DETERMINING APPROPRIATE RELIEF #ImmigrationLaw #FBA CLIENT OPTIONS: DETERMINING APPROPRIATE RELIEF Moderator: Lena Graber, Staff Attorney, ILRC Gina Amato, Senior Staff Attorney, Public Counsel, Immigrants’ Rights Project Esther Limb, Senior Staff Attorney, Her Justice

#ImmigrationLaw #FBA Panel Overview Discuss practice tips on screening for different forms of relief Provide overview of eligibility requirements Determine how to choose best form of relief

Why Screen for So Many Forms of Relief? #ImmigrationLaw #FBA Why Screen for So Many Forms of Relief? Undocumented immigrants may be eligible for existing forms of immigration relief and not know it. 14+% of those DACA-eligible found to be potentially eligible for other relief. Make the most of your contact with community members.

#ImmigrationLaw #FBA Screening Goals Screening: Identifying whether a person might be eligible for immigration relief Opportunities for screening: Individual case consultations Legal workshops (e.g. DACA workshops) Community immigration forums: With onsite legal screening With referral information Using self-screening tools Screening is not a conclusive determination of eligibility

Strategies on Screening #ImmigrationLaw #FBA Strategies on Screening Build rapport with client Assure the client that the conversation is confidential Warn client that you may ask personal or sensitive questions Explain why you are asking such questions Ask pointed questions that relate directly to eligibility

Common Forms of Humanitarian Relief #ImmigrationLaw #FBA Common Forms of Humanitarian Relief Violence Against Women Act (VAWA) Self-petition and Hardship Waivers U nonimmigrant visa (“U visa”) T visa Special Immigrant Juvenile Status (SIJS) Asylum Temporary Protected Status DACA

Violence Against Women Act (VAWA) Self-Petitions and Hardship Waivers #ImmigrationLaw #FBA Violence Against Women Act (VAWA) Self-Petitions and Hardship Waivers

Eligibility Under VAWA #ImmigrationLaw #FBA Eligibility Under VAWA Abused spouse of USC or LPR* Non-abused spouse of a USC or LPR whose child is abused by the USC or LPR spouse* Abused child of USC or LPR* Exception: If over 21 and under 25 and were eligible to self-petition before 21st birthday but did not, can still apply if abuse was “at least one central reason” for filing delay Abused parent of USC daughter or son * can include children as derivatives

VAWA Eligibility Requirements #ImmigrationLaw #FBA VAWA Eligibility Requirements Self-Petitioner must show: Family relationship (spouse, child, parent) Good faith marriage (if abused spouse) Battery or extreme cruelty to self (or child) E.g. physical abuse, emotional abuse (e.g. insults), threatening to beat or terrorize, forcing to have sex when not wanted, threatening to take child away or hurt them, threatening to deport or call immigration, controlling activity, forced detention, other pattern of abusive behavior Status of the abuser (LPR or USC) Good moral character Residence with the abuser

VAWA Self-Petitioning Benefits #ImmigrationLaw #FBA VAWA Self-Petitioning Benefits Obtain immigration status without the abuser’s assistance or knowledge Step 1: File I-360 (self-petition) If “apparently approvable” govt aid (e.g., Medicare and TANF) Adjudicated in one central location Derivative children included Concurrent work authorization Any credible evidence standard If self-petition approved deferred action

VAWA Self-Petitioning Benefits #ImmigrationLaw #FBA VAWA Self-Petitioning Benefits Step 2: Adjustment of Status/Consular Process Certain inadmissibility waivers Legal status for derivative children More public benefits in some states If approved  green card

I-751 Waiver for Conditional* LPR #ImmigrationLaw #FBA I-751 Waiver for Conditional* LPR To remove the conditions on residence, Self- Petitioner must show: Good faith marriage; AND Battery or Extreme cruelty; or Death of sponsoring spouse; or Divorce; or Undue hardship *Green card is conditional because marriage is less than two years at the time of the initial grant

#ImmigrationLaw #FBA I-751 Waiver Benefits Petitioner can remove conditions on residence without the abuser’s assistance or knowledge Can file at any time Any credible evidence standard If approved conditions on residence removed and receive 10 year green card

#ImmigrationLaw #FBA U Nonimmigrant Status AKA The “U Visa”

U Visa Eligibility Requirements #ImmigrationLaw #FBA U Visa Eligibility Requirements Victim of a statutorily-listed crime in violation of U.S. law or in territories/possessions Helpfulness in a criminal investigation or prosecution Substantial physical or mental abuse Law enforcement certification of helpfulness Any credible evidence standard

Victims Applicant must be a “victim” Direct victim Indirect victim #ImmigrationLaw #FBA Victims 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

#ImmigrationLaw #FBA U Visa Procedure Obtain law enforcement certification – must file within 6 months of receiving certification File all forms with Vermont Service Center There are no filing fees (except for I-192) There is no interview SB 674: CA law effective 2016 provides guidance to law enforcement and requires response within 90 days!

U Visa Benefits Four years nonimmigrant status #ImmigrationLaw #FBA U Visa Benefits Four years nonimmigrant status Employment authorization Can include derivative family members Can apply for lawful permanent residence after 3 years of U nonimmigrant status Can waive almost any inadmissibility ground! Public benefits in some states upon application

UGH! The Waitlist Limit of 10K U visa per year + #ImmigrationLaw #FBA UGH! The Waitlist Limit of 10K U visa per year + 95K cases currently pending = A VERY LONG wait and a slightly different process

“T Visa” for Victims of Human Trafficking #ImmigrationLaw #FBA “T Visa” for Victims of Human Trafficking

#ImmigrationLaw #FBA T Visa Eligibility Is or has been a victim of severe trafficking (sexual or labor) Is physically present in the U.S. or at a point of entry on account of the trafficking Has complied with any reasonable request for assistance in investigating or prosecuting the trafficking (if 18 or older) Would suffer extreme hardship involving severe and unusual harm upon removal Is admissible to the United States or eligible for a wavier

T Visa Benefits Four years nonimmigrant status #ImmigrationLaw #FBA T Visa Benefits Four years nonimmigrant status Employment authorization Can include derivative family members Can apply for lawful permanent residence after 3 years of T nonimmigrant status OR upon conclusion of investigation of trafficking Generous inadmissibility waivers Public benefits

Special Immigrant Juvenile Status (SIJS) #ImmigrationLaw #FBA Special Immigrant Juvenile Status (SIJS)

#ImmigrationLaw #FBA SIJS Overview Special Immigrant Juvenile Status (SIJS) provides protection for certain undocumented immigrant youth who have been abused, abandoned, or neglected, by allowing them to apply for lawful permanent residents. ONLY for people under age 21! Federal and state hybrid: requires finding by a state court first

SIJS Eligibility Requirements #ImmigrationLaw #FBA SIJS Eligibility Requirements Youth must: 1) Be under 21 years of age; 2) Be unmarried; 3) Declared a dependent of a juvenile court or placed under the custody of a state agency or individual or entity appointed by the state or court; 4) Reunification with one or both parents is not viable due to abuse, neglect or abandonment; and 5) Not in youth’s best interest to be returned to country of origin

Juvenile Court: Establishing Jurisdiction #ImmigrationLaw #FBA Juvenile Court: Establishing Jurisdiction If a case is already pending in juvenile court, no need to initiate one If no case is already pending in a juvenile court, various actions may be available under your state’s law: Custody suits Dependency proceedings, including state foster care cases Delinquency proceedings Declaratory judgment suits Guardianship suits Adoption proceedings Parentage suits

#ImmigrationLaw #FBA Asylum

Asylum Eligibility Requirements #ImmigrationLaw #FBA Asylum Eligibility Requirements Well-founded fear (physical harm, threats, detention, past persecution) of Persecution On account of A protected ground race, political opinion, religion, nationality, membership in a particular social group Persecutor is state actor, or state “unwilling or unable” to control private actor Cannot safely or reasonably relocate within state

Bars to Asylum One-year filing deadline Safe third country bar #ImmigrationLaw #FBA Bars to Asylum One-year filing deadline Safe third country bar Previous asylum application denial Persecutor of others Particularly serious crime / aggravated felony Serious nonpolitical crime National security Terrorism Firm resettlement

Benefits of Asylum Offers lawful status Prevents removal #ImmigrationLaw #FBA Benefits of Asylum Offers lawful status Prevents removal Employment authorization Right to travel Path to legal permanent residency

Temporary Protected Status (TPS) #ImmigrationLaw #FBA Temporary Protected Status (TPS) in addition to asylum, which is for anyone from any country who meets the criteria, there is also immigration protection from people from certain countries in particular. Immigration law provides relief for those fleeing or cannot be safely returned to their homes, not necessarily because of persecution, but rather because of ongoing armed conflict, environmental disasters, or other extraordinary circumstances. INA 244

TEMPORARY PROTECTED STATUS: Statutory authority: INA §244 Temporary protection for immigrants from certain countries: Protection from deportation Work authorization Travel authorization DHS will designate certain countries as eligible for TPS if conditions in the home country prevent that country’s nationals from returning: Ongoing armed conflict (e.g., civil war) Natural disaster (e.g., hurricane, flood, earthquake) Other extraordinary and temporary conditions [The eligibility criteria differs by country. We list the general requirements, followed by the specific country requirements.] There are important limitations to TPS. Temporary Protected Status (TPS) is not a path to residency. It is temporary protection available for people from certain countries for certain periods of time. A person granted TPS receives some protection from deportation, work authorization, and the ability to travel on advance parole. The United States government designates which countries’ nationals can apply for TPS (generally based on either civil strife or a natural disaster, such as hurricane, flood, earthquake) and for how long.  

TPS Eligibility Requirements: Citizen of a TPS designated country Entry before the specified date Continuous residence Continuous physical presence Must register during the initial registration or meet an exception (e.g. children or spouse of someone with TPS; other pending application- asylum) Must re-register during each re-registration period to maintain status Be admissible under the grounds of inadmissibility or qualify for a waiver In addition to being a national from a designated country a person must meet other requirement to qualify for TPS, which are specific to each country. Generally speaking the person must have: Entered before a specified date Have been a continuous resident in the United States since the date specified for the country; Have been continuously physically present in the United States since the most recent designation date of the country; Files during the open registration or re-registration period, or meets the requirements for late initial registration during any extension of the country’s TPS designation; Not be inadmissible or qualify for a waiver, including Have met all the requirements for TPS registration or re-registration as specified for the Country. People who receive TPS must register with the government every year. The government can deny a person TPS if the person fails to register.

TPS Eligibility by Country Each country has a separate registration period For a complete list of eligible countries visit: http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status#Countries%20Currently%20Designated%20for%20TPS. Each country has a separate registration period. See http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status#Countries%20Currently%20Designated%20for%20TPS. El Salvador entry on or before 2/13/2001 continuous residence (“CR”) since 2/13 continuous physical presence (“CPP”) since 3/9/2001 Guinea Entry on or before 11/20/14 CR since 11/20/14 CPP since 11/21/14 Haiti Entry on or before 1/12/2011 CR since 1/12 CPP since 7/23/11 Honduras entry before on or before 12/30/98 CR since 12/30/98 CPP since 1/5/99

#ImmigrationLaw #FBA DACA

DACA Eligibility Requirements #ImmigrationLaw #FBA DACA Eligibility Requirements Under the age of 31 as of June 15, 2012; (born after June 15, 1981) Came to the United States before their 16th birthday; Continuously resided in the United States since June 15, 2007, up to the present time;  Physically present in the United States on June 15, 2012, and at the time of making their request; Undocumented as of June 15, 2012 (Entered unlawfully or your lawful immigration status expired) Currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Benefits of DACA Employment Authorization #ImmigrationLaw #FBA Benefits of DACA Employment Authorization Deportation is deferred for 2 years, with possibility of renewal – but can be taken away at DHS discretion Social Security number State Driver’s License Travel outside the U.S. = possible with Advance Parole

Take Aways Don’t miss an opportunity to screen for other relief #ImmigrationLaw #FBA Take Aways Don’t miss an opportunity to screen for other relief ALWAYS screen for citizenship Don’t forget to screen for asylum! Many people are afraid to go back to their country Many forms of immigration relief are time-sensitive (e.g., SIJS, asylum, TPS) Be aware of different bars to eligibility