4/11/17. Immigration Relief for Survivors: VAWA. Objectives VAWA SELF-PETITIONS & BATTERED SPOUSE WAIVERS

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1 4/11/17 Immigration Relief for Survivors: VAWA Objectives Summary of VAWA Self-Petitions and Battered Spouse Waivers Screening Tips Practice Pointers VAWA SELF-PETITIONS & BATTERED SPOUSE WAIVERS 1

2 4/11/17 Why is domestic-violencespecific relief needed? Family-based process controlled by petitioner This creates a dangerous dynamic in relationships dominated by domestic violence A pattern of abusive and threatening behavior exerted by an individual over another with whom he/she has an intimate relationship with the goal of establishing and maintaining power and control VAWA Structure To Greencard Step 2: Regular Step 1: Family Relationship I 130 AOS or Consular Processing vs. VAWA Self-Petition Step 1: Self-Petition I 360 Step 2: AOS or Consular Processing 2

3 4/11/17 BSW Structure Joint Petition Ongoing Legal Marriage vs. BSW Divorce Hardship Waivers Extreme Hardship ELIGIBILITY Eligibility Statutory elements (INA 204 (a) Spouse (or intended spouse) of abusive USC or Lawful Permanent Resident Unmarried child of abusive USC or Lawful Permanent Resident Parent of abusive USC 3

4 4/11/17 Eligibility Relationship to USC/LPR If you can t find evidence of abuser s status, ask USCIS to verify it Battery or extreme cruelty Battery is at least one incident of physical violence Extreme cruelty requires a pattern of behavior Joint residence For any period of time Good faith marriage Good moral character Remember that there are waivers for crimes connected to the DV SCREENING TIPS Screening Tips Barriers faced by survivors of domestic violence: Fear, control of abuser, economic dependence, embarrassment, shame, guilt, etc. PLUS.. Lack of knowledge / information about the legal system Fear of police and judicial system Fear of deportation Language and cultural barriers Inadequate shelter and other social services 4

5 4/11/17 Screening Tips Develop relationship of trust Follow your instincts Use the Power and Control Wheel Ask open-ended questions Explain confidentiality and (attorney-client) privilege Keep open mind and think outside the box Be patient Avoid judgment or raising suspicions Realize at all times that client is in control and is best able to make his/her own choices PRACTICE POINTERS Remember Although burden of proof = preponderance of the evidence Evidence: any credible evidence Explain why what you are submitting is the best evidence available Case cannot be denied for failure to submit specific evidence 5

6 4/11/17 Of note Reinstatement of removal as a bar to a grant of AOS: USCIS Office of Policy and Strategy may be willing to negotiate with ICE to rescind reinstated order so VAWA applicant can proceed with AOS. Of note Annulment = divorce Must file within 2 yrs of annulment/divorce/ abuser s loss of status No remarriage while self-petition is pending Application is confidential Cannot rely on information provided by abuser or his/her family No need to refile Work permits for non-vawa eligible New EAD eligibility for spouses of certain non-immigrants Last admitted under INA 101(a)(15)(A), (E)(iii), (G) or (H) Form I-765V March 8, 2016 USCIS policy memorandum 6

7 4/11/17 THANK YOU! 7

8 Subject To Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents All Regional Directors All District Directors (Including Foreign) All Service Center Directors All Officers in Charge (Including Foreign) Date From HQ 204-P APR Office of Programs The Violent Crime and Control Act ("the Crime Bill11), Public Law , was signed by the President on September 13, Title IV of the Crime Bill is entitled the "Violence Against Women Ace. (*the YAWN') and contains three provisions amending the Immigration and Nationality Act (*the Act"). These amendments to the Act provide benefits for certain spouses or children of abusive U.S. citizens or lawful permanent residents. Each regional director, district director, service center director, and officer in charge must ensure that enforcement personnel under his or her jurisdiction are aware ot thse immigration-related provisions of the Crime Bill and take them into consideration when making enforcement decisions. ET2mirmtions staff, of course, must also be made aware of the new benefits available under the Act. The following three immigration-related benefits are provided in the VAWA: J. SUP-PETITIONING Section of the Crime Bill allows certain spouses and children of abusive citizens or lawful permanent residents of the United States to self-petition for immigrant classification. An eligible spouse or child, who would have qualified for immigrant clascakon - had the abusive spouse or parent petitioned for him or her, may be classified as an immediate relative or preference immigrant based on the ielationship to the abuser without the abuser's knowledge or consent. A self-petitioning spouse must be legally married to the abuser when the self-petition is filed, although the couple need not be living together at the time. Legal termination of the marriage (whether by divorce, death, or annulment) after the self-petition is properly filed with the Service will NOT be the basis for denial or revocation of the self-petition. A qualified self-petitioner must meet certain additional statutory requirements, which include a demonstration of the self-petitioner's good moral character and of the extreme hardship that would be caused by his or her deportation.

9 Section of the Crime Bill does not waive any requirements for adjustment of status or immigrant visa issuance. For adjustment of status or immigrant visa issuance purposes, a self-petitioner should be regarded as any other immediate relative or familysponsored preference alien. The spouse or child of an abusive U.S. citizen is an immediate relative and may be eligible to file an adjustment of status application concurrently with a self-petition. A self-petitioning spouse or child of a lawful permanent resident is a preference immigrant under the family-sponsored 2A category, however, and cannot apply for adjustment of status until his or her immigrant visa number is current or is earlier than the cut-off date listed in the State Department's Visa Bulletin for that month. I. EVIDENCE FOR WAIVER OF JOINT PETMON FOR REMOVAL OF CONDITIONS Section of the Crime Bill amends section 216 of the Act to require the Service " to accept any relevant credible evidence submitted with.a request for a waiver of the joint petitioning Feq-uirement for removal of conditions on residency because of abuse or extreme cruelty. This change in the statute prohibits the Service from requiring the recommendation of a mental health professional or any other specific form of evidence to support a Form I- 751 waiver based on abuse or extreme cruelty. The waiver request may be denied, however, if the applicant fails to credibly establish eligibility. SUSPENSION OF DEPORTATION Section of the Crime Bill amends section 244 of the Act to allow certain I - spouses and children of abusive citizens or lawful permanent residents of the United States to request suspension of deportation. In addition to establishing the requisite relationship to the U.S. citizen or lawful permanent resident and showing that the abuse took place, the applicant must have continuously resided in the United States during the past three years. The applicant must also show that he or she is a person of good moral character whose deportation would cause extreme hardship to the applicant or the applicant's child. A copy of the relevant portions of the Crime Bill is attached to this memorandum. A copy of the interim rule implementing the self-petitioning provisions and instructions for processing self-petitions are also attached. This memorandum has the concurrence of the Office of Field Operations. Attachments T. Alexander Aleinikoff Executive Associate Commissioner

10 SELF-PETrITONING IMPLEMENTATION Section of Public Law became effective January 1, Service offices must accept properly filed applications submitted on or after that date. An interim rule implementing the new law has been published in the Federal Register and is effective upon publication. A copy of the rule is attached. Action should now be taken on self-petitions that had been held in abeyance pending publication of the regulations. BASIC ELIGIBILITY REOUIREVIENTS Each spouse or child petitioning for himself or herself under section of the Crime Bill must show that he or she: (1) is now the spouse or child of an abusive U.S. citizen or lawful pernianent resident; (2) is eligible for immigrant classification based on that relationship; (3) is now residing in the United States; (4) has resided in the United States with the citizen or lawful permanent resident abuser in the past; (5) has been battered by or has been the subject of actreme cruelty perpetrated by: (a). the citizen or lawful permanent resident spouse during the marriage; or, is the parent of a child who has been battered by or has been the subject of extreme cruelty perpetrated by the citizen or lawful permanent resident spouse during the marriage; or ii- (b) the citizen or lawful permanent resident parent while residing with that parent; (6) is a person of good moral character; (7) is a person whose deportation would result in extreme hardship to himself or herself; or is a person whose deportation would result in extreme hardship to his or her child, if self-petitioning as a spouse; and (8) if self-petitioning as a spouse, entered into the marriage to the citizen or lawful permanent resident in good faith. 1

11 FORM Self petitioners must file Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant. This form has been revised for use by self-petitioners, and will be distributed to field offices and the forms centers shortly. The attached copy of the revised form may be reproduced locally as needed. Properly filed self-petitions should not be returned solely because the applicant completed the 1991 revision of the form before the current revision became available. (Crime Bill Self- Petitioning Wire #1, dated January 20, 1995, provided instructions on the use of the 1991 revision of Form by self-petitioners.) Self-petitioners must pay the standard Form application fee, which is currently $ This fee marbe waived only in accordance with 8 CFR 103.7(c). A self-petitioner who is the spouse or child of an abusive U.S. citizen is an immediate relative and may file the self-petition together with an application for adjustment of status at the office having jurisdiction over the adjustment application. A self-petitioner who is not an immediate relative but whose priority date is immediately available may also file the self-petition together with the application for adjustment of status at the office having jurisdiction over the adjustment application. In all other cases, the self-petition must be filed at the Service Center having jurisdiction over the self-petitioner's residence in the United States. Self-petitions will NOT be adjudicated at overseas Service offices or U.S. consulates or embassies abroad. KELAIMEJNIalgaLmEnimansEa The filing or approval of a self-petition has no effect on a relative visa petition; a spouse or child may be both the beneficiary of a self-petition and the beneficiary of a relative visa petition filed by the abuser.- ib- A qualified spouse or child of an abusive U.S. citizen or lawful permanent resident may seek, immigrant visa issuance or adjustment of status based on either the self-petition or the relative visa petition, whichever is most advantageous to the spouse or child. PRIORI'rY DATE A self-petitioning priority date is established when the Form is properly filed with the Service. A self-petitioner who has been the beneficiary of a relative visa petition (Form 1-130) filed by the abuser to accord the self-petitioner immigrant classification as his or her spouse or child, however, will be allowed to transfer the relative visa petition priority date to 2

12 the self-petition. The earlier priority date may be assigned without regard to the current validity of the relative visa petition filed by the abuser, the earlier priority date may be used even though the relative visa petition was withdrawn, denied, or the approval revoked. ELIGEBmrry FOR ADJUSTMENT OF STATUS/IMMIGRANT VISA ISSUANCE An approved self-petition gives the self-petitioner immediate relative or family-sponsored immigrant classification. For adjustment of status or immigrant visa issuance purposes, the self-petitioner should be regarded as any other immediate relative or family-sponsored preference alien. No provisions of section 212 or 245 have been waived, although selfpetitioners are not precluded from applying for any waiver or other benefit for which they may qualify. A self-petitioner who would not otherwise qualify for adjustment of status under section 245 of the Act because he or she entered without inspection or is included in one of the classes enumerated in section 245(c) of the Act may utilize the benefits of section 245(1) of the Act. The self-petitioner, like any other adjustment of status applicant, may file Supplement A to Form and pay the additional sum. Payment of the additional sum will be waived only if the applicant is less than 17 years of age or if the applicant is the spouse or child of a legalized alien as described in section 245(1) and the relating regulations. (Note: A self-petitioner who is filing for adjustment of status as the spouse or child of an abusive U.S. citizen is an immediate relative. Immediate relatives are not subject to the requirements of section 245(c) of the Act, although they are still subject to the requirements of section 245(a) of the Act.) I A r l o I : 1 1 I Via!liWkliPlig FILED BY ABUSER - An adjustment of status applicant who states that he or she has been abused' by the petitioning U.S. citizen or lawful permanent resident spouse or child may be advised of the selfpetitioning option. If the spouse or child chooses to self-petition, he or she would not be required to file another adjustment of status application if to. (1) the previously filed adjustment application was stilt pending before the Service on the date the self-petition was properly filed with the Service; and (2) the spouse or child qualified for adjustment of status on the date the adjustment application was properly filed with the Service. The adjustment applicant may also choose to proceed with the adjustment application based on the visa petition filed by the abuser, provided the visa petition has not been withdrawn, denied, or revoked. If the adjustment applicant chooses to proceed based on the abuser's petition, the Service retains the option of requiring the petitioner to appear for an interview. 3

13 Adjudicators, however, must keep in mind that the purpose of interviewing the petitioner is to determine whether a basis exists for denial or revocation of the visa petition. When deciding whether to require the petitioner and the beneficiary to appear together or at the same time, the adjudicator must keep in mind the inherently sensitive nature of cases involving domestic abuse and give careful consideration to the available information concerning the case. At the discretion of the interviewing officer, the petitioning relative may be interviewed at a different time or date, or may be interviewed separate and apart from the beneficiary. VOLUNTARY DEPARTURE No voluntary departure program has been established for self-petitioners. Officers authorized to approve volitrivary departure under 8 CFR 242.5(a)(1), however, are encouraged to give favorable consideration to a voluntary departure request submitted by a person who has properly filtwa self-petition with the Service. Voluntary departure may be granted without issuance of an Order to Show Cause under 8 CFR 242.5(a)(2)(v), (vi), or (viii), as appropriate in accordance with the regulations. In most cases, voluntary departure may be authorized in one-year increments. Similar consideration should also be extended to a voluntary departure request made by the derivative child of a self-petitioner. This favorable consideration should be extended both to voluntary departure requests based on pending selfpetitions that have been properly filed with the Service, as well as requests based on approved self-petitions. Voluntary departure would not be necessary, of course, if the self-petitioner is eligible to immediately apply for adjustment of status or is able to maintain a valid immigration status in the United States. Favorable consideration may be deemed by the authorized officer to be inappropriate in cases where substantial adverse factors exist, such as the self-petitioner's conviction for a criminal offense that would require the Service to find that he or she lacks good moral character or if the familial relationship to the abuser appears to have been entered into solely for the purpose of obtaining immigration benefits. Entry without inspection, intent to remain permanently in the United States at the time of admission as a nonimmigrant, or the fact that the pending self-petition has not yet been approved should not generally be considered as adverse factors in reviewing these voluntary deparmre ruvests. A self-petitioner or derivative child who has been granted voluntary departure and who needs to travel outside the United States for emergent reasons may be issued advance parole under the guidelines set forth in OI 212.5(c). Note: This memorandum addresses voluntary departure requests made only by or on behalf of self-petitioners and their qualified derivative children. It should not be understood as either encouraging or discouraging the issuance of voluntary departure to any other person. 4

14 EMPLOYMENT AUTHORIZATION Section of the Crime Bill does not direct the Service to provide employment authorization based solely on the filing or approval of a self-petition. A qualified selfpetitioner, however, may be eligible to apply for employment authorization under the existing provisions of 8 CFR 274a.12. Requests for employment authorization or for an extension of employment authorization should be made on Form 1-765, Application for Employment Authorization. Many self-petitioners will be immediately eligible to apply for adjustment of status. These self-petitioners may qtmlify for employment authorization under 8 CFR 274a.12(c)(9) while the adjustment application is pending. Most other self-petitioners will be eligible to ttquett voluntary departure prior to or after a deportation hearing for the reasons set forth in 8 CFR 242.5(a)(2)(v), (v1), or (vib). A person whotas been granted voluntary departure for one of these reasons may request employment authorization under 8 CFR 274a.12(c)(12), if the person shows an economic need to work. A person who has been placed in deferred action status may request employment authorization under 8 CFR 274a.12(c)(14) if the person shows an economic need to work. A self-petitioner also would not be precluded from requesting the employment authorization benefits of any other prevision of 8 CFR 274a.12 under which he or she may qualify. EVIDENCE IN GENERAL The regulations recommend the submission of certain types of documents with the selfpetition. The Service is, however, statutorily required to consider any relevant credible evidence submitted in connection with the self-petition. A self-petition cannot be denied merely because a self-petitioner has not submitted a specific type of document. A selfpetition may be denied, however, if the evidence that has been submitted does not credibly establish eligibility for this benefit. Although the burden of proof to establish eligibility lies with the self-petitionern:djltdicators should give due consideration to the difficulties some self-petitioners may experience in. acquiring documentation, particularly documentation that cannot be obtained without the abuser's lmowledge or consent. Readily available electronic records (such as CIS, CLAIMS, etc.) should be checked if the self-petitioner is unable to provide documentary evidence of the abuser's immigration or citizenship status or of the abuser's filing of a visa petition on behalf of the self-petitioner. The adjudicating officer may also choose to review other Service records to verify the chimed status or filing. Any other information provided with the self-petition may also be verified through a review of these and other Service records, at the discretion of the adjudicating officer. 5

15 LE_SzasiLlnasg, MARRIAGE A self-petitioning spouse must be legally married to the abusive citizen or lawful permanent resident when the petition is filed. Legal termination of the marriage (whether by divorce, death, or annulment) after the petition is properly filed with the Service will NOT be the basis for denial or revocation of the petition. A pending spousal self-petition will be denied or the approval of a spousal self-petition revoked, however, if the self-petitioning spouse remarries before he or she becomes a lawful permanent resident. CHILDREN UNDER IHR_SELF-PEITITONING PROVISIONS The definitions of "child" and 'parent, father or mother" contained in section 101(b) of the Act apply to self-petitions. SELF-PETITIONING CHILD An otherwise eligible child born in wedlock, stepchild, legitimated child, child born out of wedlock, or adopted child of a U.S. citizen or lawful permanent resident abuser may selfpetition. A self-petitioning child must be unmarried and less than 21 years old when the selfpetition is filed and when it is approved. A valid approved self-petition for a self-petitioning child will be automatically converted tti an approved petition for family-sponsored preference classification, however, if the child reaches his or her 21st birthday or marries before embarking for the United States with the immigrant visa or adjusting status to that of a lawful permanent resident. SPOUSAL SELF-P=10N BASED ON ABUSE OF CHILD A spouse may be eligible to self-petition based on abuse committed against his or her child born in wedlock, step-child, legitimated child, child born out of wedlock, or adopted child. abuser's The abused child. child must qualify as the self-petitioning spouse's child; the child need not be the lomat. ib- DERIVATIVE CHILD A child of a self-petitioning spouse who has been granted immediate relative immigrant classification under section 201()) of the Act or preference classification under section 203(a)(2) of the Act may obtain derivative immigrant classification if the child: (1) is not the beneficiary of an approved or pending self-petition; and (2) is the self-petitioner's child as defined in section 101(b)(1) of the Act. 6

16 There are NO other requirements for classification as a derivative child of a self-petitioning spouse. (A derivative child need not have suffered abuse and need not igimlify as the abuser's child. The derivative child is not required to have ever lived in the United States and is not required to have lived with the abuser.) There is no derivative immediate relative classification for the grandchild of a U.S. citizen abuser (the child of an immediate relative self-petitioning child). (An approved immediate relative self-petition will be automatically converted to a self-petition for family-sponsored preference classification under section 203(a) of the Act, however, if the self-petitioning child marries or reached 21 years of age before becoming a lawful permanent resident based on the self-petition. The self-petitioner's child may then become eligible for derivative benefits under section 203(d) of the Act.) A spouse or child of a principal alien classified as a family-sponsored immigrant under section 203(a) of the Act may be accorded derivative classification under the provisions of section 203(d) of the Act. A derivative child ceases to qualify for derivative benefits if the child marries or reaches his or her twenty-first birthday prior to approval of the child's application for adjustment of visa. status or prior to the child's embarkation for the United States with his or her immigrant ElCOMMEARDant The statute requires a self-petitioning spouse to show that he or she, or his or her child, would suffer extreme hardship if the self-petitioner were to be deported. A self-petitioning child must show that he or she would suffer extreme hardship if he or she were to be deported. Extreme hardship to other persons, such as extended family members, cannot be used to meet this requirement. Although the burden of proof lies with the self-petitioner, the adjudicator must review the circumstances surrounding the case before reaching a decision concerning extreme hardship. This review may include evidence which may not have been specifically identified by the ,6 self-petitioner as supporting the extreme hardship claim. The phrase "extreme hardship" is not defined in the Act, and sections and of the Crime Bill provide no additional guidelines for the interpretation of this requirement. The phrase "extreme hardship" has acquired a settled judicial and adminictrative meaning, however, largely in the context of suspension of deportation cases under section 244 of the Act. It has been found that the personal deprivation contemplated in a situation characterized.by "extreme hardship" within the meaning of section 244 of the Act is not a definable term of fixed and inflexible content or meaning; it necessarily depends upon the facts and 7 II "II

17 circumstances peculiar to each case. Matter of Hwang, 10 I&N Dec. 448 (BIA 1964). The hardship requirement encompasses more than the mere economic deprivation that might result from an alien's deportation from the United States. Davidson v. INS, 558 Fid 1361 (9th Cir. 197; and Matter of Sipus, 14 18EN Dec. 229 (31A 1972). It has also been found that the loss of a job and the concomitant fmancial loss incurred is not synonymous with extreme hardship. Lee v. INS, 550 F (9th Cir Siniilarly, readjustment to life in the native country after having spent a number of years in the United States is not the type of hardship that has been characterized as extreme, since most aliens who have spent time abroad suffer this kind of hardship. Matter of Uy, 11 I&N Dec. 159 (BIA 1965). Some precedent suspension of deportation cases have discussed the reasons why a particular applicant was found to have established that his or her deportation would cause extreme hardship. These reasons include the: (1) age of the person; (2) age and number of the person's children and their ability to speak the native language and adjust to life in another country; (3) serious illness of the person or his or her child which necessitates medical attention not adequately available in the foreign country; (4) person's inability to obtain adequate employment in the foreign country; (5) person's and the person's child's length of residence in the United States; (6) existence of other family members who will be legally residing in the United States; (7) irreparable harm that may arise as a result of disruption of educational - opportunities; and (8) adverse psychological impact of deportation. In self-petitioning cases, the circumstances surrounding the domestic abuse and the consequences of the abuse may also cause or contribute to the extreme hardship. Although none of these factors automatically establish that a petrson's deportation would result in extreme hardship, some or all of the following areas may be relevant to the extreme hardship determination in an individual self-petitioning case: (1) the nature and extent of the physical and psychological consequences of the battering or extreme cruelty; 8

18 (2) the impact of the loss of access to the U.S. courts and criminal justice system (including, but not limited to, the ability to obtain and enforce: orders of protection; criminal investigations and prosecutions; and family law proceedings or court orders regarding child support, maintenance, child custody and visitation); (3) the self-petitioner's and/or the self-petitioner's child's need for social, medical, mental health, or other supportive services which would not be available or reasonably accessible in the foreign country; (4) the existence of laws, social practices, or customs in the foreign country that would penalize or ostracize the self-petitioner or the self-petitioner's child for having been the victim of abuse, for leaving the abusive situation, or for actions taken to stop the abuse; (5) the abuser's ability to travel to the foreign country and the ability and willingness of foreign authorities to protect the self-petitioner and/or the self-petitioner's child from future abuse; and (6) the likelihood that the abuser's family, friends, or others acting on behalf of the abuser in the foreign country would physically or psychologically harm the selfpetitioner and/or the self-petitioner's child. Further interpretive guidance concerning the extreme hardship determination in selfpetitioning cases will be provided as the Service acquires experience in processing these cases and self-petitioning case law becomes established. BianiELMLEXIREMESBJIETOM The self-petitioner or the self-petitioning spouse's child must have been a victim of the battery or extreme cruelty. The qualifying abuse must also have been committed by the abusive U.S. citizen or lawful permanent resident spouse or parent. In addition, the battery or extreme cruelty must have been committed during the marriage between the selfpetitioning spouse and the abuser, or must have been committed while the self-petitipning child was living with the abuser. The qualifying abuse must further rise to the level of *battery or octreme cruelty.* There is no exhaustive list of acts that constitute "battery or extreme cruelty. " The interim rule provides a flexible regulatory definition of the phrase was battered by or subjected to extreme cruelty,* which is similar to the regulatory definition of this phrase provided for *battered spouse or child* waivers in 8 CFR 216. A self-petitioner who has suffered no physical abuse may also be eligible for this benefit. The regulatory definition of "battery or extreme cruelty- should be applied to claims of extreme mental cruelty as well as to claims of physical abuse. 9

19 Self-petitioners are NOT required to submit an evaluation completed by a mental health professional, nor are they required to submit any other specific form of evidence. The adjudicator must consider all relevant credible evidence submitted (including any relevant mental health evaluation voluntarily provided by the self-petitioner). The burden of proof lies with the self-petitioner, however, and the self-petition may be denied if the self-petitioner fails to establish eligibility. Under the regulatory definition, incest is automatically considered to be an act of violence if the victim was a minor at the time, without regard to the minor's possible consent." If the participant was an adult, incest is not automatically considered to be an act of violence; the circumstances leading to and surrounding the incident(s) of incest must be reviewed to determine whether the adult's participation was the result of an act or threatened act of violence which resulted or threaten to result in physical or mental injury. GOOD MORAL CHARACTER Section of the Crime Bill requires a self-petitioner to be a person of "good moral character, but does not specify a period for which good moral character must be established. The rule requires persons who are 14 years of age and older to provide evidence of good moral character for the past three years. The Service is not precluded from determining that a person lacks good moral character because of actions that took place more than three years prior to submission of the self-petition. Actions that took place after the self-petition was filed or approved may also be considered. The Service is also not. / precluded from finding that a person who is less than 14 years of age lacks good moral character, although such cases are expected to be exceedingly rare. The self-petitioner's lack of good moral character must be documented in the Service file prior to issuance of a denial or revocation on this basis. The "good moral characters' determination must be made on a case-by-case basis, taking into account the provisions of section 101(f) of the Act and the general standards of the community. The Service must conclude that a person who has been convicted of an offenserkilinlbk within section 101(f) of the Act lacks good moral character. The Service may only look to the judicial records to determine whether the person has been convicted of the crime, and may not look behind the conviction to reach an independent determination concerning guilt or innocence. Pablo v. INS, 72 F.3d 110, 113 (9th Cir. 1995); Gouveia v. INS, 980 Fid 814, 817 (1st Cir. 1992); and Matter of I n t. Dec (BIA 1991). Extenuating circumstances may be taken into account, however, if the person has not been convicted of the offense in a court of law but admits to the commission of an act or acts that could show a lack of good moral character under section 101(f) of the Act. The Board of Immigration Appeals (BIA) has ruled that a person who admitted to having engaged in 10 n75 1

20 prostitution under duress but had no prostitution convictions was not excludable as a prostitute under section 212(a)(12) of the Act (currently section 212(a)(2)(D) of the Act) because she was involuntarily reduced to such a state of mind that she was actually prevented from exercising free will through the use of wrongful, oppressive threats, or unlawful means. Matter of M-, 7 MEN Dec. 251 (13IA 1956). A person who was subjected to abuse in the form of forced prostitution or who can establish that he or she was forced to engage in other behavior that could render the person excludable, therefore, would not be precluded from being found to be a person of good moral character if the person has not been convicted for the commission of the offense or offenses in a court of law. A self-petitioner may also be found to lack good moral character, unless he or she establishes extenuating circumstances, if he or she: (1) willfully failed or reused to support dependents; or (2) committed unlawful aelt-that adversely renal-upon his or her moral character, or was convicted or imprisoned for such acts, although the acts do not require an automatic finding of lack ofg o odmoral character. DENALI The self-petitioner must be notified of the Service's intent to deny a self-petition. He or she must be allowed an opportunity to respond to that notice before a final decision is issued concerning a properly filed self-petition. -, Field offices need not obtain HQBEN concurrence prior to denying a self-petition. Until further notice, however, field offices must forward a copy of each final denial notice issued during the month with the monthly report discussed below. REEMTINE.REMEMEM A monthly report has been developed to allow HQBEN to gather statistical information to respond to Congressional and public inquiries regarding the implementation of this provision. A copy of the report is attached. Field offices must submit the report to the regional be due no later than May 5, Offices using CLAIMS to process these applications are also being asked to submit these reports until CLAIMS is modified to provide HQBEN with the information electronically. Offices will be notified when the need for the manual report has ended. CLAS&QEAMSE_QjyANDADnzsn/Emcog,s Distinct class of admission and adjustment codes have been established for self-petitioners and their derivative family members, as follows: 11

21 IMMEDIATE RELATIVES Self-Petitioning Spouse of USC M 1 M 6 Self-Petitioning Child of USC 1 B B 7 Child of MI or 1B6 1 B 3 1 B 8 FIRST PREFERENCE FAMILY PREFERENCE ALIENS Self-Petitioning Unmarried Son/Daughter of USC B 1 1 B 1 6 Child of 1311 or B16 - B12 B 1 7 SECOND PREFERENCE Self-Petitioning Spouse of LPR B 2 1 B 2 6 Self-Petitioning Child of LPR B 2 2 B 2 7 Child of B21, B22, B26 or B27 B 2 3 B 2 8 Self-Petitioning Unmarried Son/Daughter of LPR.... B24 B 2 9 Child of B24 or B29 B Second Preference Exempt from Country Limitations Self-Petitioning Spouse of LPR, exempt B X 1 B X 6 Self-Petitioning Child of LPR, exempt B X 2 B X 7 Child of BX1, BX2, BX6 or BX7, exempt B X 3 B X 8 niediremblace Self-Petitioning Married Son/Daughter of USC B 3 1 B 3 6 Spouse of B31 or B36 B 3 2 B 3 7 Child of B31 or B36 B 3 3 I D 8 ADDITIONAL INFORMATION Please refer to the Crime Bill, the supplementary information to the interim rule, the regulatory provisions established by the interim rule, Crime Bill Self-Petitioning Wire ffl, and Crime Bill Self-Petitioning Wire ff2 for additional information about self-petitioning. 12

22 ROBIN CONTACTS Field officers are encouraged to consult HQBEN concerning any aspect of the self-petitioning process that is unclear or to suggest areas in which additional guidance or training would be helpful. The HQBEN contacts, Rita Arthur and Ramonia Law-Hill, may be reached at: (202) (voice) (202) (fax) 13 Ir-sY

23 CHECKLIST OF EVIDENTIARY DOCUMENTS FOR VIOLENCE AGAINST WOMEN ACT (VAWA) SELF PETITIONS OR BATTERED SPOUSE WAIVERS COLLECT IF AVAILABLE - SUBMIT COPIES ONLY Client s identity and immigration status: Birth certificate(s) of client and client s children Passport(s) of client and client s children I-94 Card(s) of client and client s children, if any All documentation previously submitted to or received from the immigration service Evidence of abuser s immigration status: (VAWA self-petitions, not battered spouse or child waivers) - For United State Citizens (USC): Abusive spouse s birth certificate Abusive spouse s naturalization certificate, if any Abusive spouse s passport Abusive spouse s social security card - For Lawful Permanent Residents (LPR): Abusive spouse s Permanent Resident Card ( green card ) Any immigration document ever filed by or for the abusive spouse Abusive spouse s alien number Abusive spouse s passport Abusive spouse s social security card Legal marriage (VAWA self-petitions, not battered spouse or child waivers): Divorce decree(s), annulment decree(s), or death certificate(s) from prior marriages of both client and abusive spouse Marriage certificate of client and abusive spouse Joint residence (VAWA self-petitions, not battered spouse or child waivers): Client affidavit 1 Credit card bills, letters, cards, and any mail addressed to one or both spouses at the address Joint bank accounts listing address Employment records Utility receipts (gas, electric, water, cable, phone) School records Hospital or medical records Leases, deeds, mortgages, rent receipts, letters from landlord, superintendent, or neighbors Insurance policies Affidavits 2 by persons who knew client and/or abusive spouse 1 2 The battered immigrant should not be asked to draft her own affidavit an attorney or law graduate should do so based on her statements and any notes she can provide. Your client and those providing supporting affidavits should not be asked to draft affidavits. Ask your client to make a list of those who know about her situation, including friends, family members, colleagues and professionals familiar with her case, such as advocates, counselors, doctors, and clergy people. You should approach the list of people she gives you to see if they would be willing to speak briefly with an attorney and then sign a confidential statement drafted by you.

24 Good faith marriage: Client affidavit Proof that one spouse is listed on other spouse s insurance policies, leases, income tax forms, bank accounts, car title Proof of other major purchases made as a couple Photos taken of wedding; photos taken during relationship before and after marriage Correspondence between spouses both before and after marriage, or between friends or family members Emergency contact lists at place of employment that lists spouse as contact Birth certificates of the couple s children Affidavits of persons who knew client and abusive spouse as a married couple Evidence of physical abuse or extreme cruelty: - Physical Abuse: Client affidavit Reports from police, judges and other court officials. Reports and affidavits from medical personnel, school officials, clergy, social workers, and other social service agency personnel Orders of protection or other court findings of abuse against abusive spouse Documentation that client sought assistance for abuse, such as record of residence in domestic violence shelter, or participation in domestic violence support group Affidavits from family, friends, and neighbors with knowledge of abuse Good Moral Character (VAWA self-petitions ONLY): Police clearance or state-issued background check from each locality where battered immigrant woman has lived for six months or more in the past three years Federal Bureau of Investigations (FBI) record, if necessary

25 NOTES AND PRACTICE POINTERS FROM USCIS VAWA, U AND T VISA STAKEHOLDER EVENTS 2016 AUTHORED BY: Gail Pendleton, ASISTA Immigration Assistance; Jessica Farb, Immigration Center for Women and Children (ICWC); Alison Kamhi, Immigration Legal Resource Center; Sarah Selim Milad, Just Neighbors Ministry, Inc; Carmen Maria Rey, Sanctuary for Families; Laura Lynch and Mary Beth Kaufman, AILA VAWA, U and T Visa National Committee; Cecelia Friedman Levin, ASISTA Immigration Asistance /AILA VAWA, U and T Visa National Committee

26 ABSTRACT This advisory contains general information shared by USCIS staff during multiple stakeholder events this year. We have added practice pointers and clarification where relevant. The information contained in this advisory does not create any law or rights, nor is it intended to be legal authority or advice, but is presented for informational purposes only and not for media attribution. The notes are provided for those experienced with VAWA self-petitions, U visa, and T visa relief. Basic background material and previous Vermont Service Center (VSC) stakeholder notes and practice pointers are available at NOTE: These policies and procedures are current as of November We realize that with the change of administration, some policies or procedures may be changed or delayed. We will update the materials as needed. 2

27 I POLICY 5 A. GENERAL POLICY UPDATES ON VAWA, U AND T VISAS 5 1. REGULATORY UPDATES 5 2. USCIS POLICY MANUAL 5 3. EMPLOYMENT AUTHORIZATION FOR BATTERED SPOUSES OF CERTAIN NONIMMIGRANTS 6 B. U VISA POLICY QUESTIONS 6 1. RECAPTURE 2. PAROLE 6 3. L.D.G V. HOLDER: ADHERING TO THE 7TH CIRCUIT'S RULING ON WAIVERS IN PROCEEDINGS 7 4. EAD/U DELAY LITIGATION PROJECT 7 II. GENERAL PROCESSING 8 A. USCIS CUSTOMER SERVICE RESPONSE 8 1. VOLUME 8 2. IMPROVING CUSTOMER SERVICE TOOLS 8 B. REQUESTS FOR FURTHER EVIDENCE (RFES) 9 1 RFE REVIEW 9 2 REQUESTING SUPERVISORY REVIEW 9 3 TIPS FOR RESPONDING TO RFES 10 C. PROBLEMS WITH THE CONSULATE 10 D. EMPLOYMENT AUTHORIZATION DOCUMENTS 11 E. CHANGE OF ADDRESS PROCESS IF CLIENTS ARE REPRESENTED IF APPLICANTS ARE PRO SE OR IF REPRESENTATION ENDS 11 F. APPEALS AND MOTIONS: I-290BS 12 III. COMMON FILING MISTAKES 13 A. FILINGS FOR DERIVATIVE FAMILY MEMBERS 13 B. DISCREPANCIES 13 C. COVER LETTERS 13 D. PASSPORTS 13 E. FEE WAIVER 14 F. EADS FOR WAITLISTED CASES 14 G. FILING SUPPLEMENT AS AFTER T OR U APPROVAL OR ON THE WAITLIST 15 IV. U VISA QUESTIONS 15 A. PROCESSING TIMES & STATISTICS GENERAL STATISTICS WAITLIST STATISTICS DELAY IN U VISA PROCESSING TIMES CHANGE IN U VISA PROCESSING 16 B. NEBRASKA SERVICE CENTER WORKSHARE 16 3

28 2. IMPORTANT PRACTICE POINTERS 17 C. U ADJUDICATION ISSUES RE-ADJUDICATION FROM WAITLIST TO U ISSUANCE RFE OR NOID AFTER APPROVAL POLICE REPORTS NOT INCLUDED IN THE RECORD OF CONVICTION 19 D. INADMISSIBILITY ISSUES AFTER ACQUIRED GROUNDS OF INADMISSIBILITY AFTER U GRANT RESOLVED CRIMINAL ISSUES 20 E. LAW ENFORCEMENT CERTIFICATIONS 20 F. INTERSECTIONS WITH DACA RENEWAL OF DACA WHILE U VISA IS PENDING: 21 G. WORKPLACE U VISA CASES 21 H. APPLICANTS IN DETENTION AND REMOVAL EXPEDITED PROCESSING 22 I. EXTENSION OF STATUS I J. U VISA ADJUSTMENT OF STATUS (485) AND APPLICATIONS FOR QUALIFYING FAMILY MEMBERS (929) EXTENSION OF STATUS NOTICES CONTINUOUS PRESENCE: EXPEDITE PROCESSING OF SUPP AS IF PRINCIPAL IS ADJUSTMENT READY AGE-OUT ISSUES FOR I-929 DERIVATIVES 23 V. VAWA 24 A. WORK AUTHORIZATION 24 B. PRIMA FACIE DETERMINATIONS 24 C. PROCESSING OF VAWA ADJUSTMENTS ROLE OF DISTRICT OFFICES IN VAWA ADJUSTMENTS WHEN TO FILE I-824 FOR DERIVATIVES ABROAD 25 D. FILING A VAWA SELF-PETITION AFTER ONE-STEP HAS BEEN FILED 25 E. PRIOR REMOVAL ORDERS VAWA SELF-PETITIONERS WITH PRIOR REMOVAL ORDERS VAWA SELF-PETITIONERS WITH A REINSTATED ORDER OF REMOVAL 26 VI. I-751 DOMESTIC VIOLENCE-BASED WAIVERS 26 A. TRAINING OF CSC OFFICERS 26 B. NEW CUSTOMER SERVICE LINE FOR DOMESTIC VIOLENCE BASED I-751S AT VSC 27 VII. T VISAS 27 A. PROCESSING TIMES 27 B. SIMILARLY SITUATED VICTIMS 27 C. ESTABLISHING REQUIREMENTS 28 4

29 I. POLICY A. General Policy Updates on VAWA, U and T visas 1. Regulatory Updates a. T visa regulation updates: T visa regulations are currently awaiting clearance and USCIS hopes they will be out soon. It will be a final rule, but there should be a comment period for the public. b. U visa regulation update: Updates to the new U visa regulations will implement provisions of TVPRA 2008 and VAWA 2013 and will make other clarifications. Practice Pointer: It is unclear whether these regulations will be finalized before the change of administration in January In the past, the changes in U visa regulations focused on certifying officials. For example, in June of 2014, USCIS held a listening session regarding a possible modification to the U visa regulations, which would memorialize their current practice of allowing police chiefs, sheriffs, prosecutors, and other certifying agency heads to designate other individuals as certifiers. The regulations at 8 CFR (a)(3)(i) seem to support this, as a certifying official is listed as The head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency. However, it appears that the regulatory change may be able to include other subject matter experts who may NOT be in a supervisory role including subject matter experts, or other officials that the head of the agency deems to have significant training and experience on cases involving violence against women and special victims, or who work on building relationships with the immigrant and limited English proficiency community. If there are any developments regarding the status of these regulations, we will update this advisory accordingly. 2. USCIS Policy Manual: The Policy Manual is USCIS s effort to put all policy-related documentation in one place. Some chapters are already published on USCIS website (available here). Humanitarian-based sections are currently being drafted. As these are developed, updates to the policy manual will be released in the form of an alert rather than a separate policy memoranda. a. Practice Pointer: In the past, new Policy Manual sections did not include a high level of detail and, in some cases, did not include information on special approaches to VAWA. Please keep your eyes out for such discrepancies and let us know, so we can raise these concerns with USCIS HQ. USCIS should not (and presumably does not intend to) use the Policy Manual to eliminate past policies and procedures that have proven helpful to noncitizen survivors. There will be opportunities to provide stakeholder comments to the manual in the same ways as there is a comment period for guidance. 5

30 3. Employment Authorization for Battered Spouses of Certain Nonimmigrants Question: Given the March 2016 memoranda on work authorization for abused A, E(iii), G and H derivatives, when should we expect a process for filing those applications? When does USCIS expect that the new I-765V form will be posted for public comment? Update: On May, 27, 2016, proposed Form I-765V and the accompanying instructions were published in the Federal Register for comment. ASISTA, Asian Pacific Institute on Genderbased Violence, AILA, and CLINIC submitted a joint comment on July 26, 2016 which is available here: We suspect that the USCIS will start to accept these applications sometime in 2017, though the exact time frame is not clear. If you are working with a survivor who cannot wait until then, please contact ASISTA at questions@asistahelp.org to discuss potential litigation strategies. B. U visa Policy Questions 1. Recapture Question: Has there been any talk at USCIS regarding issuing the approximately 60,000 visas that went unused between 2000 when the U visa was created and when the regulations were promulgated? Answer: No. USCIS is not considering recapturing the 60,000+ unused U visas. a. Practice Pointers: ASISTA and allies have had several conversations over the years with USCIS about recapture and have done legal research to inform those conversations; however, there does not seem to be a way to do so that comported with the statute. If you would like to discuss or revisit this analysis, please contact Gail Pendleton at ASISTA through questions@asistahelp.org. 2. Parole Question: As USCIS is under a regulatory directive under 8 CFR (d)(2) to provide parole for conditional grantees, please provide an update about establishing a parole policy so that U visa waitlisted applicants or derivatives abroad may utilize parole to enter the U.S. If USCIS is working on parole policies, is advance parole for those on the U visa waitlist being considered as part of that guidance? Answer: Based upon the CIS Ombudsman Recommendation, 1 USCIS is currently working on implementing a parole program for those principals and derivatives on the U waitlist who 1 See Ombudsman Recommendation on Parole for Eligible U Visa Principal and Derivative Petitioners Residing Abroad. Available at: 6

31 are residing abroad, and will also address advance parole for those on the U visa waitlist. This policy will not include parole for derivatives derivatives (e.g., U visa grandchildren); but they can continue to apply on a case-by-case basis for humanitarian parole. USCIS is now working on a form and guidance; however, there are certain issues that have yet to be resolved, including whether the parole applications will be filed at VSC and whether the parole application can be filed concurrently with the initial U visa application. Yet given the change of administration, policy changes are unlikely to happen before January 2017, and after that may be subject to review or held up by the new administration. The authors will keep you posted on any and all updates on this policy. a. Practice Pointer: ASISTA and CLINIC have developed a practice advisory for those considering filing for parole for family reunification purposes under the current framework. For more information, visit 3. L.D.G v. Holder: Adhering to the Seventh Circuit's ruling on waivers in proceedings Question: How does VSC handle I-192 waiver applications that are approved by an Immigration Judge following L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014). Answer: USCIS is adhering to the decision in LDG in the Seventh Circuit but not expanding its application to other circuits at this time. All petitions will be reviewed on the merits, and will be reviewed for any grounds of inadmissibility not addressed by an Immigration Judge. VSC cannot overrule a (d)(3) waiver granted by an IJ but it may look at other inadmissibility issue not covered. Update & Practice Pointer: So far L.D.G v. Holder has not been adopted outside the Seventh Circuit, see, e.g., Sunday v. Atty Gen, 832 F.3d 211 (3rd Cir. 2016) Furthermore, in September 2016, the Board of Immigration Appeals affirmed in Matter of Khan, 26 I&N Dec. 797 (BIA 2016) that Immigration Judges do not have authority to adjudicate a request for a waiver of inadmissibility under INA 212(d)(3)(A)(ii) of the INA for a U visa. Advocacy around this issue is on-going nationwide. If you are planning on pursuing L.D.G arguments in your own circuit, please connect with Gail Pendleton at ASISTA through questions@asistahelp.org and Trisha Teofilo Olave at National Immigrant Justice Center at TTeofilo@heartlandalliance.org. For more information on L.D.G, See NIJC s practice advisory, accessible here: 4. EAD/U delay litigation project ASISTA is working with litigators and U practitioners around the country to coordinate a national mandamus effort to accelerate U work authorization. If you would like to participate in this project, contact ASISTA Executive Director, Gail Pendleton through questions@asistahelp.org 7

32 II. General Processing A. USCIS Customer Service Response: 1. Volume: T and U and VAWA section received 80,000 inquiries each year for VAWA selfpetitions, U and T visa applications, as well as adjustment and ancillary forms. VSC strives to return calls within 5 to 7 days. VSC also strives to address inquiries within 14 days (although they are aiming to get response time down to 7 to 10 days). inquiries are addressed in the first in, first out process and can only be made by the attorney of record. Written inquiries via mail (usually for pro se applicants) can take up to 6 months, though they have recently added resources to increase response time for written inquiries. Customer service officers are the same officers that adjudicate the cases. To make an inquiry on a VAWA self-petition, the Hotline address is: hotlinefollowupi360.vsc@uscis.dhs.gov. To make an inquiry on a U visa or T visa matter, the Hotline address is: hotlinefollowupi918i914.vsc@uscis.dhs.gov. To make an inquiry about a domestic-violence based I-751 waiver filed at VSC, you may use this address: HotlinefollowupI751ef.vsc@uscis.dhs.gov 2. Improving Customer Service Tools: Currently, VSC has 7 different accounts (some for law enforcement agencies, some for advocates). It is an Outlook system and it is antiquated in terms of how to categorize and prioritize inquiries. They have contracted with Salesforce to develop a new system (called STARS) and it will hopefully be implemented in the start of 2017 to help address customer service inquiries more efficiently. All inquiries will go into the database, including written inquiries, which will be scanned into the system. a. VSC Practice Pointer: VSC recommends you utilize only one means to contact VSC (either by phone or ). When a stakeholder contacts VSC through more than 1 customer service channel, it takes away time from adjudication. b. VSC Practice Pointer: Since s are responded to in a first in, first out order, if you are following up to an response from the VSC Hotline, then you could consider writing Follow Up to Original Inquiry or some other way to indicate that your response is not an initial inquiry, and VSC will attempt to move that follow-up inquiry to the front of the line. c. Practice Pointer: We recommend contacting VSC via as you are creating a record of USCIS correspondence on the case, which is more helpful in terms of additional advocacy or establishing a record for appeal. 8

33 B. Requests for Further Evidence (RFEs) 1 RFE Review: Review time for RFE responses can vary. If it has been more than 60 days since submitting the RFE response, stakeholders may contact the Hotline to inquire about the case. VSC is unable to provide RFE processing time in auto response time, but they will consider it for the future. 2 Requesting Supervisory Review: VSC recommended that requests for supervisory review be used in limited situations and as a last resort. VSC notes that every request for supervisory review is honored, and it has become an overused process. Sometimes they find that something could have been better articulated or wasn t written well, but the underlying request is legitimate and the request stands. From VSC s perspective, if your RFE presents a legal argument, then it may be more efficient to respond to the RFE and present your arguments rather than going through the process of supervisory review. a. In addition, because the supervisory review process does not function well for advocates, ASISTA and the AILA VAWA, U and T visa Committee are currently collecting and reviewing RFEs and Denials related to VAWA self-petitions, U and T visas to identify problematic trends, especially for cases adjudicated at NSC. We invite you to submit your problematic RFEs and Denials at 3 Tips for Responding to RFEs: VSC recommended that stakeholders highlight in the cover letter anything you think is important, and remember that the original RFE should be on the top of the submission as it is helpful to the contractor to help locate the correct file. a. Practice Pointers: DO NOT RESPOND TO THE RFE VIA THE HOTLINE. VSC indicated they have seen this as a trend. You should respond to the RFE in paper, with the original RFE on top of your submission. b. Practice Pointer: If you see boilerplate RFEs that does not take into account any of the evidence you submitted or list how the evidence you did submit does not meet the requirements, we still recommend requesting supervisory review in these cases as these types of RFEs are not supposed to occur. c. Practice Pointer: In responding to RFEs, advocates should ALWAYS do the following: i. Respond on time; ii. Look at the front and back of the RFE, since the notices are printed double-sided and often part of the request continues on the back of the notice. iii. Respond in full to the RFE: If not all the documents requested are included, USCIS can treat the submission as a request for a decision on the record. iv. Be civil in your response: focus on what is wrong factually or legally. 9

34 d. Practice Pointer: Generally, USCIS wants applicants to submit the best evidence available. If certain evidence was unavailable, explain how you tried to get the evidence the RFE asked for, why it was not available, and how what you are submitting is credible. USCIS also likes to see systems evidence which may be proof that the applicants reached out to institutions or systems with regard to their case (i.e. hospitals, victim services, etc.), so that documentation is useful. This evidence, however, is "primary evidence" and insistence on supplying it violates the Congressionally mandated "any credible evidence" standard. For more on best evidence and the "any credible evidence" standard, see on_best_80fb0fb5b1ac9.pdf e. ASISTA helps with "interventions" after you have responded to RFEs and the hotline review has proven unhelpful, by raising legal, procedural and other emerging problems with the heads of the unit, CIS HQ and the CIS Ombudsman s office. For help with this, send your question to questions@asistahelp.org. C. Problems with the Consulate: If you are trying to resolve an issue with the consulate, then try reaching out to the USCIS contact in the consulate or contact the consulate directly. Contact information should be available on the embassy or consulate website, If no final answer is received to a legal question after two attempts to contact post or if a final response is received that you believe is incorrect as a matter of law, send an to LegalNet@state.gov. a. Practice Pointer: Immigration Center for Women and Children (ICWC) manages a Zoho Database with information about consular processing procedures and policies broken down by embassy. To get connected to this database visit: D. Employment Authorization Documents: VSC makes an effort to adjudicate I-765 applications within 90 days and currently VSC is within processing times for I-765 for all types of applications. The Form I-765 should be adjudicated within 90 days of action on underlying case. That is, pending forms do not confer the right to the EAD, and the 90-day clock does not start until the underlying case has been approved. Contact the Hotline if the application is outside the 90-day processing time. a. Practice Pointer: VSC stated they are seeing many I-765 applications that do not have the correct I-765 designation. Each form needs to have one category of eligibility for each application. If the form is not categorized properly, stakeholders risk delaying their application or the case may be rerouted to another division or service center. For example, if you are submitting an initial I-918A application for a child of a U visa applicant, you should submit 2 I-765 applications, one listing the 10

35 eligibility category under (c)(14) [for deferred action] and the other based on (a)(20) [as an approved U-3 visa holder]. Stakeholders should not be submitting one I-765 listing both eligibility requirements, rather 2 separate I-765 forms with the separate designations. E. Change of Address 1. Process if clients are represented: a. Firm change of address: If your firm is changing address, VSC indicated that attorneys may submit one G-28 listing the new address and attaching a list of the A#s of the attorney s current caseload. Practice Pointer: If your firm is changing its address, confirm with the Hotline that the updated information has been received and that the information has been changed in the individual case s A file. b. Client change of address: VSC has indicated that they do not want attorneys and representatives to submit AR-11s to VSC to change the address of clients, rather that representatives may contact the Hotline with information regarding the address change. For VAWA, T, and U visa cases, attorneys and representatives should not be mailing AR-11s to the Harrisonburg, VA address nor using the online Change of Address system. Due to confidentiality reasons, these mechanisms will not be sufficient to change an applicant s address for a VAWA, U, or T visa case, nor an adjustment of status based on those forms of relief. a. Practice Pointer: Despite VSC s position that an address change may be accomplished via the Hotline, it may be prudent to file an actual AR-11 along with a response to an RFE, an EAD renewal, or other correspondence with VSC to ensure that there is paperwork in the file indicating the address change. This can help show compliance, if ever needed, with INA 265, which requires certain noncitizens to notify the government of a change of address. Given that procedures and policies may change in the future, having an AR-11 on file with VSC is just an extra layer of protections for attorneys and their client to show the requirements have been met. 2. If applicants are pro se or if representation ends: In order to fulfill their obligation under the INA, applicants must notify USCIS of any change of address within 10 days of the change at any time, including any employment authorization renewal or after adjustment but before naturalization. All pro se applicants should file an AR-11 directly with VSC to change their address. This obligation may be 11

36 fulfilled by sending a letter to the VSC VAWA Unit with an original signature to change their address or by filing an AR-11 with the VAWA Unit at VSC. Applicants with pending or approved VAWA, U or T visa, or subsequent adjustment applications should not be using the AR-11 online system to change their address. F. Appeals and Motions: I-290Bs VSC has implemented new policy distinguishing between treatment of motions and appeals on the I-290B form. They will no longer consider motions as appeals in the alternative or vice versa. Thus, you cannot file a motion and an appeal on the same form. If both the Motion to Reopen/Reconsider AND appeal boxes are checked the I-290B form it should be rejected and not receipted, or if it does slip through, it will be sent to the AAO. This apparently means, however, that if VSC denies a motion, instead of forwarding it as an appeal to the AAO as in the past, practitioners must now file another I-290B, marking it as an appeal. They have made this change to enable appeals to be sent to the AAO more expeditiously. If you mark the appeal box on the I-290B VSC will send it to the AAO generally within a 2-day timeframe. Generally, AAO completes most reviews within 6 months. a. VSC said its goal is to process motions within 90 days but acknowledged that it is well outside that processing time right now. If you have a case with extenuating circumstances, you may request an expedited review of the motion. b. Practice Pointer: If you are providing new evidence or challenging a clear legal infirmity, practitioners may benefit from first filing a motion to reopen/reconsider with VSC before filing an appeal. However, if the evidence remains the same as in the original submissions, the client may benefit from immediately filing an appeal as the process may be more expedient. Keep in mind that if your Motion to Reopen/Reconsider is denied, you may appeal. If you wish to discuss whether this process makes sense in a particular case, contact ASISTA via questions@asisthelp.org. c. Practice Pointer: ASISTA has filed several amicus briefs with the AAO, and ASISTA and AILA can assist on strategy related to amicus briefs. For ASISTA's help in framing appeals and coordinating amicus briefs (preferably at the RFE stage), contact Questions@asistahelp.org. For help from AILA s Amicus Committee, please submit a request on the following website: 12

37 III. Common Filing Mistakes A. Filings for derivative family members: VSC indicated that it is not uncommon that that I-918 Supplement A cases are not documented properly. I-918As should have evidence to support that petition (e.g. birth certificates showing the relationship). Failure to submit the necessary documentation could result in an RFE, which would extend the timeframe of adjudication. B. Discrepancies: VSC indicated that sometimes applications contain discrepancies. For example, information in an applicant s personal statement not matching other evidence, either in the I-918 Supplement B or the cover letter. a. Practice Pointer: An important component of RFE prevention is to identify inconsistencies in an application before its submission. Once the inconsistencies have been identified, then advocates should assess whether the inconsistency is material. If it is not material to the requirements of the application, then you should identify the inconsistency and address why it is not related to a material fact. If the inconsistency is material (e.g. charges on court documents do not match the Supplement B), then advocates should assess how these inconsistencies would be best addressed (e.g. declaration from LEA, statement from applicant, etc.). C. Cover letters: Cover letters are not evidence or testimony, rather it is a place to present arguments to explain the evidence. If there is contradictory information in the application, the officer may not understand why there is a discrepancy. When possible, any discrepancies should be explained to provide context for the officers. a. Practice Pointers: Stakeholders should not coach applicants on their personal statements. VSC wants personal statement in the applicant s own words, but it is always a good idea to review other supporting documents to help them remember. b. Practice Pointer: While VSC has stated that cover letters are not mandatory; they are an extremely useful roadmap for the adjudicator regarding your application. Cover letters can be helpful to point out things that are not otherwise obvious; however, extremely lengthy and repetitive cover letters are not useful. ASISTA's Clearinghouse contains a sample U visa roadmap cover letter, available here: D. Passports: VSC is seeing many U applications without a valid passport. Any nonimmigrant in the U.S. is required to have a valid passport for a minimum of six months from the date of the expiration of the authorized stay. 2 a. Practice Pointer: Therefore, for those in the U.S. filing an I-918 or I-918 Supplement A, the applicant needs to do one of the following: 2 INA 212 (a)(7)(b)(i)(i). 13

38 i. Provide a copy of the passport biometrics page, showing that it is currently valid and will continue to be valid 6 months after the U Nonimmigrant Status is granted and/or ii. Include on the waiver request, Form I-192, that the applicant wishes to get INA 212(a)(7)(B) waived for the passport requirement because either 1. The applicant currently has no passport or 2. (potential inadmissibility) The applicant s passport may expire within 6 months of U status expiration. Since U applicants now wait years before receiving a U visa, applicants with passports valid for less than 10 years will likely need to include this potential inadmissibility on the I-192. b. G-28s: VSC reports that they are seeing G-28s not signed by the applicant. Principal petitioner should sign their own G-28 for their application and for the I-918A, as the Supplement A is actually a principal s application for the derivative. But if the derivative is submitting additional applications (like an I-765 or an I-192) then they need their own G-28 to help notify VSC that the attorney is also representing the derivatives on their own separate applications. c. Practice Pointer: An attorney or BIA accredited representative can submit one G- 28 for multiple application types (e.g. I-918, I-765, I-192). But a separate G-28 should be submitted for each individual principal and derivative applicant who is filing their own applications. E. Fee waiver: VSC indicated that you need a fee waiver request or letter for fee to be waived with each application. If no fee or fee waiver request is provided for applications that require a fee, then USCIS will have to reject the application. In the order of the filing, the fee waiver should go right on top or underneath the G-28. a. Practice Pointer: VSC has flexible fee waiver standards for all applications to the VAWA Unit. For a discussion of different options for fee waivers, see ASISTA s Advisory from February 2015 available here: F. EADs for Waitlisted Cases: If a request for work authorization based on deferred action is not submitted concurrently with the I-918 application, then a copy of the waitlist letter must be submitted with the subsequently filed I-765, citing category (c)(14). If the letter is not submitted with the I-765, then this could slow down the processing of the application. a. Practice Pointer: For more information about filing for employment authorization for the principal and derivatives, ASISTA s Advisory from February 2015 is available here: 14

39 G. Filing Supplement As after T or U Approval or on the Waitlist: Stakeholders should submit copies of the principal s approval or waitlist notice if filing Supplement As after the principal s case has been approved. They should also ensure A#s and EAC#s correspond with the principal application. IV. U Visa Questions A. Processing Times & Statistics 1. General statistics: General statistics on U visas are publicly posted data on the USCIS website and are updated quarterly. This information is posted on the U visa dataset, the latest of which is available here. 2. Waitlist Statistics: USCIS stated that there are approximately 140,000 pending U visa cases (including both principals and derivatives) and of those 24,000 3 have been waitlisted. In fiscal year 2017, USCIS will take up to 18,000 4 principals and derivatives off the waitlist to issue U visas. 3. Delay in U visa Processing Times Question: Please explain what is causing the huge delay in adjudicating U visa applications. What is being done to improve processing times? When does VSC expect the May 7, 2014 processing date for I-918s to change? Answer: Applications are delayed across the board at USCIS. U visa processing is impacted by a number of factors, including the statutory cap of 10,000 visas, an increase in the number of applications they have received, and personnel resources. USCIS has recently discussed how personnel resources do not align with the current caseload, and they are working to address the workload issues, and hope to provide information in the coming weeks. For the sake of transparency on the U waitlist and the work that the VSC has been doing on the delays, USCIS provided some background information. USCIS is now processing waitlist letters for U nonimmigrant status submitted in June USCIS understands that stakeholders and their clients are frustrated and the hardship that can result from the delay. VSC has a high volume workload, and the number of U visa petitions has increased. In 2009, USCIS received 11,000 applications for principals and derivatives and in 2015, they received 52,000 for principals and derivatives (thus an increase of almost fivefold). When reviewing U nonimmigrant waitlisted cases, VSC needs to go through the applications again to ensure eligibility and must make sure that biometrics are up to date, which takes away time from looking at new petitions. Sometimes when new information comes to light in this review, processing can take longer. VSC also prioritized 3 Including both principals and derivatives. 4 This number would include derivatives as well. 5 Announced at the September 2016 VSC Stakeholder Meeting. 15

40 several I-918A petitions for U2s through U5s for those whose principals already had U status. Now, VSC will be focusing on putting the oldest cases on the "First In First Out" line on the waitlist as appropriate. 4. Change in U visa Processing VSC has indicated that they are currently taking a more staggered approach to adjudicating U visa applications compared to the past few years. Previously, VSC has employed an all hands on deck strategy to issue U visas right as the fiscal year begins, halting any other adjudications and slowing down customer service responses. The previous approach resulted in VSC issuing all approvals by mid-december. To enable adjudication of initial U visas to continue without interruption (and to work on the backlog), U visas will be issued throughout the first ¾ of the fiscal year, though it may take the entire year. This will enable those who are waitlist-eligible to receive work authorization sooner. Starting October 1, 2016, VSC expects to approve for U Nonimmigrant Status and remove from the waitlist those U visa applicants who filed their I-918 between May 2013 and February The exact end filing date will depend on how many people continue to remain eligible for status during this additional review. VSC will prioritize reviewing RFE responses for those eligible to be removed from the waitlist in FY2017 to ensure they remain in the FY2017 cohort. VSC will no longer backdate grants to October 1st. Instead the VSC will assign the actual approval date and the U visa will be valid for four years from that date. B. Nebraska Service Center Workshare 1. U visa workshare generally: The U visa work share program began on July 18, 2016 when 3000 cases (about 11,000 cases including derivatives) were transferred to the new U Visa Unit at the Nebraska Service Center (NSC). During July and August, VSC staff went to NSC to train 23 adjudicators on U visa applications (including I-918s, I-192s, and I-918As) and over 100 officers were trained on VAWA Confidentiality. There are three supervisors at the NSC U visa unit. VSC is working on dividing up the cases and doing data "scrapes" to ensure First In, First Out. VSC and NSC work together to ensure they are working on the initial adjudications for placement on the waitlist on the oldest cases first at both locations (most likely cases filed during the summer months of 2014). All applications transferred from VSC to NSC will receive a transfer notice. USCIS will post web-alerts and stakeholder notices updating information on transfers. At NSC, currently all RFEs and denials are reviewed by a supervisor before they are sent out. Once the initial batch of cases are adjudicated, VSC will send NSC additional cases, probably some time in FY The U visa workshare is a permanent change, although at this time all U visa applications will continue to be filed at VSC. 16

41 2. Important Practice Pointers a. Responses to RFEs should be sent to NSC as indicated on the instructions on the RFE. While USCIS requests that you send the RFE response in an attached NSC envelope (the yellow striped envelope is the correct one for the U workshare at NSC), it may be difficult to fit the RFE response inside and/or track that envelope properly. Instead, you may consider filing the RFE response to NSC in the appropriate mailing envelope and then attach the yellow striped envelope to the top of your RFE response. b. Any additional forms that were not submitted in the original application should be sent first to VSC, who will forward those supplemental materials to NSC. Examples of supplemental filings are the following: an I-765 for category (c)(14) for someone placed on the waitlist, an I-192 for someone who recently entered the U.S. without inspection, or a supplemental I- 918 Supplement A derivative application for a new family member. We will update this advisory if or when this changes. c. Customer service: Customer Service inquiries for cases transferred to NSC should still be directed to VSC via the phone or Hotline for the time being (including requests for supervisory review). NSC does not have separate , phone or addresses for case inquires at this time but there are plans for NSC to eventually have its own U visa customer service channels. Once NSC officers are fully trained on case adjudication, they will eventually be trained on customer service elements and trained to answer inquiries. d. Fee Waivers: USCIS indicated that NSC will consider fee waivers for I-918-related applications (e.g. I-765s, I-192s, etc.) in the same way VSC currently does. e. Practice Pointer: For more information on the USCIS U visa workshare, visit We are still concerned that CIS has not sought outside training for the adjudicators in the U visa workshare at NSC. ASISTA & the AILA VAWA/U committee will be closely monitoring the U visa workshare and will continue identifying the myriad problems caused by U visa backlogs, as well as ongoing adjudication issues at VSC. We are particularly interested to hear about problems you are seeing at NSC, and any apparent discrepancies in the way the two centers are evaluating cases (both good and bad). Please submit your problematic RFE or Denial to the ASISTA/ AILA VAWA U and T visa Committee Collection tool at: 17

42 C. U Adjudication Issues 1. Re-adjudication from Waitlist to U Issuance Question: Why are issues that were dealt with at the waitlist stage being revisited at the removal from wait-list stage, such as RFEs on the authority of the U certifier and RFEs on discretion for an I-192 (when no new inadmissibility grounds or criminal issues have arisen since application was waitlisted)? Answer: If there are any after-acquired offenses or violations, they need to be re-visited when the case is removed from the waitlist for U nonimmigrant status adjudication. VSC stated that about 50% of the RFEs it issues at this stage are for after-acquired offenses or violations. The remaining half are for issues that may have been overlooked or may not have been fully addressed when the person was placed on the waitlist. For example, any applicant who has certain arrests or convictions in her past must go through supervisory review before being approved for U nonimmigrant status. When asked what arrests or convictions require supervisory review before approval of U nonimmigrant status, VSC responded that supervisory review is required before a grant if the applicant has been arrested OR convicted for drug trafficking, gang-related activity, and/or violent crimes, including aggravated assault, domestic violence related offenses (although these will be examined to see if the applicant was actually the victim), and child abuse or neglect offenses. This required supervisory review happens at the time the person is taken off the waitlist for U nonimmigrant status adjudication; if the supervisor has any additional questions, they will be asked at that stage. 2. RFE or NOID after Approval: USCIS noted that sometimes new information comes forward after the initial adjudication that was not previously available in the USCIS file or provided with the petition; this presents a problem, which is raised subsequent to the approval. Because of various reasons, USCIS may review a case and determine that the case was approved in error. This subsequent evaluation is done under the same standards as when adjudicating the case originally and mostly occurs due to new information. Sometimes, the altered decision is due to a mistake by the initial adjudicator. If the case should not have been approved, a notice of intent to revoke (NOIR) will be issued to put the petitioner on notice that USCIS intends to revoke the approved application. VSC affirmed that, even if they send out an RFE or NOIR, the EAD will not be revoked unless the application is ultimately denied. a. Practice Pointer: Some problems identified post-waitlist grant might be avoided by ensuring, before you apply, that you have vetted your client's full immigration history including determining (a) what, if anything, happened at the border, and (b) whether the client applied for any previous immigration benefit. VSC may not catch these problems at the waitlist stage if you haven't highlighted and addressed them, but they may be material to a client's eligibility for a U. The best practice is to obtain FBI and/or local DOJ and/or FOIA results for every client, especially if there was ever 18

43 contact with law enforcement or DHS. Some clients may not understand your questions on these issues, or know what happened at the border or with other applications (especially if filed by abusers), so double-checking on criminal and/or immigration history helps avoid later issues with VSC. See advice regarding responding to RFEs above. 3. Police reports not included in the record of conviction: VSC believes that police reports are necessary in certain circumstances to find out what happened, even if no charges were brought, the charges were later dismissed, or the charges were pled down. a. Practice Pointer: It is well-established law that insisting on evidence outside the record of conviction is illegal for purposes of determining whether a conviction has taken place, which in turn means it is illegal for VSC to use it to determine whether a ground of inadmissibility applies. ASISTA and advocates believe that the same reasons the courts have found this, i.e., the unreliability of such evidence and the fundamental violation of due process its consideration entails, should preclude VSC from insisting on such information for purposes of exercising discretion. Since the regulations prohibit review of VSC's discretion in the waiver context, there is no way to challenge this except through the federal courts (and fixing the regulations, a request we have repeatedly made since CIS issued them). If you would like to help organize a challenge to this practice through litigation, please contact Gail Pendleton at ASISTA through questions@asistahelp.org D. Inadmissibility Issues 1. After Acquired Grounds of Inadmissibility After U Grant: If U applicants are convicted of a crime that triggers a ground of inadmissibility after being granted U nonimmigrant status but before adjusting status, VSC confirmed that they do not want a new I-192 after the applicant is already in U nonimmigrant status - unless the person travels. If the person travels, she will need an approved I-192 waiver of the new ground of inadmissibility (as well as any new grounds triggered upon departure) in order to return. If the person will not travel, simply note the discrepancy clearly in your cover letter and application to adjust status and include any/all evidence to support a discretionary approval of the adjustment of status. a. Practice Pointer: Note that this advice applies only to after-acquired inadmissibility for those who are granted U status. Those who received a U visa without revealing all inadmissibility grounds and having them waived may face a revocation of their visa if they do not timely notify CIS (timely as in when you find out about it, assuming this is an inherited case). 19

44 2. Resolved criminal issues Question: Can stakeholders notify USCIS of resolved criminal issues for applicants? Answer: Yes, the attorney can do so by notifying the VAWA Unit by submitting additional evidence. Please provide the applicant s name, A#, and the Receipt number on the correspondence, so that the evidence may be matched with the A file. a. Practice Pointer: Place a copy of the receipt on top, highlighting A#/EAC#, so that it gets flagged/reunited with the file like an RFE. You can track your filing by the mailing label. E. Law Enforcement Certifications There are many law enforcement agencies that provide blanket denials to U visa certification requests without any reasoning to support them. How can stakeholders support the connection between USCIS and law enforcement if there are questions about certification? What USCIS said previously and what they continue to say is that USCIS cannot influence Law Enforcement Agencies (LEAs) to complete or sign these forms. USCIS can point them to the DHS Law Enforcement Certification Guide. 6 On the USCIS website, they have roll call videos specifically created for LEAs regarding T visas; they host a webinar that occurs every other month for LEAs; and LEAs can use a phone number provided for contact with OPS. 7 LEAs can personally request information or a training from USCIS. To request training for LEA or a stakeholder engagement event, send to T_U_VAWAtraining@uscis.gov. They are able to travel when they can. If you have information about an area where engagement would be helpful or important, them. 1. Practice Pointer: Many states have been trying to address the issue of law enforcement certification at the state level, most notably the California law SB 674 which requires that law enforcement agencies issue a decision on U visa certifications within a 90-day time frame (14 days if the applicant is in removal proceedings) and creates a rebuttable presumption of helpfulness if there is no evidence the victim refused or did not provide information and help reasonably requested by law enforcement. 8 If you are looking to address the issue of law enforcement certification through state or local legislation, please contact ASISTA at questions@asistahelp.org and Alison Kamhi at ILRC at akamhi@ilrc.org so we can connect you to these advocacy efforts. 6 Click the updated version of the DHS Law Enforcement Certification Guide is available here: 7 For information that is available from USCIS for Law Enforcement, including roll call videos, click here: 8 For more information on SB 674 in California, IRLC has useful factsheets and infographics, available here: 20

45 2. Practice Pointer: ASISTA and the AILA VAWA, U and T Committee have previously collected resources including law enforcement certification memoranda and policies from several jurisdictions nationwide, this guide is available here: If you have additional materials to add to this document, please contact ASISTA at questions@asistahelp.org F. Intersections with DACA 1. Renewal of DACA while U visa is pending: Applicants should be able to renew their DACA if their U visa application is pending. However, if applicants are placed on the U visa waitlist and receive deferred action they will not be able to renew their DACA. a. Practice Pointer: Given that the future of the DACA program is very much at risk after the presidential election, ILRC has compiled comprehensive post-election talking points about DACA, available here: b. Practice Pointer: If your DACA renewals are taking longer than normal because applicants have a pending U visa application, contact the VSC Hotline and let ASISTA know through questions@asistahelp.org. G. Workplace U visa Cases: VSC announced that they have new training in place related to workplace U visa crimes which has been cleared through all USCIS Headquarters components. This training has been incorporated into the training for NSC as well. There are 200 workplace based U visa cases and there is a team of 7 officers focusing on this work (including cases where EEOC and the Department of Labor are certifying agencies). USCIS Office of Policy and Strategy are working on additional guidance related to substantial harm. a. Practice Pointer: We believe the training materials include those suggested by ASISTA and the National Employment Law Project when we raised with DHS Headquarters the problems with workplace U adjudications at VSC. You can see those materials available on ASISTA s website at or the NELP guide, U Visas for Victims of Crime in the Workplace: A Practice Manual available here: Workplace-Crime-Practice-Manual-NELP.pdf 21

46 H. Applicants in Detention and Removal 1. Expedited Processing: For detained applicants to have a U visa case expedited by USCIS, ICE needs to contact VSC and request a prima facie decision. 9 VSC has a dedicated inbox for this specific purpose, which can help streamline those inquiries. However, USCIS said there are times when both offices need the A# file which can cause delays in adjudication because the file is needed by both USCIS and ICE. While VSC generally makes prima facie decisions when asked by ICE, requesting expedited processing, even if the applicant meets the basic grounds, does not necessarily mean VSC will approve it. Most U visa petitions meet the humanitarian criteria for being expedited, so the request should be based on urgent or extreme circumstances. How long the expedited request takes depends on availability of the A# file, and so USCIS is not able to establish processing time at this time. a. Practice Pointer: The prima facie decision is crucial to cases in detention and/or proceedings, so practitioners must work with ICE to ensure that happens. If ICE refuses, contact ASISTA through questions@asistahelp.org, since that would be a violation of ICE's own guidance. Prima facie approvals should then trigger application of ICE's prosecutorial discretion concerning victims, 10 although we have not always seen ICE adhere to this memorandum. The White House and DHS HQ need to see the cases illustrating ICE's reluctance to implement the memoranda designed for victims of crimes; please contact ASISTA as noted above to contribute to this advocacy effort. I. Extension of Status I-539 Question: The I-539 is getting denied now if it is not filed closer to the expiration date - is this a change in practice? Answer: A contractor reviews these. VSC stated that there is no conscious change in practice so VSC is looking into whether the contractor will continue to reject early filings. VSC's preference is that we wait until 90 days before expiration. 9 See ICE memoranda on the prima facie request process at ICE Memorandum. Adjudicating Stay Requests Filed by U nonimmigrant status Applicants. (September 24, 2009), available here: Also, the ICE Memoranda for OPLA Attorneys, ICE Guidance on U Nonimmigrant Status Applicants in Removal Proceedings or with Final Orders of Deportation and Removal. (September 25, 2009), available here: 10 See ICE Memoranda Prosecutorial Discretion: Certain Victim Witnesses and Plaintiffs (June 17, 2011), Available here: 22

47 J. U Visa Adjustment of Status (I-485) and Applications for Qualifying Family Members (I-929) 1. Extension of Status Notices: After receiving the adjustment application, VSC will issue a notice of automatic extension of status. They only issue those notices once per month. If the applicant did not receive this notice, contact the Hotline after months after filing. That said, the case is automatically extended upon receipt (with proof of the I-485 receipt) and the extension notice is not necessary for USCIS purposes. See INA 214(p)(6). They understand, though, that some applicants may need the extension notice for public benefits purposes. If that s not the case, the applicant does not need to request the form if it was mistakenly not issued. 2. Continuous Presence: Regulations at 8 CFR (a)(1) state that continuous physical presence is the period of time that the U holder has been physically present in the United States. It must be a continuous period of at least 3 years since the date of admission as a U nonimmigrant continuing through the date of the conclusion of adjudication of the application for adjustment of status. The applicant must have at least 3 years at the time of filing the I-485 and maintain continuous physical presence through the adjudication. 3. Expedite Processing of Supplement As if Principal is Adjustment Ready: VSC is no longer prioritizing I-918A derivative applications for families where the principal already has U visa status. However, if the U principal visa holder is applying to adjust status, you may request an expedited processing of the pending I-918A, since the U principal should not adjust before the I-918A is adjudicated (and if abroad, until the derivative consular processes into the U.S. in U status) or else the derivative will lose the ability to obtain U visa status if the U-1 principal has already adjusted. a. Practice Pointer: This is especially important in cases where the derivative is now over 21 and so will not be able to enter the U.S. through the I-929 Qualified Family Member process at the time of adjustment. 4. Age-Out Issues for I-929 Derivatives: The issue of age out for I-929 derivatives is due to the existing statutory language and would require a legislative fix. But USCIS is aware of the issue and if you have a case where someone may age out, VSC will make an effort to adjudicate application prior to the derivative turning 21. a. Practice Pointer: Make it clear in the subject line in your to the Hotline that you have an I-929 age out issue and request that VSC expedite the case (e.g. Subject Line: I-929 Age-Out, Expedited Processing Requested ). 23

48 V. VAWA A. Work Authorization: USCIS has updated the Form I-360 to now inquire whether the VAWA self-petitioner is in the United States and is requesting employment authorization (see question 12 on page 14 of the I-360 form). If principal applicants check "yes" to that question on page 14 of the I-360 about whether they want employment authorization then they will receive an EAD incident to approval of the self-petition based upon (c)(31) eligibility *without* having to file a separate I-765. If principal applicants wish to have a deferred action-based EAD upon approval of their self-petition, then they will have to file a separate I-765 requesting employment authorization under (c)(14). For the moment, applicants may file these I-765s concurrently with the I-360. In this case you should check "NO" on page 14 of the I-360 and write in "See attached I- 765 based on (c)(14) eligibility." Of course, if your client is eligible for (c)(9) work authorization and you are submitting an I- 765 based on the pending adjustment, then applicants will probably check no on page 14 of the I-360 and write "See attached I-765 based on (c)(9) eligibility" For Derivatives: VAWA derivatives applicants will still need to file a separate I-765 for work authorization based on (c)(14)/deferred action eligibility 1. Practice Pointer: VSC also recommended that in VAWA one-step applications, stakeholders should submit two G-28 Notice of Appearance: one for the I-360 and the other for the I-485 petition. B. Prima Facie Determinations: Generally, VSC seeks to issue a Prima Facie Determination Notice within 60 days of the date of filing. If stakeholders do not receive one in that time period, then request supervisory review. C. Processing of VAWA Adjustments 1. Role of District Offices in VAWA Adjustments: Question: What is the rationale for having VAWA adjustments adjudicated through the District Offices? Given that there are several instances in which adjustments are granted without an interview, would it be possible for VAWA I-485s to be adjudicated at VSC in the same way? Answer: The I-485 form is processed at the National Benefits Center (NBC) to prepare the case for transfer to the District Offices. NBC does name checks, fingerprint checks, and issues RFEs for missing documents if needed. Generally, clean cases will have an average processing time of 35 days. There can be delays due to RFEs requested, biometrics needing 24

49 to be rescheduled, FBI name check, etc. VAWA adjustment interviews will continue to be at the District Offices. 2. When to file I-824 for Derivatives Abroad: Question: Can you file the I-824 for beneficiaries abroad concurrently with the I-485 packet for a VAWA self-petitioner? Answer: Yes, the I-824 may be filed concurrently with the VAWA adjustment packet. If you are doing so, leave the approval and receipt date blank on the I-824 form, and it will be filled in once the I-485 is approved. Once the I-485 is approved, VSC will send the I-824 to NVC for processing. At that point, the case is outside their jurisdiction, so if there is a delay, then stakeholders would need to follow up with NVC D. Filing a VAWA self-petition after one-step has been filed Question: It has been reported that some field offices want to see a police report or protection order to "demonstrate a VAWA claim" when asking for the I-485 to be held in abeyance until the VAWA case is filed with VSC. Providing this documentation should not be a prerequisite to having the application being held in abeyance, especially since the "systems" evidence these offices seem to be requiring is not required for a self-petition (which has the any credible evidence evidentiary standard). What interaction does VSC have with Field Operations to ensure that VAWA Confidentiality provisions apply uniformly? Answer: Applicants for adjustment of status may inform USCIS of their intention to file a VAWA self-petition and request that the adjustment application be held in abeyance as matter of discretion. Upon approval of the self-petition, applicants may request conversion of an I-130-based adjustment application to a VAWA-based adjustment application. These requests to hold in abeyance need not include specific evidence of the abuse such as hospital record or police report. Applicants should provide evidence of filing the VAWA selfpetition within 30 days of the conversion request. USCIS will then hold the pending I-130 based adjustment application in abeyance until decision is issued on VAWA self-petition. If they don t receive information within 30 days, then USCIS can make a decision about underlying adjustment application. 1. Practice Pointer: ASISTA has a sample abeyance letter available here: These letters are an important step to put the District Office on notice of the applicant s intent to file a VAWA self-petition and also 25

50 invokes important 8 USC 1367 confidentiality protections to safeguard the privacy of the victim. E. Prior Removal Orders 1. VAWA self-petitioners with prior removal orders VAWA self-petitions can be adjudicated for those applicants with prior removal orders from an Immigration Court; however, USCIS does not have adjustment jurisdictions for applicants with removal orders. In those cases, immigration court proceedings should be terminated before adjusting with USCIS. Then, approved VAWA self-petitioners may seek adjustment of status if otherwise eligible. If the VAWA applicant has a reinstated order of removal, then they are ineligible for adjustment under INA 245(a)(5). 2. VAWA self-petitioners with a Reinstated Order of Removal. If someone re-enters the United States illegally after having an order of removal or voluntary departure, then they may be subject to reinstatement of removal pursuant to 8 CFR However, there is a distinction to be made if a case is merely reinstateable or whether one has actually had a reinstated order of removal issued by ICE. In those cases where ICE has officially reinstated an order of removal for an applicant with a VAWA case pending, stakeholders may reach out to the USCIS Office of Policy and Strategy prior to case adjudication. 11 On a case-bycase basis, the Office of Policy and Strategy may confer with ICE on this issue to see whether ICE may consider rescinding reinstated order so they can proceed with adjudication of the case regarding underlying merits. Whether or not to rescind the reinstated order is ICE s decision. VI. I-751 Domestic Violence-based Waivers A. Training of CSC Officers Question: What training is done for California Service Center (CSC) adjudicators of domestic violence based I-751 applications? Is there a specialized unit working on these cases in the same way as is done at the Vermont Service Center? What recourse do advocates have if they are receiving problematic RFEs or other issues from the CSC? Answer: CSC provides special training to adjudicators before they re eligible to adjudicate domestic violence based I-751 waivers (6.5 hours of training). There is no special unit that adjudicate I-751 domestic violence based I-751 cases at CSC or VSC. All officers are proficient these cases. The CSC RFE templates have been vetted through the Office of Chief Counsel and stakeholders can make an inquiry through customer service if there is a problem with an RFE. 11 For information how to contact Office of Policy and Strategy, contact ASISTA at questions@asistahelp.org 26

51 1. Practice Pointer: Please keep ASISTA and the AILA VAWA U and T Committee posted regarding ongoing problems with CSC adjudication of domestic violence based I-751 waivers. We have raised this with USCIS headquarters in the past and they continue to want to hear about the problems which tend to be lack of understanding of domestic violence and misapplying the any credible evidence standard. To contact ASISTA on this issue, please contact us at questions@asistahelp.org. B. New Customer Service Line for Domestic Violence based I-751s at VSC For domestic violence-based I-751 applications filed with the VSC, stakeholders may use a designated Hotline address: HotlinefollowupI751ef.vsc@uscis.dhs.gov. VII. T visas A. Processing Times Processing times for T visa cases can be affected by several factors. Adjudicators must wait until the case is adjudicative ready and it cannot be adjudicated until the checks are complete (e.g. waiting on the A file, DOB or FBI checks, fingerprints can sometimes take 8 or 9 months to get a response back. If stakeholders have cases pending more than six months, check in with VSC through the Hotline. B. Similarly Situated Victims Question: We are increasingly seeing similarly situated victims from the same case yielding different results. In other words, one is granted a T visa and the other is denied. In response, the agency typically only says that it considers each case individually, with little additional explanation beyond that. This is causing victims anguish, years of delay and legal fees. Why is USCIS taking inconsistent positions on victims from the same case with similar factpatterns? Answer: Each applicant must establish their eligibility by preponderance of evidence. Even if multiple applicants are similarly situated, the individual will have their own unique filing and those differences can result in different decisions. VSC emphasized that it is helpful to have supporting letters as evidence of the requirements, and arguments in the cover letter to walk the adjudicator though why the requirements are met and are supported by substantial evidence. 1. Practice Pointer: Please let ASISTA know if you are getting inconsistent results in these group cases, as it may have something to do with the adjudicator and not the facts of this case. Please contact ASISTA at questions@asistahelp.org. 27

52 2. Practice Pointer: Given the U visa backlog, VSC officers encourage advocates to file T visa applications instead of U visa applications where possible, especially in many DOL/EEOC cases. C. Establishing Requirements: VSC staff mentioned that T visa letters are getting very brief and not getting into specifics or providing documentation that speak to the elements of the crime. If an applicant is not submitting a T visa certification form, you may need a more detailed statement and/or cover letter illustrating why the applicant cannot get certain documentation and submit other evidence (supporting letters, etc.) that establish the eligibility. 28

53 4/11/17 IMMIGRATION REMEDIES FOR SURVIVORS OF DOMESTIC VIOLENCE Objectives Overview of immigration law and immigration relief available to battered immigrant spouses and children VAWA Self-Petitions Hardship waiver-based Petitions to Remove Conditions on Residence VAWA Cancellation of Removal 1

54 4/11/17 IMMIGRATION OVERVIEW Structure Temporary Permanent but revocable NONIMMIGRANT STATUS IMMIGRANT STATUS VAWA / VAWA C. HW / VAWA C. Two ways to enter Entry With inspection Adjustment of Status (LPR Status) Citizen Without inspection 2

55 4/11/17 Structure Here E LPR NAT To Greencard Regular Step 1: Family Relationship I 130 Step 2: AOS or Consular Processing vs. VAWA Self-Petition Step 1: Self-Petition I 360 Step 2: AOS or Consular Processing Structure Here E LPR NAT Joint Petition vs. Hardship Waivers Ongoing Legal Marriage Divorce BSW Extreme Hardship 3

56 4/11/17 Here E LPR NAT Structure Cancellation Removal Proceedings No status/non-immigrant status/lpr 10/7 yrs continuous presence in U.S. vs. In 10yr. cancellation, exceptional and extremely unusual hardship to qualifying family member VAWA Cancellation Removal Proceedings No status/non-immigrant status/lpr 3 yrs. continuous presence in U.S. Extreme Hardship to self or qualifying family member Why is domestic-violence-specific relief needed? Family-based process controlled by petitioner This creates a dangerous dynamic in relationships dominated by domestic violence A pattern of abusive and threatening behavior exerted by an individual over another with whom he/she has an intimate relationship with the goal of establishing and maintaining power and control 4

57 4/11/17 VAWA SELF-PETITION Who can benefit from VAWA Self-Petition Spouse of abusive USC or Lawful Permanent Resident Unmarried child of abusive USC or Lawful Permanent Resident Parent of abusive USC 5

58 4/11/17 VAWA Self-Petition Case overview Two step process to LPR status via VAWA Self-Petition Step 1: Self-Petitioner files petition on Form I 360 Step 2: Approved Self-Petitioner and any derivative beneficiaries present in the U.S. apply for Adjustment of Status on Form I 485 based on approved I 360 *Time between Step 1 and Step 2 depends whether spouse is USC or LPR VAWA Self-Petition (Spouse) I 360 Self-Petition required elements Legal, valid marriage or intended marriage to LPR/USC Good faith marriage Joint residence (past or present) with USC/LPR spouse during marriage Qualifying abuse: Physical battery or extreme cruelty that occurred during course of marriage Good moral character Petitioner bears the burden of proof (preponderance of the evidence) through any credible, relevant evidence 6

59 4/11/17 VAWA Self-Petition Proving elements Legal and valid marriage to USC/LPR Marriage certificate Proof of legal termination of all prior marriages VAWA Self-Petition Proving elements Good faith marriage Petitioner s affidavit with detailed history of relationship All evidence that shows the non-citizen spouse intended to establish a life together with the USC or LPR spouse Think inventively 7

60 4/11/17 VAWA Self-Petition Proving elements Joint residence with USC/LPR spouse Joint bills/leases with same address Affidavits from friends and family Any other documents proving joint residence VAWA Self-Petition Proving elements Qualifying abuse during course of marriage Physical battery And/Or Extreme cruelty 8

61 4/11/17 Examples of battery or extreme cruelty Acts or threatened acts of violence Forceful detention causing physical or mental injury Psychological abuse, denigration Sexual abuse, rape, molestation, forced sexual contact prostitution Social isolation Economic abuse Stalking Accusations of infidelity Actions against other persons or things, if intended to cause harm to petitioner VAWA Self-Petition Proving elements Good moral character: INA Section 101(f) Certificate of good conduct from all jurisdictions where client lived for more than six months in the last three years If granted by NYPD, certificate expires in 60 days Criminal dispositions if client has criminal record 9

62 4/11/17 Affidavits Client s affidavit This is the central document of the Self-Petition packet. Tell your client s story Highlight how he/she meets eligibility requirements Client may have range of emotions when preparing affidavit. Validate emotions Explain importance of affidavit VAWA Self-Petition Derivative children Must list all children in I 360 petition (regardless of where they live) Eligible as derivative of principal applicant if unmarried and under 21 at time parent files Children must remain unmarried until after child adjusts status 10

63 4/11/17 Ethical considerations Dual (or multiple) representation - Separate attorney-client relationships between principal beneficiary (client) and derivative beneficiary (child) - Duty of loyalty - Duty of confidentiality - Conflicts of interest VAWA Self-Petition After filing the Self-Petition CIS will send notice of receipt CIS will issue determination of prima facie determination CIS may request additional evidence (RFE) CIS may issue a Notice of Intent to Deny (NOID) 11

64 4/11/17 VAWA Self-Petition Responding to an RFE/NOID Strict time limits to respond Will require gathering of additional evidence Take this possibility into consideration when submitting evidence with original filing For NOID non-response will result in automatic denial VAWA Self-Petition Responding to a Denial There is a strict time limit to appeal 33 days from denial date not receipt of denial notice! MAILBOX RULE DOES NOT APPLY!!! 12

65 4/11/17 VAWA Self-Petition Impact of certain occurrences on ability to Self-Petition Divorce The non-citizen spouse must file Self-Petition within two years of the final judgment of divorce Abuse need not be listed as the ground for divorce VAWA Self-Petition Impact of certain occurrences on ability to Self-Petition Remarriage of Self-Petitioning spouse Remarriage before approval of Self-Petition invalidates the petition (Delmas v. Gonzales) If Self-Petition approved, remarriage does not revoke approval 13

66 4/11/17 VAWA Self-Petition Impact of certain occurrences on ability to Self-Petition Derivative children turning 21 Child Status Protection Act protects derivative children and allows them to derive status as long as VAWA Self- Petition filed before their 21 st birthday VAWA Self-Petition Case overview Two step process to LPR status via VAWA Self-Petition Step 1: Self-Petitioner files petition on Form I 360 Step 2: AOS or Consular Processing Approved Self-Petitioner and any derivative beneficiaries present in the U.S. apply for Adjustment of Status on Form I 485 based on approved I 360 Time between Step 1 and Step 2 depends whether spouse is USC or LPR 14

67 4/11/17 Valid basis for adjustment of status to LPR Timing depends on whether USC or LPR spouse Spouse of USC: No limit on # of petitions granted annually Can adjust status immediately; concurrent filing of I 360 and I 485 Spouse of LPR: Limit on # of immigrant visas granted annually Backlog creates a waiting list ( Visa Bulletin ) Place in line ( priority date ) established by filing date of I 130 / I 360 I 797 Notice of Action Priority date 15

68 4/11/17 Visa Bulletin Page 1 Visa Bulletin Family preference chart Page 2 16