Presenters 5/20/2015. U and T Nonimmigrant Status. U and T Nonimmigrant Status May 21, Sarah Bronstein, CLINIC

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1 U and T Nonimmigrant Status U and T Nonimmigrant Status May 2, 205 Presenters Sarah Bronstein, CLINIC sbronstein@cliniclegal.org Lynette Parker, Santa Clara U. Law School lparker@scu.edu

2 Upcoming Webinars June 0: Update and Strategy in Gang-based asylum claims July 5: SIJS Cases and Juvenile Delinquency August 9: Capacity Issues and Working with Child Advocates Agenda T Nonimmigrant Status U Nonimmigrant Status T v. U: compare and contrast T Eligibility Requirements Victim of a severe form of trafficking in persons Physically present in U.S. due to trafficking Complied with reasonable requests for assistance from law enforcement (if 8 or older) Would suffer extreme hardship involving unusual and severe harm if removed from U.S. Has not committed a severe form of trafficking in persons offense Admissible 6 2

3 Who Qualifies as a Victim of a Severe Form of Human Trafficking? Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 8 years of age; or The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 7 Examples of UAC T cases - UAC s intercepted at the border - UAC s discovered within the United States Issues of identification as human trafficking victims Issues of family reunification pros and cons Presence in U.S. on account of trafficking Applicant recently liberated from traffickers Applicant subjected to trafficking in past and continued presence in U.S. is directly related to the original trafficking If victim escaped from traffickers before LEA became involved with case, then must demonstrate that applicant did not have a clear chance to leave U.S. in interim. Examples: traffickers took travel docs; trauma, injury, lack of resources, etc. 9 3

4 Cooperation With Law Enforcement Comply with reasonable requests for assistance in the investigation or prosecution Unless the applicant is under 8 Primary evidence: LEA declaration (not required but ) or Secondary evidence 0 Suggestions for working with law enforcement on T cases: Not required to cooperate if under 8 Reasons to report and cooperate with law enforcement Protocols for reporting & Interviewing Secondary Evidence Examples of Secondary Evidence Applicant s detailed statement including efforts to obtain LEA endorsement Credible evidence of victimization and cooperation with the law Any official records showing where and when crime took place 2 4

5 T cases without a law enforcement certification: - Secondary evidence sufficient - May get an RFE be prepared to show cooperation in other ways - May take longer than a T application with a cert - Most of our approved T cases have not had a cert Extreme Hardship Would suffer extreme hardship involving unusual and severe harm upon removal 8 factors to establish hardship in the regs Any credible evidence 4 Extreme Hardship Extreme hardship varies from case to case - Follow 8 CFR elements for showing hardship - Some standard hardships - Some unique forms of hardship - Evidence to establish hardship 5

6 T Derivative Beneficiaries T applicants who are 2 or over Spouses children T applicants who are under 2 spouses children parents unmarried siblings under 8 6 T Application Procedures Apply on Form I-94, 94-A (for derivative) Law enforcement cert, not required (94-B) Cap set at 5,000 (w/o derivatives) Apply for adjustment after 3 years in T status (or sooner ) 7 Putting together a successful T application Continued Presence or Supplement B then no need for as detailed a declaration (minimizes re-traumatization) If family has knowledge of trafficker s promises or of ongoing threats from trafficker after escape a letter or declaration ORR records especially documenting trauma or trafficking 6

7 U Overview: Eligibility Requirements Victim of qualifying crime Substantial physical or mental abuse resulting from crime Possess information about crime Help in investigation and/or prosecution Law enforcement certification required Admissible (most grounds waivable) 9 Qualifying Crimes Rape Torture Trafficking Incest Domestic violence Sexual Assault Abusive Sexual Contact FGM Prostitution Sexual Exploitation Being Held Hostage Peonage Involuntary Servitude Slave Trade Kidnapping Abduction False Imprisonment] Blackmail Extortion Manslaughter Murder Felonious Assault Witness Tampering Obstruction of Justice Perjury Stalking Fraud in foreign labor contracting Attempt, conspiracy, or Solicitation to commit any of the above mentioned crimes Any similar activity in violation of federal, state or local criminal law 20 Qualifying Crimes Qualifying crime need not be crime that is charged, as long as qualifying crime is investigated as well Argue crime is substantially similar to listed crime Argue crime falls within the category of crimes listed 7

8 Examples of UAC U cases: - Crimes occurring at the border - Crimes occurring at point of destination - Crimes against family members Physical or Mental Abuse Must have suffered substantial physical or mental abuse as a result of being crime victim Must document harm suffered Frequent subject of RFEs 23 Challenges and Tips for Documenting Harm: Challenges: - Psychological Evaluations costly & re-traumatizing - Police reports often redacted - Minor s family may not have sought medical or mental health treatment for minor [Note: in ORR system URM s receive mental health support] TIPS: - ORR records - Minor or parent can request police reports 8

9 Helpful to Law Enforcement INA 0(a)(5)(U)(i)(III); Victim has been, is being, or is likely to be helpful to a gov t official or authority in the investigation or prosecution of qualifying crime 8 CFR 24.4(b)(3); victim cannot refuse or fail to provide reasonably requested info and assistance 25 Law Enforcement Certification I-98 Supplement B Completed by designated official of certifying agency investigating/prosecuting qualifying crime Signed w/in six months immediately before submission of I Law Enforcement Certifications Some jurisdictions have specific protocols for obtaining U certifications If no specific protocols, start with investigating officer or prosecuting attorney Contact person regarding preference some agencies want a completed form to review and sign, while others prefer to complete the form Also be aware of time needed to process cert. 9

10 U Overview: Derivative Beneficiaries U applicants who are 2 or over spouses Children U applicants who are under 2 spouses children parents unmarried siblings under 8 Separate opportunity to apply for family members who did not have U derivative status, after principal adjusts 2 8 U Overview: Application Procedures Apply on Form 98, 98-A (for derivative) Required law enforcement cert (98-B) Cap set at 0,000 (w/o derivatives) Apply for adjustment after 3 years in U status 2 9 Cap on U visas Cap of 0,000 U visas per year Derivatives do not count toward the cap USCIS has created a waiting list Date of filing controls place on list Non-approvable petitions denied even after cap reached not put on list Those on list get deferred action and EAD No ULP accrues while on wait list 30 0

11 T and Inadmissibility: Public charge doesn t apply Health-based inadmissibility waived if in national interest Most other grounds may be waived where in national interest and caused by or incident to victimization U and Inadmissibility: Public charge doesn t apply Only ground not waivable is 22(a)(3)(E) Waiver standard: in the national or public interest 3 T and Public Benefits: Certain state benefits prior to certification (CA) Access to federal benefits through ORR certification Continued presence or Bona fide T visa application Note: Eligibility Letters for unaccompanied minors U and Public Benefits: Certain states allow for benefits (e.g. CA and NY) No access to federal benefits 32 T and Hardship: Applicant would suffer extreme hardship involving unusual and severe harm upon removal Factors listed at 8 CFR 24.(i)() U visas and Hardship: NO HARDSHIP requirement for U principals or derivatives Hardship requirement when petitioning for qualifying family members after U has adjusted status (U principal spouse, parent, child) 33

12 T and Law Enforcement Certifications: Not required Can demonstrate through secondary evidence U and Law Enforcement Certifications: CANNOT QUALIFY w/o 98-B certification! 34 T and Travel: Ts must request advance parole before departing, even if no I-485 filed Must request advance parole if adjustment is pending U and Travel: Us can t obtain advance parole (unless I-485 filed) but must seek visa at consulate to re-enter Inadmissibility may be triggered Must request advance parole if adjustment is pending 35 T and Derivatives: Applicant over 2: spouse and child; also - parent or unmarried sibling under 8 IF IN DANGER Applicant under 2: spouse, child, sibling under 8, parent T-6 adult or child derivative of a derivative IF IN DANGER U and Derivatives: Applicant over 2: spouse, child Applicant under 2: parent, child, spouse, sibling under 8 at time of filing Qualifying family members w/o derivative status may immigrate after U principal adjusts 36 2

13 T and Caps, Denials: 5,000 per year, not including derivatives Annual adjustment cap of 5,000 principals No appeal from waiver denial, but can refile Appeal to AAO U and Caps, Denials: 0,000 per year, not including derivatives No caps at adjustment stage No appeal from waiver denial, but can refile Appeal U denial to AAO 37 T Adjustment: T status for 3 years or after completion of investigation/prosecution (whichever is less) Admissible Good moral character Compliance with reasonable request for assistance OR Extreme hardship upon removal U Adjustment: Must have been in U status for 3 years Inadmissibility grounds do not apply except 22(a)(3)(E) (Nazis, genocide, torture ) No GMC requirement Must not have unreasonably refused to assist law enforcement Special I-929 process 38 U and T Statistics T Visa: FY 204 approvals: 40 (Total T- =63) FY 204 denials: 258 (Total T- =53) FY 204 principal apps received: 944 FY 205 approvals to date: 444 (Total T-=208) FY 205 denials to date: 95 (Total T-=22) U Visa: FY 204 approvals: 8,520 (Total U-=0,020) FY 204 denials: 7,073 (Total U-= 4,056) FY 204 principal apps received: 26,039 FY 205 approvals to date: 6,672 (Total U-=0,008) FY 205 denials to date: 975 (Total U-=570) 3 9 3

14 Putting it All Together: T or U? And Why? Ricardo is 5 years old. He was on his way to reunite with family in the United States. At the border, the smugglers/traffickers told him that they would help him cross into the United States but only if he carried a backpack with drugs. Ricky felt he had no choice and so complied. On the U.S. side of the border, Ricky was stopped, arrested, convicted, and ordered removed to Mexico, where the traffickers were waiting for him to force him to again carry a backpack with drugs into the United States. 4 0 Putting it All Together: T or U? And Why? Becky never knew her father. One day her father appeared at the family home and told Becky that he had sold her to a man to whom he owed a debt. She was brought to the United States and forced to cook and clean for him and his family. Becky was able to escape with the help a neighbor, and fled back to her grandparents in her home country. Six months after arriving at her grandparents home, Becky learns that her mother is ill and dying and that her siblings will be without any income when their mother is gone. Becky decides to return to the U.S. to find work to send money home. 4 4