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VAWA Pro Bono Training Legal Services Center for Immigrants Legal Assistance Foundation of Metropolitan Chicago Family-Based Immigration and Self-Petitions.

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Presentation on theme: "VAWA Pro Bono Training Legal Services Center for Immigrants Legal Assistance Foundation of Metropolitan Chicago Family-Based Immigration and Self-Petitions."— Presentation transcript:

1 VAWA Pro Bono Training Legal Services Center for Immigrants Legal Assistance Foundation of Metropolitan Chicago Family-Based Immigration and Self-Petitions under the Violence Against Women Act March 31, 2005

2 Introduction VAWA = Violence Against Women Act 8 USC §§ 1154(a)(1)(A) and (B) lets immigrant spouses and children get legal status independent of their abusers gender-neutral outreach on legal rights of abused immigrants + staff reductions at nonprofit immigration legal aid agencies > growing need for VAWA representation

3 Basic Immigration Terms USCIS = U.S. Citizenship & Immigration Services was Imm’n. & Naturalization Service (INS) then Bureau of Imm. & Cit’p. Services (BCIS) was in U.S. Dept. of Justice now in U.S. Dept. of Homeland Security (DHS) adjudicates immigration petitions & applications (family petition, EAD, AOS, naturalization, etc.)

4 U.S. citizen = USC How citizenship is obtained (4 main ways): native = born in U.S. acquire = born abroad to USC parent(s) naturalize = apply after 5+ years as LPR derive = if parent(s) of LPR under 18 naturalize

5 U.S. citizens can... live, work, vote in U.S. live outside U.S., yet always be readmitted never be deported (unless got USC by fraud) if adult (21+), petition close relatives: –spouse, minor unmarried children, AND –parents, siblings, adult sons/daughters, and married sons/daughters

6 A few more terms... nonimmigrant visa = for limited time + specific purpose tourist (B-2), student (F-1), fiancee (K-1), exchange visitor (J-1), etc. immigrate = obtain LPR status (“green card,” “mica”) immigrant = lawful permanent resident (LPR)

7 Rights of LPRs far fewer rights than USCs can live and work “permanently” in U.S. BUT can be deported if -criminal conviction (INA Sec. 237) -abandon residency in U.S. -LPR obtained by fraud or material misrepresentation

8 Some ways to become lawful permanent resident (LPR) admitted as refugee + 1 year granted asylum + 1 year employment-based ways 1986 legalization law (“amnesty”) special legislation, e.g., Cuban Adjust. Act I-130 petition by close USC or LPR relative = most common path

9 A few more terms... nonimmigrant visa = for limited time + specific purpose tourist (B-2), student (F-1), fiancee (K-1), exchange visitor (J-1), etc. immigrate = obtain LPR status (“green card”) immigrant = lawful permanent resident (LPR)

10 Petition for Alien Relative (I-130) Petitioner = USC or LPR who files petition so that close relative can someday “immigrate” to U.S. submits proof of USC or LPR status + of relationship Beneficiary = relative for whom petition is filed (spouse, son or daughter, parent, sibling)

11 Derivative beneficiary = spouse or unmarried minor child (under 21) of principal beneficiary spouse of LPR must wait 5+ years –If from Mexico, must wait 7+ years

12 1.Petitioner sends I-130 to USCIS (Lincoln, NE) 2. Beneficiary awaits I-130 approval from Lincoln Before 7/15/04, approved in 1-2 years Now, decided only once PD current and can apply for LPR status 3.Beneficiary waits until PD is “current” = has passed on monthly DOS Visa Bulletin Preference Immigrants

13 Where Beneficiary Can Apply for LPR Status If abroad, Consular Processing If in U.S., Adjustment of Status to LPR Consular Processing = at interview at U.S. consulate abroad, granted immigrant visa, then admitted to U.S. as LPR usually is sole option if living abroad, or if living in U.S. but not eligible to adjust

14 Adjustment of Status To apply to “adjust status” to LPR status, must be living in U.S., AND -be IR and prove last entered U.S. legally, OR -be eligible to adjust via INA § 245(i), OR -have approved or IR VAWA petition

15 When Beneficiary Can Apply for LPR Status Turns on petitioner’s -immigration status (USC vs. LPR) -family relationship to beneficiary

16 IRs vs. Preference Immigrants “Immediate relatives” (spouse, parent, or minor unmarried child of USC) exempt from visa backlogs, so can apply immediately “processing” of LPR application (filing-to- interview) still takes 1-2 years “Preference immigrants” = everyone else can’t apply until PD becomes current because are subject to visa backlogs

17 Visa Backlogs and Waiting Lists Limited # allotted per year, and demand exceeds supply > visa backlog Priority date(PD) = date I-130 filed sets place in line to apply for LPR can’t apply for LPR until PD “current” on Visa Bulletin (VB) VM shows what PD holders can now apply Movement VB depends on demand –how many people immigrate each month

18 Family Preference Categories 1 st Preference: unmarried adult sons and daughters of USCs 2 nd Preference: 2A: spouses and unmarried minor children of LPRs 2B: unmarried adult sons and daughters of LPRs 3 rd Preference:married sons and daughters of USCs 4 th Preference: siblings of USCs

19 Visa Bulletin – April 2005 Family Preference CategoryAll other countries IndiaMexicoPhilippines 1: Unmarried sons/daughters of USCs 3-15-01 10-22-9412-15-90 2A: Spouses & unmarried children of LPRs 1-8-01 1-15-981-8-01 2B: Unmarried adult sons/daughters of LPRs 10-15-95 3-15-9210-15-95 3: Married sons/daughters of USCs 1-22-98 4-8-958-1-90 4: Siblings of adult USCs 5-15-939-8-925-15-9311-22-82

20 Immigrating via Marriage to USC or LPR Consular Processing abroad: -USC/LPR files I-130 -couple interviewed at U.S. consulate abroad -DOS decides if admissible under imm. law -then spouse admitted to U.S. as LPR

21 Adjustment of Status via I-130 If already in U.S., I-130 option: USC/LPR files I-130 If LPR, must then wait until PD current She files I-485 with local CIS office Couple attend AOS interview 6 – 22 mo. later, where CIS decides whether -she married in good faith -she’s admissible under imm. law

22 Adjustment of Status via fiancée visa If abroad and not yet married, she: Obtains K-1 visa to come to U.S. Marries within 90 days after arrival Applies for adjustment

23 Abusers often use immigration status to control spouse and children refusing to file immigration papers threatening to - cancel I-130 he filed - divorce her so she can’t get papers - not accompany to her green card interview - tell INS she only married him for papers - get her deported by “calling INS” - keep the children

24 Before VAWA If no petition, or if petition withdrawn by abuser, wife/child were left in legal limbo no legal status + no way to get it If abuser refused to accompany wife/child to adjustment interview, INS would deny application + start deportation proceedings

25 Life Without Papers Very difficult in U.S. if undocumented No work permit > turned down for better jobs + at risk for exploitation in poor jobs No SSN > no state ID, no driver’s license Can’t open bank account or insure car Constantly fear deportation and separation from USC children Can’t travel abroad and return if relative there is ill, or if need to escape abuse

26 VAWA INA (Immigration & Nationality Act) § 204(a)(1)(A) and (B) = 8 USC § 1154(a)(1)(A) and (B) lets abused spouses and children start process toward LPR status, independent of abusers “self-petitioner” is both beneficiary, and her own petitioner

27 4 Steps to Legal Status via VAWA 1.File VAWA petition to VAWA Unit housed in Vermont Service Center decides all VAWAs nationwide trained in dynamics of DV 2.Await approval of VAWA basis to apply for LPR status once PD current

28 More benefits of approved VAWA granted Deferred Action = formal decision that as abuse victim, she’s too low a priority for DHS to initiate removal procgs. Deferred Action entitles to EAD, renewable until she becomes LPR I-360 replaces any I-130 by spouse still subject to visa backlog if abuser = LPR but can retain PD from I-130 even if divorce, abuser cancels I-130, or dies

29 3. Wait until PD becomes current, then 4. Apply to adjust status File adjustment application Get fingerprinted by USCIS Await interview Attend interview at Chicago CIS Show admissible under immigration law

30 Typical VAWA Scenario 1.Noncitizen marries USC or LPR 2.USC or LPR abuses her or her/their child 3.Abuser refuses to file petition, or threatens to withdraw petition, divorce her, or not attend her green card interview 4.Abused spouse/child feels trapped 5.Then learns of rights and files VAWA petition 6.VAWA approved and Deferred Action granted: > work permit and low risk of deportation 7.Abused spouse/child eventually become LPRs with no reliance on abuser

31 VAWA Requirements 1.Spouse, child, or stepchild of USC or LPR via legally valid marriage 2.Good moral character 3.Married in “good faith” 4.Past or present residence with abuser 5.Battered and/or subjected to “extreme cruelty”

32 1- Spouse/Child of USC or LPR Legally valid marriage: Must have terminated own prior marriage If abuser didn’t, but she was unaware as of DOM, she is still “intended spouse” Child = biological child, or stepchild (parents married before child turned 18)

33 VAWA Deadlines Can still file VAWA within 2 years after: Couple divorce, USC abuser dies, or LPR abuser is deported due to DV incident

34 2 – Good Moral Character Focus is on 3 years before filing = statutory period Earlier period also relevant = “residual” GMC Misdemeanor convictions may not bar GMC, especially if connected to abuse

35 3 – Married in Good Faith Must have married intending to establish life together, not just for papers Key = intent at DOM Facts before and after DOM relevant: courtship, etc.

36 4 – Joint Residence Must have lived with abuser –In U.S. or abroad –No minimum time requirement Must now reside in U.S., or Can file from abroad if –abused in U.S., or –if abuser is U.S. government employee or member of uniformed services

37 5 – Battery or Extreme Cruelty Can file VAWA as abused spouse, abused child, or parent of abused child Abuse of spouse or stepchild must have occurred during marriage Prior abuse also relevant

38 What qualifies as abuse Violent acts or threats of violence –including sexual abuse or exploitation “Extreme cruelty” = mental/emotional abuse Often = a pattern of behavior intended to intimidate and control

39 Abuse (cont.) Physical abuse = violence or threats of violence Includes slapping, pushing, etc., even if - not physically injured - didn’t call police Client may deny or minimize abuse

40 Sexual abuse Sexual assault, rape, forced prostitution Ask the right questions: “Did he ever force you to have sex?” “Were you afraid to refuse him?” “What were you afraid would happen?” But if client hesitant, let DV counselor elicit facts and write detailed letter

41 What is extreme cruelty See extreme cruelty questionnaire Verbal abuse and degradation Isolation Intimidation Economic abuse Extreme possessiveness and jealousy Degradation and constant criticism

42 Extreme cruelty (cont.) Using children Coercion and threats to: –get her deported and/or take away children away if she leaves him, calls police, goes to court against him –call DCFS

43 VAWA Requirements Review 1.Legally valid marriage to USC or LPR, child of USC or LPR, or stepchild of legally valid marriage 2.Good moral character 3.Married in good faith 4.Resided with abuser 5.Abused by spouse or parent during the marriage

44 Working with VAWA Clients Might be nervous, upset, intimidated, unresponsive/“shut-down” -- PTSD? Be patient and express sympathy Try to gain trust and put at ease Ask questions in different ways if needed Offer her chance to write out her story Never use her relative as interpreter Encourage her to use DV support services (counselors, support groups, shelters)

45 Preparing a VAWA Case Complete Packet Includes: Government-issued photo ID, to establish her identity I-360 photo VAWA Petition I-765 for Employment Authorization + photos Documents to support each statutory requirement

46 VAWA Petitioner’s Affidavit = the Most Important Document! Client’s story in her own words OK to edit; needn’t re-write or correct grammar Chronological is best: History of entries into/departures from U.S. “DOE, POE, and MOE” + why left + why returned How couple 1 st met, courtship, wedding, marriage, children if any When abuse began, details of 1 st + worst incidents, separations, use of DV services

47 Self-Petitioner’s Affidavit, cont. List all marital addresses (at least what towns) Assert own good moral character e.g., “I have never been arrested or convicted of a crime in the U.S. or anywhere else.” State whether ever under immigration proceedings (means deportation, removal, etc.)

48 Documenting VAWA Requirements Generous standard of proof = “any credible evidence” Make proof as strong as can Give client DV affidavit guides – pp. 6.13 - 6.14 List of Suggested Documents – p. 3.8 VAWA pamphlet – knowledge = power!

49 1A - Proving Abuser Is USC If native USC, birth certificate or U.S. passport If can’t get, give date, place of birth (POB) = town and state, and parents’ complete names Check for docs showing POB in U.S: –marriage license application –birth certificate of abuser’s child –arrest reports If naturalized, U.S. passport, natz. certificate, or anything showing former A#, e.g., any INS/CIS receipt or approval notice -- for I-130 he filed?

50 1B - Proving Abuser Is LPR I-551 = “green card” = LPR card A-# (Alien Registration Number) any INS/CIS letters, receipts, applications IF A-NUMBER UNKNOWN, give: Abuser’s complete name, date of birth, town and state of birth, parents’ complete names, and how became LPR, if known CIS will attempt to verify via its database NOTE: SSN probably doesn’t help

51 1C - Proving Client’s Priority Date Best = approval notice for I-130 Next best = receipt for I-130 Then correspondence from National Visa Center or from Dept. of State Visa Section May be able to write NVC and get PD

52 1D – Proving Marriage Legally Valid Proof that prior marriages of either were terminated (divorce or death certificate) Search for husband’s divorce decree from 1 st wife If insufficient information, state what know and why believe he was divorced If learned only after DOM that bigamous, describe in detail why thought he was free to marry

53 2 - Proving Good Moral Character client’s affidavit stating no arrests or convictions, AND fingerprint-based report (FBI best, otherwise ISP) OR police clearance letter/all towns past 3 yrs., ALL names (maiden, married, aliases) OR if FP and police ltrs n/a, GMC letters from employers, clergy, co-workers, community groups, etc.

54 3 – Proving Married in Good Faith Marriage certificate(s) (esp. religious) Birth certificates of couple’s children before or after DOM Anything to show husband is father, if not named on b.c., or took paternal role for stepchildren Photos of courtship, wedding, together or either with other’s relatives/friends Affidavits by people who knew them as married couple

55 Proving Married in Good Faith, cont. Proof that financial resources and obligations were commingled –Joint bank statements, leases, tax returns, mortgage, installment contracts, etc. –Correspondence or bills to either party at any marital address postmarked envelopes

56 4 – Proving Joint Residence Most of same docs as for GFM E.g., utility bills to either party Postmarked mail to either party “Putting together the puzzle”

57 5 – Proving Abuse Detailed police reports (3510 S. Mich.) Crim. complaint and certified disposition Orders of protection (emergency + plenary = dispositive proof of abuse) - include supporting petition or affidavit Client’s affidavit (most important supporting document!) Hospital or other medical records Photographs of injuries

58 5B – Proving Extreme Cruelty Get affidavits of witnesses to abuse wherever possible Or even of witnesses to client’s report of abuse SEE GUIDES IN MANUAL PART 6 AND GIVE TO CLIENT

59 Proving extreme cruelty CRUCIAL: Letters from DV counselor Letters from witnesses to abuse or to client reporting it –Friends, relatives, neighbors, co-workers, church members –“Any credible evidence” -- hearsay rules don’t

60 Filling in the Gaps If you lack primary evidence for any requirement, explain why in client’s affidavit Abuser’s status –Saw his passport or green card, saw him enter U.S. legally, saw him vote, knows he was born in U.S. (tell how knows)

61 Police reports or medical records –None because abuser always threatened to call Immigration and get her deported if she called police –Abuser refused to take her to hospital Joint residence –Abuser kept all bank accounts, utilities, etc. in his name only

62 Assembling the VAWA Packet G-28 = attorney’s appearance, co-signed by client I-360 =VAWA petition I-765 = EAD application: category (c)(14) Deferred Action $185 money order for I-360, or Fee Waiver Request $175 money order for I-765, or Fee Waiver Request Cover letter as “r oad map” to case –Ask to preserve priority date, if any –Point out fee waiver request, if any Table of contents, organizing documents by 5 statutory requirements – helpful to characterize each, list dates Supporting documents, including self-petitioner’s affidavit

63 CIS Responses Receipt notice p. 8.2 –Usually arrives within 2-4 weeks after file Prima Facie Determination p. 8.3 –Facilitates getting public benefits –Usually arrives within 4 weeks after file Extension of Prima Facie Determination Request for Evidence pp. 8.4 et seq. –“blue letter” Approval notice pp. 8.6 - 8.7 –Now taking 8 months if no RFE

64 Questions?

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