Applying for Immigration Benefits Under VAWA

Transcription

1 Applying for Immigration Benefits Under VAWA CORT First Friday Webinar April 3, 2009 Susan E. Reed Immigration Law Support Attorney, MPLP 1

2 What this one-hour training will cover: How to identify clients who are eligible to file self-petitions with United States Citizenship and Immigration Services under provisions of the Violence Against Women Act (VAWA) How to prepare and file VAWA self-petitions How to identify clients who may be eligible to simultaneously file for adjustment to Lawful Permanent Resident (LPR) status with their VAWA self-petitions 2

3 What this one-hour training will not cover: How to fully assess eligibility for adjustment to LPR status and prepare adjustment applications (e.g. We will not cover grounds of inadmissibility and the range of VAWA-based exceptions and waivers to some of those grounds) How to seek VAWA Cancellation of Removal for immigrant survivors of domestic violence in removal proceedings in Immigration Court How to seek a VAWA-based battered spouse waiver of the Joint Petition for Removal of Conditional Residence Forms of relief for clients who do not qualify for VAWA relief, such as U visas for victims of serious crimes, or T visas for victims of human trafficking, or Special Immigrant Juvenile Status for abused children who are wards of state courts 3

4 Who is eligible to file a VAWA selfpetition? INA 204(a)(1)(A) 1) An abused spouse of a USC or LPR 2) An abused child of a USC or LPR (a child is defined as unmarried and under 21 years of age 3) A non-abused spouse of a USC or LPR whose child is abused by the USC or LPR spouse 4) An abused parent of a USC son or daughter (a son or daughter is defined as being 21 years or older) Note: A non abused child of an abused spouse or child qualifies for VAWA if s/he is listed on the abused spouse or child s self-petition 4

5 I m an overwhelmed legal services family law attorney -- why should I understand the VAWA self-petitioning process? VAWA cases are relatively easy and very rewarding considering the great benefit to the client. Immigration legal services resources are extremely scarce in most areas Your client s immigration status is probably her top priority. Your opposing party may try to exploit your/your client s lack of knowledge of the immigration system: You will be in a position to be as proactive as possible and shake off scare tactics. You will be better able to effectively recruit pro bono attorneys to assist with VAWA self-petitions if you understand them yourself. 5

6 Overview of self-petitioning requirements: INA 204(a)(1)(A) and (B) 1) Marriage: The self-petitioner s spouse abused the self-petitioner (or her child) during the marriage (in the case of a child or parent selfpetitioner, the abuse could have happened at any time). Note: the self-petitioner does not have to be married to the abuser at the time of filing the petition, if the marriage ended because of the abuse within two years of the filing of the petition. 6

7 Overview of self-petitioning requirements: INA 204(a)(1)(A) and (B) (continued): 2) Battery or Extreme Cruelty: The self-petitioner was subjected to battery or extreme cruelty by the USC or LPR spouse or parent or the USC son or daughter. Battery or extreme cruelty include the following: Threatening to beat or terrorize her Hitting, punching, slapping, kicking, or hurting her in any way Emotionally abusing her, such as insulting her or calling her names at home or in public Forcing her to have sex when she does not want to Threatening deportation, threatening to take children, threatening to hurt children Controlling her movements, isolating her from peers or family Forcibly detaining her in the home Engaging in a pattern of behavior that would not appear abusive if the acts were considered individually 7

8 Overview of self-petitioning requirements: INA 204(a)(1)(A) and (B) (continued): 3) Co-habitation: The self-petitioner lived with the abuser at some time. They do not have to be living together when the self-petition is submitted, but they can be. 4) Residence in the U.S.: With some exceptions, the self-petitioner must currently be living in the U.S. 5) Good faith marriage 8

9 Overview of self-petitioning requirements: INA 204(a)(1)(A) and (B) (continued): 6) Good moral character: The self-petitioner must have good moral character as defined in the immigration law. (She must not have committed certain crimes or immigration offenses. See USCIS Memo: pdf You will need to provide police clearances. Use ICHAT for Michigan clients: 7) Abuser s status: The abuser must be a USC or LPR. However, if the abuser was deported due to an incident of domestic violence, the abused spouse or child may self-petition within two years of the deportation. 9

10 Self-petitioning: The process 1) Filing the I-360: The self-petition is filed with a specially-designated USCIS VAWA Unit at the Vermont Service Center with documentation to prove how the self-petitioner meets each of elements. It is possible for USCIS to correspond exclusively with a representative so that the abuser does not find out she has filed an I-360. Representatives enter an appearance by filing Form G-28. There is no fee for self-petitioners. 10

11 Self-petitioning: the process (continued) Filing the I-360: All immigration forms are available for free at: The I-360 is available at: pdf Representatives enter appearances by filing Form G-28: 11

12 Self-petitioning: the process (continued) Filing the I-360: Evidence to establish the elements: any credible evidence may be considered by USCIS. Generally, the more evidence available for each category, the better. The client s own declaration will be the central piece of evidence in most cases. It may be advisable in some cases to file a skeletal petition and then supplement it with additional evidence. (E.g. when abuser is making credible threats to turn self-petitioner in to Immigration and Customs Enforcement (ICE) and case appears strong. See Checklists 12

13 Self-petitioning: the process (continued) 2) If the self-petition is apparently approvable, USCIS will send a Notice of Prima Facie Eligibility within a few months. The self-petitioner may use this notice as evidence of qualified alien status to obtain some public benefits, however, in Michigan, the self-petitioner generally will not qualify for benefits unless she entered the U.S. before August 22,

14 Self-petitioning: the process (continued) 3) If USCIS approves the self-petition, they will send the self-petitioner an approval notice and a Notice of Deferred Action. The approved self-petitioner can apply for work authorization from USCIS at this time by filing Form I ) The approved self-petitioner may apply to adjust status to LPR status when an immigrant visa becomes available for her. Typically, this will be an immediate option for the spouses, children, and parents of USCs. For the spouses of LPRs, this may be several years. 14

15 How do we know if a visa is available? Check the visa bulletin, available at: While she waits for eligibility for adjustment, a self petitioner will have to file a new I-765 each year and request a renewal of her deferred action status. If a self-petitioner s abuser filed a family based petition for her in the past (Form I-130), she might be eligible to recapture the priority date from that petition. 8 C.F.R (h)(2). This could reduce her wait in line for adjustment of status by several years. 15

16 Special considerations regarding adjustment of status for immediate relatives : Under the immigration law, the spouses, parents and children of USCs are considered immediate relatives and do not have to wait for visas to be available to adjust status to LPR A VAWA self-petitioner who is an immediate relative may file an I-485 Application for Adjustment of Status to LPR concurrently with her I-360 self petition The upside of this approach is that she will receive her employment authorization document within 90 days of filing The downside is that, if the self-petitioner is ineligible for adjustment of status because she has trigged a ground of inadmissibility at INA 212, and the inadmissibility cannot be waived, she will be placed in removal (deportation proceedings) When an I-360 is filed alone and it is denied, the self-petitioner is not placed in removal proceedings 16

17 Inadmissibility Red Flags (do not file for adjustment without expert mentoring): Past behavior related to mental or physical disorder which may pose a danger to self or others Past drug abuse or addiction Assistance to others in entering U.S. illegally Past false claims to U.S. Citizenship (even oral) or use of false documentation in order to gain an immigration benefit (including entry) Past arrests, including arrests by immigration authorities Past convictions, even if they have been expunged Participation in prostitution Membership in the Communist party, involvement with terrorist groups Participation in persecution of others 17

18 Important Resources: USCIS VAWA Helpline -- for inquires from representatives regarding pending cases: 1-(802) ASISTA Online: The VAWA Manual, 2008: Immigrant Legal Resource Center, Michigan Immigrant Rights Project: Please contact us if you need assistance placing a VAWA petition with a pro bono attorney. 18