Immigration Options for Abused Immigrant Seniors Sally Kinoshita

Immigration Options for Abused Immigrant Seniors Sally Kinoshita Immigrant Legal Resource Center (415) 255 -9499 ext. 546 sally@ilrc. org

VAWA Resources • Immigrant Legal Resource Center – www. ilrc. org – Attorney of the Day • (415) 255 -9499 ext. 6263 • aod@ilrc. org • ASISTA Technical Assistance Project – www. asistaonline. org • National Immigration Project of the National Lawyers Guild – www. nationalimmigrationproject. org

Immigration Law Overview • Federal Immigration Law found at 8 U. S. C. (Immigration and Nationality Act – INA) • Interpreted in federal regulations at 8 C. F. R. (DOJ/INS/DHS) • CIS policy guidance (www. uscis. gov)

Violence Against Women Act Allows the abused spouses and children of lawful permanent residents and U. S. citizens and the abused parents of U. S. citizen sons and daughters to obtain their own immigration status

What is a U. S. Citizen? • • Born on U. S. soil Born abroad to a U. S. citizen Naturalized U. S. citizen Automatically became U. S. citizen when parent or parents naturalized Not subject to deportation

What is lawful permanent residency? • Also called LPR status, green card holder • Permanent right to live and work legally in the U. S. and to travel • Lasts throughout life, unless become deportable for crime or other reason • Can apply for U. S. citizenship after 3 or 5 years of LPR status

Who else is here legally? • People on “non-immigrant” visas – Temporary – Do not necessarily lead to lawful permanent residency – For specific time period and/or purposes – Examples include work visas, tourists/visitor visas, student visa, etc.

What does it mean to be undocumented? • Entered on visa that expired or entered without inspection • Cannot work lawfully, cannot receive most public benefits • Can be deported if found by the DHS

Overview of Family-based Immigration

Family Visa Process is a Two-Step Process • First step: File petition for family member • Second step: Apply to immigrate either in the U. S. through adjustment of status or at a U. S. consulate in home country through consular processing – Inadmissibility issues – Waiting times

Red Flags: Inadmissibility Grounds • Include: – Misrepresentation/fraud for immigration benefit – Unlawful presence – False claim to US citizenship for any benefit – Certain communicable diseases – Criminal convictions – Prostitution

Who Can Petition Whom?

USCs can petition: Spouses Children (under 21 and unmarried) • Sons and Daughter (over 21 and/or married) Parents (if USC if over 21) • Siblings (if USC is over 21)

LPRs can petition: Spouses Children (under 21 and unmarried) • Unmarried Sons (over 21) • Unmarried Daughters (over 21)

Family Relative Petitions • PETITIONER • BENEFICIARY – Initiates Process – No Control – Controls Petition – Subject to Bars of Admission – Can Withdraw Petition – If Married to LPR or Child of LPR then Subject to Quotas System

Violence Again Women Act (VAWA)

Benefits Under VAWA • Allows spouses and children of U. S. citizens and LPRs and parents of U. S. citizens to apply for LPR status without the abuser’s assistance or knowledge • Allows the self-petitioner to receive more public benefits

Benefits Under VAWA • Allows the self-petitioner to gain work authorization • Waives certain grounds of inadmissibility • Allows the self-petitioner to secure legal status for her minor children

Who qualifies for VAWA Self. Petitioning? • Abused spouse of USC or LPR • Non-abused spouse of USC or LPR whose child has been abused by the USC or LPR spouse, even if the child is not related to the abuser • Abused child of USC or LPR • Abused parent of USC son or daughter (over 21 years old)

Self-Petition Requirements • Spouse or child of a USC or LPR, or Parent of USC son or daughter • Good faith marriage • Battery or Extreme Cruelty by USC or LPR • Abuser has or had USC or LPR status • Residence with the abuser • Good moral character

Documenting the Self-Petition • Any credible evidence standard • Try to obtain primary source documents • If using secondary documents, explain attempts to obtain primary source documents

Who is a “spouse”? • Legally valid marriage in the location in which it took place – Common law marriages do not count in California – Previous marriages terminated • Bona fide marriage/good faith marriage

Former spouses If the marriage ended within two years of applying and there was a connection between the abuse and the termination of marriage, the former spouse can still qualify under VAWA – see CIS memo

“Intended spouses” Where someone believed she was legally married because a marriage ceremony was performed but the marriage was not valid due to the abuser’s bigamy, she can still qualify as an “intended spouse” under VAWA

Evidence of Marriage • • Civil marriage certificate Religious marriage certificate If no marriage certificate is available, affidavits of witnesses or any other form of proof of marriage (i. e. photos) Evidence of termination of all previous marriages – For intended spouses, the self-petitioner may simply state why he/she believed the abuser was free to marry (+ evidence of marriage ceremony)

Evidence of Marriage (continued) • If the marriage has been terminated, evidence of the termination – Divorce certificate – Annulment – Death certificate (ONLY is USC spouse) Plus evidence of connection to abuse

Good Faith Marriage • The test is the intent to establish a life together at the time of marriage • The primary purpose must not have been to gain legal status in the United States

Good Faith Marriage Green Card The Movie

Evidence of Good Faith Marriage • Wedding pictures and other records of ceremony • Photos, letters, phone bills, other evidence of courtship • Lease, utility bills, other records showing lived together • Birth certificates of children • Joint credit cards, bank accounts, tax returns • Insurance provided by one spouse to other listing spouse as beneficiary • Self-petitioners’ detailed declaration • Other credible evidence

Who is a “child”? • Unmarried and under 21 • CIS recognizes parent-child relationship – Stepchild: child under 18 when the marriage occurred – Adopted child: under 16 years old and two years legal and physical custody • Exception for abused children – Child born out of wedlock • Legitimated and/or bona fide relationship

Parents of US Citizens • Abused parents can self-petition if – Abuser is a U. S. citizen (not LPR) – Abuser is over 21 years old – Can show the parent-son/daughter relationship – Can otherwise meet same VAWA selfpetitioning requirements

Battery or Extreme Cruelty • Must be perpetrated by USC or LPR spouse or parent • To self or child (if spouse) – For a spouse (who was not abused) to qualify because of abuse to child, the child must be under 21, unmarried • Abuse must have occurred during the marriage

Battery or Extreme Cruelty • No exhaustive list of acts constituting abuse • Abuse need not be physical

What is extreme cruelty? • Acts or threatened acts of violence • Emotional abuse • Psychological abuse, denigration • Economic abuse, such as not allowing spouse to work • Social isolation • Accusations of infidelity • Sexual abuse • Possessiveness • Using citizenship or residency privilege • Minimizing, denying and blaming

How to Show Extreme Cruelty? • Objective Factors • Subjective Factors

Evidence of Abuse • Self-petitioner’s own detailed declaration • Affidavits of witnesses • Police reports • Shelter reports • School or church records • Psychiatric evaluations • Medical records • Court records, protective orders • Photographs • Objective/subjective facts for extreme cruelty • Any other credible evidence (may include affidavits)

The Importance of Credible Evidence (And Corroborating Evidence!)

Status of the Abuser • U. S. Citizens • Lawful Permanent Residents Petitions previously filed by abuser

Status of the Abuser • • Birth certificate, if born in the United States Copy of naturalization certificate or greencard USCIS will attempt to verify status if the naturalization certificate number or alien registration number are provided for the abuser. Other credible evidence (may include hospital birth certificates, baptismal certificates, affidavits, marriage licenses, and marriage license applications, etc. )

Status of the abuser If the abuser had legal status but lost it (through deportation, removal or denaturalization) within the past two years due to an incident of domestic violence, then the spouse or child self-petitioner can still apply

Residence Requirements Residence with the abuser: Self-petitioner must have lived with the abuser at some time; for children, any period of visitation will count Residence in the United States: Current residence in the United States -OR- residence abroad, if abuser employee of U. S. Government or member of U. S. Armed Forces or some abuse occurred in the United States

Evidence of residence with abuser • Documents listing both spouses at same address: children’s school records, bills, bank acct statements, leases, property deeds • Self-petitioner’s detailed declaration • Two or more documents, each showing one spouse’s name, but bearing the same address -example, letters or other mailings • Any credible evidence (including affidavits)

Evidence of residence in the U. S. • Employment records • Children’s school records • Lease with selfpetitioner’s name • Rent receipts • Utility or other bills • Car registration • Cards or letters addressed to selfpetitioner in the U. S. • Witness, neighbors, etc. statements • Self-petitioner’s detailed declaration • Any credible evidence

Good Moral Character • Children under 14 presumed to be of GMC • Must be established for 3 years preceding the self-petition • Must submit local police clearance letter or state criminal check from each place the self-petitioner has resided for 6 months of more during the last 3 years

VAWA Children’s Issues • A self-petitioning spouse can obtain legal status for her children simply by including them on her application (“derivatives”) • Self-petitioning children and derivative children do not “age out” as long as selfpetition filed while unmarried and under 21

Final Family Issue Approved VAWA self-petitioners, including their derivatives, may never file an immigration petition for the abuser upon which the VAWA self-petition was based

Overview of the VAWA Self. Petitioning Process

Form I-360 • Downloadable from CIS website • Cautions regarding form instructions – Stated fee may not be current (there is currently NO fee for the VAWA I-360) – Requirements for eligibility may be more restrictive than those mentioned above. There may have been statutory, regulatory or policy changes since printing.

Where to file the I-360 • Centralized adjudications USCIS Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479 Print “VAWA” in red block letters at the top of the I-360 and the cover letter

CIS Review of VAWA cases • All VAWA self-petitions are filed to one central location – the Vermont Service Center (VSC) – regardless of selfpetitioner’s residence • CIS adjudicators at VSC are speciallytrained in domestic violence to review VAWA cases

Once I-360 is Approved • Can receive deferred action status • Can apply for work authorization (Form I 765) – Based on deferred action: (c)(14) or – Based on self-petitioner status: (c)(31)

Deferred Action Status • May protect an individual from being placed in removal proceedings • Initial grant for 15 months • Extensions granted in increments of 12 months (written request to VSC)

Deferred Action Status (continued) • Does not mean LPR status yet • Qualifies approved self-petitioner for employment authorization • Travel outside of the United States is still very risky

Benefits of Deferred Action Status • • • Eligible for employment authorization Eligible for Social Security number Eligible for driver’s license Eligible for DMV identification card Eligible for apply for lawful permanent resident status (immediately or after priority date becomes current)

Concurrently filed forms – Form I-765, Application for Employment Authorization Form I-485, Application to Register Permanent Residence or to Adjust Status – • Both of these forms may be filed concurrently with the I-360 IF the self-petitioner is already eligible to apply for a green card

VAWA Hotline • CIS Vermont Service Center has a VAWA Hotline for ADVOCATES ONLY: (802) 527 -4888

U Nonimmigrant Status Protecting Immigrant Victims of Crime

U Nonimmigrant Status • Relief for immigrant crime victims • Abuser/perpetrator can be undocumented • Abuser/perpetrator does not have to be related in any way to the victim • Abuse must have been reported to the authorities & must violate U. S. laws • Immigrant must have cooperated with investigation or prosecution

VAWA • Abuser must be USC/ LPR • Abuser must be relative (spouse, parent, adult child) • Abuse can happen anywhere if selfpetitioning within the U. S. • Abuse does NOT have to be reported to the police U Visa • Abuser can have any status • Abuser does NOT have to be relative • Abuse must happen in U. S. or violate U. S. laws • Abuse MUST be reported to authorities

What is the U Visa? • The U Visa was created by the Victims of Trafficking and Violence Prevention Act in October 2000 • Created to encourage undocumented immigrant victims of certain violent crimes to report crime to law enforcement without fear of removal (deportation)

Benefits of the U Visa • Allows victim to remain in the United States for 4 years in non-immigrant status • Employment Authorization • Possibility of nonimmigrant status for family members • Possibility of obtaining lawful permanent residency after 3 years of having U nonimmigrant status

U Visa Requirements INA § 101(a)(15)(U) • Applicant has suffered substantial physical or mental abuse because of being victim of certain criminal activity; • Applicant possesses info and is/was helpful/likely to be helpful to investigation or prosecution of crime (if under 16, parent, guardian, next friend meets requirement)

Requirements (cont). • Criminal activity violated U. S. law or occurred in U. S. or territories of possessions • Petition MUST contain a certification from federal, state, or local law enforcement or CIS that applicant “has been helpful, is being helpful or is likely to be helpful in investigation or prosecution of the listed criminal activity – INA § 214(p)(1) • Any credible evidence standard – INA § 214(p)(4)

Crimes that Count for U Visa • Rape, torture, trafficking, incest, dom. violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, FGM, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury

Crimes that Count (continued) …or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law.

Derivative Family Members U applicants who are 21 or over - spouses - children U applicants who are under 21 - spouses - children - parents - unmarried siblings under 18

Overview of Procedure for Applying for the U Visa

Forms to File • • CIS Form I-918 (no filing fee) Client’s signed statement Law Enforcement certification*** Clients with inadmissibility issues may also need a I-192 waiver ($545 filing fee, no fee waiver available)