1. IMMIGRATION LAW 101 for ADVOCATES

2. Immigration Status Permanent Residents, “green card” holders (LPR)
May live and work legally in the United States
May apply to become citizens after 3 to 5 years, depending on the circumstances
Until this occurs, a permanent resident can be deported from the US for certain crimes, including certain drug related and domestic violence convictions,

3. Immigration Status (cont)
The most common route to permanent residency is through the family based immigration process.
This process allows a citizen (USC) or LPR to petition for an immigrant visa for certain relatives such as their spouses and children.
This is a two-step process:
1. Filing the visa petition
2. Application for the green card itself

4. Immigration Status (cont)
Traditionally, both steps of the family based immigration process are controlled solely by the petitioning USC/LPR.
S/he has complete discretion as to whether and when to file a visa petition, and whether to assist in completing the process of obtaining a green card.

5. How Immigration Law Impacts Domestic Violence
This structure of family based immigration created a dangerous imbalance of power between the petitioner and the non-citizen beneficiary ESPECIALLY when domestic violence is involved.
Perpetrator had complete control over victim’s immigration process
Perpetrator continued isolation through fear of deportation

6. Immigration Remedies for Victims

7. Immigration Protections
Immigration law recognizes the barriers faced by immigrant victims of domestic violence and offers protections under the:
Violence Against Women Act (VAWA), as amended by VAWA 2005
Trafficking Victims and Violence Prevention Act (VAWA II)
And other related laws…

8. Immigration Protections
Self-Petition under VAWA
U (Crime Victim) Visa
T (Trafficking) Visa
… and more!

9. VAWA SELF-PETITIONS

10. Self-Petitioning under the Violence Against Women Act (“VAWA”)
Undocumented women, children and the elderly who have been subjected to battery or extreme cruelty by a spouse, parent or child may self-petition for their permanent residency.
Available to:
Abused spouses of USCs or LPRs;
Abused children of USC or LPRs;
Non-abused spouses of USC or LPR whose child is abused;
Abused parents of adult US citizen children.

11. Self-Petitioners must prove:
Identity and that of their children (children may be included on mother’s application)
Identity and immigration status of abuser
Good Faith Marriage
Residence with Abuser
Residence in USA (or if outside, residence with military spouse)
Battery and Extreme Cruelty
Good Moral Character

12. How to prove battery and extreme cruelty?
Affidavit or history of client, detailing all incidents of abuse
Affidavit of domestic violence counselor
Police Reports or 911 Call Transcripts
Hospital Records
Shelter Records
Affidavits of friends and family members
Diaries or photos of abuse and destruction of property

13. SARA’S STORY
Sara is from the Phillipines. She met Walter a U.S. citizen over the internet. He went to the Phillipines and asked Sara to marry him.
Walter sponsored Sara for a fiancee visa and Sara came to the U.S. to marry Walter and live here as his wife.
Not long after they married, Walter became physically abusive.
Sara comes to the shelter for help.

14. Benefits of Self-Petitioning
Puts control back in hands of victim
Process is CONFIDENTIAL
Children are included as derivatives
With approved self-petition, get deferred action status (quasi-legal status) and a work permit
MAY be eligible for certain public benefits
Ability to apply for green card

15. U VISAS
Victims of Crimes

16. THE NEW U VISA
On October 17, 2007, a new visa was created called a U visa.
There are more than 10,000 visas available each year.
A brand new application and procedure was created to assist victims of crimes. We are still learning a lot about the new process.

17. U VISA for Victims of Crime
Crime victim visa available to non-citizen individuals who have been victims of certain crimes and have cooperated with police or the courts.
Beneficiaries include:
Spouse of foreign medical resident,
Undocumented woman married to undocumented spouse,
Victim not married to perpetrator,
Abused spouse of visa holder,
Same sex violence couples

18. Crimes under U Visa statute
Domestic Violence
Rape
Trafficking/Forced Prostitution
Felony Assault
False Imprisonment/Kidnapping
Murder
Blackmail/Extortion
Any similar crimes
Attempt or conspiracy to commit any of these crimes

19. To seek a U Visa, the victim must
Obtain a certificate from law enforcement agency, prosecutor or judge certifying:
That s/he is the victim of a crime
That s/he has been helpful, is being helpful or is likely to be helpful in investigation OR prosecution of the crime
That the crime is one that is included in statute
Also must prove:
Suffered substantial physical or emotional abuse
Note: Conviction is NOT required

20. IRMA’S STORY
Irma is from Honduras. She lives with her husband and 4 children. Irma, her husband and her 2 oldest children are undocumented. The 2 youngest children are U.S. citizens.
Irma and her husband were victims of a violent home invasion. They were tied up, held at gunpoint, and beaten. Irma’s son called the police.
Irma received a subpoena to testify in court.

21. How does U Visa benefit the victim and her family?
Will receive temporary visa and permission to work in the U.S. for period of 4 years
Children, spouses, parents (of minor children) and siblings (of minor children) may be included in application
May be able to apply for permanent residency after three years.

22. The Old System
2000 – 2007 Eligible victims were granted a temporary status called “interim relief” or “deferred action.”
Received permission to stay and work in the U.S. but required annual renewal.
Must apply for the new visa.
Refer for legal assistance.

23. VICTIMS of HUMAN TRAFFICKING

24. What is Human Trafficking?
Human trafficking is a form of modern-day slavery.
Human trafficking targets our most vulnerable populations, including homeless, women, children and immigrants.
Human trafficking is the exploitation of people for commercial sex or labor purposes.
Human trafficking is a local, national and international problem.

25. What is Human Trafficking?
Human trafficking is NOT:
Human Smuggling
Just about the physical movement of the victim

26. Cristina’s Story
Cristina, a 14 year old girl from Mexico, came to the U.S. to escape an abusive home. A smuggler brought her across the border illegally for a fee.
When she arrived in the U.S. the smugglers told her she would have to pay off the rest of her fee.
Cristina was told she would work it off by having sex. She was moved from brothel to brothel around the country.

27. Kentucky Context
We do know that human trafficking has occurred and will continue occur in Kentucky.
Information indicates we are a source, transit and destination state.
Interstate highways
Military bases
Large sporting events
Recent UK study found at least 69 cases of trafficking in Kentucky.

28. Possible Cases in Kentucky
Examples of human trafficking from communities, legal aid lawyers, victim advocates and law enforcement:
Domestic Servants
Mail-Order Brides
Massage Parlors
Brothel Networks
Teenage Runaways

29. Human Trafficking: KY Law
July 2007 Kentucky law created two new human trafficking offenses:
1. Human trafficking
Commercial sex trafficking
Forced labor or services
2. Promotion of human trafficking
Profits from trafficking
Attempts, recruits, transports, obtains person for trafficking

30. Human Trafficking: KY Law
Human trafficking is:
1. Commercial sex trafficking where commercial sexual activity is obtained through force, fraud or coercion,
Can be prostitution, pornography, or sexually explicit performance
2. Forced labor or services compelled through force, fraud or coercion
Any type of work, but may be most present in domestic servitude, agriculture, hotels, factories, and restaurants

31. Human Trafficking: KY Law
Force, fraud or coercion:
Accomplished by the means and methods in the definition of “restraint” in KRS
Confinement or movement without consent
By deception, intimidation, physical force or any other means
NOT a required element if victim of commercial sex trafficking is a minor.

32. Human Trafficking: KY Law
Forced labor or services:
Labor is defined as “work of economic or financial value”
Services are defined as “an ongoing relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor”
Can encompass sexual servitude and servile marriages

33. Human Trafficking: KY Law
Promoting Human Trafficking
Benefits financially or receives anything of value from knowing participation in human trafficking; or
Recruits, entices, harbors, transports, provides, or obtains by any means, or attempts, to recruit, entice, harbor, transport or provide or obtain by any means, another person, knowing that the person will be subject to human trafficking.

34. Human Trafficking: KY Law
Human trafficking is a class C felony, unless
Serious physical injury, then it is a class B felony
If victim is a minor, one class higher
Promoting human trafficking is a class D felony, unless
If victim is a minor, then it is a class C felony

35. Human Trafficking: KY Law
Protections for Victims
Human trafficking victim evidentiary privilege
Communications between victim and trafficking counselor are confidential
Counselor includes any person with an agency that serves human trafficking victims and who has received 40 hours of training on human trafficking.
Right not to be imprisoned or detained for underlying offenses, unless
Detention is least restrictive alternative
Necessary for safety
Poses threat to community safety

36. T Visas for Victims of Human Trafficking
Eligibility
Physically present in the U.S. on account of human trafficking
Complied with law enforcement requests OR is under 18
Would suffer extreme hardship if deported
Benefits
Ability to apply for LPR after 3 years
Eligibility for certain public benefits

37. VICTIM PROTECTIONS CONFIDENTIALITY REQUIREMENTS
INDEPENDENT VERIFICATION OF INFORMATION REPORTED TO ICE
RESTRICTIONS ON ARRESTS AT COURTS, SHELTERS, & OTHER VICTIM SERVICE ORGANIZATIONS
PENALTIES FOR NON-COMPLIANCE

38. QUESTIONS?

39. THANK YOU! Presentation by: Cori A. Hash Immigrant Rights Project
Kentucky Equal Justice Center
Maxwell Street Legal Clinic
315 Lexington Avenue
Lexington, KY 40508
(859)