Applying for Immigration
Benefits Under VAWA
CORT First Friday Webinar
April 3, 2009
Susan E. Reed
Immigration Law Support Attorney, MPLP
[email protected]
CORT First Friday Webinar:
VAWA Self-petitions
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What this one-hour training will
cover:
• How to identify clients who are eligible to file
self-petitions with United States Citizenship and
Immigration Services under provisions of the
Violence Against Women Act (VAWA)
• How to prepare and file VAWA self-petitions
• How to identify clients who may be eligible to
simultaneously file for “adjustment” to Lawful
Permanent Resident (LPR) status with their
VAWA self-petitions
CORT First Friday Webinar:
VAWA Self-petitions
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What this one-hour training will not
cover:
• How to fully assess eligibility for “adjustment” to LPR
status and prepare adjustment applications (e.g. We will
not cover grounds of inadmissibility and the range of
VAWA-based exceptions and waivers to some of those
grounds)
• How to seek VAWA “Cancellation of Removal” for
immigrant survivors of domestic violence in removal
proceedings in Immigration Court
• How to seek a VAWA-based battered spouse waiver of
the Joint Petition for Removal of Conditional Residence
• Forms of relief for clients who do not qualify for VAWA
relief, such as U visas for victims of serious crimes, or T
visas for victims of human trafficking, or Special
Immigrant Juvenile Status for abused children who are
wards of state courts
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VAWA Self-petitions
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Who is eligible to file a VAWA selfpetition? INA 204(a)(1)(A)
1)
2)
3)
4)
An abused spouse of a USC or LPR
An abused child of a USC or LPR (a “child” is defined
as unmarried and under 21 years of age
A non-abused spouse of a USC or LPR whose child is
abused by the USC or LPR spouse
An abused parent of a USC son or daughter (a “son”
or “daughter” is defined as being 21 years or older)
Note: A non abused child of an abused spouse or child
qualifies for VAWA if s/he is listed on the abused
spouse or child’s self-petition
CORT First Friday Webinar:
VAWA Self-petitions
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I’m an overwhelmed legal services family
law attorney -- why should I understand the
VAWA self-petitioning process?
•
VAWA cases are relatively
easy and very rewarding considering
the great benefit to the client.
•
Immigration legal services
resources are extremely
scarce in most areas
•
Your client’s immigration
status is probably her top priority.
•
Your opposing party may try
to exploit your/your client’s lack of
knowledge of the immigration system:
You will be in a position to be
as proactive as possible and shake off
scare tactics.
•
You will be better able to effectively
recruit pro bono attorneys to assist
with VAWA self-petitions if you
understand them yourself.
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VAWA Self-petitions
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Overview of self-petitioning requirements:
INA 204(a)(1)(A) and (B)
1) Marriage: The self-petitioner’s spouse abused
the self-petitioner (or her child) during the
marriage (in the case of a child or parent selfpetitioner, the abuse could have happened at
any time).
Note: the self-petitioner does not have to be
married to the abuser at the time of filing the
petition, if the marriage ended because of the
abuse within two years of the filing of the
petition.
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VAWA Self-petitions
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Overview of self-petitioning requirements:
INA 204(a)(1)(A) and (B) (continued):
2)
Battery or Extreme Cruelty: The self-petitioner was
subjected to battery or extreme cruelty by the USC or
LPR spouse or parent or the USC son or daughter.
Battery or extreme cruelty include the following:
•
•
•
Threatening to beat or terrorize her
Hitting, punching, slapping, kicking, or hurting her in any way
Emotionally abusing her, such as insulting her or calling her names at home or in
public
Forcing her to have sex when she does not want to
Threatening deportation, threatening to take children, threatening to hurt children
Controlling her movements, isolating her from peers or family
Forcibly detaining her in the home
Engaging in a pattern of behavior that would not appear abusive if the acts were
considered individually
•
•
•
•
•
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VAWA Self-petitions
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Overview of self-petitioning requirements:
INA 204(a)(1)(A) and (B) (continued):
3) Co-habitation: The self-petitioner lived with the
abuser at some time. They do not have to be
living together when the self-petition is
submitted, but they can be.
4) Residence in the U.S.: With some exceptions,
the self-petitioner must currently be living in the
U.S.
5) Good faith marriage
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VAWA Self-petitions
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Overview of self-petitioning requirements:
INA 204(a)(1)(A) and (B) (continued):
6)
7)
Good moral character: The self-petitioner must have
good moral character as defined in the immigration
law. (She must not have committed certain crimes or
immigration offenses. See USCIS Memo:
http://www.uscis.gov/files/pressrelease/GMC_011905.
pdf You will need to provide police clearances. Use
ICHAT for Michigan clients:
http://apps.michigan.gov/ichat/home.aspx
Abuser’s status: The abuser must be a USC or LPR.
However, if the abuser was deported due to an
incident of domestic violence, the abused spouse or
child may self-petition within two years of the
deportation.
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VAWA Self-petitions
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Self-petitioning: The process
1) Filing the I-360: The self-petition is filed with a
specially-designated USCIS VAWA Unit at the
Vermont Service Center with documentation to
prove how the self-petitioner meets each of
elements. It is possible for USCIS to correspond
exclusively with a representative so that the
abuser does not find out she has filed an I-360.
Representatives enter an appearance by filing
Form G-28. There is no fee for self-petitioners.
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VAWA Self-petitions
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Self-petitioning: the process
(continued) Filing the I-360:
All immigration forms are available for free at:
http://www.uscis.gov/portal/site/uscis
The I-360 is available at: http://www.uscis.gov/files/form/i360.pdf
Representatives enter appearances by filing Form G-28:
http://www.uscis.gov/files/form/g-28.pdf
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VAWA Self-petitions
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Self-petitioning: the process
(continued) Filing the I-360:
Evidence to establish the elements: any credible evidence
may be considered by USCIS. Generally, the more
evidence available for each category, the better. The
client’s own declaration will be the central piece of
evidence in most cases. It may be advisable in some
cases to file a “skeletal” petition and then supplement it
with additional evidence. (E.g. when abuser is making
credible threats to turn self-petitioner in to Immigration
and Customs Enforcement (ICE) and case appears
strong.
See Checklists
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VAWA Self-petitions
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Self-petitioning: the process
(continued)
2) If the self-petition is apparently
approvable, USCIS will send a “Notice of
Prima Facie Eligibility” within a few
months. The self-petitioner may use this
notice as evidence of “qualified alien”
status to obtain some public benefits,
however, in Michigan, the self-petitioner
generally will not qualify for benefits unless
she entered the U.S. before August 22,
1996.
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VAWA Self-petitions
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Self-petitioning: the process
(continued)
3) If USCIS approves the self-petition, they will
send the self-petitioner an approval notice and
a Notice of Deferred Action. The approved
self-petitioner can apply for work authorization
from USCIS at this time by filing Form I-765.
4) The approved self-petitioner may apply to
“adjust status” to LPR status when an
immigrant visa becomes available for her.
Typically, this will be an immediate option for
the spouses, children, and parents of USCs.
For the spouses of LPRs, this may be several
years.
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VAWA Self-petitions
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How do we know if a visa is
available?
• Check the visa bulletin, available at:
http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
• While she waits for eligibility for adjustment, a self
petitioner will have to file a new I-765 each year and
request a renewal of her deferred action status.
• If a self-petitioner’s abuser filed a family based petition
for her in the past (Form I-130), she might be eligible to
“recapture” the priority date from that petition. 8 C.F.R.
204.2(h)(2). This could reduce her “wait in line” for
adjustment of status by several years.
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VAWA Self-petitions
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Special considerations regarding adjustment of
status for immediate relatives :
• Under the immigration law, the spouses, parents and
children of USCs are considered “immediate relatives”
and do not have to wait for visas to be available to adjust
status to LPR
• A VAWA self-petitioner who is an immediate relative may
file an I-485 Application for Adjustment of Status to LPR
concurrently with her I-360 self petition
– The “upside” of this approach is that she will receive her
employment authorization document within 90 days of filing
– The downside is that, if the self-petitioner is ineligible for
adjustment of status because she has trigged a ground of
inadmissibility at INA 212, and the inadmissibility cannot be
waived, she will be placed in removal (deportation proceedings)
– When an I-360 is filed alone and it is denied, the self-petitioner is
not placed in removal proceedings
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VAWA Self-petitions
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Inadmissibility Red Flags (do not file for
adjustment without expert mentoring):
• Past behavior related to mental or physical disorder
which may pose a danger to self or others
• Past drug abuse or addiction
• Assistance to others in entering U.S. illegally
• Past false claims to U.S. Citizenship (even oral) or use of
false documentation in order to gain an immigration
benefit (including entry)
• Past arrests, including arrests by immigration authorities
• Past convictions, even if they have been expunged
• Participation in prostitution
• Membership in the Communist party, involvement with
terrorist groups
• Participation in persecution of others
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VAWA Self-petitions
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Important Resources:
• USCIS VAWA Helpline -- for inquires from
representatives regarding pending cases:
1-(802) 527-4888
• ASISTA Online: http://asistahelp.org/
• The VAWA Manual, 2008: Immigrant Legal
Resource Center, www.ilrc.org
• Michigan Immigrant Rights Project:
http://mirp.mplp.org Please contact us if you
need assistance placing a VAWA petition with a
pro bono attorney.
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VAWA Self-petitions
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