VAWA Pro Bono Training

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. IntroductionVAWA = 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 (“greencard,” “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 (“greencard”) 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. Preference Immigrants 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

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

19. Visa Bulletin – April 2005

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 • File VAWA petition to VAWA Unit housed in Vermont Service Center decides all VAWAs nationwide trained in dynamics of DV • 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 • Noncitizen marries USC or LPR • USC or LPR abuses her or her/their child • Abuser refuses to file petition, or threatens to withdraw petition, divorce her, or not attend her green card interview • Abused spouse/child feels trapped • Then learns of rights and files VAWA petition • VAWA approved and Deferred Action granted: > work permit and low risk of deportation • Abused spouse/child eventually become LPRs with no reliance on abuser

31. VAWA Requirements • Spouse, child, or stepchild of USC or LPR via legally valid marriage • Good moral character • Married in “good faith” • Past or present residence with abuser • 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 • Legally valid marriage to USC or LPR, child of USC or LPR, or stepchild of legally valid marriage • Good moral character • Married in good faith • Resided with abuser • 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 CaseComplete 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 1st met, courtship, wedding, marriage, children if any • When abuse began, details of 1st + 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