Selected Issues on Citizenship and Immigration Law:
U Nonimmigrant Visa and Status Thursday July 21, 2011 1:30 p.m. – 3:00 p.m. EST
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Patricia Wonder Instructor,
CUNY School of Professional Studies
Our Panel of Presenters
Julie Dinnerstein
Co-Director
Sanctuary for Families’ Immigration Intervention Project
U Visas and Nonimmigrant Status
U Visa and Nonimmigrant Status: Legislative Background Julie E. Dinnerstein
• To encourage immigrant victims to report crimes and seek protection of law enforcement • To encourage law enforcement officials to work with immigrant crime victims
U Visa and Nonimmigrant Status Overview
Julie E. Dinnerstein
• Nonimmigrant status created in 2000 as part of Victims of Trafficking and Violence Protection Act • Benefits certain crime victims willing to work with law enforcement • Who have suffered substantial harm as a result of the crimes
U Nonimmigrant Status Petition: 2 Levels
Julie E. Dinnerstein
LEVEL 1
LEVEL 2
Level 1: • Establish eligibility for U nonimmigrant status under • INA §101(a)(15)(U), INA §214(p), 8 CFR §214.14 Level 2: • Establish that U petitioner (or U derivative) is not “inadmissible” • Grounds of inadmissibility listed at INA §212(a) • But, almost all grounds can be waived under INA §212(d)(14), 8 CFR §212.1 and .17
Overview
Julie E. Dinnerstein
• Petitioner suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity; • Petitioner has credible and reliable information about the criminal activity; • Certification required to establish that petitioner has been, is being helpful to, or is likely to be helpful to law enforcement official; • Criminal activity occurred in the United States or is covered by US law; and • Petitioner is not “inadmissible.”
Steps to Analyzing Eligibility
Julie E. Dinnerstein
1.
Is the client a victim of qualifying criminal activity covered by a US law (federal, state, tribal, local or municipal)?
2.
Has the client suffered?
3.
Has the client cooperated with government authorities?
4.
Can the required certification be obtained?
5.
Is the client inadmissibile and, if yes, can the inadmissibility be waived?
Step 1: Qualifying Criminal Activities
Julie E. Dinnerstein
• Qualifying criminal activities include: – sexual assault; – domestic violence; – felony assault; and – manslaughter • attempts, or conspiracies to commit qualifying criminal activities
Step 2: Substantial Physical or Mental Abuse
Julie E. Dinnerstein
Nature of injury inflicted/suffered; Severity of perpetrator’s conduct; Severity of the harm; Duration of the harm; Pattern of abuse by this perpetrator against victim • Existence of permanent or serious harm (physical or mental), including aggravation of pre-existing condition • • • • •
Step 3: Cooperation
Julie E. Dinnerstein
• Has your client spoken with the investigating authorities?
• Is your client prepared to testify? • Has your client provided updated contact information to the investigating or prosecuting government agencies?
Step 4: Form I-918, Supplement B: The U Certification Form Julie E. Dinnerstein
• The U Nonimmigrant Status Petition cannot be filed without a certification on Form I-918, Supplement B, signed within 6 months of the U filing. • No certification = no case. • In New York City, common signatories include: – the five District Attorneys’ Offices (most common); – child protective services (common); – the police (less common) – Family Court judges (relatively new)
Poll Question A few years ago, Sandra was raped. At the time, Sandra had only been in the U.S. for a few months. She did not want to tell the police. She did not speak any English and she was afraid. She did talk to a counselor at a community center in her neighborhood a couple of months after the attack. She ended up spending three years in counseling. Is Sandra eligible to apply for U nonimmigrant status?
Step 5: Inadmissibility
Julie E. Dinnerstein
• INA §212(a) lists grounds of inadmissibility. • Waivers of grounds of inadmissibility can be filed per INA §212(d)(14), 8 CFR §212.17 (discretion in public or national interest). • Only INA §212(a)(3)(E) cannot be waived. • With Form I-918, file Form I-192 to seek waiver of inadmissibility grounds.
INA §212(d)(14) Waiver of Inadmissibility
Julie E. Dinnerstein
Form I-192 • Considerations: − Risk of harm to society by applicant (any indication of rehabilitation helps) − Seriousness of applicant’s violations of criminal and/or immigration laws − Applicants reason to apply for nonimmigrant status (need not be extraordinarily compelling)
Poll Question Jesse entered the US in 2007 on a student visa but stopped going to school a couple of years ago when he could no longer afford the tuition. He has been working as an independent graphic designer in Williamsburg and making reasonable money since then. One night, he was mugged and ended up getting stabbed. A passerby called 911 and he was taken to the hospital and released the next day after treatment for his injuries. Is Jesse eligible to apply for U nonimmigrant status?
Passports
Julie E. Dinnerstein
• A lack of a passport is both a ground of inadmissibility under INA § 212(a)(7) and a practical problem – particularly for those outside the United States. • Most adult clients, whether in the US or abroad, can obtain passports. • Many children cannot obtain passports as they cannot obtain consent from abusive or missing parent. • Those in the United States who do not have current, valid passports must file Form I-192. • Those outside the United States who do not have current, valid passports, file both Form I-192 and Form I-193.
Qualifying Family Members • Accompanying or following to join: Julie E. Dinnerstein
– For petitioners 20 and under, the spouse (U-2), children (U-3), parents (U-4), and unmarried siblings under 18 (U-5) on the date on which such alien applied for status – For petitioner 21 or older, the children (as defined at INA §101(b)) and spouse
• Cannot be granted U derivative status until U-1 is granted. • May request status on I-918, Supplement A, at the same time that the I-918 is filed or afterwards.
Excluded From Derivative Status:
Julie E. Dinnerstein
8 CFR §214.14(f)(1) “A qualifying family member who committed the qualifying criminal activity in a family violence or trafficking context which established the principal alien’s eligibility for U nonimmigrant status shall not be granted U-2, U-3, U-4, or U-5 nonimmigrant status.”
Evidentiary Standard and Quotas • Any credible evidence standard. Julie E. Dinnerstein
• Non exclusive relief.
• Can be filed by those with final removal, deportation and exclusion orders. • Quota of 10,000 per year (does not apply to derivatives). • If quota exceeded, U petitioner is placed on waiting list and granted deferred action and eligible to apply for work authorization until such time as U petitioner may be granted U status.
Duration
Julie E. Dinnerstein
• U status is for 4 years • USCIS is currently granting less than 4 years of status to derivative children who may turn 21 before the normal 4 year period. Any child who receives a grant of less than 4 years should file an appeal on Form I-290B within 33 days of date on notice indicating grant of U-3 status for period of less than 4 years.
Adjustment of Status: INA §245(m) Those in U nonimmigrant status may apply for permanent residency if: Julie E. Dinnerstein
• physically present in US in U nonimmigrant status for 3 or more years, • necessary based on humanitarian grounds to ensure family unity, or in the public interest; and • no affirmative finding that the noncitizen has unreasonably withheld assistance to law enforcement • since the grant of U status, the adjustment applicant has not been out of the United States for more than 180 days in total and, at no point, for more than 90 days in a row.
Typical Case – Principal Petitioner
Julie E. Dinnerstein
Form I-918; • I-918, Supplement B • G-28 on blue paper • Index • Affidavit explaining “yes” answers. • Affidavit describing substantial harm • Copies of relevant documents
Form I-192 (if required) • $585 fee (or fee waiver request) • G-28 on blue paper • Affidavit addressing ground(s) of inadmissibility and hardship
Typical Case – Each Derivative Form I-918 Supplement A • Form must be signed by derivative if (a) in US; and (b) 14 or older Julie E. Dinnerstein
• Affidavit explaining “yes” answers on Form I-918 Supplement A (may be from petitioner or derivative) Form I-192 (if required) • $585 fee (or fee waiver request) • G-28 on blue paper • Affidavit addressing ground(s) of inadmissibility and hardship (may be from petitioner or derivative) • Must be signed by derivative if 14 or over. • Form I-765 • $380 (or fee waiver request) • G-28 on blue paper • List office address for Question #3. • Write (a)(20) for Question #16. • Only file if derivative is in US.
Form I-918 – Page 1
Julie E. Dinnerstein
• It is a good idea to list the legal office as the safe mailing address. • If client has no A# (and most do not), leave blank. • If client has no SSN (and most do not), leave blank. • Marital status – list legal status, regardless of whether couple is together or not.
Form I-918 – Page 1 (cont.)
Julie E. Dinnerstein
• Passport information – list even if expired. • Passport information – if issued in New York City, be sure to indicate in the “Place of Issuance” box. • If no I-94 # (and clients who enter without inspection will not have an I-94 card), write “none,” and if card has been lost, write “lost.” • For most of our clients, their current immigration status is “none.” • Be sure to check off box on bottom right hand corner indicating that you are filing a G-28 and provide your state license number.
I-918 – Page 2
Julie E. Dinnerstein
• Answers to Question #s 1-5 and #7 are always “yes.” • If client was ever stopped by immigration officials but does not have information regarding proceedings, the answer to the question is likely to be unclear so you will write in “unclear” by hand. • Question 9 only asks for the last 5 years.
I-918 – Page 3 • Part 2, Question 10 – this section is always left blank for our clients. Julie E. Dinnerstein
• Part 3, Question 1 – the answer to these questions is frequently “unclear.” • Part 3, Question 1 – if your client has ever been stopped under color of law in the US or abroad, whether or not client believes that he or she was “arrested” or “detained” or “imprisoned” or “convicted” please review how to answer these questions carefully. The Immigrant Defense Project (www.immigrantdefenseproject.org; 212-725-6422) can provide helpful information in analyzing how best to describe past interactions with law enforcement and how to gather official documents relating to any such interactions.
I-918 – Page 4
Julie E. Dinnerstein
• Question 2 – the vast majority of our clients answer “yes” as they or members of their household have received some form of government assistance. Where clients have given birth in the US, they have almost always received government funded pre-natal care. Be sure to ask. • Question 3, c. – Clients who have helped their children or other family members or friends to enter the US unlawfully will answer “yes.”
I-918 – Page 6 • Question 11 - All of our clients will answer “yes” to one or more of these questions. Julie E. Dinnerstein
– Our clients have all been present as crime victims of physical or sexual assault. – Many clients have also been forced to move out of homes shared with abusers or move to shelter or change residences in connection with abuse.
• Question 12 – Many clients will answer “yes” to one or more of these questions if they or an immediate family member has served in the police force or military, including in the US. • Question 14 – Many clients will answer “yes” or “unclear” to these questions. Be sure to review these questions carefully with both client and supervisor. • Question 15 – I have never seen anyone in the New York City area with a final order under INA §274C, so the answer to this question is generally “no.” • Question 16 – Many clients will answer “yes” to this question.
Page I-918 - Page 7
Julie E. Dinnerstein
• Part 3, Question 22 – Clients who have tested positive for TB or who have been hospitalized in connection with suicide attempts or other mental illnesses may answer yes to this question. • Part 4 – Be sure to list legal spouse as well as all children, whether born in the U.S. or outside the U.S., whether single or married and regardless of age and immigration status. If there is not enough room to list all of your clients children, please use an additional sheet of paper to list additional children.
Form I-918, Supplement A
Julie E. Dinnerstein
• If, and only if, derivative is (a) in the U.S.; and (b) 14 or over, he or she must sign in addition to the I-918 petitioner.
• Affidavit explaining responses can be from the petitioner or derivative.
Form I-192
Julie E. Dinnerstein
• List actual address, unless living in a confidential domestic violence shelter, in which case write “confidential domestic violence shelter.”
• The answer to Questions 7, 8 and 9 is “N/A.” • The answer to Question 10 is “indefinite.” • The answer to Question 11 is “Already in U.S. - filing U nonimmigrant status petition.” • In response to Question 12, write a brief factual summary. Examples include: – Entered without inspection (EWI) – Helped children to enter unlawfully – Provided incorrect information on previous immigration application – Do not have current, valid passport
Form I-192: Supporting Evidence • Where the only grounds of inadmissibility are either (1) EWI; or (2) no passport, then no supporting affidavit or other evidence is needed. Julie E. Dinnerstein
• For most non-drug offense, non-violent grounds of inadmissibility (including petty theft, illicit gambling, unlawful reentry after deportation, etc.) a short one to two page affidavit describing the equities, combined with documents showing the nature and resolution of the offense, should suffice. • For potential mental health grounds of inadmissibility, a statement from a mental health professional explaining why the applicant is not a danger to him- or herself should be included. • For drug offenses and violent crime, numerous and detailed statements and other forms of evidence should be submitted to establish rehabilitation and strong equities.
Form I-765: Employment Authorization Document (EAD) Application Julie E. Dinnerstein
• Not required for primary I-918 U petitioner; only required for derivatives. • Can only be submitted for derivatives in the United States. • It is a good idea to list office address in response to Question 3. • Write (a)(20) in response to Question 16. • Should be filed for derivatives in the United States, regardless of age or intent to work.
Form I-193
Julie E. Dinnerstein
• File only for those who are outside the United States and cannot obtain passports. • Form I-192 is also required.
G-28s
Julie E. Dinnerstein
• File a G-28 on blue paper with each of the following forms: – I-918 – I-192 – I-193 – I-765 • This requirement means that you may be filing several signed G-28s for each family member who you represent.
Q&A: Our Panel of Presenters
Patricia Wonder
Julie E. Dinnerstein
CUNY School of Professional Studies
Sanctuary for Families’ Immigration Intervention Project
Instructor
Co-Director
Recorded Web Seminar
An e-mail with instructions on how to access this Web seminar and related materials will be sent to you shortly
Acknowledgements • Paul Russo
Director of Online Programs CUNY School of Professional Studies
• Antonia Levy
Instructional Technology Fellow CUNY School of Professional Studies
• Kelley Kawano
Instructional Technology Fellow CUNY School of Professional Studies
• Allan Wernick
Director CUNY Citizenship Now!
• A. Sofia Carreño
Communications Coordinator CUNY Citizenship Now!
• David Sturniolo
Communications Assistant CUNY Citizenship Now!
• Gabriel Espinal
Communications Assistant CUNY Citizenship Now!
For further questions regarding the information presented during this webinar please contact
Patricia Wonder
[email protected]
