Humanitarian Immigration Law, Part II VAWA, U Visas, T Visas, and More Festival of Legal Learning 2019 Kaci Bishop, Clinical Associate Professor of Law
VAWA
VAWA Allows certain immigrants who are survivors of extreme battery and cruelty to self-petition for a immigrant visa. File I-360 instead of the I-130 petition plus I-485.
VAWA: Who is eligible? Noncitizen spouse abused by a US citizen or LPR spouse Noncitizen child abused by a US citizen or LPR parent Noncitizen child (whether or not abused) whose noncitizen parent is abused by a US citizen or LPR spouse Child can be outside the U.S. and be brought in through procedure called following to join
VAWA: Requirements Good faith marriage to USC or LPR, or USC/LPR parent is abuser Subjected to battery or extreme cruelty Physical or emotional abuse Evidence of battering or extreme cruelty may include "any credible evidence." Self-petitioner lived with abuser at some time Self-petitioner lives in the U.S. Self-petitioner is person of good moral character
Battery and Extreme Cruelty Threats of physical violence Physical violence: hitting, punching, slapping, kicking, biting, etc. Emotional abuse Sexual abuse: forced or coerced sexual activity or contact Threats related to children Threats related to immigration status or deportation Controlling where she goes or who she sees Controlling access to money, food, and other necessities
If immediate relative, then may file the I-485 at the same time. Otherwise, have to wait for visa to be available. Self- Petition Process Form 1-360 Affidavit Exhibits Identity Good Faith Marriage Battery and Cruelty GMC Coverletter brief Any derivative applications? Filed with USCIS Vermont Service Center
U & T Visas
U and T Visas Created in 2000 Dual aims: Protect victims Promote criminal justice Temporary Nonimmigrant Visas But path to residency Work authorization Apply for family members Broad waiver for inadmissibility
U Visa
Goals Criminal Justice: Overcome victim fear of detection; encourage reporting and other cooperation. Humanitarian: Protect vulnerable victims; assist domestic violence and other crime survivors.
U Visa Requirements INA 101(a)(15)(U); 8 C.F.R. 212.17, 214.14 Suffered substantial physical or emotional abuse as a result of being a victim of certain criminal activity Possesses information about the criminal activity Has been helpful, is being helpful, or likely to be helpful in the investigation or prosecution Law enforcement authority certifies helpfulness Criminal activity occurred in the U.S. (or territories) Applicant is admissible or demonstrate eligibility for public interest waiver
U Visa: Qualifying Crimes Abduction Abusive Sexual Contact Blackmail Domestic Violence Extortion False Imprisonment Female Genital Mutilation Felonious Assault Fraud in Foreign Labor Contract Hostage Incest
U Visa: Benefits Lawful U Visa status for 3 years Longer if victim help still required and has not applied for permanent residence Employment Authorization May apply for permanent status after 3 years Can apply for derivatives: If > 21, spouses and children If < 21, spouses, children, parents, and unmarried siblings who are < 18
U Visa: The Wait 10,000/year U Visas for Principal Applicants 140,000 Principal applications pending 24,000 Already on waitlist
T Visa
Human Trafficking Under Federal and North Carolina law: Minors involved in commercial sexual activity; Adults induced into commercial sexual activity through force, fraud, or coercion; and Children and adults induced to perform labor or services through force, fraud, or coercion; are victims of human trafficking. 22 U.S.C. 7101 7113 (2014) N.C. Gen. Stat. 14-43.10-20 (2013
Trafficking Human trafficking is form of modern day slavery in which traffickers lure individuals with false promises of employment and a better life. -USCIS Severe forms of trafficking: Sex trafficking Debt bondage/peonage Involuntary servitude
T Visa Requirements INA 101(a)(15)(T); 8 C.F.R. 214.11 Victim of severe form of trafficking Physically present in the U.S. (or territories) because of human trafficking Would suffer extreme hardship if removed or forced to leave Cooperated (or excused from cooperating) with reasonable requests from legal authorities (if >18).
Trafficking Recruiting, harboring, transporting, providing, obtaining, or in the case of sex trafficking: patronizing, soliciting, or advertising BY Force, Fraud, or Coercion FOR Commercial Sex Exploitation or Forced Labor
Force, Fraud, Coercion Force Physical abuse, assault Sexual assault Physical restraint, confinement, isolation Starvation, dehydration Fraud False promises of romance, marriage, employment, a better life False promises about work and living conditions Use of false travel documents Debt schemes, recruitment traps, withholding wages Forced drug addiction Coercion (physical or psychological) Threat of serious harm to victim, loved ones Threat of deportation or arrest Withholding legal documents Emotional, psychological, or spiritual manipulation Verbal abuse
December 19, 2016 8 CFR 214.11 Removes filing deadline Changes method of evaluation of evidence presented Expands definition of victim of a severe form of trafficking in persons Constricts definition of physical presence on account of trafficking in persons Clarifies factors to evaluate whether victim has complied with reasonable requests from law enforcement Adds new derivative categories and age-out protections; eliminates extreme hardship requirement for derivatives
T Visa: Benefits Lawful T Visa status for 4 years Longer if victim help still required and has not applied for permanent residence Employment Authorization May apply for permanent status after 4 years Can apply for derivatives: If > 21, spouses and children If < 21, spouses, children, parents, and unmarried siblings who are < 18 Family members who are in present danger as a result of victim/survivor s cooperation with LEA
Other Relief
SIJS
Special Immigrant Juvenile Status LPR status for Abused, Abandoned, or Neglected Minors. Recipients cannot apply for either parent. State Court must find: Abuse, neglect, or abandonment. Not in the child's best interest to return to his or her home country. Process: State Court Process File Form I-360 with State Court Opinion File Form I-485 when I-360 is approved Terminate Removal Proceedings
Cancellation of Removal
Cancellation of Removal for Non- LPRs ONLY for immigrants already in deportation proceedings. Rare and limited. Must prove: Have been in U.S. continuously for 10 years Have good moral character, and Have a U.S. citizen or LPR spouse, parent, or child who would suffer extraordinary and extremely unusual hardship if deported. If granted, allowed to apply for legal permanent residence.
TPS
Temporary Protected Status For people from certain nations with civil unrest or natural disaster With TPS, will not be deported TPS holders can get a work permit No path to permanent residency Current countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. On Oct. 3, 2018, a district court in California enjoined DHS from implementing and enforcing the decisions to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador, pending further resolution of the case.
Deferred Action & Discretionary Relief
DACA Deferred Action for Childhood Arrivals Allows recipient to get work permit and avoid deportation Eligibility: Came to U.S. under age 16 (and were under 31 by June 15 2012) Continuously resided in US since June 15, 2007 EWI or no other status before June 15, 2012 In school, graduated from school, earned GED or honorably discharged from Coast Guard or armed services No criminal history (no felonies or significant misdemeanors) and do not pose security threat.
Other Relief Deferred Action (non-daca) Parole Prosecutorial Discretion
Questions?