Assisting Family Members through the U Nonimmigrant Status Process September 30, 2010 Presented by Susan Bowyer, Jessica Farb, Sally Kinoshita, and Catherine Ward-Seitz (c) Immigrant Legal Resource Center

Immigrant Legal Resource Center (ILRC) 2

(c) Immigrant Legal Resource Center 2010 ILRC Attorney of the Day Mon-Thu 10am-3pm Phone: (415) ext Fax: (415) Website: 3

(c) Immigrant Legal Resource Center 2010 ILRC Attorney of the Day Free Attorney of the Day –IOLTA Legal Services Programs in California –All San Francisco Bay Area Non-Profits Other Attorney of the Day –Hourly rate pro-rated to the minute, or –One-time consultation fee 4

(c) Immigrant Legal Resource Center 2010 Helpful Listservs VAWA Experts –Contact –Interactive listserv VAWA Updates –Contact –Moderated updates only 5

(c) Immigrant Legal Resource Center U/VAWA Hotlines USCIS Vermont Service Center –(802) –For advocates and attorneys only –Must have a G-28 on file –When to call versus when to 6

(c) Immigrant Legal Resource Center 2010 The U Visa: Obtaining Status for Immigrant Victims of Crime A guide to the entire process– from eligibility screening through adjustment of status to assisting eligible family members – of a U case. Numerous sample materials, checklists, declarations, motions, and more. Order at 7

(c) Immigrant Legal Resource Center 2010 Agenda Family Member Definitions Direct Victims vs. Indirect Victims Derivative Family Members –Duration of Status –Age Out Issues Petitioning Qualifying Family Members Adjustment of Status for Family Members 8

Family Member Definitions Jessica Farb, International Institute of the Bay Area (c) Immigrant Legal Resource Center

Family Members Spouse: U-2 Child: U-3 –Adopted children –Children out of wedlock –Stepchildren Sibling: U-4 Parent: U-5 –Stepparent –Parent of Married Child 10

Direct vs.Indirect Victims They’re all principal applicants! Sally Kinoshita, Immigrant Legal Resource Center (c) Immigrant Legal Resource Center

(c) Immigrant Legal Resource Center 2010 Victim Definitions Applicant must be a “victim” –Direct victim Direct and proximate harm Bystanders who suffer unusually direct injury –Indirect victim Certain family members if direct victim is deceased due to murder or manslaughter, or incapacitated or incompetent –Spouse –Children under 21 and unmarried –Parents and siblings under 18 if the direct victim is under 21 years old –Age at time of qualifying criminal activity 12

Can Family Members of USC Victims be “victims?” (c) Immigrant Legal Resource Center

(c) Immigrant Legal Resource Center 2010 Direct and Indirect Victims Must Be Helpful Must have some knowledge of the crime Cannot refuse to provide reasonably requested assistance through U status Ongoing responsibility to cooperate Those under 16 at time of criminal activity can have someone else cooperate 14

(c) Immigrant Legal Resource Center 2010 Family Helping Minors For those under 16 a parent, guardian or next friend can be helpful What is a “next friend”? –Direct victim is incompetent, incapacitated or under 16 years old –Appearing in lawsuit to act for direct victim –Definition only for providing info, not as victim In this case the parent, guardian or next friend does not necessarily = victim 15

Derivative Family Members Jessica Farb, International Institute of the Bay Area (c) Immigrant Legal Resource Center

(c) Immigrant Legal Resource Center 2010 Derivative Family Members U applicants who are 21 or over –spouses –children U applicants who are under 21 –spouses –children –parents –unmarried siblings under 18 Derivative cannot have been a perpetrator 17

(c) Immigrant Legal Resource Center 2010 Derivative Process: Stage 1 Form I-918 Supp A –no filing fee Juvenile records Do they need to be helpful? Possible conflicts When and how to file (concurrently?) EAD 18

(c) Immigrant Legal Resource Center 2010 U Nonimmigrant EAD Procedure Principal I-918 Applicants do not need to file separate I-765 –Simply check box on I-918 –When might you file an I-765 for a principal? Derivative family members must file separate I-765 as category (a)(20) –Filing fee may be waived EAD will be valid for up to four years 19

(c) Immigrant Legal Resource Center 2010 Derivative Process Stage 1 (cont’d) Qualifying Relationship –Birth/Marriage Certificate Passport Form I-192: Inadmissibility –Filing fee may be waived Signatures 20

(c) Immigrant Legal Resource Center 2010 Derivative Process: Stage 2 Biometrics or fingerprints process –RFE – for access to U visa consular processing google Travel 21

(c) Immigrant Legal Resource Center 2010 Derivatives Duration of Status and Age Out Issues Catherine Ward-Seitz, Bay Area Legal Aid 22

(c) Immigrant Legal Resource Center 2010 Derivative Delays and Extensions May need to extend status –Derivatives need 3 years too, but expire at the same time as principal. –For derivatives abroad, 3 years starts upon first entry with U Visa. –File I days before status expires with an explanation of why needed. –Can file I-765 concurrently. 23

(c) Immigrant Legal Resource Center 2010 Extension of status Initial period was less than 4 years in the aggregate LEA attestation Exceptional circumstances During the pendency of the I-485 Derivatives delayed through consular processing Use Form I-539 to extend status (fee waiver available) → Consider if the I-929 is an option 24

(c) Immigrant Legal Resource Center 2010 Issues with Marriage When the principal marries: What happens to parents and siblings if the under-21 principal marries? (VSC has said ok) When the derivative marries: do they lose eligibility? –Derivative parent (no) –Derivative child (yes) –Derivative sibling (yes) 25

(c) Immigrant Legal Resource Center 2010 Marriage Timing Issues When can a derivative spouse be included: –If marriage pre-dates I-918 filing, then eligible for I-918A (or I-929). –If marriage post-dates I-918 filing, then only eligible for I-929 (and must wait until AOS stage and must show extreme hardship). –Conflict Issue – may want to do spouse’s case after principal’s approved. 26

(c) Immigrant Legal Resource Center 2010 After Acquired Family Members Children v. Spouses: –What if give birth abroad after filing the I-918? I-918A or I-929 –What if marry after filing I-918? Only I

(c) Immigrant Legal Resource Center 2010 Divorce Issues When does divorce affect a derivative: –While I-918A still pending, –After I-918A approved, –While I-485 pending, –After I-485 approved. Ethics issues and conflicts: –State by state – possible conflict waiver, but maybe best to refer both out. 28

(c) Immigrant Legal Resource Center 2010 Age out issues Clients with interim relief –Both parent and child –Only parent because child was abroad (?) Clients without interim relief –Request expediting! –Consider Derivative’s age and Principal’s age when approaching 21!!! Indirect victims Siblings –Statutory protection 29

(c) Immigrant Legal Resource Center 2010 Age Out Problem Examples Principal applicant is over 21 and has derivative children under 21 – request expediting because case must be approved before derivatives turn 21! Principal applicant is under 21 and has derivative parents – request expediting if principal might be turning 21 soon. What about siblings? Their age is locked in, but what about the principal’s age? 30

(c) Immigrant Legal Resource Center 2010 Families and the 10,000 cap Statutory limit on annual number of U nonimmigrant visa/status issued – INA § 214(p)(2) Only applies to principals If cap reached, principals (and family members) placed in waitlist and issued deferred action or parole But watch out for age out problem if cap approaching!! 31

Petitioning Qualifying Family Members Susan Bowyer, Immigrant Survivors’ Legal Aid (c) Immigrant Legal Resource Center

Petitioning for Qualified Family Members – Overview I-929 process is for family members who never had U Nonimmigrant Status Only for family members of U1 – principal U nonimmigrant Must demonstrate extreme hardship Doesn't convey status itself – just first step in immigrant visa process (c) Immigrant Legal Resource Center

Petitioning for a Family Member “Qualifying family member” –Family members of U principals only –Only family members who have never been granted U nonimmigrant status –If the U principal is under 21 years old Spouse, parents, and children –If the U principal is over 21 years old Spouse and children –Parent/Child relationship includes step, adopted, in or out of wedlock – special instructions –Not Siblings (might be eligible as victims themselves) (c) Immigrant Legal Resource Center

Eligibility to Petition Family U(1) Nonimmigrant must: –Have adjusted already –Have a pending adjustment application –Be filing at the same time as the QFM Petition Family relationship must exist: –At the time U Visa holder adjusts AND –At the time QFM adjusts or consular processes (c) Immigrant Legal Resource Center

Additional Requirements Must prove that if QFM can't remain in or enter the US, the U1 and/or the QFM will suffer extreme hardship. If the qualifying (petitioned) family member possessed information about the crime, may not unreasonably refuse to assist. Support for positive discretionary determination (c) Immigrant Legal Resource Center

Family Petitioning Process Step One: Petition to Establish Eligibility –Principal applicant files I-929 with $215 fee or fee waiver request evidence establishing relationship –May be filed concurrently with the U1 Nonimmigrant's I-485 although instructions say have to have receipt notice –Can send all in one packet Step Two: Application for Permanent Residence (discuss after I-929 process) (c) Immigrant Legal Resource Center

Documents for QFM Petition Photo of QFM Form I-929 for QFM –Filing fee of $215 or fee waiver request Proof of petitioner’s I-485 filing or approval Evidence of relationship Evidence of extreme hardship to U1 or QFM if QFM can't stay in or enter U.S. Evidence in support of favorable exercise of discretion Petitioner (U1)'s signed statement (?) –Must include QFM's signed statement (c) Immigrant Legal Resource Center

Proof of Petitioner’s I-485 Filing or Approval Copy of front and back of permanent resident card; or Copies of passport biographic page and page showing admission as a permanent resident; or Other evidence of permanent resident status issued by UCSIS; or Copy of approval notice of I-918 and receipt notice showing I-485 has been filed How about concurrent filing? (c) Immigrant Legal Resource Center

Evidence of family relationship –Primary evidence such as birth certificates, marriage certificates Proof of divorce(s) from both spouses' prior marriage(s) –Secondary evidence may be used Must prove unavailability of primary evidence Form I-929 instructions list types of acceptable secondary evidence. –Must be translated into English (c) Immigrant Legal Resource Center

Qualified Family Member’s Signed Statement Describe eligibility under all of the grounds, including: –He or she would suffer extreme hardship if not allowed to remain in or join the U1 in the U.S. –He or she merits a favorable exercise of discretion –Either that he or she had no information about the qualifying crime, or that having information, he or she did not unreasonably refuse to cooperate with the law enforcement agency in charge of the investigation or prosecution Sign it (c) Immigrant Legal Resource Center

Showing Extreme Hardship To U1 and/or QFM “ “Must be a degree of hardship beyond that typically associated with such a removal or refusal” To U1 and/or QFM –Hardship to U1 if QFM leaves/can't enter US. Consider both: Will U1 leave US with QFM? What hardship if U1 effectively removed? Will U1 remain in US without QFM? What hardships living without QFM –Hardship to QFM if he leaves/can't enter US If U1 leaves also If U1 remains in US Any credible evidence (c) Immigrant Legal Resource Center

Relevant Hardship Factors-Regs U1's lost access to US courts and justice system Nature, extent of U1's physical or mental abuse Likelihood that perpetrator or people acting for him in home country would harm U1 or children Willingness of authorities in the home country to protect U1 and children U1's need for social, medical, mental health/other services Law/social practices in home country that punish U1 or children for leaving abuser QFM's age at entry to U.S. or adjustment application (c) Immigrant Legal Resource Center

Relevant Extreme Hardship Factors (Instructions) Age of U1 and QFM Language/cultural assimilation Health conditions Medical treatment in home country Ability to obtain work in home country Relative length of US residence Other family legally residing in U.S. Financial impact of departure (c) Immigrant Legal Resource Center

Relevant Extreme Hardship Factors ( Instructions ) continued Disruption of education opportunities Psychological impact Political, economic conditions in home country Family ties (or lack) to home country Contributions to U.S. community Availability of QFM to adjust through other means [what does this mean?.. that unavailability of other option = hardship?] (c) Immigrant Legal Resource Center

Demonstrating Eligibility for Exercise of Discretion Probably similar to I-192 guidelines for U applicants and derivatives –If only one EWI, just include equities and hardships in QFM's signed STATEMENT –The more adverse factors, the more equities need to be shown In addition to QFM's statement, include good moral character letters, volunteer activity, certificates, etc. (c) Immigrant Legal Resource Center

Additional Extreme Hardship Documentation Letters and declarations from people with knowledge of community ties and potential hardships Evidence of family members in US – birth, marriage certificates Reports, declarations on adverse country conditions in home country. (c) Immigrant Legal Resource Center

Step 2: QFM's Application for Permanent Residence When the I-929 is approved, QFM can apply for permanent resident status Adjust status in the U.S. OR Consular process for an immigrant visa (c) Immigrant Legal Resource Center

QFM's Adjustment Application I-485 –$1010 Fee or Fee waiver Copy of I-929 Approval May submit I-765 in C9 for employment authorization pending adjustment adjudication (only biometric fee if concurrent filing ​ ? Aren't biometrics with I-485?) [Request for favorable exercise of discretion even if I-929 adjudicated it already?] (c) Immigrant Legal Resource Center

Adjustment of Status for Family Members Sally Kinoshita, Immigrant Legal Resource Center (c) Immigrant Legal Resource Center

(c) Immigrant Legal Resource Center 2010 Adjustment for Family Derivative U nonimmigrants (U-2, U-3, U-4 and U-5) adjust under the same procedure as U-1 principal nonimmigrants Approved I-929s will adjust under INA § 245(m) also, appears they can concurrently file the I-485 with the I

(c) Immigrant Legal Resource Center 2010 Where to find the law Statutory Cites –INA § 245(m): adjustment Interim Regulations –Federal Register: December 12, 2008 (Volume 73, Number 240) [Pages ] –8 CFR § USCIS Memoranda –See or 52

(c) Immigrant Legal Resource Center 2010 U Adjustment of Status Overview INA § 245(m) is not a variation of INA § 245(a) –Restrictions under § 245(a) and § 245(c) do not apply Principal and derivatives must apply to adjust before U nonimmigrant status expires U nonimmigrant adjustment-eligible after 3 years in U status USCIS has sole jurisdiction –Vermont Service Center will adjudicate 53

(c) Immigrant Legal Resource Center 2010 Adjustment Requirements Lawfully admitted as U nonimmigrant In lawful U nonimmigrant status 3 years continuous physical presence since grant of U nonimmigrant status Not inadmissible under INA § 212(a)(3)(E) Has not unreasonably refused to provide assistance in investigation/prosecution Justified on humanitarian grounds, to ensure family unity, or in the public interest 54

Questions and Evaluation (c) Immigrant Legal Resource Center