The U Visa Obtaining Status for Immigrant Victims of Crime [5 ed.]

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ILRC.UVisa.5thEd.2016Cover.qxp_Layout 2 5/12/16 8:14 AM Page 1

The U Visa

This fifth edition of The U Visa: Obtaining Status for Immigrant Victims of Crime is completely updated and the new features include:

• Detailed updates on the new U wait list and deferred action policies and procedures • Updates and flowcharts for assisting U nonimmigrant clients with travel issues, parole and consular processing • Information on identifying and helping workplace victims of crime and working with the Department of Labor, EEOC or California DFEH for certification • Updated information and developments related to U adjustment of status applications • The latest information on addressing removal issues including prosecutorial discretion, issues that can appealed or waived and using U nonimmigrant status as a relief from removal or a means to terminate proceedings • Many more sample materials including applications and declarations for adjustment applications, consular processing, and outreach and explanatory materials for clients • Expanded sections and samples for assisting family members through the I-929 petition process

Obtaining Status for Immigrant Victims of Crime

The U Visa: Obtaining Status for Immigrant Victims of Crime will guide you through the entire process of handling an immigration case for a U visa applicant – from eligibility screening for U nonimmigrant status to communicating about the wait list and deferred action through adjustment of status to assisting eligible family members and helping U nonimmigrants travel. In addition to providing a thorough explanation of the requirements and application processes, this manual includes numerous practice pointers and sample materials to help you in handling your client’s case. These include sample checklists, cover letters, declarations, receipt notices and other correspondence you can expect to receive from USCIS, motions to submit to the immigration court, and more.

The U Visa Obtaining Status for Immigrant Victims of Crime

TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

SAN FRANCISCO, CA 94103

T 415.255.9499 / F 415.255.9792

WWW.ILRC.ORG

5th Edition

1663 MISSION STREET SUITE 602

5th Edition By Sally Kinoshita, Deputy Director, Immigrant Legal Resource Center Susan Bowyer, Deputy Director, Immigration Center for Women and Children Jessica Farb, Directing Attorney, Immigration Center for Women and Children Alison Kamhi, Staff Attorney, Immigrant Legal Resource Center Catherine Seitz, Legal Director, Legal Services for Children

The U Visa

Obtaining Status for Immigrant Victims of Crime

5th Edition By Sally Kinoshita, Deputy Director, Immigrant Legal Resource Center

Susan Bowyer, Deputy Director, Immigration Center for Women and Children Jessica Farb, Directing Attorney, Immigration Center for Women and Children Alison Kamhi, Staff Attorney, Immigrant Legal Resource Center Catherine Seitz, Legal Director, Legal Services for Children

The Immigrant Legal Resource Center

A

Copyright 2016 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 415.255.9499 www.ilrc.org

The Immigrant Legal Resource Center (ILRC) is a national, nonprofit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights.  Since 1979, the mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. WHAT WE DO Legal Professionals & Advocates 

Trainings: Throughout the year, the ILRC staff attorneys provide classroom seminars and webinars on a wide range of topics that affect the immigrant community.

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Publications: ILRC publishes some of the top reference manuals on immigration law.

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Technical Assistance: Our unique, nation-wide consultation service called the Attorney of the Day (AOD) provides legal assistance to attorneys, staff of nonprofit organizations, public defenders, and others assisting immigrants. Immigrants 

Community Advocacy: ILRC assists immigrant groups in understanding immigration law and the democratic process in the United States, so as to enable them to advocate for better policies in immigration law, as well as in health care, community safety, and other issues that affect the immigrant community.

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Leadership Training: ILRC trains immigrant leaders how to be more effective advocates for their communities.

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Know Your Rights Presentations: ILRC attorneys regularly conduct “know your rights” trainings with immigrant-based organizations to inform immigrants about their rights under the immigration laws and the United States Constitution, how to protect themselves from becoming victims of immigration fraud, changes in immigration law and policy, and a host of other issues that affect the lives of immigrants. Laws, Policies & Practice 

Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration law, and keep abreast of the frequent changes in immigration case law and policy so that we can inform our constituents of those changes as soon as they occur.

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Policies: ILRC conducts ongoing dialogues between Immigration Service officials and the community agency representatives to help ensure that government policies and procedures are more reasonable and fair, and to make sure that information about these policies is provided to the immigrant advocacy community in a timely manner.

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Advocacy: ILRC advocates for reasonable changes in immigration law to get closer to our ideal of a system that will recognize the contributions immigrants make to our society, respect their dignity, and insure a workable, secure, and humane immigration system. How to Contact Us 

General inquiries: [email protected]

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Publications: [email protected]

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Seminars: [email protected]

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Attorney of the Day (AOD): [email protected]

 Website: www.ilrc.org How to Support Our Work Please visit our website www.ilrc.org to make a tax-deductible contribution.

ACKNOWLEDGEMENTS The Immigrant Legal Resource Center (ILRC) would like to thank and acknowledge the many organizations and individuals who contributed to our work in creating this manual. We are tremendously grateful for the camaraderie, wisdom, mutual support and generosity of the organizations, advocates and attorneys who represent immigrant victims of crime. This manual would not have been possible without their support and contributions. In particular, we’d like to thank the following people for providing input, samples and resources: Becky Bogyo, Jenny Horne, Erin Elskes, Francisco Gonzales, Molly Goss, Mari Zellner, Neil Babra, Mary Dutcher, Lynette Parker, Avantika Rao, Carmen Reyes-Yosiff, Kyra Lillien, Laura Polstein, Jayashri Srikanthiah, Jennifer Koh Lee, Anna Welch, Andrew Taylor, Tulin Acikalin, Brenda J. Oliver, Shannon Going, Lyn Kirkconnell, Lynn Neugebauer, Dominique F. T. Poirier, Gail Pendleton, Tanya Broder, Ellen Kemp, Julie Dinnerstein, Barbara Weiner, Nora Phillips, Eunice Cho, Margaret D. Stock, Michelle Carey, Hema Sarang-Sieminski, Jeanne Brennan Funk, Susan Schreiber, Maria Baldini-Potermin, Sonia Parras Konrad, Cecilia Friedman Levin, Christie Popp, Cynthia Lucas, Cecilia Candia, Kristen Jackson, and Andrea Garcia. Thank you also to our wonderful colleagues at the ILRC who helped to create this newest edition of the U Visa Manual. Thank you to our law fellow Rachel Prandini who added content, reviewed sections and edited chapters and to our law fellow Nikki Marquez who reviewed sections – both providing critical support, a second set of eyes, legal research, and helpful feedback. And thank you to our Publication and Program Coordinator Tim Sheehan who so patiently made sure all of the details were in place to make this book possible. Finally, we would like to thank most of all the co-authors on this fifth edition of the book, our amazing colleagues: Susan Bowyer, Deputy Director at Immigration Center for Women and Children, Jessica Farb, Directing Attorney at Immigration Center for Women and Children, and Catherine Seitz, Legal Director, Legal Services for Children. In addition to being excellent immigration attorneys and tireless advocates, they are also incredible trainers and mentors, visionary thinkers, generous partners and a real pleasure to work with. They set the gold standard for representing clients in U cases and are strengthening the field of U advocacy through their work, collaboration and support to other legal services providers. We are extremely proud to be producing this manual with them. Sally Kinoshita Deputy Director Immigrant Legal Resource Center March 2016

Alison Kamhi Staff Attorney Immigrant Legal Resource Center

AUTHOR BIOGRAPHIES Susan Bowyer, Deputy Director, Immigration Center for Women and Children (ICWC) In addition to collaborating with the ILRC on several publications, Susan Bowyer is the author of articles on immigration remedies for survivors of domestic violence of published by American Immigration Lawyers Association (AILA), and the Berkeley Journal of Gender, Law & Justice. She is a frequent trainer and has presented at AILA Conferences, the Alameda County Law Enforcement Chiefs’ Annual Conference, on regional and national webinars, and before California State Senate and Assembly Committees. Susan was the Managing Attorney of the International Institute of the Bay Area’s Oakland office from 2003 to 2010. She has also worked as a staff attorney with the ILRC and Acting Director of the Center on Race, Poverty and the Environment. Jessica Farb, Directing Attorney, Immigration Center for Women and Children (ICWC) Jessica Farb began working with immigrant crime victims in 2003 as an AmeriCorps VISTA legal assistant at Casa Cornelia Law Center in San Diego. Then, while pursuing her law degree in Washington DC, Jess helped represent immigrant clients with Holland & Knight’s Community Services Team and Ayuda Inc. Before providing services at ICWC’s San Francisco office, Jess coordinated the immigrant crime victim program at the International Institute of the Bay Area in Oakland. She regularly does U visa outreach, including regular appearances on the local Univision network. Find out how to join the ICWC U Visa Zoho Database that Jess manages on ICWC’s website here: www.icwclaw.org/services-available/icwc-u-traveland-certifier-database. Alison Kamhi, Staff Attorney, Immigrant Legal Resource Center (ILRC) Alison is a dedicated immigrant advocate who brings significant experience in immigration law to the ILRC. Prior to the ILRC, Alison worked as a Clinical Teaching Fellow at the Stanford Law School Immigrants' Rights Clinic, where she supervised removal defense cases and immigrants' rights advocacy projects; she represented abandoned and abused immigrant youth as a Skadden Fellow at Bay Area Legal Aid and at Catholic Charities Community Services in New York; and she clerked for the Honorable Julia Gibbons in the U.S. Court of Appeals for the Sixth Circuit. Sally Kinoshita, Deputy Director, Immigrant Legal Resource Center (ILRC) Sally is the principal author of the ILRC publication entitled, The U Visa: Obtaining Immigration Status for Immigrant Victims of Crime and the co-author of the ILRC publications, The VAWA Manual: Immigration Relief for Abused Immigrants; and Immigration Benchbook for Juvenile and Family Court Judges. Prior to joining the ILRC, she was a staff attorney and NAPIL fellow at the Asian Law Caucus and during law school had worked at the UC Davis Immigration Law Clinic, California Legal Assistance Foundation, the ACLU of Northern California and the Northern California Coalition for Immigrant Rights. Catherine Seitz, Legal Director, Legal Services for Children Catherine Seitz has been working in the field of immigration law since 1990 starting out as a legal assistant and then a BIA Accredited Representative before her admission to the bar in December of 2001. Before joining Legal Services for Children, she worked at Bay Area Legal Aid, Canal Alliance, the International Institute of the East Bay, and Simmons & Ungar. She is co-author of the Immigrant Legal Resource Center’s U Visa Manual and is an active member of the Northern California Chapter of the American Immigration Lawyers Association.

U Visa Manual February 2016

THE U VISA: OBTAINING STATUS FOR IMMIGRANT VICTIMS OF CRIME Immigrant Legal Resource Center 2016 TABLE OF CONTENTS Chapter 1

Introduction

§ 1.1 § 1.2 § 1.3 § 1.4

Overview of Benefits and Eligibility for U Nonimmigrant Status ..................... 1-1 How to Use This Manual.................................................................................... 1-4 Contents of This Manual .................................................................................... 1-5 Resources ........................................................................................................... 1-6

Chapter 2

U Nonimmigrant Status Eligibility

§ 2.1 § 2.2 § 2.3 § 2.4 § 2.5

§ 2.8

U Nonimmigrant Status Eligibility Requirements ............................................. 2-3 Victim of a Criminal Activity Listed in the Statute ........................................... 2-4 Victim Definitions .............................................................................................. 2-8 Suffered Substantial Physical or Mental Abuse ............................................... 2-14 Helpful, Has Been Helpful, or Is Likely to Be Helpful in the Criminal Investigation or Prosecution ............................................................................. 2-17 The Victim’s Helpfulness Must Be Certified by a Government Agency with Authority to Detect, Investigate, or Prosecute the Qualifying Criminal Activity.............................................................................................. 2-19 Victim of a Criminal Activity That Violated the Laws of the United States or Occurred in the United States ............................................................ 2-24 Admissible to the United States ....................................................................... 2-25

Chapter 3

U Nonimmigrant Status Process

§ 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7 § 3.8

Overview ............................................................................................................ 3-1 Screening for Eligibility ..................................................................................... 3-2 The I-918 Application Form............................................................................... 3-4 Completing Form I-918 ...................................................................................... 3-6 Filing Fees ........................................................................................................ 3-13 Filing Fee Waiver Requests ............................................................................. 3-14 The Law Enforcement Certification Form: Form I-918 Supplement B ........... 3-15 Working with Law Enforcement to Request and Complete the Form I918 Supplement B ............................................................................................ 3-19 Additional Documentation Regarding Victim Helpfulness ............................. 3-25 Victim’s Statement ........................................................................................... 3-26 Documentation of Substantial Physical or Mental Abuse ................................ 3-30 Identification Documentation ........................................................................... 3-30 Accompanying Immigration Application Forms.............................................. 3-31 Assembling and Submitting a U Nonimmigrant Status Application ................ 3-32

§ 2.6

§ 2.7

§ 3.9 § 3.10 § 3.11 § 3.12 § 3.13 § 3.14

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§ 3.15 § 3.16 § 3.17 § 3.18 § 3.19 § 3.20 § 3.21 § 3.22

Notices from USCIS......................................................................................... 3-33 Requests for More Evidence (RFEs) ................................................................ 3-38 The U Visa Waitlist, Deferred Action and Employment Authorization .......... 3-39 Approvals ......................................................................................................... 3-43 Denials .............................................................................................................. 3-46 Duration and Extension of Status ..................................................................... 3-47 Revocation of U Nonimmigrant Status ............................................................ 3-52 Public Benefits and Other Benefits .................................................................. 3-53

Chapter 4

Inadmissibility Grounds and I-192 Waiver

§ 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11

Overview of Inadmissibility and Waivers .......................................................... 4-1 Common Grounds of Inadmissibility ................................................................. 4-2 Identifying an Applicant’s Grounds of Inadmissibility to be Waived................ 4-3 Addressing Inadmissibility on the Form I-918 ................................................... 4-9 Filling Out Form I-192 ..................................................................................... 4-11 Documenting Why the Applicant Merits a Waiver .......................................... 4-14 Filing Fees and Fee Waivers ............................................................................ 4-19 Requests for Evidence (RFEs) ......................................................................... 4-19 I-192 Denials and Resubmissions .................................................................... 4-19 Inadmissibility Factors Discovered or Triggered after Filing the I-192 ........... 4-20 Whether a Granted I-192 Waives the Inadmissibility Grounds for Other Purposes ........................................................................................................... 4-22

Chapter 5

Adjustment of Status Eligibility

§ 5.1 § 5.2

Overview of Eligibility Requirements for U Adjustments ................................. 5-1 Granted U Nonimmigrant Status and Continue to Hold U Nonimmigrant Status .................................................................................................................. 5-4 Continuous Physical Presence for Three Years in U Nonimmigrant Status .................................................................................................................. 5-5 Inadmissibility and Discretionary Issues ............................................................ 5-6 Has Not Unreasonably Refused to Provide Assistance in Investigation or Prosecution ......................................................................................................... 5-8 Presence in the United States Is Justified on Humanitarian Grounds, to Ensure Family Unity, or Is in the Public Interest ............................................. 5-10

§ 5.3 § 5.4 § 5.5 § 5.6

Chapter 6

Adjustment of Status Process

§ 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6

Documentation Requirements for U Adjustment ............................................... 6-2 Forms I-485 and G-325 ...................................................................................... 6-5 Biometrics .......................................................................................................... 6-6 Filing Fees and Fee Waivers .............................................................................. 6-6 Passport .............................................................................................................. 6-7 Medical Exam .................................................................................................... 6-9

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U Visa Manual February 2016

§ 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12

Proving Three Years Continuous Physical Presence........................................ 6-10 Proving an Applicant Has Not Unreasonably Refused to Assist in Investigation or Prosecution ............................................................................. 6-12 Inadmissibility .................................................................................................. 6-14 Evidence That Discretionary Approval Is Warranted ...................................... 6-14 Approvals and Denials ..................................................................................... 6-16 Applicants with Removal Issues ...................................................................... 6-17

Chapter 7

Assisting Family Members

§ 7.1 § 7.2 § 7.3

§ 7.7 § 7.8 § 7.9 § 7.10 § 7.11

Overview of Options for Assisting Family Members ........................................ 7-1 Family Member Definitions under Immigration Law ........................................ 7-3 Assisting Derivative Family Members at the U Nonimmigrant Status Stage ................................................................................................................... 7-5 U Nonimmigrant Application Procedure for Derivative Family Members ........ 7-9 Adjustment Procedure for U Nonimmigrant Derivative Family Members ...... 7-17 Assisting Qualifying Family Members at the Time of the Principal U Nonimmigrant’s Adjustment of Status ......................................................... 7-18 Adjustment Procedure for Qualifying Family Members .................................. 7-20 Petitioning Requirements for Qualifying Family Members ............................. 7-22 Proving the Qualifying Family Relationship .................................................... 7-22 Documenting Extreme Hardship ...................................................................... 7-25 Adjustment of Status ........................................................................................ 7-28

Chapter 8

Removal Issues

§ 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 § 8.7 § 8.8 § 8.9 § 8.10

Applicants Who Are Currently in Removal Proceedings................................... 8-1 Applicants with Prior Removal, Deportation, or Exclusion Orders ................... 8-8 Stays of Removal ............................................................................................. 8-12 Motions to Reopen with Stays of Removal ...................................................... 8-17 Bases for Motions to Reopen with EOIR ......................................................... 8-17 Time Limits on Motions to Reopen ................................................................. 8-19 Filing Fees and Fee Waivers ............................................................................ 8-19 Documentary Requirements for Motions to Reopen and Stays ....................... 8-20 Supporting Evidence ........................................................................................ 8-20 Seeking U Nonimmigrant Status as a Defense from Removal for LPRs ......... 8-21

Chapter 9

U Travel Issues

§ 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6

Initial Applications for Applicants Abroad ........................................................ 9-3 Fingerprints for Applicants Abroad ................................................................... 9-8 Passports for Applicants Abroad ...................................................................... 9-10 Travel before Approval Notice Issued ............................................................. 9-12 Approval Notice for Applicants Abroad .......................................................... 9-14 Decision to Travel ............................................................................................ 9-15

§ 7.4 § 7.5 § 7.6

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§ 9.7 § 9.8 § 9.9 § 9.10 § 9.11 § 9.12 § 9.13 § 9.14

Consular Processing: Including New Inadmissibility Application................... 9-18 Border Entry with CBP .................................................................................... 9-24 Entering the United States ................................................................................ 9-25 Immigrant Visa Process for I-929 Applicants Abroad ..................................... 9-25 Humanitarian Parole for Other Family Members ............................................. 9-27 Parole for Adjustment of Status Applicants ..................................................... 9-30 Parole for Conditionally Approved Applicants on the Waitlist ....................... 9-31 Parole for U Nonimmigrants ............................................................................ 9-32 INDEX OF APPENDICES

Appendix A Appendix B Appendix C Appendix D

Appendix E

Appendix F

Appendix G

Appendix H

Appendix I

Helpful Resources Excerpt of the VTVPA 2000 Congressional Findings and Purpose of the U Visa VSC 2015 Stakeholder Event Notes and Practice Tips U Conditional Approval/Wait List/Deferred Action Materials  Waitlist Information Flyer in English & Spanish  Waitlist Process Information  Sample Deferred Action Notice  Cover Letter for U Cap EAD Outreach and Educational Materials for Community Members and Clients  Document Gathering List  Questionnaires in English & Spanish Emotional Cruelty in Domestic Violence Cases  Cycle of Violence Wheels  Sample Declaration Language  Emotional Abuse Questionnaire in English & Spanish U Nonimmigrant Application Materials  Checklists  Screening Sheets in English & Spanish  Interview Guide  ICWC Truth Pact in English & Spanish  Practice Pointers on Credibility CA SB 674 Materials  SB 674  CA AG 674 Memo Law Enforcement Agency Procedures  U.S. Department of Labor Regional U Visa Coordinators List  U.S. Department of Labor Fact Sheet  California DFEH U Certification Directive  NELP Fact Sheet: “The U Visa: A Potential Immigration Remedy for Immigrant Workers Facing Labor Abuse”  New York State DOL U Visa Certification Guidelines  NLRB U Visa Procedures

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U Visa Manual February 2016

Appendix J Appendix K

Appendix L Appendix M

Appendix N

Appendix O

Appendix P

Appendix Q

 EEOC Procedures for Handling Requests for U Visa Certification  California DLSE U Visa Guidance  Illinois DOL U Visa Protocols Memorandum  Letter to CIS on Workplace Based Crimes ICE Memo: “Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005” (Jan. 22, 2007) Form I-918 Materials  Cover Letters  Checklists  Model Form I-918 with Explanation for Each Question  Form I-918 Receipt Notice  Form I-918 Approval Notice and NGO Referrals  Notice of Waitlist and Deferred Action Fee Waiver Materials  Fee Waiver Requests Biometrics and Fingerprint Materials  Application Support Center Appointment Notice  Client Biometrics Instructions  Request for Derivative Fingerprints  Fingerprint Card Instructions  Letters in Spanish Explaining the Fingerprinting and Photo Requirements Subpoenas and Motions to Quash Materials  Subpoenas Guide for Immigration Attorneys  Model Motion to Quash a Subpoena Form I-918 Supplement B Materials  Sample Form I-918 Supplement B  Instructions for Legal Advocates Completing the Form  Sample Supplement B Language USCIS Materials and Memoranda  April 2011 USCIS Extension of Status Memorandum  December 2012 USCIS Derivative U Age Out Protection Memorandum  June 2014 Interim Memorandum Implementing VAWA 2013 Law Enforcement Materials  Requests and Letters to Law Enforcement for a Form I-918 Supplement B  U Visa Q&A for Law Enforcement  Oakland Report in Support of U Visas  Sample Police Report  Corrections and Clarifications to Police Report  U Visa Law Enforcement Certification Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, December 29, 2011  Police Report Request

Table of Contents 5

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Appendix R

Appendix S

Appendix T Appendix U

Appendix V Appendix W Appendix X

Appendix Y

Appendix Z

Appendix AA

Appendix BB Appendix CC

Appendix DD

Appendix EE

 NIWAP Report on U Visas as a Crime Fighting Tool  DHS U Visa Q&A for Law Enforcement Declaration Materials  Outline for Applicants (English & Spanish)  Declaration Instructions  Sample U Application Declarations Materials for and from Mental Health Counselors  Domestic Violence Expert Guidelines  Supporting Letters from Counselor or Case Manager  Model Psychiatrist Statement  Authorization Form to Release Records Translation Certifications Requests for More Evidence (RFEs) Materials  Sample RFE  Responses to RFEs regarding Robbery as a Qualifying Crime, Qualifying Victim, Any Credible Evidence  Supervisory Review Request Vermont Service Center Routing Sheets Cover Letter for I-539 Application  Declaration in Support of I-539 Application Sample Correspondence with Clients  Closing Letter in English & Spanish  Legal Contract Employment Authorization Materials  EAD Cover Letters  Employment Authorization Document and Approval Notice California Public Benefits Materials  California All County Letters  Letter Explaining Verification of Eligibility California Student Information  California In-State Tuition, Fee Waivers, Financial Aid and Scholarships Chart  ICWC Letter to Schools Explaining U Status Memo Summarizing Common Inadmissibility Grounds FBI Materials  FBI Fingerprint Request Letter  Instructions for Obtaining an FBI Report (Spanish) Expedited Removal Materials  Form I-867AB  Expedited Removal Screening Sheet in English & Spanish  FBI Fingerprint Reports Indicating Expedited Removal  Form I-860 Notice of Expedited Removal Order Form I-192 Materials  Cover Letters  Model Form I-192

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U Visa Manual February 2016

Appendix FF

Appendix GG Appendix HH Appendix II

Appendix JJ Appendix KK Appendix LL Appendix MM Appendix NN Appendix OO Appendix PP

Appendix QQ Appendix RR

Appendix SS Appendix TT Appendix UU

Appendix VV

 Form I-192 Receipt Notice  Form I-192 Approval Notice  Form I-192 Waiver Declarations Materials for Working with Clients on Form I-192  Guide to I-192 Supporting Materials  Sample I-192 Supporting Letters Adjustment Checklists (English & Spanish) Red Flag Checklist Form I-485 Filing Materials  Cover Letters  Declarations  Sample Form I-485  Form G-325A  Adjustment Approval Notice  Adjustment Fee Waiver Request I-485 Worksheet in Spanish BIA Case on U Nonimmigrant Status as an “Admission” Medical Exam Instructions for Clients (English & Spanish) Declarations in Support of I-539 Application Form I-918 Supplement B for Adjustment Applicants Letter to Law Enforcement Agency to Request Form I-918 Supplement B Form I-918 Supplement A Materials  Checklists and Intake Forms  Sample Declarations  Model Form I-918 Supplement A and I-765 with Sample Client Instructions  Cover Letters  Form I-918 Supplement A Approval Notice Mutual Consent to Joint Representation Letter in English & Spanish Form I-929 Materials  Checklist/Document List  Guide to Declarations for Petitioning Family Member in English & Spanish  Guide to Declarations for Qualifying Family Member in English & Spanish  Cover Letters Hardship Worksheets (English & Spanish) Sample Bond Request Prosecutorial Discretion Materials  2014 DHS Memo  2015 EOIR PD Guidance  2015 OPLA PD Guidance  2015 Practice Advisory on PD Requests Sample Motions for Continuance, Termination, Administrative Closure Substitution of Counsel, and Recalendaring

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Appendix WW Appendix XX Appendix YY Appendix ZZ

Appendix AAA

Appendix BBB Appendix CCC Appendix DDD

Appendix EEE Appendix FFF

Appendix GGG

Appendix HHH

Appendix III Appendix JJJ

Sample Stay Request and Attachments EOIR Memorandum on Continuances and Administrative Closure Step-by-Step FOIA Guide Sample FOIA requests  Sample USCIS Track 3 FOIA Request  Sample EOIR FOIA Request Materials Regarding I-192 Jurisdiction  Sample EOIR Motion  NIJC Practice Advisory ICE Stay Guidance and Sample Poder Especial / Power of Attorney (English & Spanish) D-S 160 Materials  DS-160 Questions in English & Spanish  Photo Instructions  Sample Confirmation Page Sample DS-232 Correspondence to and from Government Agencies for Clients Who Are Abroad  Cover Letters  Humanitarian Parole Request Correspondence with Clients Regarding Travel  Instructions for Consular Processing in English & Spanish  Derivative Fingerprinting Instructions for Case Workers  Step-by-Step Consular Processing Instructions in English & Spanish  Letter to Clients about Fingerprinting Abroad Consular Processing Materials  U.S. Dept. of State Foreign Affairs Manual: 9 FAM 41.85 & Notes  Consular Processing Appointment Checklist  2010 Dept. of State U Visa Cable Redacted U Visa in Passport Parole Materials  Humanitarian Parole Intake for Applicant on Waitlist  Sample Humanitarian Parole Request with Fee Waiver to VSC  Sample Humanitarian Parole Request with Fee Waiver to TX  Advance Parole flowchart

Table of Contents 8

CHAPTER 1 INTRODUCTION

This chapter includes: § 1.1 § 1.2 § 1.3 § 1.4

Overview of Benefits and Eligibility for U Nonimmigrant Status ..................... 1-1 How to Use This Manual.................................................................................... 1-4 Contents of This Manual .................................................................................... 1-5 Resources ........................................................................................................... 1-6

§ 1.1

Overview of Benefits and Eligibility for U Nonimmigrant Status

The U nonimmigrant status is a nonimmigrant (temporary) status that allows non-citizen victims of crime to stay in the United States, obtain employment authorization, apply for lawful permanent resident status, and help certain family members obtain immigration status as well.1 It was created by the Victims of Trafficking and Violence Prevention Act (hereinafter “VTVPA 2000”),2 enacted in October 2000. It was later amended by the Violence Against Women and Department of Justice Reauthorization Act of 2005 (hereinafter referred to as “VAWA 2005”),3 enacted in January 2006; the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (hereinafter referred to as “TVPRA 2008”),4 enacted in December 2008; and the Violence Against Women Reauthorization Act of 2013 (hereinafter referred to as “VAWA 2013”), combined with the Trafficking Victims Protection Reauthorization Act (TVPRA), signed into law on March 7, 2013. Although U nonimmigrant status and its unique adjustment provisions have been implemented through interim regulations, much of the procedure is still being worked out in USCIS policy guidance memoranda, and some of those memoranda are still pending and forthcoming.5 The U nonimmigrant status discussed in this manual is often colloquially referred to as a “U visa” by attorneys and community members alike. However, it is important to note that most clients in the United States who benefit from this immigration option will not have a U visa. Instead

1

The terms “U visa” and “U nonimmigrant status” are often used interchangeably by attorneys and advocates. However, there is an important distinction between the two. See the Practice Pointer on the next page for more details on this distinction. 2 Pub. L. 106-386, 114 Stat. 1464 (Oct. 28, 2000) [VTVPA]. 3 Pub. L. 109-162, 119 Stat. 2960 (Jan. 5, 2006). 4 Pub L. 110-457, 122 Stat. 5087 (Dec. 23, 2008). An excerpt of the relevant sections of TVPRA 2008 is at Appendix B. 5 For updates on changes to the law and procedure as a result of legislative changes or USCIS policy and updated practice pointers and sample materials, please regularly check websites such as USCIS’ website at www.uscis.gov and Asista’s website at www.asistahelp.org.

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Chapter 1

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they will be approved for U nonimmigrant status. This is an important distinction to make to clients and to understand as immigration practitioners.

PRACTICE POINTER: The Importance of the Distinction between a U Visa and U Nonimmigrant Status Nonimmigrant status is a form of immigration status granted to your client when she is already in the United States or she arrives in the United States. It is usually indicated on an approval notice from U.S. Citizenship and Immigration Services (USCIS) and a Form I-94 and will include an expiration date. It allows your client temporarily to remain legally in the United States as a U nonimmigrant. A visa is a document placed in your client’s passport by a U.S. consular official. It permits your client to enter the United States and travel into and out of the United States. U nonimmigrants may obtain a multiple entry visa that can be used to repeatedly enter the United States. Therefore, the U visa allows your client to enter the United States. U nonimmigrant status allows your client to remain in the United States. Example: Chaya was the victim of a crime in Colorado and applied for U nonimmigrant status from Denver. When it was approved, her attorney told her she now had a “U visa” when in reality she had been granted “U nonimmigrant status.” Shortly thereafter, thinking she had a visa, Chaya traveled to India to visit her family. Upon attempting to return to the United States, Chaya presented her U nonimmigrant status approval notice. Because her U nonimmigrant status does not automatically confer a nonimmigrant visa to allow her to enter the United States, Chaya was not able to return to her home in Denver. Chaya, like many other U nonimmigrants in this situation, will need to apply to obtain a U nonimmigrant visa through consular processing to reenter the United States. More information on this process is available in Chapter 9.

When Congress created the U nonimmigrant status in 2000, their intention was to protect victims of certain crimes who have gathered the courage to come forward, report the crime, and assist in the criminal investigation and prosecution. The purpose of this is two-fold. First, it enhances law enforcement’s ability to investigate and prosecute crimes. Second, it furthers humanitarian interests by protecting victims of serious crimes.6 It is important to remember that U nonimmigrant status not only is helpful to law enforcement but is also intended, as is much of immigration policy, to protect victims and provide humanitarian relief.7

6

See USCIS News Release, USCIS Publishes New Rule for Nonimmigrant Victims of Human Trafficking and Specified Criminal Activity, (Dec. 8, 2008), attached as Appendix C. 7 An excerpt of the VTVPA 2000 Congressional findings and purpose of the U visa are at Appendix B.

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The U nonimmigrant status is available to non-citizens who suffer substantial physical or mental abuse resulting from a wide range of criminal activity, including domestic violence, sexual assault, felonious assault, kidnapping, and many other crimes.8 There is a statutory annual limit of 10,000 U visas or approved U nonimmigrant status that can be granted per year. This numeric limit applies only to principal applicants, and not to derivative cases.9 As of this manual’s writing (February 2016), the statutory cap is expected to be reached every year, leading to a growing wait list. Those on the wait list (whose U petitions were adjudicated after the statutory cap was reached) could instead receive deferred action in the meantime.10 The duration of the U nonimmigrant status is for up to four years.11 However, this period of status may be extended in certain situations.12 After three years of continuous physical U nonimmigrant status in the United States, the U nonimmigrant may adjust status to obtain lawful permanent residence (a green card).13 There are also provisions to grant derivative U nonimmigrant status, U visas and lawful permanent resident status to certain family members of U nonimmigrants.14 In 2007, interim regulations implementing the U nonimmigrant status were issued.15 They became effective on October 17, 2007, and are the current regulations as of this manual’s writing (February 2016). Because the current U nonimmigrant regulations are interim, they may change 8

INA §§ 101(a)(15)(U), 214(p), 245(m). INA § 214(p)(2)(B). Fiscal year 2009 was the first year for which USCIS released the number of approved cases. In that year, 5,825 principal U applicants were approved and 688 were denied. At the same time, 2,838 derivative U applicants were approved and 158 were denied. In 2010 and 2011 the statutory cap was reached before the end of the fiscal year (in late summer, early autumn). USCIS announced in late 2015 that it had already reached the 10,000 cap for FY 2016. This marks the seventh straight year that USCIS has approved the maximum of 10,000 U applications. 10 INA § 214(p)(2)(A). 11 INA § 214(p)(6). 12 See Chapter 3 for more detail about extending U nonimmigrant status past the four-year initial period. 13 INA § 245(m). 14 INA § 101(a)(15)(U)(ii). See Chapter 7 for a detailed discussion on assisting family members of U nonimmigrants in obtaining immigration status. 15 There was a long period of time between when the U visa was created in 2000 and when DHS issued the regulations in 2007. During that time, no U visas could be granted. In the meantime, USCIS made a form of interim relief available for those who appeared to be prima facie eligible for U nonimmigrant status. This form of interim relief was referred to as “U interim relief” and was outlined in a series of USCIS Interoffice Memoranda. U interim relief provided deferred action and employment authorization to those who were able to show they were prima facie eligible. A grant of U interim relief was not considered a binding determination that any of the eligibility requirements for U nonimmigrant status were met. Even those who were granted U interim relief were later required to apply for U nonimmigrant status and have all evidence adjudicated anew. While many of the U interim relief grantees who submitted applications for U nonimmigrant status were approved, some were ultimately denied and not granted U nonimmigrant status even though their U interim relief applications had originally been approved. 9

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when final regulations are issued. Interim regulations can be in place for many years before the regulations become final. In 2008, interim regulations implementing provisions for U nonimmigrants to adjust their status to permanent residence were issued. They became effective on January 12, 2009. They are also interim regulations and therefore subject to change upon issuance of the final regulations. As of this manual’s writing (February 2016), some additional implementing provisions have been issued in draft policy guidance memoranda, and additional guidance memoranda are expected. Some of these memoranda are included under Appendix P. USCIS policy memoranda regarding U nonimmigrants may also be found on the USCIS website at www.uscis.gov and the Asista website at www.asistahelp.org. § 1.2

How to Use This Manual

This manual is designed for attorneys, advocates, paralegals and other staff at nonprofit organizations, government agencies, shelters, law enforcement agencies, schools, social service agencies, health care providers and other organizations who serve immigrant communities and immigrant victims in search of help. Through this manual, we will guide you through the entire process of handling an immigration case for a U nonimmigrant status applicant—from screening for eligibility to adjusting status to lawful permanent residency and assisting eligible family members and U nonimmigrants who wish to travel to the United States. In addition to providing a thorough explanation of the requirements and process, this manual includes numerous sample materials that may be helpful to you in putting together your client’s case. The included appendices include sample versions of the immigration forms you will need, sample checklists, sample declarations, samples of the receipt notices and other correspondence you can expect to receive from USCIS, sample motions to submit to the immigration court, and more. Numerous sample materials are found at the back of this manual throughout the appendix and are referenced throughout the manual. Some of the processing procedures for U nonimmigrants are in flux. As of this manual’s writing (February 2016), the U nonimmigrant and adjustment implementing regulations are still interim (although may remain in this state for years or become final in the same form), more draft and final policy guidance memoranda are expected, USCIS forms may be updated or replaced, and U.S. consulates abroad are continuing to refine their policies to process U visas abroad. We therefore invite you to visit the Immigrant Legal Resource Center’s website at www.ilrc.org/infoon-immigration-law/u-visas for updates and to join our education listserv by subscribing at www.ilrc.org/ilrc-newsletter/about-the-ilrc-newsletter to receive email messages about updates to this manual as well as in-person and webinar trainings opportunities related to U visas.

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PRACTICE POINTER: Where to Find the Law, Regulations and Policy on the U Visa. Most of the policy and procedure related to the U visa are contained in one of three places: the statute, the regulations, or policy guidance issued by USCIS. The statute is the Immigration & Nationality Act (INA), and the relevant sections are at:    

INA § 101(a)(15)(U): U nonimmigrant status eligibility requirements INA § 214(p): Miscellaneous U nonimmigrant requirements INA § 212(d)(14): U nonimmigrant inadmissibility waivers INA § 245(m): U nonimmigrant adjustment provisions

Much of the policy and procedure are outlined in the regulations, the relevant sections of which are:  

8 CFR §§ 212.17, 214.14: U nonimmigrant status 8 CFR § 245.24: U nonimmigrant adjustment of status

Finally, as is often the case with immigration policy and procedure, some important issues related to U nonimmigrant status are addressed in USCIS policy guidance memoranda. Some of these memoranda are available on the USCIS website at www.uscis.gov. The statute, regulations and many of the USCIS memoranda may be accessed from the “Laws” page of www.uscis.gov. Another great resource is the Asista website at www.asistahelp.org. The “Access the Clearinghouse” page includes a U visa link for all of the USCIS memoranda.

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Contents of This Manual

This manual contains nine chapters and an extensive appendix at the end of the manual. Please refer to these chapters for substantive coverage of the following topics: CHAPTER 1 INTRODUCTION covers an overview of benefits and eligibility for U nonimmigrant status, the contents of this manual and how to use it, and resources to assist you in navigating this topic. CHAPTER 2 U NONIMMIGRANT STATUS ELIGIBILITY covers eligibility for U nonimmigrant status including a detailed discussion of the eligibility requirements for the visa, red flag issues and screening tips and practice pointers. CHAPTER 3 U NONIMMIGRANT STATUS PROCESS details step-by-step how to apply for U nonimmigrant status, including details on how to fill out the Form I-918, information about additional documentation required to obtain U nonimmigrant status, what to expect from the process, how to obtain work authorization, and how and when to communicate with USCIS about 1-5

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your client’s case. It also describes issues that arise after U nonimmigrant status is approved, including requesting an extension of status or the possibility of a revocation of status. CHAPTER 4 INADMISSIBILITY GROUNDS AND I-192 WAIVER provides information about the various grounds of inadmissibility applicable to the U nonimmigrant status applicant, the standard for overcoming them with a waiver, and strategies for how to apply for the inadmissibility waiver. CHAPTER 5 ADJUSTMENT OF STATUS ELIGIBILITY details the requirements for U nonimmigrants to obtain lawful permanent residence, as well as how jurisdictional issues, inadmissibility grounds, and prior removal orders may affect your client’s case. CHAPTER 6 ADJUSTMENT OF STATUS PROCESS is a step-by-step chapter providing details to guide you through completing the adjustment packet, including the I-485 and supporting documentation, for a U nonimmigrant. CHAPTER 7 ASSISTING FAMILY MEMBERS is dedicated to providing information on how to help family members obtain immigration status—either as derivative family members with U nonimmigrant status or through the family petitioning process at the adjustment phase. CHAPTER 8 REMOVAL ISSUES discusses issues impacting clients who are currently in removal proceedings and those with prior removal or deportation issues, including information on motions and stays. CHAPTER 9 TRAVEL ISSUES is dedicated to providing practical information for helping U visa petitioners applying from abroad, U nonimmigrant status holders who wish to travel, and approved U derivatives in their home countries who wish to travel to the United States and will need to go through consular processing or apply for parole. The APPENDIX found at the end of this manual provides numerous sample materials, screening sheets, checklists, USCIS memoranda and other materials that advocates may find useful in helping a client successfully obtain U nonimmigrant status. § 1.4

Resources

Those of us who work with U nonimmigrant status applicants are fortunate that a universe of resources exists to help advocates and attorneys with these cases, and there are numerous excellent attorneys who are willing to share the resources they have created. Attached to this manual at Appendix A please find a list of resources for immigration forms, fees and updates, technical assistance, websites, trainings, webinars, seminars, listservs, and other written materials.

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CHAPTER 2 U NONIMMIGRANT STATUS ELIGIBILITY

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This chapter includes:

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§ 2.7 § 2.8

U Nonimmigrant Status Eligibility Requirements ............................................. 2-3 Victim of a Criminal Activity Listed in the Statute ........................................... 2-4 Victim Definitions .............................................................................................. 2-8 Suffered Substantial Physical or Mental Abuse ............................................... 2-14 Helpful, Has Been Helpful, or Is Likely to Be Helpful in the Criminal Investigation or Prosecution ............................................................................. 2-17 The Victim’s Helpfulness Must Be Certified by a Government Agency with Authority to Detect, Investigate, or Prosecute the Qualifying Criminal Activity.............................................................................................. 2-19 Victim of a Criminal Activity That Violated the Laws of the United States or Occurred in the United States ............................................................ 2-24 Admissible to the United States ....................................................................... 2-25

The U nonimmigrant status (also commonly referred to as a “U Visa”) is an immigration remedy available to non-citizens who have been victims of serious crimes that resulted in substantial physical or mental abuse, where the victims can provide certification from a law enforcement official that they are, have been, or are likely to be helpful in the criminal investigation or prosecution of the crime. Unlike eligibility for other immigration remedies under the Violence Against Women Act (VAWA), there is no requirement that the victim be related to the perpetrator of the crime or that the perpetrator have any specific immigration status. Example: Sonya is an undocumented woman. A doctor in her rural area sexually abused many undocumented women patients. Sonya is participating in a criminal investigation of the doctor for sexual assault. Sonya may be eligible for U nonimmigrant status. Example: When Lee Mei’s counselor found out that Lee Mei had been abused by her husband, the counselor suggested she self-petition under the Violence Against Women Act (VAWA) for immigration status. However, Lee Mei would not qualify for VAWA because her husband is undocumented. Nevertheless, since Lee Mei had been helpful in the criminal investigation and prosecution of her husband, and she had suffered substantial physical and mental abuse, she is eligible for U nonimmigrant status, despite her husband being undocumented. Example: Juanita’s girlfriend Clotilde had been abusing her and their children for months. When the police came to their home after being called for a domestic dispute,

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§ 2.1 § 2.2 § 2.3 § 2.4 § 2.5

they explained to Juanita that she could be eligible for a U visa if she helped in their criminal investigation of the abuse Clotilde perpetrated on her and their children.

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Example: James was walking home from work when three men came up from behind him and demanded money. He handed his wallet over to them, but one of the men shot him twice in the leg. He was taken by ambulance to the hospital where he was interviewed by a police officer. A week later, James saw one of the men in his neighborhood. He called the police and the man was arrested. James may be eligible for U nonimmigrant status. In this chapter, we will focus on the eligibility requirements for U nonimmigrant status, as well as tips for working with clients to screen for eligibility, prepare a successful case, and identify potential factors that could make the process risky for an applicant.

PRACTICE POINTER: An Important Immigration Option for LGBT Immigrants. Same sex marriage has been legal in all fifty states in the United States since June 26, 2015.1 Therefore, an abused gay or lesbian spouse can qualify for VAWA if he or she has or had a legal and valid marriage. Abused same sex partners who are not married may instead be eligible for a U visa. The U nonimmigrant status may also be an important immigration option for lesbian, gay, bisexual and transgender (LGBT) clients who have been the victim of sexual assault or hate crimes that can be considered similar or related to a qualifying crime such as felonious assault. Immigrant LGBT victims may have unique needs. To provide culturally competent services, it’s important for advocates to understand the range of civil and criminal protections available to LGBT clients, as well as the issues they face. The American Bar Association (ABA)’s Commission on Sexual Orientation and Gender Identity created a “How to Be an Ally Toolkit” This toolkit contains helpful resources to assist attorneys and their clients in better understanding and responding to domestic violence in the context of LGBT relationships and can be downloaded for free at www.americanbar.org/groups/sexual_orientation/resources/how-to-be-anally-toolkit.html. The Transgender Law Center (www.transgenderlawcenter.org) is an excellent resource for information on how to help your transgender clients get their immigration documents with the appropriate name and gender marker. And the Immigrant Legal Resource Center (ILRC) produced materials and a series of free webinars on working with LGBT immigrant clients. The webinars and materials can be viewed at www.ilrc.org/info-on-immigration-law/lgbt-immigrantrights.

1

Obergefell v. Hodges, 576 U.S.__ 135 S.Ct. 2584 (2015).

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§ 2.1

U Nonimmigrant Status Eligibility Requirements

There are six basic eligibility requirements for U nonimmigrant status:  

  

Each of these requirements will be discussed in greater detail in the next section.

2

8 CFR § 214.14(a)(5). INA § 101(a)(15)(U); 8 CFR § 214.14(b)(4). 4 INA § 212(d)(14). 3

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

The applicant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity; The applicant (or in the case of an applicant child under the age of 16, the parent, guardian or next friend of the child) possesses information concerning that criminal activity; The applicant (or in the case of an applicant child under the age of 16, the parent, guardian or next friend of the child) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; The applicant has certification from a federal, state, or local law enforcement authority certifying his or her helpfulness in the detection, investigation or prosecution of the criminal activity;2 The criminal activity violated the laws of the United States or occurred in the United States;3 and The applicant must be admissible to the United States, or demonstrate eligibility for a public interest waiver of any inadmissibility factors.4

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Victim of a Criminal Activity Listed in the Statute

In order to qualify for U nonimmigrant status, the immigrant must have been the “victim” of “qualifying criminal activity.”5 The regulations for U nonimmigrant status define the victim as “an alien who is directly and proximately harmed by qualifying criminal activity.” Qualifying criminal activity means one or more of the following crimes listed in the statute.6

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              

             

Abduction Abusive Sexual Contact Blackmail Domestic Violence Extortion False Imprisonment Female Genital Mutilation Felonious Assault Fraud in Foreign Labor Contracting Hostage Incest Involuntary Servitude Kidnapping Manslaughter Murder

Obstruction of Justice Peonage Perjury Prostitution Rape Sexual Assault Sexual Exploitation Slave Trade Stalking Torture Trafficking Witness Tampering Unlawful Criminal Restraint Other Related Crimes*†

*Includes any similar activity where the elements of the crime are substantially similar. †Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes. Example: Anjali found out she was the victim of identity theft when her credit card bill showed over $10,000 in charges she did not make. As a result, she had to spend numerous hours setting her record straight. Anjali is probably not eligible for U nonimmigrant status because identity theft is not one of the crimes listed in the statute. Furthermore, she may not be able to show that she suffered “substantial physical or mental abuse” as a result of the crime, as is required for U nonimmigrant status. Example: Marco was held down and punched repeatedly by some other boys in the locker room of his middle school because they suspected he was gay. School officials called police, who arrested the boys for assault and battery, enhanced to a felony because of a provision in his state’s hate crime law. Because Marco was the victim of a felonious assault and he is helping the police with his case, he may be eligible for U nonimmigrant status.

5 6

INA § 101(a)(15)(U)(iii). INA § 101(a)(15)(U)(iii).

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Example: Stephanie worked at the local homeless shelter. A man she rejected from the program called her names and said that he was going to kill her. One of her co-workers had seen the man get into physical fights with others at the shelter and encouraged her to call the police, which she did. The man returned to the shelter two times the following week, approaching Stephanie each time, calling her names. She reported him to the police each time he returned. Because Stephanie was the victim of stalking and reported the crime to the police, she may be eligible for U nonimmigrant status.

For the most part, the designated crime for U visa status need NOT be a felony. It should generally be sufficient that the case is a misdemeanor. The only qualifying crime that the statute requires be a felony is “felonious assault” and even then, you can try to argue that there is something about a misdemeanor assault charge that makes it fall under the broad category of felonious assault crimes (such as a hate crime aspect, the presence of great bodily injury, or the use of a deadly weapon). The statute contains language that “any similar activity in violation of federal, state, or local criminal law”8 can qualify because some criminal statutes will have different names from those listed in the U visa statute. For example, in California, the state penal code does not include a crime called “domestic violence.” However, “corporal injury on a spouse” is a similar activity that law enforcement agencies in California can investigate and prosecute. Similarly, California authorities treat child abuse as a category distinct from domestic violence, but child abuse by a family member is clearly a similar activity for U nonimmigrant purposes. Some crimes will also qualify because they fall into the category of one of the statutorily-listed crimes. For example, crimes such as strangulation, restraining order violations, and criminal threats, while not on the list of crimes in the U statute, may qualify as “domestic violence” categorical crimes if they are investigated or prosecuted in the context of a domestic relationship. Criminal activity in the “felonious assault” category includes those crimes involving a felony and which involve substantial injury or imminent substantial injury, which could be argued to include assault with a deadly weapon, armed robbery, felony hit and run, shooting into an inhabited dwelling, arson of an inhabited dwelling, mayhem, felony battery, aggravated assault, and possibly robbery by force or fear if it involved a violent assault. In each of these crimes, the advocate needs to make an argument to USCIS about how it fits into the relevant qualifying

7 8

Pub. Law 113–4, 127 Stat. 54 (March 7, 2013). INA § 101(a)(15)(U)(iii).

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Two of the qualifying crimes now listed in the statute—stalking and fraud in foreign labor contracting—were added relatively recently by the VAWA Reauthorization Act of 2013.7 As of this manual’s writing (February, 2016), the Form I-918 and Form I-918 Supplement B instructions have not yet been updated with the complete list of qualifying criminal activities, but USCIS provides the complete list on their website to include these two new crimes and victims of those crimes have been approved for U nonimmigrant status.

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criminal activity category.9 Even if a crime is listed as a felony (for example, a felonious robbery), VSC has stated that it will make an independent judgment about whether it involved a violent assault to qualify as a felonious assault. Some USCIS adjudicators and supervisors are more restrictive, and some less restrictive in determining that a particular crime is in the same category as those on the list in INA § 101(a)(15). Victims of crimes in which the investigation or prosecution have been closed well before the application for U nonimmigrant status may also still be eligible for U nonimmigrant status, assuming that the applicant meets the U nonimmigrant status requirements.10 USCIS has issued guidance11 and approved applications based on crimes that occurred even before the passage of the U nonimmigrant provisions in the statute (including crimes that are more than ten years old), as long as a law enforcement agency can certify the victim’s helpfulness. Example: Amerinavy was waiting in line at the bank in 1995 when three men came into the bank to rob it. In the course of their robbery, they shot five hostages, including Amerinavy. Although the crime occurred over 20 years ago—and before the statute including the U visa was even created—Amerinavy suffered substantial physical and mental abuse as a result of a qualifying crime (felonious assault, being held hostage and attempted murder). He was also helpful in the criminal investigation and prosecution of the perpetrators. Even though many years have passed since the crime, he was still able to get certification of his helpfulness and was able to qualify for U nonimmigrant status. Some of the statutorily listed crimes—namely, witness tampering, obstruction of justice, and perjury—are further clarified under the regulations. A victim of one of these crimes can qualify for U nonimmigrant status if the perpetrator committed the offense: 1) to avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring her to justice for other criminal activity; or 2) to further her abuse or exploitation or undue control through manipulation of the legal system.12

9

Advocates have successfully applied for U nonimmigrant status on behalf of victims of robbery if the crime could have been prosecuted as a felony and contained elements of assault. See for example Appendix U for a response to an RFE arguing that in California, an investigation of a violation of California Penal Code § 211 (second degree robbery) and California Penal Code § 12022(d) (armed with a firearm during the commission of the second degree robbery) constituted a felonious assault. Also in Illinois, a violation of 720 ILCS 5/18-1 (robbery) was argued to be a substantially similar criminal activity to that of felonious assault. In one DUI case, a California attorney was able to argue that the substantial harm was caused by a DUI as a qualifying criminal activity by analogizing to People v. Watson (1981) 30 Cal. 3d 290 [179 Cal.Rptr. 43, 637 P.2d 279]. However, in recent years VSC has seemingly gotten more restrictive in their interpretation of what will qualify as a felonious assault, so clients should be cautioned that it is not clear if a robbery will qualify in most cases. 10 Yates, Associate Director of Operations, “Centralization of Interim Relief for U Nonimmigrant Status Applicants” Memorandum for Director, Vermont Service Center (October 8, 2003) at page 4. This memorandum may be found on the Asista website at http://asistahelp.org/Uvisa/centrlization.pdf. 11 U.S. Department of Homeland Security, U Visa Law Enforcement Certification Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, December 29, 2011 attached under Appendix Q. 12 8 CFR § 214.14(a)(14)(ii).

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Because these crimes are written directly into the statute, there is no requirement that they be connected to any other statutorily listed criminal activity.

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PRACTICE POINTER: Can Victims of Immigration Fraud or Notario Fraud Qualify?

The crime of fraud committed against undocumented immigrants is unfortunately a common one. However, few of these fraud victims will or can qualify for U nonimmigrant status based on this crime. Although some fraud victims have succeeded in obtaining certification for a qualifying criminal activity, such as in the example above, most of victims of immigration fraud—which is not one of the statutorily listed crimes—will have a hard time fitting the fraud they suffered into one of the qualifying crimes. Furthermore, many applicants have a hard time proving substantial physical or mental abuse as a result of the crime (see § 2.4 below), even if it is one of the qualifying criminal activities. Still others will be afraid to do as Lidia did and report the crime to USCIS while still undocumented. Therefore, fraud cases should be analyzed carefully to determine whether they can qualify, and clients should be warned these are very difficult cases to win. While fraud in foreign labor contracting as defined by 18 USC § 1351 has been added to the list of qualifying crimes for U nonimmigrant status, many immigration fraud schemes will not fall into the category of this crime. 18 USC § 1351 requires a showing that the perpetrator of fraud in foreign labor contracting was a contractor who “knowingly and with intent to defraud, recruits, solicits, or hires a person outside the United States … for purposes of employment in the United States by means of materially false or fraudulent pretenses, representations or promises regarding that employment” (emphasis added).13 This may include hiring for purposes in the United States, employment on a U.S. government contract outside the United States, or on U.S. military installations. That means that the U applicant must have been first contacted outside the United States and for employment purposes. Fraud in foreign labor contracting is an important addition to the list of qualifying crimes for the purposes of combating workplace crimes. However, most common immigration scams as 13

18 USC § 1351.

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Example: Lidia was persuaded by Mr. Smith that he was an attorney and that he should submit an application for asylum for her. When Lidia learned that she was not eligible for the benefit, and that Mr. Smith had submitted false documents on her behalf, she reported Mr. Smith’s fraud to USCIS and agreed to assist with an investigation. At the request of the U.S. Attorney, Lidia continued with her immigration case represented by Mr. Smith. She told Mr. Smith that she was concerned that he was telling her to lie on a government document. He told her that she had better not tell anyone. The U.S. Attorney said she would help Lidia with the U nonimmigrant process, but believed that the crime of witness tampering required that Mr. Smith had threatened Lidia. Advocates pointed out that the crime met the regulatory definition because Mr. Smith made Lidia present false testimony first by deceiving her and later by directing her to stay quiet.

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perpetrated by notarios in the community, for example, will not qualify under this crime. Instead, it may be helpful where employers have provided false representations on issues including the terms and conditions of employment, housing, fees to labor brokers, food and transportation, ability to work at other places of employment, and other material aspects of the work arrangement. It may cover cases where brokers have brought workers to the United States and violated the terms of agreement, even where labor was not obtained under coercive situations necessary for other trafficking offenses. Consult the National Employment Project (www.nelp.org) for more information on these types of cases.

Additional examples provided by USCIS of witness tampering, obstruction of justice and perjury crimes that may qualify for U nonimmigrant status include situations in which witnesses in Racketeer Influenced and Corrupt Organizations (“RICO”) Act cases were being threatened, and situations in which there is no direct victim and the victim is the justice system. Another example USCIS has given was in the context of a child custody hearing where an abuser either perjures himself or forces his wife to perjure herself under threat of violence and in doing so furthers his abuse and control over her and his manipulation of the legal system (but remember that the crime must have been investigated or prosecuted, so the client would have needed to report the perjury to law enforcement—a certification from the family law judge would not suffice). § 2.3

Victim Definitions

The regulations outline two kinds of victims who may qualify for U nonimmigrant status—direct victims and indirect victims.14 Within the category of direct victims of crimes, there are two kinds of victims for the purposes of U nonimmigrant status—direct victims and “bystander” victims. In all of these cases—direct victims, bystanders victims and indirect victims—the victim needs to obtain certification of helpfulness from law enforcement and needs to prove substantial physical or mental harm to be eligible for U nonimmigrant status. Consequently, in all of these cases, the direct victim, bystander victim or indirect victim can apply as the principal applicant for U nonimmigrant status. Direct Victims A direct victim is defined as a person who has suffered direct harm or who is directly and proximately harmed as a result of the criminal activity.15 The overwhelming majority of U nonimmigrant status applications approved by USCIS are for direct victims of crime. Example 1: Bob was shot during a robbery. Bob is the direct victim of felonious assault. Example 2: Barbara was beaten by her ex-boyfriend. Barbara is the direct victim of domestic violence. 14 15

8 CFR § 214.14(a). 8 CFR § 214.14(a)(14).

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Example 3: Tania was forced into a closet during a robbery at her store. Tania is the direct victim of false imprisonment.

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The direct victim of the crime need not be the principal applicant for the U nonimmigrant status (see section below on Indirect Victims who may be the family members of the direct victim but the principal applicant for the U nonimmigrant status).

PRACTICE POINTER: Non-Traditional Direct Victims

Example: Joanna was at a family gathering when a gunshot from a drive-by shooting tore through the room and struck Joanna’s sister-in-law Tina, killing her. Other shots wounded two other people in the room. Joanna was not wounded, but she was badly traumatized as bullets tore through the room and killed Tina. She was not listed on the police report as a victim or witness as she was permitted to leave the scene to care for Tina’s daughters before the investigation began). However, Joanna was exceptionally helpful in the subsequent criminal investigation of the crime: she urged each of the people living in, or visiting the house, to talk candidly with police. She appeared on the local Spanish-language news, asking viewers to call police if they had any information. The police department signed an I-918 Supplement B for Joanna, indicating that everyone in the room was a victim of assault with a deadly weapon (a felonious assault) because the gunman shot at everyone present and anyone could have been hit. Although Joanna was not the direct victim of the murder, nor was she shot, the police certified her as a direct victim of assault with a deadly weapon. She was therefore eligible to apply for U nonimmigrant status as a victim of a qualifying criminal activity and principal applicant. Joanna’s case was approved without any Request for Additional Evidence.

The U nonimmigrant status regulations define a victim as someone “who has suffered direct and proximate harm as a result of the commission of qualifying criminal activity.” The regulations refer to the following definitions of “direct and proximate harm” from the Attorney General Guidelines for Victim and Witness Assistance: Direct and Proximate Harm: … [T]he alleged harm must be a direct consequence of the crime; that is, the harm must generally be a “but for” consequence of the conduct that constitutes the crime, specifically the crime under investigation, that has been charged, or for which there has been a conviction, depending on the stage of the criminal justice process.” Further, the AG Guidelines instruct that “the alleged harm must have been a reasonably foreseeable result of the charged offense.16

16

Dep’t of Justice, Attn’y Gen. Guidelines for Victim and Witness Assistance, available at www.justice.gov/sites/default/files/olp/docs/ag_guidelines2012.pdf.

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The example below is from a real case.

Direct Victims Who Are Bystander Victims

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USCIS also anticipates that a small number of applicants who were not the direct target of a crime, but who nevertheless suffered “unusually direct injury as a result of a qualifying crime” could be considered bystander victims. USCIS has suggested a couple of possible scenarios: a pregnant woman who suffered a miscarriage as a result of the trauma she experienced witnessing a violent crime17 and a bystander who was hit by shrapnel from a terrorist bombing.18 The idea here is that the bystander suffered such an unusually direct injury that they themselves have become a victim of the crime. Example: Luna was 13 weeks pregnant when she witnessed a group of strangers in an altercation on her street. During this altercation, some of the men savagely beat another man. Although not one of the parties fighting, Luna was terribly frightened and distraught by what she witnessed. As a result, she had a miscarriage. Because she was helpful in the criminal investigation and prosecution of the perpetrators, and she suffered an unusually direct injury of miscarriage as a result of the crime, USCIS has the discretion to grant Luna U nonimmigrant status. Note that the above example of Luna was based on one provided by USCIS in the preamble to the U nonimmigrant implementing regulations.19 DHS also stated in the preamble that they do not anticipate approving a significant number of such cases but will analyze them on a case-by-case basis.20 Therefore, we do not know exactly the parameters of what kinds of cases will qualify bystanders as direct victims. Below are examples of actual cases that were approved that could be presented as a bystander victim. Example: Ivan’s 21-year-old, developmentally disabled daughter Natalia was sexually assaulted in their apartment when he was at work. Natalia told a neighbor, who called Ivan. Ivan raced home to find his daughter blaming herself for the assault. He was so upset that he punched a wall, injuring his hand, and he continued to suffer from emotional trauma two years later. As hard as this would be on any parent, Ivan was particularly devastated because Natalia had been abused by her mother’s family in Mexico, and he had rescued her from that situation a few years earlier. The guilt he felt about that abuse, and his identification with Natalia’s vulnerability was a controlling part of his life. Ivan was not eligible as an indirect victim of the crime against Natalia because she was already 21 years old when the crime occurred. However, Ivan was able to show that his intense connection to her made the harm he suffered particularly devastating and directly connected to the crime. He also argued that since Natalia was his daughter, and he was helpful on her behalf, he shared attributes of an indirect crime victim, like the

17

See Preamble at Federal Register, Vol. 72, No. 179, p. 53016-53017 (Sept. 17, 2007). Question and Answer session with USCIS Policy and Strategy representatives at the Federal Bar Association Immigration Law Seminar in May 2010. 19 See Preamble at Federal Register, Vol. 72, No. 179, p. 53016-53017 (Sept. 17, 2007). 20 Id. 18

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unusually direct connection between the bystander and direct victim and unique ability to be helpful.

Another actual scenario was posed to USCIS officials at a training of law enforcement agencies in the San Francisco Bay Area in August 2008. In this situation, the police investigators very much wanted to assist the witnesses to a violent crime that had occurred in a restaurant. The police considered these witnesses to have been invaluably helpful, and they thought the witnesses had suffered an unusually direct injury inasmuch as they suffered from post-traumatic stress disorder since witnessing the crime. The police investigators wanted to know if the witnesses in this case could qualify as “bystander victims” for the purposes of the U visa. At that time, the USCIS officials stated that they thought it would be worth having these witnesses apply since law enforcement was willing to certify them as helpful victims. The adjudicators at the Vermont Service Center will ultimately determine whether or not they qualify for U nonimmigrant status. However, the USCIS officials stated that even if the witnesses in this situation ended up not qualifying for U nonimmigrant status, they would not be placed in removal proceedings because to do so would thwart the purpose of the U nonimmigrant status. While there is no guarantee that USCIS will not issue a Notice to Appear (NTA) and place a denied U visa applicant in removal proceedings, they have repeatedly said that they have no intention of doing so and would likely only consider it in the situation of an applicant with a significant criminal history. A similar case was approved by USCIS in 2014. Indirect Victims The definition of an “indirect victim” includes certain family members of direct victims who are incompetent, incapacitated or deceased. If the direct victim was a victim of murder or manslaughter or is incompetent or incapacitated as a result of the crime, then the following family members (and only these family members) may qualify as an indirect victim, but they must also show that the direct victim was incompetent, incapacitated or deceased:  

Spouses; Unmarried children under 21 years of age;

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Example: Sara, 32 years old, was roommates with Victor, her 23-year-old brother. Sara was preparing dinner one night when she heard some strange noises outside their apartment. At some point, she decided to see what was happening. When Sara opened the door, Victor fell into her arms. Victor had just been shot. Sara called the police and accompanied her brother in an ambulance to the hospital, where he was declared dead. At the hospital and for weeks afterward, Sara answered all the police’s questions. Sara and her brother were very close—Sara acting as Victor’s mother when they left Mexico and moved together to the United States. For that reason, and the nature of a family member’s murder, Sara was traumatized. She was especially distraught because she felt the guilt of knowing she might have prevented Victor’s murder if she had opened the door earlier.

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 

Parents, if the victim was under 21 years of age; and Siblings under the age of 18, if the victim was under 21 years of age.21

The applicant must also prove that the direct victim was incompetent or incapacitated. USCIS has indicated recently that if a child is able to talk with law enforcement officials, that child is not incompetent or incapacitated. USCIS has stated that there is not specific age determination for who can be considered incompetent. In other words, just because someone is under 21 years old (the age limit for the definition of a child under immigration law), that does not definitively mean that the child is incompetent. Instead, VSC will determine this on a case-by-case basis, so you should provide some evidence and/or argument for why someone is considered incompetent. Some law enforcement agencies take the same position, and will not sign an I-918 Supplement B certification for a relative of a direct victim child without evidence that the child was incompetent or incapacitated. Advocates may support this argument by using the AG Guidance cited by the U nonimmigrant status interim regulations as an authoritative source for definitions of its terms, which lists victims under age 18 as a separate category of direct victims for purposes of determining whether a relative may be an indirect victim. As an indirect victim, the family member may apply for U nonimmigrant status as the principal applicant instead of as a derivative family member. This means that the family member/indirect victim will also need to prove her helpfulness in the criminal investigation or prosecution and that she suffered substantial physical or mental abuse. The key in indirect victim cases is that the certification must be in the family member/indirect victim’s name, not the deceased or incompetent victim’s name. Example: David’s wife Dana was killed during a home invasion robbery. Although David wasn’t the victim of the murder, he is the spouse of a murder victim and can therefore be considered an indirect victim and apply for U nonimmigrant status as a principal applicant if he is helpful in the criminal investigation or prosecution of Dana’s murder. Remember that the regulations provide that sentencing is considered part of the prosecution so even if David only provided a victim impact statement at sentencing because he didn’t have any other information about the crime, he could still qualify if the District Attorney’s office certified his helpfulness. For the purposes of qualifying as an indirect victim, the relationship and victim’s age will be determined as of the date of the qualifying criminal activity.22 Example: In the example above, consider that David applied for U nonimmigrant status 8 years after the murder. David had been married to Dana as the time she was murdered. If David later remarried another woman before he applied for U nonimmigrant status, he would still qualify as the indirect victim of his murdered wife because the qualifying relationship existed at the time of the crime.

21 22

8 CFR § 214.14(a)(14)(i). 8 CFR § 214.14(a)(14)(i).

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Example: Lola was 11 when she was sexually abused by her school’s choir teacher. Her mother assisted in the criminal investigation at the time. Now Lola is 23 years old. Nevertheless, as her parent, Lola’s mother may still qualify as the indirect victim of the crime even though Lola is now over 21 years old because at the time of the criminal activity Lola was under 18 years old and so may have been legally incompetent.

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Indirect Victims Who Are Family Members of U.S. Citizens Victims

Indirect victims will also need to show that they have been helpful in the criminal investigation or prosecution and suffered substantial physical or mental harm, as any principal applicant for U nonimmigrant status must show. Example: Hortencia’s 4-year-old son Elias was the victim of abusive sexual contact by another family member—an uncle named Hugo. Elias is a U.S. citizen so does not need to and cannot qualify for U nonimmigrant status. He therefore cannot apply and include his mother as a derivative. However, Hortencia was helpful in the criminal investigation of Hugo. She also suffered substantial mental abuse as a result of this crime because, as a childhood sexual abuse survivor herself, she experienced tremendous guilt and recurring nightmares when she discovered her son had been victimized and because as a parent she suffered anguish watching the impact of the assault on her son. Because Elias is such a young child and was unable to understand or articulate what happened, he may be considered incompetent or incapacitated. Therefore, Hortencia can be the principal applicant for U nonimmigrant status as an “indirect victim.” It is important to note that in this scenario, Hortencia will be the principal applicant for U nonimmigrant status so will need to obtain the certification of her helpfulness in her name and will need to prove how she suffered substantial physical or mental harm as a result of the crime.

PRACTICE POINTER: People Excluded from the Definition of “Victim.” The regulations state that victims of crimes who are themselves culpable for the qualifying criminal activity are excluded from the definition of a victim.24 USCIS has clarified that the “culpable” language was meant to 23

“The U Visa Eligibility & Certification Requirements” training by Anne-Marie Mulagha, USCIS Office of Policy and Strategy, San Francisco, CA (August 2008). 24 8 CFR § 214.14(a)(14)(iii).

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Undocumented family members of U.S. citizen victims who are incompetent or incapacitated should be able to qualify as indirect victims and apply for U nonimmigrant status. Previously USCIS stated that a minor victim (under age 18) is considered legally “incompetent” for this purpose, and many such cases have been approved in which the parents of U.S. citizen crime victims have applied as indirect victims/principal applicants.23 However, in recent years, VSC has been more restrictive in its determination of who is incapacitated or incompetent, and may not accept that someone is incapacitated or incompetent solely due to age. VSC will determine this on a case-by-case basis, so you should provide some evidence and/or argument for why someone is considered incapacitated or incompetent.

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bar applicants from U eligibility where it appeared they brought the criminal activity upon themselves by their own criminal actions. Therefore, a domestic violence victim who fought back against her abuser would not be considered “culpable” for the domestic violence crime. Instead, this provision is directed at cases like the example below, provided by USCIS. Example: Eliseo was a member of a Norteño street gang. One night he was hanging out at a taquería with members of his gang when members of the rival Sureño street gang appeared. An argument broke out, followed by gunshots fired from both sides. In the melee, Eliseo was shot in the shoulder. Eliseo was the victim of felonious assault and attempted murder, was able to identify his assailant and was helpful in the criminal investigation. However, according to USCIS, he was culpable in the criminal activity and therefore may be barred from eligibility. Sometimes applicants are victims of gang-related shootings such as in the example about Eliseo above, but are not involved with gangs at all and are not culpable for the qualifying criminal activity. It is important to ensure that your client’s application does not give the impression that your client was culpable. If your client has a criminal arrest or conviction for one of the qualifying criminal activities, she may need to have that ground waived if it triggers an inadmissibility ground, but it will not necessarily bar her from eligibility. Example: Tua is applying for U nonimmigrant status as a victim of domestic violence for a series of violent crimes committed against her by her boyfriend. However, she is concerned that she will be barred from U eligibility because she was “culpable” for domestic violence when she got into a fight with a roommate some years ago. Because the two crimes were unrelated, Tua’s conviction for the fight with the roommate will not bar her from eligibility; however, she may need an inadmissibility waiver if her prior criminal offenses triggered an inadmissibility ground. On the other hand, an applicant with a history of domestic violence convictions will likely face an uphill battle to convince USCIS that they are entitled to a favorable exercise of discretion in the granting of U nonimmigrant status.

§ 2.4

Suffered Substantial Physical or Mental Abuse

Your client must have suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity.25 It is important to note that the abuse is not confined to physical abuse, but also includes mental abuse which is defined as impairment of emotional or psychological soundness.26 See Appendix F for articles on emotional cruelty as well as materials for working with clients who have been emotionally abused. 25 26

INA § 101(a)(15)(I)(i)(I). 8 CFR § 214.14(a)(8).

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Example: Gina was sexually assaulted by her brother’s roommate. She called the police and was taken to the hospital for a Sexual Assault Response exam that documented physical trauma. She received counseling from the Rape Crisis Center, where she learned that she was suffering from Rape Trauma syndrome and severe depression. Gina has clearly suffered substantial abuse.

Example: Bob punched and kicked his live-in girlfriend Carla for years, but Carla was always afraid to call the police. She eventually left him and stayed with friends. A week later, she went to a domestic violence agency, and a worker convinced her to report the latest incident to the police. Although the police were unable to make an arrest because there was no lasting evidence of battery, the report helped Carla get a Domestic Violence Restraining Order (DVRO) against Bob. Bob found Carla at her friends’ home, went there in violation of the restraining order, and yelled at her to come out. Carla called the police, and they arrived and arrested Bob for violating the Restraining Order. No injuries were described in the arrest report. Because she helped the police in a domestic violence related arrest, Carla was able to get a certification of her helpfulness in a domestic violence offense. Although the abuse in that particular incident was not substantial, Carla can successfully apply for U nonimmigrant status if she can show that the DVRO violation was part of a pattern of substantial abuse that had lasted for years. Similarly, if the only reported incident had been a push or a shove, but that push or shove was the last straw in a long history of unreported abuse, USCIS can take the history of unreported abuse into consideration in determining whether the abuse “in its totality” rose to the level of substantial. In determining whether or not the abuse suffered was “substantial,” USCIS will consider the severity of the injury suffered and the abuse inflicted. Substantial factors may include:      27

Nature of the injury Severity of the perpetrator’s conduct Severity of the harm suffered Duration of infliction of harm Permanent or serious harm to appearance, health, physical or mental soundness.27

8 CFR § 214.14(b)(1).

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Example: Robbers grabbed Jorge from behind, and one punched him on the back of the head causing him to fall to the ground. The robbers stole Jorge’s wallet after he had just been paid, getting away with $1500 in cash. Jorge called the police and they arrived in time to find and arrest the robbers. They were charged with felony robbery with assault, which police were willing to certify as a felonious assault crime. Jorge was angry, his head hurt for several days, and the incident was frightening, but he believed he would be fine without counseling. Because the physical harm Jorge suffered was not substantial, and he was not emotionally traumatized, Jorge may not be able to show substantial abuse. In recent months, some U applicants have also received RFEs wherein VSC did not consider this type of felony robbery a qualifying criminal activity.

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No single factor is determinative or a prerequisite. Furthermore, USCIS can take into consideration aggravation of a victim’s pre-existing conditions. So, if in the example above, Carla had been the victim of long term abuse at the hands of an ex-boyfriend and then her new boyfriend Bob committed one incident of domestic violence against her, USCIS could consider the effect of that one incident as being substantial because of the pre-existing trauma that Carla already suffered. USCIS has made it clear that they will consider abuse in its totality to determine whether or not it is substantial, recognizing that abuse may involve a series of acts or occur repeatedly over a period of time.28 This series of acts taken together may constitute substantial physical or mental abuse where no single act alone rises to that level.29 It may be useful, in applications for U nonimmigrant status based on domestic violence crimes, to refer to USCIS’s guidance on showing battery or extreme cruelty in self-petitions under the Violence Against Women Act (VAWA). Briefly, USCIS considers behavior and actions “extreme cruelty” when the abuser uses them to dominate, control, diminish the quality of life and/or humiliate the survivor, and the abuse had that effect on the survivor. Materials on demonstrating emotional cruelty in domestic violence cases are included at Appendix F. Applications for U nonimmigrant status are adjudicated using the “any credible evidence” standard.30 This means that the immigration authorities may not insist upon primary source documents, but instead must consider all credible evidence submitted by the applicant. The most essential piece of evidence documenting the abuse will be the applicant’s own statement in the form of a declaration. When mental health records such as counselor’s reports or medical records are available, they should also be included with the U nonimmigrant application if referenced in the applicant’s declaration. Although the evidence standard is somewhat relaxed, consistency and corroboration are important elements of credibility. It is important to make sure that none of the evidence actually contradicts or undermines any other evidence before you submit an application. Example: Janet is the victim of abusive sexual contact by her neighbor. The police investigated her neighbor, and Janet wanted to press charges against him. She mentions in her declaration that she has sought the help of a therapist to help her deal with the substantial mental abuse she has suffered as a result of the sexual contact. Because her declaration mentions the therapy she has sought, she should also submit any corroborating evidence of it, such as a letter from her therapist. If the letter is unavailable because of the therapist’s own policies or some other reason, that should be explained in the cover letter or her declaration. Example: Marilyn writes in her declaration that she told the police that Phillip had hit her many times in the past. The police report specifically states that Marilyn told the officer that Phillip had never hit her before. Marilyn will need to clarify the facts before she submits her application. She may be able to explain in her declaration that the officer misunderstood her, or that she was afraid to tell him everything. Or perhaps Phillip had 28

See Preamble at Federal Register, Vol. 72, No. 179, p. 53018 (Sept. 17, 2007). Id. 30 INA § 214(p)(4); 8 CFR §§ 214.14(c)(4), (f)(5). 29

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not hit her before, but she said he did in her declaration because she thought her case would not be strong enough otherwise. The advocate needs to help Marilyn tell a story that is consistent, credible, and truthful.

§ 2.5

Helpful, Has Been Helpful, or Is Likely to Be Helpful in the Criminal Investigation or Prosecution31

In order to qualify for U nonimmigrant status, the applicant MUST provide proof from a law enforcement agency on Form I-918 Supplement B that he or she has provided some form of help in the detection, investigation or prosecution of the criminal activity. The statute32 does not require that the criminal investigation have led to a prosecution of the case, and December 2011 guidance from DHS to law enforcement agencies33 confirms that. Being helpful with just one element—the detection, investigation or prosecution—may be sufficient.34 The statute does not require anything specific such as the victim serving as a witness at trial or providing testimony. However, the case must have led to a criminal investigation or prosecution in which the victim was helpful. In other words, if your client has never contacted the police or other law enforcement agency about the crime, he or she is likely NOT eligible to apply for U nonimmigrant status yet. Example: Donna tells you that her husband had been physically abusing her for years, so she left him six months ago. She would like to apply for the U visa as the victim of domestic violence. However, she never contacted police to report the crime because she 31

INA § 101(a)(15)(U)(i)(II). “Centralization of Interim Relief for U Nonimmigrant Status Applicants,” William R. Yates, Assoc. Dir. of Operations, USCIS (Oct. 8, 2003) at p. 4. This memorandum may be found on the USCIS website at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%2019982008/2003/ucntrl100803.pdf. 33 U.S. Department of Homeland Security, U Visa Law Enforcement Certification Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, December 29, 2011 attached under Appendix Q. 34 “Centralization of Interim Relief for U Nonimmigrant Status Applicants,” William R. Yates, Assoc. Dir. of Operations, USCIS (Oct. 8, 2003) at p. 4. This memorandum may be found on the USCIS website at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%2019982008/2003/ucntrl100803.pdf. 32

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Officers new to the USCIS VAWA and U visa unit sometimes do not apply the correct evidentiary standard in adjudicating U cases. For example, as of this manual’s writing (February 2016), USCIS has issued Requests for Additional Evidence (RFEs) for substantial abuse in the types of cases where advocates had previously received approvals. While USCIS has not elevated the any credible evidence standard, you may wish to alert a supervisor to any officers’ determinations that deviate from the any credible evidence standard. Please see in Appendix U a redacted request for supervisory review on substantial abuse, where the supervisor withdrew the RFE and approved the case.

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had always been afraid that if she contacted a law enforcement agency she could be deported. Donna is currently not eligible for U nonimmigrant status because she hasn’t been helpful in a criminal investigation or prosecution yet. If she contacts the police now, it is unclear whether they will investigate the crime at this point in time. If they will, she may qualify for U nonimmigrant status.

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Example: Kenji was the victim of kidnapping twenty years ago, many years before Congress created the U visa. Kenji helped police in the investigation and prosecution of the crime and his kidnapper went to prison. Kenji only found out about the U visa recently. He wants to know if he can apply for U nonimmigrant status now. If Kenji can get a law enforcement official to certify his helpfulness in the case years ago, he may qualify for U nonimmigrant status. USCIS accepts and approves old cases, even if they occurred years ago, as long as the applicant is otherwise eligible. Example: John was shot and robbed by an unknown assailant. At the hospital, he told police officials everything he could about the attack and the assailant’s identity. He gave the police officer all the information needed to determine that the attack was random, and that he did not have enemies and was not involved in gangs or drugs. He promised the officer to contact the police if he remembered anything else, or saw his assailant again. However, he did not get additional information, and the investigation was closed. John should be eligible for U nonimmigrant status because he gave police all the information he was capable of giving, and the information helped police narrow possibilities in their investigation. While many law enforcement agencies will certify John’s helpfulness, some will not. Please see Chapter 3 for more discussion on working with law enforcement agencies to obtain certifications of helpfulness.

PRACTICE POINTER: Additional Helpfulness Requirements under the Regulations. Under the U nonimmigrant status interim regulations, the applicant cannot refuse to provide reasonably requested assistance throughout the duration of the U nonimmigrant status.35 The applicant has an ongoing responsibility to cooperate and USCIS can contact the certifying law enforcement agency for more information. Furthermore, the certifying official can withdraw certification any time while the U nonimmigrant application is pending or after it is approved. Note, however, that this ongoing responsibility is limited to responding to requests from law enforcement. The applicant does not need to act affirmatively without a request for assistance. If an investigation or prosecution is closed, there should not be requests for further assistance. However, most law enforcement agencies require that as long as the investigation or prosecution is open, the applicant must keep her contact information current with the relevant agency.

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8 CFR § 214.14(b)(3).

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PRACTICE POINTER: U Applications and Subpoenas from Criminal Defense Attorneys. A criminal defense attorney may attempt to subpoena the U visa application in order to use it to impeach the credibility of the victim in the criminal trial. This is a problematic issue for many reasons. See a fuller discussion of this issue in Chapter 3, § 3.6 as well as Appendix N for a guide for immigration attorneys about responding to subpoenas in the U visa context as well as a model motion to quash a subpoena in that context.

Every request for U nonimmigrant status must include certification from a government official that the victim is being helpful, has been helpful, or is likely to be helpful in the criminal investigation or prosecution.36 This certification can come from a federal, state or local prosecutor, a federal or state judge, a police investigator, a victim witness advocate within the District Attorney’s office or other local authority charged with investigating or prosecuting criminal activity. The regulations define “investigation” to refer also to the detection of a qualifying criminal activity and “prosecution” to refer also to the conviction or sentencing of the perpetrator.37 Example: Myra was battered by her husband repeatedly over the course of their marriage. She never reported the abuse to the police, but she did go to family court to obtain a protection order. Can she qualify for U nonimmigrant status? It depends. If the family court judge is willing to certify that he or she has the authority to detect crime and that Myra has been helpful in the criminal investigation of a qualifying criminal activity (in this case, domestic violence), then Myra may qualify for U nonimmigrant status. In general, VSC has not been as open to these cases, as they occur in the civil, not criminal system. In some states, however, family court judges have jurisdiction over the state penal code (in New York, for example), and VSC has been known to accept certifications from family court judges in those cases. Make sure to include the relevant statute with the certification. Child Protective Services (the agency name for these types of services varies by city or county; it may be referred to as the Department of Families and Children Services, Administration for Children’s Services or something else), the Equal Employment Opportunity Commission (EEOC),38 the Department of Labor, and others may also qualify as a certifying agency if they

36

INA § 101(a)(15)(U)(i)(III). 8 CFR § 214.14(a)(5). 38 For more information on the EEOC procedure for handling requests for U visa certification, see Appendix H. 37

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§ 2.6 The Victim’s Helpfulness Must Be Certified by a Government Agency with Authority to Detect, Investigate, or Prosecute the Qualifying Criminal Activity

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have the authority to detect, investigate or prosecute crime in their respective area of expertise.39 For example, in California, the state Department of Fair Employment and Housing (DFEH) also certifies cases under investigation that allege acts covered under the California Fair Employment and Housing Act or Ralph Act.40 In early 2016, New York City announced that its Commission on Human Rights, a civil law enforcement agency with investigatory authority, would begin issuing visa certifications for U visas and T visa cases, including in cases of sexual assault in the workplace, tenant harassment, forced labor, extortion, and human trafficking. See Practice Pointer below for more details on obtaining U visa certification for victims of workplace crimes. The law enforcement certification of helpfulness must be submitted on Form I-918 Supplement B. This form and the ability of a variety of agencies to sign it are discussed in further detail in Chapter 3 in § 3.6 and § 3.7. There is an exception to the helpfulness requirement for victims who are under 16 years of age, incapacitated or incompetent.41 These victims can satisfy the helpfulness requirements if their parent, guardian or next friend42 provides the required assistance.43 For the purposes of this exception, the victim’s age is established as the age of the victim on the day that the qualifying criminal activity first occurred.44 In those cases, a parent, guardian or next friend may fulfill the helpfulness requirement.45 Bear in mind that if another person is helpful on behalf of a crime victim who is under 16 years of age, it is that young crime victim, and not the person who was helpful, who is eligible for U nonimmigrant status. Example: Helen was two years old when her aunt Mary Catherine helped her change clothes to go to bed at night and found bruises all over Helen’s body. Mary Catherine called the police who discovered that Helen’s mother had been abusing Helen. Because Helen was not yet verbal, and to protect her from re-traumatization, Mary Catherine provided much of the evidence in the criminal investigation and prosecution and was very helpful. Because Helen was under 16 years old and her aunt was helpful, Helen will qualify for U nonimmigrant status even though she did not personally provide helpful information. However, Mary Catherine will not qualify for U nonimmigrant status even though she acted as a “next friend” and was helpful (unless you could argue that she 39

8 CFR §§ 214.14(a)(2) and (a)(5). Sometimes these agencies conduct criminal investigations, and sometimes they do not. For example, some state or county child protective services agencies conduct criminal investigations while others do not. 40 The California DFEH directive is attached under Appendix I. 41 8 CFR § 214.14(b)(3). 42 The regulations define “next friend” as “a person who appears in a lawsuit to act for the benefit of an alien under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. The next friend is not a party to the legal proceeding and is not appointed as legal guardian.” 8 CFR § 214.14(a)(7). 43 INA § 101(a)(15)(U)(i)(III); 8 CFR § 214.14(b)(3). 44 8 CFR § 214.14(b)(3). 45 Id.

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suffered an unusually direct injury as a result of finding the bruises and so could be considered a bystander victim).

Each agency that has released U visa certification protocol has established distinct internal procedures for certification of U visas. Some will certify for all of the qualifying criminal activities identified in statute, while others will only certify in a limited number of circumstances. Some agencies are more experienced than others in certifying U visas, but advocates should be prepared to submit detailed factual information about the qualifying criminal activity, citations to and analysis of relevant criminal statute as it relates to the facts of the case, and any supporting information about substantial harm or helpfulness when requesting certification. Below is a brief summary of certification guidelines for each agency. Copies of each protocol are also included at Appendix I. Equal Employment Opportunity Commission (EEOC): The EEOC, which is responsible for enforcement of federal workplace discrimination and harassment law, frequently investigates U visa qualifying criminal activity. In order for the EEOC to certify a U visa petition, the qualifying criminal activity in question must be related to unlawful employment discrimination alleged in an EEOC complaint or otherwise under investigation by the EEOC. Although the EEOC protocol does not otherwise restrict which qualifying crimes may be included on the certification, most commonly certified crimes include sexual assault, abusive sexual contact, prostitution, and sexual exploitation. EEOC cases have also involved qualifying criminal activities of trafficking, peonage, and involuntary servitude, although advocates should weigh the advantages of a T visa in such a case. The EEOC also requires an interview of the U visa candidate. EEOC certifications have resulted in hundreds of successful U visa petitions with USCIS.

46

Thank you so much to Eunice Hyunhye Cho, former Skadden Fellow at National Employment Law Project, and currently Staff Attorney at the Southern Poverty Law Center’s Immigrant Justice Project in Atlanta, Georgia, for contributing to this practice pointer. 47 Garcia v. Audubon, No. 08-1291, 2008 WL 1774584 (E.D. La. Apr. 15, 2008).

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PRACTICE POINTER: U Visas for Victims of Workplace Crime.46 Undocumented immigrants work disproportionately in low-wage industries marked by abuse and exploitation, and experience exceedingly high rates of basic labor law violations. However, immigrants who are victims of crimes in the workplace now have greater access to U visa and U nonimmigrant status protection. In recent years, several labor and civil rights law enforcement agencies, including the Equal Employment Opportunity Commission (EEOC), U.S. Department of Labor (U.S. DOL), National Labor Relations Board (NLRB), the California Department of Fair Employment and Housing (DFEH), California Division of Labor Standards Enforcement (DLSE), Illinois Department of Labor (IDOL) and New York State Department of Labor (NYSDOL) have released guidelines for certification of U visa petitions. Several other state labor agencies have also begun to explore certification of U visas. In addition, judges have certified U visa petitions in cases involving immigrant victims of workplace exploitation.47

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U.S. Department of Labor (U.S. DOL): Under current protocol, the Wage and Hour Division (WHD) is the only department within U.S. DOL authorized to certify U visa petitions, at the exclusion of other divisions that may come into contact with immigrant workers, including the Occupational Safety and Health Administration (OSHA). U.S. DOL’s WHD is responsible for enforcement of federal labor laws related to minimum wage, overtime pay, child labor, employment of people with disabilities, family and medical leave, and employment of temporary and seasonal labor. U.S. DOL’s protocol specifies that WHD will certify U visa petitions in cases involving only five qualifying criminal activities: involuntary servitude, peonage, trafficking, obstruction of justice, and witness tampering. The qualifying criminal activity must arise “in the context of a work environment or an employment relationship,” and the petitioner must show that there is a “related, credible allegation of a violation of a law that WHD enforces.” Although DOL’s protocol does not specify that it will certify cases of fraud in foreign labor contracting, advocates have reported that the DOL has certified for this crime. Requests for U visa certification may be submitted concurrently with a request for a WHD investigation, or may be submitted during or after the close of an investigation. U.S. DOL has designated five regional coordinators to manage requests for U visa certification, coordinate efforts with DOL investigators and other law enforcement agencies, and work with the DOL Solicitor’s office in reviewing requests for certification. The contact list for the U.S. DOL WHD regional U visa coordinators can be found at Appendix I. At the time of this writing (February 2016), the U.S. DOL has certified hundreds of U visa petitions nationwide. Advocates should note that USCIS is likely to issue RFEs for cases involving witness tampering and obstruction of justice, requesting evidence of substantial harm. National Labor Relations Board (NLRB): The NLRB is responsible for enforcing the National Labor Relations Act (NLRA), which bars employers from engaging in unfair labor practices against workers engaged in organizing and collective bargaining, and which applies to all employees regardless of immigration status. Advocates may request that the NLRB certify a U visa petition by sending a request to a regional office, which is responsible for first determining whether the petitioner has been a victim of a qualifying criminal activity related to a meritorious unfair labor practice under investigation by the NLRB. At the time of this writing, the NLRB has certified several U visa requests. California Department of Fair Employment and Housing (DFEH): The DFEH is the California state equivalent of the EEOC, and investigates and prosecutes claims under California anti-discrimination law. DFEH’s U visa protocol specifies that the agency will certify U visa petitions where it is conducting an active investigation into an individual’s California Fair Employment and Housing Act or Ralph Act claim, and where the individual has requested certification from the agency. Cases in private litigation where DFEH has issued a right-to-sue letter are thus ineligible for U visa certification under the current protocol. DFEH certifies for thirteen U visa qualifying crimes: sexual assault, sexual exploitation, abusive sexual contact, rape, trafficking, domestic violence, murder, manslaughter, abduction, extortion, torture, incest, and prostitution. At the time of this writing (February 2016), DFEH has received and certified very few U visa requests.

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California Division of Labor Standards Enforcement (DLSE): The DLSE, or California’s Labor Commissioner, investigates and enforces violations of the California Labor Code. DLSE’s protocol specifies that the agency will certify U visa petitions for qualifying criminal activities that it detects or investigates in the course of its enforcement efforts. In order to request certification, advocates should include written authorization that the DLSE may discuss the petitioner’s case with the advocate, a completed draft Form I-918B, and a cover letter with any other relevant information that would assist the DLSE in evaluating the request. Please see the DLSE’s protocol in Appendix I for more specific mailing instructions.

New York State Department of Labor (NYSDOL): The NYSDOL enforces violations of New York State labor law. In order to certify a U visa petition, the NYSDOL must have jurisdiction to investigate the case, and the allegations, if proven, must make the petitioner a victim of one of the qualifying criminal activities identified in the federal U visa statute. The request for certification must be submitted during, or within a reasonable time after the conclusion of NYSDOL’s investigation or detection of the qualifying crime. When requesting U visa certification from the NYSDOL, advocates should include the NYSDOL claim number and the name of any agency staff involved in the claim, and provide a completed draft Form I-918 Supplement B. At the time of this writing, NYSDOL has received and certified a number of U visa petitions, although most are currently pending for approval with USCIS. USCIS has granted U nonimmigrant status and U visas for several qualifying criminal activities in workplace-related petitions. Employers or co-workers may commit violent crimes, including sexual assault, abusive sexual contact, rape, and felonious assault against workers. In other cases, employers may commit blackmail or extortion by threatening workers in order to withhold wages or induce work. Still other employers may establish coercive labor relations that constitute trafficking, involuntary servitude, and peonage. Employers who recruit workers from outside of the country may commit fraud in foreign labor contracting by making false representations to contracted workers on the conditions of employment or other material aspects of working conditions. Finally, employers may commit obstruction of justice, perjury, or witness tampering by falsifying timesheets and payroll, instructing workers to lie to labor investigators, or committing visa fraud. Advocates should take care to establish a clear nexus between the specific mental or physical harm suffered by the client and the criminal activity itself when establishing that the client suffered substantial abuse, instead of pointing solely to underlying wage/hour or labor violations as the source of the harm as evidence of the abuse. For more information, see NELP and ASISTA’s advocacy letter to USCIS on the issue of substantial abuse in workplace U visa cases. The National Employment Law Project’s (NELP) Immigrant Worker Justice Project has created a number of extremely helpful resources related to workplace-related U visa petitions. They

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Illinois Department of Labor (IDOL): The IDOL enforces violations of Illinois State labor and employment law. In order to certify a U visa petition, the IDOL must have jurisdiction to investigate the case and must be conducting an ongoing investigation. Petitioners may make an oral or written request to IDOL for U visa certification, and should submit a draft Form I-918B and a brief cover letter with the petitioner’s name, charge number, and overview of the case.

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organized a national listserv of U visa advocates around workplace crimes, which tracks workplace-related U visa petitions and coordinates advocacy with relevant administrative agencies, including USCIS. They created a fact sheet entitled, “The U Visa: A Potential Immigration Remedy for Immigrant Workers Facing Labor Abuse” that can be found at Appendix I. And they produced a manual focusing specifically on workplace crimes, entitled “U Visas for Victims of Workplace Crime Practice Manual.”48 For more information, visit: www.nelp.org.

§ 2.7

Victim of a Criminal Activity That Violated the Laws of the United States or Occurred in the United States

To be considered a qualifying criminal activity for U nonimmigrant status, the crime must have violated the laws of the United States or occurred in the United States.49 This includes Indian country,50 military installations,51 and territories and possessions.52 If the crime is one of the statutorily listed crimes but it occurred outside the United States, Indian country, a military installation, territory or possession, it will only be considered a qualifying criminal activity if it violates a federal statute that specifically provides for extraterritorial jurisdiction.53 In such cases, it is not required that the prosecution actually occur—only that the applicant be helpful in the investigation or prosecution.54 Example: Mauro was abducted in Ciudad Juarez, held by members of the local drug cartel for three weeks and suffered substantial mental abuse as a result. He would like to know if he can qualify for the U visa since abduction is one of the crimes listed in the U visa statute. Although abduction is one of the crimes listed in the statute, the crime did not occur in the United States, and Mauro will need certification of his helpfulness in the criminal investigation or prosecution from a law enforcement agency here in the United States.

48

This manual can be found online on NELP’s website at www.nelp.org/page/-/Justice/2014/U-Visas-forVictims-of-Workplace-Crime-Practice-Manual-NELP.pdf?nocdn=1. 49 INA § 101(a)(15)(U)(i)(IV); 8 CFR § 214.14(b)(4). Keep in mind, in immigration law, the term “United States” generally refers to the continental United States, Hawaii, Alaska, Puerto Rico, Guam, the U.S. Virgin Islands and the Commonwealth of the Northern Mariana Islands. INA § 101(a)(38). 50 8 CFR § 214.14(a)(4). 51 Military installations can include any facility, base, camp, post, encampment, station, yard, center, port, aircraft, vehicle or vessel under the jurisdiction of the U.S. Department of Defense, including any leased facility or any other location under military control. 8 CFR § 214.14(a)(6). 52 “Territories and possessions” include American Samoa, Swains Island, Bajo Nuevo (the Petrel Islands), Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa Island, Palmyra Atoll, Serranilla Bank and Wake Atoll. 8 CFR § 214.14(a)(11). 53 8 CFR § 214.14(b)(4). 54 See Preamble at Federal Register, Vol. 72, No. 179, p. 53020 (Sept. 17, 2007).

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Because no local, state or federal law enforcement agency in the United States is able to investigate or prosecute the crime, he will not be eligible for the U visa.

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Contrast Mauro’s case with the example that follows.

Example: Also, although Mauro was not eligible for U nonimmigrant status based on his kidnapping in the example above, there has been at least one case approved with somewhat similar facts based on extortion. In the approved case, Hector, the U.S. citizen brother of Diego, a noncitizen, was kidnapped by narcotraffickers while Diego was visiting the United States. The narcotraffickers called Diego in the United States and demanded the payment of a large ransom in exchange for the release of his brother, Hector. Diego contacted the FBI who monitored subsequent calls. Diego paid the demanded ransom, and Hector was released after being tortured by the narcotraffickers. Hector was able to return to the United States alive, and he also cooperated with the FBI in interviews about what happened to him. § 2.8

Admissible to the United States

Finally, in order to qualify for U nonimmigrant status, U applicants must be admissible.55 Those who are inadmissible or become inadmissible must have the applicable ground of inadmissibility waived.56 The Immigration and Nationality Act (INA) provides an inadmissibility waiver specific to U nonimmigrant status.57 Under this waiver, any ground of inadmissibility may be waived in the public or national interest for U nonimmigrant status applicants, except for the grounds applicable to perpetrators and participants of Nazi persecutions, genocide, acts of torture or extrajudicial killings.58 The interim rule regulating eligibility for U nonimmigrant status states that this discretionary decision will be based on balancing adverse factors showing inadmissibility with the social and humane considerations presented to determine if the grant of the waiver appears to be in the best interests of the United States. For violent or dangerous crimes, DHS will only exercise favorable discretion in U nonimmigrant status cases where extraordinary circumstances are present. Moreover, depending on the nature and severity of the underlying offense/s to be waived, DHS retains the discretion to determine that the mere existence of 55

INA § 214(a)(1); 8 CFR § 214.1(a)(3)(i). INA § 212(a); INA § 212(d)(3)(B). 57 INA § 212(d)(14). 58 INA § 212(d)(14). 56

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Example: Chea was 12 years old when she began receiving tutoring at an American charitable organization located in her village in Cambodia. Soon after going to the organization for tutoring, the organization’s American founder began sexually assaulting Chea and was raping several other girls as well. Although Chea has never been to the United States and the crime occurred in Cambodia, she may qualify for the U visa. Under the PROTECT Act, a U.S. law that makes sexual offenses committed against minors abroad by American citizens punishable in U.S. courts, Chea may be helpful in a criminal investigation or prosecution that is conducted by an American law enforcement agency.

extraordinary circumstances is insufficient. Applications for inadmissibility waivers are discussed in detail in Chapter 4.

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Example: Karen has entered the United States without inspection four times over the past ten years, including two entries after having been in the United States without permission for over a year. One time, she was stopped by Customs and Border Protection and was told to leave. She successfully entered without inspection the next day. Karen is inadmissible for being present in the United States without admission, unlawful entry after a year of unlawful status, is subject to the ten-year bar and the permanent bar, and is possibly inadmissible for having been subjected to expedited removal and having entered without inspection afterwards. Karen will have to apply for a waiver of her immigration violations when she applies for U nonimmigrant status. She will need to show in her waiver application that positive factors outweigh the negative factors. Since none of her inadmissibility factors are criminal in nature, she can likely show her equities with the same evidence that shows she qualifies for U nonimmigrant status. Her victimization, cooperation, and resulting trauma and her need for treatment are all positive equities in this context.

PRACTICE POINTER: U Status and Confidentiality Protections. Applicants for U nonimmigrant status are afforded protections under 8 USC § 1367 that prohibit government employees from making an adverse determination of admissibility or deportability using information provided solely by the perpetrator of the substantial physical or mental abuse and the criminal activity.59 Government employees are also prohibited from using or disclosing any information about such cases in violation of 8 USC § 1367.60 The penalty for such disclosure includes disciplinary action and a civil money penalty of up to $5000 for each violation.61 Officials from the Department of Homeland Security (DHS) and its related branches including Immigration and Customs Enforcement (ICE) and Citizenship and Immigration Services (USCIS) are prohibited from disclosing any information about a U application to anyone, especially a potential abuser or perpetrator in the case.62 Therefore, your client’s U application is not public information that could be obtained by the perpetrator or other person. Furthermore, an adverse determination of a U application, admissibility or deportability cannot be based solely on information provided to the DHS by someone who has battered or abused the applicant or a perpetrator of substantial physical or mental abuse in a criminal activity.63

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8 USC § 1367(a)(1)(E). 8 USC § 1367(a)(2). 61 8 USC § 1367(c). 62 8 USC § 1367(a)(2), (c). This confidentiality protection never ends if the U application is granted; if the U application is denied, and all appeals are exhausted, that information is no longer protected by 8 USC § 1367. 63 Id. See also Torres, John P, Director, Office of Detention and Removal Operations and Forma, Marcy M., Director, Office of Investigations, ICE Memo, (Jan. 22, 2007), reprinted at Appendix J. 60

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Example: Koaki has filed a U application after helping the police to investigate her husband’s criminal domestic abuse of her. Koaki’s husband suspects she might contact USCIS for help, so he also calls them to tell them she has made up the charges against him. The USCIS and other DHS agencies cannot make any adverse determination on Koaki’s case based on information solely provided by her abusive husband.

64 65

INA § 248(b); 8 CFR § 248.2(b). 8 CFR § 248.1(a).

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PRACTICE POINTER: Changing Nonimmigrant Status. Applicants who are already in a nonimmigrant status may change their classification to U nonimmigrant status if they are eligible for the U visa.64 Even nonimmigrant visa holders who would otherwise face bars to changing their status may be able to do so if they are seeking U nonimmigrant status.65 The I-918 application itself is sufficient to do this and once it is approved, the client will be in U nonimmigrant status rather than their prior status. A separate I-539 application for change of status is not necessary in this context.

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CHAPTER 3 U NONIMMIGRANT STATUS PROCESS

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This chapter includes: § 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7 § 3.8

§ 3.1

Overview

An application for U nonimmigrant status is more than just a completed form. An applicant must provide very specific documents to show that she is eligible for U status. Although USCIS accepts any “credible” (believable) evidence, it is still the applicant’s job to prove that she is eligible and deserves to be granted U status. This chapter describes each part of the application and the application process for the crime victim herself, also called the “principal applicant.” As noted in Chapter 2, the principal applicant may also submit applications, on Form I-918 Supplement A, for some immediate family members. Applications for family members are described in detail in Chapter 7.

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§ 3.9 § 3.10 § 3.11 § 3.12 § 3.13 § 3.14 § 3.15 § 3.16 § 3.17 § 3.18 § 3.19 § 3.20 § 3.21 § 3.22

Overview ............................................................................................................ 3-1 Screening for Eligibility ..................................................................................... 3-2 The I-918 Application Form............................................................................... 3-4 Completing Form I-918 ...................................................................................... 3-6 Filing Fees ........................................................................................................ 3-13 Filing Fee Waiver Requests ............................................................................. 3-14 The Law Enforcement Certification Form: Form I-918 Supplement B ........... 3-15 Working with Law Enforcement to Request and Complete the Form I918 Supplement B ............................................................................................ 3-19 Additional Documentation Regarding Victim Helpfulness ............................. 3-25 Victim’s Statement ........................................................................................... 3-26 Documentation of Substantial Physical or Mental Abuse ................................ 3-30 Identification Documentation ........................................................................... 3-30 Accompanying Immigration Application Forms.............................................. 3-31 Assembling and Submitting a U Nonimmigrant Status Application ................ 3-32 Notices from USCIS......................................................................................... 3-33 Requests for More Evidence (RFEs) ................................................................ 3-38 The U Visa Waitlist, Deferred Action and Employment Authorization .......... 3-39 Approvals ......................................................................................................... 3-43 Denials .............................................................................................................. 3-46 Duration and Extension of Status ..................................................................... 3-47 Revocation of U Nonimmigrant Status ............................................................ 3-52 Public Benefits and Other Benefits .................................................................. 3-53

Many advocates describe five main steps for advocates in the U nonimmigrant status application process:     

Screening for eligibility (see § 3.2 below); “Intake”—working with the applicant to see what documents will be needed, and how to get them; Obtaining law enforcement certification of the victim’s helpfulness; Completing the application forms; and Completing the applicant’s statement of what happened in the crime, how she was helpful, and how she has suffered.

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When the application is complete, it is sent to the U.S. Citizenship and Immigration Services Vermont Service Center (VSC). This is the service center that handles all U nonimmigrant cases, regardless of where the applicant resides. It is the only office that will review or adjudicate the application for U nonimmigrant status, and later, the application for adjustment to lawful resident status. There is no in-person interview with USCIS for the U nonimmigrant status application: everything except the biometrics appointment is done through the mail. It is very important, therefore, to provide USCIS with good documentation to show an applicant’s eligibility. § 3.2

Screening for Eligibility

Numerous resources and sample screening sheets have been developed by attorneys and advocates to help determine clients’ potential eligibility for U nonimmigrant status. Attached at Appendix G are sample checklists, intake sheets, scripts, and screening sheets that have already been created by organizations that handle U visa cases. Because U nonimmigrant status is so different from other processes the potential client may have learned about or been involved in (restraining order or custody applications, for example), it is helpful to explain the purpose and requirements for U nonimmigrant status upfront. Spanish language videos viewable at www.vimeo.com/36661182 and www.youtube.com/watch?v=su1DbreXFZo can help with this task. Appendix G also includes a list of steps in the U nonimmigrant status application process. The first step in a U status case is general immigration screening to see if the client is potentially eligible for immigration relief, such as U nonimmigrant status. The second step is U status eligibility screening to determine whether a crime victim is actually eligible to apply for U nonimmigrant status. The third step is taking the case in an intake appointment. Appendix G includes materials to help at each step in this initial process, including: U status screening instructions, model screening forms, sample case acceptance guidelines, a “roadmap” form to identify challenging issues, explanations of the U status requirements and process for potential applicants, intake forms from several legal service organizations, intake appointment outlines, and document gathering checklists. It is also important to know that appointments with potential U applicants may take longer than other clients’ appointments. As victims of crime, U applicants may have suffered trauma, may experience feelings of shame or may be fearful in seeking help, and any of these factors may

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make discussing the eligibility requirements difficult. Therefore, allow extra time for your U applicant client to tell her story and for the relevant details to emerge. Whenever possible, partner with a domestic violence advocate, victim witness advocate, social services agency, or mental health counselor to ensure your client is receiving the most appropriate care. For some clients, it may also make sense for someone other than the immigration advocate to gather much of this information, so your client can minimize the amount of times and people to whom she must tell her story. Furthermore, a domestic violence, victim witness, mental health, or other social service advocate may be better trained in addressing both the particulars of her individual needs as well as a broad range of her social service needs, including more than simply obtaining immigration status. Working in collaboration with others is key to delivering competent service in these cases; however, also keep in mind that many domestic violence organizations are even more overworked and understaffed than some legal service organizations.

a. What was the crime? Was it a U status qualifying crime? b. When was the crime? Some law enforcement agencies will only sign a Form I-918 Supplement B certifying helpfulness for recent crimes. c. Where was the crime? Was it investigated by a law enforcement agency that will not sign I-918 Supplement Bs certifying the victim’s helpfulness? d. Was the immigrant seeking your help a victim of the crime? Remember that witnesses do not normally qualify for U status absent a showing of unusually direct harm. e. Was the immigrant seeking your assistance “helpful” in the investigation or prosecution of the crime (or is she currently helpful or likely to be helpful)? Usually, a police report will include one of the following: 1. If the perpetrator was identified and/or arrested:  a statement that the victim wanted the perpetrator arrested, or that she wanted to “press charges”;  a statement that the victim did not want the perpetrator arrested, or that she did not want to “press charges”; or  no statement from the victim whether she wanted him arrested or not. 2. If the perpetrator was not identified or arrested:  the victim was able to give officers useful information, and did so;  the victim was able to give officers useful information, but did not; or  the victim was not able to give officers information. f. Does the report describe any harm suffered by the immigrant crime victim?

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PRACTICE POINTER: Reading and Analyzing a Police Report for U Eligibility. Ninety percent of what you need to know to decide if someone is eligible for U status is in the police report of the qualifying criminal activity, so it is very hard to do a consultation without one. If a report is not available at all, because the investigation is still open, the victim is a juvenile, or the crime is a homicide in a jurisdiction that does not release homicide police reports, you can still do a screening by asking the victim what happened. It is also helpful in these situations to contact an investigating officer or law enforcement victim advocate to ask questions about the basic eligibility factors. If it is available, review the police report to see what it says regarding the following questions:

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Go over the police report’s main points with the immigrant crime victim. Ask her if there are any mistakes with the police report’s recording of the facts. For example, did the report specifically state that the victim said she did not want the perpetrator arrested, when in truth she stated that she did want him arrested? If so, are there problems with the report that show that the officer was not careful? This question does NOT mean that she had good reasons for not being helpful, or that she now wishes she had been helpful—only that she told police certain information, but that information was recorded incorrectly. You can ask the questions included in “Corrections to Police Report of Crime” found under at Appendix Q. A sample police report marked to indicate the most important factors to analyze is at also found at Appendix Q.

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PRACTICE POINTER: Changing Nonimmigrant Status. Applicants who are already in a nonimmigrant status may change their classification to U nonimmigrant status if they are eligible for the U visa.1 Even nonimmigrant visa holders who would otherwise face bars to changing their status may be able to do so if they are seeking U nonimmigrant status.2 The I-918 application itself is sufficient to do this and once it is approved, the client will be in U nonimmigrant status rather than their prior status. A separate I-539 application for change of status is not necessary in this context.

§ 3.3

The I-918 Application Form

Applicants for U nonimmigrant status must submit a completed Form I-918, “Petition for U Nonimmigrant Status,” with initial evidence and correct fees.3 A sample completed Form I-918 and a model form with explanations for each question are at Appendix K. It is also good practice to include a detailed cover letter with the U nonimmigrant application to provide a road map for USCIS of the evidence you are submitting in support of the applicant’s eligibility. Sample U nonimmigrant application cover letters, including one that includes a Form I-918 Supplement A filing, may be found at Appendix K. The forms and documents required for a U nonimmigrant status application are:  

Form I-918, “Petition for U Nonimmigrant Status” (U nonimmigrant status application), signed by the applicant with an attachment addressing any “yes” answers that are required by Form I-918. Form I-918 Supplement B, “U Nonimmigrant Status Certification” (law enforcement certification of helpfulness), signed with an original signature by a designated law enforcement official within the six months before USCIS receives the application.

1

INA § 248(b); 8 CFR § 248.2(b). 8 CFR § 248.1(a). 3 8 CFR § 214.14(c)(1). 2

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       

Each of these documents, as well as additional optional documentation, is described in this and the following chapters.

4

Note that many representatives do not file G-28s for derivatives abroad, because they are not representing those family members on any immigration forms yet since Form 918 Supplement A is submitted by the principal applicant. Many derivatives abroad may not have inadmissibility issues. 5 USCIS has indicated that if derivatives only file one Form I-765, it will be interpreted as an application for work authorization while the derivative is on the waitlist in deferred action (whether it is marked (c)(14) or (a)(20)), and the derivative will then need to file another Form I-765 if she is approved for U nonimmigrant status. See Asista, ICWC, AILA, Notes and Practice Pointers, Vermont Service Center Stakeholder Event, (Sept. 18, 2015), available at www.asistahelp.org/documents/news/FRFinal_VSC_Note s__Practice_Pointer_16FF2859D2396.pdf.

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Form I-192, “Application for Advance Permission to Enter as Non-Immigrant” (application for waiver of inadmissibility ground), if the applicant is inadmissible, plus supporting documentation (see Chapter 4 for more information). Filing fee of $585 or Request for Fee Waiver for Form I-192. Form G-28, “Notice of Entry of Appearance of Attorney or Accredited Representative,” if the applicant is represented, signed by the applicant and her attorney/representative. Form I-765, “Application for Employment Authorization Document,” in category (c)(14) (This is to obtain work authorization while on the waitlist, see § 3.17). Filing fee of $380 or Request for Fee Waiver for Form I-765. Applicant’s signed statement (this statement must address the requirements for the I-918 and may also address the need for the I-192 waiver), with a certified English language translation if needed. A copy of the identity page of applicant’s valid passport (valid for at least six months after date of filing) unless you request that this requirement be waived (see § 3.12 for more information). If the applicant will file applications on behalf of qualifying family members, the application packet must also include for each family member (see Chapter 7 for more information on including derivatives): o Form G-28;4 o Form I-918 Supplement A, “Petition for Qualifying Family Members of U-1 Recipient”; o Form I-192 application for inadmissibility waiver if there are inadmissibility issues; o Filing fee of $585 or Request for Fee Waiver for Form I-192. o Identity documents, including documents that establish the relative’s relationship to the principal applicant, with a certified English language translation if needed; o Form I-765 application for work authorization while on the waitlist in category (c)(14), with two passport-style photos if the derivative is in the United States; o Filing fee of $380 or Request for Fee Waiver for the (c)(14) Form I-765; o Form I-765 application for work authorization in category (a)(20), with two passportstyle photos if the derivative is in the United States;5 and o Filing fee of $380 or Request for Fee Waiver for the (a)(20) Form I-765.

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U Visa Manual February 2016

Chapter 3

PRACTICE POINTER: Protecting a U Applicant from Removal during the U Application Process. In June, 2011, the Director of the U.S. Immigration and Customs Enforcement (“ICE”) issued a memorandum to ICE officers instructing them to determine what impact deportation would have on an applicant’s application for U status, her ability to assist law enforcement, and her ability to recover from crime before they try to deport (remove) that crime victim from the United States. On November 20, 2014, the administration restructured its enforcement priorities and issued new prosecutorial discretion guidelines based on these priorities, still directing DHS personnel to exercise prosecutorial discretion in low priority cases (Johnson Memo).6 The Johnson Memo sets forth a list of factors to be considered in exercising prosecutorial discretion, including status as a victim, witness, or plaintiff in civil or criminal proceedings.7 Advocates should cite to the Johnson Memo’s reference to crime victims in advocating for U applicants to be released from custody if they are picked up. Some legal services providers give applicants a copy of that memorandum, and a cover letter that states that the applicant is eligible for U nonimmigrant status so that the applicant can show these materials to ICE if she is ever apprehended. The Johnson memo and a practice advisory about prosecutorial discretion can be found at Appendix UU. More discussion of this can be found in Chapter 8.

§ 3.4

Completing Form I-918

Form I-918 is the form created by USCIS to apply for U nonimmigrant status. It can be found on the USCIS website; please check the website to make sure you have the latest version, as the versions do change.8 Form I-918 may appear fairly straightforward—and much of it is, especially if you read the detailed instructions that accompany it on the USCIS website. Remind your client, however, that it is a legal form signed under oath used to demonstrate her eligibility for nonimmigrant status. Its questions are intended to identify factors that could make her ineligible or inadmissible. Many of these questions are technical and can be confusing. Copies of Form I918 in English and Spanish with detailed explanations of each complex question are included at Appendix K. Some of the most common questions are addressed below. Do not leave questions unanswered on the form—instead answer “None” or “Not applicable” as relevant. “Home Address.” Applicants are technically required to list their actual home address on the form, unless the address is not safe from the abuser, or the applicant is living in a shelter or another temporary safe place. Some applicants are concerned about providing a home address to USCIS. Although USCIS has informed advocates that it will not share information from a U nonimmigrant status application with ICE unless it is essential to public safety, that guarantee is not in the statute or regulations. While some applicants decide to list their home address on 6

Jeh Charles Johnson, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (Nov. 20, 2014) [hereinafter “Johnson Memo”]. 7 Johnson Memo, at 6. 8 At the time of this manual’s writing (February 2016), USCIS had circulated a new Form I-918 for comment. For the latest version of the form, always check the USCIS website, at www.uscis.gov/i-918.

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Form I-918, those who do not have not had their applications rejected for that reason. If the applicant has an attorney with a G-28 on file, USCIS mails all notices to the attorney’s address listed on the G-28.

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“Safe Mailing Address.” Applicants who cannot or should not receive mail at their home address may include an alternative address in the section entitled “Safe Mailing Address.” Many legal representatives or other advocates include the address of their organization’s office as the “safe” address. Make sure if you have a client who moves and/or changes addresses at any time after providing the addresses above to USCIS, that she files a Form AR-11 change of address by emailing it to the VAWA hotline at [email protected].

PRACTICE POINTER: Applicants Who Already Have an A#. Once you have your client’s A#, you should call the Executive Office of Immigration Review (EOIR) Hotline (800-898-7180) to see if your client has a pending removal hearing or prior removal order. This toll-free phone number may be used to obtain automated basic case information for immigrants in removal proceedings. If your client is or was in removal proceedings, this hotline will provide information about the next scheduled hearing, the name of the judge, case processing information, and the result of any previous proceedings or appeals for a particular individual.

Social Security Number. It is important on this form to include only valid social security numbers that the applicant obtained from the Social Security Administration and used legally. For example, if the applicant used someone else’s social security number or made up a social security number to work, do not include it on the application. Part 2, Generally. Instructions to this part state that explanations and supporting documentation must be provided for each answer. Many applicants provide only supporting documentation of U status eligibility (described throughout this chapter), and not specific explanations, in response

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A# (Alien Registration Number). The Department of Homeland Security (DHS) gives most noncitizens it comes into contact with a unique number known as an A#. If this is the applicant’s first contact with immigration authorities, she likely does not have an “A#.” If so, write “None” in the A# fields on the forms. However, if she does (perhaps from a prior filed petition, as a result of being granted U interim relief, or due to prior removal proceedings or an expedited removal at the border), then be sure to include the A# here. If your client has an A# and you do not list it, she may be given another one. But it is best for the applicant to have only one A# to avoid confusion in the future. If your agency obtains FBI background checks or FOIA requests for immigration history for your clients, you may be able to find the A# assigned during an immigration enforcement process on that report. Some applicants who know that they have had contact with DHS (or its predecessor agency, INS) are unable to obtain documentation that may have an A#. These applicants should write “unknown” in the Alien Number field.

to this instruction. USCIS has not objected to this practice. Note, however, that some questions in Part 3 do specifically require explanations as attachments to the I-918 form. Part 2, Question 7 is very important for those applicants who want to receive an employment authorization document (also known as an EAD or a work permit) when their U nonimmigrant status is approved. By checking “Yes” to this box, the applicant will automatically receive an EAD upon approval of their Form I-918. You do not need to file a separate Form I-765 application to obtain an EAD for the principal U nonimmigrant applicant’s U status grant.9 However, you will need to file Form I-765 if the applicant wishes to have work authorization while the applicant is in deferred action and waiting for a grant of U nonimmigrant status. For more information about obtaining employment authorization, see § 3.14 and § 3.17 later in this chapter.

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Part 2, Question 8. If the applicant is currently in removal proceedings or was previously in removal, deportation, exclusion, or expedited removal proceedings, check “Yes” on question 8. There are boxes to provide information about prior removal, deportation, or exclusion orders (the latter two proceedings were used before 1997). See Chapter 8 of this manual for more details on representing clients who are in removal proceedings.

PRACTICE POINTER: Definitions of Terms Used in Part 2, Question 8 on Form I-918 

Removal is what deportation has been called since 1996. Generally, a removal can only be ordered by an immigration judge after the non-citizen has had a chance to make her case. However, a provision of the INA called “expedited removal” gives Customs and Border Protection (also known as the border patrol or CBP) officials the power to remove non-citizens who have been in the United States for less than two years, and who are fewer than 100 miles from an international border. Please see the Practice Pointer under § 4.4 to determine whether an applicant who had to leave the United States may have been expeditiously removed.

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Exclusion and deportation were the processes of preventing someone from coming to the United States, or making someone leave the United States before 1996.

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Recission is a process to take away a non-citizen’s permanent resident status if that person already had a green card.

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Judicial date is for those who have a case in immigration court going on right now.

Part 3 begins on page 3 of Form I-918. It is basically an assessment of the applicant’s admissibility for U nonimmigrant status, in the form of 62 yes/no questions. The easiest cases 9

U derivatives will need to file a separate Form I-765 to obtain work authorization. See Chapter 7 for more details.

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will be those in which every question in this section can honestly and accurately be answered “No.” However, even those who check “No” to every question in this section may have triggered a ground of inadmissibility and therefore require a waiver to obtain U nonimmigrant status. This is because certain relatively common grounds of inadmissibility are not covered in Part 3. They include the ground of inadmissibility at INA § 212(a)(6)(A) for applicants who entered the United States without permission (commonly referred to as entering without inspection or EWI), the ground of inadmissibility at INA § 212(a)(6)(C)(ii) for applicants who have made a false claim to U.S. citizenship, and potentially others. All applicants who trigger a ground of inadmissibility will need to request a waiver of that ground by filing a Form I-192, “Application for Advance Permission to Enter as a Non-Immigrant.” Please see Chapter 4 for information and practice pointers on putting together an inadmissibility waiver request as well as practice pointers on how to address possible inadmissibility issues on this section of the Form I-918.

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Most of the questions in Part 3 are straightforward, but some are vague or use complex concepts. Questions that commonly confuse applicants are explained below. Question 1 asks for information about interactions with law enforcement. Some useful definitions include: 





The annotated I-918 application forms at Appendix K include samples of explanations of “yes” answers to some of these questions in Part 3. 10

For more information on what is a “conviction” for immigration purposes, see ILRC, Definition of Conviction, available at www.ilrc.org/files/documents/n.2-definition_of_conviction.pdf.

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

Being “charged” for a crime means the applicant received a notice to go to criminal (not immigration) court. Being “convicted” means that a judge or jury decided the applicant was guilty, or she admitted guilt or entered a special kind of plea called “nolo contendere” that acknowledges that she did something bad but has not been found guilty. An applicant should answer this question “yes” even if a judge “expunged” or erased the conviction from her record. An expunged conviction or a plea withdrawn after completion of diversion or other program is still a conviction for almost all immigration purposes, including U nonimmigrant status. Denying it will make USCIS think the applicant is lying. A conviction vacated for cause, however, is not a conviction. Importantly, no juvenile delinquency adjudication is a conviction for immigration purposes.10 An alternative sentence is fairly rare. Some states have provisions that permit a person to participate in a rehabilitation program without a conviction through something that is often called diversion or deferred entry of judgment. Applicants who may have gotten an alternative sentence should check with their criminal defense attorney to find out exactly what occurred. A conditional sentence means that someone convicted of a crime is given a long sentence, but told that she can go free so long as she does not do anything wrong during that time. If she does something to violate the conditions on her sentence, she has to go to jail for the whole sentence period. It is also often referred to as probation.

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PRACTICE POINTER: Providing Required Information for “Yes” Answers to Part 3, Question 1a-i. USCIS asks for details about any detention by any law enforcement agency, including traffic stops and border detentions. See an example in the box below. Why were you Date of arrest, arrested, cited detention, charges detained or charged? (mm/dd/yyyy)

Where were you Outcome or arrested, detained or disposition charged? (City, state, country)

Attempted unlawful entry to U.S.

03/09/04

San Ysidro, California, Returned to Mexico USA

Driving without a license

06/30/08

Richmond, California, Paid fine USA

Petty theft

07/15/10

San Leandro, California, USA

Convicted, paid fine. See explanation in declaration in support of I-192 application

Although Form I-918 does not request a full explanation as an attachment, many practitioners provide one so that the adjudicator can immediately read about the issue as soon as she learns about it, and in the way that the applicant and her advocate have chosen to describe it. Other practitioners instead provide full explanations in a declaration in support of the waiver application on Form I-192. Other practitioners provide this information in both places. Whatever form the explanation takes, and wherever in the application it is placed, USCIS has stated that it wants to hear, in the applicant’s own words, whether and how she has rehabilitated. One effective way for an applicant to show rehabilitation is by acknowledging responsibility, expressing regret, and giving tangible details of rehabilitation (also called “the 3 Rs”). An explanation may follow the following format. However, it is essential that the explanation not be “boilerplate.” It must be in the applicant’s own words. Example: On [date], in [place] I was stopped by the [police/immigration officer] [what arrest was for]. I was with friends and they convinced me that it would be fun and easy to take something. They said they took little things all the time, and it was OK because WalMart is such a rich store. I took a small purse from a shelf and put it under my jacket. I knew it was wrong and that it didn’t matter what kind of store Wal-Mart was, but I made a stupid decision. A security guard came up to us and asked me to open my jacket. He took the purse from me and told me to go into the security office with him. He called the police and they came and took a report and told me I would get a notice to go to court. I got a notice to go to court on October 15. I will go to court and I will admit that I did it and I will take whatever punishment they give me. Like I said before, I knew it was wrong and stupid, but I cared more about looking cool than about the values of honesty and responsibility I have always cared about. Although it was a terrible experience, I think being arrested made me realize how I have to take more responsibility for my own

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decisions. I don’t hang around with those girls anymore and I have even told some friends what happened so they won’t do anything so stupid.

Part 3 also covers many other topics related to an applicant’s inadmissibility. The following questions are ones that applicants often have the most questions about: Question 2. If an applicant answers “yes” to having received public benefits, there is no penalty. (See discussion of public benefits in § 3.22), and no explanation is required). Question 3c. If the applicant paid for someone to bring any undocumented immigrant—even her spouse or child—to the United States illegally, she needs to answer “yes” to the question about alien smuggling. She will then need to ask to have this ground of inadmissibility waived on Form I-192, and explain who she helped and why in her declaration. Questions 9 through 13. Each of these questions requires explanations attached to the I-918 for any “yes” answers. Question 14. Most of the immigration terms used in this section are defined in the Practice Pointer, above. The remaining term, Voluntary Departure, is a way to leave the United States under an official order, but without the immigration consequences of a formal removal. It is used 11

AB 899, codified in Cal. Welf. & Inst. Code § 831.

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PRACTICE POINTER: Example -- California’s Juvenile Confidentiality Laws. If you are working with juvenile clients, or clients with delinquency records, be aware that some states have laws protecting juvenile records from disclosure. In California, pursuant to the Welfare and Institutions Code Sections 827 and 828, juvenile court information and files can be shared only with certain listed individuals; these include, for example, agencies working within the juvenile and child welfare systems, the minor, and the minor’s parents. There is also an exception for attorneys and judges, but only for those attorneys or judges that are actively involved in juvenile proceedings involving the minor. Notably, there is no exception for immigration attorneys or even for the federal government, and in fact California passed a law in 201511 that clarified that juvenile court files and information cannot be shared with immigration officials absent prior juvenile court approval. Under these laws, even if the juvenile or parent obtains the records lawfully, they will violate the law if they then disseminate the records to an unauthorized party, such as USCIS, without first obtaining court permission to do so. Immigration practitioners representing individuals who have a delinquency history must be careful to abide by these laws when submitting immigration applications to USCIS or the immigration court. For additional guidance on California’s confidentiality laws, visit ILRC’s “Remedies for Immigrant Children & Youth” page, found at www.ilrc.org/info-on-immigration-law/remedies-for-immigrant-childrenand-youth.

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in two procedures. An applicant who appeared in immigration court may have received Voluntary Departure as an order to leave the United States within a defined, short period of time, at her own expense. If an immigrant who is granted Voluntary Departure by an immigration judge does not leave the United States within the time permitted, it turns into a removal order. The second way in which Voluntary Departure is used is as an option sometimes offered by ICE to removable immigrants whom ICE has detained. Although removable immigrants have the right to a hearing in immigration court, immigrants may face long detentions while their immigration court cases are pending, and may choose to leave the United States. Note that sometimes very similarseeming processes are in fact expedited removals. See Appendix DD for more information on the differences between voluntary departure orders, voluntary returns, and expedited removals.

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Question 14e asks whether the applicant has ever been denied a visa or admission to the United States. Applicants who were detained at the border and forced to leave the United States should mark this answer “yes.” Applicants who applied for, and were denied, a nonimmigrant or immigrant visa, should mark “yes” and also attach an explanation. Question 16. Applicants who presented false documents or someone else’s documents in order to enter the United States need to say “yes” to this question. Additionally, it is not uncommon for immigrants who entered the United States with visas (for example, a tourist visa) to misstate the truth (that is, lie) when they (1) apply for the visa at a U.S. consulate, or (2) when they enter the United States at a border or airport point of entry. An outright lie, however, is different than failing to volunteer information that was not asked. For example, if an official at the airport asks John what he plans to do in the United States, and John answers “I plan to visit Disneyland,” John is not lying even if he also plans to remain in the United States. However, if the immigration official asks John if he still has a job in his home country and John responds with a lie, that is an intentional misrepresentation of a material fact, and this answer must be marked “yes.” An explanation is not required for this part of the I-918 form, but if an applicant marks “yes” to this question, one should be provided in the declaration in support of the I-192 application, in addition to a request for a waiver for this inadmissibility factor. Question 20. Polygamy is a belief or practice that permits marriage to more than one spouse. It is different than bigamy, which is generally inadvertent (one of the spouses failed to properly divorce a former spouse before a new marriage) or deceitful (one spouse is hiding the fact that she is married to another person). Question 21. A “stowaway” is a person who hides aboard a vehicle, ship, or aircraft in order to gain free passage. An immigrant who hides in a vehicle to avoid being questioned or detained by immigration officials is not a stowaway. Question 22. The list of communicable diseases includes: active tuberculosis, infectious syphilis, gonorrhea, infectious leprosy, chancroid, lymphogranuloma venereum, and granuloma inguinale. HIV has been removed from this list. Part 4: Information about Spouse and/or Children. It is important that the applicant list her spouse and any children, even if they are not currently being petitioned as derivative family

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members. Although USCIS is primarily concerned about children who may seek lawful status through the U status applicant, it still wants all children listed here. This includes children who are and are not living with the applicant as well as:        

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Adult children; Minor children; Children living in the United States; Children living outside the United States; Step-children; All biological children, whether or not born in wedlock; Deceased children; and Children that have been adopted through a formal adoption process.

If the applicant does not know an answer—like where a family member is now, write “unknown” in that box.

Once you have filed the Form I-918 and supporting documentation, you will receive a set of receipt notices from USCIS that you should include in your client’s file. A sample receipt notice is at Appendix K. This does not mean that your client’s case has been reviewed or approved yet—only proof that it has been received by USCIS. In some states, such as California, your client may be able to access public benefits with the receipt notices.

PRACTICE POINTER: Reviewing the Completed Form. Sometimes advocates make small but important mistakes when completing U nonimmigrant status forms. Make sure to go over the completed forms and review them in their entirety with your client one last time before submission so that she can catch mistakes, including misspellings of names, mistyped dates of birth, and misunderstandings about “yes” and “no” answers. If your client is proficient in English, she may be able to do this by herself. Otherwise, you will have to review it with her. Pay special attention to the spelling of the applicant’s name, her date of birth, and her A number.

§ 3.5

Filing Fees

There is no filing fee for the U nonimmigrant status application for principal applicants or for derivative family members.12 No one is required to pay for the application, regardless of income. 12

See Preamble at Federal Register, Vol. 72, No. 187, p. 54813 (Sept. 27, 2007).

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If the applicant’s child later wants to immigrate to the United States, she may be able to under a later-filed derivative application or through a petitioning process when the principal U applicant seeks to adjust. Please see Chapter 7 for more information about these processes. It will be easier for the applicant to assist those family members who are initially listed on the Form I-918 application.

However, many of the related forms do carry filing fees (see § 3.6 on fee waivers). These include Form I-192 to waive inadmissibility grounds for principal and derivative applicants and Form I765 to obtain employment authorization for derivative family members, and for both principals and derivatives seeking to work while they have deferred action. When your clients apply for lawful resident status (a green card) after three years in U nonimmigrant status, they will have to pay a fee or obtain a fee waiver for the Form I-485 for Adjustment of Status and for the related biometrics fee. As of this manual’s writing (February 2016), the filing fee for Form I-192 is $585, and Form I-765 is $380.13 Remember that principal and derivative applicants are required to pay the fees. For example, the combined fees for a principal applicant with two derivatives is $585 for I-192s for each applicant and $380 for each I-765 for each derivative applicant for a total of $2,515. However, as described in the next section, USCIS has a simple and generous process for requesting waivers of the filing fees.

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§ 3.6

Filing Fee Waiver Requests

The filing fee for any of the USCIS forms associated with a U visa application may be waived for low income applicants.14 An applicant may file one fee waiver request for all forms that are filed together or may submit a separate request for each fee she wants waived. Both approaches seem to work, but a copy attached to each form may be the safest approach to avoid a request for the fee. Moreover, one fee waiver application can be filed for the principal applicant and any derivative beneficiaries if they share income and expenses. Any subsequently filed forms will need to include an additional fee waiver request. The fee waiver should be based on recent financial information and be signed no more than three months before the underlying application is submitted to USCIS, or it may be rejected. As of this manual’s writing (February 2016), USCIS accepts a very simple fee waiver request with minimal information about income, along with a statement that the applicant cannot pay the fee, and no supporting documentation. In fact, some organizations just include a sentence in the cover letter stating that the applicant is low income and requesting a fee waiver. Other practitioners use Form I-912, which is a general USCIS fee waiver application. Both types of fee waiver requests are accepted by the VSC VAWA/U Unit at this point. Copies of sample simple fee waiver requests can be found at Appendix L. U status practitioners report that USCIS routinely approves fee waiver applications for applicants with incomes less than 200% of the federal poverty line. To ensure a filing fee waiver request receives proper consideration, it can be helpful to write in bold letters and highlight “Fee Waiver Requested” on the top your cover letter and any form for which you are requesting a fee waiver. Some advocates are concerned that a request for a fee waiver may delay the adjudication of an immigration form, as the form will not be considered properly filed until its fee has been paid or waived. There is no evidence that a fee waiver request delays acceptance of a filing at the VSC VAWA/U Unit. However, if an advocate is concerned that an applicant’s income may be too 13

USCIS has the current fees for all forms on its website at www.uscis.gov. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 5044 (TVPRA 2008), sec. 201(c)(7). 14

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high, and the applicant does not have time to wait to see if the fee waiver is accepted (such as if the certification is about to expire or a child is about to “age out”), paying the fee may be the best approach.

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PRACTICE POINTER: Staying Up to Date on Forms, Filing Fees, and Procedures. Forms, filing amounts, and procedures change rather frequently. If you submit a filing fee incorrectly, submit the wrong filing fee amount, or use an outdated form, the applicant’s immigration application may be rejected, and will have to be resubmitted with the proper forms and fees. Most immigration software programs are not able to issue timely warnings of fee or form changes. The best way to check if filing fee amounts, procedures, or form versions have changed is to go to the “Forms” page on the USCIS website at www.uscis.gov. Search for the form you are submitting and check to see the associated fee amount and the current form version. Currently, the process to submit a filing fee is to attach it to the form as a check or money order payable to “U.S. Department of Homeland Security”—not “USDHS” or “DHS.” The check or money order must be from a U.S. bank or financial institution and payable in U.S. currency.

The Law Enforcement Certification Form: Form I-918 Supplement B

Certification of a U applicant’s helpfulness must be submitted on Form I-918 Supplement B, “U Nonimmigrant Status Certification. This law enforcement certification is essential to the U nonimmigrant status application and is required by statute.15 Without the law enforcement certification, an application for U nonimmigrant status cannot be granted. Please see § 3.8 for guidance about working with law enforcement to obtain I-918 Supplement Bs in general, and in specific cases. The I-918 Supplement B certification addresses almost all of the requirements for U nonimmigrant status:     

The applicant is a victim of a qualifying criminal activity; The applicant possesses information concerning the qualifying criminal activity of which she was a victim; The applicant has been, is being, or is likely to be helpful to a certifying agency; The criminal activity is qualifying and occurred in the United States or violated a U.S. federal law; and The applicant suffered harm (to the extent the law enforcement official is aware).

However, the I-918 Supplement B does not, by itself, prove eligibility. Applicants must still submit evidence demonstrating that they meet each U nonimmigrant status requirement. 15

INA § 214(p)(1).

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§ 3.7

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Federal regulations outline who can sign a certification for U nonimmigrant status.16 The certification must come from a federal, state, or local law enforcement agency, prosecutor, or criminal court that detected, investigated, is investigating, prosecuted or is prosecuting the criminal activity.17 Child Protective Services, the Equal Employment Opportunity Commission (EEOC),18 Department of Labor,19 California Department of Fair Employment and Housing (DFEH),20 and others may also qualify as a certifying agency if they have criminal investigative jurisdiction in their respective area of expertise.21 In some cases, these investigative duties may refer to the detection of qualifying criminal activity, instead of the prosecution, which would still appear to qualify under the regulations.22 See Appendix I for procedures related to U certifications by EEOC, U.S. DOL, California DFEH, New York State Department of Labor, and the National Labor Relations Board. According to federal regulations, the Form I-918 Supplement B certification must be signed by the head of the certifying agency or an official with supervisory authority who is designated by the head of the agency.23 There is no specific form or letter from the law enforcement agency that must be included to indicate a designated staff member’s authority to sign the Form I-918 Supplement B. USCIS will generally rely on the agency signature as proof of meeting this requirement.24 However, USCIS occasionally issues a Request for Evidence to an applicant to provide a letter from the head of the certifying agency confirming the identity and authority of the signing official. In practice, as of this manual’s writing (February 2016), USCIS usually accepts a letter on letterhead from the head of the law enforcement unit stating that the signor is a designated U certifier in response to such a request. Despite the regulations, USCIS does not typically require that there be proof that the signor is a supervisor. The I-918 petition for U nonimmigrant status must be filed (that is, received by USCIS) within six months of the Supplement B being signed by the certifying official.25 Ask the law enforcement official to sign the Form I-918 Supplement B in blue ink. This helps USCIS 16

8 CFR § 214.14(a)(2). INA § 101(a)(15)(U)(i)(III); 8 CFR § 214.14(a)(2). 18 For more information on the EEOC protocol and procedure for handling requests for U certification, see Appendix I. 19 On March 15, 2010, the Department of Labor announced it would begin exercising its authority to certify applications for U nonimmigrant status. See Appendix I for DOL announcement. 20 See Appendix I for California DFEH directive. 21 8 CFR § 214.14(a)(2). Sometimes these agencies conduct criminal investigations, and sometimes they do not. For example, some state or county child protective services agencies conduct criminal investigations while others do not. 22 8 CFR § 214.14(a)(5). 23 8 CFR § 214.14(a)(3). 24 See DHS, U Visa Law Enforcement Certification Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, p.10, available at www.dhs.gov/xlibrary/assets/dhs_u_visa_certification_guide.pdf; U Visa Question & Answer Session with DHS Officials, National Network to End Violence Against Women national conference, Lexington, KY (Nov. 14, 2007). 25 Applicants who were previously granted U interim relief were allowed to submit their old law enforcement certifications if they filed the I-918 before April 14, 2008. 17

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ensure that the form you are submitting is an original—which is an important requirement and can result in a request for evidence if USCIS thinks the signature is a copy.

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PRACTICE POINTER: If the I-918 Supplement B Is More than 6 Months Old. If your client has a law enforcement certification that is more than 6 months old when she wants to file a U nonimmigrant application, a new certification (or a new signature and date on the expired certification) must be obtained. A sample request to a law enforcement agency for an I-918 Supplement B can be found at Appendix Q.

Part 3. In this section, you should affirmatively explain the qualifying criminal activity in the narrative sections of the I-918 Supplement B form, but only to the extent that the certifying officer would actually know personally or from information in the agency’s records. For example: “On June 15, 2011, Bob Jones assaulted Mary Smith, punched her three times, pushed her down, and pulled her hair. Ms. Smith called 911 and Bob Jones was arrested.” The most important factor is that the certifying official has confidence that her answer is correct to the best of her knowledge. Part 4. The form states that questions 2 and 3 require an attached explanation, but really there is space in the next section of the form. Question 3 is oddly phrased, but most advocates mark “yes” unless there are unusual circumstances. USCIS has stated that it knows that the language is confusing, and that neither a yes nor a no answer will trigger any negative finding. At the time of this manual’s writing, USCIS had circulated a revised form I-918 Supplement B for comment that clarified this question, so there may be a newly released form soon with new language; please check the USCIS website to ensure that you are using the latest version of the form.

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Completing the I-918 Supplement B. Practices regarding how to approach law enforcement agencies for a signature on the I-918 Supplement B will often vary by state, and even by county; some states, such as California, have state law and guidance outlining the duties of potential certifiers. See Practice Pointer on SB 674 below. Some law enforcement agencies prefer to complete the form themselves. Others prefer trusted nonprofits or attorneys to complete the form with information contained in the law enforcement agency’s records. Sample completed Forms I918 Supplement B can be found at Appendix O. Explanations of selected parts of the form are included below. Because the vast majority of law enforcement agencies do not receive additional funding for the time they spend reviewing U certification requests, it is important to make their job as easy as possible; in light of this, a best practice may be to provide a completed certification as well as a blank one if you do not know the preference of a given law enforcement agency. Also, always include a copy of the police report unless you are unable to obtain it. If you cannot obtain the police report, such as because the victim was a minor, explain that fact in your cover letter.

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PRACTICE POINTER: Law Enforcement Certification Timing Considerations Where the Perpetrator Is in Ongoing Criminal Proceedings. If the criminal investigation or prosecution is ongoing, it may be a good time to ask for a certification because the relevant law enforcement staff are more likely to be available and knowledgeable about the case, and have an interest in seeing the victim obtain protection and independence. Moreover, the life-changing benefits of U status should normally not be delayed without a good reason. However, depending on the case, some applicants may want to postpone asking for a certification until the prosecution is over. One issue to consider in deciding upon the timing of the request for the certification and the submission of the application is the possibility that the prosecutor in the criminal case may be required to disclose materials you submit to her in order to comply with her constitutional obligations. Often called “Brady disclosure” after a seminal Supreme Court case,26 the prosecutor is required to turn over any material that is exculpatory or could be used for impeachment to the defendant. This can include statements about or statements by a witness that demonstrate an ulterior motive for testifying. If you submit a certification request before or during a prosecution, the district attorney may turn over your request, or any supporting materials you submitted, to the defense if she feels that those documents contain exculpatory material.27 Best practices is thus to submit only what is absolutely necessary to obtain a certification (often times a cover letter, the I-918 Supplement B, and the police report), and not to submit any extra documents in your certification request that might have to be disclosed, such as a declaration from the victim, a copy of the U nonimmigrant status application, or other evidence about the crime. Once the prosecution has disclosed this material to the defense, the defense may use it to cross-examine your client. In addition to the possibility that the prosecutor might have to disclose part or all of the certification request you submit, the defense may also seek more information from you directly. The defense may subpoena your client’s U nonimmigrant status application or cross-examine her intentions in applying. Criminal defendants and their attorneys sometimes use this approach in order to imply to the jury that the U applicant had an ulterior motive in reporting the crime or cooperating with the police; in other words, the defense may want to imply that your client is exaggerating or fabricating the allegations in order to obtain legal status. A model motion to quash a subpoena and guidance for practitioners about preventing and responding to subpoenas is at Appendix N.28 Some practitioners believe that filing motions to quash, and appearing in court to defend them, may make criminal defense attorneys decide that 26

Brady v. Maryland, 373 U.S 83 (1963). The DHS U visa rule states that “DHS may have an obligation to provide portions of petitions for U nonimmigrant status to federal prosecutors for disclosure to defendants in pending criminal proceedings. This obligation stems from constitutional requirements that pertain to the government’s duty to disclose information, including exculpatory evidence or impeachment material, to defendants. See U.S. Const. amend. V & VI; Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972).” 72 Fed. Reg. 53027 (Sept. 17, 2007). 28 For more information on responding to subpoenas, you can order a recorded webinar on this topic at www.ilrc.org/trainings-webinars/recorded-webinars. 27

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the burden of defending subpoenas may outweigh the benefits of issuing them. They may also provide opportunities to educate the judge about U nonimmigrant status and the particular vulnerability of immigrant crime victims. Furthermore, motions to quash may create an incentive for defense attorneys to negotiate with the U status applicant’s advocate about how much really has to be turned over.

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However, motions to quash may not be successful. Because of this, it is important to take additional steps to protect your client’s privacy. Ensure you and your client maintain confidentiality when discussing your client’s U visa application. Have a conversation with your client to make sure she understands who she can talk to and about what. Carefully label your files and documents so that in responding to a subpoena you can show the judge that certain files are confidential and should not be turned over to the defense. These strategies will not defeat a subpoena, but they may help you convince the judge that access to these files should be limited.

§ 3.8

Working with Law Enforcement to Request and Complete the Form I-918 Supplement B29

Although U applicants are required to submit a Form I-918 Supplement B certification with the U nonimmigrant status application, law enforcement agencies are not mandated or required to complete or sign the form on behalf of victims (unless otherwise instructed by state law, see Practice Pointer on California Law SB 674 below) even if they are assisting in the investigation and/or prosecution of the case. Some agencies or individuals may be resistant to certifying victim helpfulness. In December of 2011, the Department of Homeland Security issued detailed guidance to law enforcement agencies that may convince many agencies that they can and even should certify helpfulness for U nonimmigrant status applications. Nevertheless, there are many different reasons that may contribute to the law enforcement agency’s resistance to sign a certification, including: the law enforcement agency’s lack of understanding of the certification 29

Much of this material is summarized from two excellent articles: Susan Bowyer, Working with Law Enforcement to Maximize Benefits of U Visas to Victims and the Community: A Case Study of Work in Oakland, American Immigration Attorneys Association (AILA) 21st Annual California Chapters Conference Handbook (2008); Gail Pendleton, Winning U Visas: Getting the Law Enforcement Certification, Lexis-Nexis Expert Commentaries (Feb. 2008).

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If an applicant is cooperating against the perpetrator in an ongoing prosecution and is concerned about the possibility of the U nonimmigrant status certification request or application getting in the hands of the perpetrator, she can wait to ask for a certification request until the prosecution has ended. Waiting will delay her immigration case, but it will not affect her eligibility. An investigation or prosecution does not have to be ongoing in order for law enforcement to certify that the applicant was, is, or is likely to be helpful in the investigation or prosecution. Also there is no deadline for certification regarding the date of the qualifying crime. Any qualifying crime can be certified regardless of how long ago it occurred. The Department of Homeland Security has issued guidance to law enforcement agencies clarifying this important standard, which can be found at Appendix Q.

purpose and process (the potential certifier may not understand the U nonimmigrant status process and therefore does not feel comfortable completing an immigration form); bureaucracy (it may be difficult for the agency to find the applicant’s file because the file is old and has been transferred to storage or destroyed); resources (the agency may determine that it does not have the resources to respond to Form I-918 Supplement B requests and is not funded to provide this additional service); or anti-immigrant sentiment (the agency or the individual certifier does not want to assist non-citizens in the process of obtaining immigration status). When possible, try to find the reasons behind the resistance if you encounter a law enforcement agency or individual that does not want to sign the Form I-918 Supplement B to best prepare to address their concerns and to work with them to overcome these.

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Some suggestions for working with law enforcement agencies to address some of their concerns about U nonimmigrant status include: 

Build Relationships. Meet with your local law enforcement agencies early—perhaps even before you have a potential U applicant to bring to them—to educate them about U nonimmigrant status and to find out how to approach them with cases. Be prepared to listen honestly and openly to their concerns and to try to understand their resistance from their perspective. It is critical to approach and educate law enforcement about this issue in partnership with organizations and individuals they may already work with and trust, such as, domestic violence agencies and victim advocacy groups.

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Provide Information. Provide law enforcement with information about U nonimmigrant status and how the applicant is eligible for law enforcement certification. At Appendix Q you will find a letter to law enforcement that briefly explains U nonimmigrant status and requests partnership on a particular case. DHS’s U Visa Law Enforcement Certification Resource Guide is an authoritative and clearly written explanation of the U visa as well as law enforcement’s role in the process. DHS also created a two-page FAQ based on this resource guide that might be easier to get busy officials to read. There are several other great resources as well. For example, Asista and AILA issued a report, Resource List: Working More Effectively with Law Enforcement to Obtain U visa Certifications, which compiles resources state-by-state.30 The National Immigrant Women’s Advocacy Project also issued a helpful report, The Importance of the U-visa as a Crime-Fighting Tool for Law Enforcement Officials—Views from Around the Country, which includes statements by law enforcement officials about how U nonimmigrant status helps law enforcement. You may also want to look at the City of Oakland Report Resolution Declaring Support for the U Visa and an article by Alana Bowman, former Deputy Los Angeles City Attorney, in the quarterly sexual assault prosecution newsletter by the California District Attorneys Association. Many of these documents are attached at Appendix Q. See also the Practice Pointer on the DHS guidance to law enforcement agencies below.

30

Asista, AILA, Resource List: Working More Effectively with Law Enforcement to Obtain U visa Certifications (Mar. 2015), available at www.asistahelp.org/documents/resources/LEAs_and_U_visas_Res ource_List__Mar_0D3F1275EDAC4.pdf.

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Let Law Enforcement Agencies Know USCIS Can Be a Resource to Them. USCIS has made a number of efforts to train law enforcement personnel on the eligibility requirements and process for U nonimmigrant status. USCIS accepts requests for trainings from law enforcement and seems to be more than willing to do them when its travel budget allows. Let law enforcement agencies know they can receive such training by sending an email request to [email protected].

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Build Trust. Ensure that you and your clients are responsive to contact with the law enforcement agency. Be open in your communication and willing to answer questions to build trust. If you or any of your clients appear evasive about the process, the law enforcement agency may be less likely to trust you or want to help.

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Focus on Areas of Mutual Concern. Many immigration attorneys and advocates do not have much experience working in partnership with law enforcement on cases. We may even harbor biases or stereotypes about law enforcement that need to be put in check. It is important for immigration advocates to try to perceive certification requests from the perspective of law enforcement agencies who may not trust immigration advocates in their interpretation of the law or may not believe that victims of crime can (or should) qualify for immigration status. Try to find the areas in which the U nonimmigrant status is mutually beneficial to U applicants and the law enforcement agency’s agenda and concerns. Many law enforcement agencies recognize that working with immigrants is a public safety issue because they want and need witnesses and victims to cooperate in criminal investigations and prosecutions. They also may welcome the opportunity to work more closely with the immigrant community and see assisting U applicants as a way to enhance officer and public safety.

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Make the Certification Process Easy. Here are some possible ways to make the certification process easier on law enforcement, depending on what your law enforcement agency needs and is open to: o Write a letter to the agency, explaining your client’s eligibility. See sample letter at Appendix Q. o If welcomed, work with the law enforcement agency to create a protocol to streamline the process. See Appendix Q for sample law enforcement protocols in handling certification requests.31 o Take cases referred to you by law enforcement and be a resource for their questions and referrals. o Many law enforcement agencies also find it helpful for the advocate—rather than law enforcement staff—to fill out the Form I-918 Supplement B, so that they need only review and sign it.

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One of the sample protocols included in this manual is from the Las Vegas Metropolitan Police Department and was drafted by Police Lt. Raymond C. Steiber. Lieutenant Steiber has expressed willingness to speak with other law enforcement agencies that may want to speak to someone within law enforcement about drafting protocols for their agency. He may be contacted via email at [email protected].

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Educate the community about U nonimmigrant status eligibility requirements and encourage community members to work with a good attorney or representative before approaching law enforcement about the certification.

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Protect the Integrity of U Nonimmigrant Status. Be prepared to answer questions the law enforcement official may have about the process. Work to eliminate fraudulent cases being submitted to law enforcement by educating the immigrant community about possible scams perpetrated by unscrupulous lawyers, notarios, and other immigration representatives.

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Show Law Enforcement the Benefits of the U Visa in Criminal Investigations and Prosecutions. Ensure that your clients are responsive to inquiries from law enforcement and cooperative in requests to provide assistance, unless the request is unreasonable. When available, provide testimony, examples, and media reports of compelling stories where immigrant crime victims were crucial to a successful investigation or prosecution.

PRACTICE POINTER: U Visa Database. Immigration Center for Women and Children (ICWC) in California has created and maintains a very helpful resource that can help shortcut efforts to contact law enforcement agencies with a U certification request. ICWC’s U Visa Zoho Database contains crowd-sourced information that pools the field’s collective knowledge on who the certifying officers are at the various law enforcement agencies, where to send requests, and updated policies and practices, nationwide. More information about this database including who can join and rules for participation can be found on ICWC’s website at www.icwclaw.org/services-available/icwc-u-travel-and-certifier-database/.

PRACTICE POINTER: Using DHS’s Guidance to Law Enforcement Agencies. Since 2008, USCIS has provided trainings on U nonimmigrant status and I-918 Supplement Bs to law enforcement officials throughout the country. In December of 2011, USCIS’s parent agency, DHS, issued guidance that addresses many of the questions and concerns raised in those trainings. The guidance can be found at Appendix Q and online at www.dhs.gov/xlibrary/assets/dhs_u_visa_cer tification_guide.pdf. U nonimmigrant status advocates encourage practitioners to distribute this guidance broadly to:   

Convince law enforcement agencies that already provide certifications in a narrow range of cases to expand the scope and number of certifications; Educate new law enforcement agencies about the value and scope of U nonimmigrant status certifications; Convince law enforcement agencies that have refused to provide certifications of the value and scope of U nonimmigrant status certifications;

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

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Provide support for law enforcement agencies that already certify helpfulness as broadly as the statute permits, so that they can justify the time needed to administer the certification process and advocate that other partner agencies adopt a broad U nonimmigrant status certification policy; and Educate elected officials and media about the value and scope of U nonimmigrant status certifications so they can support local efforts to encourage law enforcement to certify victim helpfulness for U status applications.

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PRACTICE POINTER: Using State Law to Advocate for U visa Certifications -- California Law SB 674 -- “Immigrant Victims of Crime Equity Act.” SB 674—codified at § 679.10 of the California Penal Code—is a new California law that took effect on January 1, 2016, with the goal of ensuring that all immigrant crime victims in California have equal access to the U visa, regardless of where they live. In order to achieve this, SB 674 imposes a number of requirements on law enforcement agencies when responding to U visa certification requests. The provisions of SB 674, detailed below, are important for all California U visa practitioners to be aware of, and help track; even outside of California, these provisions can be useful in advocacy for practitioners across the country with their local law enforcement agencies or with their state governments. SB 674:

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1. Requires certifying entities throughout California to certify victim helpfulness when the crime victim requests a certification, is a victim of a qualifying crime, and has been helpful, is being helpful, or is likely to be helpful to the detection, investigation, or prosecution of that qualifying criminal activity; 2. Creates a “rebuttable presumption” that a victim meets the helpfulness requirement if the victim has not refused or failed to provide information and assistance reasonably requested by law enforcement; 3. Requires the certifying official to fully complete and sign the Form I-918 Supplement B certification and to include specific details about the nature of the crime investigated or prosecuted and the victim’s helpfulness or likely helpfulness to the detection or investigation or prosecution of the criminal activity; 4. Mandates that agencies process certification requests within 90 days, or within 14 days if the person is in removal proceedings; 5. Provides that a victim can request and obtain a certification even if no charges were ever filed, no conviction resulted, or the investigation is over; 6. Specifies that the certifying official can only withdraw the certification if the victim refuses to provide information and assistance when reasonably requested; 7. Prohibits the certifying entity from disclosing the immigration status of a victim or person requesting the Form I-918 Supplement B certification, except to comply with federal law or legal process, or if authorized by the victim or person requesting the certification; and

8. Requires law enforcement agencies to report back to the legislature on or before January 1, 2017, and annually thereafter, regarding the number of certification requests received, signed, and denied. 9. Provides opportunity for reimbursement for law enforcement agencies of actual costs associated with compliance with SB 674.32

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Advocates in California should point to Penal Code § 679.10 in their U visa certification requests, and hold law enforcement accountable to the standards it imposes. Although the law provides no formal enforcement mechanism in the event that law enforcement does not comply, advocates are tracking implementation issues and plan to report back to the California legislature on any issues that arise. To report violations of SB 674, such as a failure to respect the “rebuttable presumption” imposed by the law, or to abide by the time limits it creates, advocates can enter this information into the U Visa Zoho Database at www.icwclaw.org/services-available/icwc-utravel-and-certifier-database/ discussed above, or input their answers into the ILRC survey directly, at: https://docs.google.com/forms/d/1lJTYEi-ms5prTjDYR96K69YXlT8uMuTGHgwl2k Vn454/viewform?c=0&w=1. Following the passage of SB 674, California Attorney General Kamala Harris issued Information Bulletin No. DLE-2015-04 to all state and local law enforcement agencies in California, which provides background on the federal law governing U visas and explains law enforcement agencies’ responsibilities under SB 674.33 In addition, the bulletin encourages state and local law enforcement agencies and officials to be “vigilant in identifying and supporting immigrant crime victims who may be eligible for U visas,” and to “immediately establish and implement a U visa certification policy and protocol” that is consistent with California law and the guidance provided in the bulletin.34 This bulletin is another important advocacy tool, as it makes clear that the chief law enforcement official in California expects all enforcement agencies in the state to sign U visa certifications when the requirements of SB 674 are met. The bulletin is attached at Appendix H. One particularly important effect of this law is that it creates an additional opportunity for crime victims who requested a U visa certification in the past and who believe that they were erroneously denied to request certification anew. With the new mandate from the state legislature and Attorney General to provide a certification when certain conditions are met, as well as the 32

Under California law, a law enforcement agency may file a claim with the Commission on State Mandates within one year of SB 674 taking effect or the agency incurring increased costs due to SB 674. See Cal. Gov’t Code § 17551. For additional information on how to request reimbursement, see Commission on State Mandates, Frequently Asked Questions Related to Mandated Cost Programs: Local Agencies, School Districts, and Community College: Responses to questions frequently asked of the State Controller’s Office (SCO) regarding local government (local agencies, school districts, and community colleges), available at www.sco.ca.gov/Files-ARD-Local/mancost_faqsmandates.pdf. Should the Commission on State Mandates issue any guidance specific to SB 674, it will be available on its website at www.sco.ca.gov/ard_mancost.html. 33 Attn’y Gen. Kamala Harris, Information Bulletin, New and Existing State and Federal Laws Protecting Immigrant Victims of Crime, DLE-2015-04 (Oct. 28, 2015), available at https://oag.ca.gov/system/files/attachments/press_releases/dle-2015-04.pdf, and reprinted in Appendix H. 34 Id. at 1; 4.

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“rebuttable presumption” of helpfulness created by this law, crime victims will be on solid footing to return to the law enforcement agency where they previously requested certification, or to approach a different law enforcement agency, and present their request. Further, in these cases, advocates can cite to the Attorney General’s Bulletin, which makes clear that “[t]here is no statute of limitations that bars immigrant crime victims from applying for a U visa. Law enforcement can sign a certification at any time, and it can be submitted for a victim in an investigation or case that is already closed.”35

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For more information about SB 674, or for advocacy strategy assistance relating to state measures affecting U visas, contact Alison Kamhi at [email protected].

§ 3.9

Additional Documentation Regarding Victim Helpfulness

PRACTICE POINTER: Providing Certified Translations of Documents. All documents that are not in English must be submitted with an English translation made by a person who is competent to translate. Anyone (other than the applicant or a close relative of the applicant) who is competent to translate may make the translation. It does not have to be an attorney, certified representative, or notary public. The translator must certify the translation. To do that, the translator should write at the bottom of the last page of the English translation, “I certify under penalty of perjury that I am competent to translate from [the original language] to English and that above is a correct and true translation of all pertinent information to the best of my knowledge and belief.” The translator should sign and date this statement and should include her typed name. See Appendix T for samples of translation certifications and certified translations of documents.

35

Id. at 4. 8 CFR § 214.14(c)(2)(ii)–(iii). 37 See Appendix OO for a sample letter to request a police report. Many law enforcement agencies have special forms and processes for this purpose. Advocates can often find them on the agency’s website. 36

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Applicants may also submit additional evidence to help demonstrate eligibility for U nonimmigrant status.36 Additional evidence may not be submitted in lieu of filing Form I-918 Supplement B as that is required, but not conclusive, to show eligibility. However, additional evidence may be submitted to strengthen the applicant’s request. In addition to a description of helpfulness in the victim’s statement, such evidence may include trial transcripts, court documents, news articles, police reports,37 orders of protection, affidavits of other witnesses (such as medical or social services personnel), photographs, and medical records. You should also include a copy of the relevant penal code section for the qualifying crime(s).

§ 3.10 Victim’s Statement Applicants for U nonimmigrant status are required by the regulations to submit a signed statement (often called a “declaration” because it is signed under penalty of perjury) with their Form I-918 filing that describes the facts of their victimization.38 The most important aspects of the victim’s statement are that: 1. It is the applicant’s own story in her own words—not in the words of an attorney, therapist or victim advocate.

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2. It addresses each of the requirements for U nonimmigrant status:  The applicant was a victim of a qualifying crime, including: o The nature of the criminal activity; o When the criminal activity occurred; o Who was responsible for the criminal activity; o The events surrounding the criminal activity; o How the criminal activity came to be investigated or prosecuted;  How the applicant was/is helpful in the investigation or prosecution;  What substantial physical and/or mental abuse the applicant suffered as a result of the criminal activity; and  Any other information supporting any of the other eligibility requirements. Some applicants also include a paragraph describing why they merit a public interest waiver of inadmissibility factors. 3. It does not include information that contradicts other evidence submitted in the application for U nonimmigrant status. 4. It is credible. Details, specifics, and corroboration help USCIS determine credibility. Advocates have varying approaches to the applicant’s statement, and there is no one right way. Some advocates give the applicant an outline (included in Appendix R) describing the kind of information that is needed. They next ask the applicant to write a description of what happened and then staff members translate the victim’s statement and certify the translation. They submit both the translation and the victim’s statement in the applicant’s native language to USCIS. Other advocates meet with the applicant and type up her statement based on what she says (detailed victim’s statement instructions are included in Appendix R). Regardless of the approach, make sure to review the victim’s statement thoroughly to make sure that it is consistent with everything else that is being submitted (e.g., I-918 Supplement B, witness statements, letters from therapists, etc.) with the application. An advocate’s decision about how, and how much, to help an applicant prepare her victim’s statement will depend on many factors, including the client’s literacy level; availability of support services for applicants who may be upset by writing their own statements (or by having to talk 38

8 CFR § 214.14(c)(2)(iii).

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about what happened); translation resources; complexity of the case; and case worker availability at the time of application and/or in the event of a request for additional evidence. Advocates may find the following examples of the two approaches instructive:

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Example: Case workers at XYZ Legal Services Agency work with hundreds of clients to submit winning applications for U nonimmigrant status, using the “less is more” approach. They ask clients to draft statements themselves and then staff members translate the statements. Recognizing that applicants are often confused about the details of their various civil and criminal court proceedings, XYZ Agency does not ask applicants to write about helpfulness. In the cases in which USCIS has required additional information in the victim’s statement, a case worker was available to work with clients to augment the original statement.

Many USCIS forms include instructions that an applicant submit affidavits in support of the application. An affidavit is a document signed under penalty of perjury by the person who created the document and by a notary public. A declaration is a written statement signed under penalty of perjury that is not also signed by a notary public. Many applicants and practitioners submit declarations in lieu of affidavits, and they are accepted by USCIS. Using declarations saves applicants the time and expense of getting documents notarized.

PRACTICE POINTER: Working with Applicants on Victim Statements. Advocates who prefer working with the applicant to guide and transcribe her story have found some of the following tips useful in working with their clients. For more information on working with clients to write declarations, see the tips and instructions included at Appendix R.    

Demystify the U nonimmigrant status process and the role of the victim statement for your client. This will help her focus on relevant information and reduce the stress involved in telling what is often a traumatic story. Let her know why you are asking each question. Explain the legal requirements and the role of her statement in showing how she meets them. Explain that an immigration case focuses on different issues than a legal case involving divorce or child custody, so some things that may be very important to her (like infidelity) may not be needed for the statement.

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Example: At ABC Legal Services Agency, applications for U nonimmigrant status are prepared by legal volunteers. Volunteer case workers transcribe and simultaneously translate the applicant’s victim’s statement. ABC Legal Services Agency’s legal staff then review the statements to be sure they are sufficiently clear and complete before they are submitted to USCIS. ABC Legal Services Agency spends more time and resources in the initial drafting of the statements because they know they cannot count on availability of staff or volunteers to help applicants improve their statements if USCIS later asks for more information.

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Relatedly, point out that unlike criminal, family law, and restraining order processes, the perpetrator has no role in the U nonimmigrant status process. The applicant does not need to anticipate how the perpetrator will try to undermine her or minimize the abuse. Assure her that most people cannot remember everything at first. Assure her that you want to hear the story however it comes out. Go over the police report(s) with her to find out whether it is accurate, and how and why it is inaccurate. The accurate parts can serve as the foundation for the victim’s statement. Inaccurate parts should be addressed in the statement as well, with as full an explanation as possible about why those parts may be inaccurate If there are problems with helpfulness described in the report (e.g., she was not sure she wanted her abuser to be arrested or charged), help her understand and explain the circumstances. A worksheet called “Corrections and Clarifications to Police Report” found under Appendix Q can help identify and explain misunderstandings. Also ask her if she later cooperated despite her initial reluctance. Describing Abuse: Many applicants have difficulties describing abuse. Some advocates provide questionnaires to applicants to help them find the words they want to use. Please see questionnaires about physical and emotional abuse at Appendices F and R. Describing Helpfulness: U visas are for people who help law enforcement, and the tone in this part of the victim’s statement should be active, with specific examples of how helpful she was. “I told the police everything that had happened and told them I wanted him arrested” is more relevant than “I answered all of their questions and made a report,” and just as true. Keep in mind here that many clients are confused and will be sure whether they went to a criminal court hearing or a family court restraining order hearing. Talk this through with them and consult any supporting documents you have so that they and you feel confident that you know what happened and can accurately report it to USCIS. Describe any follow up with law enforcement and/or protective orders, as they demonstrate her ongoing helpfulness.

Avoid Retrauma. Discussing past trauma can trigger present feelings of trauma. Here are some tips to avoid retraumatizing an applicant in the course of working on her application.   

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Make sure tissues and water or tea are immediately available. Make sure you are in a private workplace. Tell her that no matter what, the appointment will only be two hours (to prevent exhaustion), and that you will let her know when there are about 10 minutes left so the two of you can wrap up. This time limit is why it can be good to have at least two appointments for the declaration. Tell her that working on a declaration can be upsetting, and you want her to have control over the appointment so it does not become traumatic. Ask her if there are things she wants you to do if the session becomes too upsetting (like calling a friend or taking a break).

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Start and end the interview with mundane matters, including: o Completing biographic information on forms, fee waivers, etc. o Talking about her good moral character for the waiver. o Brainstorming where to get additional documentation/evidence. o Small talk. Do not check the time in a way that is rude, but do have a way to know when it is 10 minutes before the end of the interview. At that point, tell her it is time to recap and figure out what you will be doing during the next appointment.

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Victims of sexual crimes or severe domestic violence may be retraumatized by retelling the story of victimization. Many applications have been approved in this type of case in which the applicant only provides a brief statement that the crime occurred, that she was traumatized, and that she was helpful to law enforcement.

Advocates can assist the parent in getting copies of their child’s police report. If the child is now an adult, she can get a copy of the police report. Some police departments may be restricted by state law, or otherwise reluctant, to provide police reports when the case involves a minor. Other departments will only issue a redacted version. In some states, police reports involving minors can only be released with a court order. If you are unable to obtain the police report, explain that in your cover letter to the law enforcement agency to get a certification request and again in your cover letter to USCIS. In some cases, the best practice will be to ask the law enforcement agency to write and/or sign a summary version of the police report instead of submitting the original police report. Asking a child to provide details of the crime for a U application can re-traumatize young victims. Therefore, it is often better to submit summary police reports, parent declarations, and therapist letters along with a cover letter tying all of the evidence together, instead of submitting anything directly from a victim who is under the age of 16.

39

INA § 101(a)(15)(U)(i)(II)–(III).

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PRACTICE POINTER: Special Consideration When Working with Juvenile Applicants. In the case of young U applicants who are under the age of 16, you should work with the parent or legal guardian, if possible, to prepare the victim’s statement (declaration) and to obtain documents. The statute allows for a parent, guardian, or next friend to possess and provide information helpful information to a criminal investigation or prosecution if the victim is under the age of 16.39 This is an important provision that was included to avoid re-traumatizing juvenile applicants. A parent may also sign Form I-918 on behalf of a child under 14, and no biometrics are required for children under 14 years of age.

For detailed information on working with and representing immigrant children and youth in immigration cases, see the ILRC manual, Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth.40

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§ 3.11 Documentation of Substantial Physical or Mental Abuse The most important evidence of the substantial physical or mental abuse suffered by the applicant is her own detailed victim’s statement. The victim’s statement preparation instructions at Appendix R include guidance on working with applicants to highlight important details of the substantial abuse. Other helpful documentation includes statements of witnesses to the abuse; declarations of police, health care workers, etc.; medical reports documenting the effects of physical or mental abuse on the applicant; reports or evidence of appointments with therapists, counselors, shelters etc.; and photographs that document the abuse. Any statements from counselors and therapists should explain why the facts as related to them by the victim are credible in light of their professional experience. It is also particularly valuable if the counselor can state that, based on interviews, observations, and/or testing, she concludes that the applicant has suffered trauma, depression, anxiety, or other relevant conditions. If counselors include an account of the crime in their letters, advocates must check that account against facts described in the applicant’s statement, police report, and any other documents to make sure it is all consistent. Sometimes counselors focus on events differently for therapeutic reasons. An explanation for counselors of what needs to be addressed in a support letter and a sample support letter for a case manager or counselor can be found at Appendix S. § 3.12 Identification Documentation Applicants for nonimmigrant visas, including U nonimmigrant status, are required to have valid, unexpired passports at the time of admission to the United States.41 A waiver of the passport requirement is available for U nonimmigrant applicants who are unable to get passports for any reason, including their inability to pay the fee or to submit required identification to their consulate.42 There is no specific additional supporting documentation required to waive the passport requirement. This waiver must be made on Form I-192, “Application for Advance Permission to Enter as Nonimmigrant” for applicants who are applying for U nonimmigrant status from within the United States. USCIS takes the position that the applicant is required to explain why she is unable to obtain a passport. Applicants (and derivatives) submitting I-918 applications from outside the United States are not yet applying for admission and do not, therefore, need to request a waiver at the I-918 stage. However, it is very doubtful that a U.S. consulate will issue a U visa to an applicant abroad without a passport. If the derivatives are abroad and having trouble obtaining a passport, you can go ahead and file their I-918A 40

This manual may be purchased and other youth-specific immigration resources downloaded at www.ilrc.org/immigration_law/remedies_for_immigrant_children_and_youth.php. 41 INA § 212(a)(7)(B); 8 CFR § 212.1. 42 8 CFR § 212.1(g).

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application without the passport; then they can continue to try to obtain a passport by the time the case is approved and they have to go apply for their U visa at the U.S. consulate abroad.

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USCIS prefers that applicants also submit birth certificates (and translations) with U nonimmigrant applications. This is required for proving the family relationship, if applicable, for any derivative applicants. But practitioners note that although submitted a birth certificate is preferred, it may not be necessary if you do not need to prove any derivatives’ relationships, or show a child’s age.

PRACTICE POINTER: Fee Waiver for Passport Application. The current fee for an inadmissibility waiver application is $585, but a fee waiver is available.43 Applicants whose incomes make them ineligible for a fee waiver should weigh the costs of the waiver application against any costs associated with obtaining a passport. The Mexican Consulate in San Francisco will waive the passport application fee for domestic violence survivors, and advocates should find out whether their local consulates do, or will agree to do, the same. For information about obtaining or renewing a passport for a client, or waiving the fees to obtain or renew a passport, contact the embassy or consulate of your client’s home country.

§ 3.13 Accompanying Immigration Application Forms Most applicants for U nonimmigrant status will need to submit Form I-192 to request a waiver of immigration and/or criminal violations. Please see Chapter 4 for descriptions of common inadmissibility factors as well as instructions for completing Form I-192. Principal U applicants will not need to submit an application for the official U nonimmigrant status employment authorization document in category (a)(19) on Form I-765. This is because work authorization is included in Form I-918 and will be automatic for applicants who mark on the Form I-918 that “yes” they do want employment authorization. However, even principal applicants must submit a separate Form I-765 application for employment authorization in 43

8 CFR § 103.7(c)(5)(iii).

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PRACTICE POINTER: Passport Application Problems for Children. A child must show proof that both parents permit her to obtain a passport. This frequently causes problems in cases where one of the parents is abusive or cannot be contacted to give permission. This is an important reason to request a waiver of the passport requirement for a child, and the waiver is easily obtained for a child within the United States using the Form I-192 waiver application. Children who live abroad may have more problems with the passport requirement because they need the passport to travel to the United States as well as to meet the requirement for U visa. See Chapter 9 for a discussion of getting passports for children abroad.

category (c)(14) if they want to work while they are in deferred action on the U Status waiting list if the statutory annual limit on U visas has already been reached in a given fiscal year. See the Practice Pointer below and § 3.17. Child applicants should also mark “yes” to get employment authorization documents. Even if the children are too young to work, the employment authorization card functions as a good, government-issued identity document, and they will need it in order to get a social security number.

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USCIS should also grant employment authorization to applicants who have a pending, bona fide application for U nonimmigrant status.44 The purpose is to permit applicants to work while the U nonimmigrant application is pending. However, as of this writing (February 2016), USCIS has not yet created a system to accept and adjudicate employment authorization requests for U nonimmigrant applicants with bona fide pending applications.

PRACTICE POINTER: Submitting an Employment Authorization Document (“EAD”) Request for Deferred Action with the I-918. Because the statutory limit on U visas has been reached every year for the last several years, it has now become typical that U applicants will receive only a conditional U approval and deferred action while they are on the “waiting list” for new U visas to become available in the following fiscal year(s). Because of this, there are slightly new procedures for U applicants to request employment authorization based on deferred action instead of U nonimmigrant status. Although USCIS will normally not accept an employment authorization application before it is possible to establish eligibility, the USCIS Vermont Service Center has agreed to permit U nonimmigrant status applicants to submit EAD applications on Form I-765 in category (c)(14) for deferred action with the I-918 application. There is no fee for the EAD application. After the underlying I-918 application is adjudicated and the applicant’s eligibility has been determined, USCIS will adjudicate the I-765 application.

§ 3.14 Assembling and Submitting a U Nonimmigrant Status Application USCIS is often asked by practitioners about the best way to organize a U nonimmigrant application for adjudication. USCIS has responded that an index of the supporting documents is helpful, as is a cover letter that provides a road map of how the supporting documents prove all of the elements of the application. Some practitioners separate each category of documents with divider pages that state the requirement or category, such as “Applicant Identity Documents,” or “I-918 Supplement B and evidence of victim helpfulness.” USCIS has stated that tabs are not necessary. However, if you do submit tabs on your application, please make sure they are at the 44

William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 5044 (TVPRA 2008), sec. 201(c). However, as of the writing of this manual (February 2016) there is no process in place for USCIS to grant employment authorization to those with pending applications for U status. Therefore, only those who have already been approved or are renewing employment authorization based on previous U interim relief status have work permits.

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bottom of the page, and not the side of the page. Examples of cover letters and exhibits lists are included under Appendix K. Appendix K also includes checklists that advocates can use to be sure they have all of the documentation that is required for the application.

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All applications for U nonimmigrant status—including those submitted from abroad, those where the applicants have final orders of removal, and those where the applicants are currently in removal proceedings—must be sent by mail to the USCIS Vermont Service Center (VSC). The VSC adjudicates ALL U applications, no matter where the applicant resides. The mailing address is: U.S. Citizenship and Immigration Services Vermont Service Center Crime Victim Unit 75 Lower Welden Street St. Albans, VT 05479-0001

PRACTICE POINTER: Keep Copies of Everything. Whenever you are submitting something to USCIS, always make sure to send it in a way that ensures you will have a record of your submission. This could be certified mail, return receipt requested, Priority Mail with delivery confirmation, Express Mail, etc. Also, always keep a copy for your file! Although it is unusual, USCIS and the mail service do lose documents. It is helpful to keep a hard or scanned copy in case another needs to be submitted or if your client later needs copies of submissions. In a traditional immigration practice, it is a good customer service practice to provide your client with a copy of anything you submit to USCIS. In the domestic violence context, however, it may not always be safe for your client to have a copy of the application packet in her possession, so discuss with your client what she would prefer.

§ 3.15 Notices from USCIS Between two and four weeks after the U nonimmigrant status application is filed, USCIS will mail the I-797C Notice of Action receipt for the each applicant. These receipts are evidence that the application has been filed and can be useful for several reasons. First, in states that grant public benefits to applicants for U nonimmigrant status, applicants can use these receipts to prove eligibility for the benefits. Second, applicants in removal proceedings may, depending on the

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VSC is a very large facility that adjudicates and handles many different kinds of immigration filings—not just U applications. You do not want the mailroom to handle U applications like other immigration filings that may require filing fees or other things unrelated to U applications. Mark the outside of the packet in large letters: APPLICATION FOR U STATUS and/or CRIME VICTIM UNIT.

case, be able to use these receipt notices as a basis to ask ICE or the court to continue, administratively close, or even terminate the case. See Chapter 8. Finally, some applicants carry the receipts as evidence that they are in the process of obtaining legal status in case they are picked up by immigration authorities.45 Biometrics Appointment Between two and four weeks after the receipt arrives, the applicant will get a notice to have her fingerprints taken at a USCIS “Application Support Center.”

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Applicants for U nonimmigrant status (and derivative family members) between the ages of 14 through 79 will need to have their biometrics taken. Biometric information is physical, identifying information that the immigration authorities will take to verify the identity of the applicant in their database as well as to check against other entries in their database and other centralized databases. In this way, the biometric information is essentially used by the government to do a background check to see if the applicant has triggered any grounds of inadmissibility or had any prior immigration problems. The principal applicant’s biometrics are usually taken in the form of fingerprints, a signature, and a digital photo. Derivative applicants’ biometrics do not include photos, so they still need to submit two photos with their Form I-765 EAD application if they are in the United States. There is no longer a fee charged for biometrics. Each applicant who applies for U nonimmigrant status (both principal and derivative applicants) from within the United States will receive a separate notice to appear at an Application Support Center to have her biometrics taken if she is 14 years old or older. Applicants who are younger than 14 or older than 79 do not have to submit their fingerprints, although they may be called in for a photograph if that is needed. A sample Application Support Center appointment notice is at Appendix M. Applicants are asked to fill out a simple form including their address at the biometrics appointment, so it is important to remind applicants not to disclose a confidential address at their biometrics appointment. Instead they should use your office address if that is the address you listed on the forms. An instruction handout for clients that explains the biometrics process and what to do about a missed biometrics appointment is at Appendix M. If a U nonimmigrant applicant is detained and needs assistance in obtaining photographs, she should reach out to the local ICE Enforcement and Removal (ERO) or Homeland Security Investigations (HIS) officials in her District.

PRACTICE POINTER: Missed Biometrics Appointments. Applicants should do what they can to attend their biometrics appointment at the prescribed date and time. If there is an emergency that 45

In April of 2012, USCIS began to issue Form I-797C receipt notices on plain paper with a statement at the top of the form that reads: “This notice does not grant any immigration status or benefit.” These replace the forms that were previously issued on secure paper watermarked with the Statue of Liberty.

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prevents an applicant from making it on time to the appointment, the applicant or authorized representative may request that the appointment be rescheduled by following the REQUEST FOR RESCHEDULING instructions on the Application Support Center (ASC) notice. Some ASC offices permit applicants to drop in with an ASC notice before, or soon after the scheduled appointment. Advocates may be able to meet with local USCIS officials to learn local procedures.

PRACTICE POINTER: Requesting a Case Be Expedited in Emergency Circumstances. There are two ways in which VSC may expedite a U nonimmigrant application. First, it may expedite the final adjudication of an application. Second, it may conduct an expedited prima facie determination. Expedited Adjudications. Requests for an expedited adjudication of a U nonimmigrant application are reviewed on a case-by-case basis. They are granted very rarely, and only at the discretion of the Director. The burden is on the applicant to demonstrate that one or more of the following expedite criteria are present:        46

Severe financial loss to company or individual; Extreme emergent situation; Humanitarian reasons; Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation (request must come from official U.S. Government entity and state that delay will be detrimental to U.S. Government); USCIS error; and/or Compelling interest of USCIS.46

USCIS, Expedite Criteria, available at www.uscis.gov/forms/expedite-criteria.

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Applicants and derivatives who are outside the United States will be instructed to submit fingerprints. The instructions, in the form of a Request for Evidence Form, are sent to the principal applicant, with fingerprint cards. A sample of the request for fingerprints of a derivative family member and a sample of the instructions for completing the fingerprint card can be found at Appendix M. Fingerprints may be taken at the closest USCIS office, U.S. consulate, U.S. embassy, or military installation. To find an office near the applicant, look for “immigration overseas offices” on the USCIS website. Samples letters to clients explaining the fingerprinting and photograph requirements in Spanish are found at Appendix M. Practitioners have noted that many of these offices are still unfamiliar with the fingerprint requirements or process for U nonimmigrant applicants, so you should be prepared to do some advocacy, education, or searching for an appropriate place to fulfill this requirement. You can also check the shared document “Consulates: Fingerprints and U Visa” on the U Visa Zoho Database administered by the Immigration Center for Women and Children (ICWC), at www.icwclaw.org/servicesavailable/icwc-u-travel-and-certifier-database. See Chapter 9 for more details on the fingerprinting process at various U.S. consulates abroad.

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If you are requesting that an application be expedited, you must provide a written explanation as to why the application needs to be expedited and write “EXPEDITE REQUEST” at the top of the request. You may include supporting evidence with the request. When you file your application, place your expedite request letter on the top of your documents. Then once you get your receipt notices, email the VSC hotline with the receipt numbers to alert VSC about your expedite request in case it did not get flagged in the mail room. Prima Facie Determinations. USCIS may also provide a prima facie determination of certain U nonimmigrant applications. VSC’s current policy is that the request for prima facie determination must come from ICE (either the ERO or the Office of Chief Counsel). VSC has indicated three circumstances under which it would entertain a request for an expedited prima facie or bona fide determination:

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  

Applicants who are subject to a final order of removal; Applicants who are being detained at the government’s expense; and/or Extreme emergency circumstances.47

Such prima facie determinations are not determinative and are generally only valid for six months. The best way to request an expedited prima facie adjudication is by emailing the VAWA Unit per the details in the Practice Pointer above. Prima facie determinations should be sought as the most expeditious way to stay a removal or for clients in custody. Because VSC will only accept a request for a prima facie determination from ICE (at least currently), be sure to explain this policy to the ERO or Chief Counsel’s office and ask them to request the prima facie determination. At the same time, you should also ask VSC yourself via email and explain that you have asked ICE to make the request as well. If a prima facie determination is made, VSC will communicate it to ICE. You may not receive an official notice,48 so it is important to ask VSC about the status of the determination via email; if VSC responds, you can print the email as evidence of the response.

PRACTICE POINTER: Checking the Status of a Case Online Case Status Check. For cases that have already been filed with USCIS, you can check the status of the case by entering the thirteen-digit receipt number found on notices sent by USCIS. U applications filed with the Vermont Service Center (VSC) will start with “EAC.” As of this writing (February 2016), the message posted in response to your inquiry will refer to the I765 Application for Employment Authorization, not the I-918 U nonimmigrant status application. However, it really is referring to both.

47

VSC Stakeholders Conference Call (Apr. 6, 2010). However, some advocates have reported being contacted via phone by VSC officers about prima facie determinations.

48

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Currently, USCIS is taking more than 22 months to adjudicate a complete application that does not require a Request for Evidence. RFEs and other complex issues can make case adjudication take substantially longer. For the latest I-918 processing times at VSC, go to the USCIS website at www.uscis.gov and put “USCIS Processing Time Information” in the search bar. Note, however, that at the time of this manual’s writing (February 2016), the USCIS Case Status Check does not reflect a grant of Deferred Action. Instead, the Case Status Check indicates the last action on the case (e.g., response to Request for Evidence received, or application received).

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Calling or Emailing USCIS. VSC maintains a telephone line and an email address for inquiries about U applications. These lines of communication are for use by advocates and attorneys only, not for applicants themselves. You must have a Form G-28 on file to ensure that USCIS can communicate with you about a case without breaching confidentiality protections. Make sure to include your email address on the G-28 you file so that you can communicate with VSC by email. VSC staff may only speak with the representative listed on the G-28, not another case worker in the same organization. This inquiry system is not to be used for routine status inquiries unless the case is pending well beyond the posted processing times. Do not leave messages on both the phone and email system because it causes duplication of effort and confusion—choose one. VSC discourages inquiries regarding case status for applications filed after the processing date posted in the USCIS Processing Time Information, and will generally reply with a message stating this policy rather than providing substantive information about the application.

Telephone System. This is the same hotline that VSC uses for VAWA self-petitions. The hotline phone number is (802) 527-4888. Leave a message and a USCIS adjudicator will generally call you back within a week. As of late 2015, the average response time for a voicemail was five business days.49 Email System. The email address is [email protected]. You should receive a response within 72 hours. Make sure to include an email address on the G-28 for VSC’s database so VSC workers can respond to you. Do not scan full submissions with emails to USCIS because the size of the files overwhelms the email server. VSC suggests that advocates put something specific in the email subject line as to nature of inquiry, so they can be directed to the appropriate supervisor.50 Their suggestions include:  

“Outside Normal Processing Time,” which requires checking to see what “Normal Processing Time” is “Correcting Notice”

49

Asista, ICWC, AILA, Notes and Practice Pointers, Vermont Service Center Stakeholder Event, (Sept. 18, 2015), available at www.asistahelp.org/documents/news/FRFinal_VSC_Notes__Practice_Pointer_16FF 2859D2396.pdf. 50 Id.

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When leaving a telephone message or sending an email message, include your name; applicant’s full name, date of birth, receipt number, and A#; as well as your phone number, every time. For inquiries on derivatives, indicate the receipt number and A# of the principal applicant as well as that of the derivative.

   

“Amending Petition Information” “Expedite Request” “Change of Address” “New Material for Filing, attached to email”

Advocates may do this for substantive points too, such as:   

“Incorrect substantial harm standard, supervisory review requested” “Adjudicator ignored evidence supplied, supervisory review requested” “Improper declaration standard, supervisory review requested”

Any fax communication should only be used for an initial G-28 submission and/or when you receive a request from USCIS to send by fax.

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§ 3.16 Requests for More Evidence (RFEs) If USCIS has any questions or concerns about a U application that has been submitted, it will send a Request for Evidence (RFE) specifying what additional information, documentation, or clarification is needed. As of this manual’s printing (February 2016), an RFE is printed on white paper, with a bar code in the upper third of the page intended to alert advocates to a notice with a deadline (note that RFEs were printed on blue or yellow paper in the past). USCIS cannot grant requests for additional time to respond to an RFE, and only one RFE can be issued in a case unless the response to the RFE opens up a new line of inquiry. Sample RFEs can be found at Appendix U. It is critical to respond to any RFE received in a case, even if it appears to be requesting documents that were previously submitted and even if your response is just to tell VSC that no other documentation is available. Failure to respond will likely lead to denial of the application due to abandonment of the process. It is also important to return your response to the RFE with the original coversheet from the RFE on top of your submission so that the RFE response is recognized as such in the mailroom and promptly routed to the correct file. VSC receives thousands of pieces of correspondence each day. If the coversheet is not on the top of the response it will be placed in “general” correspondence at VSC and not sorted as a priority, which may delay the case, or worse, be routed to the wrong place and result in your case being denied for abandonment. Sometimes applicants may wish to send additional information to supplement their application before they receive an RFE. VSC does not recommend submitting difficult to replace supplemental documentation such as a medical exam or original documents to a pending U filing before the issuance of an RFE, as such documentation may not be properly matched with the file and can be lost.51 If you do submit additional documentation before receiving an RFE, write the 51

VSC Stakeholders Conference Call (Apr. 6, 2010).

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receipt number in large font on the first page of the cover letter to try to help get your submission into the file. Unfortunately, however, there is still no guarantee that the supplemental information will make it into the applicant’s file, and there is no way to track whether it was received by USCIS.

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PRACTICE POINTER: Addressing RFEs That Misstate the Law or Ignore Submitted Evidence. USCIS I-918 adjudicators are generally well trained and supervised, and mistakes are rare. However, occasionally an adjudicator still in the training process will issue an RFE that misinterprets the legal or procedural standard for U nonimmigrant status applications. As noted above, the RFE still requires a complete response by the deadline. If an RFE has misinterpreted the documentation submitted with the I-918, you may request Supervisory Review, and/or ask the adjudicator to review the law and evidence already submitted with the I-918 application. If you make a legal argument, you need to cite relevant provisions and provide caselaw that supports your positions. If you argue that the adjudicator ignored evidence submitted with the U status application, state which evidence was submitted, quote what the RFE says regarding the submitted evidence, and note which evidence was missed. You can make these arguments in one or both of the following formats:

See Appendix U for sample successful briefs in response to U application RFEs, including responses regarding a failure by USCIS to apply the “any credible evidence” standard, request to review documents already submitted, argument that a mental health evaluation is sufficient evidence of harm, and argument that robbery is equivalent to felonious assault.

§ 3.17 The U Visa Waitlist, Deferred Action and Employment Authorization Under INA § 214(p), only 10,000 applicants may be granted U nonimmigrant status each fiscal year (“FY”).52 USCIS announced in late 2015 that it had already reached the 10,000 cap for FY

52

INA § 214(p)(2)(A).

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1. An attorney or BIA Accredited Representative with a G-28 on file with USCIS may email the U status “hotline” at [email protected] with the subject line: Request for Supervisory Review of Request for Evidence, and the applicant’s I-918 application receipt number that starts with EAC. Briefly summarize the legal or evidentiary mistakes. 2. Respond timely to the RFE by mail. Resubmit overlooked evidence and explain why it was sufficient. If the RFE misinterprets the law, write a memorandum with your arguments about how your client meets all the requirements, and how the RFE misstated the law. Some advocates like to request supervisory review in the RFE response.

2016.53 This marks the seventh straight year that USCIS has approved the maximum of 10,000 U applications. It also marks an increasing backlog; because USCIS has reached the 10,000 cap so many years in a row, the remaining U applications are placed on a waitlist until USCIS can begin processing the new allotment of 10,000 cases the following fiscal year. In FY 2016, USCIS was still processing cases from 2013. USCIS also stated in September of 2015 that it had already pre-reviewed cases through FY 2018.54 Therefore, attorneys and representatives should anticipate that any new applicants for U nonimmigrant status will be subject to the statutory cap and may be on a waiting list for years before receiving U nonimmigrant status. U Visa Waitlist

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Pursuant to the U status regulations, U status applications may still be filed after the 10,000 cap is reached, and USCIS may review a U status application to make a preliminary determination that it may meet the eligibility requirements and place the applicant on a waitlist. Although many advocates refer to this determination as a “conditional approval,” USCIS maintains that it cannot be thought of as any kind of approval. Unfortunately, as of this manual’s writing (February 2016) there is no way to know in which year’s waiting list an applicant falls. Due to increased advocacy with VSC to try to gain more transparency for clients about how long their wait might be, VSC is considering creating a waitlist bulletin, similar to the immigrant visa bulletin maintained by the Department of State, to show applicants when they can expect to have their case adjudicated.55 A conditional approval may make the applicant eligible for deferred action, parole, or work authorization, as explained below. But a conditional approval is not a guarantee that the applicant will necessarily receive U nonimmigrant status. USCIS may send the applicant an RFE, remove her from the waitlist, and/or terminate her deferred action or parole.56 USCIS could take these actions based on an event that occurred after the applicant received conditional approval (such as a newly acquired criminal conviction), because USCIS placed the applicant on the waitlist in error, or simply because a new adjudicator took a look at the case. If someone is removed from the waitlist for reconsideration, that person will regain her place in line if she is placed back on the waitlist. Because an applicant can be on the waitlist for several years, it may be that when VSC finally revisits the case to adjudicate it, the examiner has new questions or concerns. Practitioners should make sure their clients understand that a conditional approval is not the same as U nonimmigrant status and is not a guarantee that the person will receive status. Deferred Action USCIS is authorized by the U nonimmigrant status regulations to grant a conditional approval with deferred action (if in the United States) or parole. To date, however, USCIS has refused to 53

USCIS, USCIS Approves 10,000 U Visa for 7th Straight Fiscal Year, available at http://content.govdelivery.com/accounts/USDHSCIS/bulletins/12d7a46#.VoMKey6tcvQ.email. 54 Asista, ICWC, AILA, Notes and Practice Pointers, Vermont Service Center Stakeholder Event, (Sept. 18, 2015), available at www.asistahelp.org/documents/news/FRFinal_VSC_Notes__Practice_Pointer_16FF 2859D2396.pdf. 55 Id. 56 8 CFR 214.14(d)(3).

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grant parole to applicants abroad on this basis. For those applicants in the United States, USCIS may grant employment authorization.57 In December of 2013, USCIS outlined how it would implement the deferred action and employment authorization process,58 and since that time thousands of U applicants have been granted deferred action and applied for employment authorization in I-765 category (c)(14). See a copy of a sample deferred action notice at Appendix D.59

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Deferred action is not technically lawful “status.”60 Therefore, the period a U applicant is in deferred action does not count toward the three years required for an application for adjustment of status; however, there continues to be advocacy with USCIS to change its position, and USCIS is considering this option. If USCIS does decide to count the period of deferred action toward the accrual of time needed for U adjustment, it is possible that in the near future some U applicants will be able to adjust as soon as their U nonimmigrant status is taken off conditional approval and granted. Deferred action is a determination that the applicant is at low priority for removal. However, as noted above, it does not permit an applicant outside the United States to enter the country. Derivative beneficiaries in the United States who have been placed on the waitlist will also receive grants of deferred action and may apply for employment authorization.

The Possibility of Parole Although the U nonimmigrant status regulations direct USCIS to grant “deferred action or parole,” the policy it has implemented as of this writing is limited to deferred action. Deferred action is only relevant to applicants in the United States, since it is not lawful status—it just offers limited protection from removal and grants employment authorization in the United States. There is no procedure for those approved on the waitlist to enter the United States. This means that U applicants who are abroad are not currently permitted to enter the United States at the time that their I-918 or I-918 Supplement A applications have been conditionally approved if the cap has already been reached, and may not be eligible to enter until a U visa is available. (Chapter 9 discusses the process of entry to the United States with a “U Visa.”)

57

8 CFR 214.14(d)(2). See VSC Stakeholder Teleconference Notes (Dec. 11, 2013), available at www.asistahelp.org/documents/news/U_cap_advisory_and_notes_from_stakh_60F50EB294846.pdf; USCIS, USCIS Approves 10,000 U Visas for 5th Straight Fiscal Year, available at www.uscis.gov/news/alerts/uscis-approves-10000-u-visas-5th-straight-fiscal-year. 59 8 CFR 214.14(d)(3). 60 Deferred action is considered “lawful presence” instead. This means that a U applicant with deferred action will not accrue “unlawful presence” during the period of deferred action. 8 CFR 214.14(d)(3). 58

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On March 17, 2015, USCIS began issuing two-year work permits to U applicants granted deferred action. It is unclear whether extensions will be automatic, or whether applicants will need to request them.

As of this manual’s writing (February 2016), USCIS is considering the possibility of parole for those derivatives of conditionally-approved U nonimmigrants who are abroad. Part of the holdup in making parole available may stem from the lack of a clear process to grant parole. ASISTA has asked USCIS to fully implement the U status regulations by granting parole to provisionally approved applicants outside the United States. To stay updated on this issue, go to www.asistahelp.org and join the VAWA Updates listserv by contacting [email protected]. In the meantime, pursuing humanitarian parole may also be an option. See Chapter 9 for more details on that process.

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Practitioners report mixed success on achieving advance parole for those who are conditionally approved in the United States and want to travel outside the country. As of the time of this manual’s writing (February 2016), VSC will not approve advance parole requests for those who are on the waitlist; however some local USCIS offices, such as in New York, San Francisco, and San Diego, will approve advance parole requests for emergency situations. See Chapter 9 for more details on advance parole.

PRACTICE POINTER: All U Status Applicants Expected to Be Waitlisted for the Foreseeable Future. In September of 2015, USCIS reported that it had 110,303 pending applications for U-1 status (principal applicants).61 These statistics indicate that unless the annual statutory cap of 10,000 U status grants is increased substantially, each fiscal year’s cap will be reached before any applications filed in that year can be granted U status. It is believed, therefore, that for the foreseeable future, every U status applicant with a case that is deemed by USCIS to be approvable will be put on the U status waitlist and will be granted deferred action—likely for multiple years. Example: Minh submitted her I-918 U status petition on January 1, 2016. Since the cap for fiscal year 2016 was reached in December 2015, Minh cannot be granted U status in FY 2016. It is probable that by the time Minh’s application is deemed approvable by USCIS (at the current adjudication time of 10-14 months), the U status cap will have been reached for FY 2017, FY 2018, and possibly even FY 2019. Minh will likely be put on the waitlist and granted deferred action until U status is available.

PRACTICE POINTER: Explaining the Waitlist to Clients. Many U status applicants may be worried or confused about the U waitlist. It is important to distinguish between the U status waitlist and waitlists for family-based immigration applicants based on “priority dates.” An applicant for family-based immigration status is put on a waitlist and, with few exceptions, does not receive deferred action during that waiting period. Applicants may need to be reassured that if

61

USCIS, Number of I-918 Petitions for U Nonimmigrant Status 2009-2015, available at www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms% 20Data/Victims/I918u_visastatistics_fy2015_qtr4.pdf.

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they are in the United States, they will receive deferred action, and are eligible for employment authorization. See a model explanation in English and Spanish at Appendix D.

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Applying for Employment Authorization for Applicants on the U Waitlist U status applicants on the U waitlist may apply for an Employment Authorization Document (also known as an EAD or work permit) in the deferred action category, (c)(14).62 There is a fee for this application, but applicants can apply for a fee waiver.63 Applicants are additionally required to demonstrate that there is an economic necessity for employment authorization. Instructions to Form I-765 recommend submitting the Form I-765WS worksheet. However, USCIS has indicated that it will accept any statement of economic necessity with the form. This statement does not need to be signed by the applicant, and may just state the applicant’s (or applicant’s family’s) monthly or annual income and expenses. Although the fee waiver and the showing of economic necessity are two separate requirements, applicants often use the same evidence for both. The application requires two passport-style photos and a copy of the Notice of Deferred Action. See Appendix D for a model cover letter that lists documents submitted for an employment authorization request in category (c)(14).

§ 3.18 Approvals If the approved applicant is in the United States, a notice of approval and an employment authorization document valid for the entire four-year period of U nonimmigrant status will be mailed to the advocate with a G-28 on file. The U nonimmigrant status approval document is Form I-797A, Notice of Action64 with a Form I-94, “Arrival-Departure Record,” incorporated into the bottom of the approval notice indicating U nonimmigrant status.65 The Employment Authorization Document is a card with the applicant’s picture, and a validity period of four years. A copy of a U Nonimmigrant Status Employment Authorization Document can be found at Appendix Y.

62

8 CFR 214.14(d)(2). There was initially confusion about whether Form I-765 for deferred action required a fee; USCIS has confirmed that there is a fee, but it can grant a fee waiver. See, e.g., Asista, Practice Advisory for U Conditional Approvals, (Feb. 2015) available at www.asistahelp.org/documents/news/Conditional_Approval_Advisory_FINAL_1A3257835074A.pdf. 64 8 CFR § 214.14(c)(5)(1); 8 CFR § 214.14(f)(6). 65 8 CFR § 214.14(c)(5)(i)(A); 8 CFR § 214.14(f)(6)(i). 63

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The employment authorization document will be mailed to the representative with a G-28 on file, or directly to the applicant. It is a card with the applicant’s photo, and a validity period of up to two years after the date of approval. That date will likely not be the same as the deferred action expiration date. An applicant may (and should) apply for an extension of employment authorization three months before the expiration date.

At the time of approval, USCIS will also send a list of referrals for nongovernmental organizations and resources for any follow up assistance needed. Approvals of the derivative beneficiaries’ I-918 Supplement As will also be sent to the principal applicant. A sample Form I918 approval notice and NGO referral list are at Appendix K. Principal applicants who are outside the United States will not receive an EAD until they have been admitted to the United States.66 See Chapter 9 for a discussion of consular processing for approved applicants abroad. Once admitted, they simply need to send a request to VSC with a copy of the approval notice, the U visa page in their passport, Form I-94, and a letter explaining the request for an EAD. No additional forms or fees are technically required, but it may facilitate the process to submit an I-765 with two photos and a fee waiver request.67 By contrast, a derivative who enters from abroad must file an I-765 upon entry in order to receive an employment authorization document. See Appendix PP for a sample cover letter to use in this situation.

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PRACTICE POINTER: Deciphering the Codes and Validity Periods. You may see a lot of different codes on your clients’ Form I-94 or EAD. Here is a guide to what they mean. U nonimmigrant status codes  Principal Applicant (U-1)  Spouse (U-2)  Child (U-3)  Parent (U-4)  Siblings (U-5) EAD codes  Principal Applicant (a)(19)  Derivative Applicant (a)(20)  Pending Adjustment Applicant (c)(9)  Deferred Action (c)(14) VSC currently back-dates all approved U-1 visas to October 1 of the current fiscal year, regardless of the actual date of approval (e.g., any approved U-1 issued in February 2016 would be back-dated to begin October 1, 2015). Visa approvals for derivative spouses, parents, and siblings are also back-dated and may not be granted for longer than the validity period of the principal petitioner. However, derivative children are granted visas for the full four years, and are not back-dated. This means that derivative children may have nonimmigrant status for a period that is longer than the principal applicant.

66 67

Id. 8 CFR § 214.14(c)(7).

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The Form I-94 may be detached from the I-797A Form and stapled into the new U nonimmigrant’s passport (be sure to make a copy of the intact form before cutting it up), but the EAD is most likely sufficient evidence of lawful status and may be easier for your client to carry than a passport. The EAD card is generally mailed directly to the applicant or applicant’s authorized representative within one month in most jurisdictions. In most states, the U status holder can use the EAD to apply for a Social Security Card. In states that restrict driver’s license eligibility to immigrants with lawful status, the EAD in categories (a)(19) and (a)(20) and social security card is sufficient evidence of lawful status to obtain a driver’s license or official state identification.68

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It is important to emphasize to your client that neither the I-94 nor the EAD will allow your clients to re-enter the United States without going to a U.S. consulate abroad to get an actual visa in their passport. It is extremely important to counsel your client about the next steps in the U status process, including the risks involved in leaving the United States, the expiration date of the U nonimmigrant status, and date of eligibility for permanent resident status. A video that explains these steps and risks can be found at www.youtube.com/watch?v=CoiT0Zbv7_A. For a thorough discussion of travel options and risks, see Chapter 9.

Travel Abroad. Warn your client against traveling outside the United States without consulting you first. In order to adjust her status to lawful permanent residence your client will need to have three years of continuous physical presence in U nonimmigrant status. As part of this requirement, she may not be outside the United States for more than 90 days at one time, or 180 days in total. Therefore, before she leaves, she must make sure that her return is secure and predictable. In the case of a U nonimmigrant, this will likely require contacting the U.S. Consulate in her home country to give her a “U visa” for entry to the United States as well as potentially also having to file for a new waiver if she triggers additional inadmissibility grounds when she departs the country. In the case of an applicant for adjustment of status, she must be granted advance parole before she leaves the United States. See Chapter 9 for more information on what to do if your client insists on traveling. Ongoing Cooperation with Criminal Case. Make sure your client understands that she has an ongoing responsibility to respond to requests for assistance from law enforcement officials in the criminal investigation or prosecution of the underlying crime. She cannot unreasonably refuse to provide assistance, as she could jeopardize her chances of getting a green card later or even have her visa revoked. This requirement does not mean that the applicant has to take affirmative actions to contact law enforcement. She only needs to respond to requests for assistance. 68

For more information about driver’s license eligibility around the country, see NILC, Access to Driver’s Licenses, available at www.nilc.org/driverlicenses.html.

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PRACTICE POINTER: Once U Nonimmigrant Status Has Been Granted. Now that your client’s U nonimmigrant status has been granted, make sure to remind her of the things she should do to maintain her status and to adjust her status to that of a lawful permanent resident down the road. Here are three key warnings to give:

Preserving Eligibility for Adjustment. Review the requirements for obtaining lawful permanent residence for U nonimmigrants with your client. For example, your client will need to prove that she has three years’ continuous physical presence in the United States (see Chapters 5 and 6) when she seeks to adjust status. Encourage her to start saving documentation of her presence now, so that she will have this evidence already collected when she is ready to adjust. Also warn her that any absence from the United States of more than 90 days and absences from the United States that total more than 180 days in the aggregate will cut off the three years of continuous physical presence she needs to adjust status. Your clients should also be advised that if they acquire certain kinds of criminal convictions after receiving U nonimmigrant status (or a green card), it could jeopardize their immigration status.

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Maintaining Relationship between the Principal and Derivative Applicants. USCIS has the authority to revoke, following a Notice of Intent to Revoke, a grant of U derivative status if the qualifying relationship is terminated.69 Situations in which the qualifying relationship may be terminated include divorce between the U-1 and U-2 status holders (see Chapter 5 for discussion of this issue), or the marriage of a U-3 status holder so that she is no longer a “child” under the Immigration and Nationality Act.70

§ 3.19 Denials As of this manual’s writing (February 2016), the denial rate of U nonimmigrant cases at the VSC was about 20-30% of cases.71 USCIS is required to provide the reasons for the denial in writing.72 If a U nonimmigrant status application is denied, the applicant is only given 33 days73 from the date on the denial notice to (1) file a motion to reopen, (2) file a motion to reconsider, or (3) appeal the denial.74 Each of these requests is made on Form I-290B. A filing fee of $630, or a fee waiver, must be submitted with the filing. See Appendix L for a model fee waiver request. An appeal is considered in a two-step process. The appeal is filed with VSC, which will take the first look. Per 8 CFR 103.3(a)(2)(iii), an appeal to the Administrative Appeals Office (AAO) includes a review by the adjudicating officer to decide whether favorable action is warranted before forwarding the case to the AAO. VSC will review the case within 45 days. If it fails to take favorable action, it will forward the entire file onto the AAO. Because of this, the appeal should be written as if it were an appeal to the AAO75 but then filed with VSC. Advocates report

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8 § CFR 214.14()(2)(E). INA § 101(b)(1). 71 USCIS, Number of I-918 Petitions for U Nonimmigrant Status 2009-2015, available at www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms% 20Data/Victims/I918u_visastatistics_fy2015_qtr4.pdf. 72 8 CFR § 214.14(c)(5)(ii); 8 CFR § 214.14(f)(6)(iii). 73 An applicant has 30 days to appeal, or 33 days if the decision was mailed. 74 8 CFR § 103.3. 75 8 CFR § 103.5(a)(6). 70

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that they have been able to submit new evidence with the appeal and USCIS will consider it. New evidence can also be faxed to the AAO.

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There are some cases where you may want to file a motion to reopen or reconsider instead of an appeal. A motion to reopen must be accompanied by new facts and/or documentary evidence that establish eligibility at the time of the U status filing. A motion to reconsider must provide citations to the statute, regulations or precedent decisions that serve as the basis for the motion. The motion to reconsider must establish that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence of record at the time of decision. Because VSC staff has specialized training on U nonimmigrant cases, many advocates prefer to file motions to reconsider and motions to reopen with VSC first. Advocates report that some issues such as proving substantial harm or a qualifying crime are difficult in an appeal to the AAO because the AAO does not accept fact-based arguments, and VSC does. Denials of the I-192 waiver cannot be appealed, so a motion to reconsider or a motion to reopen must be filed for those denials. The I-192 waiver application can also be re-filed after an initial denial. See Chapter 4 for more information on the I-192 waiver application.

While there is no written policy on this, USCIS has repeatedly stated that they do not place applicants in removal proceedings simply because their U nonimmigrant status application was denied.76 The risk of being placed in removal proceedings by applying for U nonimmigrant status is extremely low. There may be some very rare cases where a denied applicant will want to be placed in removal proceedings (i.e., to pursue cancellation of removal), but those should be researched extremely carefully before asking for the risky situation placing an applicant in removal proceedings. § 3.20 Duration and Extension of Status Applicants with an approved Form I-918 will be granted U nonimmigrant status for up to four years.77 Derivative family members may also receive up to four years of U nonimmigrant status, but their duration of status may not exceed the period initially approved for the principal applicant.78 The period of status will be indicated on the approved U nonimmigrant holder’s Form I-94 card. There are situations where derivatives will be granted less than the three years they need to be eligible for adjustment of status. For example, some principal applicants file their 76

Federal Bar Association Immigration Law Seminar (May 15, 2010). INA § 214(p)(6); 8 CFR § 214.14(g). 78 8 CFR § 214.14(g)(1). 77

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Finally, an applicant whose initial filing is denied may file a new U status application if she can obtain a new I-918 Supplement B and assemble the other required documentation. In such cases, any deficiencies or inconsistencies in the previously submitted application must be addressed and explained.

applications as soon as possible to gain legal stability, and submit I-918 Supplement As for their spouses or children later. Those derivative beneficiaries will only be granted status from the date of approval to the date the principal applicant’s status expires. Those derivatives will have to request an extension of their status (on Form I-539) and an extension of their employment authorization (on Form I-765). Derivative applicants whose I-918 Supplement A petitions were approved while they were abroad are considered in “U Nonimmigrant Status” starting on the date that they enter the United States. Sometimes this process takes months or even years if they are unable to obtain passports, or have other obligations in their home countries.

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The regulations and final memo (see copy in Appendix P) describe five situations, listed below, in which a U nonimmigrant or derivative may apply for an extension of status. In practice, USCIS has been very generous about granting extensions of status. 

First, a U nonimmigrant may apply for an extension of status where the initial approved period of stay was for less than four years in the aggregate.79 In this situation, the U nonimmigrant would file a Form I-539, “Application to Extend/Change Nonimmigrant Status.” According to the instructions to this form, it may be used to apply to extend the period of U nonimmigrant status to an aggregate period of four years (but it cannot be extended to a period of more than four years in the aggregate).



Second, a U nonimmigrant who already has four aggregate years of U nonimmigrant status may apply to extend that status beyond the four years if the certifying law enforcement official attests that the U nonimmigrant’s presence in the United States continues to be necessary to assist in the criminal investigation or prosecution.80 In this situation, the U nonimmigrant would file a Form I-539 and a new, updated Form I-918, Supplement B.81



Third, the four-year period of status may be extended if the applicant can show that an extension would be warranted due to “exceptional circumstances.”82 Another part of the statute describes “exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances)” as “beyond the control the alien.”83 This definition is used specifically in the sections of the statute codifying removal proceedings and cancellation of removal requirements. The USCIS policy memorandum released on April 19, 2011 did not provide more guidance for exceptional circumstances, other than examples of consular processing and special derivative circumstances, explained below in the fifth bullet point. However, on a Vermont Service Center stakeholder call held on February 15, 2012, VSC adjudicators indicated that “exceptional circumstances” would be evaluated on a case-by-

79

8 CFR § 214.14(g)(2)(i). 8 CFR § 214.14(g)(2)(ii). 81 Id. 82 INA § 214(p)(6). 83 INA § 240(e)(1). 80

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base discretionary basis and something like “being in the hospital in a coma” might qualify. Fourth, the four-year period of status shall be extended during the pendency of the adjustment application as a U nonimmigrant.84 This protects adjustment of status applicants from falling out of U nonimmigrant status if there is a delay in submitting or adjudication of that application.85 However, the automatic extension does not extend the period of authorized employment. If an applicant needs to extend her work authorization while the adjustment application is pending, she can file Form I-765 under the (c)(9) category along with or after filing the adjustment application if their work permit is likely to expire before their adjustment is granted. If an applicant who did not submit a category (c)(9) I-765 with the adjustment of status application receives a Request for Evidence, she should file the category (c)(9) I-765 immediately, because it is extremely likely that the RFE will delay adjudication of the adjustment of status application beyond the validity period of the work permit based on U nonimmigrant status (categories (a)(19) and (a)(20).



Fifth, a derivative can extend her duration of status beyond the date of the principal U nonimmigrant’s status when the derivative family member’s entry into the United States is delayed through consular processing and an extension is necessary to ensure that the derivative can attain at least three years in nonimmigrant status for the purposes of adjustment.86 The final USCIS policy memorandum (attached under Appendix P) defined this situation as an exceptional circumstance by explaining that where an approved derivative has not been issued a U visa or entered the United States, and the principal’s nonimmigrant status is soon to expire, “the principal can seek an extension of status based on exceptional circumstances, making sure to indicate on the Form I-539 that the extension should be applied to the derivatives as well, and then wait for the derivatives to enter the United States before applying for adjustment of status.”87 This step will prevent expiration of the derivative U nonimmigrant status and the resulting ineligibility for admission into the United States. Alternatively, the principal U nonimmigrant can file Form I-929, “Petition for Qualifying Family Member of a U-1 Nonimmigrant,” concurrently or after approval of the principal’s Form I-485, for certain derivative family members who have never held derivative U nonimmigrant status. After approval of Form I-929, the derivative can apply for a visa at a consulate to enter the United States as a legal permanent resident.88 See Chapter 7 for more information about assisting family members. The same final USCIS policy memorandum (see Appendix P) allows VSC to consider delays other than consular processing to extend U nonimmigrant status for a derivative

84

INA § 214(p)(6). Id. 86 8 CFR § 214.14(g)(2)(i). 87 USCIS, Extension of Status for T and U Nonimmigrants (Apr. 19, 2011), available at www.ilrc.org/files/documents/exten.status-tandu-nonimmigrants.pdf. 88 Id. 85

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family member whose initial period of stay is less than four years.89 According to this memorandum, an extension may be approved for “any reason that is consistent with the goals of the statute,” including but not limited to where the qualifying family member is unable to enter the United States due to delays in consular processing, and where an extension of status is necessary to ensure that the qualifying family member is able to attain at least three years in nonimmigrant status for purposes of adjusting status as a U nonimmigrant. This memorandum revised the Adjudicator’s Field Manual (AFM) to include new Chapter 39.1(g)(2)(i) to reflect these changes. In the situation of derivatives, such an extension should not exceed four years in the aggregate.

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Example: Ruben’s U-1 nonimmigrant application was approved in 2014 with an expiration date of January 23, 2018, as was the U-2 derivative application he filed for his wife Monica. However, because of delays in consular processing, Monica was not able to enter the United States and start accruing U-2 nonimmigrant status until 2016. By the time Monica’s U-2 nonimmigrant status is set to expire (January 23, 2018) she will not have the three years’ U nonimmigrant status that is required for her to adjust status. However, under this provision of the law, she should be able to extend her status. The final USCIS policy memorandum refers to exceptional circumstances generally. So the same provision will apply to derivatives that will not have accrued the required three years before the expiration of the principal’s application for exceptional circumstances other than consular processing. For example, if the derivative, despite all reasonable efforts was unable to obtain a passport for travel until less than three years before the expiration of status, she should be able to obtain an extension after entering the United States. The final policy guidance memorandum also indicates that requests for extension of status should include Form I-539, the justification for the extension, filing fee, supporting documents including evidence of U status for both the principal and derivative, evidence showing all dates in that status, evidence of adjustment of status of the principal (if applicable), evidence of relationship with U visa principal, and applicant’s statement of need and reason(s) for extension. All extension requests should be filed with VSC regardless of where the applicant resides. Make sure to check the USCIS website for any additional instructions on the Form I-539 related to filing such an application. A fee waiver request is available to waive the $290 filing fee required for Form I-539.90 

Sixth, USCIS can extend age-out protection to certain U-3 derivatives and grant derivative U nonimmigrant status for the full four-year validity period if the derivative child meets the definition of “child” (unmarried and under 21 years old) at the time the U-1 principal applies for U nonimmigrant status, regardless of whether the derivative child will become 21 years of age during the four-year validity period after the initial approval. A U nonimmigrant derivative child whose status expired upon turning 21 years

89

Id. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 5044 (TVPRA 2008), sec. 201(c)(7). 90

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of age may file for an extension of derivative U nonimmigrant status by filing Form I539.91 If approved, USCIS will grant the extension of U nonimmigrant status dating back to the derivative’s 21st birthday, which was the date the previously authorized derivative U nonimmigrant status expired. Upon approval of the extension of status, the remaining time of the four-year statutory limit of U nonimmigrant status will be granted.

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USCIS will send the derivative child an approval notice with an I-94, Arrival-Departure Record, reflecting the full four-year validity period of U nonimmigrant status. For derivative children who are overseas, USCIS will send the principal petitioner an approval notice and will forward the notice and all other necessary documentation to the Department of State for delivery to the proper U.S. Embassy or Consulate. The overseas derivative will have the responsibility of scheduling an appointment with the U.S. Embassy or Consulate to apply for the U visa and of entering the United States in U nonimmigrant status before reaching 21 years of age.

Example: In 2013, Jackie was granted U-3 derivative status. In 2014, Jackie’s U-3 derivative status expired on her 21st birthday, when she had only been in U nonimmigrant status for one year. Fortunately, however, she filed a Form I-539 extension of status. Upon the approval of the Form I-539, the remaining three years of derivative U nonimmigrant status were granted her, dating back to when her initial derivative U nonimmigrant status ended in 2014. It is now 2016. Since her extension of derivative U nonimmigrant status was approved in 2014 and she has had U nonimmigrant status for three years, Jackie can now adjust and has one year remaining in derivative U nonimmigrant status before that status expires. U nonimmigrant status holders who take a trip out of the United States for longer than 90 days or more than 180 days in the aggregate may also try to file an extension of status request so that they have enough time to meet the three-year continuous residence requirement for adjustment. These requests are decided on a case-by-case basis. See Chapter 9.

91

USCIS, Interim Policy Memorandum PM-602-0077: Age-Out Protection for Derivative U Nonimmigrant Status Holders: Pending Petitions, Initial Approvals, and Extensions of Status (Oct. 24, 2012), attached at Appendix P.

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Additionally, if a derivative child had previously received an initial grant of U nonimmigrant status for a period of less than four years, is still currently in U nonimmigrant status, and has yet to turn 21 years of age, USCIS will extend derivative status up to a total of not more than four years, regardless of whether the derivative child would age-out during this extended time period. The derivative U nonimmigrant should request this extension by filing Form I-539. This procedure will allow the derivative child the ability to meet the necessary physical presence requirement to apply for adjustment of status to lawful permanent resident. Any subsequent extensions beyond the statutory four-year period would need to fall within the extension provisions of INA § 214(p)(6).

As of this manual’s writing (February 2016), advocates report that Form I-539s can be filed at any time before the expiration of U nonimmigrant status and take approximately four to five months to be processed. Many advocates file the I-539 for derivatives who enter the United States with U visas at the same time as they submit I-765s for those derivatives. VSC has approved the I-539s, giving the derivatives a full four years from the date of entry. The EAD reflects the same expiration date as well. § 3.21 Revocation of U Nonimmigrant Status

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U nonimmigrant status may be revoked. There are two ways in which U nonimmigrant status may be revoked: 1) automatically, and 2) with notice.92 Revocation of a principal alien’s approved Form I-918 will result in termination of status for the principal alien, as well as in the denial of any pending Form I-918 Supplement A filed for qualifying family members seeking U-2, U-3, U4, or U-5 nonimmigrant status.93 Revocation of a qualifying family member’s approved Form I918 Supplement A will result in termination of status for the qualifying family member only.94 Revocation of an approved Form I-918 or Form I-918 Supplement A also revokes any waiver of in admissibility granted in conjunction with such petition.95 According to the regulations, U nonimmigrant status will be automatically revoked if an approved applicant for U-1 nonimmigrant status notifies USCIS that she will not apply for admission to the United States and therefore will not be using the petition.96 This appears in part to ensure that that petition will not be counted against the statutory cap of 10,000 U-1 approvals per fiscal year. U nonimmigrant status may also be revoked following a notice of intent to revoke based on one or more of the following reasons:     

The certifying law enforcement official withdraws the U nonimmigrant status certification or disavows the contents in writing; Approval of the petition was in error; There was fraud in the petition; In the case of a U derivative (e.g., a U-2, U-3, U-4, or U-5 nonimmigrant), the relationship to the principal petitioner has terminated (although this does not always lead to revocation); or In the case of a U derivative (e.g., a U-2, U-3, U-4, or U-5 nonimmigrant), the principal U-1’s nonimmigrant status is revoked.97

In such cases, the notice of intent to revoke must be in writing and contain a statement of the grounds of revocation and the time period allowed for the U nonimmigrant’s rebuttal. The 92

8 CFR § 214.14(h). 8 CFR § 214.14(h)(4). 94 Id. 95 Id. 96 8 CFR § 214.14(h)(1). 97 8 CFR §§ 214.14(h)(2)(i)(A)–(E). 93

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U nonimmigrant may submit evidence in rebuttal within 30 days of the date of the notice, and USCIS shall consider all relevant evidence presented in deciding whether to revoke the approved petition for U nonimmigrant status. The determination of what is relevant evidence and the weight to be given to that evidence is within the sole discretion of USCIS.98

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If USCIS revokes approval of a petition and thereby terminates U nonimmigrant status, USCIS will provide the immigrant with a written notice of revocation that explains the specific reasons for the revocation.99 A revocation on notice may be appealed to the Administrative Appeals Office in accordance with 8 CFR 103.3 within 30 days after the date of the notice of revocation, and 33 days if the decision was mailed. Automatic revocations may not be appealed.100 § 3.22 Public Benefits and Other Benefits

Eligibility requirements for public benefits vary state to state. Federal law provides that noncitizens who are not “qualified aliens” are ineligible for state or local public benefits.103 However, the law also grants states the authority to provide state and local public benefits to noncitizens through the enactment of any state law that “affirmatively provides for such eligibility.”104 For information on specific states, consult resources and legislation regarding that

98

8 CFR § 214.14(h)(2)(ii). Id. 100 8 CFR § 214.14(h)(3). 101 The Violence Against Women Act Reauthorization of 2013, § 804, codified at INA § 212(a)(4)(E)(ii). 102 VAWA 2013, § 804; see also USCIS, Memorandum Implementing VAWA 2013 (June 2014), attached at Appendix P. 103 8 USC § 1621. 104 8 USC § 1621(d). 99

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Access to public benefits such as food stamps, Medicaid, and Temporary Assistance to Needy Families (TANF) can be critical forms of support for immigrants, including U applicants. Despite their eligibility, many immigrants do not access the public benefits they qualify for. Some fear becoming a “public charge,” which would make them inadmissible and unable to obtain certain visas or pursue certain paths to lawful permanent resident status. However, the VAWA Reauthorization of 2013 specifies that the onerous “public charge” ground of inadmissibility does not apply to U nonimmigrant status applicants or derivative U nonimmigrant status applicants.101 They will not have to submit a waiver for the public charge ground of inadmissibility. As of this manual’s writing (February 2016), the question relating to the use of public benefits still appears on the Form I-918, but the draft revised form released by USCIS for comment no longer had the question listed. Advocates should check the USCIS website to ensure that they are using the correct version of the form. U nonimmigrant applicants should write “not applicable” in response to the question if it still appears.102 See Chapter 4 for more information on inadmissibility issues for U applicants.

particular state. The National Immigration Law Center105 is a good place to start in researching possible resources for this information. Both California and New York have enacted public benefits laws and are discussed in more detail below.

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California Public Benefits for U Nonimmigrants California state law SB 1569 allows noncitizens who are applicants for U and T nonimmigrant status to apply for state and local benefits and social services programs such as: Refugee Cash Assistance (RCA), California Food Assistance Program (CFAP), CalWorks, Cash Assistance Program for Immigrants (CAPI), In-Home Support Services (IHSS), Employment Social Services, Medi-Cal, General Assistance (GA), State Food Stamps, and Healthy Families, if they meet the eligibility requirements of the respective programs. Note that many states make benefits available for immigrants who are deemed to be “Permanently Residing Under Color of Law” (PRUCOL). However, SB 1569 makes U nonimmigrant status applicants eligible for the benefits mentioned above regardless of whether the program considers them to be PRUCOL. Eligibility for benefits and social services programs under SB 1569 require the U nonimmigrant status applicant to verify that she has submitted an application for U (or T) nonimmigrant status to USCIS. The most common verification document is the I-918 receipt notice.106 In California, three guidance memoranda have been issued to county agencies to explain the changes under SB 1569: California All-County Letter (ACL) 06-60 and 08-15 from the Department of Social Services, and California ACL 15-25 from the Department of Health Care Services.107 Even with the ACL, many eligibility workers are reluctant to approve applications, particularly because they are accustomed to requiring a social security number in order to process requests for benefits. Advocates may need to assist clients by explaining the process to supervisors (verbally or by sending the client with a letter), requesting trainings of eligibility workers, and contacting eligibility workers on a case-by-case basis. Copies of ACLs 06-60, 08-15, 15-25, a cover memorandum for local social and health service staff, and a sample letter explaining verification of public benefits eligibility for U nonimmigrant applicants in California are at Appendix Z. Please also see the National Immigration Law Center guide, Benefits for Immigrant Victims of Trafficking, Domestic Violence, and Other Serious Crimes in California, at www.nilc.org/document.html?id=889. New York Public Benefits for U Nonimmigrants108 In New York, those who have been granted deferred action status are considered Permanently Residing Under Color of Law (PRUCOL), and therefore eligible for the state’s Safety Net Assistance program under New York Social Service Law § 122(1)(c). New York’s Office of 105

The National Immigration Law Center’s resources on public benefits are available at www.nilc.org/accesstobens.html. 106 For more information on eligibility for benefits and services available under SB 1569, see California All-County Letters (ACL) No. 06-60, 08-15, and 15-25 attached at Appendix Z. 107 All-County Letters are available by year at www.cdss.ca.gov/lettersnotices/PG931.htm. 108 Thank you to Julie Dinnerstein from The Law Office of Julie E. Dinnerstein in Manhattan, New York and Barbara Weiner at Empire Justice Center in Albany, New York for their contributions and help on this section.

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Temporary and Disability Assistance (OTDA) published clarification of what is considered PRUCOL for the purposes of the state’s welfare program. The list includes deferred action specifically related to U visas.109 Although New York law does not include PRUCOL as an eligible category in the Medicaid program, the 2001 decision of New York’s Court of Appeals in Aliessa ex rel. Fayad v. Novello110 held the exclusion to be unconstitutional. As a result, people with deferred action and people in U nonimmigrant status are treated identically in New York and are eligible for New York state-funded versions of Medicaid and TANF. Although the statute has not been amended to reflect the court’s decision, the New York State Department of Health has issued policy memoranda to implement the decision, specifying that deferred action is included within the PRUCOL category.111 Attachment D-1 of the memoranda provides an easy-to-read list of the various eligibility categories in New York’s Medicaid program. Additional notices have been issued to clarify eligibility requirements and aid eligibility workers. A general desk aid for New York’s local welfare districts determining immigrant eligibility for the welfare and food stamp programs was issued by OTDA in May 2006 at 06-INF 14.112 An informational letter was issued to local district commissioners in March 2007 at 07 OHIP/INF-2.113

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Other Benefits Programs114

Example: Steliana is an undocumented immigrant who is married to a lawful permanent resident. Her two children, Zoe and Jay, were born in the United States. In her state, Steliana is not eligible for food stamps or TANF, but she still receives them on behalf of Zoe and Jay who are eligible. Receiving public benefits on behalf of her children will not hurt Steliana’s future chances at obtaining U nonimmigrant status or any other immigration status. Advocates should review their client’s entire situation, including possible family members’ immigration status and special state programs, to find creative ways to access these critical benefits. For example, Section 8 housing is a federal program, and thus it is does not vary from

109

See New York State’s GIS 07 TA/DC011: Permanently Residing Under Color of Law (PRUCOL), which explicitly recognizes that immigrants “granted deferred action as interim relief for a “U” visa are PRUCOL and eligible for Safety Net Assistance.” 110 Aliessa ex rel. Fayad v. Novello, 96 N.Y.2d 418 (2001). 111 New York State Department of Health Policy Memorandum 04 OMM/ADM 7. 112 See https://otda.ny.gov/policy/directives/2006/INF/06-INF-14.pdf. 113 See www.health.ny.gov/health_care/medicaid/publications/docs/inf/07inf-2.pdf. 114 Thank you to Tanya Broder at the National Immigration Law Center (NILC) for her contributions and help to previous versions of this section.

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While there are many restrictions on public benefits eligibility for undocumented (and even permanent resident) noncitizens, “mixed-status” families may still be eligible for benefits. In other words, some families may be comprised of individuals with different types of immigration status—for example, one undocumented parent, one permanent resident parent, and U.S. citizen children. In such cases, the family may be eligible for some benefits based on the children’s eligibility, even if the undocumented parent cannot receive any benefits.

state to state.115 Undocumented crime victims are not eligible for Section 8 housing simply by virtue of having U nonimmigrant status. However, if at least one person in the family has eligible status (including a U.S. citizen child), the family can apply for a Section 8 voucher. The amount of the subsidy will simply be pro-rated to reflect the portion of eligible recipients in the family. Further, some housing developments receive a mix of federal and state funding. Projects or specific units funded by Section 8 are subject to immigration restrictions, while other units may be available without such restrictions. Outside of the Section 8 context, some housing developments receive state or local funds (or certain other federal funds), which do not impose any immigrant restrictions. Whenever clients are applying for public benefits, it is important to remind them to be truthful in their applications and to report all of their income. Receipt of public benefits is unlikely to negatively impact their U nonimmigrant status application, but a conviction for welfare fraud might.

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Federal Foster Care and Unaccompanied Refugee Minor Protections for Certain U Nonimmigrants Principal U nonimmigrants and derivative U nonimmigrants are eligible for certain refugee benefits and placement in federal foster care under the Unaccompanied Refugee Minors Program.116 To access this benefit, eligible U nonimmigrant children must apply with the Department of Health and Human Services (HHS) and be placed prior to turning 18 years of age.117 In-State College Tuition In some states, U nonimmigrants may also be eligible to receive in-state college tuition.118 In California, undocumented students who are residents of the state and meet certain other requirements are eligible to pay the lower in-state tuition rate of any California resident despite their undocumented status. In 2012, special legislation (AB 1899) was enacted to ensure that U nonimmigrants are also eligible for in-state tuition rates even though most other nonimmigrants are not eligible. Some colleges and universities have counselors or social workers who may be able to help your client access in-state college tuition or other education-related benefits by advocating on their behalf. Attached at Appendix AA is information on how students in U nonimmigrant status qualify for in-state college tuition in California through AB1899. The National Immigration Law Center’s website is also a good resource for information about in-state tuition possibilities around the country.119

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Section 214 of the 1980 Housing and Community Development Act, 42 USC § 1436a outlines the guidelines for noncitizen eligibility for benefits under that law. 116 VAWA 2013, § 1263. 117 See USCIS, Memorandum Implementing VAWA 2013 (June 2014), attached at Appendix P. 118 In California, undocumented student eligibility for in-state tuition under AB 540 (the “California DREAM Act”) was extended to U Nonimmigrants by AB 1899 in 2012. 119 For more information, go to www.nilc.org/highered.html.

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Additionally, “battered immigrant-qualified alien” and T nonimmigrant status holders are eligible for federal financial aid. A battered immigrant-qualified alien is an immigrant who was abused by a U.S. citizen or legal permanent resident spouse or designated by VAWA. More information is available at the Department of Education’s Federal Student Aid Office’s website at https://studentaid.ed.gov/sa/eligibility/non-us-citizens.

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Military Benefits for Naturalization In 2008 the Department of Defense created the Military Accessions Vital to the National Interest (MAVNI) Program, authorizing the Army, Navy, and Air Force to recruit and enlist certain legal noncitizens into active duty if they possess critical language and culture skills in one of 49 “critical” languages. The MAVNI program allows certain nonimmigrants (including U nonimmigrants) to join the U.S. Armed Forces and immediately apply for U.S. citizenship without first obtaining lawful permanent residence.120 To be eligible, the U nonimmigrant must be legally present in the United States for a minimum of two years without a single extended absence over 90 days and meet criteria including: a high school diploma, qualifying scores on the Armed Forces Qualification Test, and proficiency in the native language. For a good article on developments and benefits for noncitizens who are enlisted in the military, see Margaret D. Stock’s article entitled, “Recent Developments in Military Enlistment and Naturalization Law.”121

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120 121

For more information, go to www.goarmy.com/info/mavni. Immigration Briefings, No. 11-03 (Mar. 2011).

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CHAPTER 4 INADMISSIBILITY GROUNDS AND I-192 WAIVER

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This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11

Overview of Inadmissibility and Waivers .......................................................... 4-1 Common Grounds of Inadmissibility ................................................................. 4-2 Identifying an Applicant’s Grounds of Inadmissibility to be Waived................ 4-3 Addressing Inadmissibility on the Form I-918 ................................................... 4-9 Filling Out Form I-192 ..................................................................................... 4-11 Documenting Why the Applicant Merits a Waiver .......................................... 4-14 Filing Fees and Fee Waivers ............................................................................ 4-19 Requests for Evidence (RFEs) ......................................................................... 4-19 I-192 Denials and Resubmissions .................................................................... 4-19 Inadmissibility Factors Discovered or Triggered after Filing the I-192 ........... 4-20 Whether a Granted I-192 Waives the Inadmissibility Grounds for Other Purposes ........................................................................................................... 4-22

§ 4.1

Overview of Inadmissibility and Waivers

Example: Lupe has been afraid to apply for any immigration benefit because she has a number of immigration violations in her past. She originally entered the United States without permission, remained here for several years before returning to Mexico to visit her son, reentered the United States without permission, and made arrangements to have 1 2

INA § 212(d)(14). 8 CFR 212.17 (citing Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996)).

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All applicants for U nonimmigrant status, including derivative family members of U principal applicants (see Chapter 7) are subject to the grounds of inadmissibility in § 212(a) of the Immigration and Nationality Act. Because U nonimmigrant status was largely created to assist the most vulnerable immigrants—victims who would otherwise fear reporting crime due to their undocumented status—most applicants have violated at least one of the grounds of inadmissibility. Therefore, under INA § 212(d)(14), U nonimmigrant applicants may apply for a waiver of any inadmissibility ground except those in INA § 212(a)(3)(E) [participants in Nazi persecutions, genocide, torture or extrajudicial killing]. This is one of the most generous waivers in all of immigration law and does not apply in most other immigration applications. The statute authorizes USCIS to grant a waiver when a waiver would be in the “public or national interest.”1 There is no published standard and this is a highly discretionary determination. In using its discretion, USCIS must balance negative factors with the social and humane considerations presented by the applicant.2

her son smuggled into the country. Despite her fears about her immigration status, Lupe was helpful in the criminal investigation of her boyfriend when he began abusing her. If Lupe meets the requirements for U nonimmigrant status, she could apply for it along with a waiver of all of the grounds of inadmissibility that she may have triggered. This is because under INA § 212(d)(14) she may be eligible for the special U nonimmigrant provisions to waive those grounds. § 4.2

Common Grounds of Inadmissibility

Some of the more common inadmissibility grounds are listed below, followed by the corresponding citations to the Immigration and Nationality Act. They include those related to: 

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



    

health grounds, including o communicable diseases, INA § 212(a)(1)(A)(i); o physical or mental disorders that may pose a threat to the applicant or public, INA § 212(a)(1)(A)(iii); o drug abuse or drug addiction, INA § 212(a)(1)(A)(iv); immigration violations, including o being present in the United States without admission or parole (also known as entering without inspection or EWI), INA § 212(a)(6)(A); o failure to attend removal proceedings, INA § 212(a)(6)(B); o misrepresentation or fraud for an immigration benefit, INA § 212(a)(6)(C)(i); o false claim to U.S. citizenship, INA § 212(a)(6)(C)(ii); o alien smuggling, INA § 212(a)(6)(E); o civil document fraud, INA § 212(a)(6)(F); o prior removals, INA § 212(a)(9)(A); o unlawful presence of more than 180 days or more than a year followed by a departure from the United States, INA § 212(a)(9)(B); o unlawful entry to United States after more than one year in unlawful presence or after prior removal, INA § 212(a)(9)(C)(i)(1); criminal acts or convictions, including o crimes involving moral turpitude, INA § 212(a)(2)(A)(i)(I); o controlled substance (illegal drug) convictions, INA § 212(a)(2)(A)(i)(II); o the Department of Homeland Security (DHS) has “reason to believe” the applicant trafficked (sold or transported) drugs, INA § 212(a)(2)(C)(i); o prostitution, INA § 212(a)(2)(D)(ii); security or terrorism issues, INA § 212(a)(3); public charge, INA § 212(a)(4)—U applicants are specifically exempt from this ground; polygamy, INA § 212(a)(10)(A); unlawful voting, INA § 212(a)(10)(D); and no passport, or expired passport, INA § 212(a)(7)(B)(i).

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The ILRC publishes a manual entitled, Inadmissibility & Deportability (www.ilrc.org) which discusses in detail these grounds of inadmissibility and the general (not U-specific) waivers available to overcome them.3 The rest of this chapter focuses on ways to gather information about whether your client might be inadmissible and how to file for a waiver of inadmissibility for U nonimmigrant applicants.

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PRACTICE POINTER: Public Charge Ground of Inadmissibility No Longer Applies. The VAWA Reauthorization of 2013 specifies that the “public charge” ground of inadmissibility does not apply to U nonimmigrant status applicants or derivative U nonimmigrant status applicants.4 They will not have to submit a waiver for the public charge ground of inadmissibility nor try to prove that they are not a public charge or likely to become one. As of this manual’s writing (February 2016), the question relating to public charge still appears on the Form I-918 but USCIS has plans to remove it. U nonimmigrant applicants should just answer the question accurately as long as the question still appears but with the knowledge that the answer has no bearing on inadmissibility.5

§ 4.3

Identifying an Applicant’s Grounds of Inadmissibility to be Waived

The two main ways that advocates and applicants identify what inadmissibility factors may apply in the applicant’s circumstances are (1) an intake interview and background check that identify inadmissibility grounds; and (2) completing the I-918 application form with the client. Many advocates also request FBI background checks and/or Freedom of Information Act (FOIA) requests from USCIS, ICE, and/or Customs and Border Protection (CBP). Intake Interview

3

Like all ILRC manuals, this can be ordered online at www.ilrc.org/publications. The Violence Against Women Act Reauthorization of 2013, Section 804, codified at INA § 212(a)(4)(E)(ii). 5 VAWA 2013, Section 804; see also USCIS, Violence Against Women Reauthorization Act 2013 (June 2014), attached as Appendix P. 4

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Appendix G includes intake forms developed by several experienced U status legal service providers. These forms are completed by the advocate based on information provided by the applicant. This helps ensure that the applicant is not confused by the questions and simply marks “no” because it seems the safest thing to do. Many practitioners find it useful to ask questions several different ways, because applicants may not recognize that they were arrested or charged when in fact they were or may be otherwise confused by some of the more complicated legal questions. Practitioners also ask questions that alone may not mean something bad happened (for example, have you ever had your fingerprints taken?), but a “yes” answer may indicate that the person had a problem that she was not aware of. Some of the questions include:

         

Have you ever been stopped by immigration authorities? Have you ever been stopped by any law enforcement officer? Have you ever been in front of a judge? Have you ever had an attorney? Have you ever signed any immigration forms? Have you ever had your fingerprints taken? Have you ever helped someone come to the U.S. without papers? Have you ever used false documents to come to the U.S? Have you ever claimed to be a U.S. citizen? Have you ever told a lie or hid the truth to get a visa or to come into the United States?

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Many people with criminal or immigration violations may be reluctant to share this information. They may be embarrassed, ashamed, or unclear why this information is important. For this reason, it is critical to explain why you asking these questions and emphasize the importance of getting accurate, thorough information from a client. DHS will take fingerprints from U nonimmigrant status applicants shortly after the I-918 is submitted and run them through numerous databases to identify criminal and immigration violations, so it is almost impossible to hide any violations. The advocate should convey to the client that it is therefore essential that she know the applicant’s criminal and immigration history before she submits a U nonimmigrant status application for the client to avoid submitting false or inconsistent information to ensure that everything applicable is waived, and to have the best chances for approval. Disclosing all relevant information is also important in order to preserve the applicant’s credibility because if something is not disclosed and then comes out later, USCIS will wonder what else the person has tried to hide. In addition to soliciting this information directly from the client, many service providers do background checks as well, as detailed below. Note that background checks, such as an FBI background check or a Freedom of Information Act request, may take several months. Clients who need to submit their applications immediately will need to give accurate information as best they can without these background checks; if the clients have criminal histories, they could get documentation more quickly through a Live Scan request or through court-specific records requests (but see warning below). The I-918 Application Form The questions in Part 3 (pages 3–7) of the I-918 application have been included to determine an applicant’s admissibility. However, it is important to note that not every ground of inadmissibility is addressed in these questions, and the I-918 questions must be supplemented with one or more of the additional inadmissibility checks (intake questionnaire, FBI report, or FOIA request) described here. Most advocates and applicants will want to get started on the U nonimmigrant application and inadmissibility waiver on Form I-192 before the results of an FBI background check or FOIA come back, and that is why it is also useful to ask questions in the Intake Interview process. Some practitioners will not submit a U application until the FBI check comes back. Others submit the I-192 with the I-918, providing evidence to support a discretionary determination based on

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what they already know about the applicable inadmissibility issues. Even after an application is submitted, an applicant can supplement her application if something unexpected shows up on her background check.

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Example: Martha came from El Salvador, through Mexico to the U.S. border. When she tried to cross the border near Phoenix, Arizona, she was arrested by Customs and Border Protection. An official asked her if she feared returning to her home country, and she answered that she was. She was given a paper and told she was free to go, but that she would have to attend a hearing in court. Martha did not give the officials a valid address, and instead decided to leave the United States. Later, Martha entered the United States without inspection and traveled to Chicago. She lived there for several years. While living in Chicago, she was a victim of crime and started to apply for U nonimmigrant status. The advocate at the community agency that assisted her got her fingerprints taken and sent the prints to the FBI. When the results came back, they showed that Martha had been ordered removed from the United States by an immigration judge in Phoenix. This happened because she did not go to court, and she was ordered removed “in absentia.” Example: Julia met a “notario” in Phoenix, Arizona who told her he could get her a green card, and she only had to sign some papers. Julia paid the notario $4,000 and signed several forms. The notario said it would be safest if the forms used his address, and not hers. After that, the notario moved out of his office and stopped answering his phone. Julia did not know whether he ever filed an application for her because she did not receive any notices from Immigration. In 2015, Julia was a victim of crime in Houston, and she started to apply for U nonimmigrant status. The advocate at the community agency that assisted her got her fingerprints taken and sent the prints to the FBI. When the results came back, they showed that Julia had been ordered removed from the United States by an immigration judge in Phoenix. This happened because the notario submitted an application for asylum, which was denied and she was placed in removal proceedings. When she did not go to court for those proceedings, she was ordered removed “in absentia.” Criminal and Immigration Background Checks

6

National Employment Law Center, Wanted: Accurate FBI Background Checks for Employment (July 2013) (finding that fifty percent of FBI records fail to include information on the final disposition of a criminal case), available at www.nelp.org/content/uploads/2015/03/Report-Wanted-Accurate-FBIBackground-Checks-Employment.pdf.

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FBI (Federal Bureau of Investigation). If your client has ever been arrested or detained by federal law enforcement, including by immigration authorities at the border, the FBI may have a record of it. The FBI also has access to some state criminal records. An FBI check based on an applicant’s fingerprints can thus provide a summary of an applicant’s interactions with federal and state law enforcement. This can be especially helpful if an applicant has criminal histories from multiple states. Unfortunately FBI checks are often inaccurate or incomplete.6 However, they are a good starting place. Even where the FBI summary is not complete, it will generally

provide dates, locations, and case numbers for the applicant’s arrest history and possible other names the applicant used when arrested. This information may, in turn, help the applicant request criminal history dispositions from courts with jurisdiction over the location where the applicant was arrested. The FBI check may often, but not reliably, provide an account of the applicant’s removals from the United States. Even where it is not complete, if it shows some kind of immigration enforcement process, it often shows the applicant’s A (alien registration) number, which can be used on a FOIA request or case status inquiry to the Executive Office for Immigration Review (EOIR) telephonic information line (1-800-898-7180). A sample of an FBI report indicating an expedited removal is attached as Appendix DD. To request an FBI background check the applicant needs to submit 1) a completed and signed FBI background check request form;7 2) a completed set of ten fingerprints on a FD-258 card available at most fingerprint locations; 3) appropriate payment; and 4) cover letter (although the cover letter is optional). Many fingerprint agencies require official government identification to take the prints, and an advocate may need to call a local fingerprinting site to explain why an applicant does not yet have official identification and essentially vouch for the applicant. Send the fingerprint card with an $18 signed money order payable to Treasury of the United States. It is also best practice to include a cover letter to the FBI requesting a background check, signed by the person getting the background check. See Appendix CC for a model letter. When you submit an FBI check request, you should use your office address rather than the client’s home address for her protection. Mail the request to: Federal Bureau of Investigation Criminal Justice Information Service Division Special Correspondence Unit 1000 Custer Hollow Road Clarksburg, West Virginia 26306

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As of this manual’s writing (February 2016), it generally takes about 13-15 weeks to get the results of an FBI background check but hopefully this is a temporary backlog and the processing times will soon go back to the usual 8 week timeframe. State Background Checks. If an applicant only has criminal history in one state, or if you are looking for a summary of criminal history in a particular state, you can request a background check from that state. Many state departments of justice will provide an applicant’s state criminal history within just a few days if she submits the request through a Live Scan digital fingerprint process. It can cost around $50. Remember that this only reports contacts with law enforcement in that state—not border detentions or removal processes (other than detentions by ICE in a state jail)—and so is often a good complement, not substitute, for an FBI background check. Note that Live Scan providers, even private ones such as UPS stores, often insist on U.S. identification documents so it may be challenging for your client to obtain a Live Scan check with only an ID from her home country. 7

FBI Record Request Form, I-783, available at https://forms.fbi.gov/identity-history-summary-checksreview/q384893984839334.pdf.

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FOIA (Freedom of Information Act). Applicants who have had any interaction with immigration authorities, such as if they have been removed, ordered removed, or have applied for other immigration relief in the past may also choose to submit a Freedom of Information Act (FOIA) request. DHS keeps an immigration file (also known as an “A-file”) on all immigrants with whom it comes into contact. Fortunately, a person is entitled under FOIA to request a copy of her A-file, as well as other immigration records, from any of the DHS agencies—USCIS, CBP, ICE, or U.S. Office of Biometrics Identity Management (OBIM, formerly US-VISIT)—that may hold immigration records. A person can also file a FOIA request with the Executive Office for Immigration Review (EOIR) at the Department of Justice, the consulates at the Department of State, or any other federal agency. Many states have state FOIA laws that similarly mandate disclosure of information from state agencies pursuant to a request.

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Because each department is responsible for responding to FOIA requests for its own records, it is important that before submitting your FOIA request, you determine which department is likely to have the records you are seeking and direct your request to that department. Each agency, and each component of each agency, also has different requirements for how and where to submit a FOIA request. Please see Appendix YY for a step-by-step practice advisory for how to file a FOIA with USCIS, ICE, CBP, and OBIM, including information on applicable fees and expedited requests. It is often difficult for government agencies to locate records based solely on the client’s name, so if time is not an issue, it can be a good practice to file the FBI request first. If the FBI request comes back with an A (alien registration) number, then you can file the FOIA request with the A number listed so that you are more likely to get a fruitful response. Important: When you file a FOIA request, you should use your office address, a safe address, or a P.O box rather than the client’s home address for her protection.

Court Dispositions or “No Record” Memoranda. If a client has prior law enforcement detentions, arrests, charges or convictions, it is often necessary to get copies of the records (often called the disposition), or a letter from the court with jurisdiction over the place where the arrest occurred that states that there is no record or that the record has been destroyed. It can be faster and more efficient if your client goes to the court to make the request. However, it is essential that your client be certain that there are no warrants for her arrest, because she could be

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Immigration Case Status Information from the Executive Office for Immigration Review (EOIR). If you have your client’s A-number, you can call the EOIR case information line at 1800-898-7180 and follow the prompts to enter the A (alien registration) number to find out if the case is in the system. If it is, you can choose option 1 to find out if a hearing is scheduled, or option 3 to find out what the final decision was in the case. The information helps you know whether the case is currently pending or whether a removal order has been issued. If the case is over or has been administratively closed, an attorney or BIA Accredited Representative may be able to reopen (or recalendar) and terminate removal proceedings after the applicant is approved for U nonimmigrant status or put on the waiting list in deferred action. For more information on terminating removal proceedings after grants of deferred action or U nonimmigrant status, please read Chapter 9.

arrested when she goes to the court. Many people have warrants issued by the court (frequently called “bench warrants”) without realizing it, because they were released after being booked for shoplifting, failed to complete DUI classes, or because they have numerous unpaid traffic tickets. Anyone who believes there might be such a risk should call the court clerk to ask whether there is a warrant or contact her criminal defense attorney. If she is unable to rule out the possibility of a warrant, she should make the request for her record by mail. See model police report request form at Appendix Q. The criminal proceedings disposition is much more detailed than the FBI report, and is the final authority on what the person was arrested for, charged with, and/or convicted of. Having a copy of the disposition is often crucial in order to analyze what happened and whether it makes your client inadmissible. If your client has any prior arrests or convictions, the disposition or a “no records” memorandum from the court should be included with the U nonimmigrant status application; if it is not, VSC will likely request it later in a Request for Evidence. There are special rules and considerations for juvenile records, which should not be automatically provided to USCIS. Many states protect juvenile records as confidential, and it can be against the law to release these records to USCIS, even if you are able to get them. Generally juvenile adjudications are not considered convictions under immigration law, but if an I-192 is needed to waive something else such as an entry without inspection, USCIS can consider a juvenile history as a negative discretionary factor.

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Analyzing Your Client’s Inadmissibility Issues If it appears that your client might be inadmissible under a particular statutory ground, the first line of defense is to analyze whether the inadmissibility ground really applies. Does the act meet the definition and requirements of the inadmissibility ground? For example, even if your client has a criminal arrest or conviction in his or her past, can you make the argument that it does not meet the definition of a “conviction” under immigration law?8 Can you argue that it is not a crime involving moral turpitude under the case law in your jurisdiction? Even if it is a conviction, is there an exception to the ground of inadmissibility such that your client is exempt? For example, does the offense qualify for an exception, such as the juvenile or petty offense exceptions for crimes of moral turpitude?9 Example: Enrique first came to the United States in 1994, without inspection. After two years living in the United States, he returned to Mexico. He came back to the United States without inspection in January 1997, and has not left since then. Because the “unlawful presence” bars did not take effect until April 1, 1997, Enrique is not 8

Generally, a conviction is required to trigger the criminal inadmissibility or deportability grounds. Even where a conviction is not required, it is harder for the government to prove that a certain act triggers one of these grounds where there is no conviction. The ILRC produces numerous resources designed to help advocates determine the immigration consequences of certain criminal conduct, arrests or convictions, and partners with others to provide support on these issues. For more details, checks the ILRC website at www.ilrc.org/crimes. 9 INA § 212(a)(2)(A)(i)–(ii).

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inadmissible under either INA § 212(a)(9)(B) (the “10-year bar”) or § 212(a)(9)(C) (the “permanent bar”). By taking a close look at the dates of Enrique’s exits and entries, an advocate can determine that he is not actually inadmissible under the unlawful presence bars—although he is inadmissible for entering without inspection. Had Enrique entered the United States unlawfully in 2004, stayed until 2006, and then departed, he would have triggered § 212(a)(9)(B) (the “10-year bar”). If he returned to the United States without inspection after that, he would have also trigged the § 212(a)(9)(C) (the “permanent bar”).

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Example: Joanie and her 18-year-old daughter Melanie crossed the U.S./Canada border without inspection together in 2015. The inadmissibility ground for alien smuggling under INA § 212(a)(6)(E) seems to apply to Joanie as the parent in this context. However, some reputable immigration attorneys have for years argued successfully that simply entering the United States with another person, as in this situation, is not the type of activity that the alien smuggling provision intends to prohibit and therefore this inadmissibility ground does not apply to Joanie or Melanie. Example: Barbara admits to you that she has a criminal conviction from her past. She was previously arrested and convicted of shoplifting. Crimes that involve stealing can often trigger a crime involving moral turpitude ground of inadmissibility. However, in Barbara’s case, she has committed only one crime involving moral turpitude, the sentence she received was less than six months, and the offense carries a maximum possible sentence of less than one year in the state in which she was convicted. Under INA § 212(a)(2)(A)(II), Barbara is eligible for the petty offense exception and her conviction will not trigger a ground of inadmissibility. § 4.4

Addressing Inadmissibility on the Form I-918

PRACTICE POINTER: Answering Questions on the Form I-918. Sometimes you might not know for sure if a client has triggered an inadmissibility ground and you therefore do not know 10

At the time of this manual’s writing (February 2016), USCIS had circulated a revised Form I-918 for comment in anticipation of releasing a new version of the form. Please check the USCIS website at www.uscis.gov to ensure that you are using the most current version.

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One way to address whether or not your client has triggered a ground of inadmissibility is by simply filling out the questions asked on Form I-918 Part 3 (pages 3–7).10 Many of these questions have been included to determine your client’s admissibility. However, it is important to note that not every ground of inadmissibility is addressed in these questions. For example, there is no question on the form that asks about whether the applicant has ever made a false claim to U.S. citizenship (which would trigger an inadmissibility ground under INA § 212(a)(6)(C)(ii)) or whether she entered the United States without inspection (which would trigger an inadmissibility ground under INA § 212(a)(6)(A)). Therefore, you may have to disclose some inadmissibility grounds only on the I-192 waiver application.

how to accurately answer a question on the form. For example, Question 14f asks, “Have you EVER been removed, excluded or deported from the United States?” Your client might not know exactly what happened if she was stopped at the border before, had an interaction with border patrol, was not allowed to enter the United States and/or was told to go back when she got to the border. She might not know if that encounter resulted in an expedited removal order, a voluntary return, or something else. (However, see the next Practice Pointer for tips on how you might figure this out.) In such cases—where there is a possibility that an applicant triggered an inadmissibility ground, but you are not certain, or you do not think it is your job to make the determination that your client did trigger an inadmissibility ground—consider placing an asterisk (*) near the question, along with a note that says “see attached,” “see attached explanation,” or “see attached declaration” instead of answering the question with a “yes” or a “no”; you can also go ahead and answer “yes” or “no,” but then explain on an attachment. The key is to disclose any potential ground so that USCIS believes that your client is being truthful and not hiding anything. Attorneys who take this approach then include a description of what happened to let USCIS decide if an inadmissibility ground was triggered. Some clients feel more comfortable with this approach because they can disclose everything but the consequences may potentially be less rigid than with a “yes” answer. See the section on Filling Out the Form I-192 below for more tips on addressing this situation.

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PRACTICE POINTER: How Can I Find Out if My Client Received an Expedited Removal Order or Voluntary Return When She Was Stopped at the Border? Expedited removal is a procedure to remove persons deemed inadmissible at the border for material misrepresentation or lack of immigrant or nonimmigrant documents.11 This summary process applies to persons not admitted or paroled who are unable to prove they have been in the United States continuously for two or more years. According to CBP officials, the process for an expedited removal is considerably different than for a voluntary return. There is significantly more paperwork involved with an expedited removal than with a voluntary return. A record of proceedings, including the fact of the case and the statements made by the applicant for admission are created on Form I-867AB (including a number of other forms such as an I-826 Notice of Rights and Request for Disposition, I-869 charging document, I-863 Q&A, and I-296 record of departure). Immigrants who are removed through this procedure are given a Form I-860 “Notice and Order of Expedited Removal.” See a sample I-860 at Appendix DD. The Form I-867AB includes a list of questions that are asked. Often attorneys find that their clients may recall being asked these questions if they went through an expedited removal (but not always). Copies of Forms I-867AB are at Appendix DD. An officer signs the paperwork and then gets second signature from a supervisor before the individual is removed. Immigrants who are expeditiously removed also have their fingerprints and photos taken (but so do those who are granted voluntary return).

11

INA § 235(b)(1)(A).

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By contrast, those who are granted voluntary return only get the I-826 Notice of Rights document. A client who is from a country other than Mexico or a client who attempts to enter using false documents is more likely to have been subjected to expedited removal than a client who is from Mexico and was stopped while attempting to enter the United States without any documents at all. Also keep in mind that the expedited removal provisions did not take effect until April 1, 1997, so any border stop before that was most likely a voluntary return unless the client appeared before an immigration judge or was paroled in for the purpose of appearing before an immigration judge.

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An FBI fingerprint check may, but does not necessarily reveal all expedited removals. See Appendix DD for samples of FBI fingerprint reports that do indicate an expedited removal. A CBP FOIA will probably show an expedited removal. However, if the applicant does not have her A (alien registration) number, it is likely that CBP will not be able to find her record; in this case, you should try a FOIA with OBIM using a fingerprint card to try to pull up any border records linked to her fingerprints. Two additional approaches may also be useful: 1. Ask specific questions about the circumstances of a detention at the border (or international airport), and show the client the forms used in an expedited removal to jog her memory. A two-page “expedited removal or voluntary return” screening sheet, with questions in English and Spanish, is at Appendix DD. 2. If the applicant is unable to determine for sure what happened, she can describe the circumstances in a declaration submitted with her I-192 application, so USCIS will know that she is unclear about what happened and is not trying to misrepresent herself. She may also request a waiver of inadmissibility factors that would be triggered by an expedited removal (for example, INA § 212(a)(9)(C) if she entered the United States unlawfully after she was removed) just in case she received an expedited removal. See Practice Pointer in § 4.5 about requesting waivers of inadmissibility factors that the applicant is not positive that she has triggered.

Filling Out Form I-192

The inadmissibility waiver request must be filed on a Form I-192, “Application for Advanced Permission to Enter as a Nonimmigrant” along with its filing fee—which is currently (as of February 2016) $585—or a fee waiver request.12 The regulations do not outline any specific requirements for demonstrating “public or national interest,” but USCIS officials have noted that a Form I-192 that seeks to waive inadmissibility grounds other than immigration violations such as entry without inspection or the unlawful presence bars should include a statement explaining the discretionary grounds for granting the waiver, details of the victimization, the reasons and

12

8 CFR § 212.17(a); 8 CFR § 214.14(c)(2)(iv). See Chapter 3 for more information about an application for a fee waiver.

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circumstances for needing the waiver, and any supporting documentation.13 In most cases, this can all be addressed in one single declaration that supports both the Form I-918 U nonimmigrant application and the Form I-192 inadmissibility waiver application. Similarly, documentation submitted in support of the Form I-918 can also be considered in support of the Form I-192. As it is a discretionary waiver, it will be adjudicated on a case-by-case basis. If there are criminal inadmissibility grounds, additional discussion of rehabilitation, responsibility, and remorse should be included in the declaration and additional documents showing rehabilitation and positive equities should be included in the application packet. Form I-192 includes a number of questions that are confusing or irrelevant for U nonimmigrant clients. This is in part because the form is normally used by applicants for nonimmigrant visas who are outside the country, whereas U nonimmigrant status applicants may be using it to apply from within the United States. Generally, a U nonimmigrant applicant who has not submitted an I-192 before only needs to answer questions 1 through 6, plus 12 and 13. You may write “Not Applicable—U Visa applicant” in those sections of the form that are not relevant to a U application. Pay close attention to Question 12 of the form where it asks your client to state: “I believe I may be inadmissible to the United States for the following reason(s) and no others.” Here you should state all grounds of inadmissibility that your client seeks to have waived. You may waive all of the applicable, waivable inadmissibility grounds on one Form I-192. The most common grounds of inadmissibility, and the corresponding Immigration and Nationality Act numbers are listed in § 4.2 above. There may be instances where you do not know if an inadmissibility ground was triggered, or do not want to assume which inadmissibility ground was triggered.

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Example: Julia tells you she attempted to cross the border back in the 1990s, but was stopped by border patrol and told to go back. In her attempt to cross, she knows she showed false documents that were given to her by a coyote, but she cannot remember if what she showed was a green card, a U.S. birth certificate, a U.S. passport or some other kind of document. She also cannot remember what year it happened or if she had her fingerprints or photo taken. She cannot remember if she gave her real name or if she was told she could not return to the United States for a certain period of time. Although you have done an FBI background check and a FOIA request to CBP and OBIM, you are still not sure whether or not she made a false claim to U.S. citizenship. Even if she did, you do not know if she made the false claim before or after September 30, 1996.14 Therefore, you are not sure whether or not to ask to have this ground waived on Form I-192. 13

U Visa Question & Answer Session with DHS Officials, National Network to End Violence Against Women National Conference, Lexington, KY (Nov. 14, 2007). 14 INA § 212(a)(6)(C)(ii) applies only to false claims made on or after September 30, 1996. IIRIRA § 344(a). False claims made before that date would only trigger the misrepresentation ground of inadmissibility under INA § 212(a)(6)(C)(i).

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Attorneys should always list all of the grounds (by name and statute, for example “EWI, INA § 212(a)(6)(A)” or by behavior, for example “I entered without inspection twice and accrued a year of unlawful presence in between so please waive INA§ 212(a)(9)(C)” “) that they know the client has triggered. Best practice is often also to include language for Question 12 to the effect of “plus any and all other inadmissibility grounds deemed to apply by the U.S. Department of Homeland Security” in order to cover any additional grounds that may apply. Unfortunately, however, it may not be possible to know whether a potential ground was triggered—or if it was, whether it was waived. USCIS currently does not issue an I-192 approval notice with a list of the inadmissibility grounds that were waived, so the only way to know if something was waived is to see if it was listed on a granted I-192 waiver. Because of this, USCIS urges advocates to list any ground they think might apply in order to protect their client.15 Note that as of this manual’s writing, USCIS will not pre-waive any inadmissibility grounds. If you know that your client will be traveling soon and triggering the ten-year bar upon her departure, you cannot pre-waive this ground; instead, you will have to file another waiver once she leaves and triggers this ground. See Chapter 9 on travel for a thorough discussion of this process. A sample of a completed Form I192 is at Appendix EE.

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PRACTICE POINTER: Requesting a Waiver When You’re Not Sure the Inadmissibility Ground Was Triggered. Inadmissibility waivers provided for by INA § 212(d)(14) are comparatively generous. Many advocates therefore believe it is beneficial to specifically request a waiver of any inadmissibility factors that may (but may not) apply to the applicant. This may help an applicant who applies for another immigration benefit like entry to the United States on a “U Visa” or a future naturalization application at the local USCIS office, because she can show that she specifically requested, and was granted, a waiver of each potentially applicable ground. In these cases, the applicant may request a waiver of an inadmissibility ground if USCIS “deems” that she violated that ground. For example, an applicant who is unable to learn for certain that she was expeditiously removed may, in I-192 Question 12, write the circumstances that may have triggered an inadmissibility ground, and then write, “if you deem that [describe the possible violation, e.g., “I was expeditiously removed”], please waive INA § 212(a) [relevant ground].”

15

Vermont Service Center Stakeholder Meeting, Essex, VT (Sept. 18, 2015). 8 CFR § 212.17(b)(2); see also 8 CFR § 212.4(a)(1). 17 8 CFR § 212.17(b)(2). 16

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Once Form I-192 has been received, USCIS will send you a receipt notice. A sample Form I-192 receipt notice is at Appendix EE. If the inadmissibility waiver is approved you will receive notice of the approval. A sample Form I-192 approval notice is at Appendix EE. If the inadmissibility waiver application is denied, there is no appeal available.16 However, nothing prevents the applicant from requesting reconsideration or simply re-filing a request for a waiver with additional documentation or a new declaration after it has been denied.17 A motion to reopen or reconsider may also be filed. See § 4.9 below.

In the Seventh Circuit, advocates have successful argued that an IJ may have jurisdiction over an I-192 under INA § 212(d)(3). Based on this case law, advocates are trying similar arguments in other jurisdictions. See discussion of L.D.G. v. Holder in Chapter 8 and Appendix AAA. § 4.6

Documenting Why the Applicant Merits a Waiver

In order to have a ground of inadmissibility waived, you must make sure the applicant can show that granting the waiver is in the national or public interest.18 As it is a discretionary waiver, it will be adjudicated on a case-by-case basis. This standard is most similar to the asylee adjustment waiver provision and traditionally has been interpreted as a generous standard. The regulations do not outline any specific requirements for demonstrating “public or national interest,” but USCIS officials have noted that each Form I-192 should include a statement explaining the discretionary grounds for granting the waiver, details of the victimization (which may be the same statement used to prove general U status eligibility), the reasons and circumstances for needing the waiver, and any supporting documentation.19 USCIS has considered the following factors in making positive discretionary determinations in U nonimmigrant status and other immigration benefit applications:      

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  

The applicant’s loss of access to U.S. courts and justice system if the waiver is not granted; Nature and extent of the applicant’s physical or mental abuse; Likelihood that the perpetrator or people acting on his behalf in home country would harm the applicant or her children; Willingness of authorities in the home country to protect the applicant and her children; The applicant’s need for social, medical, mental health, or other services; Law and social practices in home country that punish the applicant or children for leaving the abuser; Political, economic conditions in the home country; Family ties (or lack thereof) to home country; and Contributions to the U.S. community.

Importantly, USCIS can consider all negative factors in the discretionary determination as well. For example, some behaviors or actions listed on the I-918 that may not themselves make an applicant inadmissible may nevertheless be considered as negative factors by USCIS in granting a discretionary waiver. These negative factors can include driving under the influence, shoplifting, arrest warrants due to failure to appear in court, and criminal offenses committed as a juvenile (although advocates caution against sending juvenile records to USCIS, and in some states those records may be confidential, the offenses may still appear on a background check). As noted in Chapter 3, many advocates encourage applicants to explain in an attachment to the I-918 the

18

INA § 212(d)(14). U Visa Question & Answer Session with DHS Officials, National Network to End Violence Against Women National Conference, Lexington, KY (Nov. 14, 2007). 19

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circumstances of the offense, acknowledge responsibility, and describe how they have been rehabilitated.

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Different advocates have taken different approaches to providing supporting documentation for their inadmissibility waiver requests. In some cases, applicants may have many documents in support of the waiver request. See Appendix FF for sample materials you may use in working with your client on putting together the supporting documentation. In other cases, attorneys have just asked USCIS to consider all of the documentation submitted in support of the Form I-918 to also be considered in support of the Form I-192. Some have included a short declaration from the applicant along with just a couple of supporting documents such as a copy of the client’s domestic violence restraining order or birth certificates of the applicant’s U.S. citizen children. Others, especially in situations where the applicant has a lengthy criminal history, include a separate declaration for the waiver and substantial evidence of rehabilitation. Thus far, most inadmissibility waiver applications where there are no criminal convictions (only immigration violations) have been approved with just the usual supporting documents that are needed for the I-918 application. How much documentation you submit really depends on the grounds of inadmissibility that your client has triggered. If your client has triggered criminal grounds of inadmissibility, especially a violent one, be prepared to submit substantial evidence of rehabilitation and positive equities.

PRACTICE POINTER: How Much Documentation Does Your Waiver Need?

More Serious, or Multiple Immigration Violations, and Petty Offenses That Do Not Alone Make the Applicant Inadmissible. If an applicant has helped someone enter the United States without permission (alien smuggling), entered the United States illegally after a year of unlawful presence in the United States (permanent bar), entered the United States illegally multiple times, or been deported in the past, the applicant may want to include some positive equities in the declaration and include at least copies of the birth certificates of U.S. children. If the applicant has criminal convictions that do not rise to the level of inadmissibility (drunk in public, one shoplifting incident, simple assault or battery arising from a fight rather than domestic violence, 20

See USCIS VSC Stakeholders’ Meeting Q&A (Aug. 20, 2009) (stating that only applications for waivers of more than a simple entry without inspection, or present without permission—covered by the INA § 212(a)(6)(A) inadmissibility ground—need documentation other than the I-192 form itself).

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Negligible Inadmissibility Factors and No Criminal Record. If the only ground the applicant needs waived is INA § 212(a)(6)(A)—present without admission because she entered one time without inspection and has no departures that would trigger the bars at § 212(a)(9)(B) and (C), and has no misrepresentation, alien smuggling, or criminal factors to waive—then you should file a Form I-192, but you may not need any additional supporting documentation. The documentation submitted in support of the Form I-918 is most likely sufficient. In order to be sure USCIS has the relevant information to waive § 212(a)(6)(A), it is useful to state in Question 12: “I am requesting a waiver of § 212(a)(6)(A) because I entered the United States without inspection.”20

etc.), she should probably submit more evidence of positive equities such as a detailed statement describing how each of the positive factors listed above apply to her situation and include a few letters of recommendation. Serious but Not Violent Criminal Inadmissibility Factors. If the applicant has triggered a serious or criminal inadmissibility ground that did not involve violence (for example, a theft crime beyond one shoplifting offense, or a drug-related crime), she should provide, in addition to a statement addressing how she merits a positive discretionary determination, documentation to show rehabilitation and good moral character. While a DUI does not trigger an inadmissibility ground, USCIS considers a DUI to be a negative discretionary factor and if there is more than one DUI, it may consider whether the health related inadmissibility ground of alcoholism has been triggered. Practitioners have seen the occasional RFE for an immigration medical exam to determine whether the applicant is an alcoholic when she has more than one DUI conviction. The regulations state that USCIS will consider the “number and severity of the offenses” in making its waiver determination in cases involving applicants inadmissible on criminal grounds.21 Although waivers for U nonimmigrant applicants are set forth in INA § 212(d)(14), USCIS has asked applicants with serious, but not violent, violations to meet the standard for positive exercise of discretion used in nonimmigrant inadmissibility waivers under INA § 212(d)(3). The relevant criteria USCIS follows are those found in Matter of Hranka:   

The risk of harm to society if the applicant is admitted; The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any; and The reasons for wishing to enter the United States.22

USCIS indicates that evidence of rehabilitation is particularly important. Some of the factors USCIS has suggested include:

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     

Evidence of rehabilitation; Your reasons for wishing to remain in the United States; Any mitigating factors in your favor (family ties, financial impact of departure on others, contributions or ties to the community in the United States); An explanation, in your own words, of the specific circumstances surrounding an act or conviction that prompted the need for this waiver request; Loss of access to U.S. criminal justice system as it relates to your claim to victimization (or if you are a derivative the impact of your departure on the principal’s access to the criminal justice system if you were to depart); and Any physical, medical, mental health or social services you require that are not readily available in your home country.

Starting in summer of 2013, VSC began issuing RFEs in a high number of I-192 applications requesting that the above factors be specifically addressed by applicants with even relatively 21 22

8 CFR § 212.17(b)(2). 16 I&N Dec. 491(BIA 1978).

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minor criminal or immigration violations. In response, some advocates now specifically spell out in the I-918/I-192 cover letter how the factors are addressed in the applicant’s declaration and supporting documents. An example of a cover letter that specifically lists the above factors is at Appendix EE. There has been advocacy with VSC on the fact that VSC seems to be conflating the standard for waivers under § 212(d)(14) with the standard for waivers under INA § 212(d)(3) (Matter of Hranka). If you feel that your waiver was adjudicated incorrectly, you can file a motion to reopen or reconsider.23

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The Most Serious Criminal Inadmissibility Factors. If an applicant has been convicted of dangerous or violent crimes, the regulations state that waivers should only be granted in “extraordinary circumstances.”24 This extraordinary circumstances standard has been interpreted to mean that the applicant must show that she or her U.S. citizen children will suffer exceptional or extremely unusual hardship if she is denied the waiver.25 These cases should be addressed in the same way that cancellation of removal cases or other waivers with similarly high standards would be handled. For more information on proving hardship, see the ILRC’s publication, Hardship in Immigration Law: How to Prepare Winning Applications for Hardship Waivers and Cancellation of Removal.26

Remember the discussion of applicant statements in Chapter 3 that stresses that a declaration should be in your client’s own voice. While there are sample waiver declarations and tools you may use as templates for your client’s declaration, ultimately you must make sure that the tone and language ring true as coming from your client. See sample waiver declarations at Appendix EE. Some practitioners recommend that applicants with inadmissibility issues submit proof that they have volunteered in their communities to demonstrate rehabilitation or general positive equities. Sample materials to help you and your client prepare supporting documentation from employers, community or religious leaders, teachers and other reputable people are at Appendix FF. Sample waiver applications with supporting documents are at Appendix EE.

23

Vermont Service Center Stakeholder Meeting, Essex, VT (Sept. 18, 2015). 8 CFR § 212.17(b)(2). 25 See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002). 26 This and other ILRC publications may be ordered at www.ilrc.org. 24

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PRACTICE POINTER: Pursuing U Nonimmigrant Status versus VAWA. Sometimes our clients are eligible for more than one form of immigration relief. One common scenario is where the abused spouse of a U.S. citizen or lawful permanent resident was helpful in the criminal investigation or prosecution. In that situation, the victim may be eligible to self-petition under the Violence Against Women Act (VAWA) or apply for U nonimmigrant status. Here are some advantages to pursuing the U instead of VAWA:

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

Many common grounds of inadmissibility may be waived for U nonimmigrant applicants but not waivable for VAWA self-petitioners who seek to adjust. These include a false claim to U.S. citizenship or a reason to believe the applicant or self-petitioner is a drug trafficker. These grounds could have been triggered by the victim falsely claiming to be a U.S. citizen at the border (even if she was not ultimately allowed entry) or by a drug arrest for selling a small amount of a controlled substance. If a VAWA self-petitioner is charged with either of these grounds of inadmissibility, the adjustment application will be denied and she may find herself in removal proceedings. Conversely, a U applicant may apply for an inadmissibility waiver for almost all of the inadmissibility grounds.27



While there are special VAWA waivers for unlawful presence bars, they are limited. By contrast, the U inadmissibility waiver provisions are very broad. For example, a VAWA adjustment applicant who accrued a year of unlawful presence, then departed the United States and re-entered without inspection would not be eligible for a waiver of the so called “permanent bar” if there was no connection between her triggering the bar and the abuse (for example if she triggered the bar before she met her abuser), but this bar is relatively easily waived in the U context.28



Where a client has an expedited removal order, an approval of U nonimmigrant status will cancel the expedited removal order, whereas an approved VAWA self-petition will not. Also, there is generally no interview for a U applicant and so the risk of detention based on reinstatement of a prior order is greatly reduced.

There are also a few reasons why a client in this situation might pursue the VAWA self-petition instead of U nonimmigrant status. First, a VAWA application does not require a certification from law enforcement of helpfulness in a criminal investigation or prosecution. In instances where the client cannot obtain the required certification from law enforcement because she was not helpful or because the law enforcement agency refuses to sign for other reasons, she may have to pursue VAWA. Second, a VAWA application leads to permanent residency much quicker that a U nonimmigrant status application. Where the client is married to an abusive U.S. citizen and does not have problematic inadmissibility issues to overcome, she may choose VAWA in order to obtain her permanent residence more quickly. Your client may also want to pursue both forms of relief. The statute explicitly states that U nonimmigrant status is “nonexclusive relief” and an applicant may qualify for U nonimmigrant status and seek any other immigration benefits or status for which she may be eligible.29 It is important to remember that provisions for U applicants and VAWA self-petitioners differ, so they should be analyzed carefully to chart the best course of action for your client. For more detailed information on VAWA self-petitioning and the inadmissibility waivers specific to

27

INA § 212(d)(14). INA § 212(a)(9)(C). 29 INA § 214(p)(5). 28

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VAWA self-petitioners, see the ILRC publication, The VAWA Manual: Immigration Relief for Abused Immigrants.

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Filing Fees and Fee Waivers

The filing fee for Form I-192 is, as of February 2016, $585; however a fee waiver is available.30 If the I-192 is submitted without the fee or an application for a fee waiver, it will be rejected.31 USCIS will determine whether the applicant qualifies for a fee waiver and has traditionally been very generous with fee waivers for I-192 applications. See Chapter 3 for details on using a check or money order to pay an immigration filing fee and information on requesting a fee waiver. See also Appendix L for sample fee waiver requests. § 4.8

Requests for Evidence (RFEs)

There are several situations in which USCIS may issue a Request for Evidence (RFE) on account of inadmissibility grounds. These include cases where a Form I-192 is not filed concurrently with Form I-918 or Form I-918, Supplement A, and a ground of inadmissibility exists; or if USCIS finds that insufficient evidence has been submitted to support the application for an inadmissibility waiver. See Chapter 3 for a discussion of RFE responses. If you do not respond to an RFE, the waiver request and U nonimmigrant application will likely be denied. Even if you have no additional documentation to submit, you should at a minimum respond to the RFE with a letter to that effect to avoid an automatic denial for failure to respond. § 4.9

I-192 Denials and Resubmissions

Based on emerging case law, some clients in removal proceedings may also be able to convince the immigration judge to adjudicate the waiver application even after it has been denied by 30

8 CFR § 103.7(c)(5)(iii). Id. 32 8 CFR 212.17(b)(3). 31

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If VSC denies an I-192, it will also deny the I-918 because approval of the I-918 requires a finding that the applicant is admissible, or that any applicable inadmissibility grounds have been waived. A denial of Form I-192 is not appealable.32 However, a new I-192 may be submitted. In cases where a U nonimmigrant status application is denied based on a denied I-192 application, advocates have successfully filed Motions to Reopen or Motions to Reconsider on Form I-290B, as appropriate, with new I-192s and supporting documentation. Indeed, the new I-192 can be considered new evidence submitted in support of a Motion to Reopen a denied I-918 if the facts included in the new I-290B existed at the time the I-918 was originally filed. If a new I-192 is filed with the I-290B, be sure to submit fees ($630 for the I-290B, $585 for the I-192), or a fee waiver application, for each form.

USCIS. The Seventh Circuit held that an IJ may have jurisdiction over an I-192 under INA § 212(d)(3). In L.D.G. v. Holder, the Seventh Circuit gave concurrent jurisdiction to the IJ and USCIS over the I-192 waiver for a U nonimmigrant petitioner.33 Advocates have been making similar arguments in other circuits to push other circuits to allow IJs to adjudicate I-192 waivers as well. Keep in mind that adjudicating the I-192 waiver in court under INA § 212(d)(3) will trigger the waiver standard under Matter of Hranka, as discussed in § 4.6 above. In your brief to the BIA, you will want to lay out and address all of these elements to preserve appeal at the Circuit level. See discussion of L.D.G. v. Holder in Chapter 8 and Appendix AAA for a model brief. For attorneys who are considering pursuing this option, please contact Asista at [email protected] for guidance.

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PRACTICE POINTER: Will Denial of a Waiver Application (and Therefore a Denial of the U Nonimmigrant Application) Expose My Client to Possibly Being Removed? Although anyone who is not in valid status or eligible for valid status in the United States runs the potential risk of being placed in removal proceedings, U applicants face very little risk of being removed as a result of applying for U nonimmigrant status relief. While there is no written policy on this, USCIS has repeatedly stated that they do not place applicants in removal proceedings simply because their U nonimmigrant status application was denied.34 Moreover, USCIS has adjudicated over 50,000 U nonimmigrant status applications, and there are no reports from immigrants or advocates that any denials have resulted in removal proceedings being initiated in denied cases. The only exception is for applicants whose cases are denied and specifically request to be placed in removal proceedings.35 Therefore, for most applicants the potential benefits of U nonimmigrant status far outweigh the risks of being placed in removal proceedings. Furthermore, for a number of applicants with inadmissibility issues, this may the only form of immigration relief they may ever be eligible for. For example, applicants with an expedited removal order or false claims to U.S. citizenship may not be able to waive those issues to adjust status through family members even if they have an approved family-based petition. If an applicant has criminal convictions that make them an enforcement priority, it may be prudent to avoid disclosing the applicant’s home address in the application packet.

§ 4.10 Inadmissibility Factors Discovered or Triggered after Filing the I-192 It is possible that prior to the approval of your client’s Form I-918 application, you may discover an inadmissibility ground that was not disclosed on Form I-918 nor listed among the grounds sought to be waived on the I-192. For example, this could occur if you receive your client’s FBI 33

744 F.3d 1022 (7th Cir. 2014). This was most recently confirmed by Daniel Renaud, Vermont Service Center Director at the Federal Bar Association Immigration Law Section in May 2011 and Scott Whelan from USCIS Headquarters at the Federal Bar Association Immigration Law Section in May 2014. 35 Id. 34

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record after you have filed the I-918, and it shows a controlled substances conviction that your client did not disclose to you before you filed the U status application. In such a case, you should file an amended I-192 with VSC listing the additional conviction (or send a declaration from your client explaining the omission along with a cover letter asking that the relevant ground be added to the pending I-192 and both mail it to VSC and email it to the hotline to increase the chances that it makes it into the file) to ensure that all of the applicable grounds of inadmissibility are considered and waived for your client. Remember that VSC will have access to the same FBI database and will also learn about the conviction, so it is best to amend the I-192 as soon as possible to avoid any delay or alleged misrepresentation.

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In addition to requesting a waiver of that ground, you should document the applicant’s continued eligibility for a waiver with sufficient positive factors to outweigh the newly disclosed negative factor. You should also consider explaining why and how incorrect information was provided with the initial filing. If the applicant was intentionally misrepresenting a material fact in order to obtain U nonimmigrant status, the new I-192 should request a waiver of INA § 212(a)(6)(C). If it was arguably just a mistake or miscommunication (perhaps your client thought that charge was dropped, or had mental health issues affecting her memory), consider explaining the circumstances and requesting a waiver of that ground with the “if you deem me” language. For example, you could write: “Although I did not intend to withhold information about my marijuana conviction in my earlier application, if you deem that I did intentionally misrepresent my record, please waive INA § 212(a)(6)(C).” These same guidelines apply if your client triggers a new inadmissibility ground after filing, but before adjudication of the I-918 and I-192; or after being granted Deferred Action (see Chapter 3), but before being granted U nonimmigrant status.

VSC has been known to revoke U nonimmigrant status in cases where they found out about an inadmissibility ground that was present at the time of adjudication but was not disclosed and therefore was not waived therefore it is best to be promptly proactive about any newly triggered or newly discovered grounds. If instead your client triggers a new ground after approval of U nonimmigrant status (when she is among the 10,000 applicants who become eligible in a new fiscal year), wait until she applies to adjust status to address the new factor—but only if she has no plans to travel. With the adjustment of status application, she should be completely forthcoming about the violation, and argue that a

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Example: Attorney Leonel had to file his client Emiliano’s I-918 and I-192 very quickly because the law enforcement certification was about to reach its six-month expiration. However, Emiliano’s criminal case had not been resolved by the time Attorney Leonel had to file the U application. While the I-918 and I-192 were pending, Luis was ultimately convicted for a second shoplifting arrest, which triggered a new ground of inadmissibility. Attorney Leonel must amend the original I-192 to let VSC know about this new ground of inadmissibility and ask for it to be waived. He can do this by mailing in a supplemental packet including a declaration and the disposition and emailing a copy to the VSC hotline at [email protected].

positive exercise of discretion is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest. She should submit with her adjustment of status application documentation of positive factors in support of that discretionary determination. (See Chapters 6 and 7). If your client triggers a new ground after approval of U nonimmigrant status and she hopes to travel, she will need to file a new I-192 with VSC so that the ground can be waived before she applies for a U visa at the consulate abroad. If she travels and does not receive a new waiver granted for the additional inadmissibility ground, she may be denied a visa or denied re-entry. § 4.11 Whether a Granted I-192 Waives the Inadmissibility Grounds for Other Purposes Form I-192 can waive inadmissibility grounds for the purposes of the U nonimmigrant status application; however, that does not necessarily mean that your client’s inadmissibility issues are completely erased for the future. Adjustment through INA § 245(m). Although most of the grounds of inadmissibility do not apply to U nonimmigrants who adjust status under INA § 245(m), USCIS may revisit some of them (e.g., criminal offenses or convictions) and consider them in its discretionary adjudication of the adjustment application. Therefore, your client should be prepared to provide evidence of equities, rehabilitation, and/or other counterbalancing factors at the time of adjustment—even if these grounds were previously waived at the U nonimmigrant status stage.

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Example: Gloria applied for and was granted U nonimmigrant status despite a prior criminal record of offenses and convictions related to her prior drug abuse. She was able to have those inadmissibility grounds waived when she applied for U nonimmigrant status. Now she has applied for adjustment of status as a U nonimmigrant and was surprised to receive an RFE about the criminal convictions she had waived with the I192. At this point in time, it appears that USCIS is reviewing some past crimes as part of its adjudication of adjustment as a discretionary benefit. Generally it has not been a problem unless there has been another incident since the I-918 was approved. Gloria should present evidence that she has stayed out of trouble with the law since her prior convictions and has continued on her path to rehabilitation. She should also document the contributions she has made to society, including being a good mother to her children and having a job. Deportability after Adjustment. Offenses that were disclosed at or prior to a U nonimmigrant status holder’s adjustment of status cannot later be used to remove the person even if those offenses were independent grounds of deportability.

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Example: Kaspar made a false claim to citizenship in 2002. He disclosed it on his U visa application and was granted a waiver for triggering the inadmissibility ground of making a false claim under to INA 212(a)(6)(C)(ii). He then adjusted status in 2006. He now wants to naturalize but is worried that he is deportable for the same conduct—making a false claim to U.S. citizenship. The BIA has held that adjustment of status wipes out the possibility of removal for a pre-existing offense that was an independent ground of removal.36 Based on this case, Kaspar should not be deportable based on making a false claim. Even if he committed the false claim after he was granted U nonimmigrant status and before he adjusted, he should not be deportable based on this conduct if he disclosed the conduct and was properly adjusted.

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Good Moral Character. It is unclear at this point in time whether grounds that have been waived with an I-192, or disclosed during adjustment, will still affect someone’s good moral character determination for naturalization. Example: Jonah had a conviction for a crime in 2005 that is considered an aggravated felony under INA § 101(a)(43). He was able to have that crime waived with an I-192 waiver at the time of his U nonimmigrant status application and was also able to adjust status as a U nonimmigrant. He is not deportable based on this aggravated felony because he properly adjusted (see example above) and because the aggravated felony deportability ground is for aggravated felonies committed after admission.37 However, because aggravated felonies for convictions on or after November 29, 1990 create a permanent bar to naturalization, Jonah will probably not be able to naturalize.

Travel. Likewise, U nonimmigrants will always be assessed for grounds of inadmissibility if they depart the country and are seeking issuance of a U visa at the consulate abroad or reentry to the United States at a port of entry. If any new grounds have been triggered (e.g., unlawful presence),

36

Matter of Rainford, 20 I&N Dec. 598 (BIA 1992). INA § 237(a)(2)(A)(iii). 38 8 CFR § 214.14(i). 37

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Deportability before Adjustment. U applicants who commit crimes or trigger inadmissibility grounds after their grant of U nonimmigrant status but before they adjust status may find themselves in trouble with immigration. For example, at the time of this manual’s writing (February 2016), ICE has been very inconsistent with how it has handled U nonimmigrants who have been convicted in criminal courts and/or otherwise ended up with an ICE hold. Nevertheless, it is clear from the regulations that removal proceedings may be instituted against a U nonimmigrant for conduct committed after U approval or admission, as well as for conduct or conditions not disclosed to USCIS prior to the granting of U nonimmigrant status, for misrepresentations of material facts on the Form I-918 or Form I-918A and supporting documentation, or after revocation of U status.38 U nonimmigrants may risk losing their status in any of these situations. For more information on the removability of U nonimmigrants, see Chapter 8.

the U nonimmigrant must be prepared to have this ground waived. For more information on this situation, see Chapter 9. Non-U Adjustment. Finally, grounds of inadmissibility that are waived for U nonimmigrants may not be considered as negative discretionary factors for adjustment under INA § 245(m) for U nonimmigrants. However, that does not mean they are waived for adjustment under another statutory section.

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Example: Juan Pablo has a false claim to U.S. citizenship that he was able to waive when he applied for U nonimmigrant status. He is also married to a U.S. citizen, Desiree, and would like to adjust status through her I-130 family-based petition so he can get his green card now rather than wait the three years he must be in U nonimmigrant status to adjust as a U nonimmigrant. Juan Pablo will not be able to adjust through Desiree’s petition for him. To adjust under her petition, he would adjust under INA § 245(a) instead of under INA § 245(m) for U nonimmigrants and the false claim to U.S. citizenship will not be considered waived. He can only adjust under INA § 245(m).

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CHAPTER 5 ADJUSTMENT OF STATUS ELIGIBILITY

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This chapter includes: § 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6

Overview of Eligibility Requirements for U Adjustments ................................. 5-1 Granted U Nonimmigrant Status and Continue to Hold U Nonimmigrant Status .................................................................................................................. 5-4 Continuous Physical Presence for Three Years in U Nonimmigrant Status .................................................................................................................. 5-5 Inadmissibility and Discretionary Issues ............................................................ 5-6 Has Not Unreasonably Refused to Provide Assistance in Investigation or Prosecution ......................................................................................................... 5-8 Presence in the United States Is Justified on Humanitarian Grounds, to Ensure Family Unity, or Is in the Public Interest ............................................. 5-10

U nonimmigrants are eligible to obtain lawful permanent residence under INA § 245(m), a special section in the statute that applies only to those people who have received U nonimmigrant status. Unlike U nonimmigrant status, there is no numerical cap on the number of U-based adjustments that may be granted annually. They are handled on a first in, first out basis.1 USCIS has sole jurisdiction over the adjudication of U adjustments.2 Therefore, adjudication and denials of adjustment applications cannot be reviewed by an immigration judge. This issue is discussed in further detail in the next chapter at § 6.11. § 5.1

Overview of Eligibility Requirements for U Adjustments

The statute at INA § 245(m) and the regulations at 8 CFR § 245.24(b) outline the requirements for a U nonimmigrant to adjust status to get a green card. Section 245(m) of the INA is a standalone adjustment provision and not a variation of INA § 245(a);3 therefore the restrictions under INA § 245(a) (requiring the applicant to have been inspected and admitted or paroled or to be a VAWA self-petitioner and eligible for an immigrant visa) and INA § 245(c) (restricting an applicant from adjusting if she is an alien crewman, violated the terms of a nonimmigrant visa, worked without authorization, etc.) do not apply. Furthermore, the only ground of inadmissibility that applies to U nonimmigrants in the adjustment context is INA § 212(a)(3)(E) (participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing) and that is non-waivable. This means that if an applicant has triggered a ground of inadmissibility, a formal waiver application will not be required. 1

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See Preamble at Federal Register, Vol. 73, No. 240, p. 75555 (Dec. 12, 2008). 8 CFR § 245.24(f). 3 8 CFR § 245.24(l). 2

Section 245(m) of the INA allows a U nonimmigrant to obtain lawful permanent resident (green card) status if she:      

Applies for such adjustment; Can prove that she was granted U nonimmigrant status and continues to hold U nonimmigrant status; Can show continuous physical presence for three years in U nonimmigrant status; Is not inadmissible under INA § 212(a)(3)(E) [Nazi persecution, genocide, torture, extrajudicial killing]; Can show that she has not unreasonably refused to provide assistance in the criminal investigation or prosecution; Can show that her presence in the United States is justified on humanitarian grounds, to ensure family unity, or is in the public interest. Example: Ziggy received her U nonimmigrant status three years ago. Her status is valid for another year, but she is now ready and eligible to obtain lawful permanent residence. She has not been asked to provide any additional assistance in the criminal investigation or prosecution and she has only left the United States once—for sixty days and then reentered on a U visa—since receiving her U nonimmigrant status. She can now apply to adjust status.

Important Exception. Applicants are not eligible for adjustment if their U nonimmigrant status has been revoked.4 Example: Neda received her U nonimmigrant status two years ago. However, six months ago the District Attorney’s office (DA) contacted Neda to appear as a witness in the trial of the qualifying criminal activity’s prosecution. Neda ignored the DA’s calls. Since she had already received her U nonimmigrant status, she did not believe she had to be helpful in the investigation or prosecution anymore. When the DA finally got in touch with her, Neda refused to provide assistance because the trial date interfered with some social plans she had. The DA therefore contacted USCIS to revoke its I-918 Supplement B in her case, which prompted USCIS to subsequently revoke Neda’s U nonimmigrant status. Therefore, Neda will not be eligible to adjust.

PRACTICE POINTER: U Derivatives and Adjustments—Derivatives Adjust Independently of the Principal in Some Ways, but Not in Others. If the principal U-1 nonimmigrant fails to adjust status or if the principal applicant adjusts status through some other means such as marriage to a U.S. Citizen, the U derivatives can still adjust their status when eligible.

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If derivatives were approved later than the U-1 principal or entered on their U visa from abroad later than the U-1 principal, the U-1 principal can go ahead and adjust status even if the 4

8 CFR § 245.24(c).

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derivatives will need to extend their status, as long as the derivatives’ I-918A applications have been approved and the derivatives are all in the United States.

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If the U-1 principal dies, the derivatives can still adjust their status. On the other hand, if the relationship between the U-1 principal and the derivative terminates, the ability of the U derivative to adjust may be unclear. If the family relationship is terminated—for example, a U-2 derivative spouse gets divorced from the U-1 principal applicant—then USCIS may revoke the derivative spouse’s U-2 status or deny the derivative spouse’s adjustment application. The same could be true if a derivative U-3 child marries. There are age-out protections in place for U-3s now, but not necessarily marry-out protections. At the time of this manual’s writing (February 2016), USCIS Headquarters’ position was that USCIS has never stated or issued anything declaring that U derivative spouses must stay married to principals through adjustment.5 Furthermore, USCIS officials who adjudicate all of the U adjustment applications at the Vermont Service Center (VSC) stated that while they may revoke U nonimmigrant status if the family relationship does not continue, they do not as a matter of routine revoke or deny U adjustments because of a break or termination of the relationship.6 They also stated, however, that they may revoke U nonimmigrant status and/or deny the adjustment if the termination of the family relationship was the result of domestic violence committed by the derivative spouse.7 The eligibility to adjust status for U derivatives who have terminated their family relationship to the U-1 principal is an evolving issue and has been handled differently by the USCIS adjudicators over the years. Therefore, without a written policy ensuring a derivative’s ability to adjust if the family relationship to the principal changes, currently the safest but most conservative approach would be to warn clients not to change their marital status before they adjust. However, if your client has already married or divorced, in the absence of a firm position, USCIS may consider cases on a case-by-case basis; so it is still worth submitting the adjustment application for that derivative. Clients should just be warned that they may be in uncharted territory and may not be ultimately approved. If the derivative has not been convicted of crimes that would make her an enforcement priority, the derivative should consider that the potential of being granted adjustment despite the change in marital status likely outweighs the risk of denial. If the client does not apply to adjust status, she definitely will not be granted adjustment and will revert to being out of status; whereas if she does apply, there is a chance of the adjustment being approved. Finally, if the principal applicant’s U-1 status is revoked, the derivatives’ status will also be revoked and so they will not be able to adjust. For example, if the principal applicant is convicted of crimes after being granted U status, USCIS may revoke the principal’s U nonimmigrant status. In that event, the status of any derivatives would also be revoked, and no one would be able to adjust.

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June 2014 email exchange between Scott Whelan, Adjudications Officer with USCIS Office of Policy and Strategy and Gail Pendleton, Co-Director of Asista. 6 September 2015 USCIS Vermont Service Center Stakeholder Meeting, notes on file with authors. 7 Id.

Chapter 6 includes a detailed discussion of how to apply for adjustment of status for a U nonimmigrant. Each of the U nonimmigrant adjustment requirements is described in greater detail below. § 5.2

Granted U Nonimmigrant Status and Continue to Hold U Nonimmigrant Status

In order to adjust status under this special provision of the law, the U nonimmigrant applicant must have been granted U nonimmigrant status.8 Furthermore, the applicant must continue to be in current U nonimmigrant status at the time she applies to adjust status.9 All U applicants must file a complete adjustment application before the expiration date of their U nonimmigrant status. You can find the expiration date on their I-918 approval notice and on their (a)(19) or (a)(20) employment authorization document. The adjustment application should not be filed early or late—it should be filed within the one-year window before the status expires. If your client does miss the deadline and her U nonimmigrant status has expired, file Form I-539 with the client’s declaration, explaining the reasons she missed the deadline and any exceptional life circumstances that led to her need for an extension, such as emotional or financial stressors.

PRACTICE POINTER: Preparing Your Client to Adjust Status. When your client’s U nonimmigrant status is approved, be sure to send a letter specifically outlining when she is eligible to apply for adjustment and when her status expires. Emphasize both in the letter and directly to your client that she must apply for permanent residence before her status expires. See Sample Letter in Appendix X and have a conversation explaining the contents of the letter. Also advise your client of the need to document her continuous physical presence and suggest that she start collecting a document a month in a file that she can bring to you in three years. See Sample U Adjustment Document Checklist at Appendix GG. If your client speaks Spanish, also consider showing her this ten-minute video by the Immigration Center for Women and Children (ICWC) that explains what she needs to know now that her U nonimmigrant status has been approved: www.youtube.com/watch?v=ZYF4bI9DRVI. As a second measure, you should also maintain a list of approved U clients in your office and schedule a reminder to yourself to notify them when they are almost eligible to apply.

8

8 CFR § 245.24(b)(2). Id. Those individuals who were granted U interim relief status before the U regulations were available and had already accrued at least 4 years in that status were granted additional time on their approval notices in order to give them time to file for adjustment.

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§ 5.3

Continuous Physical Presence for Three Years in U Nonimmigrant Status

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All U nonimmigrants seeking to adjust status must have maintained continuous physical presence in the United States for at least three years since the date of their admission as a U nonimmigrant.10 This means they must have been continuously in the United States for three years since entering the United States on a U visa or since having their U nonimmigrant status approved if they applied from within the United States before they are eligible to adjust.11 As of this manual’s writing (February 2016), time spent in deferred action while on the U waitlist after the statutory annual cap on U nonimmigrant status was reached does not count as continuous physical presence time accrued for the purposes of U adjustment.12 Advocacy is in place to change this policy to allow those on the U waitlist to accrue continuous physical presence while in deferred action. Based on the growing waitlist for U nonimmigrant status caused by the statutory annual cap, if a policy such as this is adopted, it is possible that some U applicants on the waitlist would be eligible to adjust as soon as they receive U nonimmigrant status in a future fiscal year. However, as of this writing, that is not the current policy. For updates on this and all other U nonimmigrant and U visa issues, contact [email protected] to join the VAWA Updates listserv. Departures from the United States for more than 90 days or for any periods exceeding 180 days in the aggregate will cut off continuous physical presence.13 The only exceptions are if an official involved in the investigation or prosecution certifies either that the excessive absence was necessary to assist in the investigation or prosecution of the crime or that the absence was otherwise justified.14 Absences of less than 90 days in one trip or 180 days in the aggregate will not detract from an applicant’s accrual of three years’ continuous physical presence.

PRACTICE POINTER: Demonstrating Three Years of Continuous Physical Presence after an Absence of 90 Days or More or 180 Days in the Aggregate. It is unclear if an applicant who departed the United States for over 90 days or over 180 days in the aggregate while in U status can restart the three-year accrual of continuous physical presence upon reentry into the United States, such as if she had enough time left on the initial grant of U nonimmigrant status or could successfully obtain an extension of status by filing Form I-539 with VSC. This is an issue that is evolving and on which USCIS has gone back and forth in its interpretation. Based on a May 12, 2010 VSC Stakeholder call, it appeared that would not work. Since then USCIS has given conflicting information about whether a client can restart the continuous physical presence clock. 10

8 CFR § 245.24(b)(3); see also INA § 245(m)(1)(A). Those who originally received U interim relief and deferred action before the U regulations were promulgated in 2007 were also able to accrue continuous physical presence from their time under U interim relief. This is a different policy than for those who receive deferred action as a result of the U waitlist, and you are unlikely to meet U adjustment applicants at this time who benefitted from the original U interim relief. 12 September 2015 USCIS Vermont Service Center Stakeholder Meeting, notes on file with authors. 13 8 CFR § 245.24(a)(1); see also INA § 245(m)(2). 14 Id. 11

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In a series of trainings in 2011, USCIS officials from VSC seemed to agree that there may be a potential argument that a client who departed for too long in her first year of status may still be able to accrue three years in status after a return from abroad, but before her status expires, or if she is able to obtain an extension of status in order to accrue the three years after return. Similarly, at the 2015 VSC Stakeholder meeting, USCIS officials stated that there may be a possibility that they could entertain the argument that the U adjustment applicant has accrued three years of continuous physical presence after the 90-day departure if she came back with a valid U visa and has accrued three years of physical presence after that last entry.15 So far, practitioners have reported approvals of I-539 extension applications in this context, but no decisions yet on adjustments filed after the accrual of a new three-year period. Another approach that has been discussed is that clients could still attempt to adjust on time and explain that there were extenuating circumstances that prevented them from returning on time and ask USCIS to exercise its discretion and excuse the excessive absence. So far none of these approaches have been definitively tested. Therefore, clients who seek to travel must be strongly warned against leaving the United States for more than 90 days or more than 180 days in the aggregate. Clients who have already stayed out too long should be warned that they may not be able to adjust, although it is still worth trying to extend status and/or adjust in case solutions can be found. See Chapter 6 for more information about how to make these arguments in the adjustment application, and Chapter 9 for more information on travel risks.

§ 5.4

Inadmissibility and Discretionary Issues

The only ground of inadmissibility applicable to U nonimmigrants applying for adjustment of status under INA § 245(m) is § INA 212(a)(3)(E) (for Nazi persecutions, genocide, torture or extrajudicial killings). Other than in connection to this ground, U adjustment applicants are not required to establish that they are admissible, and the inadmissibility grounds under INA § 212 do not apply directly to U nonimmigrant adjustment applicants. This means that applicants who triggered the inadmissibility ground at INA § 212(a)(3)(E) cannot adjust because the ground is not waivable.16 This also means that even if the adjustment applicant has triggered a ground of inadmissibility after being granted U status, she will not need to file a waiver application form such as the I-192 or I-601.

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This does not mean that you can simply ignore the other grounds of inadmissibility altogether. U nonimmigrants are still subject to the grounds of inadmissibility for admission at the border (for example if they travel outside the United States and wish to return on their U visa), and USCIS will consider serious inadmissibility issues as negative factors in a discretionary determination at adjustment. What it does mean is that an I-601 formal waiver application, which is needed for adjustment from many other types of immigration status, is not required in the 15 16

September 2015 USCIS Vermont Service Center Stakeholder Meeting, notes on file with authors. INA § 245(m)(1).

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U adjustment context; but the documentation you would submit in support of that form, may be needed.

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Example: Rebekah made a false claim to U.S. citizenship when she used her U.S. citizen cousin’s passport to enter the United States. However, her application for U nonimmigrant status was approved when she successfully requested a specific waiver of the false claim inadmissibility ground17 on Form I-192. After Rebekah’s U nonimmigrant status was approved, she was arrested twice for selling marijuana. The charges are pending and she has not been convicted. She is not sure if these arrests will trigger an inadmissibility ground under INA § 212(a)(2) and she did not have them waived earlier since the arrests occurred after her application for U-status. Now she wants to return to Israel to visit her mother. Although Rebekah’s arrests will not trigger an applicable inadmissibility ground when she seeks to adjust status because the only inadmissibility ground that applies to adjusting U nonimmigrants is INA § 212(a)(3)(E), if she leaves the United States, she will have to show she is admissible when she seeks to return on a U visa. At that time, the grounds of inadmissibility will apply and she can be denied reentry. The safest strategy for Rebekah is not to travel outside of the United States at all. If she does travel she may need a waiver, but it is neither clear how she can obtain one nor clear that it would be approved.18 While you could argue that VSC should adjudicate a waiver in this context since it is similar to adjudicating a waiver for the unlawful presence bar if it is triggered after U status is granted, VSC may simply choose not to exercise its discretion to do so if the inadmissibility ground triggered is a criminal ground. Travel involves more risks and preparation if the applicant has (or will upon departure) trigger an additional ground of inadmissibility since her original I-192 was approved, especially if the newly triggered ground is also a negative discretionary factor such as a new criminal conviction. See Chapter 9 for more details about dealing with inadmissibility issues at the time of travel or reentry into the United States. Adjustment of status is always a discretionary benefit, and the burden is on applicants to show that they merit a favorable exercise of discretion.19 Normally, applicants without adverse factors are not required to submit documentation specifically to support a favorable exercise of discretion. A short statement in the declaration regarding family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion.20 However, if there are adverse factors present, they must be offset with mitigating factors and, if serious enough, may require a showing that denial of the adjustment would result 17

INA § 212(a)(6)(C)(ii). USCIS officials at the Vermont Service Center stated that they would not adjudicate a waiver in this situation and instead suggested that perhaps the U nonimmigrant would need to seek a waiver from her local USCIS office that works with the consular office. September 2015 USCIS Vermont Service Center Stakeholder Meeting, notes on file with authors. 19 8 CFR § 245.24(d)(11). 20 See Preamble at Federal Register, Vol. 73, No. 240, p. 75549 (Dec. 12, 2008). 18

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in exceptional and extremely unusual hardship.21 Even that might be insufficient where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse of a minor, multiple drug-related crimes, or where there are security- or terrorism-related concerns.22 Those applications may only be approved where “the most compelling positive factors” are present.23 Practitioners have reported several denials of adjustment applications where the applicant has been convicted of crimes since they were granted U status, particularly where there have been multiple arrests while in U status. There have also been grants where there are positive equities that outweigh the criminal activity, so you will need to weigh the equities when advising your client about the chances of approval or denial of their application. So, even though the grounds of inadmissibility technically do not apply to U nonimmigrant adjustment applicants, they do come into play when USCIS is determining whether a given applicant merits a favorable exercise of discretion. While you would not need to file a new Form I-192 or a Form I-601 waiver, you would need to document the positive and counterbalancing equities and factors. Keep in mind when documenting the positive factors that you do not need to re-submit documentation you already submitted to support the initial waiver application. USCIS confirmed with practitioners at a liaison meeting that the officer adjudicating the adjustment application will also have the initial U nonimmigrant application file on hand, including the inadmissibility request, when making this discretionary determination at adjustment. Thus, you may simply refer to previous documentation submitted and provide any additional documents that might be helpful. Finally, although the health-related grounds of inadmissibility are not specified in INA § 245(m), USCIS currently requires applicants to submit a Report of Medical Examination and Vaccination Record as is usually required with an adjustment application. This requirement is described in Chapter 6. § 5.5

Has Not Unreasonably Refused to Provide Assistance in Investigation or Prosecution

U nonimmigrants who seek to adjust status may not have unreasonably refused to provide assistance to a federal, state, or local criminal investigation or prosecution.24 If they have, USCIS is prohibited from adjusting the status of that individual. USCIS has interpreted this to mean that U nonimmigrants have an ongoing responsibility not to refuse to provide assistance in the investigation or prosecution. The regulations define a refusal to provide assistance as “the refusal by the alien to provide assistance to an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the alien was granted U nonimmigrant status.”25

21

8 CFR § 245.24(d)(11). 8 CFR § 245.24(d)(11). 23 See Preamble at Federal Register, Vol. 73, No. 240, p. 75549 (Dec. 12, 2008). 24 INA § 245(m)(1). 25 8 CFR § 245.24(a)(5).

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The determination as to whether or not an applicant’s refusal was reasonable or not will be based on all available affirmative evidence and take into account the totality of circumstances as well as the following factors:      

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General law enforcement, prosecutorial, and judicial practices; The kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; The nature of the request to the alien for assistance; The nature of the victimization; The applicable guidelines for victim and witness assistance; The specific circumstances of the applicant, including fear, severe trauma (either mental or physical), and the age and maturity of the applicant.26

Evidence is required to prove that the applicant did not unreasonably refuse to assist in the criminal investigation or prosecution. This is discussed in further detail in Chapter 6. The simplest form of evidence to satisfy this requirement is a statement from the client in her declaration that she did not unreasonably refuse to provide ongoing assistance to law enforcement. You may also submit other evidence that the criminal case was complete by the time the I-918B was signed. (Evidence of this may include a copy of the original Form I-918 Supplement B with the completed box in Part 2 checked to indicate that the status of the case was already closed at the time the initial certification was signed.) A new, signed Form I-918 Supplement B can also document this requirement. However, many practitioners prefer to submit documentation other than a new I-918 Supplement B, such as the client’s signed statement, in order to lower the burden on law enforcement agencies and preserve those resources for certifying new U status cases. See § 6.7 of the next chapter. If an applicant has refused to provide ongoing assistance, adjudicators at USCIS may consult with the Attorney General in determining whether the refusal to assist was reasonable or not.27 USCIS has stated that it only anticipates doing this if a certifying law enforcement official or agency provides evidence that the applicant has refused to provide assistance or if other affirmative evidence in the record suggests the applicant unreasonably refused to assist.28 Those situations may trigger the Department of Justice (DOJ) to review the evidence. The DOJ will have 90 days to either provide a written determination to USCIS or ask for an extension of time.29 If that time period elapses without a DOJ response, USCIS may adjudicate the adjustment application without the DOJ’s determination.30

26

8 CFR § 245.24(a)(5). 8 CFR § 245.24(e)(4); see also INA § 245(m)(5)(A). 28 See Preamble at Federal Register, Vol. 73, No. 240, p. 75547 (Dec. 12, 2008). See also draft USCIS policy memorandum implementing TVPRA 2008 (May 17, 2010) at pp. 4-5, attached as Appendix W. 29 8 CFR § 245.24(e)(4). 30 Id. 27

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In a draft memorandum issued in May 2010, USCIS indicated that policy guidance on what constitutes an unreasonable refusal will be addressed in further detail in a future policy guidance memorandum.31 This policy guidance has not yet been released. Helpfulness Requirement for Derivative Family Members Derivative family members (those with a U-2, U-3, U-4, or U-5 nonimmigrant visa) also have a responsibility not to unreasonably refuse to provide assistance if they have information about the crime on which the principal U nonimmigrant’s application was based and were asked to assist in the investigation or prosecution.32 Example: Kermit was a derivative on his mother’s U nonimmigrant application. His mother filed a Form I-918 for herself and a Form I-918 Supplement A for Kermit. When they were approved, both received U nonimmigrant status: Kermit as a U-3, and his mother as a U-1. Since Kermit never had any information about the criminal investigation or prosecution, he should not need to provide additional documentation to fulfill the requirement that he did not unreasonably refuse to provide assistance in his three years of U nonimmigrant status. He should, however, state in his declaration that he did not possess information about the qualifying criminal activity and therefore was not asked to provide assistance. If he is too young (under the age of 14) to provide such a declaration, it should be addressed in his mother’s declaration. § 5.6

Presence in the United States Is Justified on Humanitarian Grounds, to Ensure Family Unity, or Is in the Public Interest

Although this is a requirement that is specifically mentioned in the statute, the regulations do not outline any specific documentation that should be included in support of a showing that a U nonimmigrant applicant’s presence in the United States is justified on humanitarian grounds, to ensure family unity, or is in the public interest. If no negative discretionary factors have arisen since U status was granted, then this requirement can be satisfied with a short statement in the applicant’s declaration about why it is important to her to remain in the United States and can also be documented with something as simple as her U.S. citizen children’s birth certificates. If there are negative discretionary factors that have arisen since the grant of U nonimmigrant status, then this requirement should be more significantly addressed. In those cases, it might be helpful to look at the standards used for supporting an inadmissibility waiver in § 4.4 of Chapter 4 or the extreme hardship factors in § 7.10 in Chapter 7 for ideas on how to document that an applicant is sufficiently rehabilitated, will suffer hardship if she cannot stay in the United States, or that there are other compelling humanitarian factors for her continued presence in the United States.

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Draft USCIS policy memorandum implementing TVPRA 2008 (May 17, 2010) at p. 5, attached as Appendix W. 32 See Preamble at Federal Register, Vol. 73, No. 240, p. 75547 (Dec. 12, 2008).

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PRACTICE POINTER: Can My Approved U Nonimmigrant Client Adjust Status through a Family Petition? One of the potential drawbacks of adjustment of status under INA § 245(m) is the requirement that the U visa holder must wait 3 years in U nonimmigrant status before being eligible to adjust. For some individuals with U nonimmigrant status who may have an approved family visa petition that is current, but who would not otherwise be eligible to adjust status due to an unlawful entry, being able to adjust through the family member under INA § 245(a) may be a faster and more efficient option than waiting to adjust through the U visa adjustment provisions. While the law is not entirely clear that an individual in U nonimmigrant status has been “admitted” such that she is eligible to adjust status in the United States, advocates have reported success in at least some jurisdictions for clients with U nonimmigrant status adjusting through immediate relatives. A non-precedential BIA decision may be helpful in arguing that an individual with U nonimmigrant status has been admitted. In Ramirez-Lainez, the BIA interpreted the grant of derivative U status as an admission and held that the individual was properly charged as deportable under INA § 237(a)(2)(B)(i) for having been convicted of a controlled substance offense “after admission.” See Mario Enrique Ramirez-Lainez, A205 236 187 (BIA Aug. 21, 2014), reprinted in Appendix KK. In reaching its conclusion, the BIA cited the fact that neither the statute nor the regulations differentiate between persons who receive U nonimmigrant status while already in the United States and those who receive it abroad (after entering the United States at a port of entry with a U visa, undoubtedly an “admission”) in establishing eligibility for adjustment of status. Rather, both groups of individuals are described as having been “admitted” to a form of lawful status. See 8 USC § 1255(m)(1)(A); 8 CFR § 214.14(i). There may be a precedential decision on the issue forthcoming. On March 17, 2016, the BIA issued an amicus invitation for briefs discussing, among other issues, whether a person granted U nonimmigrant status from within the United States can properly be considered to be “admitted” within the meaning of INA § 237(a).33

See www.justice.gov/sites/default/files/pages/attachments/2016/03/17/amicus_invitation_no._16-0317_u_nonimmigrant_status_due_04-18-2016.pdf.

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CHAPTER 6 ADJUSTMENT OF STATUS PROCESS

This chapter includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12

Documentation Requirements for U Adjustment ............................................... 6-2 Forms I-485 and G-325 ...................................................................................... 6-5 Biometrics .......................................................................................................... 6-6 Filing Fees and Fee Waivers .............................................................................. 6-6 Passport .............................................................................................................. 6-7 Medical Exam .................................................................................................... 6-9 Proving Three Years Continuous Physical Presence........................................ 6-10 Proving an Applicant Has Not Unreasonably Refused to Assist in Investigation or Prosecution ............................................................................. 6-12 Inadmissibility .................................................................................................. 6-14 Evidence That Discretionary Approval Is Warranted ...................................... 6-14 Approvals and Denials ..................................................................................... 6-16 Applicants with Removal Issues ...................................................................... 6-17

The adjustment of status procedure for U nonimmigrants varies in significant ways from other adjustment procedures, such as that for VAWA self-petitioners or family-based beneficiaries. First, U nonimmigrants will not attend an immigration interview to adjust status. Second, U nonimmigrants do not need to show they are admissible by overcoming the grounds of inadmissibility at INA § 212(a) and instead need to show they merit a favorable exercise of discretion. And third, U nonimmigrants may not adjust status in proceedings in front of an immigration judge or at a local USCIS office because the application can only be adjudicated by the Vermont Service Center. Also, no affidavit of support is required, and a fee waiver is available if the client is sufficiently low income. In other ways the process is similar. For example, the Form I-485 is still used as the application to adjust status, a G-325 is required for any applicant who is 14 or over, and a medical exam must be submitted. However, applicants for adjustment of status as U nonimmigrants will file their Form I-485 with the Vermont Service Center, regardless of the applicant’s place of residence. USCIS issued an additional “form” called the Form I-485 Supplement E that outlines some of the adjustment application requirements that are unique to U nonimmigrant applicants, but you do not need to submit this form as it only contains supplemental instructions. While applicants and derivatives often submit a combined application packet at the U nonimmigrant status phase, it is best practice to submit a separate application packet for each adjustment applicant. If multiple family members are eligible to file at the same time, the individual packets can all be submitted in the same envelope so that they are likely to stay together through the adjustment adjudication process.

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§ 6.1

Documentation Requirements for U Adjustment1

The primary pieces of documentation an applicant needs to submit to adjust status as a U nonimmigrant are listed below. More detailed checklists are in Appendix GG.       







Form G-28 authorizing your representation; Form I-485, Application to Register Permanent Residence or Adjust Status; Filing fee or a fee waiver request for Form I-485 and biometrics (as of the writing of this manual, you can still submit either the Form I-912 formal fee waiver request application or a simple declaration describing the need for the fee waiver); Form G-325 (if the applicant is 14 or over); Form I-693, Medical Exam for the applicant in a sealed envelope; Photocopy of the applicant’s U nonimmigrant status (Form I-918 or Form I-918 Supplement A) approval notice and a photocopy of the applicant’s I-192 approval notice if applicable, and optionally a copy of the U employment authorization; Evidence showing that the applicant never unreasonably refused to cooperate in the investigation or prosecution after obtaining U status. An explicit statement to this effect in the applicant’s declaration is required (for example: “I never refused to help law enforcement in the case against my attacker”). Details of cooperation can be helpful, but do not seem to be required. Additional, and usually optional, evidence can consist of the initial Form I-918 Supplement B law enforcement certification (I-918B) or court disposition documents showing that the investigation or prosecution was already complete when the original I-918B was signed or a new Form I-918B; Photocopy of all pages of any of the applicant’s passport(s) valid during the period that she was in U status and if there are periods during which the applicant did not have a passport, an explicit statement in the applicant’s declaration the dates in which the applicant did not hold a valid passport and an explanation of why the applicant did not renew the passport either on time or at all;2 Evidence, including an explicit statement in the applicant’s declaration, that she has maintained continuous physical presence for at least three years since obtaining U status (for example “I have not left the United States since I was granted U status”). The documentary evidence can include tax returns, check stubs, bills, receipts, school records, etc. VSC prefers documentation from a variety of sources (not just three years of utility bills alone) and while something for each month is ideal, something for each quarter is generally sufficient; Evidence relating to discretion including a short statement in the applicant’s declaration explaining why it is important for her to stay in the United States. The applicant must include this statement even if there are no new negative discretionary factors; but supporting evidence should be submitted if there are new negative discretionary factors that have arisen since the granting of U status;

1

8 CFR § 245.24(d). Generally 8 CFR § 212.1 requires that nonimmigrants maintain a valid passport for 6 months beyond their authorized period of stay. For those in U status, VSC can excuse that requirement, but they need some explanation for the lack of a valid passport.

2

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

 

Birth certificate of the applicant: A birth certificate is typically required as part of an adjustment application packet and while some U adjustments have been approved without the submission of a birth certificate, in other cases an RFE has been issued for the birth certificate so the best practice is to submit a birth certificate (with translation if not in English); Form I-765 under the (c)(9) category with two passport-style, color photographs if the applicant’s employment authorization is going to expire in the next 1-4 months; and Form I-131 with two passport-style, color photographs to request an advance parole document if the applicant might need to travel while the adjustment application is pending, see Chapter 9 for more details on travel and advance parole.

Form I-601 is not submitted with a U adjustment application, as the only applicable inadmissibility ground—INA § 212(a)(3)(E)—cannot be waived! If there are negative discretionary factors that have arisen since the grant of U status, you can and should address those in the declaration and with supporting documentation, but there is no I-601 or I-192 form needed. Neither Form I-864 nor Form I-864W is required for adjustment based on an approved Form I918, I-918A or I-929 as all of those categories are exempt from the public charge ground of inadmissibility.3 Sample cover letters and a declaration template in support of a U adjustment application are included in Appendix II. The sample cover letters can be used as a checklist for preparation of the application packet.

PRACTICE POINTER: Evidence the Applicant Never Unreasonably Refused to Cooperate. While a new, signed I-918B is classic evidence of the fact that an applicant never unreasonably refused to cooperate in the investigation or prosecution, we have seen that VSC does not require a new I-918B and does not require evidence that one has been requested even though the regulations discuss it as an option for documenting this requirement. It is important to keep in mind that many law enforcement agencies or prosecutors are processing large numbers of I-918B requests with no additional funding and so we have found it to be a best practice to avoid unnecessarily burdening law enforcement with I-918B requests for adjustment cases. If the investigation or prosecution was complete at the time the original law enforcement certification was signed, it can suffice to have the client state that in her declaration and assert that she has not been asked to cooperate any further after her certification was signed. You can also address this issue in your cover letter by submitting any evidence to show that the investigation or prosecution was complete at the time of the original certification. This can be as simple as a copy of the original I-918B and an explanation stating that it is being submitted to show that law enforcement checked the box indicating the investigation or prosecution was complete at the time it was signed. It could also be addressed by submitting a copy of the conviction records or police report 3

As of this manual’s writing (February 2016), it appeared that the National Visa Center was requiring the filing of an I-864W as part of the consular processing preparations for an I-929 beneficiary who would be entering from abroad. Adjudicators at the VSC stated that this was an error that they were attempting to fix.

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and highlighting any indication that the case was complete at the time the original certification was signed. Many applications have been successful with just the assertion of cooperation in the applicant’s declaration even without the submission of the initial I-918B or a new one.

PRACTICE POINTER: Applicant’s Declaration. An applicant can address all of the following requirements in one short declaration:     

No unreasonable refusal to cooperate; Continuous physical presence for the minimum three years in U nonimmigrant status; A description and explanation of any gaps in her passports during the time in U status; Reasons for discretionary approval—this can be a short statement of why it is important to the applicant and her children to stay in the United States; and An explanation of any negative factors that have arisen since the U status was granted and a description of any balancing equities or hardship factors.

Unlike the declaration submitted in support of the initial U status application, this declaration can be quite short and the first three bullet points can be addressed in one perfunctory sentence each. It is enough to simply assert that the applicant never unreasonably refused to cooperate. Similarly, it is enough for the applicant to simply state that she has not departed from the United States since being granted U status. The statement about the passport is only needed if the applicant is not submitting a complete copy of a passport that covers the entire period since being granted U status. If there is a gap in passport coverage, the explanation can be as simple as the fact that the applicant had no need for a passport because she was not traveling and did not have extra money with which to pay the passport application fee. If there are no negative discretionary factors, the fourth bullet point can consist of just a sentence or two in the applicant’s own words describing why it is important to her and her family that they stay in the United States. Factors often include the ability to work and support the family, the ability for the client or her children to continue to attend school, or a need to avoid returning to the personal, political, or economic dangers in the home country. If there are negative factors that have arisen since the grant of U status, particularly those involving criminal activity, the last section of the declaration should address these factors and the applicant should express as much remorse, responsibility, and rehabilitation as possible and include any compelling humanitarian reasons why her application should be granted despite the recent criminal activity. See Appendix II for a declaration template to support a U adjustment application.

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§ 6.2

Forms I-485 and G-325

U nonimmigrants who seek to obtain a green card in the United States must do so by filing Form I-485 and supporting forms and documents with the Vermont Service Center. An annotated and model completed I-485 form is included at Appendix II. A Form I-485 worksheet in Spanish is at Appendix JJ. It is helpful to consult Form I-485 Supplement E for additional instructions specific to U nonimmigrant adjustments. You can access these instructions online at the USCIS website, www.uscis.gov. However, be sure to read the form carefully as it also includes instructions for T (victims of human trafficking) nonimmigrants to adjust. While most of the requirements for T visa holders are similar, some are different. Notice that you need to answer the laundry list of inadmissibility questions on Form I-485 that are similar to those that were already answered on the Form I-918. Unless conditions have changed substantially, the applicant’s answers on Form I-485 should generally be consistent with the answers on the Form I-918, including date and manner of entry, any arrests, and any prior fraud or misrepresentation in the applicant’s immigration history. Any “yes” answers that were previously disclosed and waived can be covered in an attachment to the I-485 noting that those inadmissibility grounds were previously disclosed and waived as part of the U nonimmigrant status application. Any new “yes” answers should be addressed in an attachment, if simple, and additionally in the declaration if more challenging. It is essential to ask all these inadmissibility questions again at adjustment time, especially if your client applied for initial U status with an attorney or practitioner other than yourself. It is also best practice to obtain a copy of the initial U nonimmigrant status application forms so that you know what was and was not previously disclosed. If you determine that the adjustment applicant failed to disclose a material fact, it is important to disclose it, explain the previous oversight, and apologize for it in the declaration. If the disclosed information is very negative such as a prior history of marriage fraud, be sure to include information and documentation of positive equities to outweigh the negative history and the fact that it was not previously disclosed. If the previously undisclosed information would have triggered a ground of inadmissibility that was not waived due to the failure to disclose, it is a good idea to include a new Form I-192 to enable USCIS to now waive the triggered ground if it deems it necessary. By contrast, if something has come up since the U status was granted that triggers inadmissibility or is a negative discretionary factor, no new I-192 (or I-601) is needed. Although applicants are not subject to most of the inadmissibility grounds at INA § 212(a), adjustment is a discretionary benefit, and USCIS may consider negative factors in making its determination in the applicant’s case. Therefore, any negative factors, including newly triggered grounds of inadmissibility or new crimes, should be addressed, and any positive balancing equities should be documented.

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PRACTICE POINTER: Applicant’s Last “Entry” into the United States. The Form I-485 requests information regarding the applicant’s last entry to the United States. Practitioners have generally interpreted the term “entry” to mean physical entry to the United States rather than the date an applicant’s status was changed to that of a U nonimmigrant. To avoid implying that an applicant has departed when she has not, an applicant should include the same information about date and manner of entry on the I-485 as she listed about her last entry on the I-918 if she has not left the United States since her initial application. Where the form asks for an I-94 number and the client initially entered lawfully, you can include both the I-94 number from the initial entry and the I-94 number from the I-918 or I-918A approval notice.

Adjustment of status applications for applicants 14 or over require submission of Biographic Form G-325 in addition to the Form I-485. The one page version of the form is sufficient. Note that any addresses listed here that are outside the United States may raise a red flag that the applicant did not maintain continuous residence during the required period. A sample Form G325 is included in Appendix II. § 6.3

Biometrics

Applicants for adjustment of status as U nonimmigrants will need to have their biometrics taken. See § 3.3 in Chapter 3 for a discussion of what biometrics are and how they are processed. There is a filing fee for capturing the biometrics required at this stage. The current (February 2016) fee is $85. However, for those unable to pay to biometrics fee, there is a fee waiver available which can be listed on the same fee waiver request that requests the I-485 filing fee be waived.4 For more information on requesting a filing fee waiver, see § 6.4 below. § 6.4

Filing Fees and Fee Waivers

As of this manual’s writing (February 2016) the filing fee for the Form I-485 is $985 plus a biometrics fee of $85 (for a total of $1,070). Applicants under 14 years of age only have to pay a $635 filing fee if at least one parent is concurrently filing a Form I-485. If they are filing separately from at least one parent, they must pay the $985 filing fee. Applicants under 14 do not need to pay the biometrics fee. Applicants who are 79 years of age or older also do not have to pay the biometrics fee, so only need to pay the $985 fee. You should always check the USCIS website (www.uscis.gov) for the current filing fee amounts and current acceptable versions of the forms, as they change periodically. The filing fee for the Form I-485 may be waived for U nonimmigrants.5 As of this manual’s writing (February 2016), VSC is not requiring that the Form I-912 be used to request a fee waiver 4

8 CFR § 103.7(c). William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 5044 (TVPRA 2008), sec. 201(c)(7). 5

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request for U-related applications—including the adjustment of status application. You may use Form I-912 if you like. You may also instead use a simple one-page declaration format for requesting a fee waiver, similar to what you would use to request that filing fees related to the U nonimmigrant status application be waived. Please see previous discussion on requesting filing fee waiver requests at § 3.4 of Chapter 3 and sample fee waiver requests at Appendix L. (Included with the sample fee waiver requests is one in Spanish which you may want to give to your Spanish-speaking clients to fill out to help you elicit the relevant information, but keep in mind that USCIS will not accept a filing fee waiver request in another language—you must provide a version in English.) The I-485 filing fee or fee waiver request also covers the I-765 and I-131 fees (and renewals if needed) so there is no need to separately pay for those fees or to submit a separate fee waiver request with those forms. The VSC VAWA/U Unit does not generally require supporting documentation for fee waiver requests. § 6.5

Passport

The regulations require U nonimmigrant applicants for adjustment to submit a photocopy of all pages of all of the applicant’s valid passport(s) during the required period (or equivalent travel document or an explanation in the applicant’s declaration of why the applicant does not have a passport for any or all of the time in U nonimmigrant status) and documentation showing the following:   

The date of any departure from the United States during the period that the applicant was in U nonimmigrant status; The date, manner, and place of each return to the United States during the period that the applicant was in U nonimmigrant status; and If the applicant has been absent from the United States for any period in excess of 90 days or for any periods in the aggregate of 180 days or more, a certification from the investigating or prosecuting agency that the absences were necessary to assist in the investigation or prosecution of the criminal activity or were otherwise justified.6

The applicant should also submit a copy of the Form I-94, Arrival-Departure Record she received when she entered on the U visa or when her U nonimmigrant status was approved. Note that if the applicant was in the United States when the U nonimmigrant status was approved and has never departed, the I-94 is part of the I-918 approval notice.

PRACTICE POINTER: What to Do if Your Client Was Abroad for Over 90 Days in One Trip or Over 180 Days in the Aggregate. This scenario creates a serious problem for U nonimmigrants because a trip of over 90 days outside the United States or over 180 days in the aggregate outside the United States will break the U nonimmigrant’s accrual of the three years of continuous physical presence that is required for a U nonimmigrant to adjust status.

6

8 CFR §§ 245.24(d)(5), (6).

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Arguably, there are four potential ways to remedy this problem at the adjustment phase: 1. If the absence was related to the criminal investigation or prosecution, the police or District Attorney can excuse the absence via a new I-918 Supplement B by certifying that the absence was related to the investigation or prosecution. In this case, the client can still adjust at the regular time. For now, this is the only option with any certainty that an applicant can use to excuse an absence or absences over the 90/180-day limit and still adjust status. The other options listed below are still being discussed within USCIS and it is not clear whether they will work or not. 2. Even if the absence was not related to the criminal investigation or prosecution, the police or District Attorney could excuse the absence via a new I-918 Supplement B or letter by saying that the absence was otherwise justified. The client could use this to try to adjust at the regular time. It is not clear how commonly this would be accepted by VSC. At least one practitioner received an approval after submitting this type of I-918B, and another practitioner received an approval after submitting a statement from law enforcement. In both cases the practitioners argued to law enforcement and VSC that the victims had returned home past the 90/180-day limit because they needed to be with family due to the trauma that they had suffered as a result of the qualifying crime. It is unclear if this connection to the crime is necessary for the “otherwise justified” basis for excusing the extended absence. 3. The applicant could accrue three years in U nonimmigrant status after return either by extending her nonimmigrant status or because the trip out occurred during her first year of status. For example, if a client departs the United States within her first year of U nonimmigrant status, it is possible she will return in time to still accrue three years of continuous physical presence in the United States before her four-year U nonimmigrant status expires. Alternatively, she may be able to extend her status in order to accrue the required three years of continuous physical presence. As of this manual’s writing (February 2016) several practitioners have reported approvals of I-539 applications for extension of stay granting the applicant four years of status after the return from the extended absence. However no one has reported an approval of an adjustment based on the accrual of the new three years of status post-absence. 4. The applicant could also submit evidence (a declaration and any supporting documents) that the excessive absence was due to extenuating circumstances or consular processing delays and request that USCIS exercise its discretion to excuse the absence and still allow the applicant to adjust despite the interruption in the continuous physical presence. The probable success rate of this option is still unclear. In sum: At the time of writing this manual (February 2016), VSC has confirmed only that the first option can definitely cure an extended absence. Practitioners have reported success with the second option. For the third option, practitioners in the field have received extensions of status approvals from USCIS, based on the applicant’s extraordinary circumstances, beyond the four years and with enough time to accrue three years of continuous presence. These experiences

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indicate that USCIS may later grant adjustment in these cases, but no approvals have been reported yet. The fourth option remains untested and is probably the least likely to be successful.

§ 6.6

Medical Exam

USCIS requires a valid, sealed medical exam documented on Form I-693, Report of Medical Examination and Vaccination Record, as part of the initial evidence for all adjustment of status applications, including for U nonimmigrants wishing to adjust status. Therefore, if an applicant applies for adjustment without including a completed Form I-693, USCIS will send a Request For Evidence (RFE) requesting the medical exam.7 The medical examination must be conducted by a civil surgeon who is currently designated by USCIS to perform such exams. USCIS maintains a list of the currently designated civil surgeons on its website. You may find this information by searching for “Civil Surgeon Locator” on the USCIS website (www.uscis.gov) and then entering the applicant’s zip code to generate a list of approved doctors. Do not rely on an old list, since the list is periodically updated. Instructions for clients in English and Spanish that explain the process are attached at Appendix LL. Do not miss the filing deadline of the expiration date of the applicant’s U status just because your client has been unable to obtain the medical exam in time. The medical exam is valid for one full year from the date of the civil surgeon’s signature. In other words, applicants must submit Form I-693 to USCIS within one year of the immigration medical examination. It is better to submit an incomplete but timely application and then submit the medical exam later in response to an RFE than to miss the deadline.

PRACTICE POINTER: Fees Related to the Medical Exam. There is no filing fee to USCIS to submit the Form I-693 medical exam, but applicants should anticipate a fee to the civil surgeon to conduct the exam and fill out the form. Rates vary by physician. The civil surgeon must perform all of the required tests herself (a blood test for syphilis and a TB test), but the required vaccinations can be administered anywhere. Thus one cost-saving measure for clients can be to obtain the required vaccinations at a local clinic or their own medical provider and then bring proof of the vaccination administration to the civil surgeon. It can be helpful to advise the applicant to ask for a list of required vaccinations and their prices when they make the appointment to help them decide where to go for the vaccinations. Note that the price of 7

USCIS, FAQ on Filing T, U, and VAWA Petitions, (June 30, 2009), available at www.asistahelp.org/docu ments/filelibrary/documents/CIS_T_and_U_FAQ_630091_F6FFECE756DE9.pdf. On an April 2010 Vermont Service Center Stakeholder Conference Call, USCIS indicated that if the I-485 was filed without the medical exam, the applicant should wait for an RFE for it rather than supplementing the file with a separate submission of the medical exam. This is because it is possible that the medical exam will not be matched up with the original filing and could become lost.

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the medical exam varies widely so it is also helpful to advise clients to call several civil surgeons and compare prices before making the appointment.

PRACTICE POINTER: Potential Consequences of a DUI Conviction Post U Approval. USCIS may send an RFE for a supplemental medical exam if the applicant has been convicted of driving under the influence (DUI) after having been granted U status. For many forms of immigration relief, a recent DUI can be evidence that the person is inadmissible for having a mental disorder with associated harmful behavior, namely alcoholism. Even though the grounds of inadmissibility technically do not apply to U adjustment, USCIS takes DUI convictions very seriously and has issued RFEs asking for the civil surgeon to specifically address the question of whether the applicant has a mental disorder with associated harmful behavior (alcohol addiction is specifically mentioned on the form) in Part 5, section 2 of the medical exam form. One practitioner reports having received such an RFE for a client with only one DUI post U nonimmigrant status approval, but USCIS approved the adjustment application after the civil surgeon interviewed the client and filled out the form with notes stating that he did not expect the behavior to recur. If an applicant has a DUI conviction post U grant, you can wait to see if an RFE will be issued or proactively ask the civil surgeon to address the DUI on the medical exam form to hopefully prevent the delay associated with the issuance of an RFE.

§ 6.7

Proving Three Years Continuous Physical Presence

Documentation of continuous physical presence must include the applicant’s declaration or affidavit attesting to the required three years of continuous physical presence in U nonimmigrant status.8 Unfortunately continuous physical presence accrued while the U nonimmigrant was on the waitlist and deferred action does not currently count towards this accrual of time. A template for this declaration is at Appendix II. However, the applicant’s statement alone will not be sufficient to establish the required three years of continuous physical presence.9 The applicant should also include other evidence such as:    8 9

documents issued by any governmental or nongovernmental authority with the name of the applicant, date, and signature, seal, or other authenticating instrument of the authorized representative of the issuing authority, if available; college transcripts, employment records, or federal or state income tax returns, to show that she attended school or worked in the United States throughout the entire three-year U nonimmigrant status period; installment payments, such as monthly rent receipts or utility bills that cover the same three-year period.10

8 CFR § 245.24(d)(9). 8 CFR §§ 245.24(d)(5), (6).

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If none of this evidence is available, the applicant must explain why in a declaration or affidavit and provide additional statements from others who can attest with first-hand knowledge and specific facts regarding the applicant’s continuous physical presence in the United States.11 If you believe USCIS already has documentation in its files establishing the applicant’s physical presence—for example a written copy of a sworn statement given to a DHS officer, a document from a law enforcement agency attesting to the fact that the applicant has continued to comply with requests for assistance, transcripts of formal hearings, a Record of Deportable/Inadmissible Alien, Form I-213, etc.—then you may simply list those documents, giving the type and date of the document.12 You may also have copies of documents signed by the applicant in your own records, and you may submit those copies to show that the applicant was in the United States on the date the document was signed. Although the applicant does not need to show presence in the United States for every day during the required three-year period, any absences or chronological gaps should be explained as USCIS will be looking for absences that, in the aggregate, add up to 180 days and would therefore bar the applicant from showing three years of continuous physical presence.13 A good goal is to submit something for each month, but in many cases, something for each quarter will suffice. A variety of sources of documentation is best (rather than just three years of utility bills).

PRACTICE POINTER: Adjustment Considerations for U Nonimmigrants Who Wish to Travel. Applicants with a pending adjustment application who wish to travel outside the United States may be able to do so but must obtain advance parole to travel.14 This can be requested on Form I-131 before departing the United States.15 There is no fee for the Form I-131 for those U nonimmigrants who have paid for the Form I-485 filing fee or had the filing fee waived.16 The I-131 can be submitted to VSC along with or after the filing of the I-485. However, if there is an emergency, the I-131 can be submitted to a local USCIS district office with proof of the emergency (make an InfoPass appointment if there is one available in time; otherwise try to walk in without an appointment). For non-emergency advance parole based on the pending adjustment, there is no need to have a specific or urgent reason for the travel. The issuance of advance parole does not technically guarantee that your client will be able to reenter the United States, but generally adjustment applicants with advance parole are able to reenter without incident. When entering with the advance parole document and valid foreign passport, CBP will generally direct the applicant to secondary inspection for confirmation that the pending adjustment application has not been denied while the applicant was abroad. If there is concern that the adjustment application may be denied, travel on advance parole is not advisable. 10

8 CFR § 245.22. 8 CFR §§ 245(d)(5)–(6). 12 See Preamble at Federal Register, Vol. 73, No. 240, p. 75548 (Dec. 12, 2008). 13 Id. 14 8 CFR § 245.2(a)(4)(ii)(B). 15 8 CFR §§ 245.24(j), 245.2(a)(4)(ii)(B). 16 See Preamble at Federal Register, Vol. 73, No. 240, p. 75553 (Dec. 12, 2008). 11

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The purpose of advance parole is both to allow re-entry into the United States (without the need for the issuance of a U visa at the consulate abroad) and to preserve the applicant’s adjustment application. If the applicant does not obtain advance parole, USCIS will deem the adjustment application abandoned upon departure from the United States,17 and that immigrant will be treated as an applicant for admission subject to INA § 212 and INA § 235 upon return. Keep in mind that any time out of the United States—even if on advance parole—may still count toward the 90-day one-time or 180-day in the aggregate time limit that will cut off the accrual of continuous physical presence required for adjustment. The best advice for your client may still be to wait to travel (if possible) until she receives her permanent residence card, but the availability of advance parole once the adjustment application is pending makes travel abroad much less risky and complicated than when the client is just in U status. Note that the official policy of USCIS is that U status alone does not create eligibility for advance parole; a pending adjustment application is required. But some local USCIS offices have granted advance parole for those in U status for humanitarian reasons. For a more detailed discussion of the implications of travel for U nonimmigrants, see Chapter 9.

§ 6.8

Proving an Applicant Has Not Unreasonably Refused to Assist in Investigation or Prosecution

As discussed in Chapter 5, there is an ongoing requirement that U nonimmigrants not unreasonably refuse to provide assistance in the criminal investigation or prosecution. For derivatives, this means that if they possessed information about the crime, and are asked to assist, they also have a responsibility to not unreasonably refuse to provide assistance.18 “Refusal to provide assistance” is defined as refusal to provide assistance after being granted U nonimmigrant status (emphasis added).19 If the principal or derivative never refused assistance, a simple statement to that effect in the declaration is sufficient. If there was a refusal to provide assistance, then the question is whether that refusal was reasonable or not. Determination of the reasonableness of a refusal may be made by USCIS in consultation with the Attorney General and will be based on all affirmative evidence and the totality of circumstances.20 Factors include:    

general law enforcement, prosecutorial, and judicial practices; kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; nature of the request to the alien for assistance; nature of the victimization;

17

8 CFR §§ 245.24(j), 245.2(a)(4)(ii)(A). See Preamble at Federal Register, Vol. 73, No. 240, p. 75547 (Dec. 12, 2008). 19 8 CFR § 245.24(a)(5). 20 Id. 18

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  

the applicable guidelines for victim and witness assistance; specific circumstances of the applicant, including fear, severe physical or mental trauma; and age and maturity of the applicant.

The regulations describe three basic ways to document this reasonableness requirement: Option One. Submit a document signed by an official or law enforcement agency that had responsibility for the investigation or prosecution of the crime for which the U visa was based.21 The document should affirm that the applicant complied with (or did not refuse to comply with) reasonable requests for assistance in the investigation or prosecution during the requisite period (meaning after the U visa was granted).22 This may be done by submitting a newly executed Form I-918 Supplement B, “U nonimmigrant Status Certification.”23 This option supposedly simplifies the process and avoids delays in adjudication because USCIS would not need to refer the application to the Department of Justice absent extraordinary circumstances.24 This new I-918 Supplement B can simply state that the applicant and her family members never unreasonably refused to cooperate. See Appendix NN for a sample I-918 Supplement B for adjustment applicants and Appendix OO materials to use in approaching law enforcement for a new I-918 Supplement B in support of an adjustment application. Option Two. You may instead (a) submit an affidavit describing the applicant’s efforts to obtain a newly executed I-918 Supplement B and/or (b) submit other evidence describing whether or not the applicant received any requests to provide assistance, and the response to any such request.25 This should include a description of all instances after the applicant was granted U nonimmigrant status when she knows she was requested to provide assistance in the criminal investigation or prosecution of the U-status related crime and also how she responded to the requests.26 Applicants should also include, when possible, identifying information about the law enforcement personnel involved in the case and any information the applicant has about the status of the criminal investigation or prosecution, including any charges filed and the outcome of any criminal proceedings, or whether the investigation or prosecution was dropped and the reasons.27 Depending on the circumstances, evidence might include such documentation as court records, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits of other witnesses or officials.28 See Appendix OO for a sample letter to law enforcement to request a police report.

21

8 CFR § 245.24(e)(1). Id. 23 8 CFR § 245.24(e)(2). 24 See Preamble at Federal Register, Vol. 73, No. 240, p. 75547 (Dec. 12, 2008). 25 8 CFR § 245.25(e)(2). 26 Id. 27 Id. 28 See Preamble at Federal Register, Vol. 73, No. 240, p. 75547 (Dec. 12, 2008). 22

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Option Three. If applicable, an applicant also may choose to provide a more detailed description of situations where she declined to comply with requests for assistance because she believed that declining to comply with such requests for assistance was reasonable under the circumstances.29 Process for Determining Reasonableness for Option Three Some applications will be referred to the Department of Justice (DOJ) for a determination of whether the applicant has unreasonably refused to comply with a request for assistance in an investigation or prosecution.30 This will likely only happen if the certifying official or agency has provided evidence of a refusal to assist or if there is other affirmative evidence in the record demonstrating an unreasonable refusal to assist.31 The DOJ then has ninety days to provide a written determination to USCIS or ask for an extension of time.32 After that time, USCIS may adjudicate the application regardless of whether DOJ has provided a response.33 USCIS has indicated that they intend to provide additional guidance on what constitutes an unreasonable refusal in future policy guidance memorandum. § 6.9

Inadmissibility

The only ground of inadmissibility that applies to U nonimmigrants seeking to adjust status is INA § 212(a)(3)(E) which relates to Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing.34 Any applicant who triggers this ground of inadmissibility will be unable to adjust status, as this ground is not waivable. Otherwise, U adjustment applicants are not required to establish that they are admissible on any of the grounds set forth in INA § 212(a) and therefore no Form I-601 or Form I-192 waiver should be submitted with the adjustment application. However, adjustment of status is a discretionary benefit, so USCIS still has the discretion to decide whether or not to approve the application and may take into account issues, offenses, and acts that would otherwise trigger an inadmissibility or deportability ground or that simply reflect badly on the applicant. See more on this in the next section. § 6.10 Evidence That Discretionary Approval Is Warranted The applicant bears the burden of showing that USCIS should exercise its discretion in her favor to grant adjustment of status.35 U adjustment applicants are not required to establish that they are admissible under INA § 212(a), and USCIS has stated that generally factors such as “family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion.”36 Therefore, if no new negative factors have arisen since 29

8 CFR § 245.24(e)(2)(ii). 8 CFR § 245.24(e)(4). 31 Id. 32 Id. 33 Id. 34 INA § 245(m)(1). 35 8 CFR § 245.24(d)(11). 36 See Preamble at Federal Register, Vol. 73, No. 240, p. 75549 (Dec. 12, 2008). 30

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the U status was granted, a few sentences in the declaration about why it is important to the applicant to remain in the United States should suffice. However, USCIS may take into account all adverse factors, including acts that would otherwise render the applicant inadmissible as well as factors that may not, such as juvenile adjudications, in making its discretionary decision on the application. Where adverse factors are present, the applicant must offset these by submitting supporting documentation establishing mitigating equities for USCIS to consider when determining whether or not the applicant merits a favorable exercise of discretion. Focus on negative discretionary factors that have arisen since the applicant was granted U nonimmigrant status, if factors that arose before have already been disclosed and waived. Depending on the nature of the adverse factors, the applicant may be required to demonstrate that the denial of adjustment of status would result in exceptional and extremely unusual hardship.37 Moreover, depending on the gravity of the adverse factors, such a showing might still be insufficient.38 For example, USCIS will generally not exercise its discretion favorably in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns.39 In such cases, “only the most compelling positive factors” will justify a favorable exercise of discretion, according to USCIS.40 Practitioners have reported some denials based on only juvenile adjudications even though those would not trigger a ground of inadmissibility. Allegations of gang involvement are also taken very seriously by USCIS. Since the U nonimmigrant status itself is a humanitarian benefit, an applicant without any adverse factors may not need to affirmatively document this element beyond a simple sentence or two in the declaration about why it is important to the applicant or her children that she stay in the United States. If there are adverse factors, especially involving criminal behavior after the grant of U status, document rehabilitation of the applicant, the existence of children dependent on the applicant, and any hardship factors that the applicant and her children would face if they were not allowed to remain in the United States. Consult the extreme hardship factors discussed in Chapter 7 for some ideas of the kinds of hardships that may be relevant to the applicant’s case. Applicants who submitted evidence of their contributions to their families and communities with their Form I-192 inadmissibility applications may direct the attention of USCIS to that evidence in their files, but may also want to supplement with additional and/or updated documentation depending on the seriousness of the new negative factors. For criminal issues, it is important to submit a declaration and documentation showing remorse, rehabilitation, and responsibility.

37

8 CFR § 245.24(d)(11). For a thorough discussion of the factors that the BIA and federal courts have identified as relevant to claims of hardship and how to work with clients to elicit the information that will best present their hardship claims, see the ILRC manual, Hardship in Immigration Law: How to Prepare Winning Applications for Hardship Waivers and Cancellation of Removal at www.ilrc.org. 38 Id. 39 8 CFR § 245.24(d)(11). 40 Id.

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PRACTICE POINTER: Tips from the Vermont Service Center   

 

Do not supplement an I-485 filing with anything not easily replaceable (such as a medical exam) before receiving an RFE. Supplemental material can get lost in the VSC mailroom when there is no identifying RFE to match the supplemental filing with the case. Always articulate some argument for why USCIS should exercise discretion in favor of your client in the declaration. Do not assume it is obvious, even in a seemingly straightforward case. Do not forget to have both principal and derivative applicants state in their declarations that they never refused to cooperate with law enforcement. If the derivative was not present in the United Sates when the crime took place or was otherwise not present, it is still important to state that in the declaration rather than assuming that USCIS will realize it. Always address any gaps in passport(s) during the applicant’s time in U status and explain the reason for the gap (even if it is as simple as she had no need to renew the passport or she could not afford to renew the passport). U nonimmigrant applicants should not be receiving interview notices for their adjustment of status. Contact the VSC hotline at [email protected] if you receive an interview notice.

§ 6.11 Approvals and Denials U adjustment approvals will come in the form of an approval notice and the lawful permanent resident card should arrive by mail shortly afterwards.41 See Appendix II for a sample adjustment approval notice. Lawful permanent resident status will be recorded as of the date of the adjustment approval.42 U adjustment denials will come in the form of a written decision and will include the reasons for the denial.43 Denials can be appealed to the Administrative Appeals Office (AAO).44 However, denials cannot be renewed or filed before an IJ in removal proceedings.45 This is because USCIS has sole jurisdiction over the adjudication of adjustment applications for U nonimmigrants.46 A filing of the I-290B appeal notice will trigger a review of the denial at VSC before the file is forwarded to the AAO.

41

8 CFR § 245.24(f). Id. 43 8 CFR § 245.24(f)(2). 44 Id. 45 8 CFR § 245.24(k). 46 8 CFR §§ 245.24(f), (k); see also statutory language vesting this authority in the Secretary of Homeland Security at INA § 245(m). 42

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As of this manual’s writing (February 2016), U nonimmigrant adjustment applications are taking approximately 6-9 months to be processed. In June 2014, USCIS officials stated that U adjustment applicants whose adjustment applications were denied were not in and of themselves an enforcement priority and thus far none had received Notices to Appear based on an adjustment denial, but at least one denied derivative was picked up at home after the denial possibly because the denial was based on a criminal conviction that made the applicant a priority for enforcement. § 6.12 Applicants with Removal Issues Prior Unexecuted Removal Orders Because USCIS has sole jurisdiction over U adjustments, applicants with prior removal orders do not need to have the prior removal proceeding reopened and terminated to obtain either U nonimmigrant status or U adjustment of status. It is best practice for applicants with orders of exclusion, deportation, or removal that were issued by an immigration judge or the Board of Immigration Appeals (BIA) to have their proceedings reopened and terminated before they travel as an LPR. VSC is sending a letter to this effect with the adjustment approval notice where it has flagged the existence of an unexecuted removal order in the file. Even if they do not plan to travel abroad and even if the adjustment has been granted, applicants should reopen and terminate their removal proceedings if possible, to ensure that they no longer appear in the National Crime Information Center (NCIC) database as having an outstanding order. Applicants who want to travel abroad will also need to go through this re-opening and termination process to avoid problems upon reentry to the United States. Furthermore, U nonimmigrants who adjust status without reopening and terminating a prior removal order may face problems at the time of naturalization if that removal order is still in place. Unfortunately, currently there is no specific provision for U nonimmigrants to reopen a prior removal proceeding. You will need to reopen the proceedings under an existing reopening provision, get ICE to join on a motion to reopen, or ask the IJ or BIA to reopen the proceedings sua sponte. For example, ICE counsel may cooperate on a joint motion to overcome any numerical or time limitations.47 Some Offices of Chief Counsel are willing to join on a motion to reopen once the U nonimmigrant status has been approved, while others are not willing to join until the adjustment application has been filed or even approved. Unfortunately, there may be some who will never agree to join. Chapter 8 contains detailed information about the various kinds of motions to reopen. Prior Executed Removal Orders Applicants with executed removal or deportation orders (those who have left the United States after being ordered deported or removed) do not need to reopen or terminate their proceedings.

47

Id.

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Prior Administrative Removal Orders Applicants with orders of removal, deportation, or exclusion issued by the Secretary of Homeland Security (i.e., expedited removals) will have had their orders automatically cancelled by operation of law when the I-918 was approved so reopening and terminating is not necessary.48 It is not yet clear how this type of removal order will be cleared from federal databases and whether this will cause a problem at naturalization or for clients who travel abroad. See the Practice Pointer in Chapter 4 for information on how to figure out if the applicant had an expedited removal order. Current Removal Proceedings Applicants who are currently in removal proceedings can simply move to terminate the proceedings. If the proceedings were administratively closed, the motion to terminate must include a motion to re-calendar. See Chapter 8 for a more detailed discussion of issues involving U nonimmigrants in proceedings.

48

8 CFR §§ 214.14(c)(5)(i), (f)(6).

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This chapter includes:

§ 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9 § 7.10 § 7.11

Overview of Options for Assisting Family Members ........................................ 7-1 Family Member Definitions under Immigration Law ........................................ 7-3 Assisting Derivative Family Members at the U Nonimmigrant Status Stage ................................................................................................................... 7-5 U Nonimmigrant Application Procedure for Derivative Family Members ........ 7-9 Adjustment Procedure for U Nonimmigrant Derivative Family Members ...... 7-17 Assisting Qualifying Family Members at the Time of the Principal U Nonimmigrant’s Adjustment of Status ......................................................... 7-18 Adjustment Procedure for Qualifying Family Members .................................. 7-20 Petitioning Requirements for Qualifying Family Members ............................. 7-22 Proving the Qualifying Family Relationship .................................................... 7-22 Documenting Extreme Hardship ...................................................................... 7-25 Adjustment of Status ........................................................................................ 7-28

§ 7.1

Overview of Options for Assisting Family Members

There are four main ways non-citizen family members of crime victims may obtain immigration status under the U nonimmigrant status provisions. Factors to consider include whether the family member can qualify as a derivative or a principal and whether the qualifying relationship exists at the time of the principal applicant’s Form I-918 filing or at the time of the principal’s adjustment of status application is granted. First, certain family members of crime victims may qualify as indirect victims of the crime that occurred. In that case, if they are helpful in the criminal investigation or prosecution of the crime and have suffered substantial physical or mental abuse as a result of the crime, they may be eligible to file as principal applicants for the U nonimmigrant status. This most commonly occurs where the primary victim was murdered or is a U.S. citizen child. For more information on family members’ eligibility via this route, see Chapter 2, § 2.3. A family member who pursues this route will need to file everything that a principal applicant submits, including Form I-918 and Form I-918 Supplement B (to certify her own helpfulness). The family member will also need her own declaration to prove that she has suffered substantial harm as a result of the criminal activity. If her U nonimmigrant status is approved, she will be able to adjust status as a U nonimmigrant, according to the process described in Chapter 6. Second, certain family members of crime victims (as well as non-family members) may qualify as bystander victims of the crime against the primary victim. In that case, just as for indirect

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victims, the family member must file everything that a principal applicant submits, including the I-918B listing themselves as the victim and a declaration showing they suffered substantial harm. See Chapter 2, § 2.3 for more information about bystander victims. Practitioners have had success in this area applying for adult children of domestic violence victims who witnessed the abuse and spoke with law enforcement officers. Third, and most commonly, certain family members of the principal applicant for U nonimmigrant status will be able to obtain U nonimmigrant status as derivative family members. For U-1 nonimmigrants who are under 21 years old at the time of filing, derivative family members may include their spouse, children (under age 21 and unmarried), parents, and siblings (under age 18 and unmarried).1 For U-1 nonimmigrants who are over the age of 21 years old at the time of filing, derivative family members may include their spouse and children (under age 21 and unmarried).2 Derivatives do not need to have helped in the criminal investigation or prosecution; they do not need to have suffered substantial physical or mental abuse; and they do not have to have been present in the United States when the principal (U-1) nonimmigrant applied for status. They will need to be able to state that they have never unreasonably refused to cooperate at the time of adjustment. This chapter will go into more detail as to how to assist these family members with the process of applying for U nonimmigrant status. Once they have obtained their U derivative status, they will adjust under the same requirements and process described in Chapter 6.

PRACTICE POINTER: Deciphering the U Nonimmigrant Codes. Upon approval, principal U applicants and derivative U applicants will be considered U nonimmigrants. However, the code assigned to them will depend on whether they are approved as a principal or a derivative. Below are the codes associated with the various kinds of U nonimmigrants.     

U-1 is a principal applicant U-2 is a derivative spouse U-3 is a derivative child U-4 is a derivative parent U-5 is a derivative sibling

For employment authorization, U-1 principals will be approved under category (a)(19) and all derivatives will be approved under category (a)(20).

Finally, certain family members who were not previously included as derivative family members at the nonimmigrant application stage or were but were abroad and never consular processed into the United States so never were in U status can also obtain immigration status through a 1 2

INA § 101(a)(15)(U)(ii)(I). INA § 101(a)(15)(U)(ii)(II).

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§ 7.2

Family Member Definitions under Immigration Law

In order to qualify as the spouse, child, sibling, or parent for an immigration benefit, the family member must meet the definition of spouse, child, sibling or parent under immigration law. In this section, we will discuss the definitions of these family relationships. See § 7.9 for information on how to document the family relationship. Spouses. Individuals are considered “spouses” under immigration law if the marriage creating the spousal relationship was legally valid in the place where it was performed and celebrated.3 Furthermore, the marriage must have been entered into in “good faith” and not simply to obtain an immigration benefit.4 Spousal relationships are most easily proven with a marriage certificate, but they should also include documentation of the termination of any prior marriages. In theory, USCIS could request documentation of the bona fides of the marriage, but we have not heard of such requests yet. In order to qualify as a derivative spouse at the U nonimmigrant application stage, the marriage creating the spousal relationship must take place before the principal U nonimmigrant files the Form I-918. For spouses acquired after the filing of the Form I-918, but before approval of the adjustment application, a Form I-929 should be filed for the spouse when the principal U nonimmigrant is eligible to adjust status, under the petitioning process for qualifying family members. Children. The definition of a “child” under immigration law is a person who is unmarried and under the age of 21 years old.5 This definition also includes stepchildren, adopted children, and 3

Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). Lutwak v. U.S., 344 U.S. 604, 73 S. Ct. 481 (1953). 5 INA § 101(b)(1). 4

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petitioning process for qualifying family members. This process takes place at the time the principal U-1 nonimmigrant holder is ready to adjust status (or afterwards if the relationship existed at the time the adjustment was granted). It allows some family members to enter the United States as permanent residents or to adjust status if they are already present in the United States and skip the U non-immigrant stage of the process altogether. The petitioning requirements and process for this option is described in this chapter and the consular processing for those qualifying family members abroad is in Chapter 9. The advantage of this fourth option is that after-acquired spouses and stepchildren can qualify through this option (if the date of the marriage is before the date the principal applicant’s adjustment application is granted). Further, for those derivatives who are unable to travel to the United States in time to be “admitted” with U-status, or for those who are unable to resolve complex inadmissibility issues before the principal wishes to adjust status, the derivative can instead qualify at this stage, skip the I-192 waiver requirement, skip the three-year waiting period, and upon approval of this petition— immediately adjust status. The disadvantages are that the petitioning process cannot start until the principal applicant is eligible and ready to adjust status, and the petitioning process carries an additional requirement of showing extreme hardship. For children, there are no age-out protections for this option so both the I-929 and the subsequent adjustment application or consular processing must be completed before the child turns 21.

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children born out of wedlock when certain other criteria are met.6 Therefore, U nonimmigrant applicants with unmarried children under the age of 21 may also submit U nonimmigrant applications for those children as derivatives. Parent-child relationships are most easily proven with the child’s birth certificate. In order to qualify as a step-child for immigration purposes, the parent and step-parent’s marriage must have taken place before the step-child’s 18th birthday. In those cases, a marriage certificate between the biological and step-parent should also be included. Parents. There is no direct definition of “parent” under immigration law. Instead parents are simply defined in relation to the definition of “child” under immigration law.7 In the context of U nonimmigrants, biological parents, adoptive parents, and step-parents can qualify if the principal applicant is under the age of 21 at the time of filing. Siblings. Siblings are persons who were once “children” with at least one parent in common.8 Step-siblings and adopted siblings can also qualify as long as both step-siblings were under 18 when their parents were married or the adopted sibling was under 16 when adopted. The statute requires that U derivative siblings be unmarried and under the age of 18 when the principal applicants’ U nonimmigrant status application is filed. Both derivative children and derivative siblings must be unmarried to qualify for U derivative status. This means they must not be married at the time of the application, whether or not previously married.9 To ensure continuing eligibility, they should remain unmarried until their I918A (and ideally adjustment of status) has been approved. There is no longer an age-out problem, but there still may be a “marry-out” problem. There is definitely a marry-out problem if the derivative sibling marries before the I-918A is approved, but they still may be able to adjust if they marry after the I-918A is approved (and after they enter the United States if abroad). This is not yet officially codified, and so the best practice is to remain unmarried until after the adjustment is approved. Derivatives cannot file I-929 petitions so there is no advantage to marrying prior to adjustment.

PRACTICE POINTER: Argument That Parents of Principal Applicants under 21 Years of Age Should Qualify as Derivatives Even if Principal Applicant Is Married. Despite language in the regulations that seems to limit eligibility for U nonimmigrant status to derivative parents whose under 21-year-old children are unmarried, according to the statute, parents should be able to qualify as U derivatives even if their children are married.10 Nothing in the statutory language 6

Id. INA § 101(b)(2). 8 Matter of Garner, 15 I&N Dec. 215 (BIA 1975). 9 INA § 101(a)(39). 10 Regarding U derivatives, INA § 101(a)(15)(U)(ii)(I) states: “ in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which the alien applied for status under such clause, and parents of such alien;” should qualify. The problem with these cases perhaps stems from language in the preamble to the regulations which states: “Note that parents are only considered qualifying family members if the principal is under 21 years of age and a “child.” 8 CFR 214.14(f)(1). Although the statutory language at § 101(a)(15)(U)(ii), 8 USC 7

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invokes the term “child” which would require the principal applicant to be both under 21 years of age and unmarried. In other words, according to the statutory language, if the principal applicant is under 21 years of age and married, she should be able to include both her parents and her spouse as a derivative (in addition to her children and minor siblings). The statute does not define a principal applicant in this situation as a “child,” and instead only refers to being “under 21 years of age.” Although USCIS initially denied some parents’ derivative applications when the principal children were married, USCIS has reversed those decisions when presented with the arguments outlined in Footnote 10. USCIS is no longer denying these cases.

Assisting Derivative Family Members at the U Nonimmigrant Status Stage

Sample checklists, intake forms and other materials for working on derivative U nonimmigrant status cases are found at Appendix PP. Principal U nonimmigrants (those with U-1 nonimmigrant status) can request derivative U nonimmigrant status for some of their family members.11 If the principal U applicant is under the age of 21, she can include a spouse, children, parents, and/or unmarried siblings (who are under the age of 18) as derivative family members. If the U applicant is 21 years or older, she can include a spouse and/or children as derivative family members. The principal applicant’s age and the derivative children’s and siblings’ ages are determined by and, for I-918A eligibility

1101(a)(15)(U)(ii), naming parents as qualifying family members does not specify that the principal must be a child under the age of 21 for the parents to qualify, USCIS believes that this qualification is required by § 101(b)(2) of the INA, 8 USC 1101(b)(2). This provision defines the term, “child,” as an unmarried person under 21 years of age. INA §§ (b)(1), 8 USC 1101(b)(1).” Similarly, 8 CFR § 214.14(f)(1) notes that a U-1 nonimmigrant may petition for a “ U-4 (parent of a U-1 alien who is a child under 21 years of age)”—thus invoking the term “ child” which is not in the statute. However, an interpretation of the statute that limits parent derivatives to those related to unmarried U-1 nonimmigrants who are under 21 is ultra vires and runs counter to the statutory language that clearly allows for a person under 21 years of age (married or not) to include both her parents and spouse as derivatives. The argument in the preamble that INA § 101(b)(2) defines parents to include only parents of unmarried offspring makes no sense. First, the regulations at 22 CFR § 40.1(o) explicitly state: “ Parent, father and mother, as defined in 101(b)(2) are terms which are not changed in meaning if the child becomes 21 years of age or marries.” Second, INA § 201(b)(2), defining “immediate relatives,” clearly allows for parents to qualify even if the child is married. In this context, U.S. citizens are able to petition their “parents” as immediate relatives as long as the petitioning U.S. citizen is over the age of 21. Obviously our immigration laws do not limit the ability of U.S. citizens to petition their parents only to those U.S. citizens who are unmarried. In the case of U nonimmigrants, the only limiting language regarding parents is about the need for the principal to be under 21 years of age—which is clearly in the statute. There is nothing in the statutory language that limits this benefit to U-1 nonimmigrants who are unmarried. 11 INA § 101(a)(15)(U)(ii).

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purposes, frozen on the date of the I-918 filing.12 However, it is important to note that if the family member committed the crime of family violence or trafficking on which the principal applicant’s U nonimmigrant eligibility was based, that family member cannot receive U derivative status.13 Example: Constanza was helpful in the criminal investigation of her husband Luigi in a domestic violence case. Both of them are undocumented. Constanza would like to apply for U nonimmigrant status and include her husband Luigi as a derivative. However, because Luigi was the perpetrator of the crime upon which Constanza’s U eligibility is based, he does not qualify for U derivative status.

PRACTICE POINTER: Dual Representation and Possible Conflicts of Interest between Principal and Derivative Applicants. Unfortunately, just as in family-based immigration applications, there is potential for conflicts of interest between principal U applicants and their derivative beneficiaries. For example, there may be a falling out between them, or the principal may do something to become ineligible for U nonimmigrant status, both of which would jeopardize the derivative’s eligibility for status. Information about immigration, marriage or criminal history may be uncovered in the U nonimmigrant process that one of the applicants did not want the other to know. Being in the middle of the conflict raises legal ethical problems for attorneys as well as possible logistical problems. Most practitioners contend that the advocate is representing both the principal and derivative jointly, and therefore owes both applicants a duty of loyalty. Practitioners should inform all parties that conflicts of interest are possible, and what conflicts would mean to each person. Ask your clients to acknowledge that there might be problems, and they should state affirmatively that they want to be jointly represented, nevertheless. A sample “mutual consent to joint representation” in English and Spanish is at Appendix QQ. Example: Maria was helpful in the criminal investigation of her ex-boyfriend Jorge in a domestic violence case. Now she has a new boyfriend, Sergio, who is undocumented and she is asking you if she can include Sergio in her application if she marries him before she applies. If Maria and Sergio marry before Maria submits her Form I-918 application, then Sergio can be a derivative spouse on Maria’s application and she can file a Form I918 Supplement A derivative application on his behalf. If you agree to file applications for both Maria and Sergio, this raises the ethical issue of dual representation.

12

8 CFR § 214.14(f)(4)(ii). For qualifying family members who were granted U interim relief, the family member’s age on the date of the U interim relief filing shall control for the age eligibility requirement for both siblings and children. See Aytes, Associate Director, Domestic Operations, New Classification for Victims of Criminal Activity—Eligibility for “ U” Nonimmigrant Status, Revisions to Adjudicator’s Field Manual (AFM) Chapter 39, Interoffice Memorandum to Field Leadership, (Mar. 27, 2008). 13 8 CFR § 214.14(f)(1).

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At the second appointment, Maria and Sergio tell you that Sergio has a prior domestic violence conviction, for which he already served his sentence. You can still file applications for both applicants, but this involves a challenging inadmissibility waiver application for Sergio, in addition to the ethical issue of dual representation. Further complications may arise if down the road the couple separates or divorces before they adjust status. In that case, you would likely have to refer them both out under your state’s ethics rules unless they both waive the conflict in writing.

One option is to advise clients in writing of the risks of dual representation before proceeding and submit applications for both of them at the same time. This is probably the most efficient way to proceed. Another option is to advise the principal applicant of the option of including her spouse if they marry before the date she files the Form I-918, but then only submit the application for her at the outset and make it clear that you are only representing her. Then, once her case has been approved, you can enter into an agreement to represent the spouse as well and submit his Form I918 Supplement A derivative application. This option causes more delay for the spouse because subsequently filed derivative applications currently have the same processing times as a principal application; but it eliminates the risk of needing to withdraw from the principal applicant’s case before it is complete. Now with the long waiting list due to the cap discussed in Chapter 3, this second option will not be very appealing to many clients because of the current multi-year waiting period for an actual I-918 approval. It is important to keep in mind that conflicts can also arise in parent-child relationships (particularly where the child is a teen). While not as common as conflicts between spouses, these do arise and so the dual representation warnings should be given any time you represent more than one person in a family.

The qualifying family relationship between the derivative family member and the principal applicant must exist at the time of the I-918 filing and adjudication and at the time the Form I-918 Supplement A is adjudicated and, if applicable, at the time of the derivative family member’s subsequent admission to the United States.14 There are two exceptions to this. First, there is an exception for children born after the filing of the Form I-918. If the principal U applicant can prove that she has become the parent of a child after the Form I-918 was filed,

14

8 CFR § 214.14(f)(4).

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You should advise both clients of the risks of dual representation and that you may need to withdraw from both of their cases should a conflict arise (depending on your state bar’s rules on conflicts of interest). See sample conflict of interest form in Appendix QQ in Spanish and English. Marriages always carry the potential for future conflict and even more so in the domestic violence context. Note that while BIA-Accredited Representatives may not be strictly required to follow state bar ethical rules if they are not supervised by an attorney, the standards are there for a reason and serve as ethical guidance for non-lawyers as well.

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that child can be petitioned as a derivative U nonimmigrant and accompany or follow to join the principal U nonimmigrant.15

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Example: Helena was the victim of a crime while in the United States on a student visa, and did not file her U nonimmigrant application until she returned to her home in Montenegro. Approximately one month after she filed her U nonimmigrant status application, she married Marco. Their son Branko was born about a year later. Helena recently learned that her application was approved, and they would now all like to come to the United States. However, Helena will only be able to petition for her son as a derivative. Her husband will not be able to qualify as a derivative family member, as Helena married him after she filed her Form I-918 application (but if their marriage survives the three year separation, she can file an I-929 for him once she is eligible to adjust (see below for further details). Second, there is now an explicit age out protection for sibling and child derivatives of U principal applicants. If the principal U applicant was under 21 years of age at the time she filed the Form I918 and the Form I-918 Supplement A application for an unmarried sibling under the age of 18, then USCIS will continue to consider the sibling as a qualifying derivative family member for U nonimmigrant status, even if the principal U applicant is no longer 21 years of age at the time of adjudication and even if the sibling is no longer under 18 years of age at the time of adjudication.16 There is no eligibility protection, however, for siblings who marry. Therefore, siblings should be warned that they should not marry because to do so may jeopardize their U derivative eligibility. There is a possibility that they may be able to marry after the I-918A is approved and still be able to adjust as a U nonimmigrant in the future, but the safest route is still to remain unmarried until after adjustment. There is also explicit age out protection for derivative U-3 children. For derivative U-3 children, their age is now set at the time the principal files the I918 application and so it does not matter if a child turns 21 after the I-918 filing date (even if the I-918 Supplement A is filed after the derivative turns 21).17 However, just like with derivative siblings, there is no “marry out” protection so derivative children should be warned to stay unmarried until their I-918A has been approved. Just like siblings, although there is a possibility that marriage while in U status will not bar them from adjustment, it is still safest to wait to marry until after they successfully adjusted status. Again, remember that derivatives cannot file an I-929 petition for family members, so there is no advantage to marrying before adjustment.

PRACTICE POINTER: Summary of Expanded Age Out Protections. VAWA 2013 provided additional age out protections to derivative U nonimmigrant petitioners. When a principal U petitioner for U nonimmigrant status properly files her principal petition, the age of the 15

8 CFR § 214.14(f)(4)(i). 8 CFR § 214.14(f)(4)(ii). 17 Section 805 of VAWA 2013. This provision applies retroactively for derivatives back to the creation of the U visa in 2000. The actual language of VAWA 2013 states that the effective date of this provision should be as if it were included as part of the Victims of Trafficking and Violence Protection Act of 2000 (Public Law 106–386; 114 Stat. 1464). 16

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qualifying family member (derivative) is established upon the date on which the principal properly filed for that principal U nonimmigrant status. If a U principal properly files her I-918 before an unmarried child turned 21, that unmarried child who was under 21 years old will continue to be considered a child throughout the adjudication process even if the derivative turns 21 while the principal or derivative petition is pending.



If a U principal petitioner is under 21 years old when she properly files for U nonimmigrant status, her unmarried siblings under 18 years of age at that time and her parents will still be considered qualifying derivatives even if the principal is over 21 or the derivative sibling is over 18 at the time of adjudication.

The ages of the principal and derivatives are frozen at time of filing for eligibility purposes, so even if the principal does not file the I-918A at the time she files the I-918, everyone’s age is still determined as of the date of filing. For example, if the principal applicant files the I-918 when she is still under 21 and her sibling is still under 18, they can still file an I-918A for that sibling later even if the principal may have turned 21 and the derivative sibling may have turned 18. The only deadline is that the I-918A must be approved (and the derivative must enter the United States if abroad) before the principal’s adjustment application is approved. Also, as discussed above, the derivative sibling must remain unmarried. Similarly, if the derivative child was under 21 at the time the parent filed, the child still qualifies even if the child is over 21when the I-918A is filed. This child will still be eligible assuming the child is still unmarried (and assuming the principal has not yet adjusted).

§ 7.4

U Nonimmigrant Application Procedure for Derivative Family Members

The annual limit of 10,000 U visas applies only to U principal nonimmigrants, and does not apply to derivative family members.18 There is no annual numerical limitation on the number of derivative U nonimmigrants who may be approved.19 However, a U derivative cannot be granted U nonimmigrant status without the principal’s U nonimmigrant status being approved. Therefore, if USCIS conditionally approves the principal’s U nonimmigrant petition because the statutory annual cap has already been reached, the most a derivative can obtain is a conditional approval as well. To obtain U nonimmigrant status for a derivative family member, the principal applicant must file on behalf of the qualifying family member by submitting a Form I-918, Supplement A (often referred to by advocates as “Form I-918A”). A model of this form with instructions is at Appendix PP. Note that the I-918 Supplement A is completed by, and from the point of view of, 18 19

INA § 214.14(p)(2)(B). INA § 214(p)(2)(B); 8 CFR § 214.14(f)(6)(i).

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the principal applicant. The principal applicant must sign the I-918 Supplement A, but derivative applicants are only required to sign the form if they are in the United States and 14 years old or older. All Form I-918 Supplement A filings must be submitted to the Vermont Service Center, whether the derivative family member is in the United States or abroad. This form may be submitted concurrently20 with the principal applicant’s I-918 or at a later date.21 Each qualifying family member needs her own form.22 There is no filing fee associated with the I-918 Supplement A,23 and there is no biometrics fee associated with the I-918 Supplement A application even though biometrics will need to be taken for any applicant 14 years old or older. See below and Chapter 3 for more information on taking biometrics. There is a filing fee for the I-192 waiver if needed and for any I-765 forms submitted by the derivative so those applications will need a filing fee or fee waiver request. The Form I-918 Supplement A must be filed with the following initial evidence:24    

Evidence of the family member’s qualifying relationship with the principal applicant; Copy of the identity page of a passport, valid for at least 6 months (or a request on Form I-192 for a waiver of that requirement);25 Form I-192 and filing fee or fee waiver request if the family member falls under any inadmissibility grounds other than public charge;26 and Form I-765 if the family member is in the United States (if the family member is abroad, the I-765 is filed after entry into the United States on the U visa issued abroad by the U.S. consulate).

If not filed concurrently with the principal applicant’s Form I-918, the family member’s application must also include a copy of the principal applicant’s Form I-918 and receipt notices if still pending, or a copy of the principal applicant’s Approval Notice/I-94 if the principal applicant’s Form I-918 has already been approved.27 Initial instructions stated that a copy of the 20

If the derivative’s I-918 Supplement A is filed concurrently with the principal’s I-918, both applications will be processed concurrently by the same adjudicator. If the derivative’s application is filed subsequent to the principal’s filing or approval, it will be processed on a “first in, first out” basis. 21 8 CFR § 214.14(f)(2). See Appendix PP for a sample cover letter for the filing of a Form I-918 Supplement A filed subsequent to the approval of the principal applicant’s U nonimmigrant status. Keep in mind that although the Form I-918 Supplement A may be filed subsequently, the qualifying marriage for a derivative spouse cannot have occurred subsequent to the principal applicant’s Form I-918 filing. 22 Id. 23 Id. 24 An important change made through VAWA 2005 was the elimination of certain onerous requirements for U derivative family members. Previously, derivative family members had to prove extreme hardship if removed from the United States and provide a certification that stated the investigation or prosecution would be harmed without their assistance. These two eligibility factors are no longer required if the family member is eligible to file the I-918 Supplement A as a derivative. (However, please note that qualifying family members who are petitioned via the I-929 process when the principal U nonimmigrant adjusts status will have to show extreme hardship. See § 7.6 below.) 25 INA § 212(a)(7)(B)(i). 26 8 CFR § 214.14(f)(3). 27 8 CFR § 214.14(f)(2).

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A U derivative cannot be approved before the approval of the principal applicant’s Form I-918.30 For approved derivatives who are outside the United States and must consular process to enter the country, the principal U-1 holder must be in valid U-1 status at the time of the derivative’s admission. If the principal has already adjusted status, the derivative will not be able to enter as a derivative. You may need to contact the VSC through the hotline to ask them to hold the principal’s adjustment application in abeyance. If the principal adjusts status before the derivative enters in U-3 status, the child will instead need to go through the I-929 petitioning process described at § 7.6. Practice Tip: If you need to file the principal’s adjustment of status application before a derivative’s I-918A is approved, you can ensure that the adjustment won’t be granted too quickly by omitting the medical exam and waiting for an RFE to be issued before submitting it. For derivative family members who are subject to an order of exclusion, deportation or removal issued by the Secretary of Homeland Security (e.g., an expedited removal order), the regulations provide that the order will be deemed cancelled as of the Form I-918 Supplement A approval date just as it would be for a principal applicant.31 Biometrics All U nonimmigrant derivative applicants who are between 14 and 79 years old (inclusive) will be required to submit biometrics as part of the U nonimmigrant application process. Those who are in the United States will receive a notice to go to an appointment at an Application Support Center (ASC). Those who are abroad should see Chapter 9 for more information on applicants’ biometrics notices abroad. This is a necessary part of the U nonimmigrant application process, as USCIS must do an FBI criminal record check in order to adjudicate any U application. If the overseas post closest to the applicant does not have a Department of Homeland Security presence 28

VSC has also indicated a duplicate copy of all I-918 applications may help with getting notifications to the Kentucky Consular Center for travel purposes. 29 At this time, Form I-193 is not an effective waiver of the passport requirement. 30 Id. 31 8 CFR § 214.14(f)(6).

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principal’s I-918 form should also be submitted if filing the I-918A (possibly to see if the family member was listed on it), but this no longer seems to be required. If you do submit the principal’s application form in support of a derivative’s application, make sure that it is clearly marked as a duplicate or copy to ensure that it is not erroneously treated as a new filing.28 The Form I-918 Supplement A needs to be signed by the derivative family member unless that person is not in the United States. If the derivative is under 14 years of age, a parent may sign for the derivative. Like all U applicants, U derivatives in the United States must also submit a passport or border crossing card that is valid at the time of the I-918 Supplement A filing. For applicants who are in the United States and do not already have a passport, their home country consulate may be able to help in obtaining a passport. You may also file a waiver of the passport requirement using Form I-192 if the derivative family member is applying from within the United States.29 See Chapter 3 for more information on waiving the passport requirement and alternatives if your client is 18 or older. Also, see Chapter 9 for reasons why you need to eventually obtain a passport for your client who is abroad, even though a waiver is theoretically available.

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that offers counter service, consular sections should take the fingerprints. There should be no charge for the fingerprinting service.32 A sample letter for clients in Spanish about the fingerprinting process can be found at Appendix M. If the applicant is outside the United States and accidentally receives a notice of a biometrics appointment in the United States, return the notice to VSC via email at [email protected] and explain that the applicant is not in the country.33 VSC should then send paper fingerprint instructions instead. The reverse is true if the applicant is inside the United States and receives a request for paper fingerprints instead of an ASC notice. If a client is in ICE detention, contact your local Enforcement and Removal Operations (ERO) office to arrange for either transportation to an ASC or the taking of paper prints by ERO. If your client is in state criminal custody, you will most likely need to request paper fingerprint cards so prints can be taken in the jail. Employment Authorization Derivative family members granted U-2, U-3, U-4, or U-5 nonimmigrant status are eligible for employment authorization.34 A request for employment authorization should be submitted to the USCIS VSC VAWA Unit on Form I-765 with the appropriate filing fee or fee waiver request.35 For derivatives who are inside the United States, the I-765 may be filed concurrently with the filing of the Form I-918 Supplement A or once it has been approved.36 For derivatives who are outside the United States, the Form I-765 may only be filed after admission to the United States in U nonimmigrant status and should include copies of their approval notice, passport identity page, visa, and a copy of the I-94 issued upon their entry.37 All U derivatives should apply for employment authorization under category (a)(20). Derivatives must include two passport-style, color photographs with their I-765 application, as derivatives’ biometrics appointments do not include photographs. Now that there is a long wait list before the I-918 and accompanying I-918A applications can be adjudicated, it is best practice to include two I-765 applications for each derivative in the United States, one under (a)(20) and another under (c)(14) so that the derivative can be issued a deferred action EAD in the short term and the actual U status EAD in the longer term. U Derivative Approvals in the United States If the Form I-918 Supplement A is approved and the derivative is inside the United States, the derivative family member will be granted U-2, U-3, U-4, or U-5 nonimmigrant status. USCIS will send the approval notice on a Form I-797 that will include a Form I-94 indicating the type of U nonimmigrant status.38 A sample of this kind of approval notice is at Appendix PP. If the 32

Id. at p 3. The email address for U and T related inquires is [email protected]. 34 8 CFR § 214.14(f)(7). 35 Id. 36 Id. 37 Id. 38 8 CFR § 214.14(f)(6)(i). 33

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U derivative has not done so already, she may apply for employment authorization at this point (see section above for more detail). Similarly, if the U derivative is in the United States, once the principal is granted deferred action based on a conditional approval, the derivative can also be granted deferred action based on a conditional approval of her I-918A.

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U Derivative Approvals outside the United States See Chapter 9 for more detailed information on approvals issued abroad. Below is a summary.

Any U nonimmigrant derivative who is approved while outside the United States, or travels outside the United States after approval, will need a U nonimmigrant visa in order to enter the United States.40 If already approved for U nonimmigrant status, the principal U applicant family member’s I-918 Supplement A or approval information will have been entered into the PIMS database. Upon approval, you may also want to confirm with the Kentucky Consular Center to ensure that it uploaded the information to the PIMS database so that the consulate can confirm the validity of the approval when the derivative goes to the consulate to apply for the U visa she will need in order to enter the United States. Your client will need to present, at a minimum, a copy of her I-797 notice of approval of the I-918A. Ideally, she should also be prepared to attend the consular appointment with a copy of the principal’s approval notice, proof of relationship to the principal applicant, and a cover letter explaining her eligibility to enter on a U nonimmigrant visa as well as a valid passport and original birth certificate. Many posts also require applicants to bring a photograph or two to the nonimmigrant visa interview. The family member will need to complete and sign a Form DS-160 and pay a $160 fee per applicant (subject to change). Furthermore, procedures for requesting U visa appointments at consulates abroad vary from consulate to consulate. You can find information on contacting the various consulates on the Department of State’s website at www.travel.state.gov. See also the Practice Pointer below and Chapter 9 for more details. At the interview, consular officials are not required to evaluate whether a U nonimmigrant applicant, derivative or qualifying family member has been helpful in a criminal investigation or 39

8 CFR § 214.14(f)(6)(ii). Telegram to All Diplomatic and Consular Posts Collective, U Nonimmigrant Visas for Victims of Criminal Activity, (Feb. 2010), included in Appendix HHH.

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For approved U derivatives who are outside the United States, USCIS will notify the principal applicant of the Form I-918 Supplement A approval by sending a Notice of Action on Form I-797 and will forward the approved Form I-918 Supplement A to the Department of State’s Kentucky Consular Center for uploading into the Petition Information Management System (PIMS) database so that the U.S. Embassy or Consulate with jurisdiction over the derivative’s residence will be able to access the approval for confirmation purposes.39 At this point, a conditional approval for a derivative abroad does not allow for entry into the United States. In these cases, the only route for entry is via a humanitarian parole application. See Chapter 9 for more discussion on that possibility.

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prosecution, as that issue is solely adjudicated by USCIS. Likewise, they do not process requests for waivers of inadmissibility grounds or other ineligibility for U nonimmigrant visa applicants.41 Instead inadmissibility waivers are requested on Form I-192 and adjudicated by VSC. The consular officer will make an inadmissibility determination after reviewing the applicant’s DS160 and conducting an interview. Then the officer will either confirm that any inadmissibility grounds have been specifically waived on the I-192 or inform the applicant that there are additional grounds that still need to be waived by submitting another I-192 to VSC. Consular officers have access to the I-918 Supplement A approval notice, the I-192 approval notice, and a copy of the I-192 through the PIMS database. One consular officer recommended specifically listing all of the statutory cites to the grounds of inadmissibility that need to be waived on the I192 to help ensure that VSC does waive all of the necessary grounds. If the I-918 Supplement A and I-192 have been approved and all relevant grounds were included in the I-192 approval, the consular officer should issue the U nonimmigrant visa for the duration of the status stated on the approval.42 Once a derivative is issued a U visa, it will be a multiple entry visa, valid for four years or until the petition expiration date, whichever is less (generally derivative’s status expires at the same time as the principal’s status).43 Upon admission to the United States as a U nonimmigrant, the derivative family member may apply for employment authorization (see discussion of employment authorization above in this section for more detail). U Derivative Denials If the derivative U application is denied, USCIS will first send a Notice of Intent to Deny, with 30 days to respond to the evidence requested. If the evidence is not submitted or upon submission found insufficient, USCIS will then send written notification of the denial, including the reasons for the denial.44 The principal applicant may request reconsideration by VSC and at the same time appeal the denial to the Administrative Appeals Office per 8 CFR § 103.3. Denials are without prejudice, so you should also consider simply re-filing the Form I-918 Supplement A with additional, stronger evidence, a copy of the prior denial notice, and an explanation of any discrepancies from the first filing. Duration of Status45 U derivatives, like all U nonimmigrants, may be approved for a period of nonimmigrant status not to exceed four years in the aggregate.46 Derivatives are granted the same expiration date of their 41

Id. Id. 43 Id. at p. 2. 44 8 CFR § 214.14(f)(6)(iii). 45 U derivatives who were originally granted U interim relief (an interim benefit provided to applicants who were deemed prima facie eligible for U nonimmigrant status prior to the publication of the implementing regulations) will be accorded U nonimmigrant status as of the date the request for U interim relief was approved (just like principal applicants who had interim relief). See 8 CFR § 214.14(a)(13); 8 CFR § 214.14(f)(6)(i). 42

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U nonimmigrant status as the principal applicant. This can mean that an extension of status via an I-539 filing will be needed for derivatives whose duration of status expires before they are eligible to adjust.

Please see § 3.14 for details on requesting an extension of duration of status. Generally, they can be granted if the initial approved period of stay was for less than four years in the aggregate;47 if the certifying law enforcement official attests that the applicant’s presence in the United States continues to be necessary to assist in the criminal investigation or prosecution;48 if warranted due to “exceptional circumstances;”49 or during the pendency of the adjustment application as a U nonimmigrant.50 On June 22, 2010, USCIS issued a policy memorandum that allows VSC to consider delays other than consular processing to extend U nonimmigrant status for a derivative family member whose initial period of stay is less than four years.51 According to this memorandum, an extension may be approved for “any reason that is consistent with the goals of the statute.”52 This memorandum revised the Adjudicator’s Field Manual (AFM) to include new Chapter 39.1(g)(2)(i) to reflect these changes. In the situation of derivatives, such an extension should not exceed four years in the aggregate. The policy guidance memorandum also indicates that requests for extension of status should include the following: Form I-539; $290 filing fee or fee waiver request (available under the

46

8 CFR § 214.14(g). 8 CFR § 214.14(g)(2)(i). 48 8 CFR § 214.14(g)(2)(ii). 49 INA § 214(p)(6). 50 INA § 214(p)(6). 51 USCIS, Extension of U Nonimmigrant Status for Derivative Family Members Using the Application to Extend/Change Nonimmigrant Status, (June 22, 2010), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2010/June/u-visa-i-539-derivativeextension.pdf. 52 Id. 47

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Example: Mauricio’s mother’s Form I-918 was approved in 2013. Her U-1 nonimmigrant status is set to expire in 2017. She did not know she could file a derivative application for her ten-year old son Mauricio who was still in El Salvador at the time she filed her I-918 application. Later, Mauricio’s Form I-918 Supplement A was approved and he was able to enter the United States in 2015. However, the expiration date on his U-3 nonimmigrant status will also expire in 2017 (to coincide with his mother’s status). By 2017, he will not have accrued the necessary three years of continued physical presence in the United States as a U nonimmigrant before his status expires because he only entered the United States in 2015. Therefore, he will have to file form I-539 to extend his status so that he may have the full four years in U nonimmigrant status including a one-year window in which to adjust.

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TVPRA 2008);53 supporting documents including evidence of U status for both the principal and derivative, showing all dates in that status; evidence of adjustment of status of the principal (if applicable); evidence of relationship with U principal nonimmigrant; and applicant’s declaration including a statement of need and reason(s) for extension. A request to renew employment authorization on Form I-765 can also be submitted concurrently along with an additional fee or fee waiver request and 2 photographs. All I-539 extension requests, and concurrent applications like the I-765, must be filed with the VSC, regardless of geographic jurisdiction. Make sure to check the USCIS website for any additional instructions related to filing the Form I-539 application. Initially advocates were told to wait to submit the I-539 application until 3-4 months at the earliest before the status was set to expire. More recently advocates report that applications are accepted and processed at any time. As long as the derivative’s I-918 Supplement A has been approved and the derivative has entered the United States, the principal applicant can adjust status without prejudicing the derivative’s ability to extend her status. VSC has stated that in this context it is preferable to file a separate I-539 for each applicant even though the form allows for inclusion of multiple family members on one form. There is a separate policy guidance memorandum issued on April 19, 2011 (see Appendix P) that addresses when a principal applicant can extend her stay. This would come into play if a principal’s U-status is about to expire and her derivative is still outside the United States, perhaps because she needs to obtain a passport, complete school, gather the money to travel, or for some other reason. Since a derivative’s status will expire at the same time as the principal’s status, that derivative will need an extension of her status. A derivative abroad cannot file an I-539 on her own because she has not yet entered the United States and is therefore not yet in a status to extend. However, if the principal extends her U nonimmigrant status, she can also request (at the same time by including the derivative on her I-539 form and expressly requesting it in her declaration and cover letter), that any derivatives’ status also be extended. In this context, you would file one form for the principal and include any derivatives abroad on the same form and indicate that very clearly on the cover letter as well. On the cover letter and in the supporting declaration, explain the specific reasons for the need for the extension. See Appendix PP for sample cover letter.

PRACTICE POINTER: Special Considerations When Working with Juvenile Derivatives. Here are some things to keep in mind when working with derivatives who are minors:  

Derivatives who will be under 14 years old at the time of adjudication do not need to have their biometrics taken. For derivatives in the United States, you only have to send two passport-style, color photos for each I-765. You may need to obtain both parents’ permission to get a passport for the minor or obtain sole legal custody so that the principal applicant can obtain a passport without the other parent’s consent. Derivatives under age 18 and in the United States can easily waive the passport requirement, but derivatives abroad will need a passport.

53

William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457, 122 Stat. 5044 (TVPRA 2008), sec. 201(c)(7).

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 



PRACTICE POINTER: Derivatives Who Want to Travel. After approval, U derivatives in the United States may travel outside the country but they should be warned of the risks of travel. If the derivative entered from abroad on a multiple entry visa, then travel is much less risky but remember that even a derivative cannot be out for more than 90 days in one trip or 180 days in the aggregate. See Chapter 9 for a discussion on assisting clients who want to travel after approval or who must travel despite the risks.

§ 7.5

Adjustment Procedure for U Nonimmigrant Derivative Family Members

The adjustment of status procedure for derivative family members in lawful U status (for example, U derivatives who got lawful U-2, U-3, U-4 or U-5 nonimmigrant status) is the same adjustment procedure as the principal U nonimmigrants described in Chapters 5 and 6. For derivatives with three years of continuous presence in U nonimmigrant status, please see Chapters 5 and 6 for a detailed description of the eligibility requirements and process for U nonimmigrants to adjust status. At the time of this manual’s writing (February 2016) the current position of USCIS is that some derivatives may be able to adjust even if they fail to remain in the same family relationship with the principal U-1 nonimmigrant at the time of the derivative’s adjustment of status. USCIS Headquarters’ current position is that USCIS has never stated or issued anything declaring that U derivative spouses must stay married to principals through adjustment.54 Furthermore, USCIS officials who adjudicate all of the U adjustment applications at VSC stated that while they may revoke U nonimmigrant status if the family relationship does not continue, they do not as a matter of routine revoke or deny U adjustments because of a break or termination of the relationship.55 54

June 2014 email exchange between Scott Whelan, Adjudications Officer with USCIS Office of Policy and Strategy and Gail Pendleton, Co-Director of Asista. 55 September 2015 USCIS Vermont Service Center Stakeholder Meeting, attached as Appendix C.

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

A parent can sign forms on behalf of a minor who is under 14. You should apply for employment authorization for minor clients, even if they are not eligible to work. It can serve as a useful form of government-issued photo identification even if they do not intend to work, and they will need it in order to obtain a social security number. If there are derivative children who will be included, make sure to file the principal’s I918 before the derivatives turn 21 in order to protect the derivative children from aging out. This is also important if the principal is under 21; you must file for the principal before the derivative sibling turns 18. If you want to include younger siblings or parents, you must also be sure to file for the principal before the principal turns 21. See Chapter 9 for travel issues specific to minors.

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They also stated, however, that they may revoke U nonimmigrant status and/or deny the adjustment if the termination of the family relationship was the result of domestic violence committed by the derivative spouse.56 The eligibility to adjust status for U derivatives who have terminated their family relationship to the U-1 principal is an evolving issue and has been handled differently by the USCIS adjudicators over the years. Therefore, without a written policy ensuring a derivative’s ability to adjust if the family relationship to the principal changes, currently the safest but most conservative approach would be to warn clients not to change their marital status before they adjust. However, if your client has already married or divorced, in the absence of a firm position, USCIS may consider cases on a case-by-case basis; so it is still worth submitting the adjustment application for that derivative. Clients should just be warned that they may be in uncharted territory and may not be ultimately approved. Derivative children who marry after their I-918A is approved (and after they enter on their U visa if abroad) are much more likely to be granted adjustment but the most cautious approach is still to advise derivative children and siblings to remain unmarried until after adjustment. The description below starting at § 7.6 applies only to qualifying family members who have never had U nonimmigrant status and are not U derivatives. § 7.6

Assisting Qualifying Family Members57 at the Time of the Principal U Nonimmigrant’s Adjustment of Status

Upon approval of adjustment for the principal U-1 nonimmigrant, USCIS may also adjust the status of or issue an immigrant visa to the principal’s spouse, child, or (in the case of a U-1 principal U nonimmigrant who is under 21 years old and unmarried) parent who did not receive a U nonimmigrant visa, if the adjustment or issuance of the visa is necessary to avoid extreme hardship.58 Here we will refer to these family members as “qualifying family members” as opposed to derivatives. Note that siblings are not able to obtain status through this process. Siblings may obtain U nonimmigrant status if they qualify as “indirect victims” or as bystanders as discussed in the beginning of this chapter and therefore apply as principal U nonimmigrant applicants or if they qualify as derivatives at the U nonimmigrant application stage. They cannot be petitioned at the stage in which the principal U nonimmigrant adjusts, as described in this section. If the qualifying family member is in the United States, the adjustment will be accomplished through a two-stage process. First, the principal U-1 nonimmigrant must file a petition on behalf of the qualifying family member. Second, the petitioned qualifying family member must apply to adjust status or consular process. The I-929 petition for the family member and I-485 adjustment application for the principal U nonimmigrant can be filed concurrently, but the qualifying family member’s adjustment cannot be filed until their I-929 has been approved. 56

Id. 8 CFR § 245.24(g). 58 INA § 245(m)(3). 57

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If the qualifying family member is outside of the United States, the principal U-1 nonimmigrant may still file an I-929 petition on behalf of the qualifying family member. Once the petition is approved, the petitioned qualifying family member will consular process to obtain an immigrant visa and enter the United States as a lawful permanent resident.

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A principal U-1 nonimmigrant may file an immigrant petition for a qualifying family member beneficiary if: 



 

Qualifying family members who are in the United States adjust status under INA § 245(m) and thus are not required to establish that they are admissible on any of the grounds under INA § 212(a) except INA § 212(a)(3)(E).62 People who consular process with an I-929 are technically not exempt from the grounds of inadmissibility because they are not “adjusting status” under INA § 245(m). The I-929 process is still relatively new, and it is unclear at this time how qualifying family members who are inadmissible are treated at the consulate. If you have a client who is inadmissible and trying to consular process pursuant to an I-929, how to proceed will depend in large part on why the client is inadmissible and whether there is an available waiver. You can try arguing that the failure to align the adjustment criteria for approved I-929 applicants within the United States with those of approved I-929 green card applicants at the consulate was a statutory 59

The statute at INA § 245(m)(3) specifically refers to the qualifying family member as never having received a U nonimmigrant “visa.” The regulations at 8 CFR § 245.24(g) also include qualifying family members who never obtained U nonimmigrant status. For example, this benefit also applies to family members for whom an I-918 Supplement A was never filed or never approved (and they therefore never had derivative U nonimmigrant status) and to family members where an I-918 Supplement A was approved for a qualifying family member who was abroad and never entered the United States to obtain U nonimmigrant status or a U visa. 60 8 CFR § 245.24(g)(2). 61 INA § 245(m)(3). 62 8 CFR § 245.24(h)(1)(v).

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 

The petitioning family member is a U-1 nonimmigrant (U nonimmigrants who received their status as derivatives cannot petition family members under this process); The qualifying family member is a spouse, child, or parent; The qualifying family member was never issued a U nonimmigrant visa and has never been in U nonimmigrant status;59 The qualifying family relationship exists at the time of the principal U-1 nonimmigrant’s adjustment and continues to exist through the adjudication of the adjustment or issuance of the immigrant visa for the qualifying family member (note that there are no age out protections for qualifying family member children so the qualifying family member child must enter or adjust status before turning 21 and must remain unmarried;60 The qualifying family member or the principal U-1 nonimmigrant would suffer extreme hardship as described in 8 CFR § 245.24(g) if the qualifying family member is not allowed to remain in or enter the United States; and The principal U-1 nonimmigrant has adjusted status to that of a lawful permanent resident, has a pending application for adjustment of status, or is concurrently filing an application for adjustment of status.61

oversight, and present a waiver (if applicable) in the alternative; but please know that this is uncharted territory, and it is unclear how these cases will be handled. Qualifying family members’ petitions may only be approved if the principal U nonimmigrant’s adjustment application is approved. Therefore, if the principal’s adjustment application is denied, the qualifying family member’s petition will automatically be denied as well.63

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§ 7.7

Adjustment Procedure for Qualifying Family Members

Once the U-1 principal nonimmigrant has been granted adjustment, USCIS may be able to grant permanent resident status to the principal’s spouse, children, and parents.64 This is only for family members who did not get their own U nonimmigrant status as a derivative and where there would be extreme hardship if the family members were not allowed to remain or be admitted to the United States.65 A checklist for the documents you will need for this process is at Appendix RR. It is a two-step process. Step One: Petitioning for the Family Member The U-1 nonimmigrant files an immigrant petition on behalf of the qualifying family member.66 This is filed on Form I-929 with a $215 fee (each) or fee waiver request67 and evidence establishing the relationship such as birth certificates or marriage certificates.68 Secondary evidence may be submitted where primary evidence is not available.69 The Form I-929 may be filed concurrently with the principal U-1 applicant’s I-485 or after. However, the Form I-929 cannot be approved until the principal U-1’s I-485 has been approved.70 The burden is on the applicant to include evidence that the qualifying family member or the principal U-1 applicant would suffer extreme hardship.71 USCIS will consider all credible evidence and evaluate the hardship as a matter of discretion on a case-by-case basis.72 There are special hardship factors for U cases (such as the need for ongoing therapy or law enforcement protections that are available here and not in the home country) that can be addressed in addition to traditional hardship factors73 (such as the need for medical or educational assistance that is not available in the home country). 63

8 CFR § 245.24(h)(2)(ii). INA § 245(m)(3). 65 Id. 66 8 CFR § 245.24(h). 67 8 CFR § 245.24(h)(1)(ii). 68 8 CFR § 245.24(h)(1)(iii). 69 8 CFR § 103.2(b)(2). 70 8 CFR § 245.24(h)(2). 71 8 CFR § 245.24(h)(1)(iv). 72 Id. 73 For detailed information on working with client’s to show hardship, please see the ILRC publication, Hardship in Immigration Law: How to Prepare Winning Applications for Hardship Waivers and Cancellation of Removal. It can be ordered at www.ilrc.org/publications. 64

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Step Two: Adjusting the Status of the Qualifying Family Member If the I-929 immigrant petition is approved, then the qualifying family member may adjust status if in the United States or go to a U.S. embassy or consulate for an immigrant visa if outside the United States.74 In this situation, qualifying family members will adjust under INA § 245(m). They will therefore not be subject to any of the ground of inadmissibility except those under INA § 212(a)(3)(E).

Upon approval of Form I-929 for a family member who is outside the United States, USCIS should forward the approval notice to the National Visa Center for consular processing.77 However, in practice, the applicant needs to initiate the consular processing and may also need to request that the notice be forwarded from VSC to NVC. Please see Chapter 9 for more details on the travel process for approved applicants abroad. The regulations imply that those family members with approved I-929’s who are adjusting status within the United States do not have to show that they are admissible (but are subject to discretion) since they adjust under INA § 245(m), whereas those family members with an approved I-929 who will enter with an immigrant visa may have to show admissibility at the consulate and before Customs and Border Patrol at the border and therefore be subject to INA § 212(a) at that time. Having an I-929 petition approved does not mean that the family member has been granted any status, permission to be in the United States, or eligibility for a work permit. It is analogous to having merely an I-130 approval with a current priority date. Family members with an approved I-929 are eligible to apply to adjust status or consular process in order to obtain their residence. There is no numerical limitation on the number who may adjust and no waiting period. If the I-929 is denied, USCIS will notify the applicant in writing, and the denial can be appealed to the AAO.78

74

8 CFR § 245.24(h). 8 CFR § 274a.12(c)(9). As of this manual’s writing (February 2016) the filing fee for a Form I-765 is $380. However, if your client is applying for an employment authorization based on category (c)(9) and paid the I-485 application fee (or had that waived), then no fee is required to file a request for employment authorization on Form I-765. 76 8 CFR § 245.24(d)(3). 77 8 CFR § 245.24(h)(2)(i)(A). 78 8 CFR § 245.24(i)(2)(ii). 75

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Upon approval of Form I-929 for a family member who is inside the United States, the family member is eligible to apply for adjustment. Upon submitting the qualifying family member’s Form I-485, that person can also obtain work authorization under category (c)(9).75 You may file the I-765 concurrently with the I-485, or you may submit the I-765 at a later date. Biometrics will be required for each person age 14-79 inclusive. Adjustment fees may be waived.76 Just as for other U related adjustments, the application will be filed and adjudicated at the Vermont Service Center.

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§ 7.8

Petitioning Requirements for Qualifying Family Members79

Here is a list of the documents you will need to file an I-929 petition on behalf of your clients’ qualifying family members.

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   

Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant; I-929 filing fee of $215 or fee waiver request (no biometric fee is required); Evidence of the relationship, such as a birth or marriage certificate. If primary evidence is unavailable, secondary evidence, or affidavits may be submitted just as in the I-130 context; and Evidence establishing that either the qualifying family member or the principal U-1 nonimmigrant would suffer extreme hardship if the qualifying family member is not allowed to remain in or join the principal in the United States.

For Review: Who May Petition a Family Member with Form I-929? If your client is under 21 years old, she may petition a spouse, parents, and any unmarried children under the age of 21 years old. If your client is over 21 years old, she may petition a spouse and any unmarried children under the age of 21 years old. These are not the exact same categories of family members who qualify as derivatives at the U nonimmigrant application stage. Most significantly, siblings cannot be petitioned and there are no age-out protections for derivative children in this context so any derivative children must be granted permanent residence before turning 21. § 7.9

Proving the Qualifying Family Relationship

Each petition for a qualifying family member must include a recently taken, clear passport photograph of the family member with the Form I-929.80 In addition to the photo, you must include documentation to show that the required relationship exists between the U-1 nonimmigrant and the family member she wishes to petition. The kind of documentation you will submit depends on the type of family relationship. Listed below are the kinds of documents you should submit with the petition. However, keep in mind that if you cannot obtain primary source documents such as those listed below, you may also submit an explanation of your efforts to obtain such documents, why these efforts failed, and other secondary documentation that proves the qualifying relationship.81

79

8 CFR § 245.24(h). See USCIS, Form I-929 Instructions, p. 2, available at www.uscis.gov/sites/default/files/files/form/i929instr.pdf. 81 INA § 214(p)(4). 80

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For a Spouse   

Copy of the marriage certificate Copies of documents showing all previous marriages were terminated (if relevant) Evidence of any legal name changes

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For a Child, if Your Client Is the Mother 

Copy of the child’s birth certificate showing the mother’s name and the child’s name

 

Copy of the child’s birth certificate showing both parents’ names The parents’ marriage certificate

For a Child Born Out of Wedlock, if Your Client Is the Father. If the child was not legitimated before reaching 18 years of age, submit evidence that a bona fide parent-child relationship existed between your client and the child before the child reached 21 years of age in addition to the child’s birth certificate. This may include:    

Evidence that your client lived with the child Evidence that your client supported the child Evidence that your client showed continuing parental interest in the child’s welfare Evidence that your client held the child out as his own in the community

For a Stepchild (in Addition to the Birth Certificate)   

Copy of the marriage certificate of your client to the stepchild’s biological parent before the child’s 18th birthday Copies of documents showing any prior marriages were legally terminated (if relevant) Evidence of any legal name change if the names on the birth certificate or marriage certificate(s) do not match the names on the petition

For an Adopted Child 



Certified copy of the adoption decree showing that the adoption took place before the child reached 16 years of age (if your client also adopted that child’s sibling, you may submit a copy of an adoption decree showing that that the adoption of the older sibling took place before the older sibling reached 18 years of age) Evidence of legal custody and residence with the adopted child for at least two years before or after the adoption (or evidence that the child was an orphan)

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For a Child Born in Wedlock, if Your Client Is the Father

For a Mother  

Copy of your client’s birth certificate showing your client’s name and her mother’s name Evidence of any legal name change if the names on the birth certificate do not match the names on the petition

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For a Father  

Copy of your client’s birth certificate showing the names of both parents Copy of the parents’ marriage certificate establishing that your client’s parents were married before she was born and copies of documents showing that any prior marriages of either parent were legally terminated (or evidence of a bona fide parent child relationship as discussed above)

For a Stepparent    

Copy of the birth certificate showing the relationship to the biological parent Copy of the marriage certificate your client’s stepparent to your client’s biological parent before your client’s 18th birthday Copies of documents showing any prior marriages were legally terminated Evidence of any legal name change if the names on the birth certificate or marriage certificate(s) do not match

For an Adoptive Parent 



Certified copy of the adoption decree showing that the adoption of your client took place before your client reached 16 years of age (if your client’s sibling was adopted by the adoptive parent before reaching 16 years of age, you may submit a copy of an adoption decree showing that that the adoption of your client took place before she reached 18 years of age) Evidence of legal custody and residence with the adoptive parent for at least two years before or after the adoption (or evidence that the adopted child was an orphan)

Proving Eligibility to File a Form I-929 Petition. In order to petition a qualifying family member, your client must be able to show that she is a lawful permanent resident under INA § 245(m) or that she has a Form I-485 pending under INA § 245(m). You can demonstrate this by submitting the following documents:    

A copy of the front and back of your client’s permanent resident card; or A copy of your client’s passport biographic page and the page showing admission as a permanent resident; or Other evidence of permanent residence status issued by USCIS; or Copy of your client’s Form I-918 approval notice and a receipt notice showing that a Form I-485 has been filed with USCIS, or

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

In most cases where you will be submitting the I-929 concurrently with the principal applicant’s I-485, simply cross-refer to the concurrent submission in both the I-485 and I-929 cover letters and submit the filings in the same envelope (but in separate or easy to separate packets) for submission to VSC

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§ 7.10 Documenting Extreme Hardship

To qualify as extreme hardship, the U-1 nonimmigrant and her family member must demonstrate a level of hardship beyond what is typically experienced by immigrants who are removed, and/or their family members. Lists of possible factors that will be considered in making the extreme hardship determination are found in two places: the interim regulations and the instructions to the Form I-929. Both are illustrative in providing numerous examples of factors that may be considered and evidence you may submit. A comparison of them is below. You should use examples from both lists when applicable.

82

8 CFR § 245.24(h)(1)(iv); USCIS, Form I-929 Instructions, p. 3, available at www.uscis.gov/sites/default/files/files/form/i-929instr.pdf.

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The statute requires a showing that the principal U nonimmigrant or the qualifying family member would suffer extreme hardship if the qualifying family member is not allowed to remain in the United States or to join the U nonimmigrant in the United States. USCIS will evaluate extreme hardship on a case-by-case basis, examining the particular facts and circumstances of each case.82

Extreme Hardship: Regulations

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Extreme Hardship: Instructions



Likelihood that the perpetrator’s family, friends, or others acting on behalf of the perpetrator in the home country would harm the applicant or the applicant’s children

Language/cultural assimilation to the United States versus the ability of the qualifying relative or his or her children to speak his or her native language



Need for social, medical, mental health, or other supportive services for crime victims that are not reasonably accessible in the home country



Ability to obtain employment in the country of return



Impact of loss of access to the U.S. court and criminal justice system



Availability of necessary medical treatment for the qualifying relative in the country of return



Nature and extent of the physical or mental abuse suffered as a result of having been a crime victim



Existence of other family members residing legally in the United States





Disruption of educational opportunities



Psychological impact



Financial impact the departure would cause your client or the qualifying relative

[Where based on domestic violence] existence of laws and social practices in the home that punish the applicant or the applicant’s children because they have been victims of domestic violence or have taken steps to leave an abuser





Current political and economic conditions in the country of return



Current political and economic conditions in the country of return

Perpetrator’s ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant or the applicant’s children



Age of the applicant, both at the time of entry to the United States and at the time of application for adjustment of status



Signed statement from the qualifying relative and other supporting documentation that discretion should be exercised in his or her favor



Age (both of your client and your client’s qualifying relative’s children)



Health condition of your client or the qualifying relative





Family ties to the other country



Contributions to the community in the United States



Availability of qualifying relative to adjust status through other means

PRACTICE POINTER: Documenting Extreme Hardship. Primary evidence of extreme hardship, such as medical records of the principal U nonimmigrant that demonstrate the necessity of care by the qualifying family member, are the strongest form of documentation in all immigration applications. However, where a primary source document is not available, an applicant may submit secondary source documents. This is particularly true in the U nonimmigrant context

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under the “any credible evidence” evidentiary standard.83 Possible primary and secondary source documents that USCIS may accept include:

The person writing the affidavit or declaration does not need to be a U.S. citizen. Make sure it includes the following information: the person’s full name, address, date and place of birth, relationship to your client, full information concerning the events and situations she describes, and complete details explaining how the person knows about the events and situations she describes. If the writer of the declaration is in the United States and not documented, she may prefer to leave out her address. If the writer of the declaration is documented and is a family member, be sure to also include evidence of her immigration status. Birth and marriage records that confirm the relationship between the principal U nonimmigrant and qualifying family member. If these primary records are unavailable, the following may prove these family relationships:84 Church records may be able to show place of birth, date of birth, date of marriage ceremony or other religious ceremony, and names of parents. The record should bear the seal of the church showing the record was created within two months of the event recorded. School records may be able to show presence or residence in the United States, admission or attendance at a school, date of birth, place of birth, and names of parents. If possible, try to obtain a letter from the school with this information. Census records may be able to show name, age, place of birth, date of birth, residence or presence in the United States. Reports on Adverse Conditions in the Family Member’s Home Country. These conditions include dangerous circumstances like high crime, high disease rates, political instability, extremely poor access to health care (particularly for vulnerable applicants) and severe deprivation. Country condition reports prepared by the U.S. Department of State are clearly 83

INA § 214(p)(4); 8 CFR § 245.24(h)(iii); see also 8 CFR § 103.2(b)(2). The Foreign Affairs Manual (FAM) can tell you when certain documents are unavailable. It is not enough that a client just does not have a copy of her birth or marriage certificate. You can check document availability by country on the Department of State website here: http://travel.state.gov/content/visas/english /fees/reciprocity-by-country.html. 84

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Affidavits and declarations by the U nonimmigrant and other people who can attest to the hardship that would be faced by the U nonimmigrant and qualifying family member if the family member were removed or denied admission to the United States. It is valuable for the declarations to address hardships faced by the parties in two scenarios: where the U nonimmigrant and family member would be separated by the removal of the qualifying family member; and where the U nonimmigrant would have to leave the United States in order to be with the qualifying family member. These declarations can also describe the ways in which the U nonimmigrant and family members are integral members of their communities. Worksheets that can help identify these issues for a declaration are at Appendix SS.

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persuasive to USCIS. Remember to address how the dangerous conditions or severe deprivation would affect the individual family member who is removed, as well as how they might potentially affect the U nonimmigrant if she is forced to leave the United States to be with the family member.

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Letters or declarations about adverse country conditions from residents of the home country. These accounts can include the same type of information contained in official reports, but they can also address specific local issues.

§ 7.11 Adjustment of Status As with U nonimmigrant adjustment, qualifying family members who have been petitioned with an approved Form I-929 will adjust status under the special adjustment provision at INA § 245(m). They are not required to establish that they are admissible on any of the grounds in INA § 212(a), except § 212(a)(3)(E) (related to Nazi persecution, genocide, torture and extrajudicial killing). Restrictions under INA sections 245(a) and (c) also do not apply. However, adjustment of status for U qualifying family members is a discretionary benefit, and USCIS may take into account adverse factors. Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of discretion. Where adverse factors are present—such as those that would otherwise render a client inadmissible, especially criminal grounds—you must offset these factors with sufficient mitigating equities. Any information regarding mitigating factors may be submitted.85 Qualifying family members who seek to adjust status should be prepared to submit a medical exam with the Form I-485. See Chapters 5 and 6 for more information on the adjustment of status procedure.

85

8 CFR § 245.24(h).

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CHAPTER 8 REMOVAL ISSUES1

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This chapter includes: § 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 § 8.7 § 8.8 § 8.9 § 8.10

Applicants Who Are Currently in Removal Proceedings................................... 8-1 Applicants with Prior Removal, Deportation, or Exclusion Orders ................... 8-8 Stays of Removal ............................................................................................. 8-12 Motions to Reopen with Stays of Removal ...................................................... 8-17 Bases for Motions to Reopen with EOIR ......................................................... 8-17 Time Limits on Motions to Reopen ................................................................. 8-19 Filing Fees and Fee Waivers ............................................................................ 8-19 Documentary Requirements for Motions to Reopen and Stays ....................... 8-20 Supporting Evidence ........................................................................................ 8-20 Seeking U Nonimmigrant Status as a Defense from Removal for LPRs ......... 8-21

Applicants Who Are Currently in Removal Proceedings

Applicants who are in removal proceedings, deportation proceedings, exclusion proceedings, or who are subject to a final order of removal, deportation or exclusion may still apply for U nonimmigrant status.2 U applicants in such situations will file the Form I-918 and a Form I-192 waiver for all relevant inadmissibility grounds with the USCIS Vermont Service Center. For clients who are detained but eligible for bond, a sample bond request is at Appendix TT. If your client is in removal proceedings and does not have criminal issues, the most likely series of events will be that you will be granted a continuance to get your U application packet on file and then your motion to administratively close will be granted once the case is pending. Then, once you get conditional approval or, more likely, actual approval of the I-918, your motion to recalendar and terminate will be granted.

PRACTICE POINTER: Can My Approved U Nonimmigrant Client Be Placed in Removal Proceedings? As we mentioned in Chapter 3, USCIS does not routinely place denied U applicants in removal proceedings simply because their I-918 is denied. However, nothing 1

Thank you to Maria Baldini-Potermin of Maria Baldini-Potermin & Associates, PC in Chicago, IL and Sonia Parras-Konrad of Law Office Sonia Parras-Konrad, PLLC and Asista in Des Moines, IA for all of their work in this area of the law. They are both frequent speakers with the ILRC on trainings on U removal issues and some of the content from this chapter was taken from their training materials. Thank you also to Vera Weisz, Weisz Immigration Law Group, and Stacy Tolchin & Megan Brewer of Law Offices of Stacy Tolchin for contributing their expertise and updates from the field to this chapter. 2 8 CFR § 214.14(c)(1)(ii) and (f)(2)(ii).

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§ 8.1

prohibits USCIS from instituting removal proceedings against a U nonimmigrant for conduct “committed after admission,” conduct or a condition not disclosed prior to granting U status, misrepresentation of material facts on the I-918 or I-918A, or after revocation of U status.3 If your client is placed in removal proceedings after approval, she may not be eligible for the same inadmissibility waivers under INA § 212(d)(14) that applied at the time she applied for U nonimmigrant status. It is also unlikely that she can be approved for U nonimmigrant status again based on the same underlying criminal activity. USCIS representatives have stated that someone cannot be approved more than once for the same qualifying crime. However, if your client is eligible for a U visa based on a different qualifying crime, she may be able to apply based on that crime. If that is not an option, your client will need to explore what other defenses and remedies may be available to her if charged as deportable under INA § 237.4 If your client is issued a Notice of Intent to Revoke (NOIR) her U status, she will have a chance to submit documentation to try and overcome the new offenses in her case. In addition, if your client is eligible to adjust status (and somehow overcome the deportable offenses), she may apply for U adjustment of status with the Vermont Service Center while in proceedings, and you may move to terminate proceedings upon the approval of the U adjustment application.

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Prosecutorial Discretion In June and November of 2011, U.S. Immigration and Customs Enforcement (ICE) issued a trio of memoranda providing guidance to Enforcement and Removal Operations (ERO) officers and 3

8 CFR § 214.14(i). Whether an individual is subject to the grounds of inadmissibility or deportability will depend upon whether the person has been admitted into the United States. Those that are seeking admission must show that they are admissible to the United States. For those that have already been admitted, the burden shifts, and the government must show that they are deportable in order to remove them. It is not entirely clear whether an individual with U nonimmigrant status has been “admitted,” such that a subsequent violation of the immigration laws would render her subject to the grounds of deportability versus inadmissibility. However, at least one non-precedential BIA decision has interpreted the grant of derivative U status as an admission and held that the individual was properly charged as deportable under INA § 237(a)(2)(B)(i) for having been convicted of a controlled substance offense “after admission.” See Mario Enrique RamirezLainez, A205 236 187 (BIA Aug. 21, 2014), reprinted in Appendix KK. In reaching its conclusion, the BIA cited the fact that neither the statute nor the regulations differentiate between persons who receive U nonimmigrant status while already in the United States and those who receive it abroad (after entering the United States at a port of entry with a U visa, undoubtedly an “admission”) in establishing eligibility for adjustment of status. Rather, both groups of individuals are described as having been “admitted” to a form of lawful status. See 8 USC § 1255(m)(1)(A); 8 CFR § 214.14(i). On March 17, 2016, the BIA issued an amicus invitation for briefs discussing, among other issues, whether a person granted U nonimmigrant status from within the United States can properly be considered to be “in and admitted to the United States” within the meaning of § 237(a) of the INA. See www.justice.gov/sites/default/files/pages/attachments/201 6/03/17/amicus_invitation_no._16-03-17_u_nonimmigrant_status_due_04-18-2016.pdf. Note that if any grant of U nonimmigrant status is considered an “admission,” this designation would have other consequences as well, including potentially allowing the person to adjust status through INA § 245(a). See Chapter 5 for additional information. 4

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attorneys in the Office of Chief Counsel (OCC) instructing them to exercise prosecutorial discretion in order to prioritize the use of their resources for higher priority cases.5 The memoranda provide lists of factors that make a case low priority and therefore amenable to an exercise of prosecutorial discretion. One of the memoranda particularly focuses on crime victims.6

On December 29, 2011 ICE announced that it established a special hotline for detained crime victims: 855-448-6903. This hotline is designed for the detainees themselves or their family members to call. Attorneys and BIA-Accredited Representatives can still contact the ICE ERO office having jurisdiction over the detainee. Although there are variations in how generously local ICE and OCC offices interpret the prosecutorial discretion guidelines, they should be cited in all requests for prosecutorial discretion. Prosecutorial discretion can include the removal of a pending ICE hold, the decision not to issue a Notice to Appear (NTA) in a given case, an agreement to administrative closure or termination of proceedings, or the granting of a stay of removal for someone with a final order of 5

John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens (June 17, 2011), available at www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf; John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011), available at www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf; Peter Vincent, Case-by-Case Review of Incoming and Certain Pending Cases (Nov. 17, 2011), available at www.ice.gov/doclib/foia/prosecutori al-discretion/case-by-case-review-incoming-certain-pending-cases-memorandum.pdf. 6 John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011), available at www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf. 7 Jeh Charles Johnson, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (Nov. 20, 2014) [hereinafter “Johnson Memo”]. 8 Johnson Memo, at 6.

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On November 20, 2014, the administration restructured its enforcement priorities and issued new prosecutorial discretion guidelines based on these priorities, still directing DHS personnel to exercise prosecutorial discretion in low priority cases (Johnson Memo).7 The Johnson Memo covers the categories of people who will be at greatest risk of deportation, and applies to ICE, Customs and Border Protection, and USCIS. It also provides guidance on immigration detention and prosecutorial discretion. The new memorandum supersedes the 2011 memoranda and sets forth the circumstances in which persons falling into one of the three new enforcement priorities defined in the Johnson Memo may receive a favorable exercise of discretion. The memorandum also establishes different standards for when a favorable exercise of discretion may be made for each category of the three enforcement priorities. The Johnson Memo sets forth a list of factors to be considered in exercising prosecutorial discretion, including status as a victim, witness, or plaintiff in civil or criminal proceedings.8 Advocates should cite to the Johnson Memo’s reference to crime victims in advocating for Prosecutorial Discretion for U applicants. Although the Johnson Memo supersedes the 2011 memoranda, it may also be useful to cite to the 2011 memoranda as evidence of the longstanding policy to exercise favorable prosecutorial discretion for crime victims. The Johnson Memo is included in Appendix UU.

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removal or who is subject to reinstatement. Keep these memoranda in mind when considering the options discussed below and cite specifically to the Johnson Memo regarding crime victims in making your request. The best practice is to make your request for prosecutorial discretion in writing and attach any evidence that the client is a crime victim and/or eligible for U relief. Address both positive and negative factors up front in your request. The OCC will likely have your client fingerprinted before adjudicating your request, so they will know about any criminal history and have indicated that it is counterproductive not to address any negative history upfront. See Appendix UU for a practice advisory on tips for seeking prosecutorial discretion, as well as a copy of the Office of the Principal Legal Advisor’s “Guidance Regarding Cases Pending Before EOIR.”

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Motions to Terminate For potential U applicants who are currently in removal proceedings, it is not necessary to terminate the proceedings first in order to apply for U nonimmigrant status. Applicants in this situation still file the Form I-918 with the USCIS Vermont Service Center, and then most commonly will ask for proceedings to be terminated after U nonimmigrant status is granted. See Appendix VV for a sample unopposed motion for termination for an approved U applicant in proceedings. However, there may be Office of Chief Counsel (OCC) offices that will agree to a request for non-opposition to a motion to terminate even while the U visa application is pending.9 OCC may join a motion to terminate at its discretion at this stage, although a motion to administratively close is often more realistic at least until conditional approval of the U application. Note that if ICE OCC does agree not to oppose a motion to terminate while the U visa application is pending, some jurisdictions may require specific language in the motion and the judge’s order clarifying that the termination is without prejudice (which means that ICE can still re-file the NTA without new information). If the Form I-918 application is ultimately denied after termination of removal proceedings, DHS can issue a new Notice to Appear to reinstate removal proceedings.10 Although you will be able to terminate removal proceedings for an approved U nonimmigrant, at the time of this manual’s writing (February 2016), it is less clear whether ICE OCC will join in a motion to terminate if the petitioner has received only U conditional approval11 and not yet been granted U nonimmigrant status because the fiscal year’s cap was reached. Some OCC offices have indicated that they will agree to termination once a U applicant has been granted deferred action in cases where the 10,000 annual cap has been reached (see Chapters 2 and 3 for more details on the cap and deferred action); however, it appears that the most common practice in this circumstance will be instead for OCC to agree not to oppose a motion for administrative closure. Administrative closure may be a preferred form of the exercise of prosecutorial discretion especially in light of Matter of Avetisyan.12 See more details on administrative closures below. 9

8 CFR §§ 214.14(c)(1)(i), (f)(2)(i). 8 CFR §§ 214.14(c)(5)(ii), (f)(6)(iii). 11 Note that USCIS prefers stating that individuals in this situation are “on the waitlist,” rather than stating that they have received U conditional approval. 12 Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). 10

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PRACTICE POINTER: Detained Clients in Removal Proceedings. If your client is in ICE detention, once you have your I-918 application on file, you can ask the OCC attorney or your client’s assigned deportation officer to request a prima facie determination from VSC. This is a process where VSC does a cursory review of the application and confirms that it looks complete and potentially approvable. It does not mean that it will eventually be approved, nor is it the same thing as a conditional U approval. As part of the prima facie determination request, OCC or ICE can also request that VSC expedite processing of the I-918 application packet. While technically this request should come from OCC or ICE, you can email the VAWA unit hotline ([email protected]) to follow up on the request and remind them of the urgency of the situation. This can also be helpful if your client has an outstanding removal order and is requesting a stay of removal from ICE. (See below for additional information on stays of removal.)

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Motions for Administrative Closure and Motions for Continuance

The legal authority for a continuance in U nonimmigrant cases is found at 8 CFR § 1003.13 (good cause),14 Matter of Sanchez-Sosa,15 and a 2013 Executive Office for Immigration Review (EOIR) memorandum on continuances and administrative closure. A copy of the EOIR memorandum is included at Appendix XX. You can find the legal authority for administrative closure for your U nonimmigrant case in the EOIR memorandum cited above on continuances and administrative closure, and in the 2012 Board of Immigration Appeals (BIA) case Matter of Avetisyan.16 That case held that immigration judges have the authority to administratively close a case even without the agreement of both parties.17

13

Id. See also Matter of Rajah, 25 I&N Dec. 127 (BIA 2009); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). 15 25 I&N Dec. 807 (BIA 2012). 16 Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). 17 Id. 14

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In the past, motions to continue were considered the normal course of action while an application for U nonimmigrant status was pending. However, more recently, with Matter of Avetisyan13 and VSC adjudication times stretching out, administrative closure is generally the favored route since it does not require the individual to return to immigration court while his or her application for U nonimmigrant status is pending (often for well over a year). See the Practice Pointer below for more details as well as Appendix VV for a sample unopposed motion for a continuance for a pending U applicant in proceedings and a sample request for non-opposition to administrative closure.

To request administrative closure before an immigration judge (IJ), contact ICE OCC to request that they join in a motion for administrative closure. See Practice Pointer below for tips on requesting non-opposition for this motion and Appendix VV for a sample motion. If ICE OCC refuses to join, file the motion directly with the IJ. If the IJ denies the motion, you may file an appeal with the BIA.

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To request administrative closure before the BIA where the appeal is from the IJ’s denial of a motion for administrative closure, brief the issue thoroughly and renew the request for administrative closure to the BIA. If you have a case on appeal at the BIA and an application for U nonimmigrant status pending, you can do one of two things: 1) request that the BIA hold the appeal in abeyance pending adjudication of the U visa application, or 2) request administrative closure before the BIA. You can also file one motion that requests both of these things in the alternative. Make sure to fully brief the issues and the points that the IJ and BIA must consider in the exercise of discretion to preserve judicial review of legal (statutory and failure to follow BIA precedent) and due process claims.

PRACTICE POINTER: Requesting a “Non-Opposition” for Your Motion. The best practice prior to filing a motion in immigration court is to first ask the Office of Chief Counsel if they will agree to a “non-opposition” to your motion. If they do agree, you can file your motion unopposed, thus increasing your chances for a quick approval from the immigration judge. If you do not have their agreement, the immigration judge will have to wait until they weigh in or until 15 days have passed since your motion was received, whichever is sooner. In the San Francisco office, the preferred method of communication with the Office of Chief Counsel for a request for non-opposition is email. This may work in other jurisdictions as well. In order to request a non-opposition, you can email the duty attorney. For any type of motion, including for a continuance, administrative closure, or termination, it is best to scan and attach your G-28 and the receipt notice or approval notice (depending on whether your case is pending or approved), and then in the body of the email give the particulars of your request and include the client’s full name, A number and the date of the client’s next hearing. For a motion for administrative closure, you may wish to use the below sample language in an email to the Office of Chief Counsel (with the client’s name and A number and “request for nonopposition to motion to admin close for U visa applicant” in the subject line): I am writing to see if you would be willing to state your non-opposition to a motion for administrative closure for First Name LAST NAME, A0 _____. Her next master calendar hearing is currently scheduled for _____ before Judge ____. We submitted an application for U nonimmigrant status to the Vermont Service Center on ______ (see scanned receipt notices attached) and it is still pending. My E-28 and G-28 are scanned and attached. Thank you for your consideration of this request.

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For a motion for a continuance, you may wish to use the below sample language in an email to the Office of Chief Counsel (with the client’s name and A number and “request for nonopposition to motion for continuance for U visa applicant” in the subject line):

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I am writing to see if you would be willing to state your non-opposition to a motion for a continuance of a master calendar hearing for First Name LAST NAME, A0 _____. Her next master calendar hearing is currently scheduled for _____ before Judge ____. We submitted an application for U nonimmigrant status to the Vermont Service Center on ______ (see scanned receipt notices attached) and it is still pending. My E-28 and G-28 are scanned and attached. Thank you for your consideration of this request. For a motion to terminate an approved U case, you may wish to use the below sample language in an email to the Office of Chief Counsel (with the client’s name and A number and “request for non-opposition to motion to terminate for approved U visa applicant” in the subject line):

If your case was previously administratively closed, you will have to add a motion to recalendar to your motion to terminate proceedings, but that can be done in the same email and the same motion. A sample is available in Appendix VV.

PRACTICE POINTER: Concurrent Jurisdiction over I-192 Waivers. A March 2014 case in the Seventh Circuit called L.D.G. v. Holder18 gave concurrent jurisdiction to the immigration judge and USCIS over the I-192 waiver for a U nonimmigrant petitioner. The statute states that waiver authority in U nonimmigrant cases under INA § 212(d)(14) rests with DHS. However, the Seventh Circuit found that a waiver under INA § 212(d)(3) can be adjudicated by an IJ.19 As of this manual’s writing (February 2016), this case is only binding on the Chicago Immigration Court within the jurisdiction of the Seventh Circuit. However, the same arguments can and are being raised in other circuits, with some success. See Appendix AAA for a sample brief filed in an immigration court in the Ninth Circuit arguing that the immigration judge has jurisdiction to adjudicate the waiver of inadmissibility for a U applicant. Also, keep in mind that INA

18

744 F.3d 1022 (7th Cir. 2014). “In the absence of a clear indication by Congress to the contrary, we find that section 1182(d)(14) and section 1182(d)(3)(A) waivers can and do coexist, and that the IJ has jurisdiction to grant a waiver of inadmissibility to a U Visa applicant under section 1182(d)(3)(A).” L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014).

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I am writing to request a non-opposition for a motion to terminate. I just received the approval notice for First Name LAST NAME’s U visa application and now I would like to submit a motion for termination to Judge _____ by mail. The client’s next master calendar hearing is on ______. I have attached a scanned copy of the approval notice as well as a scanned copy of my E-28 and G-28. Thank you for your consideration of this request.

§ 212(d)(3) will trigger the waiver standard under Matter of Hranka.20 The factors weighed in adjudicating a waiver under this standard are: 1) the risk of harm to society if a waiver applicant is admitted to the United States; 2) the seriousness of an applicant’s prior criminal or immigration violations, if any; and 3) the nature of the applicant’s reason for wishing to enter the United States. In your brief to the immigration judge, you will want to lay out and address all of these elements to preserve the issues for appeal. Advocates who have been successful in seeking a waiver from an immigration judge in this scenario have however reported experiencing some pushback from VSC when filing for U nonimmigrant status. It is unclear at this time whether USCIS has any authority to secondguess the immigration judge’s waiver determination. To best avoid this situation, be sure that all possible inadmissibility grounds are listed on the Form I-192 being adjudicated by the immigration judge. If you are considering filing an I-192 waiver for a U nonimmigrant applicant in immigration court outside of the Seventh Circuit, some of the issues you may want to consider are:

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    

The timing of the dockets in the court with jurisdiction; The IJ’s view of U visas; The IJ’s view of your client’s factual situation regarding a waiver; Other options your client may have for relief from removal such as DACA, asylum withholding, deferral of removal, etc., and arguments for why U nonimmigrant status is a superior form of relief; and Whether to file the I-192 with the IJ or USCIS initially: If USCIS denies the I-192 waiver, then you can bring in additional evidence before the IJ and live witness testimony in a renewal of the I-192 before the IJ. If the IJ denies the I-192, you will need to evaluate the likelihood of success on appeal. The IJ will most likely deny a motion for continuance and/or administrative closure while USCIS goes forward with adjudication of the I-192.

As of this manual’s writing, EOIR was not considering drafting guidance on this issue. It may instead be developed through case law. For attorneys who are considering pursuing this option, see NIJC’s Practice Advisory, The U Visa Inadmissibility Waiver After L.D.G. v. Holder (January 2016), reprinted in Appendix AAA, or contact Asista at [email protected].

§ 8.2

Applicants with Prior Removal, Deportation, or Exclusion Orders

Applicants with prior removal, deportation or exclusion orders may apply for U nonimmigrant status by sending Form I-918 to the Vermont Service Center regardless of the current status of their case. In other words, there is no need to reopen and/or terminate a prior removal or deportation order to apply for U nonimmigrant status. However, applicants will need to file a

20

16 I&N Dec. 491 (BIA 1978).

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waiver with Form I-192 to overcome any relevant inadmissibility grounds (for example, INA § 212(a)(9)(A) and INA § 212(a)(9)(C)).

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Eventually it will be important to reopen an outstanding (non-executed) removal order, but this may be easier to achieve for an approved U nonimmigrant at the time of adjustment of status or even once the adjustment application has been approved (see Chapters 5 and 6 for more details). Automatic Cancellations of Expedited Removal Orders Orders of removal, deportation, or exclusion issued by the Secretary of Homeland Security (i.e., expedited removals) will be automatically cancelled by operation of law if the I-918 is approved.21 See Chapter 4 for a Practice Pointer on how to ascertain whether your client was subject to an expedited removal or not. The cancellation will be effective as of the date of the I918 approval.22 This is an important, special provision for U nonimmigrants; expedited removals can otherwise be very difficult to overcome. Unfortunately, as of this manual’s writing, USCIS still has no mechanism to provide documentation of the automatic cancellation of an approved U nonimmigrant’s expedited removal order. Therefore, approved U nonimmigrants in this situation may need to prove the cancellation of an expedited removal order with a copy of the I918 approval or I-918 Supplement A approval and a copy of the relevant regulations (8 CFR § 214.14(c)(5)(i) and (f)(6)) when they encounter ICE or travel abroad.

Motions to Reopen and Terminate Prior Removal Orders As noted above, orders of exclusion, deportation, or removal issued by an immigration judge or the BIA must be reopened and terminated in order to be cancelled. However, U applicants do not need to reopen and terminate removal or deportation proceedings to apply for or be granted U nonimmigrant status. As of this manual’s writing (February 2016), individuals with U nonimmigrant status can reopen and terminate removal proceedings either before or after they adjust status (but should definitely do so before they travel abroad even as a permanent resident). Vermont Service Center has gone back and forth on this issue, but its latest position is that it can grant adjustment even if there is still an unexecuted removal order outstanding. It is still best practice to reopen and terminate that order as soon as possible, but this new position allows for more flexibility. Further, it may be easier to get your local OCC to join in a motion to reopen after the adjustment has been granted and your client is a permanent resident. If VSC is aware 21 22

8 CFR §§ 214.14(c)(5)(i), (f)(6). Id.

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This same provision does not apply to removal or deportation orders issued by an immigration judge or the BIA (two entities within the Executive Office for Immigration Review (EOIR), a government agency within the U.S. Department of Justice that generally determines who may and may not be removed from the United States). Rather, removal or deportation orders issued by an immigration judge or the BIA are not automatically cancelled upon the approval of U nonimmigrant status—those cases must be re-opened and terminated to get rid of the removal or deportation order.

that there is an outstanding removal order at the time of adjustment, its current practice is to, upon approval of the adjustment, send a notice advising the client that she has an order and should address it.

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If the applicant was physically removed from the United States or departed after being ordered removed, the order is then considered executed and so the proceedings will not need to be reopened and terminated. Some OCCs will not agree to join motions to terminate and others have indicated that they prefer not to join until after the applicant has successfully adjusted. One helpful tactic may be to file the adjustment application and then submit the request for a joint motion to OCC with a copy of both the I-918 approval notice and the I-485 receipt notice. Despite the ability to obtain nonimmigrant status and even adjustment of status without having to reopen prior proceedings and terminate prior removal or deportation orders, many U nonimmigrants may want to reopen and terminate proceedings anyway to guard against problems from continuing to appear in the National Crime Information Center (NCIC) database, or to avoid problems with CBP if they travel once they are a permanent resident. In addition, in light of the January 2016 Department of Homeland Security announcement regarding immigration raids targeted at adults and their children who were apprehended after May 1, 2014 crossing the southern border and who have been issued final orders of removal by an immigration court, it is highly recommended that individuals with outstanding orders of removal after that date who are eligible for U nonimmigrant status file motions to reopen to protect themselves against future immigration raids.23 There are no special U-specific motion to reopen provisions. In some situations, ICE counsel may cooperate on a joint motion to reopen to overcome any numerical or time limitations.24 For more information on motions to reopen, as well as strategies for obtaining a motion to reopen, see § 8.5 below. Sample motions are included in Appendix VV.

PRACTICE POINTER: Getting Information about Local Court Rules. Filing procedures, hours of operations, jurisdiction, etiquette and local rules vary among the many immigration courts. The EOIR website includes a link to the Immigration Court Practice Manual and links to all of the immigration courts. This information can be found at www.justice.gov/eoir/sibpages/ICadr.htm. Many of the individual immigration court pages that are available through those links also include FAQs with additional information about local procedures.

Stays of Removal Applicants with prior final removal, deportation, or exclusion orders may also need to file a discretionary stay of removal if they are currently in the United States and come to the attention 23

DHS, Statement by Secretary Jeh C. Johnson on Southwest Border Security (Jan. 4, 2016), available at www.dhs.gov/news/2016/01/04/statement-secretary-jeh-c-johnson-southwest-border-security. 24 8 CFR §§ 214.14(c)(5)(i), (f)(6).

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of ICE.25 Applicants with prior removal orders should be prepared to request a stay of removal in the event that they are apprehended by ICE. For more information on requesting a stay of removal, see § 8.3 below.

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PRACTICE POINTER: Requesting a FOIA from the EOIR. It is generally considered best practice to review a client’s file with the immigration court prior to proceeding in the case. Especially in cases where your client was previously represented by other counsel, it is very important to review prior filings to ensure consistency and to address any inaccurate information previously submitted. If the File Is Still at the Immigration Court Generally, the immigration court will not provide copies of documents in the file except for the Notice to Appear, any additional charging documents, and the final order. To request copies of those documents or to review the file or tapes of hearings, the court requires a completed request form and, if the client was previously represented, a motion to substitute counsel.26 A sample motion to substitute counsel is at Appendix VV. If you have not officially entered an appearance as counsel, you can only review the file if the respondent accompanies you and has a photo identification that matches the name on the file.27

In order to file a FOIA request with the EOIR, you must submit a written request that describes the records you seek and includes identifying information for your client, including their full name, date and court location of the proceedings, and alien registration number (if known). A step-by-step guide to filing FOIA requests is at Appendix YY and a sample EOIR FOIA request is at Appendix ZZ. All FOIA requests to EOIR must include a verification of identity, which can be done in three different ways:28 1. Form DOJ-361 (not Form G-639); or 2. a notarized statement from a notary public who has witnessed the signature of the person whose file is being requested and is making the request; or 3. the following statement, written immediately above the signature on the request: “I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].”

25

8 CFR § 241.6(a); 8 CFR § 1241.6(a). In San Francisco, you can also email the file review appointment clerk at [email protected]. 27 General information about reviewing files at SF EOIR may be obtained at: www.usdoj.gov/eoir/sibpages/ sfr/ROPandTapeReview.pdf. 28 DOJ, Fact Sheet: How to File a Freedom of Information Act Request with EOIR, available at www.justice.gov/sites/default/files/eoir/legacy/2008/10/15/FOIAInstructions100908.pdf. 26

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If the File Is No Longer at the Immigration Court

To request information about another individual or on behalf of another individual, the request must include a notarized statement from that individual giving her consent to release the information. Questions about FOIA requests can be directed to the FOIA Service Center at (703) 605-1297.

§ 8.3

Stays of Removal29

There is no automatic stay provision for U nonimmigrant status applicants. Those clients who are at risk of being removed because of an outstanding or prior removal order and who have come to the attention of ICE will need to file a stay. Obtaining a prima facie determination from VSC is key to getting your stay approved. See the Practice Pointer below for information on obtaining a prima facie determination. Typical Process for Filing a Stay in U Cases

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File I-918 with VSC

File I-246 with Local ICE/OCC

VSC Issues Prima Facie Eligibility

OCC Communicates with VSC

ICE ERO Grants Stay

There are various kinds of stays available—including ones that are obtained from ICE, the BIA, an immigration judge, or are automatic with a motion to reopen. In the following sections, we will review the different types of stays, the different bases for reopening, provide a roadmap and checklist of materials needed to file a motion to reopen and request for a stay when needed, as well as cites to samples of motions to reopen attached in Appendix WW at the end of this manual. Remember to refer to the prosecutorial discretion memo’s inclusion of crime victims when requesting your stay (see copy at Appendix UU). 29

Many thanks to Andrew Taylor, Attorney of Law, for his contributions to this section of the manual.

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PRACTICE POINTER: Communicating with USCIS about Urgent U Cases When a Letter of Prima Facie Determination Is Needed. Attorneys representing detained clients requesting a stay or who otherwise need a letter of a prima facie determination should simultaneously: 1) ask the ICE ERO officer on the case to request a letter of a prima facie determination; 2) ask the ICE Office of Chief Counsel to request a prima facie determination, and 3) contact the VSC VAWA unit by emailing [email protected]. This is because the request for a prima facie determination should technically come from ICE, but it is best practice to also request it yourself in case ICE fails to request it. See Chapter 3 for more detail on contacting the VAWA Unit at the Vermont Service Center.

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The Vermont Service Center has indicated three circumstances under which they would entertain a request for an expedited prima facie determination:   

Applicants who are subject to a final order of removal, Applicants who are being detained at the government’s expense, and/or Extreme emergent circumstances.30

Current Procedure for Requesting Stay of Removal for Pending U Applicants In September 2009, Immigration and Customs Enforcement (ICE) issued internal policy guidance for adjudicating stay requests filed by U nonimmigrant status applicants. The ICE Memorandum is attached at Appendix BBB. Then in June 2011, ICE supplemented that guidance with a prosecutorial discretion memo that specifically addressed crime victims. As discussed in § 8.1, this memo was superseded by the Johnson Memo (see Appendix UU). The Johnson Memo still includes “status as a victim, witness or plaintiff in civil or criminal proceedings” as a factor to be considered in exercising prosecutorial discretion.31 These memoranda are very helpful in obtaining a stay of removal. According to the ICE policy guidance, ICE may grant a stay of an administrative final order of removal under INA § 241(c)(2) to applicants with pending U nonimmigrant status applications if the Vermont Service Center has determined that the applicant has established prima facie

30 31

Vermont Service Center Stakeholders Conference Call (April 6, 2010). Johnson Memo at 6.

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Such letters of prima facie determinations are not determinative and are generally only valid for six months. VSC has indicated that when ICE makes a request for a prima facie determination, it can generally make a determination on that request within 3-5 days. VSC notifies ICE of the decision but does not notify the individual or attorney. Rather, if the request is approved, the individual and/or attorney will next receive an RFE or letter indicating that the applicant has been placed on the waitlist (or a denial notice).

eligibility for U nonimmigrant status.32 Such a stay will remain in effect for up to 180 days,33 until either USCIS approves U nonimmigrant status or USCIS denies U nonimmigrant status after all administrative appeals.34 If at the end of the 180 days, USCIS still has not made a final decision on the U nonimmigrant status application, and no new adverse factors are apparent, the Field Office Director should extend the stay as needed for USCIS to adjudicate the U nonimmigrant application.35 Furthermore, although ICE has the authority to detain applicants with pending U applications, the Office of Detention and Removal Operations (DRO) should release an applicant while the U application is pending unless serious adverse factors (discussed below) weigh against release or the applicant is subject to mandatory detention under the INA.36 Release from custody on an ankle bracelet is possible in some jurisdictions, even with mandatory detention, after six months. In considering an applicant’s request for a stay of removal, the Field Operations Director should favorably view Vermont Service Center’s letter of prima facie eligibility for the U status, and should also consider favorably any humanitarian factors related to the applicant or the applicant’s close relatives who rely on the applicant for support. In other words, with a letter of a prima facie determination from the Vermont Service Center, most applicants should expect that they will be granted a stay. The ICE memorandum outlines those cases in which a stay may not be appropriate. They include:

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  

Where USCIS has determined that the applicant is not prima facie eligible for U nonimmigrant status; Where USCIS has denied the U nonimmigrant application on the merits; or Where serious adverse factors weigh against the granting of a stay of removal.

The serious adverse factors that would harm an applicant’s request for a stay of removal include:     

National security concerns; Evidence that the applicant is a human rights violator; Evidence that the applicant has engaged in significant immigration fraud; Evidence that the applicant has a significant criminal history; and Any significant public safety concerns.

According to ICE’s own memorandum, in the absence of the above factors, ICE should generally grant a stay of removal to an applicant found by the Vermont Service Center to be prima facie eligible for U nonimmigrant status.

32

See ICE memorandum (Sept. 24, 2009) attached as Appendix BBB at p. 1; see also 8 CFR § 214.14(c)(ii). 33 Id. at p. 3. 34 Id. at p. 1. 35 Id. at p. 3. 36 Id.

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In order to request a stay of removal when your client is apprehended by ICE and has a prior removal order, you should immediately contact the Vermont Service Center (start with the email hotline and then go up the chain of command to the VAWA Unit Director via ASISTA— www.asistahelp.org—if you have not received a response) and request that the Vermont Service Center issue a letter of a prima facie determination in the case and communicate that determination to ICE. Also ask ICE and/or the Office of Chief Counsel to request a prima facie determination. Please note that Vermont Service Center will provide ICE with the results of the prima facie review, but neither the applicant nor the attorney representative will likely receive a notice of the results. Instead, if the request is approved, the individual and/or attorney will receive an RFE or letter indicating that the applicant has been placed on the waitlist (or a denial notice).

Some attorneys have reported that their clients have been granted a stay and released from custody without the formal step of filing a Form I-246. However, other offices are requiring it. Filing the Form I-246 has presented problems in some jurisdictions where DRO does not have a system for feeing in the filing fee. In such cases, you should present the ICE memo attached at Appendix BBB and request that they grant a filing fee waiver. Please note that by filing a request for a stay, your client will be announcing her presence in the United States to ICE. Since the stay is not automatic, ICE may still seek out your client to execute the removal order once a request for stay has been filed.40 Therefore, the stay request is only recommended for those clients who are already facing imminent removal or are being detained. Accordingly, in those cases where a client is not already in proceedings or detention, 37

8 CFR § 103.7. See also ICE memorandum (Sept. 24, 2009) attached as Appendix BBB. The form and instructions are available online at www.ice.gov/sites/default/files/documents/Document/2 014/ice_form_i_246.pdf. 39 ICE memorandum (Sept. 24, 2009) attached as Appendix BBB at p. 2. 40 It is possible that a client who is removed in this situation will still be able to seek U nonimmigrant status after being removed or having her removal reinstated. However, she will need to apply from abroad and will need to have all applicable inadmissibility grounds waived. 38

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To request a stay of removal, file Form I-246, “Application for Stay of Deportation or Removal,” along with the filing fee and a copy of the I-918 and I-192 waiver filing. As of this manual’s writing (February 2016) the filing fee is $155 (but is always subject to change) and may be paid in the form of cash, or a cashier’s check or money order payable to “Department of Homeland Security” or “Immigration and Customs Enforcement.” A fee waiver is also available.37 It may also be advisable to include a copy of the 2014 Johnson Memo with your filing. Generally, to file a stay request, you must submit it in person, and ICE will require the applicant’s original passport, a copy of the individual’s birth certificate or other identity document, and copies of dispositions for any arrests or convictions the individual may have.38 A completed sample form and attachments may be found at Appendix WW. If the applicant is in immigration custody, even if she has not yet filed a stay of removal, the DRO must provide the individual with an application for a stay of removal on Form I-246 along with a copy of the fee waiver policy.39 If you do file a fee waiver request and you are representing the client pro bono or at no charge, be sure to state that in your cover letter or in your client’s fee waiver request, as practitioners have reported receiving that question from ICE.

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there may be no reason to apply for the stay. Nonetheless, since it can be difficult to obtain your client’s signature once she is detained, it is often prudent to have the Form I-246, an extra G-28, and an extra fee waiver request signed and ready in your file in case your client is detained. ICE Regulatory and Statutory Authority to Stay Removal Under the regulations, ICE may stay removal in its own discretion.41 As an alternative to the regulatory provisions, TVPRA 2008 also provides ICE with statutory authority to stay removal when a U application is pending with VSC.42 However, this type of stay is also discretionary, so in practice it may not change the outcome in your client’s case. If granted, the stay is valid until the U application is adjudicated, unlike regular administrative stays.43 However, the value of requesting a stay under the statutory authority as opposed to the regulatory scheme in order for the stay to be valid until the U application is adjudicated is unfortunately unclear, since ICE would likely not specify that it is a statutory (versus regulatory) stay.

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If your client is denied an administrative stay, you are not precluded from seeking another type of stay of removal, deferred action, continuance or abeyance of removal proceedings under some other provision in the law.44 Samples of stay requests filed without a prima facie determination are attached at Appendix WW. Board of Immigration Appeals or Immigration Judge Authority to Stay Removal Unlike ICE, neither an immigration judge (IJ) nor the Board of Immigration Appeals (BIA) can simply stay removal. Only if a motion to reopen is filed together with or before the stay request may the BIA or the IJ grant a stay. The stay request may be a simple, one or two-page request that references the arguments made in the motion to reopen, but the stay request must clearly state the authority for the IJ or the BIA to consider the request by citing the correct section that permits the motion to reopen to be filed. The various bases for filing a motion to reopen are discussed below. If your client is granted a stay by an IJ or the BIA, it is best to be prepared to take the copy of the order staying removal to ICE. For detained respondents, EOIR will typically fax a copy of the order to ICE, but it is best to provide a copy yourself as well.

PRACTICE POINTER: Pro Se Manual for U Applicants in Detention. The Immigrants’ Rights Clinic of Stanford Law School created an excellent resource on behalf of Centro Legal de la Raza in Oakland, California for detained pro se applicants (those without lawyers) who are representing themselves in filing a U visa application. This 77-page guide contains checklists, step-by-step help and sample materials in easy-to-understand language and is available in English 41

8 CFR § 241.6. INA § 237(d) created by § 204 of William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, P. L. 110-457, 122 Stat. 5044 (TVPRA 2008). 43 INA § 237(d)(1)(A). 44 INA § 237(d)(2). 42

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and Spanish. It can be downloaded for free online at www.ilrc.org/resources/pro-se-manual-for-uapplicants.

§ 8.4

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Motions to Reopen with Stays of Removal

The statute and the regulations provide several ways for a client with a final order of removal to file a motion to reopen. There are several important differences between these various methods, perhaps most importantly whether a stay of removal is automatic or requires a separate discretionary request to the immigration judge or the BIA. However, even if there is no automatic stay provision under the motion to reopen provision you pursue, a stay may still be requested as described in § 8.3 above. Unfortunately, there is no authority to reopen a final order of removal solely based on a pending U application, so you will likely need the OCC to join in your motion. Note that they are more likely to do this after your U visa application has been approved. § 8.5

Bases for Motions to Reopen with EOIR

1. When the person did not receive proper notice of the hearing (“FTA no notice”);45 2. When exceptional circumstances caused the person to fail to appear (“FTA circumstances”);46 3. When the person was in federal or state custody and failed to appear through no fault of her own (“FTA custody”);47 4. When changed conditions in the person’s home country warrants consideration or reconsideration of an asylum claim (“changed country conditions”);48 5. When new facts or circumstances have arisen after the hearing or material evidence that was not previously available has come to light;49 6. When the person is eligible for self-petitioning or cancellation of removal under the Violence Against Women Act (“VAWA”);50 or 7. The IJ or the BIA may reopen a case sua sponte (on its own motion). Procedurally, a motion to reopen sua sponte should be presented as a “Request for Sua Sponte Reopening,” rather than as a motion to reopen.

45

INA § 240(b)(5)(C)(ii). INA § 240(b)(5)(C)(i). 47 INA § 240(b)(5)(C)(ii). 48 INA § 240(c)(7)(C)(ii). 49 INA § 240(c)(7)(A)-(B). 50 INA § 240(c)(7)(C)(iv). 46

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There are seven bases to reopen a case:

Filing to reopen on any of the bases listed in numbers 1, 2, and 3 (FTAs) automatically stays removal until the motion is adjudicated.51 The bases listed in 4, 5, and 7 do not stay the removal automatically and require an additional request for a discretionary stay. Basis number 6—moving to reopen for VAWA relief—automatically stays removal pending final disposition of the motion, including exhaustion of all appeals if the motion establishes that the applicant is a qualified VAWA applicant.52 A person may only file one motion to reopen except in the following situations:    

where a client may show that a prior attorney provided ineffective assistance of counsel in moving to reopen; where OCC joins in a motion to reopen; where an individual was ordered deported in absentia in deportation proceedings commenced before June 13, 1992 or was ordered excluded; or where the individual is seeking to reopen under “VAWA,” and has not previously sought reopening pursuant to VAWA (but has sought a motion to reopen under a different basis).53

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However, while a motion to reopen is pending, an individual can supplement the motion with other grounds for reopening. Basis for Motion to Reopen Motion to Reopen Time Limit to File

Automatic Stay Provision?

Filing Fee Required?

Failure to Appear (FTA): no notice

Anytime: see INA § 240(b)(5)(c)(ii)

Yes: see INA § 240(b)(5)(c)(ii)

No: see 8 CFR § 1003.24(b)(2)(v)

FTA: exceptional circumstances

180 days: see INA § 240(b)(5)(c)(i)

Yes: see INA § 240(b)(5)(c)(ii)

Unclear

FTA: custody

Anytime: see INA § 240(b)(5)(c)(ii)

Yes: see INA § 240(b)(5)(c)(ii)

No: see 8 CFR § 1003.24(b)(2)(v)

Asylum: changed country conditions

Anytime: see INA § 240(c)(7)(C)(ii)

No, but discretionary No: see 8 CFR stay available § 1003.24(b)(2)(i)

New facts/evidence

90 days: see INA § 240(c)(7)(C)(i)

No, but discretionary Yes stay available

51

INA § 240(b)(5)(C)(ii). INA § 240(c)(7)(C)(iv)(IV). 53 INA § 240(c)(7)(A). 52

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VAWA Relief

One year, unless extraordinary circumstances or extreme hardship to person’s child: see INA § 240(c)(7)(C)(iv)(III)

Unclear Yes, if person establishes prima facie eligibility for VAWA relief, until all appeals exhausted: see INA § 240(c)(7)(C)(iv)(IV)

Sua sponte

Anytime

No, but discretionary Yes stay available

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Time Limits on Motions to Reopen

§ 8.7

Filing Fees and Fee Waivers

Generally, depending upon the basis for the motion to reopen, before the motion can be filed with the immigration court or BIA, a $110 filing fee must be submitted.57 For motions before the BIA, the fee may be submitted by a personal check or money order made payable to “U.S. Department of Justice.” For motions before an immigration judge, the fee must be paid at the cashier’s office for your local EOIR. The check or money order should be made payable to “Dept. of Homeland Security.” The cashier will print a receipt directly on the first page of the motion and provide as many cash register receipts as you request. If the motion to reopen is based on changed country conditions, or FTA no notice or custody, a fee is not required, but be prepared to explain that to the filing clerks at the immigration court.58 54

INA § 240(b)(5)(C). INA § 240(c)(7)(C)(i). 56 INA § 240(c)(7)(C)(iv). More information on VAWA motions to reopen and representing VAWA clients in removal proceedings is contained in the ILRC’s VAWA Manual, which may be ordered at www.ilrc.org/publications. 57 8 CFR § 1103.7(b)(2). 58 8 CFR § 1003.24(b)(2). 55

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As set forth in the preceding chart, the time in which a person must file to reopen depends on the reason claimed to reopen. For FTA no notice, FTA custody, changed country conditions, a joint motion with OCC, or sua sponte, the motion or request may be filed at any time. If an applicant moves to reopen for FTA exceptional circumstances, the motion must be filed within 180 days of the date of the in absentia order,54 unless the deportation proceedings commenced before June 13, 1992, or the respondent was in exclusion proceedings. Reopening based on new facts or evidence (other than changed country conditions) requires that the motion be filed within 90 days of the date of the final order.55 Finally, a VAWA motion to reopen must be filed within one year of the date of the final order, although this limitation may be waived in the case of an applicant who demonstrates extraordinary circumstances or extreme hardship to the applicant’s child.56

There is also no fee for a joint motion to reopen.59 A separate fee is never required for any stay request. § 8.8

Documentary Requirements for Motions to Reopen and Stays

It is important to indicate your client’s custody status on the motion to reopen. It appears that internal procedures at some immigration courts put cases on a high priority track for disposition if it is unclear whether a client is detained physically by ICE. By making it clear that your client is not in custody, the motion to reopen may be given a lower priority for adjudication, which may be good, assuming that the stay is granted and your client is not yet eligible for a form of relief that the immigration judge can adjudicate.

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Other documentary requirements for a motion to reopen include a paper (not an electronic) E-28 if the individual is represented, an EOIR-33/IC change of address form to ensure that the immigration court has the individual’s current address, and, depending on the nature of the motion, a filing fee or fee waiver request if required.60 The Immigration Court Practice Manual states that a copy of the final order of removal should be attached to a motion to stay, if available.61 If a copy is not available when you first file, your stay motion must at least give the date of the order and a description of the content of the ruling (such as any relief that was denied and why, if known). In some courts, such as San Francisco, files are taken off-site three months after the entry of a final order by an immigration judge and go to a federal records depository. A request by the attorney or individual to retrieve a file requires 7-10 days before the file will be available to review. If the file will not be available in time, file the motion to reopen, noting that the file is unavailable but has been requested, and request that the motion to reopen be held in abeyance until the respondent can submit a supplement to the motion after you review the file. For more information on filing a motion to reopen for U nonimmigrant clients, see also Chapter 10: Obtaining Relief for Abused Immigrants in Removal Proceedings of The VAWA Manual: Immigration Relief for Abused Immigrants available from the ILRC at www.ilrc.org/publications. Sample motions to reopen can be found at Appendix VV and WW. § 8.9

Supporting Evidence

Regardless of how much time is available to prepare the motion to reopen, a separate declaration from the client should be included to address directly the facts that resulted in the final order.

59

8 CFR § 1003.24(b)(2)(vii). See Immigration Court Practice Manual § 5.7, Motions to Reopen, available at www.justice.gov/eoir/vll/ OCIJPracManual/ocij_page1.htm. 61 See Immigration Court Practice Manual § 8.3, Discretionary Stays, available at www.justice.gov/eoir/vll /OCIJPracManual/ocij_page1.htm. 60

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Such a declaration is necessary so that the immigration judge, if so disposed, may grant the motion to reopen and stay removal on a clear legal basis.

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Any evidence supporting the claimed basis for reopening or other discretionary evidence should also be submitted, in addition to the U application, although you need not include the entire U application. For example, fee waiver affidavits or employment authorization applications are not relevant and should be omitted to reduce the pages that the immigration judge has to review. Per the Immigration Court Practice Manual, supporting documents must be paginated with consecutive numbers, individual documents must be separated with lettered tabs, and a table of contents must be provided showing the page ranges applicable to each tab. Finally, a proposed order granting the motion to reopen and the stay must be included for the immigration judge. A sample is included at Appendix WW. Also, do not forget the proof of service as the last page in your packet. § 8.10 Seeking U Nonimmigrant Status as a Defense from Removal for LPRs

If a potential U nonimmigrant is ordered removed and is actually physically removed from the United States before she has the opportunity to apply for U nonimmigrant status, she may still file her I-918 from outside the United States. She will need to waive all relevant inadmissibility grounds—including those related to her removal—and be prepared to consular process if her I918 is approved. As of this manual’s writing (February 2016), relinquishing LPR status through the filing of an I407 does not appear to work for LPRs in removal proceedings who seek U nonimmigrant status

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As of this manual’s writing (February 2016), USCIS has said it will not approve U nonimmigrant status for a lawful permanent resident (LPR). In other words, a U nonimmigrant petition will not be adjudicated and cannot be approved unless the applicant is not a lawful permanent resident. This may be problematic for an LPR who is in removal proceedings but may be eligible for a U visa. An LPR in this situation will need a final order of removal to be able to proceed with a U nonimmigrant application. A process that has worked for some attorneys is to file an I-918 with the VSC, alerting them that the applicant is in proceedings and asking them to hold the I-918 in abeyance. Once the final removal order has been issued, the attorney then files a Form I-246 stay application with ICE Enforcement and Removal Operations and alerts VSC with a copy of the final order. Once VSC sends the prima facie notice to ICE ERO, ICE can grant a stay pending adjudication of the U nonimmigrant petition. At this time, the attorney can file a request for release from custody. The filing fee for an I-246 is currently $155, or a fee waiver may be requested. The attorney may also want to consider filing a motion for deferred action along with the I-246. There is no fee for a deferred action motion. Attorneys in some circuits may also want to explore if a 212(h) waiver and readjustment is an option.

as relief from removal. This is because VSC is interpreting the I-407 process as one that must be sought from outside the United States or from CBP at the port of entry. In addition to the procedural complications outlined above, advocates should remember that LPRs in removal proceedings—like any petitioner for U nonimmigrant status—will need to show that they merit a favorable exercise of discretion to waive all relevant inadmissibility grounds. This may be challenging for clients who are in removal proceedings or currently detained, but it is possible.

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For updates on the ability of LPRs to obtain U nonimmigrant status as relief from removal, check the ILRC website at www.ilrc.org/info-on-immigration-law/u-visas and the Asista website at www.asistahelp.org.

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CHAPTER 9 U TRAVEL ISSUES

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This chapter includes: § 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8 § 9.9 § 9.10 § 9.11 § 9.12 § 9.13 § 9.14

Initial Applications for Applicants Abroad ........................................................ 9-3 Fingerprints for Applicants Abroad ................................................................... 9-8 Passports for Applicants Abroad ...................................................................... 9-10 Travel before Approval Notice Issued ............................................................. 9-12 Approval Notice for Applicants Abroad .......................................................... 9-14 Decision to Travel ............................................................................................ 9-15 Consular Processing: Including New Inadmissibility Application................... 9-18 Border Entry with CBP .................................................................................... 9-24 Entering the United States ................................................................................ 9-25 Immigrant Visa Process for I-929 Applicants Abroad ..................................... 9-25 Humanitarian Parole for Other Family Members ............................................. 9-27 Parole for Adjustment of Status Applicants ..................................................... 9-30 Parole for Conditionally Approved Applicants on the Waitlist ....................... 9-31 Parole for U Nonimmigrants ............................................................................ 9-32

The U visa waitlist presents serious challenges for those who wish to travel. As described in previous chapters, when a U nonimmigrant petition is conditionally approved for an applicant in the United States, Vermont Service Center (VSC) will place the applicant on the waitlist and simultaneously grant deferred action (not U nonimmigrant status). It is unclear whether a conditionally approved U petitioner with deferred action will be able to travel abroad and reenter. If your client is abroad, VSC will also conditionally approve the U nonimmigrant petition and place your client on the waitlist; but USCIS cannot grant deferred action to someone abroad. Instead, the regulations authorize granting parole for those with a conditionally approved 9-1

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As the first chapter of this manual mentions, advocates and clients often refer to the “U visa” when they are really referring to U nonimmigrant status or an approved petition for U nonimmigrant status. Thus far, the manual has been describing the process for obtaining and maintaining both the approved petition and U nonimmigrant status. In this chapter, we turn to information on how to obtain the actual visa for your client’s passport so that your client can enter or return to the United States. An important distinction to keep in mind before discussing travel on a U visa is the difference between an approved petition for U nonimmigrant status and a client’s admission in U nonimmigrant status. If your client is present in the United States at the time of the approval of the Form I-918 or I-918 Supplement A petition, then your client is concurrently in U nonimmigrant status while receiving an I-94 admission number on the petition. If your client is abroad at the time of the approval of the Form I-918 or I-918 Supplement A petition, then your client does not yet hold U nonimmigrant status; rather, the client only holds an approved petition.

U nonimmigrant petition.1 However, despite years of ASISTA and AILA aggressively pursuing an automatic grant of parole to those abroad, USCIS policy officials remain in disagreement on how and whether to implement this provision of the law. Both ASISTA and AILA continue to pressure USCIS to implement this procedure, both for those already abroad and for those in the United States who wish to travel. See § 9.13 below for details on the parole travel options for those on the waitlist. Unlike lawful permanent residency (having a green card), U nonimmigrant status does not in itself provide U nonimmigrants the ability to re-enter the United States lawfully, nor does the approval of a U nonimmigrant petition provide the approved applicant with the automatic right to enter the United States from abroad. Nevertheless, it is possible to leave and return to the United States on a U visa within the statutorily required 90 days, even for those who will trigger new inadmissibility grounds upon departure. A process has been established for those U nonimmigrants requesting a travel U visa to enter the United States and for U nonimmigrants requesting advance parole because they have an application pending to adjust status. Further, some advocates are exploring other options for conditionally approved U applicants as well as U nonimmigrants in the United States who do not have a pending adjustment application: instead of returning with a U visa, some clients are obtaining advance parole before leaving the United States. This chapter will lead you through the proper steps for U applicants and family members who are currently abroad or who are considering traveling abroad in the future.

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Summary of Who May Request What Travel Document and When and Where 918 Petition

Legal Status

Current Location

What Travel Type

Travel Request Made Where

Tested

Waitlisted, Conditional Approval

None yet

Abroad

Advance Parole

Abroad

Limited success for humanitarian

Waitlisted, Conditional Approval

Deferred Action U.S.

Advance Parole

U.S.

Limited success with local USCIS

Approved

U nonimmigrant U.S.

U visa

Abroad

Tried and true method

Approved

None yet

U visa

Abroad

Tried and true method

Approved

U nonimmigrant U.S.

Advance Parole

U.S.

Few successes with local USCIS

Approved AND I- U nonimmigrant U.S. 485 Petition (+AOS pending) Pending

Advance Parole

U.S.

Tried and true method

Abroad

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8 CFR 214.14(d)(2) (“USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list”).

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PRACTICE POINTER: Overview of the U Consular Process for Overseas Family Members. The USCIS website provides an overview of the process for U derivatives to travel to the United States that may be helpful to those who are new to this process, summarized below:2

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1. The U principal (U-1 holder) applies or petitions with USCIS on behalf of the overseas family member for derivative U nonimmigrant status, using Form I-918 Supplement A, Petition for Qualifying Family Member of U-1 Recipient. 2. USCIS sends a fingerprint notice for the overseas family member to the attorney, representative, or principal U nonimmigrant in the United States. 3. The overseas family member contacts the appropriate U.S. Embassy or Consulate to schedule an appointment for fingerprinting. Depending on the location, either Department of Homeland Security (DHS) or DOS will conduct the fingerprinting. 4. The department that conducts the fingerprinting sends the fingerprints to VSC. 5. USCIS adjudicates (approves or denies) the application or petition for derivative U nonimmigrant status. 6. If approved, USCIS sends notice of approval to the attorney, representative, or principal U nonimmigrant and to DOS. 7. The overseas family member schedules an interview with DOS at the nearest U.S. Embassy or Consulate to apply for the visa in order to enter the United States. To find the nearest embassy or consulate, check www.usembassy.gov. It is the responsibility of the family member, and not DOS, to schedule an interview. The overseas family member should not wait to be contacted. 8. DOS interviews the overseas family member. This step may take several visits and further evidence. It then approves (if applicable) a U visa. 9. Following the approval, DOS sends the visa to the overseas family member. 10. The overseas family member makes travel arrangements to enter the United States on the derivative U visa.

Initial Applications for Applicants Abroad

The forms to submit to VSC for an applicant abroad are the Form I-918 (for principals) or Form I-918 Supplement A (for derivatives). The principal abroad needs to sign the Form I-918, but the derivative abroad does not need to sign the Form I-918 Supplement A. If a Form I-192 is needed to waive inadmissibility issues, the applicant should submit the waiver form with the initial application and sign the form if she is 14 to 79 years old.

                                                             2

USCIS, Consular Processing for Overseas Derivative T and U Nonimmigrant Status Family Members: Questions and Answers, available at www.uscis.gov/news/consular-processing-overseas-derivative-t-and-unonimmigrant-status-family-members-questions-and-answers.

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§ 9.1

VSC will not adjudicate the Employment Authorization Form I-765 until the applicant is present in the United States. You should wait until the day the applicant arrives in the United States to file the Form I-765. VSC will reject any Form I-539, requesting an extension of status, from applicants abroad. This form can only be submitted by applicants who are present in the United States. If a derivative abroad needs an extension of her I-918A approval notice, the principal in the United States must file a Form I-539 and include the derivative on the principal’s form. Sample cover letters for clients who seek to enter the United States on a U visa are available at Appendix FFF.

PRACTICE POINTER: Photographs with the Original Submission? Photographs are not required as part of the application for a U visa from abroad. Instead, they are only needed after the applicant has entered the United States, to process the Form I-765 employment authorization application. The applicant will submit two passport-sized color photographs at that time. Photograph instructions are at Appendix DDD.

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If VSC erroneously requests photographs for an applicant abroad, simply write the VAWA hotline at [email protected] to request a withdrawal of that request. A small number of newly trained officers have mistakenly requested these photographs early.

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Age-Out Protection The VAWA Reauthorization Act of 20133 provided much needed statutory relief to derivative children at risk of aging out. As discussed earlier in the manual (see Chapters 2 and 3), principal applicants who have derivative children approaching 21 years of age will protect their children from aging out if they file their I-918 petition for themselves before any derivative child turns 21 years of age.4 Either concurrently or while that 918 application remains pending, the principal can then file an I-918 Supplement A petition for any derivative children who were under 21 years of age on the date the principal filed her Form I-918. After the principal’s Form I-918 is approved and the principal holds U-1 nonimmigrant status, the U-1 status holder can file, at any time before applying for adjustment of status, a new Form I-918 Supplement A for a derivative child before that child turns 21 years old.

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VSC now grants derivative children an approved U-3 nonimmigrant petition for the entire fouryear period after the date their Form I-918 Supplement A is approved. During that entire period, the derivative has the opportunity to request travel on a U visa. The U.S. State Department’s Foreign Affairs Manual (FAM), last updated in January 2015 (see Appendix HHH), instructs the consulates to issue U visas to unmarried derivative children in accordance with the Trafficking Victims Protection Reauthorization Act (TVPRA) 2013. These FAM instructions correctly state: “Unmarried U visa applicants who filed their petitions before they turned 21 remain eligible for the visa after they turn 21.” Unfortunately, these instructions fail to include the extra time window for those derivative petitions filed after the derivative’s 21st birthday and after the principal’s I-918, but while the principal’s I-918 petition remained pending. Despite this apparent oversight in the FAM, consular offices are generally taking as valid any approved Form I-918 Supplement A, regardless of the date the derivative’s petition was filed, so long as the petition is still valid at the time of issuing the U visa. Further, the Department of State recognizes that applicants who were previously denied U visas due to age-out restrictions pre2013 can now reapply since the age-out protection is retroactive.

                                                             3

Pub. Law 113-4, 127 Stat. 54 (March 7, 2013). This provision applies retroactively for derivatives back to the effective date of the Victims of Trafficking and Violence Protection Act of 2000 (Public Law 106–386; 114 Stat. 1464).

4

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PRACTICE POINTER: What Should You Do for Your Client Abroad Who Previously AgedOut but Is Now Age-Out Protected? For derivative children abroad who aged out prior to the adjudication of the principal’s application, VSC held (instead of adjudicated) their I-918 Supplement A petitions. Since March 2013 when the TVPRA was reauthorized, advocates must affirmatively contact VSC, most easily via the VAWA hotline at [email protected], and request an adjudication of those pending petitions. Upon request, advocates generally receive the petition approval notice within one to two months, with a validity of four years from the date of the approval notice.

For those principal applicants now approaching their third or fourth anniversary in U nonimmigrant status, they need to request an immediate adjudication of their age-out child’s petition and then help their derivative child enter the United States on a visa (as described later in this chapter) for admission in U nonimmigrant status as soon as possible. The principal applicant may need to allow time for the derivative to enter the United States after the principal’s original U status will expire and before the principal applies for adjustment of status to a resident. Once the principal is a permanent resident, the derivative child may no longer be admitted in U-3 nonimmigrant status. Therefore, if the principal’s U-1 nonimmigrant expiration date is approaching before the child has entered the United States, the principal may apply for an extension of nonimmigrant status by: (a) filing an I-539, which USCIS will grant for one-year, or (b) filing an I-485, which automatically grants an extension with no time limit, AND asking VSC to hold that I-485 petition in abeyance until the child enters the United States. While the March 2013 age-out protection fixed the process for those abroad entering on U visas, as you will also read below, the statute’s age requirement did not change for derivative children whose parents filed I-929 petitions for them. Derivative children with I-929 petitions approved still need to travel and enter the United States on their immigrant visas before they turn 21 years old. Therefore, do not advise your principal U client to adjust status and petition their older children under the I-929 process described in Chapter 7 because those children who are already 21 years old or older do not qualify to travel through that alternative method.

§ 9.2

Fingerprints for Applicants Abroad

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After an applicant for U nonimmigrant status submits the application and before the conditional approval, VSC will request biometrics from applicants abroad (including derivative applicants) between the ages of 14 through 79, just like applicants in the United States. There is no fee for this service. In addition to issuing the receipt notice for the I-918 Supplement A, VSC will request fingerprints in the form of a “Request for Evidence” (RFE), together with two blank fingerprint cards. For applicants who turn 14 years old after submitting the petition, and before VSC issues the waitlist notice, VSC will catch those “age-in” applicants at the time of adjudicating the waitlist notice and issue the RFE then. Similarly, if the applicant turns 14 years old after the waitlist notice is issued and before the applicant is removed from the waitlist and the petition is approved, VSC will catch those “age-in” applicants at the time of adjudicating the approval and issue the RFE then. To save time for your clients who will “age-in” to biometrics, especially to expedite the subsequent travel process, you may wish to frontload the biometrics RFE by setting an “age-in” event in your calendar reminders for the date that a U visa applicant turns 14 years old. At that time, you can affirmatively contact VSC, most easily via the VAWA hotline at [email protected], and request the biometrics notice at that time. VSC gives the applicant 90 days to respond to the RFE. The applicants will need to arrange an appointment at a U.S. consulate abroad. The consulate will either take digital or ink fingerprints.

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More information on variations in requirements at the individual consulates is available on an online database maintained by Immigration Center for Women and Children (ICWC). Information on accessing the ICWC U Visa Zoho Database can be found in the Practice Pointer immediately before § 9.3 below.

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Some consulates require a passport for the biometrics appointment. For example, San Salvador requires a passport as proof of identity for applicants under 18 years old to attend the biometrics appointment; however, in Tegucigalpa, a national ID card will suffice. Some consulates that have required the passport for many years have recently relaxed their requirements in light of the recent FAM guidelines (see Appendix HHH) and pressure from advocates. For example, Nicaragua has required a passport at the biometrics appointment, but one advocate’s pushback and citation to the FAM allowed her client to go with a birth certificate instead as proof of identity. By contrast, some Mexican consulates require a passport and claim that the FAM guidelines (which are directed at Department of State offices) do not apply because they are USCIS offices rather than Department of State offices. A sample of the request for fingerprints of a derivative family member and a sample of the instructions for completing the fingerprint card can be found at Appendix M. There are also instructions for caseworkers to assist derivatives in obtaining fingerprints and a sample letter to clients about obtaining fingerprints at Appendix GGG. Fingerprints may be taken at the closest USCIS office, U.S. consulate, U.S. embassy, or military installation. To find an office near the applicant, look for “immigration overseas offices” on the USCIS website (www.uscis.gov). Sample letters to clients explaining the fingerprinting and photograph requirements in Spanish are found at Appendix M. Practitioners have noted that many of these offices are still unfamiliar with the fingerprint requirements or process for U nonimmigrant applicants, so you should be prepared to do some advocacy, educating, or searching for an appropriate place to fulfill this requirement. In February 2010, the U.S. Department of State issued clarifying guidance on the U nonimmigrant visa process to U.S. consulates that may help, and applicants may want to take a copy of the memorandum to the Consular office. The cable is attached at Appendix HHH.

PRACTICE POINTER: Late Response to a Biometrics RFE. If the applicant is running a few days or even a few weeks late in responding to an RFE due to problems at the consulate, you can contact the VAWA hotline at [email protected] to inform them that the fingerprints will be coming soon. Generally, the application will not be denied for failing to

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Most consulates will submit the fingerprint cards or electronic information directly to VSC, in which case the applicant only needs to respond to the RFE, noting that the fingerprints were completed. Other consulates will return the ink prints to the applicant. If time is not an issue, it is best practice for the applicant to mail the cards to her attorney in the United States, who will then mail the cards to VSC with a cover letter responding to the RFE. Otherwise, the applicant can mail the prints from abroad to VSC with the RFE on blue paper on top, and the attorney should follow up with a response to the RFE, explaining the steps the applicant took.

respond timely to this first RFE. If the applicant does not respond to this first RFE before the adjudication of the case for the waitlist, VSC will issue a second RFE for fingerprints then. If the applicant needs a little more time, VSC usually grants an additional (third) RFE at that time, upon request. If the fingerprints are still not completed, VSC will deny the application. VSC may also review a subsequently filed Motion to Reopen or Reconsider through Form I-290B, if the applicant has finally been able to take fingerprints and file the motion within 33 days of the denial. Otherwise, the applicant can re-file a new petition with VSC so long as the applicant remains eligible. Oftentimes, derivative applicants abroad first understand the reality of the possibility to travel to the United States at the time they are required to take their fingerprints. Long separated spouses, may decide at this stage that they in fact do not want to reunite with their spouse in the United States. Similarly, children with ties to schools or academic programs or grandparents may wish to remain abroad.

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One additional factor that comes up with regularity as the waitlist has increased is that “children” abroad now have their own children. While there is no U nonimmigrant option for the derivative child’s child (“derivative of a derivative”), advocates have had regular success achieving humanitarian parole for these so-called “U visa grandbaby” cases. Please see § 9.11 below to learn about this process.

PRACTICE POINTER: Joining the Immigration Center for Women and Children’s U Visa Zoho Database. Updated information about procedures and special challenges in most U.S. consular offices abroad are shared on a database called ICWC U Visa Zoho Database. Join more than 900 advocates nationwide on this database, hosted by ICWC on the Zoho platform. The beauty of this live, data-sharing resource is that all members can simultaneously edit and view the information. Find information about how to use and join the database on ICWC’s website, here: www.icwclaw.org/services-available/icwc-u-travel-and-certifier-database. We also encourage you to watch this free, 30-minute video at www.vimeo.com/117013533, especially for those who are new to Zoho Creator.

§ 9.3

Passports for Applicants Abroad

Initially, an applicant abroad need not provide a copy of her passport with the I-918 filing. An applicant abroad can file the I-918 application without possessing a passport and without needing a waiver for not having a passport. As described above, some will need a passport soon after filing the petition in order to attend the biometrics appointment. All your clients will want a valid passport (and in many countries, children need written parental permission to travel) by the time the I-918 is approved and they want to apply for their actual U visa at the consulate abroad.

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Do not delay filing the I-918 based on the lack of a passport. However, do tell your clients abroad to begin the passport application process as soon as possible so they will be able to complete the biometrics appointment (in some cases) and travel (in all cases) more smoothly in the near future. Applicants in the United States who do not have or cannot obtain a passport should request the waiver of this inadmissibility factor5 with Form I-192. Although VSC once recommended that applicants abroad submit Form I-193 to waive the passport requirement at the consulate, most consulates are not willing to waive the passport requirement. Applicants abroad without passports do not need to file anything with VSC related to not having a passport.

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Permission from both parents is usually required for the issuance of the passport for a child. In many cases, children abroad encounter challenges getting their passport when both of their parents have not and sometimes will not sign a form giving parental permission. The best practice in these cases is either to (1) consult with a family law attorney in that country to help establish full-custody for the one parent who is willing to sign for the passport, or (2) consult with employees at the country’s consulate in the U.S. city closest to your office (e.g., the Mexican consulate in San Francisco). Begin this approach as early as possible so the applicant has a chance to complete the biometrics appointment after the petition has been filed and/or enter with a passport soon after the petition has been approved. A relatively recent approach to avoiding the passport requirement at travel time is Form DS-232. See Practice Pointer below for more information. Even with permission from the U.S. government to enter the United States, without a valid passport, your client may still not be able to successfully enter the United States. The airline may not allow the passenger to board the plane and/or the Customs and Border Protection (CBP) official may not pass the applicant through the gate at the border. Further, alleged abduction issues may arise, especially in countries adhering to the Hague Convention. Refer to this website regarding abduction issues: http://travel.state.gov/abduction/country/country_3781.html.

Sandra should submit the Form I-918 Supplement A for Pilar and then should work with a family law attorney in Mexico to obtain full custody of Pilar so that Pilar can get her passport by the time her I-918 Supplement A is reviewed for a conditional approval and placement on the waitlist. VSC can approve the U-3 petition before Pilar has a passport, but the U.S. consulate in Mexico (a) may not allow Pilar to attend her biometrics                                                              5

INA § 212(a)(7)(B)(i).

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Example: Sandra has a sixteen-year-old daughter in Mexico, Pilar, who cannot get a passport. Pilar’s biological father, although not the abuser on whom the U application is based, is undocumented in the United States and refuses to sign papers for Pilar’s passport from the Mexican government. He is concerned that he will be obligated to support Pilar financially if she comes to the United States, so he is refusing to help. The Mexican consulate said there is nothing it can do to issue a passport to Pilar without her father’s signature. Pilar cannot actually leave Mexico until she gets a passport, which she can do only with her father’s consent or once she turns 18.

appointment and (b) will not issue the U visa to Pilar until she has a valid Mexican passport. There is no time limit for Pilar to enter on a U-3 visa beyond the expiration date of her I-918 Supplement A approval notice except that she must enter before Sandra adjusts status. Pilar will not technically hold U-3 status until she is admitted (i.e., enters the United States). If Pilar is unable to get a passport and enter until she is 18, and thus cannot accrue the three years of continuous presence in the United States in U status before her own status expires, she will need to request an extension of status by filing Form I-539 once she arrives to the United States. Pilar can file the Form I-539 as soon as she enters the United States.

PRACTICE POINTER: Another Strategy When a Passport Cannot Be Obtained—Form DS232 and CBP. If your client has exhausted all remedies available and is still unable to obtain a passport, you may request processing of a DS-232, Unrecognized Passport or Waiver Case. This form is used by refugees who are unable to apply for a passport from their home country where they were persecuted and have a credible fear of return. In special circumstances and with intensive advocacy, the consulate can issue the DS-232 form to approved U petitioners, pasting the U visa on the form. See Appendix EEE for a sample DS-232. In order to succeed in this special process, you will need to document all efforts made by you and the applicant to attempt to obtain a passport and/or U visa. You may need to go up the chain of command at the consulate in order to proceed with this form, and if that is unsuccessful, you can use the same four contacts provided in § 9.7 below. If the DS-232 route fails, your client might try to enter at a land border with CBP. See § 9.8 below and check the ICWC U Visa Zoho Database for details.

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§ 9.4

Travel before Approval Notice Issued

Some applicants may wish to depart the United States before the application for U nonimmigrant status is adjudicated. Applicants are allowed to leave the United States while their U application is pending; however, please warn your clients that they may have to wait years to get back into the United States once they leave. Unless they are otherwise authorized to enter the United States, they will have to stay outside the country until (a) the time their application for the waitlist is approved and they are to obtain parole from abroad, or (b) the time their application for U nonimmigrant status is approved and then they can enter with a U visa through the U.S. consulate abroad. At the time of this manual’s writing (February 2016), the initial adjudication time for someone to obtain a conditional approval of the U nonimmigrant application and be placed on the waitlist is approaching two years. Unless the person can get parole, which is not guaranteed, the person will have to wait at least two more years before she is removed from the waitlist and granted an approved U nonimmigrant petition. If your client wishes to depart the country after receiving conditional approval, please advise them that a conditional approval does not allow re-entry on a U nonimmigrant visa. USCIS is

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reaching the 10,000 U cap every year solely from applicants who had been placed on the waitlist in previous years. Unless parole is implemented agency-wide or you are able to obtain parole in your client’s case, she may not be able to return to the United States until removed from the waitlist and granted the actual approval notice. If the application rate continues at its current pace, this will likely take several years.

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Further, before the applicant decides to leave, the attorney should help the client evaluate whether the departure will affect her cooperation with law enforcement. The applicant has an ongoing duty to cooperate in the investigation or prosecution of the crime in which she was a victim. When a case is ongoing and the victim’s reasonable assistance is needed by the law enforcement agency, the victim’s departure to the home country may prohibit or hinder her from fully assisting in the criminal case. The law enforcement agency has the right to notify VSC if the victim stops cooperating after submission of the application for U nonimmigrant status. If the client has an exigent circumstance but is needed by law enforcement, you should help the client understand the severity of the risk that the application for U status could be denied, due to the lack of cooperation. Upon departure, you will need to take the following steps if your client insists upon traveling any time before the U nonimmigrant status is approved, including before the conditional approval arrives and/or while she is on the waitlist:   

Before the U nonimmigrant status is granted, some applicants may wish to travel to the United States from abroad with a tourist visa or other visa permitting travel. So long as the applicant is not committing fraud or violating the terms of the other visa and status, that prior travel should not impact the victim’s admissibility or pending U nonimmigrant petition (particularly if she holds a type of visa that allows for dual intent). If the applicant enters and leaves the United States legally, you do not need to contact VSC of the U.S. visit(s). However, similar to a postfiling departure where the applicant remains abroad (described above), be sure to notify VSC of the applicant’s U.S. entry if she does not plan to leave the United States before her application is reviewed (either for conditional approval or approval for U Nonimmigrant Status) with the following steps:

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Notify VSC of the applicant’s departure through the hotline at [email protected]; If the applicant did not yet attend the Application Support Center biometrics appointment, request an RFE for the biometrics abroad; and If new inadmissibility factors arise due to the departure, and only after the client’s departure, file an amended or new Form I-192 inadmissibility waiver by mail to VSC with a copy of any previously issued I-192 receipt notice, original signatures on the new Form I-192, and supporting documents. The most commonly triggered inadmissibility bars are the three-year or ten-year unlawful presence bars under INA § 212(a)(9)(B). See below for more details on how these new bars commonly arise for those applying for U nonimmigrant status.

  

Notify VSC of the applicant’s arrival through the hotline at [email protected]; If the applicant did not yet respond to the RFE for the biometrics abroad, request a biometrics appointment at the local Application Support Center; and If new inadmissibility factors arise, such as due to an unlawful arrival, file an amended or new Form I-192 inadmissibility waiver by mail to VSC with a copy of any previously issued I-192 receipt notice, original signatures on the new Form I-192, and supporting documents. The most commonly triggered inadmissibility factors are (1) entry without inspection under INA § 212(a)(6)(A), (2) the permanent bar for entry without inspection after immigration violation under INA § 212(a)(9)(C), and (3) willful misrepresentation of a material fact to get an immigration benefit under INA § 212(a)(6)(C)(i). § 9.5

Approval Notice for Applicants Abroad

All U nonimmigrant Notices of Actions, regardless of the location of the applicant in the United States or abroad, are now sent from VSC to the Kentucky Consular Center (KCC). If the person is abroad, the notice of action is then entered into the Petition Information Management System (PIMS) database so the consulate abroad can confirm the validity of the approval notice.6 The principal applicant or derivative family member who is outside the United States can then apply at the U.S. consulate abroad for a U visa, which can be used to travel to the United States for admission as a U nonimmigrant. See Appendix III for a sample U visa. All notices of I-918 Supplement A approvals for derivative family members are sent to the principal applicant. A sample flow chart illustrating the U visa consular process, starting at the approval, is in § 9.1 above.

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To confirm that the approval information is in the PIMS system, you can contact KCC directly at (606) 526-7513 or [email protected].

PRACTICE POINTER: Travel Warnings from the Start. It can be a good idea to discourage traveling abroad until your client is a permanent resident and address this with your client at the first meeting. Clients should know that any time they leave the country as U applicants or even as U nonimmigrant status holders, there is a chance they might not be able to get back in timely, or at all. If your client is a Spanish-speaker, show them this YouTube video presented by the Immigration Center for Women and Children entitled, “Que Significa la Aprobación de la Visa U” at www.youtube.com/watch?v=CoiT0Zbv7_A. Nevertheless, despite explaining the risks of traveling, many of our clients may have emergencies in their home countries or may otherwise decide that traveling is worth the effort and risk.

                                                             6

8 CFR §§ 214.14(c)(5)(i)(A)–(B).

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§ 9.6

Decision to Travel

In this chapter, we hope to equip you with the tools necessary to advise clients sufficiently of the risks and benefits of travel, so that the applicant can make an informed decision about whether travel is appropriate for her situation. Some advocates strongly discourage their clients in the United States with U nonimmigrant status from traveling abroad. The process can be complex, time-consuming, expensive, and frustrating—for applicants, family members, and advocates. Fortunately, some consulates have developed a process that enables participants in the process to gain a U visa with relative ease.

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Most importantly, warn your client not to travel outside the United States without consulting you first. See above Practice Pointer about giving travel warnings from the start. Make sure you explain all the risks and costs below that may apply when your client travels. Applicants Already Abroad For U nonimmigrants who are abroad when their application is approved, the decision to travel seems straightforward: The applicant wants to come to the United States as soon as possible. This is most commonly the case for derivative children of U-1 principals already in the United States. That said, whether an applicant abroad will be ready to consular process will likely depend on the applicant having the following:        

Valid passport; Desire to leave her country; Support from relevant family in home country to leave; Ability for newborn child in home country (if applicable) to accompany derivative to the United States; Ability to take a break from school or a job in home country; Permission from relevant adults to attend interview; Permission from relevant adults to travel on a plane alone; and Potential costs (described below) for applicants who travel.

In order to adjust status to a lawful permanent resident, a U nonimmigrant will need to accrue three years of continuous physical presence in U nonimmigrant status. As part of this requirement, a U nonimmigrant cannot be outside the United States for more than 90 days at one time, and no more than 180 days in total for the duration of three years. Therefore, before leaving the United States, the U nonimmigrant should do all she can to ensure that the return trip will be as secure and predictable as possible. This means knowing what to do at the U.S. consulate abroad in order to obtain a U visa for return entry to the United States. Encourage your client to save documentation of current presence in the United States as well as documentation for dates of entry and exit, so that providing this evidence at the adjustment of status stage will be easier.

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Continuous Presence for Adjustment of Status

In theory, there are three options for U nonimmigrant clients who get stuck out of the United States for over 90 days or over 180 days in the aggregate: 1. If the absence was related to the criminal investigation or prosecution, the police or district attorney (DA) can essentially excuse the absence via a new I-918 Supplement B by saying that the absence was related to the criminal investigation or prosecution and enabling the client to adjust at the regular time. 2. Even if the absence was not related to the criminal investigation or prosecution, the police or DA could essentially excuse the absence via a new I-918 Supplement B by saying that the absence was otherwise justified and enabling the client to adjust at the regular time. 3. The client could accrue three years in status after return either by extending her stay or because the trip abroad occurred during her first year of status. VSC has confirmed that the law authorizes option number one; however, option numbers two and three are only a possibility—meaning you can try using any of the options, but VSC cannot guarantee that options 2 or 3 will be accepted. The best practice is to do everything you can to ensure your client who travels returns timely; and in the case of an untimely return, exhaust all your options. Many applicants travel abroad, and through excellent coordination with their attorney, can somewhat flawlessly return to the United States within 90 days. See Appendix GGG for a stepby-step checklist on how to get a U visa client’s new I-192 approved and get the client back to the United States within 90 days. Potential Costs Involved

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U nonimmigrant status clients who travel will incur costs in order to return to the United States lawfully. Please discuss the following potential costs with your client so that she can make an informed decision about whether to travel:          

Consulate fee of $160 per applicant (no fee waiver available); Fee for new Form I-192 (fee waiver available); Legal representation to prepare the forms and documents needed and to help schedule the interview; International correspondence by mail, telephone, fax, and/or email; Fees to obtain or renew passport; Fees to obtain or renew local identity documents (i.e., El Salvador requires valid national ID); DNA testing for both principal and derivative; Medical exam (Form I-693) for applicant; Lost time at job or school in United States; Childcare alternative if minor children left in United States during travel;

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 

Travel to and from home country; and Travel to and from consulate from location in home country.

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New Inadmissibility Factors Explain to your client that any noncitizen who leaves the United States and then seeks to return is subject to the grounds of inadmissibility when seeking a visa at the consulate or reentry at the border—even if she is a valid visa holder. Therefore, she must make sure that she does not trigger any inadmissibility grounds after being granted U nonimmigrant status or will not trigger any more upon her departure (such as the three- or ten-year unlawful presence bars found at INA § 212(a)(9)(B)), discussed further below. Any criminal arrests, convictions, or immigration violations may also cause problems at the border. If any inadmissibility ground applies or will be triggered by a departing client, then she should be prepared to request an inadmissibility waiver prior to her return. See Chapter 4 for more information on inadmissibility grounds and waivers. VSC will provide a list of the grounds it waived to the consulates—but not to the applicant or attorney. The consulate may have access to the filed Forms I-918 Supplement A and I-192, but will not likely have access to the Form I-918. Whatever grounds you listed on the Form I-192, if approved, are the grounds you should consider waived by VSC; those are also the same grounds communicated to the PIMS system for the consulate. Some practitioners write “any and all inadmissibility grounds” without listing the individual grounds. However, in that case there could be a problem at the consulate if VSC missed some of the grounds that apply to your client, and you would have to submit a new Form I-192 for any missed grounds before the consulate would issue the visa. Some crimes, like a DUI or an admission to drug use in the past year, might be considered by the consulate to trigger a public health ground of inadmissibility.7 If so, the consulate may require your client to submit to a medical exam, as is common for those with DUIs submitting applications for other forms of visas. Prepare your client for this possibility. Three- and Ten-Year Unlawful Presence Bars

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INA § 212(a)(1)(A)(iii). INA § 212(a)(9)(B). 9 The provisional waiver allows certain immigrants to pre-waive the unlawful presence bars before leaving the United States to consular process, but the provisional waiver does not apply at this time for those in U nonimmigrant status. For more information, see USCIS, Provisional Unlawful Presence Waivers, available at www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presencewaivers. 8

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An applicant who will trigger the unlawful presence ground of inadmissibility upon departure should be prepared to file a Form I-192 waiver of inadmissibility with VSC as soon as she departs the United States and ask USCIS to expedite the waiver adjudication. Many U nonimmigrants in the United States without status for more than 180 days have accrued “unlawful presence.” After leaving the United States, the U nonimmigrant will trigger the three- or ten-year unlawful presence bar to re-entry,8 due to the period of unlawful presence she may have accrued before getting U nonimmigrant status. You cannot pre-waive this new inadmissibility factor.9

Submit a new Form I-192 only upon departure, at which time the unlawful presence bar has been triggered. Approval of the new Form I-192 will waive the unlawful presence inadmissibility ground, rendering the U nonimmigrant admissible and allowing the consulate to issue her a U visa abroad. See the consular processing section below on how to file the new Form I-192 and standards applied by different consulates; see also Appendix GGG for a step-by-step checklist. While VSC can expedite the Form I-192, there is no guarantee that it will. The process will add at least one additional month, if not more, to the applicant’s wait outside the United States. At the time of this manual’s writing (February 2016), some consulates in Mexico do not require proof of the additional I-192 approval at the interview. This allows clients to schedule an interview more quickly and obtain the visa, but as an advocate, you should still take all measures to get the new I-192 approved before your client returns to the United States. § 9.7

Consular Processing: Including New Inadmissibility Application

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Consular processing of U nonimmigrants is a relatively new procedure that started in 2009. Some consulates are still interviewing their first U visa applicants. Even different consulates within the same country, like those in Mexico, may process U nonimmigrants inconsistently. If you encounter problems or issues in helping an overseas U applicant or derivative with consular processing, you should first make a concerted effort to address the problem directly with the consulate. However, if after contacting the consulate there are still issues, you have a couple of options. First, Maureen Dunn at USCIS Headquarters Policy and Strategy may be able to help troubleshoot problems with the U.S. Department of State in processing U nonimmigrant visas abroad. She may be reached at [email protected]. Second, you can instead contact the USCIS Ombudsman’s office. Information on obtaining assistance from the USCIS Ombudsman’s Office can be found at www.dhs.gov/case-assistance. Make sure you do not contact both Maureen Dunn and the Ombudsman, so as not to waste either office’s limited time by duplicating the efforts of the other for your same client. Third, you may call the Department of State’s public inquiries line at (202) 663-1225. Fourth, as a final resort, you might also try contacting your Congress member’s office to see if their constituents’ services staffer can help you. Each consulate has different pre-interview steps. Some consulates maintain an updated website with useful information about their specific process. Others however, have misleading, missing, or incorrect information on their website. As of this manual’s writing (February 2016), the Department of State last updated instructions for processing U visa applications in the Foreign Affairs Manual (FAM) in January 2015. See Appendix HHH for a copy of this section of the FAM. Many consular staff are not yet trained on the process, with the result that some applicants have been stuck outside for more than 90 days before obtaining a U visa for re-entry to the United States. See Appendix FFF for a sample letter to a consular office requesting processing in such a case.

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The FAM specifies that Form I-192 inadmissibility waivers are adjudicated by VSC, and that U nonimmigrants are not required to obtain advance parole to travel abroad unless they have an adjustment of status application pending. Applicants are encouraged to take a copy of the FAM to their interview. Nevertheless, the procedure for obtaining a U visa abroad varies widely among the consular offices. The processes for applying or obtaining an interview and even the kind of visa your client ultimately obtains are often inconsistent. However, all consulates require the online DS-160 form. The best way to obtain information specific to the consulate through which your client seeks to enter is to access the ICWC U Visa Zoho Database referenced in the Practice Pointer in § 9.2 above.

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Third Party Nationals Although it may be tempting, an applicant for a U visa who is a citizen of one country cannot apply for her first U visa from another foreign country, unless that applicant is residing in the other foreign country. The first application for any visa must first be in the foreign national’s country of origin or designated consulate. Example: Mai is a Vietnamese citizen who was removed from the waitlist and granted an approval notice for her U-1 nonimmigrant petition. She is a currently a resident of Turkey, where she has been living since she filed her initial application to VSC. Because Mai is a resident of Turkey, she does not need to return to Vietnam to request her U visa. She may request the U visa from Turkey and then travel directly to the United States from Turkey. John is also a Vietnamese citizen, but he applied for his U nonimmigrant petition in the United States so he was placed in deferred action when he was placed on the waitlist. Then when John was removed from the waitlist and his U nonimmigrant petition was approved, he was admitted in U nonimmigrant status. John has family in Thailand he wants to visit. John cannot apply for his U visa from Thailand. He may visit Thailand but he must request his U visa to re-enter the United States from Vietnam. New Inadmissibility Application

     

Cover Letter, dated and mailed to VSC after departure; G-28 (copy or new original); Fee, or fee waiver request with original signature; Form I-192 with original signature, dated after departure; Declaration explaining departure and any new factors for consideration in adjudication of the waiver; and Proof of departure in the form of airline ticket, passport stamp, mail received from client abroad, or witness letters.

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If you determine there is an inadmissibility ground triggered upon your client’s last or most recent departure from the United States, immediately (after departure) file Form I-192 with original signatures to VSC. See Appendix FFF for a sample cover letter. This includes:

Additional supporting documents of good moral character or hardship should not be necessary for an approval. Once the receipt for the Form I-192 arrives—usually two to three weeks later—you should scan the receipt and email an expedited request to VSC at [email protected]. See Appendix FFF for a sample expedited email request. An officer from VSC should respond by email within 72 hours, confirm the expedite request and will usually (but not always) adjudicate the waiver within 7 to15 days of the mail request. The officer will send the applicant’s information to KCC to enter into PIMS. The consulate should then be able to access this information in PIMS by searching the applicant’s EAC#.

PRACTICE POINTER: Forms and Signatures before Travel. You should complete the forms and declaration before the applicant leaves and post-date the new I-192 to the day she is outside of the United States. Then speak to the applicant after she departs to confirm her departure and next steps. On the Form I-192, here is an example of sample language for the most common troubling questions: Question 7: Question 8: Question 9: Question 10: Question 11: Question 12:

San Francisco airport, California Airplane Upon approval of U-3 nonimmigrant petition and visa For the four years of U-3 status I have been approved as a U derivative INA § 212(a)(9)(B)

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Prepare Packet to Present at Consular Interview The ideal consular processing case allows for preparation of the packet either with the applicant in the United States before her departure or with a family member in the United States (in many cases, the principal applicant) on behalf of the applicant abroad who has not yet entered the United States (in many cases, the derivative applicant). In addition to explaining the process to the person traveling, or in the case of a principal and derivative, to both the principal and derivative, you should provide them written instructions. Instructions to clients in English and Spanish for applying for entry to the United States as U nonimmigrants are at Appendix GGG. For most interviews, your client should bring the entire packet, as well as a photograph, her passport, her original birth certificate, and receipt of payment for interview. The attorney does not need to email or mail the packet to the consulate. The applicant will present the packet herself. You should help the applicant put together a packet with the following: 1. Cover letter to the Consulate; 2. Copy of interview appointment printout or email exchanges between the attorney and the consulate official to arrange the interview (this has facilitated applicant’s entry into the 9-20

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3. 4. 5. 6. 7.

8. 9.

10.

building when the first officer does not believe that the applicant has an interview that day); Receipt for the $160 fee paid; Applicant’s original Form I-797 Notice of Action for Approval of Form I-918 or I-918 Supplement A (U-1, U-2, U-3, U-4 or U-5); Applicant’s Original Birth Certificate; Copy of Foreign Affairs Manual (FAM) guidance to Consular Officials (a copy is included at Appendix HHH); If U derivative, gather supplemental proof of relationship to principal: a. This may include documents such as a baptismal certificate, hospital record of birth, family photographs, letters, or email exchanges; b. Where possible, include the principal applicant’s original Form I-797 Notice of Action for Approval of Form I-918; c. Some countries, like Honduras and Mongolia, may require proof through DNA evidence (see below Practice Pointer); d. If related by marriage or step-relationship, include original copy of marriage certificate; If the consulate is new to the U visa process, find a redacted copy of a U visa in Appendix III, and include it in the packet as an example; If requesting a waiver of a new inadmissibility factor through a newly filed Form I-192 with VSC, you can later email the consulate a scanned copy of the applicant’s new Form I-797 Notice of Action: Approval of New Form I-192; and Receipt with bar code for DS-160. Upon completion, the form answers are submitted electronically to the DOS. Print a copy of the receipt with the barcode page for the official at the interview to be able to access an electronic copy of the form. See Practice Pointer below for more details on completing the DS-160 forms.

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For more information about DNA testing, see https://travel.state.gov/content/visas/en/immigrate/family/dna-test-procedures.html.

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PRACTICE POINTER: DNA Testing to Prove Familial Relationship. While most derivative applicants will only need to prove their relationship to the principal applicant through original birth and/or marriage certificates, consulates can, and some do, require more stringent documentation. Countries like Honduras and Mongolia, where perhaps fraud is perceived to be more rampant, may request that both the principal and derivative applicants complete DNA testing. While certain countries have more problems with immigration fraud than others and can request this proof of relationship, DNA testing should not be pro forma. Honduras accepts pictures of the family members together as an alternative to DNA testing, which along with letters or other correspondence between family members have proven effective alternative evidence to the pricey DNA testing.10

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PRACTICE POINTER: Completing the Form DS-160. Find the DS-160 at http://evisaforms.state.gov/. There are conflicting opinions as to who can complete the DS-160, because the final page asks the applicant to “sign and submit.” Often, the attorney helps the principal applicant complete the form either at the attorney’s office or by phone. Other times, the attorney helps the derivative applicant complete the form through email and phone correspondence, and ultimately in person with the principal applicant while the derivative is participating by telephone. Many consular officers encourage and allow others to assist in the form completion. However, the Department of State has an official policy that applicants themselves must electronically sign and submit the DS160. A widely accepted exception to the official policy is where the applicant is less than 16 years old or has a physical disability preventing completion of the form. Under the exception, the applicant’s parent, legal guardian, or another person with legal custody of, or a legitimate interest in, the applicant can sign on the applicant’s behalf. Here are steps to keep in mind with Form DS-160: 

  

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

  

Ask the applicant to complete the DS-160 worksheet. A sample is provided in Appendix DDD in Spanish and English. Review the answers with the applicant before beginning the form online. Applicants often skip necessary questions and this will make the online form filling more difficult. Do not use the Chrome browser at this time. Firefox and Internet Explorer work better. It can also be helpful to copy and paste the DS-160 receipt number into a word document in case you need it later to access the form again because it can be difficult to tell the difference between the number zero and the letter O. Select “three years” for length of time to live in United States, because that is how long the applicant will plan to stay in the United States in U-status before adjusting status. Although the last page requests that the applicant scan and submit a photograph, you can skip this step. The image’s size and specifications are not worth the trouble of submitting this online on the form. Instead, you should have the applicant submit a passport-sized photo at the interview. In order to proceed with the form, either (a) upload any smiley face JPEG file, which gets rejected and you can then proceed; or (b) click on review tab above, and then proceed to the signature. When asked the “purpose of the trip,” write “to live in the United States as a U nonimmigrant.” The question asking for the applicant’s immediate relatives, who already live in the United States, refers to the applicant’s nuclear family only: parents, children, spouse, and siblings. Children under 14 years old will usually not have to answer the questions about school or work. The form will automatically skip any questions not applicable to your client.

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Schedule an Interview Appointment The applicant or the attorney can schedule the interview appointment by email, telephone, or an online form—depending on the consulate. On the ICWC U Visa Zoho Database, advocates share strategies on the easiest way to schedule interviews at particular consulates. If your consulate is not on the ICWC Database, it is possible that your client is the first to request a U visa at that consulate.

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You may have trouble scheduling an appointment if your client is the first applicant for a U visa at the consulate through which she seeks to consular process and that consulate has no prior experience with U visas. Practitioners in the field are still introducing consulates to the U visa at the time of this manual’s writing (February 2016). Use one of the above contacts at USCIS Headquarters, USCIS Ombudsman’s Office, or DOS for troubleshooting if you encounter problems. Also, persistence pays. In our experience, it may be necessary to make many phone calls, send emails, and share materials explaining the U visa and detailing the guidance provided in the FAM. It is also helpful to try to identify the most appropriate person in the consulate to facilitate the process, and target that person. Be persistent in pushing the consulates to participate—the second applicant and those who follow will benefit from your persistence. For those clients who are in the United States and want to travel abroad, this advocacy should be done before your client leaves the United States, if at all possible. As you know, your client cannot be outside the United States for more than 90 days without risk of losing her eligibility to adjust status later, and it can take that long or longer for some consulates to decide whether and how to grant the U visa. The mandatory processing fee currently is $160 per applicant, with differences for reciprocity fees in a limited number of countries. No applicant can request a fee waiver for this DOS fee. Therefore, ensure that the applicant can pay the fee before beginning the process. The fee can often be paid online through the consulate’s website and/or PayPal. Sometimes, the fee can be paid abroad at a specific bank. Even if the bank is one that exists in the United States, like Citibank, neither the applicant nor the applicant’s family can make that payment from another branch of that same bank in the United States. The fee is valid for one applicant’s interview within one year of payment.

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PRACTICE POINTER: Online Appointment Scheduling. In Mexico, an online scheduling and payment system was introduced in April 2012. Guatemala followed suit shortly thereafter. The online system allows the applicant to pay online with a credit card or submit the receipt number from the bank payment abroad. Then, with the DS-160 receipt number and basic information of the applicant, the person can choose a date and time—first for the U visa interview. For those in Mexico, they will also select a second appointment for a biometrics appointment at a USCIS office that must take place before the consular interview. The applicant then chooses a local DHL office to pick up the applicant’s passport subsequent to the interview. Procedure variations for every consulate are posted on the ICWC U Visa Zoho Database.

Minor Applicants without their Parents Children traveling alone to the interview and on the airplane may need special documents. In some countries, like El Salvador, child applicants need to present a “poder especial,” which is essentially a Power of Attorney that gives permission to another adult abroad to make decisions for the adult in the United States—both at the consulate and on the airplane. Samples of a poder especial in English and Spanish are available at Appendix CCC. Further, some consulates require an adult to accompany the child to the interview, and this accompaniment may require a signed letter from both the parent and the attorney. Mexico also has exit requirements for children leaving Mexico. Encourage your clients to check with their country’s consulate in the United States about specific requirements that they or their family members may need to meet in order to travel to the United States. You may wish to limit your assistance to legal representation on the U visa, and remind your clients that they will need to make their own efforts to satisfy other travel requirements. § 9.8

Border Entry with CBP

Some practitioners have been successful in helping their clients bypass the entire consular process system to enter the United States instead from a land border between Mexico and the United States. Customs and Border Protection (CBP) has jurisdiction to allow entry at the border. Most of the few experiences that were successful at the border involved personal connections established with CBP officers.

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CBP has been willing to waive the visa requirement only in compelling circumstances—such as an age-out situation (pre-VAWA 2013 amendments) or where someone was close to the ninetyday limit outside of the United States and had to return immediately. Note that not wanting to pay the visa fee would be an insufficient reason for an exception. Practitioners have reported cases where the applicant did not have a passport and thus could not consular process, but the CBP official helped that applicant enter by reviewing and approving a Form I-193. Form I-193 costs over $500, although in some circumstances practitioners have gotten the fee waived. In another rare effort, an applicant who was rejected by DOS at the consular processing stage for a U visa (due to being in the age-out limbo pre-VAWA 2013), was determined to have entered the United States legally with CBP. He drove along the U.S.-Mexico border until he found at a tiny land border a willing and kind CBP officer who let the applicant enter the United States based solely upon his U nonimmigrant petition approval notice and his compelling reasons of reuniting with his wife and newborn child. This man has since explained the CBP entry to USCIS and has adjusted to a legal permanent resident through his Form I-485 application with VSC.

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Successful approaches included reaching out to local AILA (i.e., in Tucson for Nogales, Arizona) for a senior CBP contact to work within the one to two weeks before the crossing and doing this for clients with approved I-918 petitions (not just deferred action for those on the waitlist).

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Simply trying for lenity at the border is not recommended as either the first or second step. That said, when all efforts fail at the consulate, you could suggest that your client head cautiously to a land border for another chance.

PRACTICE POINTER: Which Land Border Is the Best? This is the most evolving and uncertain practice area in travel for those with U nonimmigrant status. The best way to stay updated is to become a member of the ICWC U Visa Zoho Database mentioned in previous Practice Pointers. Between 2011 and 2016, applicants entered through at least the following CBP ports of entry: Laredo and El Paso, Texas; San Ysidro, California; and Nogales, and an undisclosed small border town, Arizona (the exact location of the small border town in Arizona is confidential because CBP does not want to encourage this practice).

§ 9.9

Entering the United States

The applicant should receive a multiple entry U visa, and the U visa holder must enter the United States before the visa expires in four years. Also, the U visa holder needs to start accruing the three years of physical presence in the United States as a U nonimmigrant to qualify for adjustment of status and to avoid having to request an extension of status when the approved U petition ends after four years. Therefore, derivative U visa holders should attempt to enter the United States during the first year of the principal’s U status. § 9.10 Immigrant Visa Process for I-929 Applicants Abroad

The first step is to email the National Visa Center (NVC) with the following completed forms:  

G-28; DS-260; and

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A qualifying family member (QFM) who is abroad when her I-929 is approved will need to consular process through the Immigrant Visa Section. Who qualifies as a family member under the I-929 process is discussed in detail in Chapter 7. The first approval notices for QFMs were issued in 2011. Because this process is so recent, these applicants are presenting a new challenge to the consulates, and located in a division of the consulates separate from the division processing U visas. Whereas the U visas are issued in the Nonimmigrant Visa (NIV) units, the I-929-based immigrant visas are issued by the Immigrant Visa (IV) units. See Appendix III for Redacted U Visa Approval.



Do not submit the I-864. This form is no longer required and should not be requested anymore.

The second step is to schedule an interview. Contact the NVC with a follow-up, asking to “please process this case for consular processing.” Eventually, you may need to speak to the Consular official in the NIV unit to ensure that a standard operating procedure is being put in place for these new types of visas. Make sure to have a G-28 for both the petitioning U-1 client and the QFM as that will facilitate the interview scheduling. Also, include the principal U-1 applicant’s name and case number on all correspondence to both the NVC and Visa Office. Here are several points of contact that will hopefully get you to the correct person, eventually:   

NVC Hotline with live customer service: (603) 334-0700; Attorneys can submit general inquiries and updates to the NVC at [email protected]; and All specific legal questions concerning your client’s case can be sent via email to the Visa Office of the Bureau of Consular Affairs at [email protected].

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The third step is to make payment of $205 (as of February 2016) to the Immigrant Visa unit. Always check the Department of State website to see if the fee has changed. The NVC should provide instructions on how to make this payment to them. The fourth step is for your client to complete a medical exam from a qualified civil surgeon or panel physician in her country. The doctor will sign and seal the Form I-693 (medical evaluation) for the QFM to present at the interview. Make sure that the doctor who completes the medical exam is one who is appointed by the local U.S. consulate or embassy or the results and documents will be invalid. You can obtain a list of the qualified doctors from the Immigrant Visa section in that particular country. Also check the consulate website Immigrant Visa section for requirements particular to that consulate. For example, the consulate may request online registration of an address for passport delivery, a certain form of a birth certificate the applicant will need to request in advance, police certificates, substantial proof of paternity, etc. For minors under 21 years old, it is advisable to have the applicant or her parents check the particular country exit requirements to determine if parental consent will be needed in order for the child to depart the country once the immigrant visa has been approved. Check the ICWC U Visa Zoho Database for further consulate-specific updates. The fifth step is to attend the interview. The QFM abroad should go equipped with the required forms, DS-260 confirmation page, a valid passport, a payment receipt, signed and sealed medical exam, original birth certificate and/or marriage certificate to prove familial relationship, and two passport-sized, color photographs, as well as any additional documents required by the Consulate. The sixth step will involve the applicant receiving an immigrant visa to enter the United States as a lawful permanent resident. Once the applicant has received the immigrant visa, she will likely need to pay the $165 fee online (often called the “ELIS” fee). This payment is required in order for the applicant to receive the lawful permanent residency card. To pay online, visit www.uscis.gov/uscis-elis. About three to four months after the QFM arrives in the United States,

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the NVC will mail a green card (proof of lawful permanent residency) to the address on file. If the applicant does not receive this, VSC suggests that she file a Form I-90, Application to Replace Permanent Resident Card. The category you would choose in Section A of the Form I-90 would be the letter A, “My previous card has been lost, stolen, or destroyed,” and you can request a fee waiver using the Form I-912.

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§ 9.11 Humanitarian Parole for Other Family Members There are many types of “advance parole” available to immigrants who are both in the United States and abroad. In addition to the table provided at the beginning of this chapter, please see the below flowchart to gain an understanding of the entire group of parole types under the advance parole umbrella. In this section, we will be discussing the advance parole for those already abroad and whose legal basis of entry is “humanitarian”—which is also known as humanitarian parole.

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There are no provisions in the law or regulations for derivatives of U-2, U-3, U-4, or U-5 nonimmigrants (i.e., derivatives of derivatives) to obtain U nonimmigrant status or a U visa to enter the United States. Therefore, if a derivative U-3 child abroad has a child of her own, that grandchild of the principal U-1 cannot qualify for a derivative U visa. In this event, humanitarian parole is an option that advocates are now regularly obtaining for these so-called “U visa grandbabies.” Advocates are making the argument that only with entry through parole can the derivative and her child can be kept together, particularly if there is no one to care for the

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grandchild abroad or if it would be dangerous to leave the grandchild abroad due to conditions of poverty or violence (or if a domestic violence case, in the event the abuser may seek to harm the grandchild if left in the home country). Find the most current information on submitting a request for humanitarian parole on the USCIS website at www.uscis.gov/humanitarianparole. In order to apply for humanitarian parole for a derivative of a derivative, you will first need to follow the process above to obtain a U visa for the derivative client abroad, the one with the approved U-3 nonimmigrant petition. USCIS will only grant humanitarian parole to the grandchild if it has evidence, as argued, that the grandchild’s parent (the derivative) will accompany the grandchild to the United States. An application for humanitarian parole is filed on Form I-131, available at www.uscis.gov. The following documents should be submitted along with Form I-131: 1. 2. 3. 4. 5. 6.

7.

8.

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9.

10.

G-28 signed by the petitioner authorizing your representation; Form I-131: you will be checking box “f” on the form; $360 filing fee or fee waiver request (Form I-912 if filed through Texas); Documents to show that the principal and derivative applicants have had their I-918 and I-918A applications approved; Copy of the U visa issued to the derivative abroad; Birth certificates with translations showing the relationship between the principal and the derivative and between the derivative and the grandchild who is requesting humanitarian parole, including original birth certificate of the grandchild; Three declarations: from (a) U-1 Nonimmigrant (grandparent), (b) U-3 Nonimmigrant (derivative child / parent of grandchild), and (c) grandchild (if old enough to express herself) of why there is a compelling humanitarian reason for the grandchild to be issued humanitarian parole, including why there is no other way the child can lawfully enter the United States and why no one in the child’s home country, including the father if applicable, can care for the child; Detailed letters of support from grandchild’s family and friends detailing the humanitarian need; Form I-134 signed by the principal applicant in the United States or other employed family member with supporting documents (check stubs, job letter, taxes) showing that someone can support the grandchild if she were allowed to come to the United States and has an income above the federal poverty guideline limit; AND Two (2) passport-style, color photographs of the grandchild.

See Appendix FFF for a sample cover letter for this relief, and Appendix JJJ for more materials on humanitarian parole requests. There are two options for filing the application for humanitarian parole when related to a U visa petition. Traditionally, applicants have filed the Form I-131 and supporting documents to the USCIS Dallas Lockbox at PO Box 660865, Dallas, TX 75266. The filing fee is currently $360 but may be waived by concurrently submitting Form I-912 to the Dallas Lockbox. However, Form I912 may not be approved. In order to avoid the often rejected Form I-912, some advocates have

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instead successfully filed the parole application with VSC in order to allow VSC’s (more generous) office to adjudicate the fee waiver request. For VSC, a fee waiver may be requested through the Form I-912 or through a simple request in the cover letter.

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Regardless of whether it is first filed at the Dallas Lockbox or VSC, the case has traditionally been sent next to the USCIS’s Humanitarian Affairs Division in Washington, DC. The client will receive by mail a receipt and maybe also a transfer notice. As of the writing of the manual (February 2016), we are aware of a handful of cases that were instead sent for adjudication at a local (to the attorney) CBP office or remained at VSC for adjudication. We believe that USCIS is in the process of determining which office is best situated to adjudicate these cases. For applicants over age 14, USCIS should issue a biometrics notice in the form of an RFE for the applicant abroad. The receipt from USCIS in DC indicates that these applications are adjudicated within 90 to120 days of filing, which is generally true. Advocates regularly submitting this type of case have had a high success rate, but there are several more steps, as outlined below, before the applicant is able to enter the United States. Most applicants are required to complete DNA testing to prove the relationship between the grandchild and the U-3 applicant. This requirement is often presented to applicants in the form of a Request for Evidence (RFE) from the Humanitarian Affairs Division. In one case, the RFE suggested but did not require providing DNA evidence of the relationship after the applicant had provided several versions of the original birth certificate. The applicants should be prepared mentally and financially to comply with the DNA request within 90 days of the RFE. In addition to a likely request for DNA, USCIS will ask for any other documentation or explanation that was deemed insufficient in the initial filing through an RFE request. In some cases, USCIS provides a third opportunity to respond through a Notice of Intent to Deny (NOID).

If the parole application is approved, the client will receive a written notice of a conditional approval, indicating that the U.S. consulate abroad will notify the client directly about scheduling an appointment at the U.S. consulate abroad. Practitioners note that in some cases, the applicants were notified in this way; in others, the advocates had to obtain liaison assistance from the USCIS Ombudsman to ensure the appointment was scheduled. Before the consular appointment, the applicant will be notified which documentation to prepare and bring. All applicants will be required to complete a DS-160 online. See the practice pointers above on consular processing instructions for more tips on Form DS-160. Further, the applicant must have a valid passport that does not expire for at least six months. For young children, the

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If the parole application is denied, the law does not authorize an appeal, or even provide for a reason for the denial from USCIS. However, the applicant can apply for parole again. If there are significant new facts that are relevant to the application for humanitarian parole, you may wish to submit a new Form I-131 with a new fee and supporting documentation. Alternatively, you may wish to refile in the chance that a different adjudicating USCIS office will make a different adjudication.

passport may only have one-year of validity at a time. When possible, the applicants should either obtain a passport with a longer validity period or renew the passport as soon as possible. During the interview, the consular officers are mostly confirming identity of the applicant in order to prevent fraud. Entry to the United States must occur quickly. Although parole itself can be granted for up to two years, the parole document for travel purposes is issued for a very short amount of time: generally less than one month. Some applicants have missed their travel window and lost the opportunity to enter as a parolee. In these cases, the applicant should be able to request a new travel document at a subsequent consular appointment. However, the family should be prepared to make swift travel arrangements for the applicant abroad following the consular appointment. After the parolee has entered the United States, she should file Form I-765, Application for Employment Authorization, under category (c)(11) to the USCIS Chicago Lockbox at PO Box 805887, Chicago, IL 60680. Obtaining an employment authorization document (EAD), even for an infant, will help with obtaining a social security number/card in most states. Also, the EAD will serve as a useful form of U.S. government-issued ID for that child. Unlike VSC, the Chicago USCIS office requires a fee for the I-765 or a fee waiver request via the Form I-912, with accompanying proof of family income. The EAD may be issued for less than the duration of the two years of parole, and therefore, the applicant may wish to renew the card 90 to120 days before its expiration. Unless eligible for another status, the grandchild granted humanitarian parole will likely need to request renewal of this parole every two years until her mother adjusts to a lawful permanent resident and can petition for the child with a Form I-130. Most parolees will need to renew one to two times. The renewal process is almost identical to the initial process, except that the child is now located in the United States instead of abroad. The burden is on the applicant to establish the ongoing humanitarian basis of staying in the United States.

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§ 9.12 Parole for Adjustment of Status Applicants In this section, we briefly discuss the long established advance parole option for adjustment applicants. Like for nonimmigrants adjusting from other types of status, advance parole is available for those U nonimmigrants living in the United States whose legal basis of permission to enter is that a residency application is pending with USCIS. In the case of a U nonimmigrant with a pending adjustment of status application, she must be granted “advance parole” before she leaves the United States. The adjustment applicant otherwise abandons her pending application for adjustment if she departs the United States without advance parole. Your client must obtain advance parole (not U visa processing) before departing the United States if the client has an adjustment pending. Despite strong warnings, some clients leave without doing all the proper preparation work, so make sure to communicate clearly with your client about the risk of leaving in this situation without advance parole.

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Advance parole may be requested on Form I-131 and submitted to VSC. You may want to routinely include a Form I-131 and two additional passport-style, color photographs with your Ubased adjustment applications since there is no additional filing fee for the form. An approved advance parole will preserve the adjustment application that remains pending at the time of departure. If you do apply for advance parole without a specific departure in mind, you may want to write “unknown” for the date of intended departure and “30 days” (or “up to 90 days”) for the length of departure. You may also want to check the box to ask for multiple use parole. For advance parole based on pending adjustment of status applications, you do not need to have any specific reason for the travel.

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For emergency travel needs and where a request for advance parole was not filed concurrently with the adjustment application, one may also request advance parole on Form I-131 with the local USCIS office. § 9.13 Parole for Conditionally Approved Applicants on the Waitlist For those applicants on the U conditional approval waitlist who would like to enter the United States before their approval notice is issued, 8 CFR 214.14(d)(2) instructs USCIS to grant parole once the 10,000 U cap has been met: “USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list.” In this section, we discuss parole for waitlist applicants already abroad and whose legal basis is either (1) “humanitarian,” which is also known as humanitarian parole, and/or (2) “significant public interest,” which allows entry to crime victims who have helped promote public safety by cooperating with law enforcement or to crime victims’ family members to create family unity.11

Advocacy efforts led by AILA (www.aila.org) and ASISTA (www.asistahelp.org) are ongoing to urge USCIS to create a streamlined parole process for waitlisted U applicants abroad. The significant time involved and mediocre success rate (about 50%) of those applying for humanitarian or public interest parole has discouraged many from applying. The Catch-22 is that without filed applications, USCIS does not feel pressure to initiate a system or understand that the majority of waitlisted applicants abroad want to enter on parole at this time. From the small sample group of cases filed, and with no USCIS explanation for denied cases, it appears that the only approved cases are those with a strong humanitarian argument. Unfortunately, most of the                                                              11

INA § 212(d)(5)(A).

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As introduced at the beginning of this chapter, the regulations authorize entry through parole for those on the waitlist who are abroad; however, USCIS has failed to implement a streamlined process to grant parole to this group of applicants. Some advocates are pursuing parole on a caseby-case basis, following similar steps to those described above for humanitarian parole. In other words, although the regulations already specifically consider this group eligible for parole—all those U applicants abroad and placed on the waitlist—some advocates are filing case-by-case parole applications under the additional two prongs of eligibility: humanitarian and/or significant public interest.

denied cases also had extremely sympathetic humanitarian arguments as well, so there is no guarantee. If you have clients or clients’ family members abroad who have compelling reasons to apply for humanitarian parole, and you and the clients have the resources to apply for parole, there may be no downside in trying. See Appendix FFF for sample humanitarian parole materials; the application process is very similar to the U visa grandbaby process described above, but has a much lower success rate at the time of this edition (February 2016). Note that although there are technically two prongs under which to apply, humanitarian and public interest, public interest parole is typically limited to law enforcement and homeland-security matters. The goal of ongoing efforts by ASISTA and AILA is to persuade USCIS to implement 8 CFR 214.14(d)(2) by officially recognizing the parole option for those who are abroad and on the waitlist and creating a procedure for them to enter the United States. Because this parole authority is provided separately by regulation, the humanitarian or public interest prong should not need to be met. If this procedure is implemented, or for those who obtain parole independently, the applicant should be able to maintain parole or deferred action until the fiscal year arrives in which the conditionally approved applicant can be admitted in U nonimmigrant status. § 9.14 Parole for U Nonimmigrants

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At the time of this manual’s writing (February 2016), law, policy, and practice are all unclear and inconsistent regarding whether U nonimmigrants who are not yet eligible to adjust status (and therefore do not have Form I-485 applications pending for adjustment of status) should be able to request advance parole. The latest Form I-131 instructions erroneously mentioned that U nonimmigrants could apply for advance parole just like those with temporary protected status (TPS). Some advocates attempted to file I-131 petitions with VSC for U nonimmigrants, per these erroneous instructions, and the petitions were denied. When ASISTA (www.asistahelp.org) inquired about these denied advanced parole requests, USCIS confirmed that U nonimmigrants can only request advanced parole when their adjustment petitions are pending. That said, several advocates have taken the position that since the law does not prohibit advance parole for U nonimmigrants, if USCIS offices other than VSC will grant advance parole, then the U nonimmigrants should be able to travel with that permission. These practitioners wish to get their clients advance parole due to the complexity and high level of risk accompanying the U visa consular processing described above. And in fact, several local USCIS offices throughout the country have indeed granted advance parole to U nonimmigrants. Those U nonimmigrants have traveled and successfully returned to the United States. Arguably, anyone returning to the United States under advance parole enters as a parolee. This distinction could have consequences for U nonimmigrants; if they travel on advance parole, they arguably returned as parolees instead of U nonimmigrants. None of these test cases have yet to

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apply for adjustment of status, so far as we are aware. For other U nonimmigrants who have erroneously entered the United States in another status (i.e., with tourist visas or TPS advance parole), VSC has encouraged them to file a Form I-539 Change of Status application to return to U nonimmigrant status. Advocates are optimistic that if needed, U nonimmigrants who return on advance parole could similarly file Form I-539 either soon after entry to the United States or as a retroactive request at the time of filing the I-485.

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Until more is known—either by seeing what happens to U nonimmigrants who travel on advance parole and/or by receiving information from USCIS through adjudications or guidance—this type of travel remains a highly experimental option that should be undertaken cautiously.

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INDEX OF APPENDICES Chapter 1

Introduction

Appendix A

Helpful Resources

Appendix B

Excerpt of the VTVPA 2000 Congressional Findings and Purpose of the U Visa

Appendix C

VSC 2015 Stakeholder Event Notes and Practice Tips

Chapter 2

U Nonimmigrant Status Eligibility

Appendix D

U Conditional Approval/Wait List/Deferred Action Materials • Waitlist Information Flyer in English & Spanish • Waitlist Process Information • Sample Deferred Action Notice • Cover Letter for U Cap EAD

Appendix E

Outreach and Educational Materials for Community Members and Clients • Document Gathering List • Questionnaires in English & Spanish

Appendix F

Emotional Cruelty in Domestic Violence Cases • Cycle of Violence Wheels • Sample Declaration Language • Emotional Abuse Questionnaire in English & Spanish

Appendix G

U Nonimmigrant Application Materials • Checklists • Screening Sheets in English & Spanish • Interview Guide • ICWC Truth Pact in English & Spanish • Practice Pointers on Credibility

Appendix H

CA SB 674 Materials • SB 674 • CA AG 674 Memo

Appendices

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Appendices

Appendix I

Law Enforcement Agency Procedures • U.S. Department of Labor Regional U Visa Coordinators List • U.S. Department of Labor Fact Sheet • California DFEH U Certification Directive • NELP Fact Sheet: “The U Visa: A Potential Immigration Remedy for Immigrant Workers Facing Labor Abuse” • New York State DOL U Visa Certification Guidelines • NLRB U Visa Procedures • EEOC Procedures for Handling Requests for U Visa Certification • California DLSE U Visa Guidance • Illinois DOL U Visa Protocols Memorandum • Letter to CIS on Workplace Based Crimes

Appendix J

ICE Memo: “Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005” (Jan. 22, 2007)

Chapter 3

U Nonimmigrant Status Process

Appendix K

Form I-918 Materials • Cover Letters • Checklists • Model Form I-918 with Explanation for Each Question • Form I-918 Receipt Notice • Form I-918 Approval Notice and NGO Referrals • Notice of Waitlist and Deferred Action

Appendix L

Fee Waiver Materials • Fee Waiver Requests

Appendix M

Biometrics and Fingerprint Materials • Application Support Center Appointment Notice • Client Biometrics Instructions • Request for Derivative Fingerprints • Fingerprint Card Instructions • Letters in Spanish Explaining the Fingerprinting and Photo Requirements

Appendix N

Subpoenas and Motions to Quash Materials • Subpoenas Guide for Immigration Attorneys • Model Motion to Quash a Subpoena

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Form I-918 Supplement B Materials • Sample Form I-918 Supplement B • Instructions for Legal Advocates Completing the Form • Sample Supplement B Language

Appendix P

USCIS Materials and Memoranda • April 2011 USCIS Extension of Status Memorandum • December 2012 USCIS Derivative U Age Out Protection Memorandum • June 2014 Interim Memorandum Implementing VAWA 2013

Appendix Q

Law Enforcement Materials • Requests and Letters to Law Enforcement for a Form I-918 Supplement B • U Visa Q&A for Law Enforcement • Oakland Report in Support of U Visas • Sample Police Report • Corrections and Clarifications to Police Report • U Visa Law Enforcement Certification Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, December 29, 2011 • Police Report Request • NIWAP Report on U Visas as a Crime Fighting Tool • DHS U Visa Q&A for Law Enforcement

Appendix R

Declaration Materials • Outline for Applicants (English & Spanish) • Declaration Instructions • Sample U Application Declarations

Appendix S

Materials for and from Mental Health Counselors • Domestic Violence Expert Guidelines • Supporting Letters from Counselor or Case Manager • Model Psychiatrist Statement • Authorization Form to Release Records

Appendix T

Translation Certifications

Appendix U

Requests for More Evidence (RFEs) Materials • Sample RFE • Responses to RFEs regarding Robbery as a Qualifying Crime, Qualifying Victim, Any Credible Evidence • Supervisory Review Request

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Appendices

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Appendices

Appendix V

Vermont Service Center Routing Sheets

Appendix W

Cover Letter for I-539 Application • Declaration in Support of I-539 Application

Appendix X

Sample Correspondence with Clients • Closing Letter in English & Spanish • Legal Contract

Appendix Y

Employment Authorization Materials • EAD Cover Letters • Employment Authorization Document and Approval Notice

Appendix Z

California Public Benefits Materials • California All County Letters • Letter Explaining Verification of Eligibility

Appendix AA

California Student Information • California In-State Tuition, Fee Waivers, Financial Aid and Scholarships Chart • ICWC Letter to Schools Explaining U Status

Chapter 4

Inadmissibility Grounds and I-192 Waivers

Appendix BB

Memo Summarizing Common Inadmissibility Grounds

Appendix CC

FBI Materials • FBI Fingerprint Request Letter • Instructions for Obtaining an FBI Report (Spanish)

Appendix DD

Expedited Removal Materials • Form I-867AB • Expedited Removal Screening Sheet in English & Spanish • FBI Fingerprint Reports Indicating Expedited Removal • Form I-860 Notice of Expedited Removal Order

Appendix EE

Form I-192 Materials • Cover Letters • Model Form I-192 • Form I-192 Receipt Notice • Form I-192 Approval Notice • Form I-192 Waiver Declarations

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Appendix FF

Materials for Working with Clients on Form I-192 • Guide to I-192 Supporting Materials • Sample I-192 Supporting Letters

Chapter 6

Adjustment of Status Process

Appendix GG

Adjustment Checklists (English & Spanish)

Appendix HH

Red Flag Checklist

Appendix II

Form I-485 Filing Materials • Cover Letters • Declarations • Sample Form I-485 • Form G-325A • Adjustment Approval Notice • Adjustment Fee Waiver Request

Appendix JJ

I-485 Worksheet in Spanish

Appendix KK

BIA Case on U Nonimmigrant Status as an “Admission”

Appendix LL

Medical Exam Instructions for Clients (English & Spanish)

Appendix MM

Declarations in Support of I-539 Application

Appendix NN

Form I-918 Supplement B for Adjustment Applicants

Appendix OO

Letter to Law Enforcement Agency to Request Form I-918 Supplement B

Chapter 7

Assisting Family Members

Appendix PP

Form I-918 Supplement A Materials • Checklists and Intake Forms • Sample Declarations • Model Form I-918 Supplement A and I-765 with Sample Client Instructions • Cover Letters • Form I-918 Supplement A Approval Notice

Appendix QQ

Mutual Consent to Joint Representation Letter in English & Spanish

Appendices

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Appendices

Appendix RR

Form I-929 Materials • Checklist/Document List • Guide to Declarations for Petitioning Family Member in English & Spanish • Guide to Declarations for Qualifying Family Member in English & Spanish • Cover Letters

Appendix SS

Hardship Worksheets (English & Spanish)

Chapter 8

Removal Issues

Appendix TT

Sample Bond Request

Appendix UU

Prosecutorial Discretion Materials • 2014 DHS Memo • 2015 EOIR PD Guidance • 2015 OPLA PD Guidance • 2015 Practice Advisory on PD Requests

Appendix VV

Sample Motions for Continuance, Termination, Administrative Closure Substitution of Counsel, and Recalendaring

Appendix WW

Sample Stay Request and Attachments

Appendix XX

EOIR Memorandum on Continuances and Administrative Closure

Appendix YY

Step-by-Step FOIA Guide

Appendix ZZ

Sample FOIA requests • Sample USCIS Track 3 FOIA Request • Sample EOIR FOIA Request

Appendix AAA

Materials Regarding I-192 Jurisdiction • Sample EOIR Motion • NIJC Practice Advisory

Appendix BBB

ICE Stay Guidance and Sample

Chapter 9

U Travel Issues

Appendix CCC

Poder Especial / Power of Attorney (English & Spanish)

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Appendix DDD

D-S 160 Materials • DS-160 Questions in English & Spanish • Photo Instructions • Sample Confirmation Page

Appendix EEE

Sample DS-232

Appendix FFF

Correspondence to and from Government Agencies for Clients Who Are Abroad • Cover Letters • Humanitarian Parole Request

Appendix GGG

Correspondence with Clients Regarding Travel • Instructions for Consular Processing in English & Spanish • Derivative Fingerprinting Instructions for Case Workers • Step-by-Step Consular Processing Instructions in English & Spanish • Letter to Clients about Fingerprinting Abroad

Appendix HHH

Consular Processing Materials • U.S. Dept. of State Foreign Affairs Manual: 9 FAM 41.85 & Notes • Consular Processing Appointment Checklist • 2010 Dept. of State U Visa Cable

Appendix III

Redacted U Visa in Passport

Appendix JJJ

Parole Materials • Humanitarian Parole Intake for Applicant on Waitlist • Sample Humanitarian Parole Request with Fee Waiver to VSC • Sample Humanitarian Parole Request with Fee Waiver to TX • Advance Parole flowchart

Appendices

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APPENDIX A HELPFUL RESOURCES Immigration Forms, Updates, Fee Information U.S. Citizenship & Immigration Services website – www.uscis.gov The USCIS website includes many links to the latest USCIS policy and procedural information, the status of applications, current filing fee amounts, and easy access to downloadable USCIS forms. Asista website – www.asistahelp.org The Asista website includes a resource library of all of the legacy-INS and USCIS policy memoranda relevant to VAWA, U visa and T visa cases as well as many helpful sample materials, motions, declarations, etc. See more information about Asista below. Technical Assistance Immigrant Legal Resource Center (ILRC) – www.ilrc.org The ILRC provides technical assistance via email, phone or fax Monday through Thursday from 10:00am to 3:00pm through its Attorney of the Day (AOD) service. This service is free to all California IOLTA-funded legal services programs and all San Francisco Bay Area nonprofit agencies. Others may access the ILRC’s Attorney of the Day on a fee for service basis. See http://www.ilrc.org/legal-assistance for more information. Asista – www.asistahelp.org Asista’s purpose is to centralize assistance for advocates and attorneys facing complex legal problems in advocating for immigrant survivors of domestic violence and sexual assault. They provide free technical assistance and training to legal services providers that receive grant funding from the U.S. Department of Justice Office on Violence Against Women. Others may access their technical assistance by becoming a member. See http://www.asistahelp.org/en/technical_assistance/ for information on fees and benefits for members.

Appendices

National Immigration Law Center – www.nilc.org NILC staff specializes in immigration law, and the employment and public benefits rights of immigrants. Their website contains links to their policy analysis and impact litigation, publications, technical advice, and trainings information.NILC provides advice over the telephone and some training in the Los Angeles area. They have a special expertise in public benefits law and in T visas for victims of human trafficking. National Immigration Project of the National Lawyers Guild - www.nipnlg.org The “domestic violence” link on the website of the National Immigration Project of the National Lawyers Guild contains extensive materials on VAWA, SIJS and U visas,

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including links to background information, USCIS policy memoranda and strategy articles. The Project provides technical assistance, advice and resources to its members. It sponsors seminars and produces publications on a variety of subjects to develop and improve legal and advocacy skills. For information on members services, go to http://nipnlg.org/member.htm.

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Catholic Legal Immigration Network, Inc. (CLINIC) – www.cliniclegal.org CLINIC works to expand the availability of professional, low-cost immigration services by providing legal expertise, training and technical assistance to CLINIC’s affiliated agencies and constituents. Attorneys from the National Legal Center provide legal advice to more than 1,000 nonprofit, community-based immigration service providers through phone consultations, multi-day trainings, broadcast e-mails, and a variety of publications. To find out more about becoming a CLINIC-affiliated agency go to https://cliniclegal.org/affiliates. Trainings, Webinars, & Seminars Immigrant Legal Resource Center – www.ilrc.org/Immigration-Law-Trainings-Seminarsand-Webinars CLINIC – www.cliniclegal.org American Immigration Lawyers Association – www.aila.org Asista – www.asistahelp.org Listservs VAWA Updates The VAWA Updates listserve is maintained by the ASISTA Technical Assistance Project and provides ongoing updates about changes in VAWA and the new U visa provisions. To join the listserve, contact ASISTA at [email protected]. VAWA Experts The VAWA Experts listserve consists of over 300 attorneys, advocates and BIAaccredited representatives who do a significant portion of their work with VAWA and/or U visa-eligible clients. This is an interactive listserve that allows participants to post to each other’s messages. To join the listserve, contact ASISTA at [email protected].

Appendices

Appendix A-2

OTHER MANUALS & WRITTEN RESOURCES The ILRC publishes the following books about areas of immigration law relevant to family and juvenile court issues. Nonprofit agencies may receive discounted pricing for these manuals. For a more complete list of ILRC publications, and for information on the most current pricing and editions available, please call (415) 255-9499 ext. 782, or visit the ILRC website at http://www.ilrc.org/publications. Inadmissibility & Deportability is a practical and easy to use manual for beginning immigration attorneys, paralegals, non-profit community based organizations and other advocates on the grounds of inadmissibility, deportability and waivers. It is written in plain English and filled with explanatory examples, charts, tips, samples and practical suggestions. The VAWA Manual: Immigration Relief for Battered Immigrants is a comprehensive guide for advocates working with immigrant survivors of domestic violence. This manual includes in-depth information on the VAWA self-petitioning requirements and process, adjustment of status, inadmissibility and waivers, consular processing, conditional permanent residency, VAWA cancellation of removal, special immigrant juvenile status, and U visas. Hardship in Immigration Law: How to Prepare Winning Applications for Hardship Waivers and Cancellation of Removal is a uniquely useful manual, designed as a toolbox, is an essential reference tool for immigration practitioners. Practical and informative, it breaks down the elements that the BIA and federal courts have identified as relevant to claims of hardship, and demonstrates how to work with clients to elicit the information that will best present their hardship claims. Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth seeks to provide background and guidance on protections, procedures, and immigration options with a special focus on Special Immigrant Juvenile Status. It addresses specialized issues, such as working and representing child clients, immigration consequences of delinquency, and detention. The manual contains many useful items for practitioners, including sample screening intake forms, sample application forms, motions, court orders, and other papers that can be presented to the juvenile court, immigration court, and immigration authorities. A Guide for Immigration Advocates is a large and comprehensive book about immigration law, written for paralegals. It includes clearly written material discussing forms of relief that would apply to noncitizens such as family visa petitions, suspension and asylum.

Appendices

DACA: The Essential Legal Guide is a practice-oriented overview of Deferred Action for Childhood Arrivals (DACA) with 11 easy-to-read chapters and appendices that cover DACA eligibility requirements, the entire process from initial client meeting to closing of your client’s case, detailed discussion of the criminal bars to DACA, the necessary documentation to apply, best practices on how to complete all of the immigration forms and more.

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Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws. This is a comprehensive manual on the representation of non-citizens who have been accused or convicted of crimes. It discusses all the grounds of inadmissibility and deportability related to criminal offenses. Topics include drug convictions, admissions, addiction and abuse, aggravated felon status, crimes involving moral turpitude, and firearms offenses, as well as recent legislation. The manual includes an annotated chart analyzing 70 offenses under California law. It also features a comprehensive chapter on how to obtain post-conviction relief, including a discussion of legal requirements, practice tips, and sample briefs and papers, as well as a chapter on immigration holds and detainers.

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Representing Survivors of Human Trafficking: A Promising Practices Handbook contains lessons learned and practice tips in the context of a team-based approach to serving human trafficking survivors. The objective of this publication is to assist advocates for survivors of human trafficking, attorneys and non-attorneys, who are critical to the successful stabilization of those who have been victimized by human trafficking. Written primarily for immigration legal service providers and private attorneys, the comprehensive analysis of how to approach a trafficking case will also be valuable to case managers, health care providers, and law enforcement agencies.

Appendices

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Appendix B-1

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Appendix C-1

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Appendix C-2

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Appendix C-4

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Appendix C-16

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Appendix D-1

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Appendix D-2

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Appendix D-4

PROCESO de la VISA U  1er Paso: Prepara una aplicación y evidencia: Dura aproximadamente 2-6 meses • AVISO IMPORTANTE: Un beneficiario “derivativo” quien es menor de edad puede perder su elegibilidad para Estatus U si se casa. DÍGANOS si un derivativo menor quiere casarse.  2do Paso: Entrega la aplicación a la oficina de Inmigración en Vermont  3er Paso: En 2-3 semanas, Inmigración enviará un recibo de su petición. Le mandaremos una copia del recibo de cada persona por correo a su casa. Este comprobante hace que algunos solicitantes sean elegibles para solicitar unos beneficios públicos como CalWORKs.  4o Paso: En 1-2 meses, para cada persona mayor de 14 años, Inmigración enviará un aviso de la cita obligatoria para sacar sus huellas digitales. • Si se encuentre en este país, mandaremos el aviso a su casa, lo cual dirá dónde y cuándo tiene que ir a la oficina de Inmigración más cerca de su casa. • Si se encuentre en otro país, recogerá el aviso para mandar a su país, dónde el solicitante hará la cita en el Consulado Americano antes de la fecha indicada.  5o Paso: Espera más o menos UN AÑO Y MEDIO para una decisión de Inmigración. No podemos hacer nada para adelantar su aplicación durante este período. • Algunos solicitantes reciben un aviso que Inmigración necesita más pruebas, y usted tendría que entregar más documentos.  6o Paso: Lista de Espera Para la Visa U: Al decidir que usted comprobó que califica para la Visa U, inmigración le pondrá en una lista para esperar hasta que una visa U esté disponible. Si usted está dentro de los Estados Unidos, usted podrá obtener un permiso de trabajo mientras que está en la lista de espera. • Por ahora, solicitantes fuera del país no pueden obtener un permiso de viajar mientras que están en la lista de espera. Su trabajador le notificara si es posible en el futuro.  7o Paso: ¡Aprobación! Inmigración otorga nuevas Visas U cada año empezando en Octubre. Cuando una Visa U es disponible para usted, su caso será aprobado oficialmente. La Visa U le da estado legal por cuatro años. • Si se encuentre en este país, también le mandará un permiso de trabajo por 4 años • Si se encuentre en otro país, al tener su pasaporte vigente y estar listo para viajar, es el momento preparar su caso con el consulado Americano para la visa U para viajar.  8o Paso: Después de 3 años con la Visa U y viviendo en los Estados Unidos, aplicará para la residencia permanente legal (la mica /green card).

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CALIFICACIONES DE LA VISA Es victima de un delito que está en la lista en la ley de la visa U El solicitante está o estuvo o estará “cooperativo” Certificación sobre la cooperación del solicitante de la agencia encargada del caso penal El Solicitante Sufrió “Abuso Substancial”

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   

 El solicitante no comitió violaciones de las leyes penales ni inmigratorias, o califica para un Perdón de Inadmisibilidad  Los valores pesan más que las violaciones  Sufrirá mucho si no gana la visa U BENEFICIOS

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 Elegibilidad para CalWORKs y Medi-Cal  Estado legal en los EEUU por 4 años  Si la victima es mayor de 21años: estado legal a su cónyuge e hijos menor de 21 años • Si la victima es menor de 21años: a sus padres, esposo, y hermanos menor de 18 años  Autorización de trabajo  Elegibilidad para la Residencia Permanente después de 3 años con la visa U

Appendix D-6

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PROCESS for THE U VISA  1st Step: Prepare an application and evidence: It takes about between 2-6 months • IMPORTANT: A minor “derivative” beneficiary may lose eligibility for U Status if she/he gets married. TELL US if a minor wants to get married.  2nd Step: File your application with the Immigration Service office in Vermont.  3rd Step: In 2-3 weeks, the Immigration Service will send a receipt for your application. We will send a copy of each person’s receipt to your home. This receipt makes some applicants eligible to apply for some public benefits like Cal-WORKs.  4th Step: In 1-2 months, for each person older than 14 years old, the Immigration Service will send a notice to get your fingerprints taken. • If you are in the U.S., we will send this notice to your house, which will say where and when to go to the Immigration office that is closest to your home. • If you are abroad, you will pick up the notice to send to your country, where the applicant will make an appointment in the American consulate, before the date indicated.  5th Step: Wait approximately ONE YEAR AND A HALF for a decision by the Immigration Service. There is nothing that we can do to speed up this waiting period. • Some applicants receive a notice from the Immigration Service asking for more proof, and you have to send that proof.  6th Step: U Visa Wait list: After the Immigration Service decides that you proved that you should get a U Visa, it will put you on a waiting list until more U Visas are available. If you are in the United States, you can get a work authorization card to permit you to work legally while you are on the wait list. • For now, applicants abroad cannot get a travel document while they are on the U Visa Wait List. Your caseworker will notify you if this changes.  7th Step: Approval! New U Visas become available every year beginning in October. When a U Visa becomes available for you, your case will be officially approved. Your U Visa gives you immigration status for 4 years. • If you are in the U.S., you will also receive a work permit good for 4 years • If you are abroad, once you have a valid passport and you are ready to travel, this is the time to prepare your case with the American consulate for the U visa for traveling.  8th Step: After three years with the U Visa and living in the U.S., you will apply for Lawful Permanent Residency (the green card).

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REQUIREMENTS FOR THE U VISA The applicant is a victim of a crime listed in the U Visa law. The applicant was, is, or is likely to be helpful to the police or prosecution. Certification of cooperation from the law enforcement agency in charge of the criminal case The applicant suffered “substantial abuse” The applicant has not committed immigration or legal violations, OR qualifies for a waiver of inadmissibility.

Appendix D-7

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    

 The applicant’s good factors weigh more than her violations.  The applicant can show that she would suffer if she doesn’t get the U Visa. BENEFITS

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 Eligibility for CalWORKs and full-scope Medi-Cal  Legal Status in the U.S. for 4 years  If the victim is older than 21yo: legal status to the victim’s spouse and children under 21 years old • If the victim is under 21yo: their parents, spouse, and siblings under 18 years old  Work authorization  Eligibility for Permanent Residence (green card) after three years with the U Visa.

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Appendix F-2

Examples of extreme cruelty from client declarations Because he loved it when I begged him, this satisfied him. This made me feel very small. His threats scared me and made me more anxious. Because I felt small and lost control of the situation I would always give in and obey him. [Abuser] would make me beg him on my knees when he got angry and he enjoyed humiliating me. This was all part of a pattern of domination over me that continued in his sexual attacks on me, and that also permeated into the rest of our lives.

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I was always afraid [Abuser] would physically hurt me badly when he got upset because he would get so infuriated over very small things. I was afraid of what would happen if I did anything wrong. When he was angry and was driving the car I was also scared for my life because he would drive extremely violently, even after I begged him to stop. He seemed to get pleasure from making me afraid. It increased his sense of domination over me. Every day I discovered a new lie my husband had told me and I never knew if what he was telling me was true or not. I began to feel hopeless as I realized I could not trust him as much as I had thought I could. Because he brought me to the U.S., I came to realize that my life was being controlled by someone who would lie easily to get his own way. ----------------------------------------(Forced sex) made me feel so humiliated and unloved because I would tell [Abuser] that he was making me feel uncomfortable, but he did not seem to care. Even if I was exhausted, I felt obliged to say yes because I did not want him to yell and curse at me. [Abuser] was unconcerned about my health and well-being, which made me feel so degraded and worthless. [Abuser] was also extremely controlling. Whenever I would call my family in Taiwan, he would sit in the same room as me or listen to my conversation from a nearby room. When my brother Yin-Chen visited me in August 2006, [Abuser] would spy on us, even though we never talked about anything personal. I even saw him hiding behind the wall in the hallway to the living room so that he could listen to our conversation. When I asked him why he must listen to every phone call I make, he said that as my husband, he had the right to know whenever I called anyone. Before I married [Abuser], I was a self-confident and independent woman, but his constant insults made me feel more worthless each day.

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The life that I have lived with my husband has been a nightmare. Every day was a day of insults, abuse, heartbreak, and depression. His emotional abuse damaged my mental stability and destroyed my self-esteem. Even though it has been four months since I left him, I still wake up every morning feeling a lot of pain. I even wake up with headaches and I have terrible nightmares every night. My life has been an emotional roller coaster for the past year and a half. Sometimes I am very angry; sometimes I am very sad. The pain is so deep that I feel like cutting my heart with a knife and just tearing apart my body. I cry in the middle of the night and hit myself because I hate myself. I am so mentally confused. I keep asking myself, “Why has destiny treated me so

badly? Did I do anything wrong to deserve this life? Why was I so stupid to believe his sweet talk? Why did I believe my parents and his relatives and marry him?” For a while, I felt crazy because of the emotional trauma I suffered. I started forgetting simple things, like where I had parked my car. I couldn’t concentrate on anything because I was always crying, and I would start shaking every time I thought about what [Abuser] had done to me. Right now I feel hopeless and wish I could erase my memory. ----------------------------------After our wedding he started demanding that I do all the household chores, whereas before we married we both cooked and cleaned. He would make comments like “You are my property” and “I am always right”. His attitude towards me upset and humiliated me. However, I was too scared to tell him how I felt because I was afraid that I would make him angry. I was feeling isolated, frustrated and helpless. I hated the way I was feeling and needed counseling. I kept thinking that if I could get everything right, [Abuser] wouldn’t be angry. However, I could never be good enough. I realized that I spend all my energy avoiding any minor incident that could lead to an explosion. I also came to understand that [Abuser]’ periods of affectionate behavior after an explosion were not the end of the abuse, but merely a part of the abuse. I know that he is capable of physically and emotionally abusing me. When [Abuser] is angry, even when he is just walking by me, I try not to wince because I think he’s going to push me, grab my neck or punch me. [Abuser]’ abusive behavior continues to severely harm me. I cry often and am easily upset. When I am at [Abuser]’ apartment, I am too afraid to use his phone to call anyone but my mother. I am afraid that he might explode if he knows I talk to anyone else, even other family members. My sister is visiting at the moment and I refuse to leave her at the apartment alone with [Abuser]. I left her alone once while I was running a short errand, and I was overcome with panicked feelings. I felt an overwhelming guilt that [Abuser] would hurt her while I was out of the house. I live in constant fear that something will go wrong and that [Abuser] will blow up and hurt me again. I am terrified of the physical and emotional pain [Abuser] is capable of inflicting on me. -----------------------------------

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Sometimes he was very sweet, and I would remember that I loved him very much, but then he would get mean again. It was like a cycle, it would come and go, again and again. It was very confusing for me, and I realize now that I was always waiting for the “good” [Abuser], and that I would just put up with the “bad” [Abuser] in the interim. But the “good” [Abuser] became less frequent, and the “bad” [Abuser] became worse and worse. He would apologize again, and be very sweet to me, but I felt like I was going psycho. This emotional roller coaster was too much.

Appendix F-4

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----------------------------------These little blow-ups began to happen more and more. He would yell and curse at me. All the time he would call me a “fucking bitch.” He also tried to put me down whenever he had the opportunity. When there was water on the sink from my dishwashing he would call me a “stupid bitch” for leaving the counter wet. When I would hand-wash his pants he would yell at me for wasting water. When things were not the way he liked, he yelled and cursed at me, because everything in his eyes was my fault. But if I got depressed because he yelled at me, this would only make him angrier.

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[Abuser] was so unpredictable. At times, he would be so possessive and jealous and then the next moment he acted like [son] and I weren’t even there. For example, in June 2004, when I wanted to take English lessons at the adult school, [Abuser] told me that better for me to take evening class so this way he can drive me there. He said that he wanted to check out the guys there and make sure that they knew I was taken. One time when he took me, one of the male students said hello to me. [Abuser] started asking me who that person was and why was he speaking to me, and that he was going to kill that guy. And then after taking me for a few weeks, he just stopped driving me and expected me to find my own way there even though it was late at night. [Abuser] would sometimes tease me and [son] that he would take us somewhere, only to change his mind at the last minute. For example, on the 4th of July, [Abuser] told us that we would go to his work and pick up his paycheck. It was just a simple errand but [son] and I were so excited to get out of the apartment. He told us we would go after his nap. His short nap turned into him sleeping for most of the day. Finally, he was ready to go and then when we got to the car door he said that he didn’t want to go anymore and we should go back inside. [son] and I begged him to take us. [Abuser] was furious, but he finally said that we would go. He drove angry – darting in and out of traffic and driving so fast. I was so scared that we were going to die. I told him that it is customary in Russia to celebrate two birthdays. First you have your own and then you have the birthday of your saint. For most Russians, it is more important to celebrate the birthday of your saint than your own. My story angered him. I could not understand why. I was trying to tell him something about my culture. But [Abuser] didn’t say anything and just had a weird smile on his face. I did not know what this meant. I thought he was maybe mocking me because he thought my story was odd. When I asked him about it, [Abuser]’s face changed. He started yelling and cursing and then started to kick our furniture. I did not know what to do. I did not understand what could have set him off and made him so angry all of a sudden. I quickly left the apartment because at that point I did not know what he was capable of. I was so afraid that he was going to hit me. I talked with [Abuser] about not having any food to eat and he answered that in some church I can receive free food and I have to go there. I told him that I couldn’t do this because in Russia it is shameful to take charity like this when you can work. He said that then I would starve.

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[Abuser] would act like he had split personalities with me and my son. Sometimes he would seem like he cared about us and then other times he would not. He liked to show that he was the person

in control and always acted like we should feel indebted to him. For instance, one day, [Abuser] got me and told me to get [son] out of the shower so he could urinate. [son] was in the middle of showering, sopping wet, but [Abuser] didn’t care. I had to grab [son] with a towel and leave the bathroom immediately so that [Abuser] could urinate. It was like we were not even there. He was the king and wanted what he wanted at that moment. Sometimes I simply felt like I wanted to die because of so much emotional pain, but I knew that I needed to be strong for my son [son]. ----------------------------------Before we got married, we used to call each other sweet names, like “honey,” so I continued it after I moved in with him. I was very hurt and disappointed when [Abuser] told me not to do it any more around his family. He also started addressing me by the first name me whenever his family was present, and became very cold at those times. As if he wanted to show them that he did not care for me at all. Since it was such a sudden change, I asked [Abuser] for an explanation. After refusing to answer for a while, he finally told me that he was embarrassed of being too emotional around his family. Despite my pain, I accepted his response for the sake of keeping peace between us. He was generally a very nice person, but he turned out to be unpredictable with anger outbursts that started soon after I moved in. To this day I do not know what triggers these attacks. It seems to me that whenever [Abuser] was upset about his life, he directed his anger against me and blamed me for everything. Although I do not know the triggers, I learned that he frequently got mad when we were discussing anything that involved my family. [Abuser] seemed to be incredibly jealous of any time I spent with them, and any request for help to my family turned him violent. Whenever he was angry, he said that I did not meet his expectations and disappoint him as a wife and as a mother. All these frequent attacks were emotionally exhausting, as I never knew what he was mad about. I tried asking [Abuser] what exactly I needed to change, but he never gave me any response.

Appendices

Quite often I felt that [Abuser] treated me as a maid instead of a partner and that is the only reason he married me. I tried so hard to be a good mother for the girls, but whatever I did was never good enough. The girls had never experienced discipline and no one ever expected them to do simple things like cleaning up their rooms. Even though they were 11 and 13, I was still expected to do it for them. Needless to say, I never heard “thank you” for what I did for them. Worse, since I was not their biological mom, I did not feel comfortable disciplining them much. I tried discussing this with [Abuser] several times, but every time I started talking about the money, he immediately got angry and the conversation ended with no resolution. The most painful times, though, were those when [Abuser] got so angry that he ordered me out of the house. Even though I initially refused to leave under these circumstances, I gave up on my staying after hearing [Abuser] yell it over and over. Whenever I was forced to leave, I went to my daughter’s or sister’s house. Even though I had to call them to come and pick me up, they were always willing to come. My banishments began with a day or two out of the house and quickly

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became much longer. Since I did not have the key to the house, I could not come back home until [Abuser] allowed me to do so. I was thrown out of the house a couple of months ago and have been staying permanently since then with my daughter in San Leandro.

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In addition, [Abuser] was always paranoid about my fidelity and often accused me of seeing other men. Even though I tried my best to be a perfect mom and a perfect wife, and never gave [Abuser] any indication that I could be interested in anyone else, he tortured me by questioning my whereabouts, especially after he threw me out of the house. He ordered me out and then asked whom I spent the night with. To him, any unusual mark on my body was sure evidence of someone else touching me. This constant mental and emotional torture wore me out and I was clueless as to what to do to remedy the situation. I even suggested to him family counseling, but [Abuser] said that he did not need any such help. He insisted that it was my fault and unless I changed, our marriage would simply not work. But I did not know how to change. [Abuser]’s frequent insults were not only personal, they were also untrue. He often said, “I don’t know why I’m married to you, you don’t do anything.” When I reminded him that I cooked, cleaned the house, took care of the girls, etc., his response was that it was nothing. It was emotionally devastating when [Abuser] said that he regretted marrying me. In such moments I found myself inconsolable with grief and pain. I cried a lot not knowing what else I could do to improve the situation. Since I did not have any money, [Abuser] did most of the grocery shopping, which was never sufficient. However, he always waited to see if I had any money and would buy the groceries myself. I did not know [Abuser]’s financial situation, but I knew he must have had money. [Abuser] does construction, which is seasonal, and I had no idea how much he made. But I knew he had refinanced the house and had set up a bank account for his daughters. One time I pointed out to him that I did not know anything about his finances and he responded by telling me that I had never asked. But when I asked him how much money he made, he did not respond. [Abuser] got very mad whenever we discussed money, so I started avoiding the subject altogether. Even though we were married for several years, [Abuser] and I did not have a joint bank account. Since I could not work and [Abuser] did not share any money with me, I rarely had money of my own. Unlike other husbands, he never bought me anything; throughout the duration of our marriage, he bought me just one dress. I received no gift or even a card for my birthday, our anniversary, Christmas, or any other holiday. Even though I tried my best to buy him and the girls nice gifts, they never reciprocated. Not having any money of my own was humiliating at times. Once, when we were in Hawaii, I asked [Abuser] for $20. Instead of giving it to me, he gave it to his sister. I felt disrespected and embarrassed about it. I promised myself that from then on I would find some way to make money and become more independent. I tried to help my niece with every possible task and earn some money that way, but my options were quite limited and I had to rely on my relatives’ generosity to be able to pay for my necessities.

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Most of the time, I just admitted that I was at fault so he wouldn’t yell at me more.

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I became so afraid of his anger that I did whatever I could to keep him calm because it was impossible to please him.

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Were You Subjected to Extreme Cruelty? 1) How did his actions make you feel/how did they affect you?

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2) Did he do these things on purpose, knowing that they would hurt, upset, or bother you? Did he often get angry? When got angry, what did he do? Did it seem like he got angrier than a normal person would? (would he over-react?) Was he easily irritated? What did you do to keep him from getting angry? Did he insult or make fun of you? What did he say/what words did he use? __ name calling and put downs: “bitch” Stupid Ugly Worthless Unlovable ________________ ________________ ________________ ________________ How often? Did he ever do it in public? Did you feel like you had to change yourself to avoid his insults? Did he try to keep you away from your family and friends? Did he destroy your possessions? Did he threaten to divorce or leave you? If yes, how does your culture view divorce? What would have happened to you if he had divorced you? Did he ever invade your privacy? (read your mail or email, listen to phone conversations and messages, look through personal belongings? Etc.) How? How often? How did this affect your ability to lead your own life? How did this make you feel?

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Did he ever hide or destroy important papers or personal belongings?

Did he make any threats to harm you or your family? Did he threaten to turn you in to immigration? Did he threaten to or actually divulge personal secrets to others OR embarrass you in front of family and friends? Did he ever tell you he could legally hurt or control you? Did he control you economically? __ withholding money __ withholding food __ he makes you feel undeserving __ he wants to make you feel undeserving __ he wants to make you feel different or less than people around you __ he withholds things/food from your children so you’ll feel like a bad mom

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Did he make you have sex when, or in ways, you didn’t want it? (Only answer these questions if you and your case worker think you need to show more abuse to win your case – and even then, only if you want to and have a way to cope with the embarrassment and pain it may cause you.) __ at times you don’t want __ in ways you don’t want __ he knows it humiliates you __ he knows it hurts you __ he knows it makes you feel powerless and helpless __ he uses it to let you know who is in control __ he uses it to violate you __ he tells you you’re abnormal if you don’t agree to it __ he tells you it’s all you are good for __ he tells you that you have no right to complain

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Impact of violence Distress Symptoms for Adults and Teens

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Since the abuse, I have: __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __

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__ __ __ __ __ __ __ __ __ __ __ __ __ __

Intrusive images or thoughts about what happened Bad dreams about it This feeling like it’s happening again Intense anxiety without always knowing why Avoidance of activities, places or people that make me remember what happened Avoidance of activities that I used to need and/or enjoy Feeling more separate or detached from others Loss of feelings (including loving ones) and/or constant emotional numbness Worry that I or my loved ones will die young Difficulty falling or staying asleep Irritability or temper outbursts Did this happen to you before the abuse? Poor concentration This edgy feeling, like I am always watching or waiting for something bad to happen Been easily startled This feeling like things around me aren’t “real” Been unable to remember the abuse, or parts of the abuse Tense muscles Become more tired headaches, stomach aches, or just plan sick more often Begun worrying all the time about everything Panic attacks Been unable to leave the house alone Not been able to remember what just happened in the last few hours or how I got where I am Loss of appetite and/or weight loss Feeling hopeless most of the time Been angry most of the time Been sad, depressed wanted to die increased use of prescription (legal) drugs started or increased use of illegal drugs wanted to hurt someone wanted to kill someone noticed that things that used to scare me don’t scare me been not very attentive to my own safety harmed myself intentionally been more accident prone Other: ____________________________________________________________

Sleeping patterns How many hours of sleep do you get in an average night? _____ Is this more or less than before the abuse? If so, how much more or less? _____________ How long does it take you to fall asleep on an average night? ______________ Is this more than before the abuse? How much more? ________________ Do you sleep through the night? ____ Are you having nightmares? ____ How often? ____ Do you have difficulty getting out of bed? ___ Have you taken medications to help you sleep? ____ What? _____________ Eating patterns How is your appetite? ____ Has your appetite changed since the abuse? _____ Have you lost or gained weight since the abuse? ____ How much in how much time? __________ Emotional State Can you tell me how the domestic violence has affected your emotional state and/or your moods? If client can’t describe, ask the following. Are you: __ worried __ angry

__ scared __ sad

__ hopeless __ irritable

__ anxious

Do you ever hear voices in your head/mind? __ If yes, what do they say? _____________________________________________ Have you ever received help for this? __ Describe: _________________________________________________________ Have you ever thought of hurting yourself? __ Describe: _________________________________________________________ Have you ever been suicidal? __ Describe: _________________________________________________________ Have you ever received help for this? ______________ REFER HER TO THERAPY if she’s not currently in therapy.

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Proving It Were there any other people around when he was emotionally or verbally abusive to you? Did you tell anyone about his emotional or verbal abuse? Have you ever been in mental health counseling/therapy? ___ When? ________________ Counselor’s Name: _________________ May we call your counselor? ____ How can we contact her? _____________________

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Symptomas de senales de soco para adultos y adolescents Por favor marce todos lo que aplicen

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Desde lo que paso, yo, _________________________________, he:

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___ Tenido imagenes y pensamiento intrusivos de los eventos que ocurrieron ___ Tenido pesadillas ___ Sentimientos de que esto esta volviendo a ocurrir ___ Sentido fuerte zozobra sin saber que la esta causando ___ Evitado actividades, gente, lugares que me recuerdan de lo que paso ___ Evitado actividades que antes me gustaban ___ Sentido que estoy aislada y separada de los de mas ___ Perdido mis sentimientos hasta con mis familiares/ siento entumecimiento emocional constantemente ___ Sentido preocupacion de que mis queridos familiares vayan a falleser joven ___ Tenido dificultad durmiendo ___ Tenido irritabilidad o arranques de temperamento ___ Tenido dificultad cuando trato de concentrarme ___ Sentido que siempre estoy bajo vigilancia/ constantemente siento que algo malo esta apunto de pasar ___ Sobresaltado frecuentemente ___ Tenido sentimientos de que lo que esta a mi alrededor no es realidad ___ Tenido problemas de memoria en poder acordarme de lo que ocurrio ___ Tenido musculos tensos ___ Tenido mas fatiga ___ Tenido dolores de cabeza, estomago/ me he sentido mas enferma de lo normal ___ Empezado a preocupar me de todo constantemente ___ Ataces de panico ___ Tenido miedo de salir de la casa sola ___ Tenido problemas en acordarme que ocurrio hace un par de horas/ inabilidad de poder explicar como es que llegue a el sitio en el que estoy ___ Sentido desesperacion ___ Sentido enojo constantemente ___ Tenido depression ___ Tenido deseos de morir, quiza suicidio ___ Tenido disminucion o aumentacion en sexo ___ Tenido aumento en el uso de drogas de prescripcion ___ Tenido aumento en el uso de drogal ilegales o alcol ___ Sentido deseo de matar alguien ___ Notado que lo que anteriormente me asustaba ya no me asusta ___ Sido menos attentiva hacia mi seguiridad ___ Lastimado a mi misma (cortando-me, quemando-me, rasgunando-me) ___ Otros______________________________________________________

What follows are words that other battered immigrants have used to describe how their abusers made them feel. In no way are they meant to suggest that everyone feels this way, or that anyone should feel this way. We are just listing them for you to make it easier for you to express how you felt. We do not in any way believe you should mark most of all of them. Words that describe my abuser made me feel: __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __

Degraded Dehumanized Demeaned Controlled Hopeless Intimidated Dominated Destroyed Broken Ashamed Shameful Torn down Insignificant Worthless Wretched Inferior Despondent Crushed Diminished Withered Rejected Shattered Defeated

__ Miserable __ Guilty __ Condemned __ Disgraced __ Evil __ Sinful __ Wicked __ Degenerate __ Bad __ Immoral __ Cast out __ Completely alone __ Undeserving __ Unworthy __ Unwanted __ Abnormal __ Damaged __ Less than human __ Offensive __ Disposable __ Abandoned __ Desolate __ Outcast

Words that describe what I went through

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__ __ __ __ __

Ordeal Hell Anguish Irrational Insane

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__ Disowned __ Lonely __ Suicidal __ Rejected __ Despised __ Shunned __ Scorned __ Repulsive __ Demoralized __ Exhausted __ Depressed __ Lost __ Defiled __ Unclean __ Impure __ Below contempt __ Contemptible __ Doomed __ Cursed __ Shattered __ Distraught __ Overwraught __ Defeated

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Intake Appointment Checklist  Review completed Preliminary Screening Questionairre/Preguntas Iniciales to orient yourself to case  Ask client for police report(s) and set her up to watch Proceso Visa U video. (http://www.youtube.com/watch?v=su1DbreXFZo)  While the client is watching the video, copy and go over police report, noting possible problems. Complete “crime,” “substantial abuse” and “helpfulness” summaries in intake sheet with info from the report. Note what clarifications you’ll need from the client (remember you’ll be getting rich detail in declaration, next appt.)  Introduce yourself and your role (law student, paralegal, volunteer lawyer)  Remind client that everything you talk with her about is confidential and cannot be shared by us.  Remind her that USCIS will not share the information with the perpetrator and will not refer anyone for deportation even if application is denied.  Remind her that she has to be completely honest and to remember everything so we know from the start what we will work on together  Go through all of the questions on the intake form  Complete and give her the “no ICE” letter  Have her sign G-28 with supervising attorney’s name.  Have her sign authorization to consult  Give her the basic document gathering packet and go over each thing with her on the document gathering checklist. Highlight things she needs; cross out things she doesn’t.  FBI print and money order instructions  Passport instructions and fee waiver request  Declaration outline – go over each element with her and tell her you’ll work on it next time. Ask her if she’d like a model declaration to read (if yes, give her one from U Practice/Declarations/Model Declarations .)  Substantial Abuse documentation – e.g. doctor’s records, or therapist letter. If she needs a therapist letter, give her the therapist letter instructions.  Hardship/Equities questionnaire if criminal violations or substantial immigration violations  If she needs documentation for her waiver application, give her waiver packet  Schedule declaration appointment on and give her a card with date/time/your name.  Enter client name and information you have on her in database  Create hard client file and organize documents with application divider sheets. Complete Application Checklist and fasten to front.  Complete “road map” and discuss with supervising attorney. Decide which law enforcement agency will do Supplement B.  Complete Supplement B, and submit to attorney for review.

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Declaration Appointment Checklist

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 Welcome her back and make sure she’s comfortable. Let her know the appointment will be two hours. Ask her for any questions and get her the answers.  Show her the declaration video on http://www.youtube.com/watch?v=jtqKW5Kfe88)  Remind her what’s needed in declaration, and then find out with her specific details that paint a picture of what happened (then use your choice of outlines)  specific details that paint a picture of what happened:  how I got here  (if relevant) brief history of abuse  specifics of the crime  specifics of helpfulness. What exactly did you say to police, etc? What did they say? What did police do then? Was the perpetrator arrested? Jailed? Then what? Have you been contacted by police since then? The DA? If so, what happened?  substantial abuse. If history of abuse needed, include at least two detailed accounts of incidents of physical, emotional and/or mental abuse  (if complex waiver) good moral character, family & community ties, hardships if have to leave U.S.  Go over documents she has brought and make copies [ ] birth certificate [ ] Matricula Consular [ ] Passport (ask her to get it ASAP if she doesn’t have it yet) [ ] other (drivers’ license, student card, state ID card]  Identify what documents she still needs, and work on schedule for getting them  Schedule appointment to complete the application when she thinks she’ll have all the documents.

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Application and Documentation Appointment – Principal Applicant

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Before Appt: Complete U Application checklist to ID what's needed, and review with Jess or Susan At appointment:  Go over declaration with her, make any needed changes.  Print declaration and get her signature  Give her worksheet of yes/no questions from I-918 and have her watch the I-918 video and mark her form.  Confirm that she understood the questions, then  Print I-918 and get her signature  Go over I-192 with her.  Print I-192 and get her signature  Complete fee waiver application and  get her signature  Make sure all required documents listed in U Application Checklist are in her file  Birth Certificate (may need to reduce copy to 8-1/2 x 11)  Passport photo page and any pages with entry or exit stamps Crime Victim and Helpfulness documents: review what client brings and copy these useful ones: 1) Prosecution documents - Subpoenas should go in - Specific Victim Compensation approval letters are useful, but not essential - Generic letters about Victim Compensation aren't generally useful 2) Restraining Order. Do you have the strongest one granted? - Best: Restraining Order After Hearing or Criminal Restraining Order - OK: Temporary Restraining Order or Emergency Protective Order - Not useful: Application for Order; custody or other family law order Substantial Abuse documents 1) Therapist letter - Does it describe symptoms the applicant is suffering, not just applicant’s account of abuse? - Does it draw a conclusion about what those symptoms mean, e.g.: - The applicant has suffered from depression, anxiety, PTSD, other diagnosis? - The applicant has suffered from domestic violence (or sexual assault) if relevant? 2) Police Reports of other than the qualifying crime, only if needed to show previous abuse. If they show lack of helpfulness explain it well in declaration and cover letter or don't include it. 3 Shelter staff/case manager/DV program letter − Specific observations or conclusions about DV against applicant. Mere statement of participation in program or group is not very useful. 4) Medical reports or records - Priority is documents that describe the substantial injury clearly - Prescriptions or bills are OK, if they show type of injury or treatment

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Waiver Documents for applicants with criminal violations or serious immigration violations  Evidence of tax payments (1st 3 pages of each year’s 1040)  Birth certificates of U.S. citizen child(ren)  Letter from pastor, employer, child’s teacher or other community leader  Letter from acquaintance or relative with specific information about applicant’s good works.

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Wrap up:  Go over U Process flyer and point to where she is in the process, and what happens next.  Show applicant copies of USCIS notices, and explain that you’ll mail them to her when they come. This is why she has to make sure she keeps us informed about her address all the time.  Receipt (we’ll send with flyer) may make her eligible for public benefits and she can apply with it.  ASC Notice for her appointment at an Immigration Service fingerprint office. She must go at that date, time and place. Explain that after the prints get taken, her application will sit at the Immigration Service for 6 months before an officer reviews it, and WE CAN’T speed it up. She should only call if she is arrested, married, or changes her contact information.

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Senate Bill No. 674 CHAPTER 721

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An act to add Section 679.10 to the Penal Code, relating to victims of crime. [ Approved by Governor October 09, 2015. Filed with Secretary of State October 09, 2015. ]

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LEGISLATIVE COUNSEL'S DIGEST

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SB 674, De León. Victims of crime: nonimmigrant status. Existing federal law provides a Form I-918, Petition for U Nonimmigrant Status (Form I-918) to request temporary immigration benefits for a person who is a victim of certain qualifying criminal activity. Existing federal law also provides a form for certifying that a person submitting a Form I-918 is a victim of certain qualifying criminal activity and is, has been, or is likely to be helpful in the investigation or prosecution of that criminal activity (Form I-918 Supplement B). Existing state law establishes certain rights of victims and witnesses of crimes, including, among others, to be notified and to appear at all sentencing proceedings, upon request, to be notified and to appear at parole eligibility hearings, and, for certain offenses, to be notified when a convicted defendant had been ordered placed on probation. This bill would require, upon request, that a certifying official from a certifying entity certify, as specified, “victim helpfulness” on the Form I-918 Supplement B, when the requester was a victim of a qualifying criminal activity and has been helpful, is being helpful, or is likely to be helpful to the detection, investigation, or prosecution of that qualifying criminal activity. The bill would define “certifying entity,” “certifying official,” and the qualifying criminal activity for those purposes. A “certifying entity” would include, among others, local law enforcement agencies and child protective services agencies. The bill would establish for purposes of determining helpfulness, a rebuttable presumption that a victim is helpful, has been helpful, or is likely to be helpful to the detection, investigation, or prosecution of that qualifying criminal activity, if the victim has not refused or failed to provide information and assistance reasonably requested by law enforcement. The bill would require the certifying entity to process a Form I-918 Supplement B certification within 90 days of request, unless the noncitizen is in removal proceedings, in which case the certification is required to be processed within 14 days of request. The bill would require a certifying entity that receives a request for a Form I-918 Supplement B certification to report to the Legislature, on or before January 1, 2017, and annually thereafter, the number of victims that requested Form I-918 Supplement B certifications from the entity, the number of those certification forms that were signed, and the number that were denied. By imposing additional duties on local government agencies, this bill would impose a statemandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. Bill Text

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The people of the State of California do enact as follows:

SECTION 1. Section 679.10 is added to the Penal Code, to read: 679.10. (a) For purposes of this section, a “certifying entity” is any of the following: (1) A state or local law enforcement agency. (2) A prosecutor. (3) A judge. (4) Any other authority that has responsibility for the detection or investigation or prosecution of a qualifying crime or criminal activity. (5) Agencies that have criminal detection or investigative jurisdiction in their respective areas of expertise, including, but not limited to, child protective services, the Department of Fair Employment and Housing, and the Department of Industrial Relations. (b) For purposes of this section, a “certifying official” is any of the following: (1) The head of the certifying entity. (2) A person in a supervisory role who has been specifically designated by the head of the certifying entity to issue Form I-918 Supplement B certifications on behalf of that agency. (3) A judge. (4) Any other certifying official defined under Section 214.14 (a)(2) of Title 8 of the Code of Federal Regulations. (c) “Qualifying criminal activity” means qualifying criminal activity pursuant to Section 101(a)(15)(U)(iii) of the Immigration and Nationality Act which includes, but is not limited to, the following crimes: (1) Rape. (2) Torture. (3) Human trafficking. (4) Incest. (5) Domestic violence. (6) Sexual assault. (7) Abusive sexual conduct. (8) Prostitution.

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(9) Sexual exploitation. (10) Female genital mutilation. (11) Being held hostage.

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(12) Peonage. (13) Perjury.

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(14) Involuntary servitude. (15) Slavery. (16) Kidnaping. (17) Abduction. (18) Unlawful criminal restraint. (19) False imprisonment. (20) Blackmail. (21) Extortion. (22) Manslaughter. (23) Murder. (24) Felonious assault. (25) Witness tampering. (26) Obstruction of justice. (27) Fraud in foreign labor contracting. (28) Stalking. (d) A “qualifying crime” includes criminal offenses for which the nature and elements of the offenses are substantially similar to the criminal activity described in subdivision (c), and the attempt, conspiracy, or solicitation to commit any of those offenses. (e) Upon the request of the victim or victim’s family member, a certifying official from a certifying entity shall certify victim helpfulness on the Form I-918 Supplement B certification, when the victim was a victim of a qualifying criminal activity and has been helpful, is being helpful, or is likely to be helpful to the detection or investigation or prosecution of that qualifying criminal activity. (f) For purposes of determining helpfulness pursuant to subdivision (e), there is a rebuttable presumption that a victim is helpful, has been helpful, or is likely to be helpful to the detection or investigation or prosecution of that qualifying criminal activity, if the victim has not refused or failed to provide information and assistance reasonably requested by law enforcement. (g) The certifying official shall fully complete and sign the Form I-918 Supplement B certification and, regarding victim helpfulness, include specific details about the nature of the crime investigated or prosecuted and a detailed description of the victim’s helpfulness or likely helpfulness to the detection or investigation or prosecution of the criminal activity.

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(h) A certifying entity shall process an I-918 Supplement B certification within 90 days of request, unless the noncitizen is in removal proceedings, in which case the certification shall be processed within 14 days of request. (i) A current investigation, the filing of charges, and a prosecution or conviction are not required for the victim to request and obtain the Form I-918 Supplement B certification from a certifying official. (j) A certifying official may only withdraw the certification if the victim refuses to provide information and assistance when reasonably requested. (k) A certifying entity is prohibited from disclosing the immigration status of a victim or person requesting the Form I-918 Supplement B certification, except to comply with federal law or legal process, or if authorized by the victim or person requesting the Form I-918 Supplement B certification. (l) A certifying entity that receives a request for a Form I-918 Supplemental B certification shall report to the Legislature, on or before January 1, 2017, and annually thereafter, the number of victims that requested Form I-918 Form B certifications from the entity, the number of those certification forms that were signed, and the number that were denied. A report pursuant to this subdivision shall comply with Section 9795 of the Government Code. SEC. 2.

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If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

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March 06, 2016 USCIS - Vermont Service Center ATTN VAWA UNIT, Box 1000 75 Lower Welden Street Saint Albans, Vermont 05479-0001 RE:

LAST NAME, First Middle And derivative son: LAST NAME, First Middle APPLICATION FOR U VISA

Dear Sir or Madam: We are writing to submit the above mentioned application for a U visa. The applicant meets the U visa eligibility requirements as she was the victim of domestic violence. The criminal activity occurred in the United States in Marin County, California. We are enclosing form I-192 to waive the grounds of inadmissibility because she entered without inspection. Please consider all of the enclosed documentation in support of both the I-918 and the I-192.

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Enclosed in support of her U visa application please find the following: 1. Form G-28 authorizing my representation, 2. Fee waiver request in lieu of the biometrics fee, 3. Form I-918, 4. Form I-192 with fee waiver request, 5. Form I-918B, Certification form from the Marin County District Attorney’s Office dated _____, certifying that the applicant has been helpful in the investigation and/or prosecution, 6. Police report documenting the crime, 7. A copy of the relevant California Penal Code section, 8. The applicant’s declaration with translation, 9. A letter from the applicant’s therapist, 10. Copies of the applicant’s protective order(s), 11. A copy of the identity page of the applicant’s passport, 12. A copy of the applicant’s birth certificate with translation, 13. Birth certificates of the applicant’s U.S. Citizen children, 14. Section on women from the DOS human right report showing that domestic violence victims are not protected in the applicant’s home country, and 15. Letters in support of a generous policy of granting U visas and waivers from Bay Area government officials. In support of her son’s application as a derivative, we enclose the following: 16. Form G-28 authorizing my representation, 17. Fee waiver request in lieu of the biometrics fee, 18. Form I-918A,

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19. 20. 21. 22.

Form I-192 with fee waiver request, A copy of his birth certificate with translation showing the relationship, A copy of the identity page of his valid passport, and Form I-765, fee waiver request, and 2 photographs for the issuance of his (a)(20) EAD if his I-918A is approved.

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Thank you very much for your consideration and assistance. If you require anything further, please contact me.

Sincerely,

Catherine Ward-Seitz, Attorney at Law Co-Director, Immigration Department (415) 306-0414 [email protected]

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DECLARATION OF IN SUPPORT OF FEE WAIVER REQUEST

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I,_________, declare under penalty of perjury that the following is true and correct, to the best of my knowledge, recollection, and belief. I am making this statement in support of my request for a fee waiver. I need a fee waiver because I am currently a single mother and supporting my child. I have to be able to work to support my family and I do not have any extra money for the filing fee. I am not working right now. I am receiving public benefits. (or: I am working right now, but I don’t earn very much money and so I cannot afford the filing fees). INCOME:

$

EXPENSES: RENT: GROCERIES: UTILITIES: TRANSPORTATION: CHILDCARE: LAUNDRY: CLOTHES, ETC FOR CHILDREN:

$ $ $ $ $ $ $

TOTAL EXPENSES:

$

Thank you very much for your consideration of this statement. I swear that the forgoing is true and correct. Signed this 30th day of May, 2008 in San Rafael, California

_________________________

************************** I, Catherine Ward-Seitz, certify that I am a competent translator of Spanish to English and English to Spanish, and that I read the attached declaration to Ms. in Spanish and that she understood and agreed to its contents before signing. Signed this 30th day of May, 2008 in San Rafael, California

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_______________________ Catherine Ward-Seitz

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FEE WAIVER REQUEST Applicant Name _________________________

Application Form Numbers: □ I-192 □ I-765

Derivative Applicant Names: _____________________________________

____________________________________

_____________________________________

_____________________________________

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I request a fee waiver pursuant to 8 C.F.R. 103.7 for the filing fee required for the enclosed application. I am unable to pay the filing fee because of my financial and special circumstances described herein. _____ PUBLIC BENEFITS. Within the last 180 days, I or my child(ren) qualified for and received the following federal means tested public benefit(s): _____

LOW INCOME. My □ monthly □ annual income is ____________.

____

DEPENDENTS. I have ______ dependent(s) who depend on me for financial support.

_____ SPECIAL SITUATION that requires compassionate consideration. I was the victim of crime. I have submitted/am submitting evidence of this crime with my application for U Nonimmigrant Status.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Applicant signature: ________________________________ Date: _______________________

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Date Dear ______:

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I am writing to send you the notice for your appointment to have your fingerprints and photograph taken for immigration. This is completely normal and is just the next step in your U visa application. When you go to the appointment, you should bring this notice and your valid passport. At the appointment you will have to fill out a short form with your name, date of birth, and address. For the address you can put our office address if you prefer. Thank you and please call if you have any questions. If you cannot attend the appointment, please notify me immediately so that I can ask for rescheduling. Sincerely,

Fecha Estimada _________: Escribo para mandarle el aviso de su cita para hacer sus huellas y tomar su foto para inmigracion. Esto es completamente normal y es solo el proximo paso en su aplicacion para la visa U. Cuando vaya a la cita, traiga el aviso de la cita y su pasaporte vigente. Cuando vaya tiene que llenar un formulario muy corto alla con su nombre, fecha de nacimiento, y direccion. Para la direccion, puede poner la de nuestra oficina si quiere. Gracias y si tenga preguntas, puede llamarme. Si no puede asistir a la cita, avisame inmediatamente para que puedo pedir otra cita. Atentamente,

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Fecha Cliente Direccion Ciudad, Estado Re: Derivado de la visa U – Nombre – A# Estimado cliente: Nuestra oficina ha recibido una solicitud de los Servicios de Inmigración y Ciudadanía (USCIS) para que su hijo se tome las huellas digitales en su país de origen. Para cumplir con esta solicitud, por favor 1)

Envíe el paquete adjunto a su hijo tan pronto como le sea possible. Este paquete incluye dos tarjetas de huellas con instrucciones y una página azul con instrucciones para entregar al personal de la embajada; 2) Una vez que su hijo reciba el paquete de las huellas, debe ir a la Embajada de Estados Unidos en ___________ para que le tomen las huellas. Los procedimientos varían de país a país pero mande a su hijo a la Embajada de Estados Unidos con una identificación tal como el pasaporte y mostrarle a los oficiales el paquete y solicite que le tomen las huellas para la visa U. La visa U es una visa nueva asi que los oficiales de la embajada pueden no estar familiarizados pero sabrán que hacer cuando lean la página azul. 3) Una vez que su hijo se haya tomado las huellas, los oficiales de la Embajada de Estados Unidos sellarán las tarjetas de las huellas en un sobre y las enviarán a la dirección que aparece en el papel azul. USCIS U Visa Unit 75 Lower Welden Street St. Albans , VT NO DEBE ENVIAR USTED MISMO LAS HUELLAS A USCIS. Si los oficiales de la embajada no quieren hacerlo entonces pídale a algún familiar que ME envíe el paquete y yo se lo haré llegar a USCIS.

Re: Derivado de la visa U – Nombre – A#

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4)

Si los oficiales de la Embajada de Estados Unidos tienen alguna pregunta por favor dígales que pueden llamarme al 703 979 1240 o enviarme un correo electrónico a [email protected].

Appendix M-5

Es importante que todo este proceso sea completado dentro de 60 dias. Por favor llámeme si tiene alguna pregunta o si su familiar tiene problemas en tomarse las huellas digitales.

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Atentamente,

Dominique F.T. Poirier Abogada

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Fecha Cliente Dirección Ciudad, Estado, Código Postal Estimada (o) _______; Para procesar rápidamente la solicitud de su hijo (os) como derivado de la visa U necesitamos tres (3) fotos de pasaporte del tamaño especificado por los Estados Unidos. El gobierno de Estados Unidos tiene requisitos estrictos para estas fotos, los cuales son: -

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-

Las fotos deben tener un tamaño de 2 pulgadas por 2 pulgadas (5 cm por 5 cm) Las fotos deben mostrar la cara completa (vista de frente) con los ojos abiertos Las fotos deben mostrar la cabeza entera desde la punta del cabello hasta abajo de la barbilla y el tamaño de la cabeza debe medir no menos de 25 mm y no mas de 35 mm La persona debe ser fotografiada DETRAS DE UN FONDO BLANCO o CLARO! Prendas en la cabeza son aceptadas solamente si las usa diariamente por propósitos religiosos; las prendas no deben oscurecer los ojos o tapar parte de la cara.

Le sugiero enviar una copia de esta carta a su familiar en ____________ para que ellos sepan cuales son los requisitos para las fotos de pasaporte. Una vez que su hijo(os) tenga listas las 3 fotos en el tamaño correcto nos la puede enviar o también puede enviarnos las imágenes digitales por correo electrónico a [email protected] y Just Neighbors las va

Appendix M-7

imprimir en el tamaño correcto. Nuestra preferencia es que nos envíe las imágenes digitales por correo electrónico. Por favor contáctenos si tiene alguna pregunta.

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Atentamente,

Dominique Poirier Abogada

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Appendix O-9

I-918 Supplement B – Guidance for Legal Advocates Completing the Form Part 1: Same name the applicant uses on the I-918 itself (even if the applicant is the indirect victim of the crime – something you'll have to explain to the certifying official).

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Part 2: Generally, the certifying agency should be the police department if the case is not prosecuted, and the District Attorney if it is or was prosecuted. However, in jurisdictions where that department will not cooperate with U Status applications, or is so backlogged that waiting for a signature will be a substantial burden to the applicant, advocates should try another department that has the authority to detect, investigate or prosecute the qualifying crime. Many certifying departments are listed in a document shared and constantly updated. Contact Jessica Farb at [email protected] to learn how to sign up for the document. The case number is the police report number if police dept. is certifying agency; criminal complaint or docket number if prosecution is certifying agency Part 3: o #1. Mark the category of crime the applicant was victim of, for example “domestic violence” or “felonious assault.” Only one box needs to be checked, so long as the certifying official, and USCIS agree that the crime the U Status request is based on was indeed in the category indicated. o #2 Only list dates of reports of qualifying crimes with police reports included in U Application. If there are multiple reports, they can be included in the application itself to show helpfulness or substantial abuse, but only the date of the qualifying crime should be listed here. o #3. Name the State Code, for example: California Penal Code section 243(E) or Arizona Criminal Code section 13-1406. If you need to explain that the statute is in the category checked in question 1, indicate that here. You may need to continue your argument in Question 5, or in an attachment. For example, in a case of armed robbery, an advocate may check “felonious assault” in Question 1, and write in #3: California Penal Code section 211. Continued in Question $5. Then, in the narrative section at Question 5, you could write something like: “This crime is a felonious assault because armed robbery is a felony under California Penal Code section 211, and is an assault under California Penal Code section 240: “an unlawful attempt, coupled with a present ability to commit a violent injury on the person of another.” In this case, the perpetrator held a gun to Mr. Applicant’s chest in the course of a felony, meeting the definition of an attempt, with present ability to commit a violent injury if Mr. Applicant did not comply. o #4. Yes, the criminal activity occurred in US or violated US law; generally NO, the crime did not violate a Federal extraterritorial jurisdiction statute, so you don’t need to state which one. In response to where the conduct occurred, you do not need to list the street address: the city is fine.

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o

o

#5: There's not much room here, so just the facts of the crime as described in the police report. Because the certifying officer can't generally know exactly what happened, it can be useful to use one of the following approaches: 1. “Please see attached police report for facts known to the reporting officer at the time of the report. Other evidence may be included in the complete U Status application.” 2. “Bob Jones pushed Jane Brown to the ground and kicked her three times. Ms. Brown ran to a neighbor’s house and called the police. Bob Jones was found hiding in his apartment and arrested.” #6: Since most crime victims experience more abuse than is listed on the police report, it's valuable to note that this statement isn't the entire story. One approach to solving this problem is for this section to state the injuries listed in the police report, and to add: “It is our office's understanding that the applicant will submit additional evidence of substantial abuse with her application for U Nonimmigrant Status.”

Part 4: o

o

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o o

#2: This should be yes, and the form requests an attachment with a description of the helpfulness. However, the “other” section in question #5 seems like a more appropriate place for this information. See suggested language, below. #3: the wording is a little awkward, but USCIS has stated that no important consequences flow from either a yes or no answer. Many advocates mark yes unless there is an outstanding request for cooperation by law enforcement. This also requires an attachment (can be in the narrative section of Part 4, entitled “Other”), which can say: For a closed criminal investigation/prosecution: o “The criminal case is closed. Therefore the applicant's cooperation is no longer needed.” OR o “The investigation (or prosecution) is still ongoing, but we expect the applicant to continue to be cooperative.” For an open criminal investigation/prosecution: o The applicant has been and continues to be helpful. Please see description of helpfulness in Part 4, #5. o This case is still open, and we expect the applicant to be helpful as needed. #4: always no – or the applicant is not eligible for U Status. #5 This is not the place to tell a different story of cooperation unless the certifying official has already agreed to a broader explanation. On the other hand, you don't want USCIS to think this is all there is to be said about helpfulness. You can state: “According to our department's records, Ms. ---- called the police and answered their questions, but the suspect was not present when police arrived and was therefore not arrested. Other evidence of cooperation may be included in the U stats application.” o Police certifier: Restate what’s in police report, for example: “Ms. Brown said she wanted to pursue charges.” Sometimes the police report doesn’t say anything specifically about cooperation. You can write, “Ms. Brown provided officers with a description of what happened in the criminal incident.”

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o

DA certifier: Restate what’s in police report AND state what you know is applicant’s cooperation – i.e., Ms. --- has met twice with the deputy district attorney and has agreed to testify when needed; or Ms. --- was prepared to testify against ---, but he pled guilty on June 10, 2010 and was deported before trial.

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Part 5: mark “no” if the perpetrator was anyone but an official immediate relative of the victim. Usually, this is only when the perpetrator is legally married to the victim, or is the parent of a child victim. List the perpetrator’s name here and the relationship to the victim only if there is this official close relationship.

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Form I-918 Supplement B Language for LEA PD Part 3 5. Briefly describe the criminal activity being investigated and/or prosecuted the involvement of the individual named in Part 1. Attach copies of all relevant reports and findings. SUMMARY FROM REPORT. See attached police report for facts known to the officer taking the initial report. It is our understanding that the individual will provide further evidence of the crime with the U application. 6. Provide a description of any known or documented injury to the victim. Attach copies of all relevant reports and findings. SUMMARY FROM REPORT. See copy of police report for facts known to the officer taking the initial report. It is our understanding that the victim will provide further evidence of injuries with the U application. Part 4 5. Other, please specify. The victim was helpful. SUMMARY FROM REPORT. See copy of police report for facts known to the officer taking the initial report. It is our understanding that the individual will provide further evidence of helpfulness with the U application.

Form I-918 Supplement B Language for LEA DA Part 3 5. Briefly describe the criminal activity being investigated and/or prosecuted and the involvement of the individual named in Par 1. Attach copies of all relevant reports and findings. SUMMARY FROM REPORT and DA DOCUMENTS. She was the victim and reported the crime to the police. See attached police report for facts known to the officer taking the initial report. She was also helpful in the prosecution of the crime. See attached court documents for facts known to the District Attorney’s Office. It is our understanding that the individual will provide further evidence of the crime with the U application.

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6. Provide a description of any known or documented injury to the victim. Attach copies of all relevant reports and findings. SUMMARY FROM REPORT and DA DOCUMENTS. See copy of police report for facts known to the officer taking the initial report. See copy of court documents for facts known to the District Attorney’s Office. It is our understanding that the individual will provide further evidence of the crime with the U application.

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Part 4 5. Other, please specify. She was helpful. SUMMARY FROM REPORT and DA DOCUMENTS. See copy of police report for facts known to the officer taking the initial report. See copy of court documents for facts known to the District Attorney’s Office. It is our understanding that the individual will provide further evidence of helpfulness with the U application.

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Date

Via Certified First Class Mail

Agency Address Address Address

Dear Sir or Madam: Our office is assisting X in applying for U-nonimmigrant status based on her cooperation with your agency in prosecuting Y for domestic violence. Y sexually assaulted X and threatened her with a knife on DATE, and the CITY Police Department responded to the scene. I understand that your office prosecuted the crime, and that X was called as a witness in the case. U nonimmigrant status was written into law to encourage undocumented victims of violent crime to assist law enforcement in the detection and investigation of these crimes. X is eligible to apply for U nonimmigrant status because of her victimization and subsequent assistance in your prosecution of Y. On behalf of X, I am asking that you review, complete, and sign the attached Form I-918 Supplement B. Please note that this form: •

• •

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•

Does not confer any immigration benefit on X. Your signing this form only verifies that she was cooperative in the investigation and prosecution of the domestic violence of which she was a victim, which is a requirement for her to be able apply for U nonimmigrant status. Is merely your agency’s certification that X has been helpful, is being helpful, or will be helpful in the detection, investigation or prosecution of the qualifying criminal activity. Does not place you or your agency under any continuing obligation to watch over X or work with United States Citizenship and Immigration Services (“USCIS”) on her behalf. However, USCIS may in the future check with your agency to ensure that she never unreasonably refused to assist in your investigation and ask for verification that she/he did not do so. In addition, your office retains the right to revoke the certification if X unreasonably refuses to cooperate with your office in the future.

I have enclosed a blank Form I-918 Supplement B and the instructions to the form for your convenience. Should you wish to fill out the electronic version of this form, it is available at http://www.uscis.gov/files/form/i-918.pdf (pages 20-22 of the attachment). In my experience, the most commonly overlooked part of the I-918 Supplement B is Box 5 on page 3 requiring a

Appendix Q-2

statement about the helpfulness of the victim (for example, contacting law enforcement, providing a statement, etc).

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If I may be of assistance in providing information about U nonimmigrant status, the certification requirements for U nonimmigrant status versus certification requirements for the S or T visas, and/or guidance in filling out the I-918 Supplement B, please feel free to call me at PHONE NUMBER. I look forward to hearing from your office and thank you for your time and consideration of this request. Respectfully submitted,

ATTORNEY/ADVOCATE

Enclosures: 1. I-918 Supplement B Form 2. Instructions for Form I-918 Supplement B 3. Self-Addressed Stamped Envelope

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Questions and Answers about U Visas Prepared by the Non-Profit Agency, International Institute of the Bay Area, www.iibayarea.org Last updated: May 2009

Is this an official program of the Department of Homeland Security, and who can I contact there? Yes, the Department of Homeland Security U.S. Citizenship and Immigration Service (USCIS) provided a training to law enforcement officials in 2008 and plans to do more in the future. Information about the U Visa can be found at the USCIS website (www.uscis.gov) by searching for “crime victim visa.”

What is the purpose of the U visa? The U visa was created with overwhelming bipartisan Congressional approval in Section 1513 of the Victims of Trafficking and Violence Prevention Act, 8 U.S.C. § 1513 (2000). The Act states that the U visa “will strengthen the ability of law enforcement agencies to detect, investigate and prosecute cases of [crimes] while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.” 8 U.S.C. § 1513(a)(2)(A). Specifically, law enforcement can use the U visa to: o o

o

o

create trust between law enforcement and immigrants generally. undermine the pervasive sense among perpetrators that they may victimize undocumented immigrants with impunity. Broadly utilized, the U visa can substantially impact the safety of immigrant communities by removing this sense of impunity. encourage reporting and cooperation by a particular victim in a particular investigation or prosecution. Like Victim/Witness services, the U visa helps victims cope with issues that create barriers to cooperation (insecurity, fear, logistical issues). help a victim recover from victimization (like Victim/Witness services).

Does law enforcement grant the U visa? No. A Department of Homeland Security agency, USCIS, grants the U visa. Law enforcement certification, which confirms that a victim has been helpful, is being helpful, and/or likely will be helpful in the investigation or prosecution of a crime is just one component of the U visa process. A crime victim applying for a U visa must also: • • •

prove that he or she suffered “substantial abuse,” pass a fingerprint and immigration records check, and qualify for a waiver of any immigration violations, like being in the US without permission.

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Can a U visa be granted to someone in an investigation or prosecution that is already closed? Yes. The U Visa is intended for a victim who has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii)”

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I.N.A. § 101(a)(15)(U)(i)(II), 8 U.S.C. § 1101(a)(15)(U)(i)(II).) Interim Regulations that took effect October 17, 2007 specify, “The requirement was written with several verb tenses, recognizing that an alien may apply for U nonimmigrant status at different stages of the investigation or prosecution.” See 8 C.F.R. § 214. 3(a). The regulations further note, “… USCIS believes that the term “investigation or prosecution” should be in interpreted broadly …” 8 C.F.R. § 214. 3(b). An October 3, 2003 memorandum from USCIS specifies, “The fact that the criminal activity occurred a number of years prior to the current request or that the case in which the applicant is the victim is closed is not a determinative factor at this stage. The statute contemplates that a person may be eligible for U nonimmigrant status as a result of having been a victim of a crime that occurred at some point in the past.” 1

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Failure to grant a U visa to an applicant who was helpful in the investigation or prosecution of the crime against her, simply because she already cooperated, would undermine the U visa’s capacity to assist a victim with protection, recovery, and reintegration. Awarding U visas not only serves to undermine individual victims’ fear of coming forward to report crimes. When used consistently, it is also a tool of public policy that can empower immigrant communities to report crime and thereby deter potential perpetrators from taking advantage of and committing crimes against undocumented immigrants.

Can all undocumented immigrant crime victims get a U visa? No. A U visa applicant must also show that she: (1) has suffered substantial abuse; (2) was, is, or likely will be “helpful” in the investigation or prosecution of the crime, (3) is admissible to the United States, and (4) does not pose a threat to public health or safety. The victims give their fingerprints and submit to a background check as part of the U visa process. The process is administered by USCIS, which is expert in determinations of which immigrants should be admitted or denied admission to the U.S. The USCIS form notes: “[T]he certifying official will make the initial determination as to the helpfulness of the petitioner. . . . but [the certification] will not be considered conclusory [sic] evidence that the victim has met the eligibility requirements.”

What does “helpful” mean? The Law Enforcement U Visa Certification Form explains, “Being helpful means assisting law enforcement authorities in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim.” USCIS and many law enforcement agencies consistently determine that reporting a crime and answering a first responder’s question is “helpful” for purposes of a U visa certification. What happens if law enforcement certifies a victim’s helpfulness, and then (s)he refuses additional requests for cooperation? Although the U visa requires helpfulness in the investigation or prosecution of the crime, if a victim gets certification from the police department and then refuses to cooperate with the prosecution, the police and/or prosecution should inform USCIS. Note that this does not require ongoing affirmative assistance by the 1

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Memoranda issued prior to the September 17, 2007 release of U Visa Interim Regulations specified that any provision could be overturned by the Regulations. However, none of the provisions in these memoranda, including the provision relating to the timing of a crime, have been challenged or overturned in subsequent Regulations.

applicant. The Immigration form notes that there is only “an ongoing responsibility on the part of the victim to be helpful, assuming there is an ongoing need for the victim’s assistance. (emphasis added)”

Is the U visa “amnesty” for undocumented immigrants? No. By nearly unanimous vote (only one nay vote), Congress made the determination that awarding legal status to this group of immigrants improves outcomes for law enforcement. This is not amnesty – it is thoroughly considered and duly enacted public policy to enhance public safety. Congress deliberately created the U visa after determining it would be the most effective way to serve the public good. Why reward someone for helping police when (s)he should help anyway? Congress, with law enforcement input, determined that undocumented victims are afraid to report crime, and this failure to report crime hurts individual victims and public safety generally. Congress determined that awarding U visas to immigrant crime victims undermines perpetrator impunity and treats victims with the level compassion Americans have traditionally afforded crime victims.

Can immigrants get U visas fraudulently? One of the principal skills of law enforcement officials is to determine whether a crime has occurred, who is a victim, and who is a witness. The officials’ determination skills play a significant role in the U visa process. In the many criminal cases that ultimately lead to U visa cases, law enforcement officials identify and investigate corroborating evidence, including witnesses to the crime and/or physical injuries to the victim. In some cases, like certain domestic violence and sexual assault cases, the nature of the crimes will make corroboration more difficult to obtain. Specially trained domestic violence and sexual assault investigators have expertise to make these determinations.

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Some law enforcement agencies prefer that reputable nonprofit legal service agencies and/or attorneys in good standing with the state Bar Association prepare U visa applications. Reliance on trusted representatives can prevent fraud against both immigrants and the U visa process.

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Corrections and Clarifications to Police Report(s) Report # ______________________

Page # __________________

Did the victim speak fluent English? Y__ N__ If not, was there a fluent Spanish speaking officer there to take, or help take the report? Y__ N__ If not, was the victim able to make herself understood by the officer? Y__ N__ If not, how did the officer and the victim communicate (e.g., officer understood some Spanish or victim spoke some English; officer drew conclusions without attempting to communicate effectively with victim; interpretation provided by non-objective interpreter like child or abuser) _________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ If yes, how? (e.g. language access line, objective interpreter) ________________ ______________________________________________________________________________ ______________________________________________________________________________ Statement that needs to be corrected or clarified (e.g. “she said he had never hit her before” or “she said [abuser] came into the room holding a knife” or “she said she did not want him arrested.”) ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Correction or clarification of that statement: (e.g. “she didn’t say anything about whether he had hit her before” or “she said [abuser] grabbed a knife off the counter” or “she didn’t say whether she wanted him arrested or not. They asked if she wanted to press charges, and because she thought that meant she had to hire a lawyer to fight in court, she said no.”) ______________________________________________________________________________ ______________________________________________________________________________

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______________________________________________________________________________

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Addition or clarification of something that was NOT stated in the report, but which should have been in the report (e.g., the officer asked if anyone else had witnessed the incident and I told him my son had witnessed it, but my son wasn’t there at the time and the officer didn’t talk to my son or put anything about it in the report.”) ______________________________________________________________________________

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______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

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Writing Declarations with Clients A. The declaration tells how applicant’s circumstances meet the legal requirements for a benefit. B.

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OVERVIEW of Declarations used at IIBA U Visa a) Applicant 1/ Who I am and how I came to be here 2/ How I meet eligibility requirements 3/ How I qualify for waiver b) Substantial Abuse Witness (Can also be letter) 1/ Friend/Family 2/ Professional (counselor, doctor) c) Applicant’s Good Moral Character for Inadmissibility Waiver d) Applicant’s Hardships if not granted U Visa

2.

VAWA Self Petition a) Applicant 1/ Who I am and how I came to be here 2/ How I meet eligibility requirements b) Supporting Declaration of Letter 1/ Friend/Family a/ DV b/ Good faith marriage, mutual residence c/ Good Moral Character 2/ Professional (counselor, doctor) a/ DV

3.

Family Based I-601 Waiver Applications a) Applicant’s Qualifying Relative 1/ Relationship to applicant 2/ Extreme Hardship if applicant leaves US a/ If QR stays in US b/ If QR leaves US b) Supporting Declaration or Letter 1/ Friends/Family in and out of the US RE: QR’s hardships, including: a/ Difficulties living without applicant in US b/ Difficult country conditions outside US 2/ Professionals (doctors, counselors) Re: QR’s hardships, including: a/ Difficulties living without applicant in US b/ Difficulties living outside the US

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1.

C.

Declaration Basics 1.

2/

Form: a) Signed under penalty of perjury b) Relevant Requirements Sections c) Divided into short paragraphs d) Generally chronological within sections e) Must be credible 1/ Detailed and Specific a/ Should not say “He would always” b/ Use at least three very detailed, specific examples 2/ Consistent 3/ Supported by other documentation f) Must be relevant to legal requirement 1/ Focus on strongest elements a/ Battery: physical abuse and/or threats b/ Emotional cruelty – two aspects i) Abuser’s intent to dominate, control, humiliate, subjugate ii) Applicant was/felt dominated, etc. 2/ Tangential issues may dilute focus unless the declaration specifically links them to abuser’s intent to control or humiliate the applicant a/ USCIS does not generally consider as DV i) Abandonment ii) Infidelity iii) Drug use iv) Spouse is a jerk v) Inattentiveness vi) Emotional or financial stinginess v) Mean to family or friends Scope: a) How the person meets the requirements, plus a little context b) Not too long or too short 1/ U Visa: 2-5 pages 2/ VAWA: 3-6 pages 3/ I-192 Waiver: 1-2 pages 4/ I-601 Waiver: 4-8 pages

D. Working with your client on declarations about domestic violence

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Demystify the declaration process for the applicant a) Explain legal requirements and role of declaration in showing that she meets requirements b) Explain that the declaration is the most important part of the application, and it may take a few sessions to finish it. Assure her that most people can’t remember

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everything in one session, either. If she remembers something after she leaves, she should write it down to tell you the next time. c) Assure her that you want to hear the story however it comes out. Traumatic memories are stored in a different way than regular memories so she’s not necessarily going to tell a linear story. d) Treat the applicant as a full partner in getting the immigration benefit -start by letting her know why you’re asking each question. e) Figure out at the beginning how she wants you to record her story. Most clients prefer that we are facing them, either using a notepad or keyboard (keyboard is much easier later). f) Listen to everything that matters to her, but explain that an immigration case focuses on different issues than divorce or child custody, so some things that are very important (like infidelity) to her may not be needed for the declaration. 2/ Watch out for retrauma a) Alternate challenging and mundane matters b) Start and end interview with mundane matters, including: i) Completing biographic information on forms, fee waivers, etc. ii) Talking about her good moral character for VAWA or U Visa waiver requirements. iii) Brainstorming where to get additional documentation/evidence. 3/ Focus in on details when there are opportunities. Explain that detail is very important – that you want to help her paint a picture of the events for the USCIS officer who will read her declaration. If your client is on a roll telling the story, you might not want to interrupt (unless it’s an obvious tangent). It might help to write NMD next to your narrative notes so you’ll remember to come back to that incident for more detail. . a) Permit client to tell story at her own pace, but b) Ask concrete questions to get more detail 4/ Tone: a) Describing Abuse: U Visas and VAWA are for crime victims. Everything else in the application process can be empowering, but the declaration is one place to permit the tone to be more passive. 1) “He screamed at me” is more relevant to showing abuse than “we argued,” and is just as true. 2) “He pulled my hair” is more relevant to showing abuse than “we started slapping eachother and I tried to push him away and he grabbed my hair,” and just as true. b) Describing helpfulness. U visas are for people who help law enforcement, and the tone in this part of the declaration should be active, with specific examples of how helpful s/he was. “I told the police everything that had happened and told them I wanted him arrested” is more relevant as “I answered all of their questions and made a report,” and just as true.

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E. Work through each requirement of the U Visa. Go over the police report(s) with the applicant to find out whether it is accurate, and how and why it is inaccurate. The accurate parts can

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serve as the foundation for the U Visa declaration. Inaccurate parts should be addressed in the declaration. 1) Crime a/ Briefly, what led up to it. b/ Very specific details of the crime c/ Explain discrepancies in police report 2) Very Specific Details about Helpfulness a/ Calling police i) Who? ii) How? iii) What did operator say? iv) How long did it take for police to arrive? v) What happened during that time? vi) How did they come in/identify themselves? b/ Answering Questions about the Crime i) How were you and police officers able to communicate? • Was an interpreter available? How? • Spanish fluent officer • Language access line? • Family member • Friend or neighbor ii) What specific questions did they ask? • List three specific words they used. iii) What specific answers did you give? • List three specific words you used iv) Did you tell police about other incidents? What did you say? v) Did you tell police whether you wanted the perpetrator affected? • Did they ask? • What did you think they meant? • What did you say exactly? vi) Do you think the police officer(s) understood you well? vii) What do you think they missed? viii) Did police leave you with anything? • DV resource card or pamphlet? • Business card of patrol officer or detective? • Number of the police report? d/ Discrepancies about helpfulness in police report • What and why? e/ Follow Up – DV Case i) Was perpetrator arrested? ii) Was perpetrator jailed? iii) Did you get an Emergency Protective Order? iv) Did an investigator from the police department call you? If so, what happened?

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v) Did a domestic violence advocate call you? If so, what happened? vi) Was perpetrator charged with a crime? What? vii) Were you contacted the the DA’s office? viii) Did you get a Temporary Restraining Order? ix) Did you get a Restraining Order After Hearing? x) Has the perpetrator violated the RO? xi) If so, did you call the police? xii) What happened? If you let him come back, why? xiii) etc. 3) Substantial Abuse (this is not a time to be stoic) a/ Physical injury i) Intensity of pain ii) Duration of pain iii) Permanence of injury or scarring iv) Restriction of Activity b/ Emotional harm i) Humiliation ii) Completeness of control iii) Trauma checklist factors (sleeplessness, despair, etc.) 4) Good moral character and hardships for waiver application a/ Just one entry without inspection (simple waiver) i/ Equities: 1: Good parent – examples 2: Good worker – examples 3: Attend religious institution, donate, volunteer 4: Support family 5. Good neighbor 6. Good community member (volunteering, etc) 7. Helped law enforcement and would do it again ii/ Hardships to self and family if she has to leave US 1. If she has to leave kids in US 2. If she has to take kids with her out of US 3. Fear of perpetrator 4. Fear of crime/no protection 5. Living conditions 6. Education 7. Ability to support self and family b/ Complex waivers for more than one EWI. Have your client complete the hardships and equities work sheets, then incorporate information into declaration. OR use worksheets as interview guides and write declaration with client. 5)

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Special Issues in Non-DV U Visa Declarations a) Sexual Assault 1) Crime, Cooperation, Substantial Abuse: Ideally, sexual assault counselor will work on the declaration with the applicant or write a supporting letter

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with details so that the applicant only needs to state in the declaration: I was the victim of a violent sexual assault on 00/11/2222 in Oakland, California. I suffered extreme mental anguish and am still seeing a counselor to learn to cope. If this isn’t possible, we need to strategize about how to approach the declaration, depending on the trauma involved and resources available to the client. 2) Equities and Hardships for waiver. Same as for DV. b) Felonious Assault 1) Describe crime the same as in a DV case. Paint a picture of what happened, including enough facts to put it in context. 2) Cooperation. Just because we can get a Supplement B doesn’t guarantee that USCIS will grant a U visa if cooperation isn’t adequately explained. a/ If perpetrator was identified, describe in detail: i) how client identified perpetrator for police /ii) whether and how client helped police find/arrest perpetrator iii) whether and how client contacted investigators after the initial report. iii) whether and how client helped investigation/prosecution b/ Where perpetrator not identified: harder case i) details about what the client told the police, e.g. about: 1: gang activity in the area 2: threats against her and/or friends/family 3: crime in the area 4: own (non)involvement in gang, group, etc. ii) very specific details about what client did to try to identify perpetrator. Not: I asked everyone I knew to call the police if they knew anything. Instead: On February 27, I talked to Mauricio to see what he could remember about the shooting. He said he saw a black car drive away, but was too occupied with calling the ambulance that he didn’t think to get the license plate. On February 28, John and Phillip tole me that they’d heard that other people had been attacked by a group of teenagers like I was. I asked if they would call the police to report that, and John said he wouldn’t, but Phillip said maybe. I gave him the number of Sergeant Brown and urged him to call. Or; . “I knocked on the doors of six apartments in my building and talked with four people, including James, Julia, Helen and John. James, Julia and Helen said they hadn’t seen anything, but John told me that he’s seen a green car in the parking lot before I got shot. I called Detective Jones and told him what John had told me 3) Substantial abuse: normally in a non-DV crime there won’t be a history of abuse to report. Most of these cases involve substantial physical injury, and we have police reports, so there’s not a huge need to document a client’s suffering. If there is, use the Adult Trauma Factor worksheet as a guide to describe the impact of the crime, including how the client continues to be fearful and how his life has been adversely affected. 4) Equities and Hardships for Waiver: Same as DV

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THE DECLARATION FOR THE U VISA APPLICATION: Your personal declaration is a very important part of the application for the U visa. The government wants to hear in your own words, (1) that you have been a victim of a crime, (2) that you have suffered a lot because of the crime, and (3) that you have cooperated with the police or the prosecutor to catch your abuser. When you write your declaration, you should include details. The declaration is your opportunity to tell your story and so it should be complete and detailed. You should tell what happened, when it happened, who did it, and how it made you feel. The declaration should include the history of the crime that you suffered including how the police were called and how you helped the police or prosecutor. This is a guide to what you might want to include in your declaration:

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First Paragraph: • Your name and country of origin • When and where you entered the United States. • If your abuser was your boyfriend or husband, describe briefly how you met him and when you began to go out or get married. Following Paragraphs: • When the abuse began and how long it lasted. • What did your partner do to you: for example, did he hit you, choke you, insult you, threaten you, etc. • Describe 2 or 3 particularly bad incidents that you remember (what happened, were you injured, and how did it make you feel). • For the crime that you reported to the police: o Who hurt you, what happened, were you injured, and how did it make you feel. o How did you help the police, did you call 911, did you talk to the police, did you go to court or talk to the prosecutor? • How are you still affected by the abuse: o Do you have injuries or scars? o Do you have anxiety or depression? o Are you taking any medication as a result? Last Paragraph: • Include a final paragraph explaining why you want to stay in the United States. Say thank you to the immigration oficial for reading and considering your declaration. Good luck with your declaration!!

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Practice Tip: The Applicant’s Declaration Advocates have varying approaches to the applicant’s declaration. The most important aspects of the declaration are: • It is the applicant’s own story in her own words – not in the words of a therapist or victim advocate. • It addresses each of the requirements for U Nonimmigrant Status: o The applicant was a victim of a qualifying crime o The applicant was/is helpful in the investigation or prosecution o The applicant suffered substantial abuse o (Some applicants also include a paragraph describing how they are eligible for a public interest waiver of inadmissibility factors) • It does not include information that contradicts other evidence submitted in the application for U Nonimmigrant status. Some advocates ask the applicant to write a description of what happened, and then translate the statement. Others give the applicant an outline (included in Appendix X) describing the kind of information that is needed, and similarly translate the applicant’s own statement. Other advocates meet with the applicant and type up the statement for her (legal volunteer declaration instructions are included in Appendix X). (Note that USCIS does not require a certification of translation from case workers who simultaneously translate and record the applicant’s story.)

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An advocate’s decision about how, and how much to help an applicant prepare her declaration will depend on many factors, including availability of support services for clients who may be upset by writing their own declarations; translation resources, case worker availability at the time of application and/or in the event of a request for additional evidence. Advocates may find the following two approaches instructive: • One case worker at Canal Alliance in San Rafael worked with hundreds of clients to submit winning U Visa applications, using the “less is more” approach of translating declarations the clients themselves drafted. In the handful of cases in which the Immigration Service required additional information in the declaration, a case worker was available to work with clients to augment the original declaration. • The International Institute of the Bay Area’s U Visa applications are prepared by legal volunteers. It therefore has the resources to assign volunteer case workers to transcribe and simultaneously translate the applicant’s declaration. IIBA legal staff then review the declarations to be sure they are sufficiently clear and complete before they are submitted. Conversely, IIBA cannot count on availability of staff or volunteers to help applicants improve their declarations if USCIS asks later for more information. IIBA recognizes that the declarations it submits may take more time and resources than are necessary in any given case.

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LA DECLARACION PARA LA VISA U La declaración personal de Ud. es una parte muy importante de la aplicación para la Visa U. El gobierno quiere oír, en las propias palabras de Ud., (1) que Ud. es victima de un crimen, (2) que ha sufrido mucho como resultado de ese crimen, y (3) que ha cooperado con la policía o el fiscal para agarrar a su agresor. Cuando Ud. escribe su declaración, debe usar mucho detalle. La declaración es su única oportunidad para contar su historia, así que debe ser completo y detallado. Debe describir que pasó, cuando pasó, quien lo hizo, y como le hizo sentir. La declaración debe contar la historia entera del crimen que Ud. sufrió, incluyendo como Ud. llamó al 911 y ayudó a la policía o al fiscal.

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Aquí tiene un ejemplo de la forma que debe tener una declaración para la Visa U. Ud. puede usar ésto como guía cuando escriba su propia declaración: Primer Párrafo • Su nombre y su país de origen • Cuando y donde Ud. entró a EEUU (no hace falta decir que entró sin papeles) • Si su agresor era su novio o su marido, describe en 1 o 2 frases como conoció a él y cuando se casaron / empezaron a salir juntos.

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Siguientes Párrafos • Para las victimas de violencia domestica: o Si Ud. es victima de violencia domestica y ha habido muchos abusos en su relación, describe en 2-4 párrafos:  Cuando empezó el abuso en la relación y cuanto tiempo duró?  Que hacía su pareja a Ud.? Por ejemplo, le pegaba a Ud., le aventaba, le insultaba, le amenazaba…?  Describe 2 o 3 incidentes de abusos especialmente malos que Ud. recuerda • Que pasó exactamente? • Ud. estaba herida? • Como le hizo sentir? • Para todo el mundo (incluyendo a las victimas de violencia domestica): o Describe en detalle en 2-4 párrafos:  El crimen (tiene de haber un reporte de la policía para este crimen!) • Quien le agredió a Ud.? • Que pasó exactamente? • Que sintió cuando pasó? Por ejemplo, tuvo miedo? Lloró? • Ud. tuvo heridas?  Como Ud. ayudo a la policía: • Llamo al 911? • Habló con la policía sobre el crimen? • Dejó que la policía sacara fotos de sus heridas? • Dió información a la policía sobre su agresor o identificó al agresor?

o

• Testificó en la corte? • Consiguió una orden de protección de la policía o de la corte?  Como le ha afectado ser victima de un crimen? • Tiene cicatrices o heridas? • Tiene ansiedad, depresión, o miedo? • Perdió su trabajo o a un ser querido como resultado del crimen? • Tomó medicamentos para las heridas o la depresión/ansiedad? Incluye un párrafo al final diciendo porque Ud. quiere quedarse en los EEUU. Dé las “gracias” al oficial de USCIS por leer su declaración.

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Mucha suerte con su declaración!!

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Domestic Violence Expert Letter Guidelines In order to qualify for a U visa, the applicant has to show that she is a victim of a certain type of crime (including domestic violence and sexual assault), the crime has been or is the subject of police investigation or a court proceeding, the victim has been or is being helpful to law enforcement, and, finally, that the victim has suffered “substantial physical or mental abuse” because of the criminal activity. What we need from you is an expert letter describing the substantial physical or mental abuse that the applicant has suffered. An expert can be a psychologist or a domestic violence shelter or agency worker. The important thing is to provide the “credentials” of the person who writes the affidavit. Here is a simple guide to what would be helpful to include in the letter: • A paragraph explaining the person’s position and experience with domestic violence (in what way and how long they’ve worked with victims, etc.); • A paragraph or more describing in detail what the client told them about the domestic violence; • A paragraph explaining how this was credible to the interviewer given her experience with victims of domestic violence; and • A paragraph or more describing why what she was told is domestic violence and why the abuse suffered was “substantial. You can include the entire history of domestic violence including both reported and unreported incidents. • It can also be helpful to include a paragraph discussing the continued need for therapy for the applicant and/or her children in order to show that it is important that she be allowed to stay in the United States both for herself and for her children. Please feel free to give the letter to the client to deliver to us or to mail it directly to me (Catherine Ward-Seitz, Bay Area Legal Aid, 1735 Telegraph Avenue, Oakland, CA 94612).

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If you have any questions, please feel free to call me, Catherine Ward-Seitz, Regional Immigration Coordinator at (510) 250-5234. Thank you very much for helping our client.

Appendix S-1

Supporting Letter from Counselor, Case Manager, or Therapist The U Visa Process requires that an applicant show that she has suffered “substantial abuse” from the crime against her. The Immigration Service considers abuse in the past, and extreme emotional abuse, in making a substantial abuse determination. A letter from a counselor can aid this determination.

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Please do not send your letter directly to the Immigration Service. Please give the copy with your original signature to your client to bring to me or mail the letter to me at: Immigration Center for Women and Children 3543 18th Street, #32 San Francisco, California 94110 Your letter should be on your office letterhead and directed to: U.S. Citizenship and Immigration Services Vermont Service Center 75 Lower Weldon Street St. Albans, VT 05479-0001 Points to make include: • • • •

• • •

Who you are, what your position is, and your credentials. Whether you work with domestic violence or sexual assault or crime survivors generally. How you work with the applicant. Your observations, including specific details, of characteristics and specific problems you observed in the applicant related to the domestic violence or sexual assault or other crime. Is the applicant anxious, hypervigilant, fearful, unable to concentrate, hopeless, exhausted, etc? What the applicant has told you about the crime. Whether and how those problems are common among domestic violence survivors. Whether and how those problems may indicate psychological conditions like depression, PTSD, acute anxiety, etc.

Unlike an evaluation for an applicant for political asylum, you do not need to address the impact of deportation unless fear of deportation is a part of the cycle of violence your client is subjected to. Also, you do not need to research political, health care, or safety issues in the client’s home country. Generally, letters between 1-2 pages are sufficient for the immigration application. Feel free to call me at (415) 861-1449 or email me at [email protected] if you would like to discuss this request.

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Please see attached model evaluations for domestic violence, sexual abuse, and felonious assault.

Sample Letter - Domestic Violence Dear Sir or Madam, My name is Karla Smith and I am a Licensed Clinical Social worker. I have 12 years experience counseling survivors of Domestic Violence. I have worked at the Alameda County Family Justice Center as a counselor since September, 2008. I have been working with Mary Jones since December, 2009. Mary sought counseling after recurring hostile, bullying, irrational and threatening behavior by her husband, Bob. That abuse included his punching her in the head, ripping her clothing, expelling her repeatedly from their house and continual emotional, sexual and financial abuse. As a result of domestic abuse by her spouse, Mary suffers from insomnia, constant worry, daily sadness, extreme fatigue, anhedonia, lack of motivation, crying spells, migraines, exhaustion, aimlessness, and feeling of worthlessness and hopelessness. She blames herself for the abuse, repeatedly expressing worry about what she should have done differently to avoid it. She frets about what she could have done to avoid setting off his triggers. Mary’s affect is flat and she does not make eye contact, indicating, in combinations with other symptoms, major depression caused by long-term domestic abuse. Bob has consistently subjected Mary to abusive behavior intended to control and demean her. These behaviors included checking up on her unannounced during the day, refusal to give her money, so that she was forced to ask relatives for support, taking money from her, refusal to pay for medical care, forced sexual relations, refusal to let her talk with family members, screaming insults at her, refusal to permit her to have a house key, and then throwing her out of the house for days or weeks at a time.

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Emotional abuse includes behaviors that humiliate the victim, control what she can and cannot do, deliberately embarrass the victim, isolating her from friends and family, denying the victim access to money or other basic resources and necessities. Economic abuse occurs when the abuser has complete control over the victim's money and other economic resources. Usually, this involves putting the victim on a strict "allowance," withholding money at will and forcing the victim to beg for the money until the abuser gives them some money. It is common for the victim to receive less money as the abuse continues. This also includes (but is not limited to) intentionally squandering or misusing communal resources. Mary was consistently subjected repeatedly to each of these behaviors. After three sessions, Mary was finally able to convey to me that her husband physically attacked her. She told me that Bob became enraged that she was wearing a summer blouse, and ripped it open and held it open although she tried desperately to close it out of acute embarrassment. I believe that the abuse that Mary has been subjected to interferes with her ability to remember or relate additional incidents.

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It is my considered professional opinion that Mary is the victim of long term, systematic emotional, physical, sexual and financial abuse. She has been profoundly affected by it and is currently deeply traumatized and severely depressed.

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Please do not hesitate to contact me if you have any questions about this assessment. Thank you for your consideration. Sincerely, [original signature here] Karla Smith, MSW

Excerpt of Psychologist’s Declaration for civil suit -- Abusive Sexual Contact Victim suffers from posttraumatic stress disorder (PTSD) directly as a consequence of abuse by the suspect. Over the course of at least one month, she was repeatedly exposed to verbal abuse that included sexually provocative, insulting remarks and derogatory comments regarding her Mexican ethnicity. The weeks of abusive behavior culminated in a threatening gesture, the suspect brandish a knife in close proximity to the victim. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition- TR(DSM-IV-TR) (2000), indicates that four criterion categories must be satisfied by the examinee to qualify for a diagnosis of PTSD. The person must demonstrate: A) exposure to a traumatic event (involving both actual or threatened death or bodily harm and the person’s response involved intense fear, helplessness or horror); B) persistent re-experiencing of the traumatic event (e.g., nightmares, intrusive thoughts and flashbacks); C) persistent avoidance of stimulation that remind the person of the trauma and numbing of responsiveness; and D) persistent symptoms of increased arousal. The victim’s exposure to verbal and physical threats and abuse fully qualify as a Criterion A traumatic stressor. Based on the psychological examination conducted (see below), the victim also met and significantly exceeded the threshold criteria for Criteria B, C, D-re-experiencing, avoidance and arousal, respectively. Her PTSD, similar to other patients who suffer from a severe form of the disorder, causes her to become irritable, angry and inconsolably sad in the presence of her family, for which she personally feels a great deal of shame. Her sleep is regularly disturbed by nightmares of being terrorized and/or persecuted. The fact that she is of Mexican ethnicity and female also presents a complicating factor in the PTSD symptoms. Although she has responded to medications and psychotherapy provided by the treating psychiatrist and she still remains severely disabled by her symptoms. The victim’s mental and emotional state remains fragile three years after the trauma. She is unable to work and her symptoms continue to have a substantial negative impact upon her ability to be a parent to her children and partner to her husband.

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My opinion is based upon a 12-hour psychological examination I personally conducted which included a clinical interview and a battery of paper-and-pencil psychological tests aimed at

assessing the presence or absence of any psychological disorder including specific presence or absence of PTSD. Testing included the following (all interviews were conducted with the assistance of a Spanish language interpreter; all testing was either administered in the form of a standard Spanish language version or live-translation of questions with the help of the Interpreter): Minnesota Multiphasic Personality Inventory MMPI-2 (Spanish language version); Beck Depression Inventory (BDI-II);the Cognistat (a standardized screening measure of mental status); and the Impact of Events Scale-Revised. My opinion is also based on a telephone consultation with the treating psychiatrist who has seen the victim for a combined pharmacotherapy and psychotherapy for approximately 15 visits over the course of approximately 6 months.

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Assessment of other potentially confounding life traumas. In order to determine the contribution of other life traumas to the current diagnosis of PTSD, the victim was asked about any other lifethreatening events. She admitted that her ex-husband was verbally and physically abusive to her. She left that relationship and sought therapy briefly thereafter. She reported that she was relieved to end the relationship and was subsequently able to return to work, care for the children and in general become emotional stable again. It was determined, therefore, that the previous relationship trauma did not contribute to any of the current symptoms of PTSD.

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Sample Letter From Therapist -- Felonious Assault

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Supporting Letter from Counselor or Case Manager A letter from a counselor or other domestic violence or sexual assault case manager is extremely valuable. Please see sample letter below. Points to make include: • • • • • •

Who you are, what your position is, and your credentials. How you work with the applicant. How the applicant has suffered substantial abuse as a result of the crime. [Optional] How the U visa (legal stability, access to legal work authorization) is important to the applicant [Optional] How the applicant has shown herself to be a good person (e.g. she has worked hard to support her children emotionally during this very difficult time). [Optional] How the applicant (and her children) would suffer if they had to leave the U.S. Sample Letter

U.S. Citizenship and Immigration Services Vermont Service Center VAWA Unit, Box 1000 75 Lower Weldon Street St. Albans, VT 05479-0001 Re: --------------------Dear Sir or Madam, I am a licensed psychologist (CA Lic# ---------------) and hold a Ph.D. in Counseling Psychology from the University of California, Berkeley. I have worked in the field of domestic violence for 5 years. I am a staff psychologist with -----------. I provide psychotherapeutic and assessment services for women and children who have been victims of domestic violence.

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I first met with --------- on July 7, 2007 and have met with her regularly since then. She had been subjected to physical and psychological abuse by -------- between 2002 and 2003, and had called the police in March, 2003 when Mr. ------ punched her and threw a table at her, and hit her in the abdomen when she was pregnant. After she developed extreme abdominal pain, she feared for her own and her baby’s health and decided to abort the fetus. The abortion caused ------ extreme, lasting psychological trauma, exacerbated by depression and feelings of hopelessness. The combination of guilt, including nightmares and intrusive memories over the abortion and hypervigilance, distrust, trouble concentrating and irritability resulting from severe abuse are indications of Posttraumatic Stress Disorder.

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Julieta is making progress in concentration, trust and mood control. However, her feelings of guilt and hopelessness continue to the present. I have recommended that she continue regular individual and group counseling sessions for at least one more year.

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Please do not hesitate to contact me if I can provide any clarification about the severe psychological effects that domestic abuse has caused in ---------. Sincerely,

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MODEL PSYCHIATRIST STATEMENT – sexual threats

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AUTHORIZATION TO INSPECT, COPY AND RELEASE RECORDS AUTORIZACION PARA INSPECCIONAR, COPIAR, Y ENTREGAR REGISTROS

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I authorize the release of records, documents, or other information concerning / Yo autorizo para proporcionar o dar historial, documentos, y otro tipo de información concerniente a ________________________________ ___________________ to / para ________________________________________ who is either an employee of or a volunteer (or to any other staff or volunteer) working with _______________________________ / quien es empleado o voluntario (o a cualquier persona quien es empleado o voluntario) trabajando con ____________________________________ . This release includes the following: (please initial) / Esta autorización incluye lo siguiente: (por favor ponga sus iniciales en la línea correspondiente) 1. ____ Medical, psychological, or psychiatric records (including, but not limited to records of diagnosis and treatment) / Record de salud, psicólogo, o psiquiátrica (incluyendo, pero no limitado a los datos del diagnóstico y tratamiento) 2. ____ All records in the possession of any county, state, or federal department / Todo la información en posesión del Departamento Local, del Estado, del Federal. 3. ____

Police Records / Record de la policía.

4. ____

School Records / Información educativa

5. ____

Financial Information / Información financiera

6. ____

Other / Otro: ___________________________

7. ____

Other / Otro: ___________________________

A copy of this Authorization shall be as valid as the original. This Authorization is effective immediately. Una copia de esta autorización debe tomarse tan válida como la original. Esta autorización es efectiva inmediatamente y caduca un año después de la fecha siguiente: Signature / Firma:

_______________________________

Date / Fecha:

_______________________________

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Appendix U-4

I.

INTRODUCTION

Mr. Applicant, through undersigned counsel, hereby submits his reply to the Request for Evidence (hereinafter “RFE”) regarding his application for U Nonimmigrant Status (Form I-918) along with Exhibits H-M, 104 to 203. 1 Mr. Applicant also has a waiver (Form I-192, EAC-10065-50010) (Exhibits A-G, 1-79) on file. This is a timely reply to the RFE. Mr. Applicant listed the following crimes on his U Nonimmigrant Status Certification Form (I918), Supplement B): False Imprisonment and Felonious Assault. (See, Exhibit A, 1-3, Nonimmigrant Status Certification Form (I-918), Supplement B, Signed by Kimberly Hunter, Assistant District Attorney, Alameda County District Attorney’s Office). Mr. APPLICANT’s law enforcement certification form also checked off the boxes for “Related Crime(s) and “Other,” listing “Armed Robbery.” (Id). II.

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DEFENDANT’S ARREST AND CONVICTION

Mr. Applicant was the victim of a crime, a robbery at gunpoint, (similar to California’s statutes for felonious assault and false imprisonment, as discussed below), on XX XX, 2007, at his workplace at AAA Foods, in Hayward, California. (See, Exhibit B, 4-23, Hayward Police Report Number 2007-XXXX). The defendant, PERPETRATOR, was convicted of second degree robbery, a violation of § 211 of the California Penal Code. (See, Exhibit C, 63-65, Clerk Docket and Minutes from the Superior Court of California, County of Alameda, Hayward Hall of Justice). Mr. PERPETRATOR was also charged with knowing that the principal was armed with a firearm during the commission of the second degree robbery, a violation of § 12022(d) of the California Penal Code. (See, Exhibit C, 28, Complaint, Hayward Hall of Justice, California). III.

THE REQUEST FOR EVIDENCE

The RFE asks for additional evidence to demonstrate that the crimes listed on the law enforcement certification would be considered crimes related to those enumerated in section 101(a)(15)(U)(iii) of the Immigration and Nationality Act (hereinafter “INA” or the “Act”). The RFE further states that such evidence may include: a). Criminal statutes showing the essential elements of the crime; b). Legal opinions regarding the nature of the crime; c). Factual information about the crime including police reports, court transcripts, news reports, etc.

Documents A to D, paginated from 1 to 98 were first filed with Mr. APPLICANT’s initial application for U Visa Nonimmigrant Status on or about January 4, 2010. Documents E to G, paginated from 99 to 103 were filed on or about June 1, 2010.

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1

IV. ARGUMENT A. CRIMINAL STATUTES SHOWING THE ESSENTIAL ELEMENTS OF THE CRIME 1.

ROBBERY

Section 211 of the California Penal Code defines “Robbery” as the following: “Robbery is the felonious taking of personal property 2 in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (emphasis added). (See, Exhibit H, 104-105, California Penal Code § 211 (West 2010)). Section 212 defines “fear” as the following: 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the same time of the robbery. (See, Exhibit H, 106-106, California Penal Code § 212 (findlaw.com 2010)). 2.

ASSAULT WITH A DEADLY WEAPON

Section 245(a)(1) of the California Penal Code defines “Assault with a Deadly Weapon Assault” as the following: “Any person who commits an assault 3 upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, . . . . “ (emphasis added). (See, Exhibit I, 113-117, California Penal Code § 245(a)(10) (West 2010)). 3.

FALSE IMPRISONMENT

Section 236 of the California Penal Code defines “False Imprisonment” as the following: “False imprisonment is the unlawful violation of the personal liberty of another.” (emphasis added). (See, Exhibit K, 118-119, California Penal Code § 236 (West 2010)).

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2

Property includes both real (lands, tenements, and hereditaments) and personal (includes money, goods, chattels, things in actions, and evidence of debt) property, California Penal Code § 7, numbers. 10-12. 3 Section 240 of the California Penal Code defines [a simple] “Assault” as the following: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (See, Exhibit J, x-x).

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False imprisonment is a felony if "effected by violence, menace, fraud, or deceit . . . ." (See, California Penal Code § 237(a); See also, People v. Fernandez (1994) 26 Cal. App. 4th 710, 717).

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4. CALIFORNIA’S ROBBERY CODE QUALIFIES FOR A U VISA BECAUSE IT IS SIMILAR TO THE QUALIFYING CRIMINAL ACTIVITY OF “FELONIOUS ASSAULT” a. Crime of Violence Robbery (section 211) and assault (sections 240 and 245(a)(1)) of the California Penal Code both are violent crimes against a person.4 Robbery requires the felonious taking of personal property 5 in the possession of another from his person or immediate presence.” (See, Exhibit H, 104-105, California Penal Code § 211 (West 2010). An assault is the intent, with capacity to fulfill that intent with a violent injury. (See, Exhibits I & J, 113-119, California Penal Code §§ 240, 245(a)(1) (West 2010)). Furthermore, both robbery and assault require an element of “fear.” “The “fear” described in the robbery 6 code refers to fear of immediate injury 7 as in the assault code. (See, Exhibits H-J, 104-119, Cal. Pen. Code Sections 211, 212, 240, 245(a)(1) (West 2010)). The lack of a “taking” element in the assault code is only a technical requirement in robbery because under both codes there is an element of victimization, a violent crime against an individual—in a robbery, like in Mr. APPLICANT’S, the victim had to undergo a traumatic experience of having a gun pointed at him. (See, Exhibit B, 72-77, Declaration of Mr. APPLICANT, See also, Exhibit E, 98-100, Amended Declaration of Mr. APPLICANT). During the robbery, one of the robbers pointed his hand at Mr. APPLICANT as if it were a gun and told him not to move. (See, Exhibit B, 72-77, Declaration of Mr. APPLICANT). Mr. APPLICANT froze in shock as he could not tell if the robber carried a weapon underneath his baggy clothes. (Id.). In fact, given that an assault with a deadly weapon is a lesser offense of the enumerated offense of robbery, the spirit of the law should not preclude Mr. APPLICANT from establishing that the crime of robbery is similar to a felonious assault. In this case, Mr. APPLICANT was the victim of a felony given that the perpetrator was charged with a felony. (See, Exhibit B, 61-65, Court Certified Docket and Minutes from the Superior Court of California, County of Alameda, Hayward Hall of Justice, on file). Mr. 4

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See, People v. Guerin (1972) 22 Cal. App. 3d 775, 781, n. 3,‘Robbery is a crime of a violence, and is in the category of crimes against the person. . . . Including all the elements of larceny, with the element of force or fear added, the crime of robbery may be defined as a combination of larceny and assault." (43 Cal.Jur.2d, Rev. (1966) Robbery, § 2, pp. 25-26; See also, n. 3,‘The essence of the crime of robbery is the violence to the person.’ (May's Criminal Law (4th ed. by Sears & Weihofen, 1938) § 195, p. 300.); See also, U. S. v. Becerril-Lopez, 541 F.3d 881, 889 (2008) (a conviction and sentence for being a deported alien found in the United States is affirmed primarily as his prior conviction under California Penal Code § 211 qualified as a “crime of violence” under a sentence enhancement provision for illegal re-entry crimes). 5 Property includes both real (lands, tenements, and hereditaments) and personal (includes money, goods, chattels, things in actions, and evidence of debt) property, California Penal Code § 7, numbers. 10-12. 6 See, Exhibit L, 104-106, California Penal Code § 211 “accomplished by means of force or fear.” (emphasis added). 7 See, Exhibit L, 118-119, California Penal Code § 240 “present ability, to commit a violent injury on the person of another” (emphasis added).

APPLICANT has also experienced trauma; in fact, he has been diagnosed with Post-traumatic stress disorder and dysthymic disorder, or depression of over two years. (See, Exhibit B, 72-77, Declaration of Mr. APPLICANT, See also, Exhibit E, 98-100, Amended Declaration of Mr. APPLICANT; See also, Exhibit B, 78-89, Psychological Evaluation by Dr. Barbara Waterman, on file). b. An Assault is a Lesser Included Offense of Robbery State law clearly states that assault with a deadly weapon is an offense included with in the crime of robbery. (See, People v. Sutton, (1973) 35 Cal. App. 3d 264, 270-271 [110 Cal. Rptr. 635] (citing People v. Guerin (1972) 22 Cal. App. 3d 775, 782); See also, People v. Ridley (1965) 63 Cal. 2d 671, 678) (defendant sentenced only for first degree robbery and not assault with a deadly weapon, because robbery was the more serious of the two offenses) (See, Exhibit, L, 125132, People v. Guerin); and Exhibit L, 133-147, People v. Sutton)). 5. CALIFORNIA’S ROBBERY CODE QUALIFIES FOR A U VISA BECAUSE IT IS SIMILAR TO THE QUALIFYING CRIMINAL ACTIVITY OF “FALSE IMPRISONMENT” Robbery and false imprisonment share common elements, e.g., the use of force or fear of harm, i.e. menace, to commit the offense. In false imprisonment, menace is a threat of express or implied harm by words or action. (See, People v. Wardell (2008) 162 Cal. App. 4th 1484, 1490; See also, People v. Reed (2000) 78 Cal. App. 4th 274, 280). Menace also includes a threat involving either the use of a deadly weapon or verbal threats of harm. (See, People v. Matian (1995) 95 Cal. App. 4th 480, 485-486 [41 Cal.Rptr.2d 459[). Robbery and false imprisonment also both involve a criminal activity that is accomplished against the victim’s will. (See, Exhibits H, 104-105, and K, 120-122, California Penal Codes §§ 211 and 236, respectively). B.

LEGAL OPINIONS REGARDING THE NATURE OF THE CRIME

1. CALIFORNIA’S ROBBERY CODE QUALIFIES FOR A U VISA BECAUSE IT IS SIMILAR TO THE QUALIFYING CRIMINAL ACTIVITY OF “FELONIOUS ASSAULT”

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Robbery under California case law includes all of the elements of assault. (See, Exhibit L, 133147, People v. Sutton (1973) 35 Cal. App. 3d 264, 270-271 [110 Cal. Rptr. 635]). 8 A number of California courts have found that pointing a gun in a threatening manner with other people present constitutes an assault. For example, in one California case, a defendant was found liable for assault when he announced he was going to kill the victim and stalked toward him with a shotgun. (See, Exhibit L, 148-153, People v. Corson (1963) 221 Cal. App. 2d 579, 581-582 [34 Cal. Rptr. 584]). In another case, the court found that when a defendant pointed a gun at everyone in the living room and told them to get down, his conduct was sufficient to support the inference that it was a conditional threat constituting an assault. (See, Exhibit L, 154-162, People v. Daniels (1993) 18 Cal. App. 4th 1046, 1051 [22 Cal. Rptr. 2d 877], review denied (citing 1 Witkin & 8

Supra., n. 5.

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Epstein, Cal. Criminal Law (2d ed. 1988) § 416, p. 477 (‘[A] threatened act may amount to an assault even though the threat is conditional or qualified.’))). Additionally, courts have found that pointing a loaded gun at another in a threatening manner, especially if accompanied by the threat to shoot, constitutes an assault because whoever does so has the present ability to inflict a violent injury on another, and by its nature, the action will probably and directly result in such an injury. (See, Exhibit L, 163-181, People v. Miceli (2002) 104 Cal. App. 4th 256, 269 [127 Cal. Rptr. 2d 888], modified on denial of rehearing, review denied). Furthermore, a California court has found that the criminal intent that is required for assault with a deadly weapon is the general intent to willfully commit an action, the probable consequences of which, if successfully completed, would be the injury to another, and it is immaterial and not necessary to establish whether the defendant intended to cause any particular injury, to severely injure another, or to injure in the sense of inflicting bodily harm. (See, Exhibit L,182-191 People v. Rocha 3 C.3d 893,899 [92 Cal. Rptr. 172]).

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CALIFORNIA’S ROBBERY CODE QUALIFIES FOR A U VISA BECAUSE IT IS 2. SIMILAR TO THE QUALIFYING CRIMINAL ACTIVITY OF “FALSE IMPRISONMENT” California case law demonstrates that the same conduct, which is a constitutive element for robbery and false imprisonment, can result in convictions for both offenses. (See, Exhibit M, 192203, People v. Reed (2000) 78 Cal. App. 4th 274, 281-282 [92 Cal.Rptr.2d 7811]). In People v. Reed, a jury found the defendant guilty of first degree robbery (California Penal Code § 211), assault with a firearm (California Penal Code § 245(d), and felony false imprisonment (California Penal Code §§ 236, 237 of three victims. In that case, the “defendant and her accomplices forced their way into an apartment where they directed all three victims, at gunpoint, to get down and stay down on the floor. At various times during the robbery, the gun was placed against each female victim’s head and was used to pistol-whip the male victim.” (Id. at 274). C.

FACTUAL INFORMATION ABOUT THE CRIME

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Robbery is a similar activity to “felonious assault,” as specifically enumerated for U visa classification, because in Mr. APPLICANT’s case, by using the gun in the commission of the robbery, the perpetrator made an unlawful attempt, coupled with present ability, to commit a violent injury on the person of Mr. APPLICANT. Under California law, a robbery is punishable as a felony. (See, Exhibit H, x-x, California Penal Codes §§ 211, 213). With respect to false imprisonment, Mr. APPLICANT’s liberty was restrained by the three male robbers who entered the store where he was working the night of July 30, 2007. (See, Exhibit B, 72-77, Declaration of Mr. APPLICANT, See also, Exhibit E, 98-100, Amended Declaration of Mr. APPLICANT). One of the male robber’s use of the firearm forced Mr. APPLICANT to remain in the store against his will. (Id.). During the robbery, one of the robbers pointed his hand at Mr. APPLICANT as if it were a gun and told him not to move. (See, Exhibit B, 72-77, Declaration of Mr. APPLICANT). Mr. APPLICANT froze in shock as he could not tell if the robber carried a weapon underneath his baggy clothes. (Id.). Furthermore, the false imprisonment, as well as the commission of a violent crime, was elevated to a felony given that the male robbers

effectuated the detention and confinement of Mr. MOR GARCIA’s person by violence (the use of the firearm) and menace (the use of the firearm implying a physical threat of harm). D.

MR. APPLICANT’S “FALSE IMPRISONMENT” IS AN ENUMERATED CRIME

Mr. APPLICANT qualifies for a U visa because he has been the victim of a crime listed under the Act. (See, INA § 101(a)(15)(U) (2010)) (emphasis added). His law enforcement certification form (I-918 Supplement B) checked off “Felonious Assault” and “False Imprisonment” as enumerated crimes. (See, Exhibit A, 1-3, Nonimmigrant Status Certification Form (I-918), Supplement B, Signed by Kimberly Hunter, Assistant District Attorney, Alameda County District Attorney’s Office). Mr. APPLICANT is only required to show that he was the victim of one (1) crime, which he has shown, as discussed above, by the documents being here submitted, and by his documentation on file. V. CONCLUSION Based on the above, Respondent respectfully requests that his application for U Nonimmigrant Status (Form I-918) be approved. Respectfully Submitted, _______________________ Carmen Reyes-Yosiff Attorney for Applicant

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Dated: September 10, 2010

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Ann E. Block Attorney at Law 2655 Portage Bay East #9 Davis, CA 95616 Tel: 530-400-3824 [email protected] Certified Immigration Specialist, Board of Legal Specialization State Bar of California

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March 5, 2014 VAWA Unit USCIS – Vermont Service Center BY FEDERAL EXPRESS 75 Lower Welden Street St. Albans, VT 05479 RE: Mr. CLIENT A123 456 003 EAC123456789 RESPONSE TO RFE RE I-918 “U” VISA STATUS APPLICATION FOR VICTIM OF ENUMERATED CRIME Dear Sir/Madam: Our office received a Request for Evidence dated December 9, 2013, with a deadline of March 6, 2014, 2014, on the U Nonimmigrant Status filing of the applicant listed above. This letter and attachments are the applicant’s timely and complete response to that RFE. The RFE requests additional evidence that “U” visa applicant Mr. CLIENT suffered “direct and proximate harm, as well as substantial physical or mental abuse, as a result of the qualifying criminal activity.” In particular, the RFE states “[i]n the police report you submitted, the psychological evaluation you submitted, and in your own personal statement, it appears that when you saw the gun pointed at “Juan” you ran down the levee and hid. It does not appear that the gun was ever pointed at you or that you were the victim of the felonious assault you are submitting as the qualifying criminal activity.” We have already submitted the sheriff’s report, the declaration of applicant Mr. CLIENT, and the Psychological Evaluation of Dr. Yvette Flores. Attached please find the following additional documents in support of the I-918 application:

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*Supplemental declaration of Mr. CLIENT *Psychological Reevaluation of Dr. Yvette Flores *Second Opinion Psychological Evaluation of Dr. Lesleigh Franklin *Declaration of “wife” of CLIENT *Declaration of friend and coworker “Manual Garcia”, who was also a victim of the levee robbery

*Excerpts from U.S. Attorney General Guidelines for Victim and Witness Assistance, revised 2012 *Common Law Definitions of Assault WHILE THE “DIRECT AND PROXIMATE HARM” REQUIREMENT MAY BE ULTRA VIRES AND NOT REQUIRED BY THE STATUTE, PETITIONER NEVERTHELESS MEETS THIS ADDITIONAL REQUIREMENT IMPOSED BY REGULATION A. Direct and Proximate Harm Standard INA §101(a)(15)(U) requires only that “the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described ….” By regulation, however, the Department of Homeland Security has added a definition of victim that states, in 8 CFR § 214.14(a)(14) that a “[v]ictim of qualifying criminal activity generally means an alien who has suffered direct and proximate harm as a result of the commission of qualifying criminal activity.” The U.S. Attorney General Guidelines for Victim and Witness Assistance provides a discussion and analysis of what constitutes “direct and proximate harm”. The AG Guidelines state that a determination of whether the harm is a “direct” consequence of the crime, requires a “but for” analysis. In other words “the harm must generally be a “but for” consequence of the conduct that constitutes the crime. An additional showing that the alleged harm must have been “proximately caused” by the offense, “ordinarily requires that the alleged harm must have been a reasonably foreseeable result of the charged offense.” 9 The harm suffered by Mr. CLIENT, as set out in his documents previously provided – petitioner’s own declaration and the psychological evaluation of Dr. Yvette Flores, are clear evidence that he has been suffering from harm that he would not have experienced, “but for” the robbery and assault. Also, the harm he suffered and continues to suffer was and is a reasonably forseeable result of robbery and assault. The additional documents attached hereto in support of his petition, are further evidence of that harm. 1. Harm May be Physical, Emotional or Pecuniary

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According to the Attorney General Guidelines, harm to a victim “can be physical, emotional, or pecuniary. In the absence of physical or pecuniary harm, emotional harm may be presumed in violent crime cases where the individual was actually present during a crime of violence, or, if not present, received information about a violent act attempted against him or her. In all other cases, emotional harm should not be presumed in the absence of physical or pecuniary harm, but rather

9

Attorney General Guidelines for Victim and Witness Assistance, http://www.justice.gov/usao/de/docs/AG_Guidelines2011_Revised2012.pdf http://www.justice.gov/olp/pdf/ag_guidelines2012.pdf

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the existence of cognizable emotional harm should be determined on a factual, case-by-case basis.” Mr. CLIENT suffered emotional harm, immediately during and after the commission of the qualifying crimes. He suffered severe emotional trauma. Subsequently he has also suffered physical harm related to the traumatic experience. The Attorney General makes clear that a victim of a violent offense does not even need to be present for emotional harm to be possible, after “receiv[ing] information about a violent act attempted against him,” but if the victim is in fact present, “emotional harm may be presumed in violent crime cases.” 10

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California robbery is a crime of violence. United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008). So is felonious assault, or “assault with a deadly weapon.” Both these two crimes were the primary offenses committed in this case. Armed robbery has long been considered a “qualifying crime” by the VSC as similar/analogous to “felonious assault.” Mr. CLIENT was in fact present during the violent acts – the robbery and the assault– so his emotional harm as a victim may be presumed, according to the Attorney General. He ran and hid after the crimes had already commenced and he was well aware that he was in danger at that time. However, despite the presumption of emotional harm, Mr. CLIENT nevertheless has submitted substantial evidence of the emotional harm he suffers both with his initial I-918 petition, and additional evidence is being submitted in response to this RFE. 2. Physical and Emotional Harm are all Reasonably Forseeable Results of Armed Robbery and Assault with a Deadly Weapon – Thereby Meeting the Proximate Cause Requirement A large body of research has established that the crimes of armed robbery and assault produce a wide range of physical and psychological problems in victims. These effects may include emotional/psychological harm or physical harm, and social harm. Emotional and Psychological harm. Robbery, particularly armed robbery/assault, has become one of the most feared crimes in our nation, as it not only entails loss of property, but also the threat -- or actual use -- of violence. Even when victims do not sustain extensive injury or loss, they are often forced to suffer threats of violence and bodily harm at the hands of their assailant. Both property and personal safety are placed at substantial risk during a robbery. When a weapon is involved, the loss of personal control and safety is even more acute, and these circumstances can cause both short-term and long-term crisis reactions for the victim. 11 Victims of armed robbery and assault often report experiencing higher levels of general stress and anxiety. Typical victim responses to a robbery can include such reactions as: Shock; Anxiety; Attorney General Guidelines for Victim and Witness Assistance, http://www.justice.gov/olp/pdf/ag_guidelines2012.pdf 11 http://www.crimevictimservices.org/page/victimtypes/57; Bard & Sangrey, 1986

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Numbness; Anger; Disbelief; Despair; Fear; Depression; Confusion; Humiliation; Helplessness; Shame; Denial; and Guilt. Victims' old assumptions about the world have been shattered producing intense feelings of anxiety and helplessness, and a preoccupation with fear of a recurrence of the crime. In addition, there is rage at the offender, sadness over the losses involved, discomfort because of a new sense of vulnerability, fear of loss of control, discomfort over aggressive impulses (especially thoughts of revenge), guilt about not having been able to prevent the crime, humiliation, rejection by others, the belief of others that the crime was somehow partially the victim's fault, and an increased suspicion of strangers. 12 Victims may exhibit symptoms including insomnia, constant worry, daily sadness, irritability, extreme fatigue, lack of interest in things that interested them in the past, lack of motivation, poor appetite, crying spells, nightmares, feelings of hopelessness and worthlessness, and somatic symptoms such as migraines and digestive problems. 13 Victims also may experience recurrent and intrusive thoughts and dreams of the incident, flashbacks, and may also be hyper-alert, startling at little noises or abrupt actions. Changes in eating and sleeping habits are also common. An armed robbery can be a violent, life-threatening situation and for the victim can incorporate issues of one's own death and fears of leaving loved ones behind. 14 Physical harm. Armed robberies and assaults sometimes end in direct physical injuries to the victim, but not always. However, in addition, victims of these crimes also report a wide range of secondary somatic symptoms, including, but not limited to headaches and sleep disturbances, difficulty falling asleep or staying asleep, physical fatigue, nightmares, flashbacks, muscle tension, tearfulness, jittery, numbness, heart-related health issues, tremors, and increased blood pressure. Victims may also engage in unhealthy behaviors as a coping mechanism to deal with high levels of psychological stress and suffer extreme stress or post-traumatic stress that may occur right after the incident and last for days, weeks, or even months afterward.15 B. Petitioner Mr. CLIENT is a Victim Who has Suffered Direct and Proximate Harm Petitioner clearly fits within the definition of a “victim” – a person who has suffered direct and proximate harm from the qualifying crime. “But for” the commission of the assault and armed robbery, Mr. CLIENT would not have experienced the severe emotional trauma with physical side effects that have been diagnosed now by two experienced, licensed psychologists, Drs. Flores and Franklin and recounted in some detail as well by petitioner himself, his wife, his friend, and his uncle’s wife. At the time the crimes were being committed, Mr. CLIENT experienced heart palpitations, extreme fear, 16 and difficulty breathing. 17 Subsequently, in his own declaration he 12

National Center for Victims of Crime web-site: http://www.ncvc.org Recovery after a robbery: a guide to help owners and managers support their employees, Debra Holland, Ph.D, http://www.drdebraholland.com/handouts/RobberyHandout.pdf 14 Id, http://www.crimevictimservices.org/page/victimtypes/57 15 Id., http://www.crimevictimservices.org/page/victimtypes/57 16 Declaration of Mr. CLIENT and Supplemental Declaration of Mr. CLIENT 17 Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014

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describes that since the crimes occurred, he has suffered from insomnia, nightmares, night terrors, severe headaches, extreme fatigue, nervousness, anxiety, a racing heart and chest pains. 18 His wife, “Maria”, confirms the insomnia, night terrors, depression and anxiety, as well as previous attempts to self-medicate with alcohol. 19 The two psychological evaluations noted he suffers from recurrent nightmares or night terrors, hypervigilance, sleep impairment/insomnia, heightened startle response, impaired concentration, loss of appetite, feelings of numbness and detachment from others, panic attacks and flashbacks. 20 Both additionally diagnosed Mr. CLIENT with PostTraumatic Stress Syndrome and Major Depression. 21 This emotional and physical harm was directly caused by and also was a “reasonably forseeable result” of the qualifying crimes, as discussed above in the crime victims’ research and in Dr. Flores’ and Dr. Franklin’s evaluations.

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Also, the Sheriff’s Report previously submitted clearly states that Mr. CLIENT is a “Victim”. The report could have listed him as a “Witness” but it did not. Law enforcement clearly views Mr. CLIENT as a victim of the listed crimes. The mere fact that a victim runs from his attackers and ultimately escapes physical harm does not mean he is not a victim. The perpetrators in these crimes came down the levee with a gun on one victim, “Juan”, yelling at the other victims. Mr. CLIENT was terrified he would be killed, and he took off running, together with another victim, “Manuel Garcia.” The attackers yelled at “Manuel” and CLIENT to stop, “Manuel” saw the gun was now pointed at himself and CLIENT, and he stopped. 22 CLIENT did not comply with the command to “stop” nor did he see the gun pointed at himself and “Manuel”, as he kept running, but that does not make his victimization any less. 23 One attacker yelled “shoot them, shoot them.” 24 If an armed criminal enters a bank and holds a gun on one cashier, does that mean the rest of the cashiers behind the counter are not also victims? If one cashier hides in the bank safe or under the counter out of range of the gun, does that make her less of a victim? The armed robber may yell orders at various victims and wave his gun around, but most likely he will keep it trained on one person until his criminal intent is satisfied. The intent of the armed perpetrators in the attack on Mr. CLIENT and his coworkers on the levee was to attack all three men. This was not a crime of passion where only one person was the intended victim – it was a crime with the intent to take money and other property, including their employer’s truck from all of the victims, utilizing the threat of death or severe bodily injury (possibility of being shot) to intimidate, scare and demand compliance from all three of them. 18

Declaration of Mr. CLIENT and Supplemental Declaration of Mr. CLIENT Declaration of Wife of CLIENT; Letter of “client’s aunt” 20 Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014; Confidential Psychological Evaluation by Dr. Lesleigh Franklin, dated February 28, 2014. 21 Confidential Psychological Evaluation by Dr. Yvette Flores, dated October 28, 2012; Second Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014; 22 Declaration of “Manuel Garcia”, dated 3/1/14 23 Supplemental declaration of Mr. CLIENT, dated 3/1/14. 24 I-918B sheriff certification; Declaration of “Manuel Garcia”; Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014; Confidential Psychological Evaluation by Dr. Lesleigh Franklin, dated February 28, 2014. 19

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Appendix U-15

While there is no federal definition of “assault” the common law definition is as follows: “an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact. An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm.” 25 Certainly there was created in Mr. CLIENT the “apprehension…of an imminent harmful or offensive contact.” There was “a threat of bodily harm” that without a doubt was “coupled with an apparent, present ability to cause the harm” due to the gun carried and utilized to carry out the threat. Escaping the perpetrators in the midst of the commission of the crime, does not make the victim any less a victim. Mr. CLIENT clearly understood that he was a victim and his life was in danger when he took off running. At that moment, his survival instincts overwhelmed him and he simply ran, in an attempt to escape the danger at hand. He was indeed lucky, that he wasn’t shot after one of the men yelled at them to stop, and he didn’t comply. However, as a result of that traumatic experience, he has in fact suffered direct and proximate harm, that is still ongoing, almost four years later. PETITIONER HAS SUFFERED “SUBSTANTIAL MENTAL HARM AND ABUSE” AS A RESULT OF THE ARMED ROBBERY AND FELONIOUS ASSAULT HE SUFFERED When determining whether an applicant has suffered substantial physical or mental abuse, USCIS considers the “nature of the injury inflicted or suffered; the severity of the perpetrator’s conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions.” 8 C.F.R. § 214.14(b)(1). USCIS has concluded that it is reasonable to consider both “the severity of the injury suffered by the victim” and “the severity of abuse inflicted by the perpetrator.” 72 Fed. Reg. 53014, 53018 (Sept. 17, 2007). “No single factor is a prerequisite to establish that the abuse was substantial . . . . A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level.” 8 C.F.R. § 214.14(b)(1). Also, the proper standard, for reviewing the evidence submitted in establishing substantial abuse is “any credible evidence,” as mandated by 8 C.F.R. § 214.14(c)(4). A. Nature of the Injury Suffered

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As outlined above in detail, petitioner has suffered or is still suffering from insomnia, nightmares, night terrors, severe headaches, extreme fatigue, nervousness, anxiety, a racing heart and chest pains. 26 He also suffers from hypervigilance, heightened startle response, sleep impairment/insomnia, impaired concentration, loss of appetite, feelings of numbness and

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http://legal-dictionary.thefreedictionary.com/assault; Felonious assault Web Definitions, http://enwikipedia.org/wiki/Felonious_assault 26 Declaration of Mr. CLIENT and Supplemental Declaration of Mr. CLIENT

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detachment from others, panic attacks and flashbacks. 27 He has experienced heart palpitations, extreme fear, 28 and difficulty breathing. 29 Finally, and perhaps most significantly, he has been diagnosed with Post-Traumatic Stress Syndrome and Major Depression. 30

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B. Severity of the Perpetrator’s Conduct Armed robbery and assault with a deadly weapon are both crimes of violence, considered very severe offenses. United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008). The perpetrators threatened Mr. CLIENT’s very life – and in fact pointed the gun at him when he started running, though he did not see or realize it at the time. 31 C. Severity and Duration of the Harm Suffered The emotional and psychological harms, along with some physical effects suffered by Mr. CLIENT are serious, severe and many are ongoing. He continues to experience “moderate to severe symptoms” of Post Traumatic Stress Syndrome. 32 He is severely depressed and experiences severe anxiety. 33 He only sleeps 4-5 hours a night, sometimes less and is chronically fatigued as a result. 34 He has night terrors when he does sleep. He experiences severe headaches on occasion when he wakes up. He has flashbacks, is nervous and anxious, and he reports ongoing racing heart symptoms and chest pains. 35 All of the above harms resulted being victimized by the qualifying crimes. Duration of the above symptoms is almost four years now, as the crimes occurred in June of 2010. D. Permanent or Serious harm to the Appearance, Health, or Physical or Mental Soundness of the Victim, Including Aggravation of Pre-Existing Conditions It is impossible to know whether the harms suffered by Mr. CLIENT will be permanent, but certainly they are serious, as already discussed, and have an ongoing negative impact on his health and his physical and mental soundness. 36 His everyday life continues to be affected – 27

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Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014; Confidential Psychological Evaluation by Dr. Lesleigh Franklin, dated February 28, 2014. 28 Declaration of Mr. CLIENT and Supplemental Declaration of Mr. CLIENT 29 Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014 30 Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014; Confidential Psychological Evaluation by Dr. Lesleigh Franklin, dated February 28, 2014. 31 Declaration of “Manuel Garcia” 32 Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014; Confidential Psychological Evaluation by Dr. Lesleigh Franklin, dated February 28, 2014 33 Confidential Psychological Evaluation by Dr. Lesleigh Franklin, dated February 28, 2014 34 Declaration of Mr. CLIENT and Supplemental Declaration of Mr. CLIENT 35 Id; Declaration of Wife CLIENT; Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014; Confidential Psychological Evaluation by Dr. Lesleigh Franklin, dated February 28, 2014 36 Confidential Psychological Evaluation by Dr. Yvette Flores, dated February 21, 2014; Confidential Psychological Evaluation by Dr. Lesleigh Franklin, dated February 28, 2014; Declaration of Mr. CLIENT and Supplemental Declaration of Mr. CLIENT; Declaration of Wife of CLIENT

including his inability to sleep, his nightmares, anxiety, depression, fatigue, headaches, heart problems and chest pains are ongoing. These harms are certainly serious . CONCLUSION Mr. CLIENT is a victim of a enumerated, life-threatening crimes. He suffered direct and proximate harm, which was and is substantial and is ongoing. He cooperated with law enforcement, and deserves to be approved for “U” visa status. Please feel free to contact me should you require any additional information. I trust that the documents attached are sufficient to approve this petition as soon as possible, and appreciate your kindness in expediting these petitions. Best regards,

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Ann Block Attorney at Law

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SUBJECT: Supervisory Review Requested for U visa RFE on Substantial Abuse RE: Request for Evidence Due on or Before [DATE], EAC#: 13-[000-00000] [Firstnames] [Lastnames], A#: [000-000-000] Dear Officer: I represent Ms. [Firstnames] [Lastnames] on her Form I-918 Petition for U Nonimmigrant Status. You will find my G-28 on file. This email is to respectfully request supervisory review for the Request for Evidence (RFE) issued by the USCIS on [DATE]. I have attached a copy of the RFE due on or before [DATE]. The RFE states that Ms. [Lastnames] has not suffered substantial physical or mental abuse. This assertion is erroneous and clearly ignores the evidence submitted with the original U visa filing. Ms. [Lastnames] suffered both substantial physical and mental abuse by the stranger who approached her at her job, pulled down his pants and masturbated in front of her, and ripped her shirt as he tried to pull it off and rape her.

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Sufficient evidence was submitted with the original U Visa filing to prove that Ms. [Lastnames] suffered both substantial physical and mental abuse as a result of the sexual assault, including: • Declaration • San Jose Police Department Report • Form I-918 Supplement B • Letter from the Office of the District Attorney • Letter from County of Santa Clara Probation Department AND • Letter from Rian Burns, MFTi, and Josh Rose, LCSW, of Family Works Community Counseling stating that [Firstnames] [Lastnames] is suffering from severe Depression and from Post-Traumatic Stress Disorder and as a result of the sexual assault she experienced We respectfully remind the Vermont Service Center that an important component of the effectiveness of VAWA’s immigration protections has been the statutory guarantee that immigrant victims applying for immigration relief under VAWA or the Trafficking Victims Protection Act (TVPA) are able to submit “any credible evidence” that they can garner in support of their case. See, e.g., Immigration and Nationality Act § 216(c)(4), 8 U.S.C. § 1186a(c)(4) [hereinafter INA]; INA § 202(a)(1)(J), 8 U.S.C. § 1154; INA § 240A(b)(2), 8 U.S.C. § 1252a; Violence Against Women Act of 2000 § 1513(c)(4), Pub. L. No. 106-386, 114 Stat. 1464 (codified at 8 U.S.C. § 1184) [hereinafter VAWA 2000]; 8 C.F.R. § 214.11(d)(2009); TVPA Regulations 67 Fed. Reg. 4786 (proposed Jan. 31, 2002) (to be codified at 8 C.F.R. § 214). Here, Ms. [Lastnames] has submitted more than enough evidence to satisfy the any credible evidence standard and demonstrate she suffered substantial physical and mental abuse as a result of her victimization. Conducting a new declaration and gathering additional documents to submit in response to this RFE will only further re-traumatize Ms. [Lastnames] because it will force her to remember, reconnect with, and relive the pain she suffered as a result of the sexual assault. Please let me know as soon as possible if you are able to retract this RFE.

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May 06, 2010 USCIS - Vermont Service Center ATTN VAWA UNIT, Box 1000 75 Lower Welden Street Saint Albans, Vermont 05479-0001 RE:

LAST NAME, First Name File Number: A0__ ___ ___ Principal’s I-918 Receipt Number: EAC-______________ I-765 APPLICATION ENCLOSED FOR APPROVED U VISA DERIVATIVE

Dear Sir or Madam: We are writing to submit the I-765 for the above-mentioned client. His I-918A was just approved and so now we are writing to apply for his work permit. Please find enclosed: 1. My G-28 authorizing my representation, 2. Form I-765 with 2 photos and fee waiver request, 3. Copy of the I-918A approval notice, and 4. Copy of his passport as identification. Thank you very much for your sympathetic consideration and assistance. If you require anything further, please contact me.

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Sincerely,

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Re: Verification of Eligibility for Public Benefits for U-Visa Applicants To Whom It May Concern: I am writing to alert you to a recent change in California law that can help immigrant victims of crime to qualify for public benefits. In January 2007, a new law was passed in California (SB 1569) extending eligibility for social services and benefits to non-citizen victims of human trafficking, domestic violence, and other serious crimes. The bill allows certain individuals currently ineligible for federal programs to receive state funded benefits. The U visa, for victims of certain criminal activity who are willing to cooperate with law enforcement officials, allows certain individuals to remain in the United States. SB 1569 recognizes that applicants for U Visas need support and services. U visa applicants meet all of the necessary categories to qualify for their own public benefits grant: • • •

They have suffered substantial physical and/or mental abuse as a result of having been a victim of domestic violence or other listed crime. They have information about the crime. They have cooperated with law enforcement in the prosecution of a crime against them.

An applicant for a U visa (also known as U non-immigrant status) is eligible for benefits as soon as she (or he) files the I-918 application with the U.S. Citizenship and Immigration Services (USCIS). Evidence of the application can include a copy of the application packet, a copy of the receipt letter from the USCIS office in Vermont, or the Notice of Approval of Deferred Action based on U interim relief. The applicant’s eligibility for state-funded services should continue until and unless the application for a U Visa has been finally administratively denied. Welfare Program Specific Guidelines Once eligibility is established under SB 1569, standard eligibility rules will apply, such as beginning date of aid, grant computation, etc. But there may be barriers which will have to be considered. For example, the applicant will not possess a Social Security number yet (a social security number cannot be issued until employment authorization is issued and that can take up to 6-9 months after initial application for a U visa). A “pseudo” SSN may have to be used. The applicant will not be able to get approval to work in the US still for several months and therefore, a requirement that she (or he) engage in certain employment activities is not appropriate. The applicant should be assigned activities from the County which are appropriate for their status, such as English language training or other employment preparation activities. However, the applicant should not be expected to actively seek employment at this time.

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Refugee Cash Assistance (RCA) Non-citizens found eligible under the provisions of SB 1569 should receive state funded benefits and services equivalent to RCA. The time limit is eight months. If a recipient of state-only RCA becomes federally eligible, another eight month eligibility will start, but will be federally funded.

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CalWORKs Non-citizens found eligible under SB 1569 should receive state-funded CalWORKs benefits (welfare cash) and services and be subject of all other program requirements and exemptions.

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CFAP Non-citizens determined eligible under SB 1569, who would be ineligible for federal Food Stamps benefits solely based on their non-citizen status, are eligible for FS benefits under the CFAP program. You, as a County case worker, should have access to the “The All County Letter” (ACL 06-60) on the State website, which has a number of attachments showing various forms and documentation that may be used as evidence for eligibility under these new rules. The URL for this ACL is: http://www.dss.cahwnet.gov/getinfo/acl06/pdf/06-60.pdf Another possibly helpful URL (with information on SB1569 in a Q & A format) is: http://www.dss.cahwnet.gov/getinfo/acin07/pdf/I-41_07.pdf Please feel free to contact me if you have any questions or concerns about this new eligibility for public assistance.

Sincerely,

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U Status and Common Grounds of Inadmissibility This memo is intended to provide sufficient information about common inadmissibility grounds to help ICWC staff determine which grounds to waive for clients’ I-192 applications, and approach issues that are not completely clear cut. It is essential that legal assistants and new attorneys discuss all client inadmissibility grounds with supervising attorneys.

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Form I-192 is only part of the inadmissibility section of the U Status application. Nearly every client will also write a declaration that describes how the inadmissibility grounds were triggered, and provides information to support a discretionary approval by USCIS. Many applications will also include documentation to support a discretionary approval as well. Potentially Applicable Inadmissibility Grounds If there is any doubt about whether the applicant is inadmissible under a particular ground, ICWC considers it a “potentially applicable” inadmissibility ground and requests that USCIS waive the ground in the event that they determine that the ground has been triggered. In the I-192, please state: “Potential inadmissibility under INA § xxx.” In the Declaration, please explain the circumstances of the potentially applicable inadmissibility ground and ask from the applicant’s point of view that the ground be waived “although I believe that I am not inadmissible for [very short description of reason, e.g. having a condition that makes me a threat to myself] if USCIS deems that I am, please waive INA §212(a)XX.” INA § 212(a)(1) Health Grounds INA § 212(a)(1)(i) Any alien who is determined to have a communicable disease of public health significance (These diseases include: Active tuberculosis, infectious syphilis, gonorrhea, infectious leprosy, chancroid, lymphogranuloma venereum, granuloma inguinale, cholera, polio, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syndrome (SARS), and influenza caused by novel or re-emergent influenza (pandemic flu)]. These diseases are somewhat rare among U Status applicants, but those with these diseases will know it, and can request that it be waived. Note that the language of this inadmissibility ground is in the present tense. If an applicant had such a disease in the past and has recovered or completed treatment, this ground does not apply, and does not need to be waived. The I-192 declaration should describe whether the person is being treated for the disease, and what that treatment involves. Even with the I-192, USCIS may require the applicant to get a medical exam completed by a “Designated Civil Surgeon” (“DCS”) with Form I-693. The exam can cost between $200-500, and a waiver will still likely be required.

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Note that HIV/AIDS is considered a communicable disease (mark “yes” on the I-918, Part 3, #22a), but is no longer considered in this same group to determine inadmissibility (do not request a waiver on the I-192).

What to write on the I-192 and accompanying Declaration: If the applicant answers “yes” to Question 22.a. in Part 3 of the I-918. Simply list INA § 212(a)(1)(i) in Part 12 of the I-192. If there is any doubt whether the disease is active, it is a potentially applicable factor. On the I-192 please state, “Potential inadmissibility under INA § 212(a)(1)(i) and explain in the Declaration using language like the following: “Although I do not currently have a communicable disease of public health significance, USCIS may deem that I am inadmissible under INA § 212(a)(1)(i), and I therefore request a waiver of this ground.” INA § 212(a)(1)(i). (Applies to applications for immigrant - not nonimmigrant - visas.)

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INA § 212(a)(1)(iii)(I). An alien who is determined by USCIS to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others. [Note the past as well as present tense in this definition.] Suicidal thoughts and past attempts. The main circumstance in which U Status advocates have seen USCIS raise this inadmissibility ground is in cases in which the applicant has considered killing her/himself. The issue may come up in the applicant’s declaration or mental health evaluation from a therapist. USCIS adjudicators seem to take three approaches with applicants whom they have reason to believe may be suicidal: (1) read the materials submitted with the application to confirm or allay that concern; (2) if there is a reason to believe the applicant is inadmissible under this ground, waive § 212(a)(1)(iii)(I) if a waiver is requested and supported by evidence that it is in the public or national interest to approve the waiver; or (3) require the applicant to get a diagnosis from a DCS on Form I-693 (at a cost of $200-500). Depending on the outcome of that assessment, the applicant may be found inadmissible under § 212(a)(1)(iii)(I) and be required to request a waiver (which presumably she has already done). Advocates are working with USCIS to simply permit the applicant to admit to the ground of inadmissibility and request a waiver like any other waiver application. In the meantime, most attorneys prefer not to disclose an applicant’s thoughts of suicide unless the applicant affirmatively states that she is or has been a danger to herself. If the applicant discusses it in the context of her declaration, you can describe the possible ramifications with USCIS and ask whether she would still like to include it in her declaration. Almost no applicants are currently at risk of suicide (if an applicant is, see important note below), and do not want to risk having to get an expensive I-693. If a mental health evaluation (therapist letter) notes the issue (sometimes called “suicidal ideation”), but the applicant does not consider herself a suicide risk, discuss it with the therapist. Explain to the therapist that the sole purpose of the mental health evaluation is to demonstrate that the applicant suffered substantial abuse, and a finding of depression or PTSD, without additional details is sufficient for that purpose. Mention the consequences of a possible requirement that the applicant get an I-693. Most therapists only include notes on suicidal thoughts because they believe it will make the application stronger, and they’re happy to remove reference to it. If the therapist insists on disclosing past thoughts of suicide in documents that need to be submitted to USCIS, please emphasize the importance of noting in the letter that the applicant is not currently a danger to herself and is unlikely to be a danger to herself in the future. The letter should also describe how the evaluator has reached that conclusion, including the degree to which the applicant has received counseling and successfully adopted techniques for dealing with depression and trauma.

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What to write on the I-192 and accompanying Declaration: If the applicant was suicidal in the past and has answered “yes” to Question 22.b. in Part 3 of the I-918. Simply list INA § 212(a)(1)(iii)(I) in Part 12 of the I-192. If there is any doubt about whether the applicant was or is suicidal, it is a potentially applicable factor. On the I-192 please state, “Potential inadmissibility under INA § 212(a)(1)(iii)(I) and explain in the Declaration using language like: “Although I do not currently have a condition that makes me a threat to myself, USCIS may deem that I had such a condition in the past, and I therefore request a waiver of INA § 212(a)(1)(iii)(I).” Note that if an advocate works with a client who discloses thoughts of suicide, it is essential to refer the client immediately to mental health services, including a suicide hotline (national hotline is 1-800-273-8255), her own therapist, or a trusted service provider.

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Alcoholism. USDOS (Department of State) (in US consulates abroad) has taken the position with people seeking to immigrate into the US that alcoholism, as evidenced by multiple DUIs, is a disorder that poses a threat to public safety. However, the multiple DUI position is rarely taken by USCIS within the U.S. INA § 212(a)(1)(iv) An alien who is determined by USCIS (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible. [Note that the language does not specify past abuse or addiction.] The main circumstances in which this inadmissibility ground comes up are (1) the applicant admits to current drug abuse or addiction in the intake process or answers on the I-918; (2) the applicant’s criminal record includes drug-related arrests, and when we ask for details it is apparent that the applicant is currently a drug abuser; (3) the police report for the crime against the applicant includes details of the applicant’s drug use (e.g. marijuana was found on the victim); or (4) the mental health evaluation discloses drug abuse. To date, practitioners’ experience with this inadmissibility ground is that USCIS does not require an evaluation by a DCS. Applicants who are currently drug abusers or addicts have simply requested waivers of INA § 212(a)(1)(iv) and submitted evidence that it is in the public and national interest to waive the ground. If an applicant was a drug abuser in the past, but not the present, and documentation submitted with the U status application indicates that past drug abuse, the applicant should address the circumstances of the past abuse and submit evidence that she is no longer a drug abuser. INA § 212(a)(2) Criminal Grounds

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Appendices

INA § 212(a)(2)(i)(I) Crime Involving Moral Turpitude. Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude is inadmissible. Petty Offense Exception: This ground shall not apply to an alien who committed only one crime if (I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having

committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). Crimes Involving Moral Turpitude (CIMTs) include crimes of violence, theft, and conduct traditionally considered immoral, like prostitution or selling alcohol to a minor (drug crimes make an applicant inadmissible under another ground). The Immigrant Legal Resource Center’s chart of California Crimes includes analysis whether particular offenses are CIMTs. The critical element of the CIMT inadmissibility ground is that it generally requires a conviction. USCIS has the power to apply § 212(a)(2)(A)(i)(I) if an applicant admits to all of the elements of crime, under oath, but many advocates believe that USCIS virtually never uses this option. If an applicant was convicted of a CIMT, the I-192 must request a waiver of this ground and the application must include documentation that the waiver is in the national and public interest. If it not clear that the applicant was convicted, or that the conviction was for a CIMT (for example, the law is unsettled about whether hiring a prostitute is a CIMT), it is a potentially applicable factor. On the I-192 please state, “Potential inadmissibility under INA § 212(a)(2)(A)(i)(I) and explain the circumstances of the arrest/conviction and RRR in the accompanying Declaration. Petty Offense Exception. An applicant with only one conviction for a CIMT may be eligible for the petty offense exception if the offense he was convicted of has a maximum possible sentence of one year or less (this is why USCIS requires copies of the applicable penal code sections). A misdemeanor is a petty offense, punishable under CPC § 19.2 by a year or less in jail. Examples of common CIMT petty offenses include CPC 484(a) petty theft; CPC 647(b) engaging in prostitution; CPC 496 receiving stolen property; and CA Business and Professions Code § 25657 selling alcohol to a minor. INA § 212(a)(2)(A)(i)(II). Drug Offenses. Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation … relating to a controlled substance, is inadmissible.

Appendices

There is no “petty offense” exception to the controlled substance ground of inadmissibility, so any controlled substance offense must be specifically waived. The critical element of the controlled substance inadmissibility ground is that it generally requires a conviction or admission of the offense (but consider whether an arrest raises a concern whether the applicant is a drug abuser or trafficker). See discussion in CIMT section above of an “admission” of an offense. A number of offenses are “controlled substance” offenses, generally in the categories of (1) possession or (2) trafficking, although “possession for sale” is a common offense that includes both. In determining what evidence is required for a waiver, the type of drug possessed is relevant, with small amounts of marijuana at the low end of severity. Drug trafficking offenses are covered under both this inadmissibility ground and INA § 212(a)(2)(C), below. They are much more serious and require more substantial proof that the applicant is eligible for a waiver in the national and public interest.

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INA § 212(a)(2)(B). Multiple convictions with aggregate sentences of 5 or more years. Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

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Applicants whose offenses are so numerous or severe that they were sentenced to 5 or more years in jail should only be served by attorneys with substantial experience working with clients with criminal convictions. INA § 212(a)(2)(C)(i). USCIS has “reason to believe” applicant is a drug trafficker. Any alien who [USCIS] knows or has reason to believe is or has been an illicit trafficker in any controlled substance or in any listed chemical, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so. (Note that immediate family members of immigrants subject to this ground of inadmissibility may also be inadmissible. See INA § 212(a)(2)(C)(ii)). This extremely broad ground of inadmissibility may be triggered by any arrest for a drug trafficking offense, whether it resulted in a conviction or not. If the applicant has a drug trafficking conviction, she must request a waiver of both §212(a)(2)(A)(i)(II) and 212(a)(2)(C)(i). However, if there was no conviction, we cannot assume that USCIS will treat the arrest without conviction as “reason to believe” she is a drug trafficker. Therefore, if there is only an arrest or charges, with no conviction, this is probably just a potentially applicable, so you can list it as a Potential inadmissibility under INA § 212(a)(2)(A)(i)(II) and 212(a)(2)(C)(i) and in the Declaration explain the circumstances of the arrest, including RRR: “I was arrested, but not charged or convicted, for possession of marijuana for sale on March 3, 2011. I did not intend to sell marijuana. However, if USCIS deems that there is reason to believe I trafficked drugs, please waive this inadmissibility ground. INA § 212(a)(2)(D). Engaged in Prostitution or Procured Prostitute within past 10 years. Any alien who- (i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status, (ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution is inadmissible. Note that an arrest or conviction is NOT required for this inadmissibility ground: it penalizes the conduct alone.

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Appendices

“Engaged in Prostitution” refers only to being a prostitute, not hiring a prostitute (a “john”). An applicant who has engaged in prostitution within 10 years before her U status application must request a waiver of INA § 212(a)(2)(D)(i). “Procuring” a prostitute refers only to the person who

organized the sale of prostitution services (a “pimp”). An applicant who procured prostitution during that period must request a waiver of INA § 212(a)(2)(D)(ii). Arrest for prostitution. INA § 212(a)(2)(D) does not require a conviction for prostitution. However, if an applicant is convicted of engaging in prostitution, hiring a prostitute (being a “john”) or procuring a prostitute, s/he may be inadmissible for conviction of a Crime Involving Moral Turpitude. See discussion of CIMTs above. Space limitations and potentially applicable factor language: If your client has more than one potentially applicable factor, just list the clearly triggered grounds (e.g.INA § 212(a)(6)(A)), then add “Potential inadmissibility under INA §§ 212(a)(2)(A)(i)(I) and 212(a)(6)(E).” INA § 212(a)(3) Security Grounds Very uncommon among U Status applicants. INA § 212(a)(4) Public Charge Does not apply to U Status applications. INA § 212(a)(5) Labor Certification Problems Does not apply to U Status applications. INA § 212(a)(6)(A), Present Without Being Admitted or Paroled An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible. The vast majority of U Status clients will request waivers of INA § 212(a)(6)(A) because they either (1) entered the U.S. without being formally inspected and admitted at the border or airport, (2) entered the U.S. by falsely claiming to be U.S. citizens, (3) were admitted but don’t have proof of it, or (4) were technically “admitted” even though they entered the U.S. fraudulently. The first group will just request a waiver of INA § 212(a)(6)(A).

Appendices

Examples of immigrants who will request waivers of § 212(a)(6)(A) for simple entry without admission or parole. 1. Teresa walked with a group of people led by a coyote through the desert in November, 2009 near Douglas, Arizona and made it safely into the U.S. 2. Jonathan walked across the border, either on his own or with a group, four times between 1996 and 2010, and was never caught.

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3. Julia tried to cross the border twice in April, 2003 and was detained and sent to Mexico each time. On her third attempt, Julia crossed the border successfully.

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The second group will request a waiver of INA § 212(a)(6)(A) AND § 212(a)(6)(C)(ii) for false claim of U.S. citizenship (see below), and will write a description of the entry and explanation for the violation in the I-192 declaration. Example of an immigrant who will request waivers of § 212(a)(6)(A) for entering the U.S. by making a false claim of U.S. citizenship. Maurice used a false birth certificate to get a California Driver’s License. He showed the license to a CBP official at the San Ysidro border checkpoint. The official asked Maurice if he was a U.S. citizen, and Maurice said he was. Maurice is inadmissible for the false claim of U.S. citizenship, and his entry is not considered an “admission,” so he is also inadmissible for entry without admission. The third group technically did not trigger this ground, but should request a waiver because USCIS will request evidence of admission, which these applicants do not have. Additionally, getting it waived now will help avoid any possible problems with adjudication of any other immigration applications in the future. People in this situation include applicants who were lawfully admitted but can’t prove it, including those who (3a) were admitted with tourist, student or other nonimmigrant visas or a B1/B2 Border Crossing Card, but either their passports weren’t stamped, or they have lost documents that show that the entry was lawful; (3b) were “waved through” at the border (as a passenger in a car or pedestrian at a land border crossing). If the applicant entered the U.S. with “admission,” but can’t prove it, she can state on the I-192: Potential inadmissibility under INA § 212(a)(6)(A). She should then explain in the I-192 Declaration using language that follows: 1) I entered the U.S. in a car that was waved through the U.S./Mexico border on [date] at [place]. Because I do not have evidence of my admission, I may be deemed inadmissible, and therefore request a waiver of INA § 212(a)(6)(A), OR 2) I entered the U.S. lawfully with [type of entry document] on [date]. However, I do not have evidence of my admission. If I am therefore deemed inadmissible, I request a waiver of INA § 212(a)(6)(A). The fourth group technically did not trigger this ground because an entry to the U.S. based on false information is technically an “admission.” This includes people who used false documents (other than documents showing that they are U.S. citizens) and people who lied about a material fact in getting or using a visa to enter the U.S. However, clients should request a waiver of this ground as a potentially applicable ground to avoid problems with the I-918 adjudication and/or future immigration applications. These applicants must also request waivers of the misrepresentations they made (see INA § 212(a)(6)(C)(i) below.

Appendices

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Examples of immigrants who will request waivers of § 212(a)(6)(A) because although they were technically admitted, they do not have evidence that they were INA § 212(a)(6)(B) Failure to attend removal proceeding Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien's inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien's subsequent departure, is inadmissible. Examples of failure to attend removal proceedings:

Appendices

1. Celia was caught by immigration officials trying to cross the border on foot near Calexico. She was taken to a CBP office, where she signed some documents, gave her address (she gave a false address, as she had been instructed by a coyote) and had her fingerprints taken. She was told something about going to immigration court, and then she was permitted to enter the U.S. Celia never received any mail about an immigration hearing because she was not at the address she gave officials. Celia probably missed her immigration court hearing and was probably ordered removed in absentia (that is, without being there). Celia probably failed to attend her removal proceedings. 2. Jose was stopped for having a broken tail light on his car and taken to jail to get his prints taken because he didn’t have any government-issued ID. At the jail, an ICE official put an “immigration hold” on him. Jose’s wife hired an immigration attorney to arrange for Jose to get out on bond, and that immigration attorney also agreed to represent Jose in removal proceedings for $10,000. Jose was able to pay $2,000 for the first court appearance, but he could not get the remaining $8,000, so the attorney said he could not represent him anymore. Without an attorney to represent him, Jose decided not to go to his next court appearance. Jose failed to attend his removal proceedings. 3. Bianca applied for TPS, and her application was denied. She got a “Notice to Appear” in the mail, and she attended her immigration court hearing. The judge gave Bianca more time to find an attorney, but Bianca couldn’t do so, and planned to appear without an attorney at her next hearing. On the day of the hearing, Bianca was assaulted on the street and was taken to the hospital to treat her injuries. When Bianca got out of the hospital the next day, she went to the court to find out what she should do. She was told to write a letter to the judge explaining what happened. Bianca wrote a letter and turned it in to the court. Two weeks later, Bianca got a new notice to appear in court, and she attended her next court hearing. The judge told her that she had been ordered removed in absentia, but that her letter explained what happened, so he reopened her removal case. Even though it was reopened, Bianca failed to attend her removal proceedings. You may learn from the applicant’s FBI record whether she was ordered removed. It may say “ALIEN INADMISSIBILITY UNDER SECTION 212” or “EXPEDITIOUSLY REMOVED FROM THE US.” You may also be able to find the applicant’s A number on the FBI record, and call the EOIR Case Information line at 800-898-7180 to find out whether the applicant was ordered removed, and the date of the removal order. The A number sometimes appears on the cover sheet under MISC NUMBERS next to SOCIAL SECURITY and SCARS-MARKS-

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TATOOS, and will either start with AR or A, and include 8 or 9 numbers. The A number may also appear in an entry for an immigration violation, as “Agency Case Number” that starts with A or AR. The applicant may also have a copy of some other document with an A number on it.

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If it is not clear what happened, treat this as a potentially applicable ground. Answer “yes” to I918 Questions 8 and 14 b.-d., and write on the I-192, “Potential inadmissibility under INA § 212(a)(6)(B) and explain in the Declaration everything the applicant can remember. For example, “I walked across the desert near Nogales, Arizona with a coyote and about 20 other people. When we had gone about 5 miles, we were stopped by immigration officers and taken back to their office. After I was questioned for about 15 minutes, they took my fingerprints and a picture of me. They asked me for my address in the U.S., and I told them I didn’t have one, but I would give them my aunt’s address in Los Angeles. I gave them a fake address in El Monte that the coyote told me to give if we were stopped. An officer told me that they were going to take most of the people back to Mexico, but that I could stay in the U.S. He said I would get something in the mail and that I should follow the instructions. I never got anything in the mail, because it was a fake address, but I now think it was probably instructions to go to court. I never went to court, so I believe I was ordered removed.” Most applicants who trigger INA § 212(a)(6)(B) also trigger INA § 212(a)(9)(A) (previously ordered removed) and § 212(a)(9)(C) (unlawful entry after immigration violation). See discussion of these grounds below. INA §212(a)(6)(C)(i), AKA “Visa Fraud” or Misrepresentation Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

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Appendices

There are three key components of this inadmissibility ground: 1) Willful misrepresentation (the person knew it was false). ICWC interprets this to mean two things: a. If the immigrant doesn’t flat-out lie, it’s not misrepresentation. For example, if an immigration officer asks a person traveling on a tourist visa what she plans to do in the US, and she answers “to visit friends,” that is not a willful misrepresentation unless she does not visit any friends. The immigrant has not told the officer the whole story (that she plans to stay in the US permanently), but the officer didn’t ask for the whole story. A child who is too young to understand the law (certainly under 14 years old) cannot make a willful misrepresentation. 2) Material fact (the truth would have made a difference in granting the benefit or not). 3) To obtain admission to the US or other immigration benefit. This inadmissibility ground doesn’t apply to other types of misrepresentations even if they touch on immigration, for example, getting a job, or other type of benefit that is not immigration. Not that the focus is on admission or benefit. If someone lies to gain an easier departure from from the U.S., this ground is not triggered (see Example 4 below).

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Examples: Inadmissibility ground does not apply 1. When Doria was 12, she and her mom went to the US Consulate in San Salvador and got 10 year tourist visas. They flew to the Los Angeles airport and her mom showed the visas to the immigration inspector, and answered some questions. Although Doria did not realize it, her mom had lied to the inspector that Doria would be returning to school in San Salvador in the Fall. Doria was too young to have the required willful intent to misrepresent herself, and besides, it was her mom who told the lie, so Doria did not make a willful misrepresentation of a material fact and is therefore not inadmissible under INA § 212(a)(6)(C)(i). Doria’s mom is not inadmissible for lying about Doria’s plans, but she may have made other willful misrepresentations about her own admission to the U.S., so ask her about that. Moreover, Doria’s mom may be inadmissible for INA § 212(a)(6)(E), assisting an alien to enter the U.S. in violation of the law (see 212(a)(6)(E) below). 2. Kevin came to the U.S. at the San Francisco airport in 2008 with a tourist visa with a 10 year validity period, issued in 2000. Kevin intended to come to the U.S. permanently when he came in 2008, but at the border he was only asked where he was going, and he truthfully answered “to visit friends in Oakland.” Kevin technically did not make a willful misrepresentation of a material fact to get an immigration benefit, and is not inadmissible under this ground.

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Definitely Applicable inadmissibility ground: 3. Gerald fell in love with Linda, a U.S. citizen who was studying in Peru. They got married in Peru before Linda returned to the U.S. so that she could apply for him to come to the U.S. as her spouse. Then they found out that the process would take more than a year. Someone told Gerald it would be faster to go to the U.S. as a tourist. Gerald applied for his tourist visa in the US consulate in Lima. At his interview, he was asked whether he was married. Knowing that he wouldn’t get his tourist visa if he revealed that he was married to a US citizen (because it is presumed that he would stay in the US with his spouse), Gerald lied and said he was not married. Gerald was given a tourist visa, with which he flew to Los Angeles. At the airport, he was again asked if he was married and he lied again and said he was not married. Gerardo definitely made a willful misrepresentation (he flat-out lied to a direct question) of a material fact (if the officer knew he was married, he would have asked whether Gerardo’s spouse was a U.S. citizen), and knowing she was a U.S. citizen, he would have concluded (or asked) that Gerardo was not traveling as a tourist, but as someone who planned to immigrate to the U.S. – which is prohibited on a tourist visa. Because Gerald made a willful misrepresentation of a material fact, he definitely needs to request a waiver of INA § 212(a)(6)(C).

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4. Phyllis’s husband lent her his sister Bethany’s U.S. birth certificate and passport, and because she looked remarkably like Bethany, she was admitted to the U.S. after showing the documents to a CBP official at the Los Angeles Airport. Phyllis is inadmissible under INA § 212(a)(6)(C)(i) because she lied to get an immigration benefit, and under INA § 212(a)(6)(C)(ii) because she falsely claimed to be a U.S. citizen. She must request waivers of each ground.

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Potentially Applicable inadmissibility grounds: 5. Eduardo flew from his home in Chile to Mexico City. He took a bus to the border and paid a coyote to bring him across. The coyote told him that if they were caught, he should say he was from Mexico, and that his name was Juan Garcia. They were hiking through the mountains in Arizona when they were stopped by immigration officials. At the office, Eduardo told the officers the false information. They fingerprinted him, put him on a bus, and took him back across the border to Mexico. Although he lied about his name and country of origin (that is, he willfully gave false information), Eduardo is not inadmissible under INA § 212(a)(6)(C) because he was not lying in order to get an immigration benefit under the INA – that is, to enter the U.S. or get an entry visa or legal status. He was lying instead to avoid being sent back to Peru, which is not an immigration benefit under the INA. However, this can be treated as a potentially applicable ground, using the language above. 6. Tina rode to the border in the back seat of a coyote’s car. At the inspection station at the border, the coyote showed an official some kind of document, and the car was permitted to enter the U.S. Although the coyote probably made a misrepresentation on Tina’s behalf, because Tina herself did not make the misrepresentation and is not inadmissible under INA § 212(a)(6)(C)(i). However, this can be treated as a potentially applicable ground, using the language above. INA §212(a)(6)(C)(ii), False Claim of U.S. Citizenship Any alien who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under this Act or any other Federal or State law is inadmissible. A negligible exception exists for a child with U.S. citizen parents who reasonably believed she was a U.S. citizen. The effective date of this ground is September 30, 1996. Any false claims of U.S. citizenship before that date would only trigger an inadmissibility ground if they are covered by INA § 212(a)(6)(C)(i), above. There is no waiver of this inadmissibility ground in general immigration law. However, like almost every other ground, it is waiveable in the U Status context on Form I-192. Therefore, a person who is inadmissible under this ground may be granted U Status, and may adjust her status. Some USCIS officials have indicated that USCIS will recognize the waiver granted with U Status in the naturalization context as well.

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Appendices

Unlike INA § 212(a)(6)(C)(i), this inadmissibility ground applies to misrepresentations to obtain any benefit provided under U.S. or state laws, including registering to vote, marking U.S.

citizenship status on an I-9 Form when starting a job, and applying for government-funded financial aid. Examples: Inadmissibility ground definitely applies 1. Cynthia showed her U.S. citizen cousin’s birth certificate at the San Ysidro inspection station to enter the U.S.. 2. Brian registered to vote in Los Angeles, and marked the “I am a U.S. citizen” box on the form. (In the rare situation where someone actually voted, she would be inadmissible under INA 212 § (a)(10)(D)) 3. Janet marked the “U.S. citizen” box on the I-9 form when she started her job. There are no questions on the I-918 form regarding false claims of U.S. citizenship, so case workers will generally only find out whether this inadmissibility ground applies to a client if the information comes up in the conversation about entry to the U.S. At this point, ICWC does not have plans to engage in a more in-depth investigation into false claims of U.S. citizenship, but we will alert case workers if this changes. INA § 212(a)(6)(E)(i), “Alien Smugglers” Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible. Many U Status applicants have encouraged or paid for a spouse, child, other family member or friend to come to the U.S. in violation of law, or brought a child with them when they entered the U.S. unlawfully.. If the smuggled person entered the U.S. without lawful admission, the applicant should mark “yes” to question 3.c. in I-918 Part 3, list INA § 212(a)(6)(E) on the I-192, and explain the circumstances (reasons for wanting to help the immigrant and mitigating factors) in the I-192 declaration. If the child was “admitted” for purposes of INA § 212(a)(6)(A), it is arguable whether the entry was in violation of law (the case law on admissions specifically distinguish an admission under INA § 212(a)(6)(A) from a “legal admission.” Because there is no evidence of the lawful admission, treat this as a potentially applicable ground of inadmissibility. On the I-192, write, “Potential inadmissibility under INA § 212 (a)(6)(E). In the Declaration explain “I paid for a coyote to bring my son to the U.S. The coyote gave my son some kind of documentation that permitted him to be waved through at the border.”

Appendices

Examples: 1. Elizabeth had to leave her daughter with her own mother when she came to the U.S. to find work so she could send money back to help her family. As soon as she had enough money to pay a coyote, Elizabeth sent for her daughter. Elizabeth “encouraged” and

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“aided” her daughter to enter the U.S. unlawfully, and therefore violated INA § 212(a)(6)(E), and needs to list the section on her I-192. 2. Betty’s husband Roberto arranged for a coyote to bring his son Bryan, from Robert’s prior marriage to the U.S. Although Betty did not arrange or personally pay for the coyote, she was aware that Roberto was making arrangements and that Bryan was coming to live with them. In these circumstances, Betty probably encouraged and abetted Bryan’s unlawful entry, so this is a potentially applicable inadmissibility factor. On the I-192, write, “Potential inadmissibility under INA § 212(a)(6)(E).” In the Declaration explain “I did not arrange for my step son to enter the U.S. unlawfully, but I did know he was coming to live with us. If USCIS deems that I encouraged him to enter the U.S. unlawfully, please waive INA § 212(a)(6)(E). Note that if Betty had no involvement in Bryan’s coming to live in the U.S., she probably did not trigger this ground.

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INA § 212(a)(7)(B)(i)(I) Document Requirements Any nonimmigrant who is not in possession of a passport valid for a minimum of six months … is inadmissible. If an applicant in the U.S. does not have a current passport at the time of filing the I-918, include INA § 212(a)(7)(B) in the list of factors to waive. If the applicant’s passport will expire before U Nonimmigrant Status is granted (up to two or three years due to the long waiting list), the applicant should request a waiver of this ground. In fact, getting a passport at the I-918 stage may be more trouble than it is worth for the applicant now and at the adjustment of status stage, so ICWC staff should no longer ask clients to get passports and instead routinely request a waiver of this ground. What to write on the I-192: 1)

If the applicant does not have a passport at all, she should write on the I-192 or in her declaration: “I do not have a passport because [reason, e.g. unable to afford the passport fee]. Please waive INA § 212(a)(7)(B). 2) If the applicant has a passport that will likely expire before U Status is granted, she should write on the I-192 or in her declaration: “My passport is currently valid, but because it may expire before a possible grant of U Status, I request a waiver of INA § 212(a)(7)(B).” INA § 212(a)(8) Permanently Ineligible for Naturalization Aggravated felons and draft evaders are ineligible for naturalization and are inadmissible. Very uncommon among U Status applicants. INA § 212(a)(9)(A)(i) Certain Aliens Previously Removed

Appendix BB-13

Appendices

An immigrant who has been ordered removed (expeditiously at the border, or by an immigration judge) is inadmissible for five years.

A. Expedited Removal within 100 miles of the border (after April 1, 1997). See the attached worksheet to help determine whether an applicant was expeditiously removed. If the applicant was expeditiously removed, she will answer “yes” to questions regarding removals on the I-918 (Part 2, #8, Part 3, #14b, c. and e), and request a waiver of § 212(a)(9)(A)(i). When in doubt, treat it like a potentially applicable inadmissibility ground. On the I-192 write. “Potential inadmissibility under INA § 212(a)(9)(A)(i). Then write an explanation of the circumstances of the applicant’s attempted entry and departure in the I-192 declaration. Examples: Probably Expedited Removal. Maria paid a coyote to bring her to the U.S. The coyote gave her a green card of a person who looked like her and told her to show it to the immigration official at the border station in El Paso, Texas. The immigration official asked Maria when she got her green card, but Maria did not know – she hadn’t thought to find out. She guessed a date, but it was not the date on the card. The immigration official asked if it was really her green card and she admitted that it wasn’t. The officer asked her for her name and date of birth and wrote them on a form. He read from a form that that she did not appear to be admissible to the U.S. and that she could be removed from the U.S., and would be in custody of the Immigration Service while they tried to figure out whether she would be removed. He asked if she understood what he had said, and asked her if she would answer questions truthfully. He asked her to write her initials on the bottom of the form that he was reading from. Then he asked a few other questions, including, “Why did you leave your home country or country of last residence? Do you have any fear or concern about being returned to your home country or being removed from the United States? Would you be harmed if you returned to your home country?” He had her initial the bottom of the page. He read to her, in Spanish, a statement that her answers were true to the best of her knowledge, and had her sign the statement. He signed the statement and another officer came and signed the form. He gave her a copy of another immigration form (Form I-860) that said she was not admissible to the U.S. and that she was being removed. He told her that she was being removed from the U.S. and that she could not come back for at least five years. Maria was put on a plane to Mexico City, and she did not pay for the flight. It seems that Maria probably has an “expedited removal,” and will need a waiver of INA § 212(a)(9)(A)(i). Sure enough, her FBI report came back showing that she was “Expeditiously Removed” from the U.S. Note, though, that many times the FBI report does not list expedited removals, so you’ll have to decide based on what the applicant remembers. She should also explain in detail the circumstances of her detention and release in her I-192 declaration 2. Probably Not Expedited Removal. See Eduardo’s story above at Page 8, #5. Eduardo was not asked questions about fear of returning to his home country, told he was being removed, or told not to come back for five years. Moreover, the FBI results do not show any law enforcement activity at the border.

Appendices

1.

If an applicant’s FBI report does not list an expedited removal, but she suspects she was expeditiously removed, she should mark “no” regarding removal proceedings and removals on the I-918, but treat it as a potentially applicable inadmissibility ground. On the I-192 state,

Appendix BB-14

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“Potential inadmissibility under INA § 212(a)(9)(A) and in the Declaration explain what happened. Example, “I was detained by immigration officials when I tried to cross the border near Calexico, California and released to Mexico.”

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B. Removal Order by an Immigration Judge Except through expedited removal at the border, an immigrant may only be removed, or ordered removed, by an immigration judge. The following examples describe removals by an IJ. Examples: 1. In absentia orders. See all of the examples of failure to attend removal proceedings, above: Jose, Celia and Bianca. Each of those immigrants has been ordered removed, and need to request waivers of INA § 212(a)(9)(A)(ii)(I). 2. Juana was caught trying to cross the border near McAllen, Texas. She was taken to the border patrol station and asked questions, including whether she was afraid to return to her home country. She said she was afraid, because her town had been taken over by a drug gang. Juana was detained, but was released from detention when her sister paid a bond. She was given a “Notice to Appear in Immigration Court.” She attended court and was given a hearing date to present her case for asylum. She could not afford a lawyer, so she explained to the judge what the conditions were in her home town and why it was dangerous to live there. The judge told her that it was not enough that she was afraid – she had to show that she was eligible for asylum under every required ground. . The judge determined that she had not shown she qualified, and he ordered her removed from the U.S., but said that she could appeal the decision. Juana wrote to the Board of Immigration Appeals and explained her story again. The BIA upheld the judge’s order. The BIA sent Juana a notice that her removal order was affirmed and informed her that she had to leave the U.S. Juana has an order of removal. 3. Martina was already in the U.S. with her three U.S. citizen daughters. An unscrupulous attorney convinced her to get into removal proceedings so she could apply for a green card through Cancellation of Removal. The attorney prepared an application for adjustment of status even though Martina wasn’t eligible to adjust her status. The application was denied and Martina was served with a Notice to Appear in immigration court. The attorney prepared an application for Cancellation of Removal, but it was ultimately denied because they were unable to prove that Martina’s three children would suffer exceptional and extremely unusual hardship if she were removed. The attorney asked the judge if instead of ordering Martina’s removal, he would grant her Voluntary Departure (VD) – a period of time to remain in the U.S. while preparing to depart voluntarily. She was granted VD, but never returned to her country. If someone who is granted VD does not actually depart, that VD turns into a removal order. Therefore, Martina has an order of Removal.

Appendices

Appendix BB-15

INA § 212(a)(9)(B). The 3- and 10 year bars An alien who has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States is inadmissible. Bear in mind in the following description of these bars that they are waived quite easily on Form I-192 as part of the U Status petition process. However, they can cause substantial problems in other immigration applications with much tougher inadmissibility waiver processes. “Unlawful presence” (aka ULP) is a specialized term used in this section. It is generally defined as a period during which someone is not in lawful immigration status, even if that person initially entered the U.S. lawfully (on a tourist visa that only permitted a six month visit, for example), or was “admitted” according to the rules spelled out in the discussion of INA § 212(a)(6)(A) above. The concept of unlawful presence was created in 1996 and did not take effect until April 1, 1997. Therefore, no unlawful status in the U.S. before that date is counted for purposes of inadmissibility under INA § 212(a)(9)(B). In addition, for purposes of the 3- and 10 year bars under this section, being in the U.S. without lawful status under the age 18 does not qualify as ULP. However, as described below, one year or more of unlawful presence by a minor followed by an unlawful entry may make the minor inadmissible under INA § 212(a)(9)(C) (the permanent bar). Quick INA § 212(a)(9) Reference If the person is an adult and has a total of 1 year or more of ULP in the US and then leaves the US and reenters EWI – waive both INA(a)(9)(B) and INA(a)(9)(C). If the person is a minor and has a total of 1 year or more of ULP in the US and then leaves the US and reenters EWI – waive only INA(a)(9)(C). If the person is ordered removed and then enters the US EWI after removal – waive INA(a)(9)(A) and INA(a)(9)(C). Also note that she may have triggered INA (a)(9)(B), depending on the amount of ULP she had – see above. If the person is an adult and has 180 -364 days of continuous ULP in the US and then leaves the US and reenters EWI – waive INA(a)(9)(B). Also note that if the person had additional, noncontinuous days of ULP in the US, and they add up to more than 365 days in the aggregate, you need to waive INA(a)(9)(C) (because for (a)(9)(C), the 365 days are in the aggregate, not continuous).

Appendices

If the person is an adult and has 180 days or more of ULP in the US and then leaves the US and reenters lawfully (with a visa or waved in) – waive INA(a)(9)(B).

Appendix BB-16

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If the person was previously ordered removed, also waive INA § 212(a)(9)(A). If he is not sure, he should use the potentially applicable inadmissibility factor approach described in the INA § 212(a)(9)(A) above).

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Examples of ULP 1. Betty came to the U.S. in 2003 when she was 22, without inspection. Betty has been accruing ULP since 2003. 2. Josefina came to the U.S. on a tourist visa in February, 2008. Although the tourist visa is called a ”10 year visa” because she can use it over and over for 10 years, she is only permitted to stay in the U.S. for any one period for six months or less. Josefina never left the U.S. Josefina started accruing ULP as soon as her period of authorized stay ended, in August, 2008. 3. Fiona came to the U.S. in February, 1994 when she was 18, without inspection. She left the U.S. on July 2, 1997. Fiona started accruing ULP on April 1, 1997, and accrued 92 days of ULP by the time she left the U.S. 4. Carlos was an adult passenger in a car when it was “waved through” the border in July, 2010. Although Carlos was technically admitted to the U.S. when he was waved through, he did not get any legal status. Carlos started to accrue ULP as soon as he arrived in July, 2010. 5. Carlos’s younger brother Marco was a passenger in the same car, and he was 15 years old at the time. For one of the UP bars (the 10 year bar per INA § 212(a)(9)(B), below), Marco doesn’t accrue ULP until he turns 18. For the other (the permanent bar per INA § 212(a)(9)(C), below), he started accruing ULP at the same time as Carlos. ULP does not have any effect on inadmissibility until the immigrant with ULP leaves the U.S. As soon as the immigrant leaves, the amount of time she spent in ULP counts against her when she wants to come back, as follows:

Appendix BB-17

Appendices

1) THREE YEAR BAR. Someone who leaves the U.S. after 180 days of ULP “triggers” the “3 year bar” as soon as she leaves the U.S. This means she has to wait 3 years before she can be “admitted” to the U.S. Although we normally think of “admitted” as being permitted to enter the U.S., in most cases a person with a three year bar is permitted to enter the U.S. However, she cannot be granted lawful status (like adjustment of status through a petition by a spouse) for three years after she left the U.S. Example: If Josefina (who started accruing ULP in August, 2008 when her authorized stay ended) leaves the U.S. before February, 2009, she will have accrued less than 180 days of ULP. She still has ULP, but because the “three year bar” does not take effect until an immigrant has 180 days of ULP, Josefina’s departure from the U.S. did not trigger a bar. If Josefina leaves the U.S. in March, 2009 (after 190 days of ULP), her departure from the U.S. will “trigger” the three year bar. 2) TEN YEAR BAR. Someone who leaves the U.S. after one full year (without leaving during that time) of ULP “triggers” the “10 year bar” as soon as she leaves the U.S. This is true regardless of the reason she leaves the U.S.

Examples. 1. Mireya left the U.S. in 2012 after accruing ULP since 2003. Mireya triggered the 10 year bar when she left the U.S. in 2012. 2. Joaquin never left the U.S. Joaquin has ULP, but he has not triggered any bar. 3. Joshua left the U.S. in 2012, when he was 17. Although Joshua would have two years of ULP if he were over 18, he does not accrue ULP for purposes of the 10 year bar, so he does not trigger the 10 year bar when he leaves the U.S. in 2012. However, see the discussion below for the permanent bar. INA § 212(a)(9)(C). Unlawfully present after previous immigration violation, AKA the Permanent Bar Any alien who (I) has been unlawfully present in the United States since April 1, 1997 for an aggregate period of more than 1 year, or (II) has been ordered removed, and who enters or attempts to reenter the United States without being admitted is inadmissible. o

o

No exception for minors. Although time without status in the U.S. does not accrue as ULP for purposes of the 10 year bar (triggered when the immigrant leaves the U.S.), that exception does not apply for purposes of the permanent bar. This applies even if the accrual of ULP, the departure from the U.S., or the unlawful entry are completely out of the control of the minor. The permanent bar is triggered even if the immigrant with ULP simply inquires about reentering the U.S. That is considered an attempted entry without inspection.

Examples. 1. Manuel has come to the U.S. without inspection every spring since 1998 to work in the fields for six months. After six months, Manuel returns to Mexico. For purposes of the 10 year bar, Manuel never accrued a full year of ULP. However, for purposes of the permanent bar, ULP is measured in the aggregate. Measured this way, Manuel has more than a year of ULP. The fact that Manuel entered the U.S. unlawfully after accruing one year of ULP makes him subject to INA § 212(a)(9)(C). 2. Joshua (described above) did not trigger the 10 year bar when he left the U.S. after spending two years in the U.S. without lawful status under age 18. However, if Joshua enters the U.S. unlawfully by entering without inspection or through visa fraud, he will be subject to INA § 212(a)(9)(C). INA § 212(a)(10)(A). Polygamists Very uncommon among U Status applicants.

Appendices

INA § 212(a)(10)(A). Unlawful voters Very uncommon among U Status applicants.

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APPENDIX CC

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Date: ________________

FBI CJIS Division Special Correspondence Unit 1000 Custer Hollow Road Clarksburg, WV 26306

Dear CJIS Division: I request a check of my FBI record. I enclose my fingerprint card and a money order in the amount of $18.00 payable to “Treasury of the United States.” Please send the record to me at the address below: ________________________________ ________________________________ ________________________________ ________________________________ Thank you. Sincerely,

______________________ (Signature) ______________________ (Print Name)

Appendices

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FBI Attn: SCU 1000 Custer Hollow Road Clarksburg, WV 26306 December 15, 2009 Re:

NAME OF CLIENT, Date of Birth: xx/xx/xxxx INQUIRY RE: FBI CLEARANCE REQUESTED on 10/07/2009 AND NOT YET RECEIVED

I am writing to inquire about my FBI Clearance Request that I sent to your office on October 7, 2009. My request was complete and contained (1) a cover letter signed by me making the request; (2) a fingerprint card containing my fingerprints and biographic information; and (3) a money order for $18.00 made out to “U.S. Treasury Dept.” Please see copy enclosed. I am also enclosing the US Postal Service Track and Confirm Printout which indicates that my request was received at Clarksburg, WV 26306 on October 13, 2009. Although my request appears to have been received by your office on October 13, 2009, I still have not received any response to my request. Please process my previously submitted documentation and forward my FBI Clearance to me as soon as possible at the following address: Name of Client Address of Client Thank you very much for your time and attention to this matter. Sincerely,

Appendices

Name of Client

Appendix CC-2

Instrucciones para obtener una verificación de su record de FBI 1. Obtener sus huellas digitales tomadas para una verificación de antecedentes por el FBI.

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2. Llenélo la parte superior del formulario de huellas digitales. Es importante firmar la forma, y es muy importante que la persona que toma sus huellas digitales firme el formulario también. Lista la razon por la verificación como: “Personal Record”.

3. Mándelo la tarjeta de sus huellas y un money order a nombre de “Treasury of the United States” de $18 al FBI con la carta en la reversa de este hoja.

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Appendix DD-1

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WAS A DETENTION AND RETURN TO MEXICO A “TURN BACK” OR AN “EXPEDITED REMOVAL”? Expedited Removal Procedures: DHS can remove an immigrant without representation or a hearing before an immigration judge within 2 years of the immigrant’s entry to the U.S. Normally, this happens within several miles of the border or international airport, and at or shortly after entry. Until recently, it was normally limited to arrests outside California, or for attempted entry with false immigration documents. Increasingly we are seeing it for some entries without inspection in California as well. Expedited Removal involves two “inspections” by different officials. The first officer who suspects that someone is removable refers the immigrant to a secondary inspector. The immigrant is required to execute a Sworn Statement on Form I-867AB, Record of Sworn Statement. This involves the immigration inspector reading each question on the form to the alien, who must sign and initial each page and any corrections. An interpreter must be provided. The immigrant must be given notice of the charges on Form I-860, Notice and Order of Expedited Removal, and an opportunity to reply to the charges. We ask potential U visa and VAWA clients to get their FBI background checks, and sometimes those checks show an expedited removal, but not always, so we need to try to figure it out here as well. It’s also a good idea to have the case analyzed at the start instead of having to wait for the FBI check. If the applicant was detained at or near the border, ask her the following questions. Yes answers may mean it was an expedited removal. 1) Did you try to use false documents (false green card, driver’s license, birth certificate) to be admitted by fraud? [If someone was detained without documents, it may still be an expedited removal, but a little less likely, particularly before 2003 in California.] 2) Were you asked questions from a two-page form (copy attached to this memo), including: • Why did you leave your home country or country of last residence? • Do you have any fear or concern about being returned to your home country or being removed from the United States? • Would you be harmed if you returned to your home country or country of last residence? 3) Did you write your initials on each page of the form after the officer completed it? 4) Were you given a copy of the charges (Form I-860) against you and given an opportunity to respond to them? 5) Did you sign THREE fingerprint cards? 6) Were you told that you were being removed or deported?

Appendices

7) Were you told that you could not come back for five years?

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Questions to help determine if a detention at/near the border was an expedited removal: ¿Ha tenido alguna vez algún encuentro con inmigracion? Sí___ No____ Si responde sí, explique:________________________________________________________________

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______________________________________________________________________________ Alguna vez ha tenido con Inmigración o con la policía: a. Sí___ No___ huellas digitales b. Sí___ No___ fotografiada c. Sí___ No___ firmo papeles d. Sí___ No___ ver a un juez e. Sí___ No___ hablado con un oficial de la ley f. Sí___ No___ detenida en la frontera g. Sí___ No___ arrestada en la frontera. Si responde sí a #a-h, favor de responder a las preguntas siguientes: Usted: h. Sí__ No__ respondio a preguntas de DOS oficiales i. Sí__ No__ respondio a preguntas si tiene miedo de regresar a su pais de origen? j. Sí__ No__ Escribio sus iniciales en el fondo de dos hojas con sus respuestas? k. Sí__ No__ Firmo el formulario (I-867AB) con sus respuestas? l. Sí__ No__ Recibio un formulario I-860? m. Sí__ No__ Las oficiales se dijieron que Ud. no podria entrar los E.E.U.U. Por 5 anos? n. Sí__ No__ Las oficiales se dijieron que Ud. ha estado deportado o removado? Explique:________________________________________________________________ ________________________________________________________________________ ------------------------------

Have you ever been detained/stopped by immigration before? Yes___ No___ If so, when/where/why for each time: ______________________________________________________________________________

Appendix DD-4

Appendices

______________________________________________________________________________ If so, did any of the following happen? __ Yes __ No fingerprints __ Yes __ No photos __ Yes __ No you signed papers __ Yes __ No you saw a judge __ Yes __ No you talked with a law enforcement officer __ Yes __ No detained at or near the border? __ Yes __ No arrested at or near the border?

Appendices

If you answered yes to any of these questions, did you: __ Yes __ No respond to questions by TWO officials? __ Yes __ No respond to questions whether you fear returning to your home country? __ Yes __ No sign your initials at the bottom of two pages of Form (I-867AB) with your answers on it? __ Yes __ No sign your name on a form (I-860)? __ Yes __ No were you given a copy of that form? __ Yes __ No Did officials tell you that you could not come back to the US for five years? __ Yes __ No Did officials tell you that you were being removed or deported?

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Appendix FF-2

Sample substantial abuse letter from a friend: One

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Appendix FF-6

ADJUSTMENT OF STATUS APPLICATION CONTENTS □

Cover Letter and Document List

□

Fee Waiver Application for Principal’s household

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Principal Applicant □

Form G-28

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Form I-485

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Form G-325A

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Two Photos

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Medical Examination by Civil Surgeon in Sealed Envelope

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Copy of U Visa Approval Notice

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Declaration of Applicant re Continuous Residence and Discretion

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Form I-918 Supplement B re no unreasonable refusal to assist

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Copy of ALL pages of passport

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Adult Applicant: Copies of Tax Returns for current and two previous years

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Adult: Copies of W2s for current and two previous years

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Child Applicant: Copies of School Records for current and two previous years

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Copies of other continuous residence documents (rent, medical, bills)

Derivative Applicant(s) □

Form G-28

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Form I-485

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Form G-325A

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Two Photos

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Medical Examination by Civil Surgeon in Sealed Envelope

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Copy of U Visa Approval Notice

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Declaration of Applicant re Continuous Residence and Discretion

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Copy of all pages of passport

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Child Applicant: Copies of School Records for current and two previous years

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Adult Applicant: Copies of tax returns and W2s for current, previous two years

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Copies of other continuous residence documents (rent, medical, bills)

Appendices

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DOCUMENTS LIST I-485 Adjustment of Status Application for Approved U Visa Applicant(s) Principal: LAST NAME, First Name; A#: 555-555-555; U-1 Status Derivative: LAST NAME, First Name; A#: 555-555-555 (mother); U-2 Status Derivative: LAST NAME, First Name; A#: NONE (son); U-3 Status Pages 1. Fee Waiver Request for Applicant and Derivatives for Form I-485 Application and for Biometrics Fee

1

For Adjustment of Status Applicant in U-1 Status: LAST NAME, First Name 2. Two (2) Photographs of Applicant

[env]

3. Form I-485 Application for Adjustment of Status

2-??

4. Form G-325-A, Biographic Information

??

5. Form I-693 Medical Examination by Civil Surgeon

[env]

6. Form G-28

??-??

7. Copy of Form I-797A: U visa approval, Notice Date: 06/23/2009; Valid from 02/12/2005 until 06/15/2010

??-??

8. Form I-918 Supplement B, signed by Kevin Wiley, Lieutenant of Police, Youth and Family Service Section, Oakland Police Department, Dated XX/XX/XXXX

??-??

9. Copies of all pages of Applicant’s Mexican Passport

??-??

10. Copies of Documents Proving Continuous Residence during the last three years: June 2006 – present

??-??

a. Copy of 2006 U.S Individual Tax Return for Sirce, Prepared on 02/20/2007

??-??

b. Copy of 2007 U.S Individual Tax Return for Sirce, Prepared on 03/12/2008

??-??

c. Copy of 2008 U.S Individual Tax Return for Sirce, Prepared on 02/28/2009

??-??

d. Copies of Bill Statements for Sirce from 2009: 01/27/2009, 03/03/2009, 04/23/2009, 05/07/2009, 05/11/2009, 07/24/2009, 07/27/2009

??-??

For Adjustment of Status Applicant in U-2/U-3/U-4 Status: LAST NAME, First Name

Pages

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11. Two (2) Photographs of Applicant 12. Form I-485 Application for Adjustment of Status

??

13. Form I-693 Medical Examination by Civil Surgeon

??

14. Form G-325-A, Biographic Information

??

15. Form G-28 16. Copy of Form I-797A: U visa approval, Notice Date: 06/23/2009; Valid from

Appendix GG-2

??

02/12/2005 until 06/15/2010 17. See Copy of Form I-918 Supplement B from Principal’s Adjustment Application, signed by Kevin Wiley, Lieutenant of Police, Youth and Family Service Section, Oakland Police Department, Dated XX/XX/XXXX

??

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18. Copies of all pages of Applicant’s Mexican Passport 19. Copies of Documents Proving Continuous Residence during the last three years: June 2006 – present a. Copy of 2006 U.S Individual Tax Return for Sirce, Prepared on 02/20/2007 b. Copy of 2007 U.S Individual Tax Return for Sirce, Prepared on 03/12/2008 c. Copy of 2008 U.S Individual Tax Return for Sirce, Prepared on 02/28/2009 d. Copies of Bill Statements for Sirce from 2009: 01/27/2009, 03/03/2009, 04/23/2009, 05/07/2009, 05/11/2009, 07/24/2009, 07/27/2009

Appendices

Appendix GG-3

Documentos y honorarios para la solicitud de residencia permanente bajo la Visa U. Solicitante Principal:_________________________ 1.  Perdón de Cuota cuando el solicitante no tiene los recursos necesarios para pagar  Cheque o Money Order por $1010.00 a nombre de USCIS  $600.00 Cheque o Money Order 2.  Cuota del Instituto Internacional: $300 por cada solicitante. (Se incrementarán nuestros honorarios en aquellos casos en los que el solicitante de residencia tiene antecedentes penales o (records) policiales, o cualquier otro tipo de situación problemática. La cuota puede ser incrementada hasta $600.00. El incremento se calculará en dependencia de la complejidad y extensión de los argumentos y pruebas que haya que presentar para contrarrestar el impacto negativo de estos problemas en el caso.) 3.  Las direcciones de donde a vivido los últimos 5 años. (Vivienda y trabajo.)

VIVIENDA/RESIDENCIA _________________________________________ _________________________________________ _________________________________________ _________________________________________ _________________________________________

TRABAJO _____________________________ _____________________________ _____________________________ _____________________________ _____________________________

4.  Dos (2) Fotografías: Tamaño pasaporte y a color. 5.  Pasaporte (Nosotros haremos copias de todas la paginas del pasaporte) 6.  Presencia Continua Por 3 Años I.  Documentos que comprueban la presencia física continua por tres años completos  Año Parcial #4: 200___  Año Parcial #3: 200___  Año entero (impuestos, expedientes de la escuela, etc.)  Año entero (impuestos, expedientes de la escuela, etc.)

 Mes______ a ______ (talón de cheque)  Mes______ a ______ (talón de cheque)  Año Parcial #2: 200___  Año Parcial #1: 200___  Año entero (impuestos, expedientes de la escuela, etc.)  Año entero (impuestos, expedientes de la escuela, etc.)

Appendices

 Mes______ a ______ (talón de cheque) de cheque)

 Mes______ a ______ (talón

I. ¿Hizo un Viaje Internacional?  NO: Si el aspirante no viajó internacionalmente entonces cheque esta caja y continué a la 9.  YES: Si viajó el aspirante, termine esta sección. Viajes internacionales no son permitidos por un plazo más de largo de de 90 días; viajes internacionales totales bajo 180 días.

Appendix GG-4

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1.  Declaración jurada del aspirante sobre presencia física continua 2.  Documentos que comprueban salidas: fecha, lugar, plazo de tiempo, manera, fecha de regreso, lugar por donde regreso 7.  Examen Medico: Sobre con la forma I-693 8.  (Opcional) Documentos Adicionales LEA (reporte policial, ordenes de restricción) obtenidos después de haber sometido la Visa-U 9.  FACTORES ADVERSOS: Si el aspirante tiene factores adversos, entonces puede que se requiera evidencia adicional de la dificultad extremadamente inusual dependiendo de la severidad de los hechos.

Appendices

Appendix GG-5

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Documentos y honorarios para la solicitud de residencia permanente bajo la Visa U. Derivativo/ Beneficiario:_________________________ 1.  Perdón de Cuota cuando el solicitante no tiene los recursos necesarios para pagar  Cheque o Money Order por $1010.00 a nombre de USCIS  $600.00 Cheque o Money Order 2.  Cuota del Instituto Internacional: $300 por cada solicitante. (Se incrementarán nuestros honorarios en aquellos casos en los que el solicitante de residencia tiene antecedentes penales o (records) policiales, o cualquier otro tipo de situación problemática. La cuota puede ser incrementada hasta $600.00. El incremento se calculará en dependencia de la complejidad y extensión de los argumentos y pruebas que haya que presentar para contrarrestar el impacto negativo de estos problemas en el caso.) 3.  Las direcciones de donde a vivido los últimos 5 años. (Vivienda y trabajo.)

VIVIENDA/RESIDENCIA _________________________________________ _________________________________________ _________________________________________ _________________________________________ _________________________________________

TRABAJO _____________________________ _____________________________ _____________________________ _____________________________ _____________________________

4.  Dos (2) Fotografías: Tamaño pasaporte y a color. 5.  Pasaporte (Nosotros haremos copias de todas la paginas del pasaporte) 6.  Presencia Continua Por 3 Años I.  Documentos que comprueban la presencia física continua por tres años completos  Año Parcial #4: 200___  Año Entero #3: 200___  Año entero (impuestos, expedientes de la escuela, etc.)  Año entero (impuestos, expedientes de la escuela, etc.)

 Mes______ a ______ (talón de cheque)  Mes______ a ______ (talón de cheque)  Año Entero #2: 200___  Año Parcial #1: 200___  Año entero (impuestos, expedientes de la escuela, etc.)  Año entero (impuestos, expedientes de la escuela, etc.)

Appendices

 Mes______ a ______ (talón de cheque) de cheque)

 Mes______ a ______ (talón

II. ¿Hizo un Viaje Internacional?  NO: Si el aspirante no viajó internacionalmente entonces cheque esta caja y continué a la 9.  YES: Si viajó el aspirante, termine esta sección. Viajes internacionales no son permitidos por un plazo más de largo de de 90 días; viajes internacionales totales bajo 180 días.

Appendix GG-6

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3.  Declaración jurada del aspirante sobre presencia física continua 4.  Documentos que comprueban salidas: fecha, lugar, plazo de tiempo, manera, fecha de regreso, lugar por donde regreso 7.  Examen Medico: Sobre con la forma I-693 8.  (Opcional) Documentos Adicionales LEA (reporte policial, ordenes de restricción) obtenidos después de haber sometido la Visa-U 9.  FACTORES ADVERSOS: Si el aspirante tiene factores adversos, entonces puede que se requiera evidencia adicional de la dificultad extremadamente inusual dependiendo de la severidad de los hechos.

Appendices

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Appendix HH-1

APPENDIX II [DATE]

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USCIS - Vermont Service Center ATTN VAWA/U UNIT, Box 1000 75 Lower Welden Street Saint Albans, Vermont 05479-0001 Re:

[PRO BONO DERIVATIVE CLIENT’S LAST NAME, First Name] File Number: A0__ ___ ___ Principal Applicant’s I-918 Receipt Number: EAC-0_-___-_____ Principal Applicants Name and File Number: LAST, First (A0__ ___ ___) APPLICATION FOR ADJUSTMENT OF STATUS BASED ON APPROVED U NONIMMIGRANT STATUS

Dear Sir or Madam: My office represents [PRO BONO DERIVATIVE CLIENT’S NAME] and we are writing to submit the above mentioned application for adjustment of status. The applicant has had U derivative status for over three years, so now she is eligible to apply for permanent residence. also add if client is under 14: Please note that he is under 14 years of age and so does not need form G325A.

Appendix II-1

Appendices

Please find enclosed the following in support of this application for adjustment: 1. Form G-28 authorizing my representation, 2. Form I-485 with fee waiver request (for both the biometrics and the I-485) and 2 photographs, 3. Form G-325A (if 14 or over), 4. Form I-765 with 2 photographs (optional – just submit if client’s work permit will expire in the next 3-6 months), 5. Form I-131 with 2 photographs (optional - just submit if the client wants to travel, or be prepared to travel, before the green card arrives), 6. Medical exam, 7. Copy of the I-918A and I-192 approval notices and work permit for the applicant, 8. The applicant’s declaration (or a copy of the principal applicant’s declaration addressing the factors for both principal and derivative if the derivative is under 14) stating that she has not left the U.S. since obtaining interim U status, that she has never failed to cooperate with law enforcement, explaining any gaps in the passports, and that there are humanitarian reasons that she needs to stay in the U.S., 9. Copy of the applicant’s birth certificate with translation, 10. Copy of documentation showing the relationship to the principal (if the birth certificate wasn’t enough – for example if the derivative is a spouse), 11. Copy of all of the pages of her only passport(s) held since being granted U status,

12. Copies of her school records, income tax returns for [YEAR] - [YEAR] and other receipts and documents showing her continued physical presence in the United States since she was granted U status. 13. (here you can also put discretion dox as well – birth certificates of USC children showing the public interest need for her continued presence in the U.S., letters of recommendation, etc if your client has developed any negative discretionary factors after being granted U nonimmigrant status). Thank you very much for your prompt consideration of this request. If you require any further information, please contact me.

Sincerely,

[ATTORNEY’S NAME], Esq. [FIRM’S NAME] [ADDRESS] [PHONE NUMBER]

Appendices

cc: [PRO BONO CLIENT’S NAME]

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May 19, 2016 USCIS - Vermont Service Center ATTN VAWA UNIT, Box 1000 75 Lower Welden Street Saint Albans, Vermont 05479-0001 RE:

LAST NAME, First Name File Number: A___ ___ ___ I-485 Receipt Number: EAC-__-___-_____ I-918 Receipt Number: EAC-__-___-_____ I-765 APPLICATION ENCLOSED BASED ON PENDING U AOS APPLICATION

Dear Sir or Madam: We are writing to submit the I-765 for the above-mentioned client. Her I-485 is already pending and so now we are applying to renew her EAD. Please find enclosed: 1. My G-28 authorizing my representation, 2. Form I-765 with 2 photos, 3. Copy of the I-485 receipt notice showing she is eligible for a (c)(9) EAD and showing no fee is needed, and 4. Copy of her expired EAD as identification. Thank you very much for your assistance. If you require anything further, please contact me. Sincerely,

Appendices

Catherine Seitz, Attorney/Regional Immigration Coordinator (510) 250-5234 [email protected]

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State of New York County of Kings B—A-- being sworn states: I write this statement in support of my U visa adjustment application. The criminal case against A—M-- is now closed. I cooperated with the police and District attorney in the case against A—M--. I testified in Queens Criminal Court against him. I was given an Order of Protection so that he should leave me alone, valid thru 2009. A-- pled guilty in February 2006 and was put in jail for 2 days. Since his incarceration, A- has not bothered me. I have been living in the United States since I came here in 1994. I have 4 American born children who live with me. St-- is in the 6th grade, J-- is in the 4th grade, R-doesn’t go to school yet, and neither does the baby. J-- suffers from excema. He is treated at Elmhurst hospital in the clinic. None of my children have ever even visited Ecuador. I have not been back for 16 years. My parents are deceased. There is no way that my children would have any kind of a life there in totally unfamiliar circumstances. My brothers live in the U.S. We have no family in Ecuador. I would like to remain in the U.S. so that my children get a good education and make something of themselves, which has not been possible for me. I have read this statement and swear it is the truth.

Appendices

________________________

Appendix II-8

DECLARATION OF FIRST NAME LAST NAME IN SUPPORT OF APPLICATION FOR ADJUSTMENT OF STATUS

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I, First Name Last Name, declare under penalty of perjury that the following is true and correct, to the best of my knowledge, recollection, and belief. I am making this statement in support of my application for adjustment of status. • • •

A sentence or two on never unreasonably refused to cooperate. A statement on never left the U.S. or a description of dates if did leave. An assertion that it is in humanitarian or public interest that case be granted (but in client’s own words – so why it is important they get to stay in the U.S.).

Thank you very much for your consideration of this statement. I swear that the forgoing is true and correct. Signed this 30th day of May, 2008 in San Rafael, California

_________________________ Name of Client

************************** I, Name of Interpreter, certify that I am a competent translator of Spanish to English and English to Spanish, and that I read the attached declaration to Ms. Client in Spanish and that she understood and agreed to its contents before signing. Signed this 30th day of May, 2008 in San Rafael, California

_______________________ Name of Interpreter

Appendices

Appendix II-9

DECLARATION OF [CLIENT’S NAME] IN SUPPORT OF APPLICATION FOR ADJUSTMENT OF STATUS I, [CLIENT’S NAME], declare under penalty of perjury that the following is true and correct, to the best of my knowledge, recollection, and belief. I am making this statement in support of my application for adjustment of status. 1. [A sentence or two stating that the client and her derivatives never unreasonably refused to cooperate.] 2. [A sentence staying that the client never left the U.S. or a description of dates if did leave (contact BayLegal if client was out for more than 90 days in one trip or 180 days all together after their U visa was granted).] 3. If client did not have a valid passport for the entire time they have held U status, state that here, specify the dates of any gaps, and explain why there were gaps (ok to just explain that only had passport for x period of time and did not renew because didn’t need to because not planning to travel and/or because couldn't afford to renew). 4. [An assertion that it is in humanitarian or public interest that case be granted (but in client’s own words – so why it is important to them that they get to stay in the U.S. – for example because they and their children need the safety, stability, therapy, protection, etc that is here in the U.S. and not in their home countries in order for them to continue their recovery from the affects of the abuse).] 5. If the client has been arrested for any criminal actively after being granted U status, explain here what happened and describe how the client has been rehabilited and/or how the client and/or children would suffer hardship if the client were unable to remain in the U.S. Thank you very much for your consideration of this statement. I swear that the forgoing is true and correct. Signed this ______ day of ________, 2012 in [CITY], California

Appendices

_________________________ [CLIENT’S NAME]

Appendix II-10

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************************** I, [Name of Interpreter], certify that I am a competent translator of Spanish to English and English to Spanish, and that I read the attached declaration to [CLIENT’S NAME] in Spanish and that she understood and agreed to its contents before signing.

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Signed this ______ day of ________, 2012 in [CITY], California

_______________________ [NAME OF INTERPRETER]

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Appendix II-24

DECLARATION OF [CLIENT’S NAME] IN SUPPORT OF FEE WAIVER REQUEST

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I, [CLIENT’S NAME] declare under penalty of perjury that the following is true and correct, to the best of my knowledge, recollection, and belief. I am making this statement in support of my request for a fee waiver. I need a fee waiver because I am currently a single mother and supporting my child. I have to be able to work to support my family and I do not have any extra money for the filing fee. I am not working right now. I am receiving public benefits. (or: I am working right now, but I don’t earn very much money and so I cannot afford the filing fees). INCOME:

$

EXPENSES: RENT: GROCERIES: UTILITIES: TRANSPORTATION: CHILDCARE: LAUNDRY: CLOTHES, ETC FOR CHILDREN:

$ $ $ $ $ $ $

TOTAL EXPENSES:

$

Thank you very much for your consideration of this statement. I swear that the forgoing is true and correct. Signed this _______ day of _______, 2012 in _________, California

_________________________

************************** I, [INTERPRETER NAME], certify that I am a competent translator of Spanish to English and English to Spanish, and that I read the attached declaration to [CLIENT NAME] in Spanish and that she understood and agreed to its contents before signing. Signed this _______ day of _______, 2012 in _________, California

Appendix II-25

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_________________________

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May 19, 2016 USCIS - Vermont Service Center ATTN VAWA/U UNIT, Box 1000 75 Lower Welden Street Saint Albans, Vermont 05479-0001 RE:

LAST NAME, First Name (A0__ ___ ___) FORM I-539 ENCLOSED FOR U VISA DERIVATIVE WHO WAS GRANTED LESS THAN 4 YEARS OF STATUS DUE TO TURNING 21 AND SO NEEDS AN EXTENSION

Dear Sir or Madam: We are writing to submit ______’s I-539. She is a derivative on her mother’s case. The mother’s name is ______ and her A number is A_____ and her I-918 receipt number is EAC-______. _____ needs an extension of her U status until _____ (when mother’s status expires) so that she will have the one year window in which to submit her adjustment application. Enclosed in support of ____’s I-539 application please find the following: 1. Form G-28 authorizing my representation, 2. Form I-539 and fee waiver request, 3. Declaration regarding the need for the extension, 4. A copy of the applicant’s I-918A approval notice and EAD, 5. A copy of her mother’s I-918 approval notice, 6. A copy of the applicant’s birth certificate with translation showing the relationship, 7. Copy of the identity page of her valid passport, and 8. Form I-765 with fee waiver request and 2 photographs to extend her (a)(20) work permit. Thank you very much for your consideration and assistance. If you require anything further, please contact me.

Appendices

Sincerely,

Appendix MM-1

May 19, 2016 USCIS - Vermont Service Center ATTN VAWA/U UNIT, Box 1000 75 Lower Welden Street Saint Albans, Vermont 05479-0001 RE:

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LAST NAME, First Name (A0__ ___ ___) FORM I-539 ENCLOSED FOR U VISA DERIVATIVE WHO WAS GRANTED LESS THAN 4 YEARS OF STATUS DUE TO BEING GRANTED U STATUS AFTER THE PRINCIPAL APPLICANT AND SO NEEDS AN EXTENSION

Dear Sir or Madam: We are writing to submit ______’s I-539. She is a derivative on her mother’s case. The mother’s name is ______ and her A number is A_____ and her I-918 receipt number is EAC-______. _____ needs an extension of her U status until _____ so that she will have the one year window in which to submit her adjustment application. She first obtained U status on ____. Enclosed in support of ____’s I-539 application please find the following: 9. Form G-28 authorizing my representation, 10. Form I-539 with attached declaration regarding the need for the extension and fee waiver request, 11. Form I-765 with fee waiver request and 2 photographs to extend her (a)(20) work permit. 12. A copy of the applicant’s I-918A approval notice and EAD (and visa with entry stamp and I94), 13. A copy of her mother’s I-918 approval notice, 14. A copy of the identity page from the applicant’s valid passport, and 15. A copy of the applicant’s birth certificate with translation showing the relationship. Thank you very much for your consideration and assistance. If you require anything further, please contact me.

Sincerely,

Appendices

Appendix MM-2

DECLARATION OF ________________IN SUPPORT OF APPLICATION FOR EXTENSION OF STAY AS A U NON-IMMIGRANT DERIVATIVE

I, _________________, declare under penalty of perjury that the following is true and correct, to the best of my knowledge, recollection, and belief. I am making this statement in support of my application for extension of stay. I need an extension of stay because my status expired the day before I turned 21, but I don’t have three years in status yet, so I cannot apply for my permanent residence. I entered the United States with my U visa (or my U non-immigrant status was approved) on ___ so I am asking for an extension until _____ which would give me four years in status so I have a one year window in which to adjust my status. Thank you very much for your consideration of this statement. I swear that the forgoing is true and correct. Signed this 7th day of February, 2011

Appendices

_________________________ Name of client

Appendix MM-3

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DECLARATION OF ________________IN SUPPORT OF APPLICATION FOR EXTENSION OF STAY AS A U NON-IMMIGRANT DERIVATIVE

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I, _________________, declare under penalty of perjury that the following is true and correct, to the best of my knowledge, recollection, and belief. I am making this statement in support of my application for extension of stay. I need an extension of stay because my status will expire at the same day as my mother, but I don’t have three years in status yet, so I cannot apply for my permanent residence. I entered the United States with my U visa (or my U non-immigrant status was approved) on ___ so I am asking for an extension until _____ which would give me four years in status so I have a one year window in which to adjust my status. Thank you very much for your consideration of this statement. I swear that the forgoing is true and correct. Signed this ___ day of ______________, ____

_________________________ Name of client

Appendices

Appendix MM-4

DECLARATION IN SUPPORT OF I-539 APPLICATION Statement of Need and Reasons for Extension of U Nonimmigrant Status Applicant: [Lastname1 Lastname2], [Firstname Middlename], A# [XXX-XXX-XXX] I, [Firstname Middlename Lastname1 Lastname2], declare under the penalty of perjury that the following is true and correct to the best of my knowledge. 1. My name is [Firstname Middlename Lastname1 Lastname2]. I was born on [Month Day, YEAR] in [City], [State], [County]. 2. I am applying to extend my U Nonimmigrant Status. I was granted U-2 status on [Month, XX, YEAR], as a derivative of my wife, [Firstname Middlename Lastname1 Lastname2], A# [XXX-XXX-XXX]. My wife was approved for legal permanent residency on [Month, XX, YEAR]. Her U-2 status expired on [Month, XX, YEAR] because that is when she would have reached four years combined U Interim Relief Status + U Nonimmigrant Status. I have had only one year of U Nonimmigrant Status and I need two more years to have at least three years in order to qualify to adjust to a Legal Permanent Resident. 3. I need this status so that I can stay in this country with my wife and live and work legally. [Add in 1-2 sentences, briefly, other new and compelling factors at this time.]

Appendices

4. Please grant me an extension of my U Nonimmigrant Status until [Month, XX, YEAR], so that I will have the four years in U-2 status, similar to all U-1 principal applicants. This extension will give me enough time in the fourth year to apply for Legal Permanent Residency.

Appendix MM-5

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Appendix NN-1

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Declaration in support of Application for Waiver of Inadmissibility for Derivative Principal Applicant: LASTNAME1 LASTNAME2, Firstname1 Firstname2 Derivative Applicant: LASTNAME1 LASTNAME2, Firstname1 Firstname2 I, ---------------, declare under the penalty of perjury that the following is true and correct to the best of my knowledge: My name is ------------. I was born on ---------------- in --------------. I came to the United States in -------------. I am now living in ------------------. My spouse/child/sibling/parent is applying for a U Visa because (s)he was the victim of -------------------. On ------------, I called the [City] Police because ------ punched and kicked my spouse/child/sibling/parent. The police arrested ---------. [Speak to helpfulness if the derivative was helpful. Otherwise, delete this section.] I was helpful to the police/prosecution . . . I am requesting a waiver of grounds of inadmissibility related to my unlawful entry to the United States. I am a person of good moral character, I would suffer hardship if I have to leave the U.S., and it is in the public interest to grant me the waiver so that I can be granted a U Visa. I am applying for a waiver of my unlawful entry to the U.S. because if I am not given a waiver, I can’t get the U visa for which I am otherwise eligible. [Good moral character stuff] I came to the United States as a young child of XXAGEXX and do not even remember the details of my trip. [Hardships to self and immediate relatives]

Appendices

[I am protected by law enforcement in the U.S., but I would not be in my home country]

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May 02, 2016 USCIS - Vermont Service Center ATTN VAWA UNIT, Box 1000 75 Lower Welden Street Saint Albans, Vermont 05479-0001 RE: U Visa Unit RE:

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LAST NAME, First Name (already approved U-1) And dependents: LAST NAME, First Name – spouse LAST NAME, First Name – daughter I-918A APPLICATIONS FOR U VISAS FOR DERIVATIVES OF ALREADY APPROVED PRINCIPAL

Dear Sir or Madam: We are writing to submit Mr. ___’s spouse and child’s applications for U visas. This is their first application as they never applied for interim relief. Mr. ___’s I-918 is already approved. Please find enclosed the following for his wife, _________: 1. Form G-28 authorizing my representation, 2. Fee Waiver request in lieu of the biometrics fee, 3. Form I-918A, 4. Form I-192 with fee waiver request, 5. Form I-765 with fee waiver request and 2 photos, 6. Marriage certificate showing the relationship, 7. A copy of her current passport, 8. A copy of her birth certificate with translation, 9. A copy of Mr. ___’s U visa approval notice, and 10. A copy of Mr. ____’s I-918 form. Please find enclosed the following for his daughter,__________: 11. Form G-28 authorizing my representation, 12. Form I-918A, 13. Form I-192 with fee waiver request, 14. Form I-765 with fee waiver request and 2 photos, 15. A copy of her birth certificate with translation showing the relationship, 16. A copy of her parents’ marriage certificate showing that her parents are married, 17. A copy of her current passport, 18. A copy of Mr. _____’s U visa approval notice, and 19. A copy of Mr. _____’s I-918 form. Thank you very much for your consideration and assistance. If you require anything further, please contact me.

Appendix PP-14

Appendices

Sincerely,

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May 19, 2016 USCIS - Vermont Service Center ATTN VAWA UNIT, Box 1000 75 Lower Welden Street Saint Albans, Vermont 05479-0001 RE:

LAST NAME, First Name File Number: A___ ___ ___ Principal’s I-918 Receipt Number: EAC-__-___-_____ I-765 APPLICATION ENCLOSED FOR APPROVED U VISA DERIVATIVE CHILD WHO JUST ENTERED THE U.S.

Dear Sir or Madam: We are writing to submit the I-765 for the above-mentioned client. Her I-918A has been approved and she just entered the U.S. with her U visa and so now we are writing to apply for her work permit. Please find enclosed: 1. My G-28 authorizing my representation, 2. Form I-765 with 2 photos and fee waiver request, 3. Copy of the I-918A approval notice, 4. Copy of her mother’s I-918 approval notice, and 5. Copy of her passport, visa, and I-94 to show her entry and as identification. Thank you very much for your sympathetic consideration and assistance. If you require anything further, please contact me.

Appendices

Sincerely,

Appendix PP-15

Appendices

Appendix PP-16

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Appendices

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Appendix PP-17

Disclosure and Mutual Consent to Joint Representation The International Institute of the Bay Area (IIBA) has been asked to represent _______________________ in an application for a U Visa as the principal applicant and _________________________, ____________________________, ______________________, and ___________________________ in U visa application(s) as the derivative beneficiary/ies of ___________________’s application. This letter advises all applicants of some of the potential conflicts of interest that may arise in cases of joint representation such as this. While as of now we find no actual conflicts, our ethical obligations as members of the California State Bar require that we disclose these potential conflicts and obtain your written consent to joint representation.

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Benefits and Risks of Joint Representation Joint representation can reduce legal fees and make it easier to obtain needed information. It also seems logical where the parties’ interests are, as now, substantially the same. However, please consider the conflicts that could arise if, for example, one person wishes material information withheld from the other; the family relationship changes; or financial responsibility between the parties changes. Under such circumstances, IIBA would not be able to simultaneously represent the best interests of each person. Confidentiality As your attorneys, we must keep all material information about your case confidential. However, we cannot keep any information secret from any of the persons whom we jointly represent. In addition, after joint representation, the involved parties will have access to all confidential information and secrets should they ever sue each other. (California Evidence Code section 962). Marital Problems during the U Visa and Adjustment of Status Application Processes If you and your spouse have trouble in your marriage, it can affect the derivative beneficiary spouse’s application process. If either spouse does not wish to remain married and the U Visa process is not yet completed, the derivative beneficiary may not be able to get his or her U Visa. If either spouse does not wish to remain married and the U Visa Adjustment of Status process is not yet completed, the derivative beneficiary may not be able to apply for permanent resident status. If we receive information that one of you no longer wishes to be married, we have an obligation to disclose this information to the other spouse, and we may not be able to represent either of you in the U Visa process or U Visa Adjustment of Status process without consent from both of you.

Appendix QQ-1

Appendices

Other Family Problems during the Application Process If the U Visa derivative beneficiary is the child or parent of the principal applicant, changes in the parent child relationship can affect the derivative beneficiary’s application process. These changes include (1) marriage by a minor child, which will cancel derivative child’s status or derivative parent’s status, and (2) a desire by either party to break off the relationship, which may permit the principal applicant to request that the derivative beneficiary be removed from the U Visa process. If IIBA receives information that there is a problem with a parent child relationship, we have an obligation to disclose this information to all parties, and we may not be able to represent any of you in the visa petition process.

Informed, Written Consent to Joint Representation California law requires that we obtain written consent from each of you before proceeding on your application. Again, we do not believe that there is an actual conflict at this time. Please feel free to consult with another attorney before signing this informed, written consent to joint representation. If we become aware of another potential or actual conflict during the course of representing you, we will immediately contact each party. At that time, we will provide each of you with a written explanation of the potential or actual conflict and each of you must give written consent to continue join representation in light of the new potential or actual conflict of interest. If circumstances arise in which we believe it has become necessary for either party to consult with and/or retain another attorney, we will inform you immediately. Clients’ Obligation If either of you become aware of any conflict of interest with any person represented by IIBA in this matter, you should contact us immediately. If you have any questions with regard to a possible conflict, please contact us immediately. If you wish our office to continue with this joint representation, please sign this Mutual Consent to Joint Representation form below and return it to us. We will provide each of you with a copy for your files.

Appendices

Consent After consideration of my knowledge and facts and events from which this case arises, and the potential conflicts outlined above, I voluntarily and freely consent to dual representation in this matter by the International Institute of the Bay Area. Date: _______________________________

Date: _______________________________

Name (print): ________________________

Name (print): ________________________

Signature: ___________________________

Signature: ___________________________

Date: _______________________________

Date: _______________________________

Name (print): ________________________

Name (print): ________________________

Signature: ___________________________

Signature: ___________________________

Appendix QQ-2

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Revelación de Informacion y Consentimiento Mutuo para la Representacion Unida El Instituto Internacional de el Area de la Bahia ha sido solicitado para representar a _________________ para la aplicacion de la Visa U como aplicante principal y a ________________, _____________________, __________________ y ___________________ el la aplicacion (es) como beneficiario de la aplicacion de _______________. Esta carta advierte a todos los aplicantes de algunos conflictos que puedan surgir en casos de reprensentacion unida, como esta. Hasta hoy, no hemos encontrado conflictos actuales, pero nuestra obligacion etica como miembros de California State Bar requiere que revelemos estos posibles riesgos y obtener su consentimiento por escrito para representarle junto con otra persona.

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Beneficios y Riesgos de la Representacion Unida La Reprensentacion Unida puede facilitar la obtencion de la informacion necesaria, tambien parece logico que tenga en comun los intereses de de los dos partidos, que desde hoy, son substancialmente los mismos. Sin embargo, por favor tome en cuenta los conflictos que puedan surgir si por ejemplo, uno de ustedes desea que algun material informativo no sea revelado a el otro partido; cambio de relacion ya sea familiar o algun otro tipo; y cambio de responsabilidad financiera. Bajo estas circunstacias, a el Instituto Internacional de el Area de la Bahia no le seria posible representar los intereses de cada partido a la misma vez. Confidencialidad Como sus abogados, es nuestro deber mantener todo el material sobre su caso confidencial. Cualquier informacion que nos entregue, tratela como informacion privilegiada y confidencial que no sera divulgada a partidos terceros. Sim embargo, no podemos ocultar informacion a cualquier otra persona que representamos junto con usted. Aparte de eso, despues de la representacion unida , los partidos involucrados tendran acceso a toda la informacion confidencial y a cualquier secreto, si acaso se demandaran entre si. Documentos de historia criminal, incluyendo historial de arrestos o documentos de corte, de el/ la aplicante principal o de el/la beneficiario pueden ser revelados a todos los partidos en este contrato. Violaciones de la ley de inmigracion de el aplicante principal o de el beneficiario tambien puede ser revelada a todos los partidos en este contrato.

Appendix QQ-3

Appendices

Problemas Maritales y Ajustamiento de Estatus durante el proceso aplicatorio de la Visa U Si usted y su pareja tienen problemas en su matrimonio, esos problemas pueden afectar el proceso aplicatorio de el conyugue beneficiario. Si algun conyugue ya no desea seguir casado y el proceso de la Visa U no se ha completado, el conyugue beneficiario talvez no pueda recivir la Visa U. Si algun conyugue ya no deasea seguir casado y el proceso de el Ajustamiento de Estaus para la Visa U no ha sido completado, el conyugue beneficiario talvez no podra aplicar para el estado de residente permanente. Si nuestra oficina recibe informacion de que uno del los dos partidos ya no quiere seguir casado con el otro, tenemos obligacion de revelar esa informacion a el otro partido, y puede que el Instituto Inernacional de el Area de la Bahia ya no pueda representar a ninguno de los en el proceso aplicatorio de la Visa U ni en el Ajustamiento de Estatus sin el consentimento de los dos partidos.

Otros Problemas familiares durante el proceso aplicatorio Si el beneficiario/a de la Visa U es el hijo/a o padre/madre de el aplicante principal, cambios en la relacion de padre/hijo pueden afectar el proceso de su aplicacion. Cambios incluyen: 1) Matrimonio de un hijo menor- este matriono cancelara su estado como beneficiario y el de su padre/madre.2) Terminacion de relacion- si alguno de los dos partidos desea terminar su relacion, el/la aplicante principal tiene permiso de pedir que el beneficiario sea removido de el proceso aplicatorio de la Visa U. Si el Instituto Iinternacional de el Area de la Bahia recive informacion de algun problema entre la relacion entre padre e hijo, el Instituto Iinternacional de el Area de la Bahia tiene la obligacion de revelar esta informacion a los dos partidos y posiblemente ya no pueda representar a ninguno de los dos partidos en el proceso de la peticion para obtener Visa U. Documentos de historia criminal, incluyendo historial de arrestos o documentos de corte, de cualquier partido pueden ser revelados a todos los partidos en este contrato. Violaciones de la ley de inmigracion o arrestos de cualquier partido tambien podran ser revelados a todos los partidos en este contrato. Consentimiento Por Escrito La ley de el estado de California requiere que nosotros obtengamos consentimiento por escrito de cada uno de los partidos anted the proseguir con su proceso aplicatorio. De nuevo, nosotro no creemos que exista actualmente algun conflico de interes. Por favor, sientase en confianza para consulatar con otro abogado antes de firmar este consentimiento por escrito para la representacion unida. Si el Instituto Internacional de el Area de la Bahia se da cuenta de otros riesgos existentes o posibles durante el proceso de su representacion, inmediatamente contactaremos a cada partido. En dado caso, nosotros proveeremos a cada uno por escrito una explicacion de el posible o actual conflico de interes y cada partido devera de dar consentimiento por escrito para seguir la represenatcion unida con el conocimiento de el posible o actual conflicto de intereres. Si las circunstancias en las cuales el Instituto Internacional de el Area de la Bahia cree que es necesario que alguno de los dos partidos consulten y/o retengan a otro abogado surgen, el Instituto le informara inmediatamente. Obligaciones de el Cliente Si alguno de los dos partidos se da cuenta de cualquier conflicto de interes con alguna persona representada por el Institutio Internacional de el Area de la Bahia en este caso, devera de contactarnos inmediatamente. Si usted tiene alguna pregunta sobre algun posible conflicto, por favor de contactanos inmediatamente.

Appendices

Si usted desea que nuestra oficina continue con esta representacion unida, por favor firme el formulario abajo de Consentimineto Mutuo para Representacion Unida. Nosotros proveermos una copia para cada archivo.

Appendix QQ-4

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Cosentimiento Despues de tomar en cuenta mi conocimiento, los hechos y los eventos en los cuales estos casos puden surgir, y los posibles conflicots de interes delineados arriba, yo voluntariamente y con libertad doy consentimiento para ser representado junto con otro partido en este caso por el Instituto Internacional de el Area de la Bahia. Fecha: _______________________________

Fecha: ______________________________

Nombre: _____________________________

Nombre:_____________________________

Firma:_______________________________

Firma:_______________________________

Fecha: _______________________________

Fecha: ______________________________

Nombre: _____________________________

Nombre:_____________________________

Firma:_______________________________

Firma:_______________________________

Appendices

Appendix QQ-5

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DOCUMENTS LIST: I-485s + I-929 I-485 Adjustment of Status Application for Approved U Visa Applicant(s) Principal: LAST NAME, First Name; A#: 555-555-555; U-1 Status Derivative: LAST NAME, First Name; A#: 555-555-555 (mother); U-2 Status Derivative: LAST NAME, First Name; A#: NONE (son); U-3 Status I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant Qualifying Family Member: LAST NAME, First Name (spouse); A#: NONE 1. Fee Waiver Request for Applicant and Derivatives for Form I-485 Application and for Biometrics Fee and for qualifying family member for Biometrics Fee and for Form I-929 Application

1

For Adjustment of Status Applicant in U-1 Status: LAST NAME, First Name 2. Form G-28

2

3. Form I-485 Application for Adjustment of Status

3-6

4. Form G-325-A, Biographic Information

7

5. Two (2) Photographs of Applicant

[env]

6. Form I-693 Medical Examination by Civil Surgeon

[env]

7. Copy of Form I-797A: U visa approval, Notice Date: January 16, 2009, Valid from 12/13/2006 until 12/12/2010

8-11

8. Declaration from Applicant Attesting to Continuous Residence in the United States for the ??-?? Requisite Period, Requesting Discretionary Review, and Attesting to Extreme Hardship to Self and Qualifying Family Member 9. Form I-918 Supplement B, signed by Kevin Wiley, Lieutenant of Police, Youth and Family Service Section, Oakland Police Department, Dated XX/XX/XXXX.

??-??

10. Copies of all pages of Applicant’s Mexican Passport

??-??

11. Copies of Documents Proving Continuous Residence during the last three years: January 2006 - present a. Copy of 2007 U.S. Individual Tax Return for Applicant, Prepared on 02/02/2008. ??-?? b. Copy of 2008 U.S. Individual Tax Return for Applicant, Prepared on 03/02/2009. ??-?? c. Copy of 2009 U.S. Individual Tax Return for Applicant, Prepared on 02/02/2010. ??-?? d. Copies of Bill Statements for Applicant from 2010: 01/15/2010, 02/15/2010, 03/15/2010.

??-??

Appendices

For Adjustment of Status Applicant in U-2/U-3/U-4/U-5 Status: LAST NAME, First Name 12. Form I-485 Application for Adjustment of Status

??-??

13. Form G-325-A, Biographic Information

??-??

Appendix RR-1

14. Two (2) Photographs of Applicant

[env]

15. Form I-693 Medical Examination by Civil Surgeon

[env]

16. Form G-28

??-??

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17. Copy of Form I-797A: U visa approval, Notice Date: 06/16/2009, Valid from 12/13/2006 ??-?? until 12/12/2010 18. Declaration from Applicant Attesting to Continuous Residence in the United States for the ??-?? Requisite Period and Requesting Discretionary Review 19. See Copy of Form I-918 Supplement B, signed by Kevin Wiley, Lieutenant of Police, Youth and Family Service Section, Oakland Police Department, Dated XX/XX/XXXX.

8-11

20. Copies of all pages of Applicant’s Mexican Passport

??-??

21. Copies of Documents Proving Continuous Residence during the past three years: January 2007 - present a. Copy of 2007 U.S. Individual Tax Return of XXX, Prepared on XX/XX/XXXX

??-??

b. Copy of 2008 U.S. Individual Tax Return of XXX, Prepared on XX/XX/XXXX.

??-??

c. Copy of 2009 U.S. Individual Tax Return of XXX, Prepared on XX/XX/XXXX

??-??

d. Copies of Bill Statements for XXX from 2010: XX/XX/XXXX, XX/XX/XXXX, XX/XX/XXXX

??-??

For Adjustment of Status Applicant in U-2/U-3/U-4/U-5 Status: LAST NAME, First Name 22. Form I-485 Application for Adjustment of Status

??-??

23. Form G-325-A, Biographic Information

??-??

24. Two (2) Photographs of Applicant

[env]

25. Form I-693 Medical Examination by Civil Surgeon

[env]

26. Form G-28

??-??

27. Copy of Form I-797A: U visa approval, Notice Date: 09/26/2009, Valid from 12/13/2006 ??-?? until 12/12/2010 28. Declaration from Applicant Attesting to Continuous Residence in the United States for the ??-?? Requisite Period and Requesting Discretionary Review 29. See Copy of Form I-918 Supplement B, signed by Kevin Wiley, Lieutenant of Police, Youth and Family Service Section, Oakland Police Department, Dated 11/04/2009

[8-11]

30. Copies of all pages of Applicant’s Mexican Passport

??-??

31. Copies of Documents Proving Continuous Residence during the past three years: January 2007 – present ??-??

b. Copy of 2008 U.S. Individual Tax Return of XXX, Prepared on XX/XX/XXXX.

??-??

Appendix RR-2

Appendices

a. Copy of 2007 U.S. Individual Tax Return of XXX, Prepared on XX/XX/XXXX

c. Copy of 2009 U.S. Individual Tax Return of XXX, Prepared on XX/XX/XXXX

??-??

d. Copies of Bill Statements for XXX from 2010: XX/XX/XXXX, XX/XX/XXXX, XX/XX/XXXX For Qualifying Family Member of a U-1 Nonimmigrant: LAST NAME, First Name 32. Form I-929 Application for Adjustment of Status

??

33. Two (2) Photographs of Applicant

??

34. Form G-28

??

35. See above Copy of Approval Notice for Form I-918, Petition for U Nonimmigrant Status for Principal Applicant

[8-11]

36. Evidence of Pending Form I-485 based on Principal Applicant’s Status as U-1 Nonimmigrant: See Form I-485 for Principal Applicant included above

[3-6]

37. Copy of Marriage Certification of Principal Applicant with Qualifying Family Member in ?? City, State on Month, Date, Year Evidence of Extreme Hardship: To Principal Applicant if Qualifying Family Member is not allowed to remain in the United States 38. See above Declaration of Principal Applicant

[??-??]

39. Declaration of Qualifying Family Member Attesting to Extreme Hardship to Self and Qualifying Family Member

??

40. Copy of Birth certificates of Children in Common: -------- and ---------

??

41. Medical Documents [other official documents showing hardship to principal]

??

42. Witness Letters from -------- and ---------

??

43. Photographs of Principal Applicant and Qualifying Family Member

??

Evidence of Extreme Hardship: To Qualifying Family Member if Qualifying Family Member is not allowed to remain in the United States [Including Evidence that Discretion Should be Exercised in Favor of Qualifying Family Member] 44. See above Declaration of Qualifying Family Member

[??-??]

45. See above Declaration of Principal Applicant

[??-??]

46. Copy of Birth [Marriage] certificates of Applicant’s U.S. citizen children [spouse], -------and --------47. Medical Documents [other official documents showing hardship to qualifying family member]

Appendices

48. Letters in support of Qualifying Family Member’s Good Moral Character 49. Witness Letters from -------- and --------50. Photographs of Qualifying Family Member

Appendix RR-3

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Declaration of ------------in support of Application for Adjustment of Status and for Qualifying Family Member

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I, ---------------, declare under the penalty of perjury that the following is true and correct to the best of my knowledge. 1.

My name is ------------. I was born on ---------------- in --------------. I came to the United States in -------------.

I Have Maintained Continuous Physical Presence in the US for the Statutory Time established on 8 CFR Section 245.45 (b)(3). 2.

I have remained in the United States for the entire time after being granted U nonimmigrant status.

3.

OR I have traveled abroad after being granted U nonimmigrant status on the dates and times specified below. Please find enclosed the copies of the corresponding pages of my passport as well as copies of the corresponding I-94s. None of these trips have lasted more than 90 days or 180 days in the aggregate.

Departure date

Return date

Days outside the US.

Total number of days outside the US:____________ I Deserve a Favorable Exercise of Discretion. 4.

I am a person of good moral character, I would suffer hardship if I had to leave the U.S., and it is in the public interest to grant me legal permanent residency.

5.

Please see details on the declaration from my U visa application, which permitted the approval of my Form I-192 waiver of inadmissibility.

[If no Hardships/Equities Declaration was submitted to support the Form I-192, include the following information in blue:] ¶ [Good moral character stuff]

7.

¶ [Hardships to self and immediate relatives]

8.

¶ [I am protected by law enforcement in the U.S., but I would not be in my home country]

Appendix RR-4

Appendices

6.

I Would Suffer Extreme Hardship if my Qualifying Family Member, FirstNames LastNames, is not Allowed to Remain in the United States 9.

¶

10.

¶

11.

¶

12.

¶

Appendices

My Qualifying Family Member, FirstNames LastNames, Would Suffer Extreme Hardship if he is not Allowed to Remain in the United States 13.

¶

14.

¶

15.

¶

16.

¶

Appendix RR-5

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Declaration of ------------- in support of Application as Qualifying Family Member of a U-1 Nonimmigrant

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I, ---------------, declare under the penalty of perjury that the following is true and correct to the best of my knowledge. 17.

My name is ------------. I was born on ---------------- in --------------. I came to the United States in -------------.

18.

My spouse, FirstNames LastNames, was granted U Visa Interim Relief on Month Day, Year and U Nonimmigrant Status on Month Day, Year.

I Deserve a Favorable Exercise of Discretion. I am a person of good moral character, I would suffer extreme hardship if I was not allowed to remain in the United States. Further, it is in the public interest to grant me the waiver so that I can be granted a U Visa. 19.

I am a person of good moral character, I would suffer hardship if I had to leave the U.S., and it is in the public interest to grant me a favorable exercise of discretion on this application.

20.

I am a person of good moral character, I would suffer hardship if I had to leave the U.S., and it is in the public interest to grant me legal permanent residency.

21.

¶ [Good moral character stuff]

22.

¶ [Hardships to self and immediate relatives]

23.

¶ [I am protected by law enforcement in the U.S., but I would not be in my home country]

My Spouse, FirstNames LastNames, Would Suffer Extreme Hardship if I were not Allowed to Remain in the United States 24.

¶

25.

¶

26.

¶

27.

¶

Appendices

Appendix RR-6

WRITING A LETTER ABOUT THE DIFFICULTY AND PAIN APPLICANT (_____________________________) AND HER RELATIVE (______________________)WILL FEEL IF THE IMMIGRATION SERVICE DOES NOT GRANT THEIR APPLICATION TO STAY TOGETHER IN THE U.S.A. Letters help tell the Immigration Service how important it is for the Applicant (_________) and her Relative (__________) to be allowed to stay together in the U.S. These letters help show the Immigration Service how much the Applicant and her Relative would suffer if Relative is not allowed to remain in the U.S. This guide will assist you in writing a letter that can help the Immigration Service understand how much Applicant and her Relative love and need each other, and how important it is for them to be able to stay together in the U.S. Please base your letter on what you know about the Applicant and her Relative and your personal experiences with them. Please try to provide specific examples as much as possible. Please Include the Following when Writing a Letter: • •

• •

The Date (Month, Day, Year) Your name o Your relationship to the Applicant and her Relative o For example, are you an Applicant’s and Relative’s employer, neighbor, coworker, friend, relative, pastor, teacher (or child’s teacher), doctor (or child’s doctor), social worker or counselor)? When and where you first met the Applicant and her Relative How you first met the Applicant and her Relative

Suggestions Of Things That May Be Included To Show How Much Applicant And Her Relative Love And Need Each Other: The following examples may or may not apply. If you choose to include any of the following in your letter please try to provide a specific example from your experience. • • • • • •

Appendices

• •

Applicant and her Relative have been together for a long time. Applicant and her Relative spend a lot of time with each other. Applicant and her Relative have children together or raise children together. Applicant and her Relative make sacrifices for each other. Relative helps Applicant feel protected and safe, particularly as Applicant was victim of a crime. Relative helps Applicant emotionally and/or physically recover from the trauma suffered as a result of being the victim of a crime. Applicant and Relative provide each other necessary emotional and/or physical support. Applicant and Relative help each other with their social, medical, or mental health needs.

Appendix RR-7

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Suggestions Of Things That May Be Included To Show The Extreme Hardship That Applicant And Her Relative Would Experience If Relative Was NOT Allowed To Stay In The U.S.:

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The following examples may or may not apply. If you choose to include any of the following in your letter please try to provide a specific example from your experience. • • • • • • • • • •

If the Applicant left the U.S. with her Relative, Applicant may not be able to receive the physical or mental health care she requires. If the Applicant left the U.S. with her Relative, Applicant may not be able to receive the support services she requires. If the Applicant left the U.S. with her Relative, it is possible that that the person who abused or assaulted her, or his friends or family who live in the home country, could harm Applicant. If the Applicant left the U.S. with her Relative, Applicant will not be sufficiently protected by the police. If the Applicant left the U.S. with her Relative, Applicant might be punished for being a victim of domestic violence. If the Applicant left the U.S. with her Relative, Applicant would not be able to participate in the prosecution or criminal investigation of the person who abused or assaulted her. If the Applicant left the U.S. with her Relative, Applicant will be separated from her other family and friends who provide her necessary social support (for instance, her parents, her siblings, her best friend). If Applicant and her Relative were separated, Applicant would be without essential emotional support. If Applicant and her Relative were separated, Applicant would not feel safe. If Applicant and her Relative were separated, Applicant would suffer trauma and/or become depressed.

Appendices

Appendix RR-8

ESCRIBIENDO UNA CARTA SOBRE LA DIFICULTAD Y DOLOR QUE APPLICANTE ( _____________________) Y SU PARIENTE (_________________________) SENTIRIAN SI EL SERVICIO DE IMMIGRACION NO CONCEDE SU APPLICACION DE MANTENERSE JUNTOS EN LOS ESTADOS UNIDOS. Cartas ayudan a enseñar a inmigración que importante es que el applicante (______________________) y su pariente (_______________________) sean permitidos quedar juntos en los Estados Unidos. Estas cartas ayudan a ensañar a inmigración cuanto el applicante y su pariente sufrirían si el pariente no es permitido quedarse en los Estados Unidos. Esto es una guía que la/lo asistirá en escribir una carta que puede ayudar al servicio de Inmigración a entender cuanto el applicante y su pariente se quieren y se necesitan, y que importante es para ellos poder quedarse en los Estados Unidos juntos. Por Favor base la carta en lo que usted sabe sobre el applicante y su pariente y sus experiencias personales con ellos. Por favor intente dar ejemplos específicos los mas que pueda. POR FAVOR DE INCLUIR LO SIGUIENTE CUANDO ESCRIBA UNA CARTA: -la fecha (mes/día/año) -Su nombre -Su relación con el Applicante y su pariente -por ejemplo: Es usted el empleador, vecino, compañero de trabajo, amigo, pariente, pastor, maestro, doctor, trabajador social o consejero del applicante? -Cuando y donde usted conoció al applicante y su pariente - Como usted primer conoció al applicante y su pariente SUGERENCIAS DE COSAS QUE PUEDEN SER UINCLUIDAS PARA ENSEÑAR CUANTO EL APPLICANTE Y SU PARIENTE SE QUIEREN Y SE NECESITAN:

Appendices

Los siguientes ejemplos tal vez o no apliquen. Si usted decide incluir cualquier de estos ejemplos por favor de dar un ejemplo especifico. -El applicante y su pariente han estado juntos por un periodo de tiempo largo. -El applicante y su pariente pasan mucho tiempo juntos -El applicante y su pareja tienen hijos juntos o crían hijos juntos -El applicante y su pariente hacen sacrificios uno por otro -El pariente ayuda al applicante a sentirse protegida y segura, particularmente por que el applicante fue víctima de crimen -El pariente ayuda al applicante recuperar emocional y físicamente de trauma sufrida como resultado de ser una víctima de crimen. -El applicante y el pariente se dan apoyo emocional y/o físico -El applicante y su pariente se ayudan con sus necesidades sociales, medícales, o mentales.

Appendix RR-9

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SUGERENCIAS DE COSAS QUE PUEDEN SER INCLUIDAS PARA ENSEÑAR DIFICULTADES EXTREMAS QUE EL APPLICANTE Y SU PARIENTE SUFRIRIAN SI EL PARIENTE NO ES PERMITIDO MANTENERSE EN LOS ESTADOS UNIDOS:

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Los siguientes ejemplos tal vez o no apliquen. Si usted decide incluir cualquier de estos ejemplos por favor de dar un ejemplo especifico. -Si el applicante se fuera de los Estados unidos con su pariente, no pudiera recibir los servicios médicos y/o mentales que requiere. - Si el applicante se fuera de los Estados Unidos con su pariente, no podrá recibir el apoyo que necesita. -Si el applicante se fuera de los Estados Unidos con su pariente, es posible que la persona que la abusó o asaltó o sus amigos o familia quien viven en su país de origen, podrían dañar al applicante. - Si el applicante se fuera de los Estados Unidos, el applicante no sería suficientemente protegido por las autoridades. -Si el applicante se fuera de los Estados Unidos con su pariente, el applicante sería castigado por ser víctima de violencia domestica. -Si el applicante se fuera de los Estados unidos con su pariente, no pudiera participar en la prosecución de la persona quien la abuso o asalto. -Si el applicante se fuera de los Estados Unidos con su pariente, el applicante seria separado de su otra familia y amigos quien le dan apoyo social necesario (por ejemplo, sus padres, hermanos, mejor amigo) -Si el applicante y su pariente fueran separados, el applicante estuviera sin apoyo emocional esencial. -Si el applicante y su pariente son separados, el applicante no se sentiría seguro -Si el applicante y su pariente fueran separados, el applicante sufriria trauma y/o se sentiria deprimido

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Law Office of Andrea J. Garcia P.O. Box 13927 LA, CA 90013 (213) 797-6014 (213) 816-1956 FAX [email protected]

March 4, 2014 USCIS 
 Vermont Service Center 
 Attn: CRU 
 75 Lower Welden Street 
 St. Albans, VT 05479-0001

Sent via FedEx

Re:

Application for Adjustment of Status for U nonimmigrant Derivative Spouse, Form I-929 Principle Applicant: Barack Obama, A#XXX-XXX-XXX Derivative Spouse: Michelle Obama (Robinson)

Dear Adjudicator: Please be advised we represent Mr. and Mrs. Barack and Michelle Obama in their immigration matters. I have attached the following documents: 1.

2 Duly Executed Form G-28s signed by Mr. Obama and Mrs. Obama;

2.

Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant;

3.

Filing fee in the amount of $215 in the form of a money order;

4.

2 passport size photos;

5.

Copy of Consular ID for Mrs. Obama; pp. 1-2

6.

Copy of Birth Certificate with Translation for Mrs. Obama; pp. 3-5

7.

Receipt notice as proof of pending Form I-485 based on Mr.

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Obama Status as U-1 nonimmigrant; pp. 5a

Appendix RR-13

EVIDENCE OF RELATIONSHIP TO BENEFICIARY 8.

Marriage Certificate; pp. 5b

9.

Joint Checking Account Statements Bank of America Statements for 9/18/2012

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to 10/17/2013; pp. 6-98 10.

Join Farmers Insurance Policy dated 9-23-2103 to 2-6-2014; 98-99

11.

Letter from Cerritos Infiniti addressed to Mr. and Mrs. Obama dated

12.

11/24/2012; pp. 100

13.

Wells Fargo Home Mortgage Statement showing shared address on 1600 Pennsylvania Ave; pp. 101

TJ Maxx Rewards Card Statement showing shared address of 1600 Pennsylvania Ave; 102

EVIDENCE OF EXTREME HARDSHIP TO MR. OBAMA IF HIS WIFE, MRS. OBAMA IS NOT ALLOWED TO ADJUST STATUS TO THAT OF A PERMANENT RESIDENT 14.

15.

16. 17.

Letters from Mr. Obama with Identification; pp. 103-104

Letter of Mrs. Obama with Identification; pp. 105

Copies of Mr. Obama ’s United States Citizen sisters birth certificates as

a. evidence of extreme hardship if separated from his family; pp. 106-108 Copy of Mr. Obama ’s Diploma in Culinary Arts from California School of

b. Culinary Arts as proof of extreme hardship related to his career in the USA; pp. 109

18.

Documents relating to Mr. Obama ’s property ownership in the USA; pp. 110-

19.

Copy of Mr. Obama’s high school Transcript from Bell Gardens High

20.

c. School showing long-term residence and schooling in the USA; pp. 113 Copy of Mr. Obama ’s Federal Income Taxes with W2 as proof of extreme d. financial hardship if he is separated from his wife; pp. 114-124 Copies of photo of the couple from 2008; pp. 125-126

Appendix RR-14

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21.

112

EVIDENCE TO ESTABLISH THAT DISCRETION SHOULD BE EXERCISED IN FAVOR OF MRS. OBAMA (DERIVATIVE BENEFICIARY) 22.

Copy of Mrs. Obama ’s high school transcript from Bell Gardens High School showing

23.

Copy of photos of the couple; pp. 128-131

24. 25. 26.

long term residence and education in USA; pp. 127

Copy of Mrs. Obama ’s Certificate of Excellence in English language development; pp. 133

Copy of Mrs. Obama ’s Certificate of Principle’s Honor Roll, Certificate of English Excellence, Congressional Recognition; pp. 134-137

Letter from Mrs. Robinson cousin, Jairo Robinson, attesting to her good moral character; pp. 138-139

27.

Letter from Hillary Clinton, Student Vocational Nurse, attesting to Mrs. Obama ’s

28.

Letter from Mrs. Obama’s uncle, George Bush; pp. 142-143

29. 22.

good moral character; pp. 140-141

Letter from Pastor Louis Farrakhan of New Horizon Church of God writing that he

has known the couple since 2010 and they are honest, truthful, and dedicated entrepreneurs; pp. 144

Letter from Kathleen Sebelius, Domestic Violence Supervisor at Safety Education Center writes that he has known the couple since 2003 and they display in their

adult lives a consistent level of honesty, integrity, responsibility, and commitment to

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23.

achieving their goals; pp. 145

Letter from Jose Antonio Villaraigosa, former employer, writing that he has known

the couple since 2006 and that Michelle worked to put herself through high school and put a lot of effort into obtaining her grades; pp. 146

24.

Article from the Los Angeles Times: “In Mexico, extortion is a booming offshoot of

25.

Article from Dallas News: “Editorial: The business of violent crime in Mexico”; pp.

drug war”, 3/18/2012; pp. 147-149 150-151

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Memorandum on Hardship suffered by Mr. Obama (U-Principal) if his wife is not able to adjust status with him

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Background Mrs. Obama is a citizen and native of Mexico. Mrs. Obama met her husband in high school in 2003. (see high school transcripts). They became friends, and then started dating. (see statements of Mr. and Mrs. Obama , friends and family). They both completed high school. Thereafter, Mrs. Obama obtained a certificate in cosmetology. (see diploma). They married on January 2, 2013. (see Marriage License) Mrs. Obama does not hold U nonimmigrant status. Mr. Obama ’ application for adjustment of status based on his U nonimmigrant status is pending. (see receipt for pending adjustment). Mr. Obama has been in valid U nonimmigrant status since November 2010 after witnessing a robbery, and thereafter being shot at by gang members. He assisted the police, and testified for the prosecution on multiple occasions, which with his assistance lead to the arrest and conviction of the defendants. Mr. Obama obtained a culinary arts degree and runs a catering business with the assistance of Mrs. Obama. Mr. Obama has resided in the United States since he was an infant. He received all of his education in the United States. He owns a home in the United States, and owns his own catering business. Mr. and Mrs. Obama have no criminal history whatsoever. They are ages 25 and 24 respectively. They do not have any children yet as they are focused on the catering business and stabilizing their immigration status prior to having any children. Standard The standard for approving this application is whether the principal U nonimmigrant will suffer extreme hardship. 8 CFR 245.24(h)(1)(iv). In Matter of O-J-O, 21 I&N Dec. 381 (BIA 1996), the Board of Immigration Appeals (BIA) held that “the elements required to establish extreme hardship are dependent upon the facts and circumstances peculiar to each case.” O-J-O- at 383 (quoting Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994). “Relevant factors, though not extreme in themselves must be considered in the aggregate in determining whether extreme hardship exists.

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In Matter of Anderson, 16 I&N Dec. 596 (BIA 1978) the BIA noted the following factors are relevant in determining whether hardship exists: “age of the subject; family ties in the United States and abroad; length of residence in the United States; conditions of health; conditions in the country to which the alien is returnable - economic and political; financial status - business and occupation; the possibility of other means of adjustment of status, whether of special assistance to the United States or community; immigration history; position in the community.” 16 I &N Dec. 596, 597. Not all factors need to be examined in each case, but the relevant factors should be analyzed to determine if the qualifying relative would suffer from extreme hardship. Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999).

Mr. Obama would suffer extreme hardship if he were separated his wife, who has been his best friend and companion for over ten years. Here, Mr. Obama would suffer extreme hardship if his wife were not allowed to adjust status with him as a derivative upon approval of his own pending adjustment application. He has known his wife for over a decade. They met when they were both in high school and became high school sweethearts. He writes that he met his wife when they were both 15 years old. They own a home together, and several vehicles that they use for the catering business. Mr. Obama has invested substantial time, money and education in his catering business. He would suffer extreme financial, educational and emotional hardship if forced to give up his dream, education and training if his wife could not remain in the United States as a legal permanent resident. Mr. Obama has three younger United States Citizen sisters that he provides for emotionally, financially and economically. He is close to his family. He would suffer extreme emotional hardship if required in any way to be separated from his family. Mr. Obama would suffer extreme emotional hardship if separated from his wife. He writes: … Michelle has become the most important person in my life. Michelle unraveled a different outlook of life because her love taught me that we can love someone else more than ourselves or anything… I could not fantom (sic) a life without the love of my life and I hope that our young lives endures to our grandpa days… [Michelle] understands where I come from and the demand my work requires of me and that is why she clocks a lot of her personal time into our business without expecting anything in return. She is truly selfless and I am very fortunate to have found her… As such, permitting Mrs. Obama to adjust status with her husband would allow her to continue to grow, help and harvest the fruits of their joint labors which otherwise would be foreclosed to her due to an unstable immigration status. Mr. Obama would suffer extreme hardship if his wife were not able to adjust status with him, a phenomenal step for their future, careers and family. They are a couple that shares their life together and grow together. The Pastor at their church writes:

Appendices

I can attest that this young couple’s character as being honest and truthful, they dedicate their lives as entrepreneurs, are responsible and hardworking, performing with excellence. Together they have assisted the community. Katherine Sebelius, a friend and domestic violence supervisor writes fondly that although they both grew up in a difficult neighborhood they avoided the pressures of their peers.

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He adds: As married adults, Barack and Michelle have displayed in their adults lives in a very consistent level of honesty, integrity, responsibility, along with a commitment of perseverance in achieving their goals.

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Mr. Obama would suffer extreme emotional hardship to be separated from his partner and best friend for over ten years. Mr. Obama would suffer extreme economic hardship if he were forced to relocate to Mexico if his wife were not allowed to adjust status to that of a legal permanent resident. Mr. Obama received all of his education in the United States, and runs a growing catering business. The economic situation in Mexico would not allow Mr. Obama to relocate and use his skills, experience and education in Mexico. Moreover, Mr. Obama made substantial economic investments in terms of time, autos purchased for his catering business that he would lose if he could not remain in the United States with his wife. Moreover, Mexico is plagued with violence and extortion against small business owners. The Dallas news opines: “Too often, if you are successful in Mexico, you become a target.” In a recent article, the Los Angeles Times stated: From mom-and-pop businesses to mid-size construction projects to some of Mexico's wealthiest citizens, almost every segment of the economy and society has been subjected to extortion schemes, authorities and records indicate. Even priests aren't safe. Mr. Obama, who has resided in the United States since he was a small child, would suffer extreme hardship not only economically but to his safety and wellbeing. We pray that your office grants the application I-929 to allow Mrs. Obama to adjust status with her husband.

Sincerely,

Andrea J. Garcia Attorney At Law

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HARDSHIPS WORKSHEET For U visa I-192 Waiver of Inadmissibility Which of these statements are true about you? Please check each box that is true for you. GENERAL QUESTIONS



1.

I do not want to go back to my home country because…. a. There are few to no jobs



b. I would not be able to support my family



c. There are no good educational opportunities for my kids



d. There are no good educational opportunities for myself



e. There is a lot of crime (circle all the kinds: drug crime gang violence guerillas other ________________________________)



f.



g. There is little to no police protection for women who are victims of domestic violence or sexual assault



h. There is little to no social services or support for women who are victims of domestic violence or sexual assault



i.

My home country does not have adequate health care for me or my family



j.

I’m afraid my abuser/ attacker would find me there

There is little to no police protection for victims of crime

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If you were forced to leave the U.S., what would happen to your family members? Would they come with you or stay in the U.S.?

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EMPLOYMENT AND ECONOMIC PROSPECTS 

2. I will probably not be able to find work in my usual occupation of _____________________________________ back in my home country



3. I will probably not be able to find ANY work in back in my home country



4. I might be able to find work back in my home country, but the wages in that type of work are not enough to support myself or my family



5. I have no home or property back in my home country



6. I have no place to stay back in my home country



7. I have a place to stay in my home country, but it would be difficult to stay there because:



a. the house is very small for _____ # of occupants because there are only ____ # of rooms



b. there is no electricity/light



c. there is no running water



d. there is no indoor plumbing



e. there is no indoor bathroom



f.

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there is no phone

POLITICAL / SOCIAL/ SAFETY CONDITIONS IN YOUR HOME COUNTRY 

8. There is a lot of violence and chaos in my home country



9. The police do not help the victims in my home country



10. I and/or my children would not be safe while traveling to work and school



11. Women in my home country cannot get emotional support or counseling



12. Domestic violence is very common in my home country

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Appendix SS-2

EDUCATION CONDITIONS FOR CHILDREN  13. If forced to return to my home country, my children’s education will suffer because: 

a. I cannot afford good schools



b. the schools are not very good



c. my kids do not speak / write my native language



d. the school is very far away



e. They will have to work to help pay the bills, so they will not be able to attend school full time



f.



g. Other ___________________________________________



They are very Americanized and will have trouble adjusting

14. If forced to return to my home country, my kids will not be able to achieve their educational and career goals of ____________________________

HEALTH CARE CONDITIONS 

15. I have the following health care condition/ illness:



_ 16. I receive this treatment here in the US :

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

17. Back in my home country I will not be able to get adequate treatment for my health condition because

Appendix SS-3

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

18. My kids have the following health care condition/ illness:



_ 19. My kids receive this treatment in the US:



20. Back in my home country my kids will not be able to get adequate treatment for their health condition because



21. Since the attack/ abuse, I/ my kids (CIRCLE) have been getting counseling here in the U.S. and I would not be able to receive this counseling in my home country

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Anything else? Please describe below anything else you want to tell the government about why you would suffer extreme hardship if you had to return to your home country.

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Appendix SS-4

Las Dificultades al Regresar a su Pais de Origen HARDSHIPS WORKSHEET For U visa I-192 Waiver of Inadmissibility De los sigientes comentarios cuales aplican a usted? Por favor marcar cada caja que aplique a usted. PREGUNTAS GENERALES 1.) No quiero regresar a mi pais de origen porque...



a.) No hay mucho trabajo disponible o oportunidad de trabajo



b.) No voy a poder mantener a mi familia



c.) No hay oportunidad de educacion para mis hijos



d.) No hay buenas oportunidades de educacion para mi



e.) Hay bastantes crimes (circular que tipo aplica a su pais: crimenes de drogas/narcotraficantes violencia de pandillas guerillas otros:________________________ )

  

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 

f.) No existe protecsion o muy poca protecsion policial a victimas de crimen g.) No existe protecsion o muy poca protecsion policial a victimas de violencia domestica h.) No hay muchos servicios sociales o appoyo para mujeres victimas de violencia domestica o abuso sexual i.) Mi pais de origen no tiene servicios medicos adecuados para mi familia y yo j.) Tengo miedo que mi abusador me encuentre

Appendix SS-5

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¿ Si usted fuero forsado a salir de los Estados Unidos y regresada(o) a su pais de origen, que le pasaria a sus miebros de familia? Ellos se quedarian en los Estados Unidos o se fueran con Usted? (Por favor explicar con detalles) _____________________________________________________________

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______________________________________________________________ ______________________________________________________________ ______________________________________________________________ _______________________________________________________________

EMPLEO Y ECONOMICO PROSPECTO 

2.) Yo probablemente no voy a poder encontrar empleo en mi oficio usual de _________________________ en mi pais.



3.) Yo probablemente no voy a poder encontrar trabajo de NINGUN tipo.



4.) Yo probablemente puedo encontar trabajo pero no ganaria lo suficiente para mantenerme a mi misma, mucho menos a mi familia.



5.) No tengo un hogar o propiedades en mi pais de origen.



6.) No tengo lugar adonde quedarme en mi pais de origen.



7.) Tengo un lugar adonde me puedo quedar en mi pais, pero seria dificil quedarme alli porque...



a.) La casa es muy chiquita para ______ (#) numero de occupantes porque solo hay _______ # de habitaciones.



b.) No hay luz o electricidad



c.) No pay agua potable



d.) No existe tuberia interior



e.) No existe un bano interior f.) No hay telefono

Appendix SS-6

Appendices



CONDICIONES POLITICAS/ SOCIALES/ SEGURIDAD EN SU PAIS DE ORIGEN 

8.) Existe bastante violencia y caos en mi pais de origen.



9.) La policia no ayuda a las victimas en mi pais de origen.



10.) Yo ni mis hijos estariamos seguros viajando a la escuela o trabajo.



11.) Mujeres en mi pais no reciben consejeria/terapia o apoyo emocional.



12.) La violencia domestica en bien comun en mi pais de origen. CONDICIONES EDUCATIVAS DE MIS HIJOS

13.) Si yo fuera forsada a regresar a mi pais de origen, la educacion de mis hijos sufreria bastante porque.... 

a.)No puedo pagarles educacion en una buena escuela.



b.)Las escuelas no son muy buenas.



c.)Mis hijos no hablan / escriben en mi lenguaje natal



d.) La escuela estan bien lejos



e.) Mis hijos tuvieran que trabajar para poder pagas los biles de la casa, entonces no podran tener el derecho de estudiar.



f.) Mis hijos estan bien Americanisados y tuvieran gran dificultad ajustandonce a un nuevo pais.



g.)Otro: _________________________________________________

Appendices

 14.) Si yo fuera forsada a regresar a mi pais de origen, mis hijos no pudieran realizarce en su objetivo educativo y carrera de _________________________ .

Appendix SS-7

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CONDICIONES MEDICAS

 





15.) Yo tengo los sigientes problemas medicos: ____________________________________________________ ____________________________________________________

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16.) Yo recibo este tipo de tratamiendo medico aqui en los Estados Unidos: ________________________________________________________ _________________________________________________________ ________________________________________________________ 17.) En mi pais de origen, no voy a poder recibir el tratamiento adecuado de mi condicion porque: __________________________________________________________ __________________________________________________________ ______________________________________________ 18.) Mis hijos tienen los sigientes problemas medicos:

Appendix SS-8

Appendices

__________________________________________________________ __________________________________________________________ ______________________________________________  19.) Mis hijos reciben este tratamiendo medico aqui en los Estados Unidos: _______________________________________________________ ________________________________________________________ ________________________________________________________  20.) Si tenemos que regresar a mi pais de origen, mis hijos no van a poder recibir el tratamiento adecuado medico de: ________________________________________________________ ________________________________________________________ ________________________________________________________  21.) Desde el ataque/abuso mis hijos o yo hamos recibido terapia que en mi pais de origen no pudieramos recibir: ___________________________________________________________ ___________________________________________________________ Hay algo mas que usted le quiere decir al Govierno de Estados Unidos, explicando lo que usted o su familia sufrerian si tuvieran que regresar a su pais de origen? ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ __________________________________________

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Catherine Ward-Seitz, Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA

______________________________ In the Matter of ) ) ) )

LAST NAME, First Name )

A0__ ___ ___ Request for Bond Redetermination

) ) Respondent,

) ) ) )

In Removal Proceedings. ______________________________)

Immigration Judge Murray ) )

Hearing: December 1, 2009 (Master)

Respondent, _____, respectfully asks the Court for a bond redetermination hearing and release on her own recognizance or on a very low bond. Respondent is currently detained in ICE custody. Respondent is a victim of domestic violence and was arrested because she defended herself against her abuser, but the charges were then dismissed. She will be applying for a U visa.

Appendices

Since the charges against Ms. ___ were dismissed, she does not pose a danger to the community. Respondent does not pose a flight risk because she plans to apply for a U visa as soon as we can get a law enforcement certification confirming her cooperation in the investigation and thus it is to her benefit to appear for court hearings as mandated. In support of this request for bond redetermination, we enclose the following: 1. Court printout showing the charges against her were dismissed (page 3), 2. Email showing that I have requested a U visa certification from the San Francisco Police Department (page 4),

Appendix TT-1

3. Police report from September 2009 showing the history of domestic violence (page 5), and 4. Police report from November 2009 where both Ms. ___ and her abusive boyfriend were arrested (page 14).

Respectfully Submitted:

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Dated: December 1, 2009

___________________________________ Catherine Ward-Seitz, Attorney for Respondent

Appendices

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of: LAST NAME, First Name

A Number: A0__ ___ ___

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the Respondent’s REQUEST REDETERMINATION, it is HEREBY ORDERED that the motion be ___ GRANTED ____ DENIED because:

FOR

BOND

_____ DHS does not oppose the motion. _____ The Respondent does not oppose the motion. _____ A response to the motion has not been filed with the court. _____ Good cause has been established for the motion. _____ The court agrees with the reasons stated in the opposition to the motion. _____ The motion is untimely per _____________________. ______ The new bond is set at __________________. ______ Respondent is ordered released on her own recognizance. _____ Other: _____________________________________. Deadlines: _____ The application for relief must be filed by: _________________. _____ The Respondent must comply with DHS instructions by: ___________________.

____________________ Date

________________________ Anthony S. Murry Immigration Judge

________________________________________________________________________

Appendices

Certificate of Service This document was served by: ____ Mail _____ Personal service To: ____Alien ___ Alien c/o Custodial Officer ___ Alien’s Atty/Rep ___ DHS Date: __________________ By: Court Staff ____________________________

Appendix TT-3

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Catherine Ward-Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

First Name LAST NAME, Respondent. ____________________________________)

) ) ) ) ) ) ) )

UNOPPOSED MOTION FOR CONTINUANCE

MSTR HRG: IJ: File No.: A0

Respondent, through counsel, respectfully requests that a continuance be granted in this case for at least three months because she has an application for a U visa still pending at the Vermont Service Center. In support of this request, we enclose the following: A. E-28 authorizing my representation………………………………………………..p.1 B. U visa receipt notices………………………………………………………………p.3 C. Email exchange with the Office of Chief Counsel showing their non-opposition to a continuance……………………………………………………………………..….p.6

Appendices

Thank you very much for your consideration of this motion.

Appendix VV-1

Respectfully submitted,

Date: October 27, 2009

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_______________________ Catherine Ward-Seitz, Attorney for Respondent

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United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California In the Matter of: LAST NAME, First Name

A Number: 0__ ___ ___

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Respondent’s Motion for a Continuance, It is HEREBY ORDERED that the motion be [ ] GRANTED

[ ] DENIED because:

[ ] DHS does not oppose the motion. [ ] The Respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per _________________________ [ ] Other: Deadlines: [ ] The new hearing date is _________________________

Date: ___________________

____________________________________ Judge _______________ Immigration Judge

______________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To:

[ ] Alien

[ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep

Appendices

Date: ______________________

By: Court Staff

______________________

Appendix VV-3

[ ] DHS

PROOF OF SERVICE BY MAIL

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I, Catherine Ward-Seitz, declare: That I am an employee of Bay Area Legal Aid and my business address is 1735 Telegraph Avenue, Oakland, CA 94612. That I served a true copy of the attached Motion by placing said true copy in an envelope that was then sealed, with first class regular mail postage fully paid thereon, and was this day addressed as follows: United States Department of Homeland Security Office of the Chief Counsel P.O. Box 26449 San Francisco, CA 94126-6449 Executed this 27th day of October, 2009 at Oakland, California.

__________________________ Catherine Ward-Seitz Bay Area Legal Aid (510) 250-5234 [email protected]

Appendices

Appendix VV-4

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Catherine Ward-Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

) UNOPPOSED ) MOTION TO TERMINATE ) , ) Master Cal Hrg: ) IJ: Respondent. ) File No.: _________________________________) Respondent, through counsel, respectfully requests that the removal proceedings against her be terminated because her application for U non-immigrant status (U Visa) has been approved and so she is now in lawful status. The Office of Chief Counsel does not oppose this motion. In support of this request, we enclose the following: D. New E-28 showing my new office address………………………………………..p.1 E. U visa (I-918) approval notice…………………………..…………………………p.3 F. Email exchange with the Office of Chief Counsel showing their non-opposition to termination……………………………………………………………………..…..p.4

Appendices

WHEREFORE, the respondent requests that the proceedings against her be terminated in the interests of justice.

Appendix VV-5

Respectfully submitted,

Date: October 27, 2009

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Catherine Ward-Seitz, Attorney for Respondent

Appendices

Appendix VV-6

United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California In the Matter of:

A Number:

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Respondent’s Motion for Termination (without prejudice), It is HEREBY ORDERED that the motion be [ ] GRANTED

[ ] DENIED because:

[ ] DHS does not oppose the motion. [ ] The Respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per _________________________ [ ] Other: Deadlines: [ ] The new hearing date is _________________________

Date: ___________________

____________________________________ Judge Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To:

[ ] Alien

[ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS

Appendices

Date: ______________________

By: Court Staff ______________________

Appendix VV-7

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PROOF OF SERVICE BY MAIL

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I, Catherine Ward-Seitz, declare: That I am an employee of Bay Area Legal Aid and my business address is 1735 Telegraph Avenue, Oakland, CA 94612. That I served a true copy of the attached Motion for Termination by placing said true copy in an envelope that was then sealed, with postage fully paid thereon, and was this day addressed as follows: United States Department of Homeland Security Office of the Chief Counsel P.O. Box 26449 San Francisco, CA 94126-6449

Executed this 27th day of October, 2009 at Oakland, California.

__________________________ Catherine Ward-Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected]

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Appendix VV-8

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Appendix VV-10

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Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] EOIR ID Number: MH884066 Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

First Name LAST NAME, Respondent. ____________________________________)

) ) ) ) ) ) ) )

MOTION FOR CONTINUANCE

MSTR HRG: IJ: File No.: A0

Appendices

MOTION FOR CONTINUANCE

Appendix VV-11

Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] EOIR ID Number: MH884066

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Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

First Name LAST NAME, Respondent. ____________________________________)

) ) ) ) ) ) )

MOTION FOR CONTINUANCE MSTR HRG: IJ: File No.: A0

Respondent, through counsel, respectfully requests that a continuance be granted in this case for at least six months because she has an application for a U visa pending at the Vermont Service Center. The Office of Chief Counsel has not yet determined their position regarding this motion, but has stated via email that they will weigh in once they have a chance to review the motion. In support of this request, we enclose the following: G. E-28 authorizing my representation………………………………………………..p.1 H. U visa receipt notices………………………………………………………………p.3 I.

Email exchange with the Office of Chief Counsel……………………………..….p.6 Thank you very much for your consideration of this motion.

Appendices

Appendix VV-12

Respectfully submitted,

Date: ____________________

Appendices

_______________________ Catherine Seitz, Attorney for Respondent

Appendix VV-13

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United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California In the Matter of: LAST NAME, First Name

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A Number: ___ ___ ___

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Respondent’s Motion for a Continuance, It is HEREBY ORDERED that the motion be [ ] GRANTED

[ ] DENIED because:

[ ] DHS does not oppose the motion. [ ] The Respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per _________________________ [ ] Other: Deadlines: [ ] The new hearing date is _________________________

Date: ___________________

____________________________________ Judge _______________ Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To:

[ ] Alien

[ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep

Date: ______________________

[ ] DHS

By: Court Staff ________________

Appendices

Appendix VV-14

PROOF OF SERVICE BY MAIL

I, Catherine Seitz, declare: That I am an employee of Bay Area Legal Aid and my business address is 1735 Telegraph Avenue, Oakland, CA 94612. That I served a true copy of the attached Motion by placing said true copy in an envelope that was then sealed, with first class regular mail postage fully paid thereon, and was this day addressed as follows: United States Department of Homeland Security Office of the Chief Counsel 100 Montgomery Street, Suite 200 San Francisco, CA 94104 Executed this __th day of _______, ____ at Oakland, California.

Appendices

__________________________ Catherine Seitz Bay Area Legal Aid (510) 250-5234 [email protected] EOIR ID Number: MH884066

Appendix VV-15

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Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] EOIR ID Number: MH884066

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Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

Jane DOE, Respondent. ____________________________________)

) ) ) ) ) ) ) ) ) )

MOTION TO ADMINISTRATIVELY CLOSE PROCEEDINGS OR CONTINUE IN THE ALTERNATIVE MSTR HRG: xx/xx/2013 8:30am IJ: __________ File No.: A___ ___ ___

MOTION TO ADMINISTRATIVELY CLOSE (OR CONTINUE IN THE ALTERNATIVE):

Appendices

Appendix VV-16

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Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] EOIR ID Number: MH884066 Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA ) MOTION TO ADMINISTRATIVELY ) CLOSE PROCEEDINGS ) OR CONTINUE IN THE ) ALTERNATIVE ) Jane DOE, ) MSTR HRG: xx/xx/2013 8:30am ) IJ: ________ Respondent. ) File No.: A___ ___ ___ ____________________________________)

In the Matter of

)

Respondent, through counsel, respectfully requests that the removal proceedings against her be administratively closed because she has a I-918 Application for U status pending with USCIS at the Vermont Service Center. The Office of Chief Counsel does not oppose a continuance, but has not yet determined their position regarding administrative closure. In support of this request, we enclose the following: J. Copy of the respondent’s I-918 receipt notice and case status online printout showing her I918 is still pending…………………………………………………………….p.1 K. Email exchange with the Office of Chief Counsel showing that I have communicated with

Appendices

them in advance of filing this motion………………………….…………..…..p.3 WHEREFORE, the respondent requests that the proceedings against her be administratively closed (or continued in the alternative) in the interests of justice.

Appendix VV-17

Respectfully submitted,

Date: _________________

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Catherine Seitz, Attorney for Respondent

Appendices

Appendix VV-18

United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California In the Matter of: Jane DOE

A Number: A___ ___ ___

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Respondent’s Motion for Administrative Closure, It is HEREBY ORDERED that the motion be [ ] GRANTED [ ] DHS does not oppose the motion.

[ ] DENIED because:

[ ] The Respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per _________________________ [ ] Other: Upon consideration of the Respondent’s Alternative Motion for a Continuance, It is HEREBY ORDERED that the motion be [ ] GRANTED [ ] DHS does not oppose the motion.

[ ] DENIED because:

[ ] The Respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per _________________________ [ ] Other:

Appendices

Deadlines: [ ] The new hearing date is _________________________

Appendix VV-19

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Date: ___________________

____________________________________ Judge ___________ Immigration Judge

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________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To:

[ ] Alien

[ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS

Date: ______________________

By: Court Staff ______________________

Appendices

Appendix VV-20

PROOF OF SERVICE BY MAIL I, Catherine Seitz, declare: That I am an employee of Bay Area Legal Aid and my business address is 1735 Telegraph Avenue, Oakland, CA 94612. That I served a true copy of the attached Motion by placing said true copy in an envelope that was then sealed, with postage fully paid thereon, and was sent via first class regular mail this day addressed as follows: United States Department of Homeland Security Office of the Chief Counsel 100 Montgomery Street, Suite 200 San Francisco, CA 94104

Executed this __th day of ____, 201_ at Oakland, California.

Appendices

__________________________ Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] EOIR ID Number: MH884066

Appendix VV-21

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Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

) UNOPPOSED ) MOTION TO TERMINATE ) First Name LAST NAME, ) Master Cal Hrg: _____ ) IJ: __________ Respondent. ) File No.: A0__ ___ ___ _________________________________) UNOPPOSED MOTION TO TERMINATE

Appendices

Appendix VV-22

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Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] EOIR ID Number: MH884066 Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

) UNOPPOSED ) MOTION TO TERMINATE ) First Name LAST NAME, ) Master Cal Hrg: _____ ) IJ: __________ Respondent. ) File No.: A0__ ___ ___ _________________________________) Respondent, through counsel, respectfully requests that the removal proceedings against her be terminated because her application for U non-immigrant status (U Visa) has been approved and so she is now in lawful status. The Office of Chief Counsel does not oppose this motion. In support of this request, we enclose the following: L. E-28 authorizing my representation………...……………………………………..p.1 M. U visa (I-918) approval notice…………………………..…………………………p.3 N. Email exchange with the Office of Chief Counsel showing their non-opposition to termination……………………………………………………………………..…..p.4

Appendices

WHEREFORE, the respondent requests that the proceedings against her be terminated in the interests of justice.

Appendix VV-23

Respectfully submitted,

Date: ___________

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Catherine Seitz, Attorney for Respondent

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Appendix VV-24

United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California In the Matter of:

First Name LAST NAME

A Number: ___ ___ ___

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Respondent’s Motion for Termination (without prejudice), It is HEREBY ORDERED that the motion be [ ] GRANTED

[ ] DENIED because:

[ ] DHS does not oppose the motion. [ ] The Respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per _________________________ [ ] Other: Deadlines: [ ] The new hearing date is _________________________

Date: ___________________

____________________________________ Judge _______________ Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To:

[ ] Alien

[ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS

Appendices

Date: ______________________

By: Court Staff ______________________

Appendix VV-25

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PROOF OF SERVICE BY MAIL

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I, Catherine Seitz, declare: That I am an employee of Bay Area Legal Aid and my business address is 1735 Telegraph Avenue, Oakland, CA 94612. That I served a true copy of the attached Motion for Termination by placing said true copy in an envelope that was then sealed, with postage fully paid thereon, and was this day addressed as follows: United States Department of Homeland Security Office of the Chief Counsel 100 Montgomery Street, Suite 200 San Francisco, CA 94104

Executed this ___ day of ________, ____ at _____________, California.

__________________________ Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (510) 250-5234 [email protected] EOIR ID Number: MH884066

Appendices

Appendix VV-26

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Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (415) 717-8838 [email protected] EOIR ID Number: MH884066 Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

First Name LAST NAME, Respondent. ____________________________________)

) ) ) ) ) ) ) ) ) )

UNOPPOSED MOTION TO RECALENDAR AND TERMINATE

MSTR HRG: Admin Closed IJ: _______ File No.: A___ ___ ___

Appendices

UNOPPOSED MOTION TO RECALENDAR AND TERMINATE PROCEEDINGS:

Appendix VV-27

Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (415) 717-8838 [email protected] EOIR ID Number: MH884066

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Attorney for Respondent EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In the Matter of

First Name LAST NAME, Respondent. ____________________________________)

) ) ) ) ) ) ) ) ) )

UNOPPOSED MOTION TO RECALENDAR AND TERMINATE

MSTR HRG: Admin Closed IJ: _______ File No.: A___ ___ ___

Respondent, through counsel, respectfully requests that the previously admin closed removal proceedings against her be re-calendared and terminated because her I-918 Application for U status has been approved and so she is now in lawful status. The Office of Chief Counsel does not oppose this motion. In support of this request, we enclose the following: O. Copy of the respondent’s I-918 approval notice…………………………………….p.1 P. Email exchange with the Office of Chief Counsel showing their non-opposition to the motion……………………………………………………………….…………..…..p.2

Appendix VV-28

Appendices

WHEREFORE, the respondent requests that the proceedings against her be re-calendared and terminated in the interests of justice.

Respectfully submitted,

Date: ______________

Appendices

Catherine Seitz, Attorney for Respondent

Appendix VV-29

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United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California In the Matter of: First Name LAST NAME

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A Number: A___ ___ ___

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Respondent’s Motion for Re-Calendaring, It is HEREBY ORDERED that the motion be [ ] GRANTED [ ] DHS does not oppose the motion.

[ ] DENIED because:

[ ] The Respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per _________________________ [ ] Other: Upon consideration of the Respondent’s Motion for Termination (without prejudice), It is HEREBY ORDERED that the motion be [ ] GRANTED [ ] DHS does not oppose the motion.

[ ] DENIED because:

[ ] The Respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per _________________________ [ ] Other: Deadlines: [ ] The new hearing date is _________________________

Appendices

Appendix VV-30

Date: ___________________

____________________________________ Judge _________ Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To:

[ ] Alien

[ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS

Appendices

Date: ______________________

By: Court Staff ______________________

Appendix VV-31

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PROOF OF SERVICE BY MAIL

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I, Catherine Seitz, declare: That I am an employee of Bay Area Legal Aid and my business address is 1735 Telegraph Avenue, Oakland, CA 94612. That I served a true copy of the attached Motion by placing said true copy in an envelope that was then sealed, with postage fully paid thereon, and was sent via first class regular mail this day addressed as follows: United States Department of Homeland Security Office of the Chief Counsel 100 Montgomery Street, Suite 200 San Francisco, CA 94104

Executed this 23rd day of April, 2014 at Oakland, California.

__________________________ Catherine Seitz Bay Area Legal Aid 1735 Telegraph Avenue Oakland, CA 94612 (415) 717-8838 [email protected]

Appendices

Appendix VV-32

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PRACTICE ADVISORY1 November 2015

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A STEP-BY-STEP GUIDE TO COMPLETING FOIA REQUESTS By Alison Kamhi, Staff Attorney

Introduction The Freedom of Information Act (“FOIA”) entitles every person access to certain information from the federal government. 2 A person can file a request under this act, called “a FOIA request,” to any federal agency to request documents about herself or others. A FOIA request can be an invaluable tool in immigration law to help an immigrant and her representative. There are many reasons a person may want to see the documents about her that the government has. When the person is applying for an immigration benefit or fighting removal, it is not only helpful, but also often critical to the success of the person’s case to have a copy of certain documents. The person might need to know what criminal records the government has that could affect her eligibility for relief or the person might need to see a paper trail of her previous immigration history to help piece together what happened. The Department of Homeland Security (“DHS”) keeps an immigration file (also known as an “A-file”) on all immigrants with whom it comes into contact. Fortunately, a person is entitled under FOIA to request a copy of her A-file, as well as other immigration records, from any of the DHS agencies—U.S. Citizenship and Immigration Services (“USCIS”); U.S. Customs and Border Protection (“CBP”); U.S. Immigration and Customs Enforcement (“ICE”); or U.S. Office of Biometrics Identity Management (“OBIM,” formerly US-VISIT)—that may hold immigration records. 3 This practice advisory will walk through how to file a FOIA request with these DHS sub-agencies because they are the main agencies that keep immigration records. Note, however, that a FOIA request is an option for any federal government agency. Depending on the case, you may want to file a FOIA request at the Department of State (for passport records) or the Department of Justice (for immigration court records). PRACTICE TIP: Because each department within DHS is responsible for responding to requests for its own records, it is important that before submitting your request, you determine which department is likely to have the records you are seeking and direct your request to that department. For example, if you want to get a copy of your green card

Appendix YY-1

Appendices

1 The Immigrant Legal Resource Center is a national, nonprofit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights. The mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. For the latest version of this practice advisory, please visit www.ilrc.org. For questions regarding the content of this advisory, please contact Alison Kamhi at [email protected]. Thanks to Aidin Castillo (ILRC) and former ILRC intern Rocio Sanchez for drafting earlier versions, and to Jose Magana-Salgado (ILRC) for his help in preparing this document. 2 Freedom of Information Act, 5 U.S.C. § 552. 3 Because the process for submitting requests can differ between agencies, be sure to visit the agency’s website for the most up to date information.

application, the request should be made to USCIS. However, if you are looking to get more information about your expedited removal at the border, then you should submit your request to CBP or OBIM. In some cases you may want to, and indeed it may be best, to submit requests to multiple departments. Sometimes it can be complicated to determine which agency may have the records you are looking for. To help you make this determination, USCIS provides a list of records/request types, and the agency that is likely to keep those records. The list is available on the USCIS FOIA website at http://www.uscis.gov/about-us/freedom-information-and-privacy-actfoia/how-file-foia-privacy-act-request/submitting-foia-requests. All FOIA requests to DHS must be made in writing. The government created Form G-639, Freedom of Information/Privacy Act Request, to help people make their requests. 4 Form G639 may be used to make a FOIA request to USCIS, ICE, and OBIM (but not CBP). Although Form G-639 is not required for any agency, we recommend using it where it is accepted or using an online fillable form where available. These options will help ensure that you provide the information necessary to process the request. This practice advisory will detail how to complete a FOIA request for USCIS, ICE, OBIM, and CBP. Section II charts the most common agencies holding immigration-related materials and the necessary steps to file a FOIA request with each of them. Section III details the requirements for submitting FOIA requests to USCIS, ICE, OBIM, and CBP. This section also includes alternatives to Form G-639, such as online submission options. Section IV provides step-by-step instructions on how to complete Form G-639. Section V discusses situations in which a FOIA request may not be the most effective tool and provides alternative ways to obtain information in those situations. A blank Form G-639 is also included for your reference.

Appendices

For clarity, throughout this document the term “Requestor” will refer to a person who is seeking the records, usually an immigration advocate or the person herself. “Subject” will refer to the “Subject of Record,” the person whose documents are being requested. Lastly, we will use the term “you” to reference generally the person seeking the records.

Form G-639 is available at http://www.uscis.gov/g-639. If you do not use Form G-639, you could submit a written letter request, for example, but your request will likely take less time if you submit it using the standardized form or online options. 4

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Agency

Records Held By 5 Agency

How To Request Records

Additional Information

Department of Homeland Security (DHS) USCIS

• A-file • Removal, detention, deportation records • Prior immigration petitions • USCIS decisions • Certification of nonexistence of a record

USCIS requests may be submitted using Form G-639 by mail, fax, or e-mail. USCIS requests may also be made through the DHS Online Request Form.

Form G-639 and Instructions: http://www.usci s.gov/g-639

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USCIS offers accelerated processing for certain people in Online Request removal proceedings. Form: http://www.dhs.gov/d hs-foia-request-submissionform

CBP

• Apprehensions and CBP requests must be submitted online. detentions at the 6 border • Interactions with CBP at the border or in the interior • Form I-94 records • Voluntary return records 7 • Records of entries • Expedited removal orders • Advance parole records

Online Form: https://foiaonline.regul ations.gov/foia/action/public/ request/publicPreCreate

ICE

• • • • •

Interactions with ICE SEVIS records Investigation records ICE arrest records Detention center records • Bond requests • Requests for detainer or notification forms

ICE Online Form: http://www.ice.gov/we bform/foia-request-form

ICE requests may be submitted using Form G-639 by mail, fax, or email. ICE requests may also be submitted electronically through the ICE online form or the DHS Online Request Form. All ICE requests must include a 1) phone number, and 2) if not submitted through an online form, an Affirmation/Declaration form.

DHS Online Request Form: http://www.dhs.gov/d hs-foia-request-submissionform Instructions: http://www.ice. gov/foia/request Affirmation/Declaration Form: http://www.ice.gov/do clib/about/pdf/affirmationdeclaration.pdf

USCIS, Submitting FOIA Requests, available at http://www.uscis.gov/about-us/freedom-information-and-privacy-actfoia/how-file-foia-privacy-act-request/submitting-foia-requests. 6 Records of apprehensions before 2000 are maintained by USCIS. 7 CBP does not have records before 1982. 5

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Appendix YY-3

OBIM requests may be made using Form G-639 or the DHS Online Request Form.

Online Request Form: http://www.dhs.gov/d hs-foia-request-submissionform

Department of Justice (DOJ) EOIR

• Court Orders Requests should be made directly to EOIR via email or 8 • Charging Documents mail. Do not use Form G-639 with EOIR. • Court Decisions All requests should include 1) the Subject’s A-number, 2) Subject’s name, and 3) a description of the record.

DOJ FOIA Instructions: http://www.justi ce.gov/oip/departmentjustice-freedom-informationact-reference-guide

Requests must also include a verification of identity such as Form DOJ-361, a notarized statement, or a sworn statement. Department of State (DOS) DOS

• Consular processing and other consulate records • Visa applications • Passport applications

DOS requests can be made by mail or fax.

9

Requests must include a description of the records; the name, address, and telephone number of the requestor; the amount the requestor is willing to pay for the request; the timeframe for the records request; and an original signature.

Additional Information: https://foia.state.gov

Instructions for Submitting FOIA Requests to USCIS, ICE, OBIM, and CBP There are four main agencies within DHS that hold immigration records, (1) U.S. Citizenship and Immigration Services (“USCIS”), (2) U.S. Immigration and Customs Enforcement (“ICE”); (3) U.S. Office of Biometrics Identity Management (“OBIM,” formerly US-VISIT); and (4) U.S. Customs and Border Protection (“CBP”). Because individual employees of DHS may change job positions, do not address the request to a specific person. If you are making your request by mail, you should include the notation “Freedom of Information Act Request” on the front of your envelope. This will help ensure that the responsible individual receives the request without delay. 1. USCIS: USCIS is the most common place to submit an immigration-related FOIA request because USCIS keeps records of prior petitions and decisions and often has the Subject’s A-file. Do not submit your FOIA request to your local USCIS office, Service Center, or Lockbox. USCIS processes all FOIA requests at the National Records Center. The request should be submitted using Form G-639 by email, mail, or fax, or using the electronic DHS submission form: 10

DOJ, Fact Sheet: How to File a Freedom of Information Act Request with EOIR, available at http://www.justice.gov/sites/default/files/eoir/legacy/2008/10/15/FOIAInstructions100908.pdf. 9 DOS has an online submission option for FOIA requests, but the online option is not available for requests about personal information. See DOS, How to Make a FOIA Request, available at https://foia.state.gov/Request/FOIA.aspx. 10 From October 15, 2014 to May 1, 2015, USCIS piloted a FOIA online system for records that did not include personally identifiable information. This pilot program has ended, and USCIS no longer accepts requests through this system. Requests must be sent by mail, fax, email, or electronically through DHS.

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Appendix YY-4

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Legal with ResourceOBIM Center OBIM Immigrant • Interactions requests may be made via e-mail, mail, or fax and February 2016 Border Officials must include an original fingerprint card or A-number.

Mail:

U.S. Citizenship and Immigration Services National Records Center (NRC) FOIA/PA Office P.O. Box 648010 Lee’s Summit, MO 64064-8010

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For overnight or certified mail, send the request to: U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office 150 Space Center Loop, Suite 300 Lee’s Summit, MO 64064-2139 Fax:

(802) 288-1793 or (816) 350-5785

Email:

[email protected]

Electronically:

http://www.dhs.gov/dhs-foia-request-submission-form

If you are submitting a FOIA request by email on behalf of someone other than yourself, scan and include the Subject’s notarized signature or signature made under penalty of perjury. For questions about filing a request, seeking a status update of pending requests, and assistance in obtaining records from USCIS, contact the USCIS National Customer Service Center at: (800) 375-5283 or (800) 767-1833 Hearing Impaired TTY. You may also fax inquiries to the National Records Center at (816) 350-5785 or e-mail your questions to [email protected]. 11 2. ICE: You should submit your FOIA request to ICE using Form G-639 and an accompanying Affirmation/Declaration form (see below) by mail, fax, or e-mail, or using the electronic ICE or DHS submission forms: Mail:

FOIA Office U.S. Immigration and Customs Enforcement 800 North Capitol St., NW 5th Floor, Suite 585 Washington, DC 20536 12

Fax:

(202) 732-4265

E-mail:

[email protected]

For more information about how to file a FOIA request with USCIS, visit the USCIS FOIA website at http://www.uscis.gov/about-us/freedom-information-and-privacy-act-foia/how-file-foia-privacy-act-request/how-filefoiapa-request. 12 ICE lists two different FOIA addresses on its website. ICE officials have confirmed with the authors that either address can be used to submit FOIA requests and accompanying documents. 11

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Appendix YY-5

Electronic Submission: http://www.ice.gov/webform/foia-request-form; or http://www.dhs.gov/freedom-information-act-foia All requests to ICE must include a daytime phone number. 13 If the request is submitted other than through the online form, ICE requires that an “Affirmation/Declaration” form be included, with the Subject’s name, date of birth, and, if the Subject does not want to the records sent to her personally, the name and address of a third party. The Affirmation/Declaration form is available on the ICE FOIA website at http://www.ice.gov/doclib/about/pdf/affirmation-declaration.pdf. By signing the form, the Subject indicates that she is responsible for applicable fees and that she understands that knowingly or willfully seeking or obtaining access to records about another person under false pretense is punishable by a fine of up to $5,000. Although the online ICE FOIA form does not have a specific question regarding expedited processing, all FOIA requests can be expedited, per federal regulation. 14 Requestors may request expediting processing on the online ICE FOIA form in the general description box. 3. OBIM: You should submit a FOIA request to OBIM using Form G-639 by email, mail, or fax, or using the electronic DHS submission form. OBIM requests also require original fingerprint cards or A-numbers. Mail:

OBIM FOIA 245 Murray Lane, SW Washington, DC 20598-0628

Fax:

(202) 298-5445

Email:

[email protected]

Electronically:

http://www.dhs.gov/dhs-foia-request-submission-form

DHS Online Request Submission Form

Appendices

DHS recently created an online fillable FOIA request form at http://www.dhs.gov/dhs-foiarequest-submission-form. This FOIA request form has a drop-down menu where the Requestor can select the department within DHS where the FOIA request should be sent. Through this online form, a Requestor can file a FOIA with USCIS, ICE, and OBIM, among others. The online form also allows the Requester to seek FOIA fee waivers and expedited service, if eligible. The online form remains unavailable for CPB FOIA requests, which must be submitted using CBP’s online form. 13

14

For more information, see the ICE FOIA request website, http://www.ice.gov/foia/submitting_request.htm. 6 CFR 5.5(d)(1).

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Filing Tips  Address – The address can be either a mailing address or residential address. Many people who are here without legal status may be concerned about giving the government their current physical address through a FOIA request. We are unaware of anyone currently being picked up by immigration authorities based on filing a FOIA request; however there is no guarantee. It is always safest to list a mailing address (e.g., a post office box) instead of a residential address. For people who are enforcement priorities or who have had prior contact with ICE, we strongly recommend listing a mailing address instead of a residential address.  Description – Providing a general description may assist DHS in locating the documents you need. It is best to be specific, but do NOT reveal anything about the Subject’s immigration strategy or any facts that you do not want the government to know. If you are not requesting specific documentation, then we recommend you complete this section by writing, “Requesting copy of A-file and any other immigration records for personal review.” If seeking records from USCIS, the Requestor should note the Subject’s date of birth and A-number in the description box.  Requestor Category – If the request is for an individual’s immigration case or personal review only, choose the first option (“An individual seeking information for personal use and not for commercial use”).

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DHS eFOIA App DHS released an Apple and Android friendly FOIA application of its online submission form. Using mobile devices, users can now submit and check the status of FOIA requests. The mobile application mirrors the Online Request Submission Form and can be used to request USCIS, ICE, or OBIM FOIAs. Users can also request expedited service and fee waivers via their cellular phones. For more information and links to download the app, please visit: http://www.dhs.gov/efoia-mobile-app. 4. CBP: If you would like to obtain records from CBP, you must submit an online request by going to https://foiaonline.regulations.gov/foia/action/public/request/publicPreCreate. CBP currently processes FOIA requests differently than the sections of DHS listed above. CBP only accepts requests through the online link above. Form G-639 is not required and in fact will not be accepted except as a supporting document to the online submission. At the time of writing, CBP is experiencing a severe backlog of FOIA requests, and many requests are taking longer than one year. If you are looking for records of border entries and exits, it is prudent to file a FOIA request with OBIM (formerly US-Visit) as well, as OBIM also has similar records and will likely respond much faster.

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Appendix YY-7

Filing Tips  Address – The address can be either a mailing address or residential address. Many people who are here without legal status may be concerned about giving the government their current physical address through a FOIA request. We are unaware of anyone currently being picked up by immigration authorities based on filing a FOIA request; however there is no guarantee. It is always safest to list a mailing address (e.g., a post office box) instead of a residential address. For people who are enforcement priorities or who have had prior contact with ICE, we strongly recommend listing a mailing address instead of a residential address.  Type of Records Requested – CBP provides categories of records, including border apprehension and encounters; commercial documents; contracts; entries and exits; fines, penalties, forfeitures, and seizures; I-94; imports and exports; media; travel (including advance parole documents) and apprehension; and “other.” If you are looking for one of these in particular, select that category. If you are looking for multiple categories, CBP advises the Requestor to list “other,” and include in the description box all of the categories you are seeking.  Attach Supporting Files – The CBP form permits Requestors to upload supporting files. We recommend not uploading additional files unless the Requestor is seeking specific, difficult to locate documents, where additional information could be helpful. In general, there is no need to provide additional files; if CBP requires more information than what was provided on the online form, it can contact the Requestor.

Expediting a FOIA Request DHS departments use a multi-track system to process FOIA requests on a first-in, first-out basis. This means that requests can take many months, depending on the department. If you have a compelling reason why you need your documents sooner, you can ask the department to expedite the FOIA request. Federal regulations provide that a request can be expedited if it involves “i) circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; [or] ii) an urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information.” 15 The latter ground only applies to requests for certain kinds of information about the government sought for the purpose of educating the public, and will rarely apply in individual FOIA requests. But if you believe that the first ground applies to you, you should write a detailed explanation and submit supporting evidence of why you need the response urgently.

Appendices

A request for expedited processing can be made at the time of the initial request or at a later date. 16 The governmental agency must inform the Requestor if it will expedite the request within ten days of receiving the request for expediting processing. 17

6 CFR 5.5(d)(1). 6 CFR 5.5(d)(2). 17 6 CFR 5.5(d)(4). 15 16

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In addition to expediting a request, USCIS also offers Requestors the option to accelerate a request for Subjects who have hearings scheduled in immigration court. 18 USCIS uses a three-track system for its FOIA requests. Track 1 is for simple requests for a few documents; Track 2 is for more complex requests, such as for a complete copy of the person’s file; and Track 3 is an accelerated process for certain cases in removal proceedings. 19 In order to receive Track 3 processing with USCIS, you need to write a brief cover letter requesting Track 3 processing and provide a copy of the Notice to Appear, Order to Show Cause, Notice of Referral to Immigration Proceedings, or Notice of Hearing. USCIS has stated that a person can request an expedited FOIA request or Track 3 processing, but not both simultaneously.

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FOIA Fees Most FOIA requests filed for immigration purposes are free. Although federal agencies can recover certain costs for the time spent searching for records and the number of pages copied, the first two hours of search time is free, and the first 100 pages copied are free. 20 Additionally, agencies currently do not charge even beyond that if the total amount is $14.00 or less. 21 Most FOIA requests, especially for people who have had little to no interaction with immigration authorities, fall well under this threshold and cost the Requestor nothing. Technically, however, by submitting a FOIA request, the Requestor is agreeing to pay all applicable fees up to $25.00, should the costs go over what is provided for free.22 The Requestor will be notified if she owes any money up to $25.00 and is expected to pay that amount. If the agency expects the work to cost more than $25.00, no additional work in excess of $25.00 will be done unless the Requestor agrees to pay the additional amount. If the Requestor does not wish to agree to $25.00 upfront, the Requestor can specify a greater or lesser amount when making FOIA request and/or submit a fee waiver. 23 Most of the online submission forms take this into consideration and require the Requestor to state the maximum amount that she will pay. Fee waivers are generally not available for FOIA requests for individual immigration cases. A person can qualify for a fee waiver only if she demonstrates 1) disclosure of the documents is in the public interest because they are likely to contribute significantly to the public’s understanding of the government; and 2) disclosure of the documents is not primarily for commercial interests. 24 Most FOIA requests for immigration cases would not meet this

18

Appendix YY-9

Appendices

Track 3 is for individuals who have been served with a charging document and scheduled for a hearing in immigration court as a result. See 72 Fed. Reg. 9017. This covers many, but not all, individuals in removal proceedings. Anyone who does not have a hearing scheduled, such as people who have final orders of removal, are awaiting pending appeals, or have missed their scheduled hearings, are not eligible for Track 3. See id. 19 USCIS, FOIA/Privacy Act Overview, available at http://www.uscis.gov/about-us/freedom-information-and-privacy-actfoia/foia-privacy-act-overview/foiaprivacy-act-overview. 20 6 CFR 5.11(d)(3). 21 6 CFR 5.11(d)(4); DHS, FOIA Requirements, Limits, and Fees, available at http://www.dhs.gov/how-submit-foia-orprivacy-act-request-department-homeland-security. 22 6 CFR 5.3(c). 23 6 CFR 5.11(e). 24 6 CFR 5.11(k).

standard; 25 you should thus think through how much money you can pay for the FOIA request and state that amount upfront, especially if it is less than $25.00. If the Requestor states $0, she will be given all of the records up to the $14.00 mark over which agencies begin charging. If possible, however, we recommend agreeing to the stated minimum of $25.00. This is because agency representatives have been unclear on whether a person will be notified if there are responsive records that exist above the maximum amount listed, when that amount is less than $25.00.

Instructions for Filling Out a FOIA Request on Form G-639 In this section, we walk through each numbered section of Form G-639. Type your responses or write them in black ink. If you do not know the information requested, the request could be delayed or the documents provided in response to the FOIA request could be incomplete. USCIS created a new Form G-639 with an issue date of March 31, 2015. Make sure you are using the correct form because previous versions are no longer accepted. The latest version of the form can always be found at http://www.uscis.gov/g-639. Part 1: Type of Request  Item 1a – c: Check the box that describes the request type. You should only check one box. If submitting a FOIA request, you should check the first box. If you are submitting a Privacy Act request, you should check the second box. If you are seeking to amend a government record covered by the Privacy Act, check the third box. 26 Privacy Act requests are only available for U.S. citizens and lawful permanent residents and allow these requestors to access and amend certain records the government maintains on individuals, such as service records for people who served in the U.S. armed forces or employment records for U.S. government employees. Requests under the Privacy Act are beyond the scope of this advisory. 27

An individual case that may meet this standard would be a Requestor that seeks her immigration file for purposes of understanding, criticizing, or publicizing broader immigration policies. For example, an individual working with a not-forprofit organization to highlight information from her case in order to inform the public about the implementation of the enforcement priorities could make an argument that such request would fall under the “public interest” prong of the FOIA statute. 26 Many agencies automatically treat applicable requests as being made under both FOIA and the Privacy Act. This approach is beneficial because it provides requestors the maximum amount of information available under the law. 27 For more information on the Privacy Act, see U.S. House of Representatives, A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, available at http://oversight.house.gov/wp-content/uploads/2012/09/Citizens-Guide-on-Using-FOIA.2012.pdf.

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Part 2: Requestor Information Item 1:  Check the Yes box if you are requesting your own records. Attorneys or representatives who are filling out the G-639 on behalf of their clients should check the No box. In these cases, the attorney is the Requestor.

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If you are seeking your own records, skip the remainder of the questions in Part 2. Requestors seeking records on behalf of someone else should complete all of Part 2. Items 3a – i: Requestor’s Mailing Address  In Care of Name (if any) – Write the name of the person receiving the documents, if other than the Requestor, or the name of the agency where correspondence should be delivered.  Street Number, Street Name, State, Zip Code – Write the full address of the Requestor. The address can be either a mailing address (including a post office box) or a residential address.  Province – If the mailing address is within the United States, then in the province box you should write “N/A.” If the mailing address is outside the United States and the country uses the province system, then you should write the name of the province where correspondence should be delivered.  Postal Code – If the mailing address is within the United States, then you should write “N/A” in the postal code box. If the documents will be mailed to a country that uses the postal code system, then you should write the postal code where correspondence should be delivered.  Country – Write the name of the country where the mailing address is located. If the address is within the United States, then write, “United States.” Items 4 – 6: Requestor’s Contact Information  Requestor’s Daytime Telephone Number – Write the Requestor’s telephone number where she can be reached.  Requestor’s Mobile Telephone Number (if any) – Write the Requestor’s cell phone number if it is different from the daytime phone number.  Requestor’s E-mail Address – Write the Requestor’s email address. To avoid delays caused by communication problems, include only telephone numbers that are regularly checked and not likely to change in the foreseeable future. If including an email address, only include one that is regularly checked.

Appendix YY-11

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Items 7a – b: Requestor’s Certification By signing, the Requestor agrees to pay all costs for the search, duplication, and review of the documents up to $25.00, when applicable. DHS will not charge for the first two hours of research or the first 100 pages copied. This means that if the file is small, DHS may not charge the requester at all.

 Requestor’s Signature – The Requestor should sign her complete name here with the date. A stamped or typed name in place of a signature will not be accepted. If you are representing the Subject and signing the form as the Requester, you should include a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. 28 PRACTICE TIP: The previous Form G-639 version listed the Requestor certification at the end of the form, but it is now included upfront. If you are the Requestor, do not forget to sign Part 2 7a-b, in the middle of Page 1 of the form. Part 3: Description of Records Requested

Item 1: Purpose This portion is optional. However, providing a general purpose may assist DHS in locating the file. It is best to be specific, but do NOT reveal anything about your immigration strategy or any facts that you do not want the government to know. For example, if you want to know whether the government has any evidence that the Subject may have used a false document when she applied for an immigration benefit, you do NOT want to disclose this possibility on the FOIA request by writing that the purpose is to search for records related to the Subject’s use of fraudulent documents. Instead, you may want to use the Purpose section to request the entire A-file. If you are not requesting specific documentation, we recommend you complete the Purpose section by writing, “Requesting copy of A-file and any other immigration records for personal review.” Although it is likely that the whole A-file will be provided even if not specifically requested, it is best to explicitly state that you seek all available documentation regarding the Subject. Items 2a – c: Full Name of the Subject of Record  Family Name – Write the Subject’s current last name.  Given Name – Write the Subject’s current first name.  Middle Name – Write the Subject’s current middle name.

Appendices

Items 3a – c: Other Names Used by the Subject of Record  Other Names Used – List any names or permutations that the Subject has ever used. If the Subject has used more than one “other name,” include the additional name(s) in Part 5 Additional Information (discussed below). Include any maiden name, the adding/dropping of a middle initial, or the adding or dropping of the mother’s last name. 28

Be sure to use the most recent version of Form G-28, available at http://www.uscis.gov/g-28.

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For example, if the Subject’s legal name (as it appears on her birth certificate or other legal document) is Juana Morales Gonzales, and she often goes by “Juana Morales,” she should add “Juana Morales” as an other name used. If the Subject has not used other names, write “N/A” in each box. If the Subject is looking to find records in her file under a different name, even a fake name that she used in the past, she should add that name as well.

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Items 4a – c: Full Name of the Subject of Record at Time of Entry into the United States Include the Subject’s complete name when she entered the United States. This may be the same as the Subject’s current full name. Items 5 – 7: Other Information for the Subject of Record  Form I-94 Number Arrival-Departure Record – If the Subject entered with a visa, she may have received a little white card called Form I-94 from CBP upon entering the country that looks similar to the picture below. If she received certain forms of immigration relief, such as U nonimmigrant status, she should have received a paper I-94 in the mail from USCIS. Write in the Subject’s 11-digit I-94 number. If the Subject does not know the number or is unsure if she ever had an I-94, write “Unknown.” If the Subject is sure she does not have one (this will be the case for anyone who entered without papers and has never had immigration status), write “None.” I-94# (11-digit number)

If the information the Subject seeks relates to a specific entry, provide the I-94 number for that entry and explain the request in the Additional Information section. If the Subject was admitted into the United States by CBP at an airport or seaport after April 30, 2013, she was likely issued an electronic Form I-94. To retrieve a paper version of Form I-94, visit CBP’s website at www.cbp.gov/i94. 29

Appendix YY-13

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29 The previous version of Form G-639 requested the Subject’s port of entry into the United States, date of entry, manner of entry, and mode of travel. The revised form no longer requests this information. This change is a big improvement because immigrants are no longer asked to speculate or concede any issues regarding their entries, which could affect their immigration case.

 Alien Registration Number (A-Number) – A person usually has an alien registration number (“A-number”) only if she has been in contact with immigration authorities, filed an immigration petition, or had a certain type of immigration case in the past. This number begins with an “A” and is generally seven, eight, or nine digits long. If the Subject has an A-number, write it in the appropriate box. If the Subject does not remember her Anumber or is unsure if she has one, write “Unknown.” If the Subject does not have one, write “None.” Sometimes people who have had multiple interactions with immigration authorities have multiple A-numbers. In this case, be sure to include all of the additional A-numbers in Additional Information. The A-number is the single most important item of information to help DHS locate the Subject’s A-file. If the Subject does not know her A-number, then more identifying information should be provided to assist the government in locating the file. If a Subject does not have an A-number, her presence might not be known by DHS, and DHS might not have any records on that person.  Application, Petition, or Request Receipt Number – If an immigrant petition has been filed for the Subject, write the petition receipt number here. Receipt numbers are found in the upper left corner of Form I-797C, Notice of Action. If the Subject does not know the number or is unsure if she has had a petition filed for her, write “Unknown.” If an immigrant petition has not been filed, write “None.” Items 8 – 11: Information About Family Members that May Appear on Requested Records This information is used to collect records related to the Subject that might have been filed by or for family members. Write in information about relatives who may appear in the Subject’s records. For example, write in the name of any family members who submitted a family-based petition for the subject. If there are multiple relatives that you want to include, complete the information for additional family members under Family Member 2 and by using Additional Information. Items 12 – 13: Parents’ Names for the Subject of Record The G-639 Form asks specifically for information about the Subject’s parents. However, the G-639 does not ask about the family members’ address or immigration status. Because of this, there is minimal risk in including the full names of the Subject’s parents. Part 4: Verification of Identity and Subject of Record Consent

Appendices

Every person submitting a FOIA request, whether to USCIS, ICE, or OBIM must complete the entire Verification of Identity and Subject of Record Consent section for the agency to verify that the Subject is who she says she is.

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PRACTICE TIP: The form requires the Subject of Record to include her name twice – in Part 3, Description of Records Requested and Part 4, Verification of Identity and Subject of Record Consent. When completing this information, always confirm that the name listed is consistent in both sections. This will help avoid any agency confusion. If you are using the fillable pdf form on the USCIS website, Part 4 items 1a – c will automatically populate based on your answers in Part 3.

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Items 2a – i: Mailing Address for the Subject of Record  Previously, Form G-639 required a residential address; the new version thankfully requires only a mailing address. Many people who are here without legal status or who have certain criminal or immigration violations may be concerned about giving the government their current physical address through a FOIA request. We are unaware of anyone currently being picked up by immigration authorities based on filing a FOIA request; however there is no guarantee. It is always safest to list a mailing address (e.g., a post office box) instead of a residential address. For people who are enforcement priorities or who have had prior contact with ICE, we strongly recommend listing a mailing address instead of a residential address. If the mail is sent to someone other than the Subject, include an “In Care Of Name” as part of the mailing address. Items 3 – 4: Other Information for the Subject of Record  Date of Birth – The date should be written as month/day/year. Ex.: 12/31/2015.  Country of Birth – Write the name of the country in which the Subject was born. If the name of the birth country has changed since she was born, write the name the country used at the time of her birth. PRACTICE TIP: For many immigrants, it may not be in their best interest to disclose in a FOIA request that they were born outside of the United States. For example, anyone contesting removability will not want to concede alienage. To avoid this, the Subject may simply decline to write her country of birth or write: “The government alleges [insert country name].” Although Form G-639 states that the information regarding country of birth is required, each reviewing officer has the discretion to determine how to handle a request when certain information is missing. Practitioners note that the government generally provides the A-file even when the country of birth is not listed.

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Items 5 – 7: Contact Information for the Subject of Record Providing contact information for the Subject is optional. If the Subject is represented by the Requestor, we recommend not providing contact information for the Subject, and thereby forcing DHS to contact only the Requestor if there is any question. If you do provide contact

information for the Subject, include only telephone numbers and email addresses that are regularly checked and not likely to change in the foreseeable future to avoid delays. Items 8a – 8c: Signature and Notarized Affidavit or Declaration of the Subject of Record Whether the FOIA request is made by a person seeking her own file or another person’s file, the Subject must either (1) provide her signature before a notary public in item 8.a, OR (2) sign the declaration under penalty of perjury in item 8.b. The Subject should choose one and not sign both.  Notarized Affidavit of Identity – The Subject should read and understand the certification, which states she agrees to pay costs incurred for the request up to $25, and that she consents to USCIS releasing her file to the Requestor named on the form. In the presence of the notary, the Subject should sign her complete name above the Signature of Subject of Record line and write the date on which the form is signed above the Date of Signature line. The notary must provide the date on which she witnessed the signing of the form, her daytime telephone number, her signature, and the date on which her commission expires. Notaries outside of the United States perform different functions and have differing levels of authority. Before signing this document outside of the United States, research the various requirements that will need to be satisfied before DHS recognizes the signature of a foreign notary.  Declaration under Penalty of Perjury – The Subject may choose to sign the declaration under penalty of perjury. By signing the statement, the Subject verifies under penalty of perjury that the information on the form is complete, true, and correct and that she agrees to pay up to $25 for the request. By signing, the Subject also consents to release documents to the Requestor listed in Part 2 of the form. If the Subject chooses this option, she must sign under the statement.  Deceased Subject of Record – If the Subject of Record is deceased, the Requestor must provide a COPY of the obituary, death certificate, funeral memorial, or other proof of death before any records are released.  Minor Subject of Record – If a parent and/or legal guardian is submitting a FOIA on behalf of a minor or someone under a legal guardianship, she must show proof of that relationship.

Appendices

 Submitted Without Consent of Subject – If the Requestor cannot get a signature from the Subject of Record (such as in the case of an estranged relative), the agency will respond to the FOIA request with information that is in the public record or that does not violate

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the Subject’s personal privacy interest. In such situations, USCIS’s policy is to release nonexempt applications, petitions, and documents related to the Subject. 30 Part 5: Additional Information

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The revised Form G-639 adds an Additional Information section as Part 5 of the form. If you wish to explain an answer you provided on the form or if you wish to include additional information not requested by the form, it can be included in this section. If further space is needed, you can make additional copies of Page 4 and attach them behind the first four pages of the form. If you provide information in this section, make sure to include the name of the Subject, the A-number, the Subject’s signature, and the date of signature for each Additional Information page. You will also need to write what question your additional information is elaborating by listing the Page Number, Part Number, and Item Number in the appropriate boxes above the explanation. PRACTICE TIP: The Requestor and Subject should each keep a copy of the G-639 filing to reference throughout the immigration case. Some practitioners submit the G-639 with a cover letter. This can be helpful if you are including additional documents, such as a G-28.

Other Ways to Request Records Although a FOIA response can provide valuable information about a Subject’s immigration history, it may not be complete or it may not be the most effective way to obtain the information you need. Below is a list of situations in which a FOIA request is not the best option, followed by the preferred method of obtaining that information: Criminal Convictions • FBI and state background checks: These requests will often provide documentation of an individual’s arrests, charges, and convictions. • Court-specific records request: These requests will often provide detailed records of an individual’s arrests, charges, convictions, and sentencing. Status of Pending Applications • Write to the USCIS office that received the application or call the National Customer Service Center at (800) 375-5283. Consular Notification of a Visa Petition Approval • Submit USCIS Form I-824 to the appropriate Lockbox facility.

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Appendices

30 USCIS, FOIA Request Guide, available at http://www.uscis.gov/sites/default/files/USCIS/About%20Us/FOIA/uscisfoiarequestguide(10).pdf.

The Return of Original Documents • Submit Form G-884 to the USCIS office that is currently processing your application or to the office that last took action on the application. Records of Naturalization Prior to September 27, 1906 • Contact the court clerk where the naturalization occurred. Information on Records Prior to December 1982 • Contact the National Archives.

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Proof of Status (i.e., Social Security benefit, Selective Service requirement) • Contact the agency itself (SSA, Selective Service, etc.

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PODER ESPECIAL / POWER OF ATTORNEY

I, , citizen of , with passport #: __________________ am living in the United States, residing at ___________________________________________________, GIVE POWER OF ATTORNEY, to citizen of Country, living in Country for the following purposes: obtain the U visa to travel to the United States with legal U-Non-Immigrant status.

The person giving this authority wishes that this authority does not encounter obstacles in any situation that impede the carrying out of this special order given and that is given amble ability to carry out his order.

This instrument having been read to the one giving authority, in just this act, uninterrupted, in presence of the mentioned witnesses, and well positioned in the clauses that it contains and from the generals who ensure its validity, such as is necessary that it is authenticated before _____________________________________ in this city ______________________ so that the legal effects are carried out in said Republic, the one giving authority rectifies and accepts without any modification and signs with the witnesses expressed and the notary, in everything in which I give complete sincerity.

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Signature: ________________________________

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Date: ___________________

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PODER ESPECIAL

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______________________________________, ciudadano de _____________________, que se encuentra residiendo en los Estados Unidos, domiciliada en _________________, OTORGA PODER ESPECIAL a ______________________________________, ciudadana de _____________________, residiendo en _____________________, para los siguientes propósitos: ______________ para _________________________.

El otorgante desea que su apoderada en ningún caso encuentre obstáculos que le impiden el ejercicio del mandato especial que le confiere y le da amplias facultades para practicar su mandato.

Leído que fue este instrumento al otorgante, en un solo acto, no interrumpido, en presencia de los testigos mencionados, y bien impuesto de las cláusulas que contiene y de las generales que aseguran su validez, así como la necesidad de que sea autenticado ante el Consul de ____________________________ en esta ciudad para que surta sus efectos legales en dicha República, el otorgante rectifico y acepto sin modificación alguna y firma con los expresados testigos y el infrascrito notario de todo lo cual doy fe.

Firma: ________________________________ Fecha: ___________________

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Before starting to complete the DS-160:

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Browse for any sample picture you have on your computer:

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The system will automatically give you the Continue Without a Photo option:

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From: KCCTUVisa [mailto:[email protected]] Sent: Tuesday, March 13, 2012 12:15 PM To: Jessica Farb Subject: U VISA APPROVALS

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Greetings, The following approved U visa receipt numbers have been processed into the Petition Information Management Service (PIMS). This information is sent to you as a courtesy to confirm that you are aware of these approvals and to let you know that they have been entered into the PIMS system. If any of these are derivatives which require consular processing, please decide which consulate you wish to use and then go to that website for instructions. EAC########## EAC########## EAC########## EAC########## EAC########## EAC########## EAC##########

*NAME *NAME *NAME *NAME *NAME *NAME *NAME

-

CONFIDENTIAL* CONFIDENTIAL* CONFIDENTIAL* CONFIDENTIAL* CONFIDENTIAL* CONFIDENTIAL* CONFIDENTIAL*

Please feel free to contact us should you have any questions or concerns. Regards,

Brenda Steely T & U Visa Processing Support Contractor - Serco NA Kentucky Consular Center 606-526-7513 606-526-7501 (FAX) [email protected]

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APPENDIX GGG Hi XXXClientXXX, I hope you’re doing well. I met with your mom this morning and she signed a contract with me to help you enter the U.S. on a U visa. I hope that we can get you back here as soon as possible, but I will need your help to move forward. *MOST URGENT: as soon as possible* 1. First, please print out all 4 documents that I attached to this email. 2. Second, please sign and date all 4 documents. Declaration and Fee Waiver – sign and date at the bottom. For the G-28, sign and date in the middle of the page in Part 1, under the section that says, “Signature of Petitioner, Applicant, or Respondent.” For the I-918B, so you only need to send me the second page where you will sign and date under Question #18 at the bottom. 3. Third, Send by FedEx (or similar company, using the fastest option possible) these 4 pages with your original (not copy) signature to me at the following address: Jessica Farb Immigration Center for Women and Children 3543 18th Street, #32 San Francisco, California 94110 COMPLETE BEFORE FEBRUARY 21st (when I’ll meet with you mother next) 4. Renew your Peruvian passport 5. Answer these questions by email to me: a. Number on your passport? _____________________ b. Date passport issued? _______________________ c. Expiration date on your passport? _____________________ d. Number of your Social Security in the U.S.? _________________ e. Number of your Peruvian National ID? ____________________ Thanks, XXXClientXXX, and let me know by email if you have any questions that your mom is unable to answer.

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Best, Jessica

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Derivative Fingerprint Instructions

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1. At final appointment, tell principal what to expect. a. Make sure derivative has passport to use as ID b. If the derivative is a minor, whoever takes her to the US Consulate may need a power of attorney (“Poder Especial”) that the mother has to obtain by going to her own country’s Consulate – most are here in San Francisco. 2. After the U applications are filed, a yellow Request for Evidence and fingerprint cards will come in the mail. 3. Write a cover letter explaining the process to your client and her derivatives. a. On the Zoho Consulates: Fingerprints and U Visa document, find the fingerprint instructions for the Country and specific Consulate (only Mexico has a bunch) the derivative will get prints taken in. You may have already determined this and included it in Part 4, Question 4 on page 2 of the I-918 Supplement A. b. Translate the instructions. If someone has already translated them, just make sure the translation is of the most current instructions on the Zoho document. c. Paste the translated instructions into the letter to the principal applicant. 4. Write a cover letter to the Consulate for the derivative to take with her to the appointment. =. Address it to the Consulate listed in the I-918A Part 4, Question 4. 5. Either the consulate has set drop-in hours for fingerprints or you will need to, with the principal, determine when appointment for derivative will be (set out --- weeks) 6. If required, make fingerprint appointment according to the Zoho document instructions: either by phone, by internet, or by your client’s request 7. Prepare the fingerprint packet inside the original envelope from CIS for the principal to mail to the derivative. The packet includes: a. Letter to derivative (print an extra copy for the principal to keep and paperclip outside the envelope. You can write both names in the salutation and highlight the name of the person who keeps each letter) b. Letter to the Consulate c. The yellow RFE (keep a copy of the RFE in yellow that you will send to VSC after the prints are taken) and d. Two fingerprint cards 8. Remind the principal to call ICWC when the derivative has had her prints taken with the date of when the derivative went 9. After the prints are taken and before the RFE is due, write a letter to VSC with the date and place the prints were taken, attach it to the RFE (or the copy you made on yellow paper) and mail to VSC.

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CONSULAR PROCESSING: 10 Steps How U Visa Applicants Come to the U.S. from their Country After APPROVAL of your U Status, those living outside the United States . . .

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 1st Step: Once one has a passport and is ready to come to the U.S., you should schedule your first appointment with ICWC to start the consular process.  2nd Step: Attend your 2 appointments with ICWC for consular processing. In the appointments, we will complete an application and schedule a U Visa interview abroad for each applicant. You will also have to pay for both ICWC’s legal services and the American consulate’s visa services.  3rd Step: We will prepare an important packet and give it to you as soon as we can so that you have time to mail it via EXPRESS mail to the applicants in their country. They will have to bring this packet to their U Visa interview in the American consulate in their country.  4th Step: Each applicant will attend the U Visa interview in the American consulate in their home country. If all goes well, the consulate should approve their U Visa.  5th Step: In 1 or 2 weeks, the passport, with the U Visa sealed inside, will be ready to pick up in their country. Each applicant should pick up the passport and make sure to pick-up, if any, other original documents given to the consulate  6th Step: Make sure there are no other exit requirements, and then buy the plane ticket! The applicant can now enter the U.S. Make sure they bring all important documents with them: the passport, birth certificate, and all U visa materials from the consulate and their attorney.  7th Step: Once the applicant has entered the U.S., schedule an additional 3rd appointment with ICWC to apply for a work permit. You will need to bring the following to the appointment: • $100 for each person, • 2 passport-style photographs for each person, and • Each person’s passport with the U Visa inside.  8th Step: Each person must stay in the U.S. for 3 years with the U Visa to be eligible for Lawful Permanent Residency. This means 3 years from the date they arrived to the U.S.  9th Step: If the person’s U Visa or work permit will expire before (s)he has lived in the U.S. for 3 years, let us know so we can help you apply for a U Visa extension or a work permit renewal. 10th Step: Once the person complete 3 years in the U.S. with their U Visa, (s)he can apply for their Lawful Permanent Residence (green card).

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EL PROCESO CONSULAR: Los 10 Pasos Como Solicitantes de la “Visa U” Llegan a los Estados Unidos desde su País

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Después de la APROBRACIÓN del estatus legal U, para las personas quienes viven fuera de los Estados Unidos . . .  1er Paso: Cuando tenga pasaporte y está listo venir a los Estados Unidos, debe programar su primera cita con ICWC para empezar el proceso consular.  2do Paso: Asistir sus 2 citas con ICWC para el proceso consular. En las citas, llenaremos una aplicación y programaremos una entrevista de Visa U en su país para cada solicitante. Tendrá que pagar para ambos los servicios legales de ICWC y los servicios de visas del consulado americano.  3º Paso: Nosotros le prepararemos un paquete importante se lo entregaremos lo más antes posible para usted tener tiempo enviar el paquete por correo rápido a los solicitantes en su país. Ellos tienen que llevar este paquete a su entrevista de Visa U en la embajada americana en su país.  4º Paso: Cada solicitante asista la entrevista para la Visa U en el consulado americano en su país de origen. Si todo va bien, aprobará la Visa U.  5º Paso: En 1 o 2 semanas, su pasaporte, con la Visa U sellada adentro, estará listo para recoger en su país. Cada solicitante debe recoger su pasaporte y asegúrese recoger cualquier otro, si hay, documentos originales dados al consulado.  6o Paso: ¡Asegúrese que no hay más requisitos para salir del país, y luego compre su boleto de avión! El solicitante ya se puede entrar los Estados Unidos. Asegúrese que lleve todos sus documentos importantes: el pasaporte, el acta de nacimiento, y todos los documentos de visa U del consulado y su abogado.  7º Paso: Cuando el solicitante ya ha llegado a los Estados Unidos, programe otra 3ra cita aquí con ICWC para tramitar el permisos de trabajo. Necesitarán traer a la cita lo siguiente: • $100 para cada persona, • 2 fotos de estilo pasaporte de cada persona, y • El pasaporte con Visa U de cada persona .  8º Paso: Cada persona tiene que vivir 3 años con la Visa U en los EUA para poder aplicar para la Residencia. Esto significa 3 años del día que llegó a los Estados Unidos.  9º Paso: Si la Visa U o el permiso de trabajo se vence antes de que haya estado en los EUA por 3 años, avísenos por lo menos 90 días antes para aplicar para una extensión de Visa U y renovación del permiso de trabajo.  10º paso: Una vez que la persona cumpla 3 años en los Estados Unidos con su Visa U, puede aplicar para la Residencia Permanente Legal (la mica).

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ICWC’s Appointment Checklist: Consular Processing with New I-192

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Appointment 1: CP intake  Show client U Approval video, starting at the section about travel.  While watching the video, review the client’s U visa filing, with special attention to the following: Form 918, Form 192, declaration and any criminal or immigration history.  Do not go forward unless the client provided beforehand or brought to appointment the following: (1) U filing (that you reviewed before meeting with her) (2) $75 intake fee and (3) valid passport.  Review process: explain the client’s role at every stage.  Screening: o Do Truth Pact with client o Screen client for new since U filing: marital status, criminal/imm issues, other? o If derivative, does client have sufficient proof of relationship to principal? o Plans for kids/job while client is abroad for up to 90 days?  Sign retainer o Fee for ICWC o $160 for U.S. consulate fee  Give client DS-160 worksheet to complete at home. Every line needs to be completed, including if there are any expired passports, school/work information, and email address.  Have client get 1 passport style photo + original birth/marriage certificates to include with consular packet (and we don’t have to remind her to take them with her).  Schedule appointment 2: CP final – at least one day before travel abroad, if possible. Appointment 2: CP final (with I-192)  Collect: DS-160 worksheet (check for email address that works), 1 photo, original birth/marriage certificates, fees for service and consulate (or client’s credit card).  Complete DS-160 online.  Pay $160 through relevant country embassy online with client’s credit card (or ICWC’s credit card - w/reimbursement from client).  Schedule the interview online or by email or phone. (*See below for scheduling after appointment 2.) Ask client when she wants appointment at Consulate. She can attend the interview before the I-192 is approved – the attorney can follow-up with the consulate once the approval arrives. Alternatively, she can attend the interview at least 6 weeks out to have the I-192 approved by then. In Mexico, the consulate does not require approved I192 to issue the U visa. If the consulate gives you immediate appointment and your client wants later date, you can cancel and reschedule the interview.  Complete I-192 filing – you will post-date all these documents once client leaves U.S. o Complete new Form I-192 [have client sign but NOT date] o Complete new fee waiver request for I-192 [have client sign but NOT date] o Write new declaration in support of I-192, [have client sign but NOT date]  Instruct client to send evidence that s/he is out of the U.S. within the first few hours of arriving in home country. Evidence can include a receipt with the person’s name on it, and date; a photo of the person standing in front of the airport with a newspaper that shows the day’s date; an ATM receipt after you already have copy of client’s debit card.

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 Give client Consular Packet to take to consular interview – see cover letter for list of documents included. Instruct client to take the Consular Packet and passport with her for her interview. If you have the newly approved I-192 before her appointment, you’ll email that to her, and she’ll take that with her also.

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After Appointment 2 + Before Travel  Make 90 day deadline of when client plans to leave U.S. in Abacus and your Masterlist, with 60, 30 and 15 day reminders to check on client’s re-entry within that time.  *Schedule the interview online or by email or phone. Some consulates require you wait one (or more) day(s) after paying fee to make appointment. Then call client and give her consular packet to take to consular interview – see cover letter for list of documents included. Client Leaves U.S.  When you receive client’s evidence that she is outside US, file your Expedite I-192 petition to VSC via USPS Express Mail.  Make 14 day “Follow-up” deadline in Abacus of when you expect I-192 receipt and note in your Masterlist that matter will remain green when receipt arrives for your follow-up.  When I-192 receipt comes, request expedited handling by email through the VSC hotline.  When I-192 approval comes, scan it.  If the I-192 approval notice does not indicate Kentucky Consular Center was forwarded this approval already: o Email the VSC hotline to confirm that the approval gets communicated to KCC ASAP. o Email the KCC at [email protected] to ask them to post the approval to PIMS ASAP.  Email the I-192 notice abroad: o If your client already attended the interview, email the I-192 to the consulate and request issuance of the U visa. o If you client has not yet attended the interview, email the I-192 to your client, and tell her to add it to her Consular packet . Also, email the I-192 to the consulate and request issuance of the U visa at her interview. Client has U visa!  Find out when your client plans to return to the U.S. and remind her of the 90 day deadline return date  Confirm client’s arrival in the U.S. by talking to her after arrival. Remind her to save all documentation of her time abroad in a safe place, including her passport with the stamps and U visa – indicating her exit and entry dates  Remind client her date of eligibility for Adjustment of Status (residency). If she’d like to work with us, remind her to call our office 3 months beforehand to schedule her AOS intake appointment

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Attorney of the Day Service ILRC Technical Assistance

Since 1979, the ILRC has provided a unique, nationwide consultation service called Attorney of the Day (AOD), in which your immigration case questions are answered by our expert staff attorneys. We offer consultations on several aspects of immigration law to attorneys, employees of nonprofit organizations, public defenders, and other practitioners that assist immigrants. There are two options available:

Contract Service

This option allows you to secure an on-going contract with us for a lower rate than the one-time consultation fee. You can create an individual or group contract so that members of your organization have access to this service. To begin the process, we obtain a signed contract and collect an initial deposit. Each time you contact us with a question, we will deduct the pro-rated charge from this deposit. You will be billed when your account falls below $50.

One-Time Consultation

This option allows you to ask questions on a one-time basis. Payment must be made by VISA, MasterCard, or American Express. Please have your credit card information handy when you contact us. There is a minimum charge of 1/10 hour. All charges will be prorated. AOD consultation hours are Monday through Thursday between 10:00 am and 3:00 pm Pacific time. Inquiries will be answered within two business days, excluding Fridays. Questions can be sent to [email protected]. For more information, please visit www.ilrc.org/legal-assistance or call 415-255-9499.

Reprint Permissions To reprint any of the information contained in an ILRC publication, please see our Reprint Permissions Policy available on our website at: http://www.ilrc.org/publications/reprint-permissions The following are guidelines for ILRC materials to appear in printed or electronic* format: All materials produced or published by the ILRC are protected by copyright. By submitting a request form, you agree to abide by our copyright restrictions and requirements. *For access to ILRC materials on intranets or public websites, ILRC will only allow for hyperlinking to the electronic materials already available on ILRC’s website, and grantee will specifically state that the ILRC material is available only for internal use and not for commercial use or mass distribution. For materials to appear in printed, electronic, or audio format, you may be granted a one-time usage license to copy and distribute the materials. You may not modify, delete or add any text, images or audio to the materials without express permission from the ILRC. All materials must be copied or distributed in whole, not in part. If the materials are to appear within another medium, or as a shortened version of the original, ILRC must review the particular usage before it can grant permission. All materials must be used in conjunction with the following credit line: Reprinted from [insert name of the original material] with permission of the Immigrant Legal Resource Center, San Francisco, CA, 415-255-9499; www.ilrc.org.

Subscribe to ILRC Listservs The ILRC maintains several e-mail listservs that address developments within specific areas of immigration law. We welcome you to join one or all of them. To do so, follow these instructions for each hotline, and YOU must self-subscribe to the ones of your choosing. You can join the listservs by visiting http://www.ilrc.org/ilrc-email-lists/subscribe-orunsubscribe, then select “Subscribe” and complete the simple form as instructed. There are eight lists to choose from: Education @ ILRC Want to stay informed about ILRC training opportunities and recent publication releases? This listserv will be dedicated to keeping you updated about our unique and timely educational resources. Famvisa Family immigration topics and updates, including legal developments and practitioner materials pertaining to accessing and applying the benefits of 245(i) through the LIFE Act. SIJS (Special Immigrant Juvenile Status) Immigrant children’s rights advocacy and policy updates. NACARA (Nicaraguan Adjustment & Central American Relief Act) Network of advocates, pro bono attorneys, and nonprofit agencies who are working directly with clients in the adjustment process.

ESSENTIAL ILRC PUBLICATIONS

The VAWA Manual This comprehensive manual includes information for advocates working with immigrant survivors of domestic violence. Consisting of thirteen chapters, this guide provides in-depth information on VAWA self-petitioning requirements and procedures, adjustment of status, inadmissibility grounds and waivers, removal proceedings and motions to reopen, VAWA cancellation of removal, conditional permanent residency, U nonimmigrant status for victims of crime, consular processing, and more. Hardship in Immigration Law How to Prepare a Winning Case in Waiver and Cancellation of Removal Cases. This uniquely useful manual, designed as a toolbox, is an essential reference tool for immigration practitioners. Practical and informative, it breaks down the elements that the BIA and federal courts have identified as relevant to claims of hardship, and demonstrates how to work with clients to elicit the information that will best present their hardship claims. Special Immigrant Juvenile Status & Other Immigration Options for Children & Youth This manual is an essential guide for those representing the increased number of unaccompanied minors who have migrated to the United States in recent years, as well as those representing immigrant youth who were brought to the US at a young age and know no other home. This manual provides background and guidance on the protections, procedures, and immigration options for immigrant children, including unaccompanied minors under the TVPRA. It contains an in-depth discussion of the legal requirements for SIJS eligibility, including “one-parent” SIJS cases, and stepby-step guidance for representing SIJS-eligible youth in both affirmative and defensive applications. Families & Immigration: A Practical Guide This guide provides a comprehensive overview of family immigration law, with clearly worded explanations about each topic, including sample applications, declarations, waivers, and charts. It reaches all aspects of family-sponsored immigration and provides an understanding of qualifications for who can file and how to submit a family-based visa petition. It also offers practical advice on how to engage your client to bring forth necessary information to allow you to more effectively assist them through the petition process. To receive information on new publications: Sign up for our Education Listserve at www.ilrc.org/ilrc-email-lists/subscribe-orunsubscribe