Victims of Violence Immigration

The phrase Special Immigrants carries legal meaning in U.S. immigration law. It refers to a group of potential immigrants who are described in provisions 101(a)(27) and 203(b)(4) of the Immigration and Nationality Act, the primary law, which governs immigration and naturalization processes as well as deportation and removal proceedings; immigration detention; and many other immigration and naturalization related matters. These individuals may petition for an immigrant status in the USA if they proof to the satisfaction of the U.S. Citizenship and Immigration Services that they are members of the one of these groups, capable of establishing eligibility for a special immigrant category, and that they merit a favorable exercise of discretion.

Congress established the U Visa category both as a form of relief for victims of certain crimes, and an incentive for victims to help U.S. law enforcement authorities prosecute very serious offenses. In addition, certain family members of U-1 Visa beneficiaries are eligible for derivative U-2, U-3, U-4, and U-5 Visas.

U-1 Visas admit the beneficiary for up to 4 years’ residence in the aggregate on U status in the United States. Derivative U Visas may be initially approved for up to the initial expiration date of the principal U-1 Visa holder’s U-1 Visa. After three years on U status, a U Visa holder is eligible for adjustment to LPR status.

In order to obtain a U1 visa, the crime victim must obtain “law enforcement certification” from the certifying law enforcement agency that is investigating the case, which will attest that the U visa applicant has been helpful, is currently being helpful, or will likely be helpful in the future. The Department of Homeland Security has released a short manual titled the “U Visa Law Enforcement Certification Guide” to the public. In this article, we will use the guide and relevant regulations to provide a detailed look at the law enforcement certification process for U1 visas.

On May 13, 2016, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memo designating as an adopted decision the Administrative Appeals Office decision in the Matter of L-S-M-, Adopted Decision 2016-03 (AAO Feb. 23, 2016). The Matter of L-S-M- held that “the exemption to civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to [U1] nonimmigrant victims of qualifying activity.” However, in accordance with the Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007) civil penalties for the failure to comply with an order of voluntary departure will not apply if the failure to comply with an order of voluntary departure was not voluntary. In this article, we will review the facts of the Matter of L-S-M-, the underlying statutes, and its effect going forward now that the USCIS has designated it as an adopted decision.

In June of 2016, the United States Citizenship and Immigration Services (USCIS) ombudsman recommended that the USCIS create a uniform and streamlined U visa parole policy for those who are abroad and eligible for U visa status, but who are waiting for an available U visa due to the annual cap on available U visas. On August 18, 2016, the USCIS responded favorably to the ombudsman’s recommendation, and it announced plans to implement a uniform U visa parole policy for principal U visa petitioners who are on the U visa waiting list and who reside abroad, along with any qualifying derivative family members of said principals who reside abroad. In this article, we will discuss the ombudsman’s recommendation and the USCIS’s response. We will update this site when the USCIS announces its new U visa parole policy.

On September 8, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Khan, 26 I&N Dec. 797 (BIA 2016). The Board held that an immigration judge does not have the authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act (INA) made by a petitioner for U nonimmigrant status. In so doing, the Board reached a different conclusion than had the Seventh Circuit in L.D.G. v Holder, 744 F.3d 1022 (7th Cir. 2014), but it nevertheless made its decision binding precedent nationwide, including in the Seventh Circuit.

On June 22, 2010, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum titled “Extension of U Nonimmigrant Status for Derivative Family Members Using the Application to Extend/Change Nonimmigrant Status (Form I-539),” PM-602-0001. The Memorandum, among other matters, explains when the USCIS can approve a Form I-539, Application to Extend/Change Nonimmigrant Status extension of status request filed by a derivative U nonimmigrant whose initial period of stay is less than four years. Such a request may be made for purpose of establishing eligibility for adjustment of status when the derivative U nonimmigrant would be unable to meet the three-year continuous physical presence requirement for adjustment of status eligibility. In this article, we will review the Memorandum and its policy guidance.

On October 4, 2016, the United States Citizenship and Immigration Services (USCIS) published a Policy Memorandum (PM-602-0032.2) titled “Extension of Status for T and U Nonimmigrants (Corrected and Revised)” (“The Memorandum”). The Memorandum, which revises both chapters 39.1 and 39.2 of the USCIS’s Adjudicator’s Field Manual (AFM), serves to rescind and replace a previous Policy Memorandum (PM-602-0032.1) titled “Extension of Status for T and U Nonimmigrants; Revisions to Adjudicator’s Field Manual (AFM) Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update AD11-28),” issued on April 19, 2011. In this article, we will examine the rules in the Memorandum for U nonimmigrants pertaining to the extension of U nonimmigrant status.

If an individual is approved for U nonimmigrant status as a principal U1 visa holder, he or she may seek to afford derivative U nonimmigrant status to certain qualifying family members. A derivative U nonimmigrant will be eligible to seek adjustment of status separate from the principal U nonimmigrant. The U nonimmigrant statutes provide for a limited scenario in which a principal U nonimmigrant may file the Form I-929, Petition for a Qualifying Family Member of a U-1 Nonimmigrant, on behalf of a qualifying relative who was never a derivative U nonimmigrant. This petition may be approved after the principal adjusts status and would allow the qualifying family member to seek admission into the United States as a permanent resident. In this article, we will examine the rules surrounding the Form I-929 petition.

The Department of Homeland Security (DHS) recently released a pamphlet titled “U Visa Immigration Relief for Victims of Certain Crimes: An Overview for Law Enforcement.” You may see the full document in our article.

Congress established the T Visa category for certain victims of severe forms of human trafficking in which the victim ends up in the United States as a result of the trafficking. The T-1 Visa, for the victim, is intended both as a powerful form of relief for the victim and a potent incentive for the victim to assist (with narrow exceptions) authorities in the investigation and prosecution of dangerous human traffickers. Furthermore, certain family members of T-1 Visa beneficiaries are eligible for derivative T Visas (T-2, T-3, T-4, T-5, and T-6 Visas).

On October 4, 2016, the United States Citizenship and Immigration Services (USCIS) published a Policy Memorandum (PM-602-0032.2) titled “Extension of Status for T and U Nonimmigrants (Corrected and Revised)” (“The Memorandum”). The new Memorandum, which revises chapters 39.1 and 39.2 of the USCIS’s Adjudicator’s Field Manual (AFM), completely rescinds and replaces a previous Policy Memorandum (PM-602-0032.1). Under the new rules, a derivative T nonimmigrant will no longer automatically lose status when the principal adjusts. He or she may apply for adjustment of status after the principal has applied, provided the principal meets the eligibility requirements and the T nonimmigrant was admitted in T nonimmigrant status and continues to hold such status at the time the principal applied for adjustment of status. In this article, we will review the rules found in PM-602-0032.2 regarding T nonimmigrants.

T Visas provide extremely valuable benefits to certain trafficking victims and accompanying immediate family members. T status admits T Visa holders to the United States for a duration of four years. While on T status, status-holders are authorized to work in the United States. After three years, or after the Attorney General certifies that the trafficking investigation or prosecution is complete (whichever comes first), T Visa beneficiaries are eligible to apply for adjustment of status from nonimmigrant T status to lawful permanent resident (LPR) status. This article will explore the benefits of T status, maintaining T status, and the process for applying for adjustment of status.

Domestic violence often includes sexual assault, child abuse and other violent and dangerous crimes against victim’s person. It also may incorporate intimidation and subjugation and may cause serious mental injury to the victim.  U.S. federal law and that of many states consider any type of sexual activity imposed without consent on another person as sexual assault. Being married to the victim does not absolve the abuser of liability for sexual assault, not does it diminish the harm such activity may and more often than not does cause.

The Immigration and Nationality Act (INA) allows for the alien spouse of a U.S. citizen or lawful permanent resident (LPR) to file a Violence Against Women Act (VAWA) self-petition for permanent resident status if he or she or his or her child was battered or subjected to extreme cruelty by the U.S. citizen or LPR spouse. In this article, we will discuss the eligibility requirements for filing a Form I-360 VAWA self-petition as an abused spouse or on behalf of an abused child.

The Immigration and Nationality Act (INA) allows the parent of an adult U.S. citizen to file a Violence Against Women Act (VAWA) self-petition for permanent resident status if he or she resided with his or her U.S. citizen son or daughter and was subject to battery or extreme cruelty by the son or daughter. In this article, we will use the relevant statutes, regulations, and agency guidance to examine the rules for filing a VAWA self-petition as the battered parent of a U.S. citizen.

The Immigration and Nationality Act (INA) contains provisions for allowing children who have been battered or subjected to extreme cruelty by a U.S. citizen or lawful permanent resident (LPR) parent to self-petition for LPR status. In this article, we will discuss the eligibility requirements for filing a Form I-360 as a VAWA self-petitioning child.

In 2006, President George W. Bush signed the Violence Against Women Act (VAWA) and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 119 Stat. 2960 (2006) into law. Among other things, the statute directed the Attorney General, the Secretary of State, and the Director of Homeland Security to provide guidance to employees of their respective departments regarding policies to protect information relating to victims of domestic violence and severe forms of trafficking in persons or criminal activity. In this article, we will examine the DHS’s policies regarding the protection of information of applicants for protection under VAWA or VAWA beneficiaries and the procedures for seeking relief if these policies are violated.

On February 14, 2017, the United States Citizenship and Immigration Services (USCIS) published a FAQ titled “Employment Authorization for Certain Abused Nonimmigrant Spouses.” In this article, we will examine the USCIS’s new FAQ as well as reference additional materials related to employment authorization for certain nonimmigrant spouses.

In this article, we will be discussing changes in the processing of certain U visa petitions being handled by the Nebraska Service Center.

On October 6, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Pangan-Sis, 27 I&N Dec. 130 (BIA 2017). The decision addresses the scope of section 212(a)(6)(A)(ii) of the Immigration and Nationality Act (INA), which provides for a limited exception to section 212(a)(6)(A)(i). Section 212(a)(6)(A)(i) renders inadmissible an alien who is 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 Secretary of Homeland Security. Under section 212(a)(6)(A)(ii), an exception to inadmissibility is allowed for certain Violence Against Women Act (VAWA) self-petitioners who can establish a connection between their abuse and their unlawful entry into the United States. In Matter of Pangan-Sis, the Board held that an alien must satisfy each of the three subclauses of section 212(a)(6)(A)(ii) of the INA in order to be eligible for the exception. Notably, this includes subclause (I), which specifies that the alien must be “a VAWA self-petitioner.” In this article, we will examine the facts and procedural history of Matter of Pangan-Sis and what the decision means going forward.

On October 6, 2017, the United States Court of Appeals for the Seventh Circuit issued a decision for publication in Baez-Sanchez v. Sessions, —- F.3d ——, (7th Cir. 2017). In the decision, the Seventh Circuit declined to follow the published Board of Immigration Appeals (BIA) decision in Matter of Khan, 26 I&N Dec. 797 (BIA 2016) and held that Immigration Judges have the jurisdiction to grant a section 212(d)(3)(A)(ii) of the Immigration and Nationality Act (INA) waiver of inadmissibility to an alien who is applying for a U nonimmigrant visa. In this article, we will examine the procedural history of the case, the split between the Seventh Circuit and the Board, and what this will mean going forward.

In order to procure a U nonimmigrant visa, the petitioner must be admissible to the United States. If a U visa petitioner is inadmissible, there are two separate waivers of inadmissibility that may be available to allow a nonimmigrant to procure a U visa.

On November 8, 2018, the United States Citizenship and Immigration Services published a news release stating that it is continuing to implement its June 28, 2018, Policy Memorandum (PM), titled “Updated Guidance for the Referral of Cases and Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” As we discussed in a previous post, the USCIS began implementing this PM for certain denied status-impacting applications on October 1, 2018 (discussed below). The PM will now take effect for U visa petitions, T visa petitions, VAWA petitions, SIJ petitions, refugee/asylee relative petitions, and related adjustment of status applications.

In order to obtain a U nonimmigrant visa, a petitioner must be the victim of qualifying criminal activity, have suffered substantial physical or mental abuse as a result of the victimization, and have cooperated with all reasonable requests from law enforcement or other qualifying agencies in the investigation and/or prosecution of the criminal activity. Domestic violence is one type of criminal activity that may qualify an individual for a U visa. However, not all domestic violence cases lead to prosecution. In this article, we will examine an interesting unpublished decision of the Administrative Appeals Office (AAO) dealing with whether obtaining an order of protection constitutes qualifying cooperation with and helpfulness to law enforcement. While the United States Citizenship and Immigration Services (USCIS) said no in the instant case, the AAO reached a different conclusion. Although the AAO decision is non-precedential and therefore not binding on other adjudications, its reasoning on why cooperating with authorities in order to obtain an order of protection against an abuser can constitute cooperation for purposes of a U visa petition may be instructive as a general matter.

In order for a marriage to be valid under the immigration laws, it must be, among other things, entered into freely by both parties. Forced marriages are not considered valid under the immigration laws. Furthermore, perpetrators of a forced marriage may be subject to criminal penalties as well as immigration sanctions in the event that they are not U.S. citizens. Persons of either sex and any age can be victims of forced marriages. The United States Citizenship and Immigration Services (USCIS) takes special care to look for forced marriage indicators where one or both parties to a spousal petition are minors. In this article, we will examine public information from the USCIS and the U.S. Department of State (DOS) on forced marriages.