2A=spouse + minor children of permanent resident
   2B=adult children of permanent resident

                                                      12
Focussing In: Wait lists for Mexico
Immigrant                     February 1996   May 2010

Adult child of US Citizen     10 months       209 months

Spouse/minor child of
 Permanent Resident           48 months       61 months

Married child of US citizen   66 months       216 months




                                                      13
    Limit on Applications for
   Permanent Resident Status
 Before 1996 – After becoming eligible
  to apply for resident status, process
  paperwork in home country and enter
  US as permanent resident.
 Since 1996 – Immigrants with
  unlawful status in US are barred from
  entry for 10 years. Limited waivers
  available.

                                      14
  Unintended Consequences of
      Immigration Process
 Family Visa Petitioner can use power
  over process as instrument of abuse
 Immigrants who fear detection and
  remain isolated are reluctant to
  report crime
   Immigration law is a gift to abusers and
    other criminals whose victims are silent
   Immigrants do not escape abuse/danger

                                           15
      Discussion: Challenges For
      Immigrant Crime Victims

1: What challenges do immigrants face
  generally?
2: What are some barriers to immigrant
  crime victims escaping violence?
3: What things have you done to help
  immigrant crime victims overcome
  those barriers?

                                         16
Humanitarian Relief for Victims
 of Unintended Consequences
 Purpose:

   Prevent misuse of immigration provisions
    by abusers, exploiters, other
    perpetrators

   Provide humanitarian relief to victims



                                             17
     Humanitarian Relief:
    Immigration Provisions
 Violence Against Women Act (VAWA)
  Self-Petition
 U Visa
 VAWA Cancellation of Removal
 Battered spouse waiver of joint
  petition requirement
 Gender-related asylum
 Special Immigrant Juvenile Status
                                      18
Benefits of Immigration Relief

 Lawful immigration status
 Lawful work authorization
 Some applicants are eligible for
  public benefits like CalWORKs
  and full scope MediCal


                                 19
VAWA: Who Can Self petition?
 Abused Spouse of U.S. Citizen or
  Permanent Resident (current or
  divorce due to abuse)
 Non-abused Spouse of U.S. Citizen or
  Permanent Resident whose child is
  abused by spouse
 Child of U.S. Citizen or Permanent
  Resident
 Parent of adult U.S. Citizen
                                     20
    Self-Petitioner Must Prove
 Relationship to abuser: spouse, child,
  parent
 Abuser is U.S. citizen or permanent
  resident
 Abuse during marriage or parent/child
  relationship (battery or extreme cruelty)
 Applicant lived with abuser
 Applicant lives in U.S.
 Applicant has good moral character

                                          21
       Self-Petition Process

 Determine eligibility
 Submit self-petition and documentation of
  eligibility (lots of it). If USC abuser, apply
  for permanent residence and work
  authorization
 4-6 weeks later: prima facie eligibility
  determination
 6-9 months: approval and eligibility for
  work authorization
 Renew VAWA and work authorization every
  year
 Application for permanent status (may be
  5-10 years): applicant must be“admissible”
                                               22
       U Nonimmigrant Status
           (aka “U Visa”)
LAW
 Battered Immigrant Women
  Protection Act of 2000

PURPOSE
 Overcome barriers to helpfulness by
  immigrant victims of crime.
 Provide humanitarian relief for those
  victims
                                          23
            Brief History
 U Visa Created in 2000, but no
  regulations until 2007
 Until Regulations of 10/07USCIS
  granted “interim relief” to prima facie
  eligible applicants
 Only U visa itself available now



                                        24
  U Nonimmigrant Status Benefits
 U status in U.S. for 3-4 years
 Employment authorization
 “Derivative” nonimmigrant status for
  (nonabuser) spouse, minor children,
  plus parent or siblings of child victim
 Can apply for permanent residence
  after 3 years
 CalWORKs, Medi-Cal eligibility
 Deportation process terminated
                                            25
Requirements for U Nonimmigrant
       Status: Overview
   Victim of Qualifying Crime
   Has Information about the crime
   “Helpful” to law enforcement
   Suffered substantial abuse
   Admissible to U.S., or eligible for in
    admissibility waiver



                                             26
     U Visa Qualifications
Victim of Certain Criminal Activity

 Domestic violence,       Murder,
  Incest                    manslaughter
 Sexual assault,          Felonious assault
  abusive sexual           Witness tampering,
  contact
                            obstruction of justice
 Trafficking,
                           Attempt, conspiracy,
  prostitution, sexual
                            solicitation to
  exploitation
                            commit above-listed
 Involuntary servitude     crime
 Kidnapping, false
                           Similar activity
  imprisonment
                                                27
     Applicant Is/Was Helpful
 To Investigation      OR To Prosecution

   Was helpful           Was helpful
   Is being helpful      Is being helpful
   Is likely to be       Is likely to be
    helpful                helpful




                                              28
   Helpfulness: What it ISN’T
 U Visa Regulations define helpfulness
  by defining what is NOT helpful:
   Victim only reports crime and is not
    willing to provide information to allow
    investigation to move forward; or
   Refuses to continue to provide assistance
 That is: active failure to cooperate –
  not simply that investigate did not go
  forward
                                           29
     “Helpful” in closed case?

 USCIS Sources:
   Fact that crime occurred a number of years
    before application; that criminal case closed not
    a determinative factor
   “not the victim’s fault” that abuser deported
    before being charged.
   “Law enforcement certifications on Supplement
    B are indeed appropriate and acceptable, even
    years after a case has been closed, as long as
    the victim cooperated with law enforcement and
    met the other requirements for certification"

                                                    30
Law Enforcement Certification
  Law Enforcement agency must certify
   that applicant has been or is being
   helpful in investigation or prosecution of
   the criminal activity.
  Each LEA must designate certifying
   agent
  “Agency” includes police, sheriff,
   prosecutor, other administrative agency
   with capacity to investigate criminal
   activity, including CPS, EEOC, DOL
                                            31
     Continuing Helpfulness?
 Applicant may not refuse reasonable
  request for information before or
  after U visa grant.
   Law Enforcement Agency must inform
    USCIS if refusal after U visa grant
 Ongoing helpfulness requirement only
  relevant if still needed for
  investigation or prosecution.
   If investigation/prosecution closed,
    continued helpfulness not required.
                                           32
  Government Agency Roles: Law
      Enforcement Role
 Determine crime occurred
 Determine applicant was victim
 Certify whether victim was, or is, or is likely
  to be helpful
 Not to determine whether victim meets
  requirements for U nonimmigrant status.
 Not to grant U nonimmigrant status



                                               33
     Government Agency Roles:
           DHS-USCIS
 Determine eligibility for U visa, including
   Was the crime a U nonimmigrant qualifying
    crime?
   Was the applicant the victim of the crime?
     Was not complicit in the crime
   Considering all evidence, was applicant helpful?
   Was applicant substantial harmed?
   Whether on balance applicant deserves legal
    status
     Analysis includes full background check

                                                   34
 Partnerships for Effective Use of U
       Nonimmigrant Status
 Law enforcement confidence in system is
  key
 Nonprofits want to guard against abuse of
  system.
 Working through nonprofits may reduce
  opportunities for “notarios” and/or bad
  attorneys to submit fraudulent
  applications
 Nonprofits can facilitate communication
  between applicant and law enforcement
                                          35
           Logistical Issues
 U Nonimmigrant Application must be filed
  within 6 months of Supplement B signing
 Should requests come from advocate, or
  directly from applicant?
   Some departments ask trusted nonprofits to
    pre-complete form
 Some departments prefer that requests
  come Need to figure out how to minimize
  burden on certifying officer(s)
   Recommendations by VOC or investigators?


                                                 36
Form I-918 Supplement B




                          37
38
39
      Applicant Suffered
     “Substantial Abuse”

         USCIS will analyze:
 Nature, Severity, Duration of Injury
 Harm Suffered, including aggravation of
  existing condition (or pattern of abuse)
 Severity of Perpetrator’s Conduct
 Seriousness of Harm to Appearance,
  Health, Physical or Mental Soundness



                                             40
Applicant is Admissible
No immigration or criminal
 problems or threat to
 public health or safety
 UNLESS
Applicant can prove that it
 is in public interest to get
 U visa
                            41
          U Visa Application
 I-918 Form for principal applicant. No fee for I-918
 I-918 Supplement B must be completed and signed
  by Law Enforcement Agency. Certifying Agent
  specifically designated by the Agency Head
 Declaration of applican
 Evidence of “helpfulness
 Evidence of substantial abus
 Application for waiver of grounds of inadmissibility.
   Documentation depends on seriousness of violation
 I-918 Supplement A must be filed for each derivative
  beneficiary
   Must qualify as a derivative at time of filing

                                                      42
 U Visa Resources: Department
     of Homeland Security
DHS Sources
 Scott Whelan at scott.whelan@dhs.gov
 Thomas Pearl at
  thomas.pearl@dhs.gov
 USCIS U Visa Fact Sheet “Questions &
  Answers: Victims of Criminal Activity, U
  Nonimmigrant Status” at
  www.uscis.gov
 Instructions to I-918
 Instructions to I-918 Supplement B

                                        43
     U Visa Resources: Law
   Enforcement and Academic

 October 2009 FBI Law Enforcement
  Bulletin: The U Visa: An Effective
  Resource for Law Enforcement
 December 2003 CDAA Newsletter: U
  Visas for Immigrant Victims of Crime
 University of North Carolina School of
  Government Immigration Law Bulletin
  Number 2, June, 2009
                                      44
 Compare VAWA, U Nonimmigrant
            Status
        VAWA                      U Visa
 Abuser is USC or LPR     Status of Abuser n/a
 Abuser spouse/parent     Victim of Crime
 Battery or Ext.          Substantial Abuse
  Cruelty
                           Applicant Declaration
 Applicant Declaration
 No law enforcement       Evidence of crime,
  requirement               helpfulness, LEA Cert
 Derivative child         More derivatives
 GMC/Admissible           Admissible

                                               45
 Discussion: Undocumented Crime
     Victim – How Serve Her?
 Discuss one of the cases raised today
   Is s/he eligible for VAWA and U
    Nonimmigrant Status? What makes her
    eligible/ineligible?
   How do you identify what services this
    person needs and provide those
    services?
   What resources do you need to serve
    her?

                                         46
       Additional Forms of
       Humanitarian Relief
 VAWA Cancellation of Removal
 Battered Spouse Exception to Joint
  Petition Requirement
 Gender-Related Asylum
 Special Immigrant Juvenile Status
 Public Benefits Availability



                                       47
    VAWA Cancellation of Removal
     Grant by Immigration Judge
Who is Eligible:
  Abused Spouse of U.S. Citizen or Permanent Resident
    Includes parent of abused child who is not
     spouse of abuser (broader than VAWA self
     petition)
 Abused “sons and daughters”.
    Includes “sons and daughters” over 21
    No “derivative beneficiary”
Process:
 Application can only be filed while in Removal
   Proceedings


                                                    48
Battered Spouse Exception to Joint
       Petition Requirement
 Applies to “conditional permanent residents”
  who gained legal residence through a
  marriage to a U.S. citizen that occurred less
  than two years earlier.
 Condition must be removed by petition jointly
  filed by both spouses
 Joint Filing requirement may be waived if:
  U.S. citizen subjects conditional resident to
  battery or extreme cruelty
 Waiver may be filed at any time
 Showing of good faith marriage and abuse
  very similar to VAWA self petition.

                                             49
 Gender-Related Asylum for Abuse
        Outside the U.S.

 Well founded fear of persecution in home
  country on account of race, religion, social
  group, ethnicity, political opinion (or imputed
  political opinion).
 Domestic or gender violence is not a specific
  ground for asylum. Must argue case within
  one of specifics grounds (e.g. social group)
 No option for safety before coming to U.S.
 Home government was perpetrator, or
  unwilling/unable to protect.
 Generally must apply within one year of entry
  to U.S. or dramatic change in conditions
                                                    50
Special Immigrant Juvenile Status
 Eligible Child under 21 and unmarried
   Under jurisdiction of juvenile court with
    declaration that child is dependent on court or
    committed to state department or agency.
   Child must remain under jurisdiction until SIJS
    process is complete
 Court Order that:
      Child cannot be reunified with parent because of
       abuse, neglect, or abandonment AND
      Not in child’s best interest to be returned to
       home country

                                                      51
 Immigrants and Public Benefits in
            California
 Is someone with this immigration
  status eligible for the relief?
 Will receiving the benefit cause
  problems with the “public charge”
  ground of inadmissibility?
   “Totality of Circumstances” Standard: is
    person likely to be primarily dependent
    on public benefits to maintain the basic
    needs of her household

                                           52
     Public Benefits Eligibility
 U Nonimmigrant           VAWA
   Benefits:               Benefits:
    -CalWORKs                -CalWORKs
    -Full Scope MediCal      -Full Scope MediCal
    -Food Stamps             -Food Stamps
   When: Upon              When: Upon prima
    Application for U.       facie determination
    Practically, need       Authority: ACL 00-
    receipt                  06
   Authority: SB
    1569; ACL 08-15

                                               53
          Public Charge:
        Relevant Questions
 Is the person planning to apply for
  permanent resident status soon?
 If so, will receipt of public benefits affect
  determination?
   U Nonimmigrant: NO
   Non-cash benefits: NO
 If so, will circumstances have changed so
  that she will no longer need public
  benefits at the time of her interview?

                                              54
       What Counts in “Totality of
            Circumstances”
 The US citizen or permanent resident who filed a family
  petition for the immigrant must file a binding Affidavit of
  Support (I-864) which obligates him/her to repay any
  public benefits received by the immigrant. This I-864 is
  counted as a significant part of the “totality of
  circumstances” test.
 Non-cash benefits (like Medi-Cal) don’t count in this
  analysis. (see “INS” explanation of exempted benefits)
 Benefits received by a US citizen child are not benefits
  received by the parent for public charge purposes
  (unless the family depends primarily on those benefits to
  maintain basic needs of the household).




                                                           55
Technical Assistance Resources
 Legal Momentum Immigrant Women
  Project
    Phone: (202) 326-0040
    Email: iwp@legalmomentum.org
 ASISTA (OVW funded agencies)
    Phone: (515) 244-2469
    Fax: (515) 868-0089
    Email: questions@asistahelp.org

                                      56
      Materials Provided Today
   Immigration Overview
   VAWA
   U Nonimmigrant Status
   Special Immigrant Juvenile Status
   I-918 Supplement B and instructions
   USCIS U Nonimmigrant Status fact sheet
   FBI, CDAA articles
   Special Issues in Serving Immigrant Survivors
   Eligibility Checklists
   Local Service Referrals
   Outreach templates
                                                    57
Immigration Service Referrals
Orange County/LA Area
Sacramento Area
Bay Area




                                58
  Discussion: Moving Forward


 What do you need to move forward
  as you want to with this information?
     From   your office?
     From   immigration service providers?
     From   policy advocates?
     From   elsewhere?




                                              59
      THANK YOU
Family Violence Law Center
    Oakland, California
     (510) 208-0220
      Susan Bowyer
    sbowyer@fvlc.org




                             60
       Optional discussion after training:
    Feedback on Presentation and Materials

   Did you get information you needed?
   Did you get information you wanted?
   What was useful?
   What was not useful?
   What recommendations for future
    presentations?



                                             61

				
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