U visas and inadmissibility issues

1. This project is supported by Grant No. 2004-WT-AX-K071 awarded by the United States Department of Justice, Office on Violence Against Women. The opinions, findings, and recommendations expressed in this document are those of the author(s) and do not necessarily reflect the views of the United States Department of Justice, Office on Violence Against Women. U visas and inadmissibility issues Presented by Gail Pendleton, Sonia Parras & Jonathan Moore

2. GOALS • POTENTIAL CHALLENGES AND HOW TO ADDRESS THEM • KNOW WHEN YOUR CLIENT NEEDS THE I-192 • HOW TO PREPARE THE PACKAGE ON U VISA CASES

3. Inadmissibility grounds - INA § 212(a) • Health-related • Criminal-related • Security and related • Public charge • Labor certification and special qualifications • Illegal entrants, misrepresentation, document fraud • Documentation requirements • Prior removals, unlawful presence • Miscellaneous (polygamists, international child abduction, unlawful voters, for ex.)

4. The basics • Grounds of inadmissibility in immigration law apply to anyone requesting admission into the country • Admission- no literal meaning • If any of these grounds apply, the applicant must file an I-192 waiver. • Until the alien turns 18, no unlawful presence is counted

5. Cont. • Grounds of inadmissibility can be found in the Immigration and Nationality Act (INA) section 212(a). • The statutory and regulatory basis and relevant provisions for the I-192 form can be found in • INA section 212(d)(3)(A)(ii) • Title 8 Code of Federal Regulations (CFR), part 212.4(b); • INA section 212(d)(14), • and 8 CFR 212.16 and 17, and 8 CFR 214.11 • and 214.14

6. Flagging inadmissibility • What do you ask to ferret out problems? • What are most common problems?

7. The analysis • Does the ground apply to my client? • Do the facts of my client’s case establish each of the elements of the ground? • Even if the ground applies and the elements are established, is there a waiver?

8. Questions to ask You suffer from a communicable disease You are not able to show USCIS that you have been vaccinated against communicable diseases You have a behavior related to mental or physical disorder which may pose a danger to yourself or others or are likely to have such a behavior in the future. • You are addicted to, or abuse drugs. • You have, in any way, helped to bring non-citizens illegally into the U.S. • You have given false information to gain an immigration benefit or have used false documents such as a false green card or visa. • You falsely claimed to be a U.S. citizen knowing it was not true. • You entered the United States illegally. • You have been in the United States illegally for more than 180 days. • You are likely to become primarily dependent on welfare or other public benefits in the U.S. • You have been arrested (including by immigration authorities) • You have been deported or removed from the U.S., or ordered deported or removed • You have been convicted of a crime. • You have engaged in prostitution within the last ten years. • You are a member or former member of the Communist party or other Totalitarian party. • You participated in the persecution of others on the count of race, religion, national origin, or political opinion.

9. Common inadmissibility problems • Entries and exits • Manner of entry • Encounters with DHS

10. Cont- • Fraud • Public charge • Crimes

11. Obtaining FBI Criminal Record of Client. • full name; (2) date and place of birth; (3) a set of fingerprints (4) an $18 fee (certified check or money order payable to the “U.S. Treasury”) • This information should be sent to: Attn: Special Correspondence Unit Federal Bureau of Investigation Criminal Justice Identification Services United States Department of Justice 1000 Custer Hollow RoadClarksberg, West Virginia 2630

12. FREEDOM OF INFORMATION ACT • The best way to get current information about FOIA procedures • http://uscis.gov/graphics/aboutus/foia/request.htm • Determining Your Client's Immigration History, Asista News (Dec. 2005/Jan. 2006)

13. REMOVAL HISTORY • EOIR: • 1-800-898-7180 • Will need A# of your client • Press 1, enter A#

14. So, your client is inadmissible…

15. What the I-192 does for your client? • It allows inadmissible non-immigrant applicants to apply for advance permission to enter the United States temporarily

16. The basics • For an alien who is otherwise not permitted to enter the United States to apply for permission to temporarily enter the United States • Size 2 Pages + Instructions-Filing Fee $545- may be waived • Edition Date 01/15/2009, Previous editions not accepted 7/30/07 edition will be accepted through 2/20/09 only • Where to File USCIS Local Office with jurisdiction over the port of entry where the alien will enter the United States. For U visas Vermont Service Center • The recent trend seems to be that applications filed with the I-192 have a better chance of faster adjudication than those filed without the I-192.

17. KEY ISSUES FOR CIS TO CONSIDER THE WAIVER 1. “ Favorable vs. Unfavorable factors” 2. The “ National and public interest” 3. Violent acts require extraordinary circumstances • If convicted of crimes: • Name of the crime • Explain date & place of commission of EACH crime • final disposition & court that issued sentence • Rehabilitation and positive factors

18. General Factors to consider; National and public interest • Denying U visas because of certain grounds of inadmissibility undermines congress intent to protect vulnerable victims • Victims will not be willing to report crimes for fear of deportation. • Wrong message sent to victims that gather the courage to report or assist in investigation of crimes • Diminishes the capacity of law enforcement for community policing • Some applicants may still be assisting the prosecution or with the investigation and they may be needed in the future as well • SEE CHART

19. Additional factors and arguments EXTREME HARDHIP FACTORS * The nature and extent of the physical or psychological consequences of abuse; • The impact of loss of access to the United States courts and criminal justice system (including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations and prosecutions, and family law proceedings or court orders regarding child support, maintenance, child custody, and visitation); • The likelihood that the batterer's family, friends, or others acting on behalf of the batterer in the home country would physically or psychologically harm the applicant or the applicant's child(ren);

20. Additional factors and arguments • 4) The applicant's needs and/or needs of the applicant's child(ren) for social, medical, mental health or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country; • (5) The existence of laws and social practices in the home country that punish the applicant or the applicant's child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household; and • (6) The abuser's ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant and/or the applicant's children from future abuse. 8 C.F.R § 1240.58(c). Note that the usual factors considered for extreme hardship, see 8 C.F.R. § 1240.59(b) are not generally helpful for victims of crimes. .

21. Requirements • Biographic information • Filing fee or fee waiver • Fingerprints • CAREFUL WITH CONVICTIONS

22. More on the I-192 • Approved only until the date stated on approval- for U visas 4 years • It can be revoked • The grounds of inadmissibility disclosed and listed on the form are the only ones waived. Therefore, if not disclosed= not waived!

23. THE FORM…. WRITE IN BIG RED LETTERS 212 d 14 AND CROSS OUT 212 d 3

24. Putting it all together… • Cover letter with your argument • G-28 • Form I-192 • Fee or Fee waiver • Show economic need • Biographic info – birth certificate/passport • Any evidence of positive factors to overcome inadmissibility grounds stated • Letters from witnesses re: rehabilitation, fear of persecution by abuser or retaliation by perpetrators, personal statement, etc

25. Thank you More information is available at www.asistahelp.org OR, contact us at questions@asistahelp.org