assisting family members through the u nonimmigrant status process september 30, 2010 presented by...

Assisting Family Members through the U Nonimmigrant

Status Process

September 30, 2010Presented by

Susan Bowyer, Jessica Farb, Sally Kinoshita,

and Catherine Ward-Seitz

(c) Immigrant Legal Resource Center 2010 1

(c) Immigrant Legal Resource Center 2010

Immigrant Legal Resource Center(ILRC)

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ILRC Attorney of the Day• Mon-Thu 10am-3pm

• Phone: (415) 255-9499 ext. 6263

• Email: [email protected]

• Fax: (415) 255-9792

• Website: www.ilrc.org

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mailto:[email protected]


ILRC Attorney of the Day

• Free Attorney of the Day– IOLTA Legal Services Programs in California– All San Francisco Bay Area Non-Profits

• Other Attorney of the Day– Hourly rate pro-rated to the minute, or– One-time consultation fee

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Helpful Listservs• VAWA Experts

– Contact [email protected]– Interactive listserv

• VAWA Updates– Contact [email protected]– Moderated updates only

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U/VAWA Hotlines• USCIS Vermont Service Center

–(802) 527-4888– [email protected] – For advocates and attorneys only– Must have a G-28 on file– When to call versus when to email

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The U Visa: Obtaining Status for Immigrant Victims of Crime

• A guide to the entire process– from eligibility screening through adjustment of status to assisting eligible family members – of a U case.

• Numerous sample materials, checklists, declarations, motions, and more.

Order at www.ilrc.org

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Agenda• Family Member Definitions

• Direct Victims vs. Indirect Victims

• Derivative Family Members– Duration of Status– Age Out Issues

• Petitioning Qualifying Family Members

• Adjustment of Status for Family Members

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Family Member Definitions

Jessica Farb,

International Institute of the Bay Area



Family Members• Spouse: U-2

• Child: U-3– Adopted children– Children out of wedlock– Stepchildren

• Sibling: U-4

• Parent: U-5– Stepparent– Parent of Married Child

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Direct vs.Indirect VictimsThey’re all principal applicants!

Sally Kinoshita,

Immigrant Legal Resource Center



Victim Definitions• 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

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Can Family Members of USC Victims be “victims?”



Direct and Indirect VictimsMust Be Helpful

• Must have some knowledge of the crime

• Cannot refuse to provide reasonably requested assistance through U status

• Ongoing responsibility to cooperate

• Those under 16 at time of criminal activity can have someone else cooperate

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Family Helping Minors• For those under 16 a parent, guardian or

next friend can be helpful

• What is a “next friend”? – Direct victim is incompetent, incapacitated or

under 16 years old– Appearing in lawsuit to act for direct victim– Definition only for providing info, not as victim

• In this case the parent, guardian or next friend does not necessarily = victim

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Derivative Family Members

Jessica Farb,

International Institute of the Bay Area



Derivative Family Members• U applicants who are 21 or over

– spouses– children

• U applicants who are under 21– spouses– children– parents – unmarried siblings under 18

• Derivative cannot have been a perpetrator

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Derivative Process: Stage 1• Form I-918 Supp A

– no filing fee

• Juvenile records

• Do they need to be helpful?

• Possible conflicts

• When and how to file (concurrently?)

• EAD

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U Nonimmigrant EAD Procedure• Principal I-918 Applicants do not need to

file separate I-765– Simply check box on I-918 – When might you file an I-765 for a principal?

• Derivative family members must file separate I-765 as category (a)(20)– Filing fee may be waived

• EAD will be valid for up to four years

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Derivative Process Stage 1 (cont’d)

• Qualifying Relationship– Birth/Marriage Certificate

• Passport

• Form I-192: Inadmissibility– Filing fee may be waived

• Signatures

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Derivative Process: Stage 2• Biometrics or fingerprints process

– RFE– email [email protected] for access to U visa

consular processing google document

• Travel

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Derivatives Duration of Status and Age Out Issues

Catherine Ward-Seitz,

Bay Area Legal Aid

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Derivative Delays and Extensions

• May need to extend status– Derivatives need 3 years too, but expire at the

same time as principal.– For derivatives abroad, 3 years starts upon

first entry with U Visa. – File I-539 90 days before status expires with

an explanation of why needed.– Can file I-765 concurrently.

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Extension of status• Initial period was less than 4 years in the

aggregate• LEA attestation• Exceptional circumstances• During the pendency of the I-485• Derivatives delayed through consular processing• Use Form I-539 to extend status (fee waiver

available)

→ Consider if the I-929 is an option

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Issues with Marriage

• When the principal marries: What happens to parents and siblings if the under-21 principal marries? (VSC has said ok)

• When the derivative marries: do they lose eligibility?– Derivative parent (no)– Derivative child (yes)– Derivative sibling (yes)

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Marriage Timing Issues• When can a derivative spouse be

included: – If marriage pre-dates I-918 filing, then eligible

for I-918A (or I-929).– If marriage post-dates I-918 filing, then only

eligible for I-929 (and must wait until AOS stage and must show extreme hardship).

– Conflict Issue – may want to do spouse’s case after principal’s approved.

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After Acquired Family Members

• Children v. Spouses:– What if give birth abroad after filing the I-918?

• I-918A or I-929

– What if marry after filing I-918?• Only I-929

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Divorce Issues

• When does divorce affect a derivative:– While I-918A still pending,– After I-918A approved,– While I-485 pending,– After I-485 approved.

• Ethics issues and conflicts:– State by state – possible conflict waiver, but

maybe best to refer both out. 28


Age out issues

• Clients with interim relief– Both parent and child – Only parent because child was abroad (?)

• Clients without interim relief– Request expediting!– Consider Derivative’s age and Principal’s age when

approaching 21!!!

• Indirect victims• Siblings

– Statutory protection29


Age Out Problem Examples• Principal applicant is over 21 and has

derivative children under 21 – request expediting because case must be approved before derivatives turn 21!

• Principal applicant is under 21 and has derivative parents – request expediting if principal might be turning 21 soon.

• What about siblings? Their age is locked in, but what about the principal’s age?

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Families and the 10,000 cap• Statutory limit on annual number of U

nonimmigrant visa/status issued – INA § 214(p)(2)

• Only applies to principals

• If cap reached, principals (and family members) placed in waitlist and issued deferred action or parole

• But watch out for age out problem if cap approaching!!

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Petitioning Qualifying Family Members

Susan Bowyer,

Immigrant Survivors’ Legal Aid


Petitioning for Qualified Family Members – Overview

• I-929 process is for family members who never had U Nonimmigrant Status

• Only for family members of U1 – principal U nonimmigrant

• Must demonstrate extreme hardship

• Doesn't convey status itself – just first step in immigrant visa process


Petitioning for a Family Member• “Qualifying family member”

– Family members of U principals only– Only family members who have never been granted U

nonimmigrant status– If the U principal is under 21 years old

• Spouse, parents, and children

– If the U principal is over 21 years old• Spouse and children

– Parent/Child relationship includes step, adopted, in or out of wedlock – special instructions

– Not Siblings (might be eligible as victims themselves)


Eligibility to Petition Family• U(1) Nonimmigrant must:

– Have adjusted already– Have a pending adjustment application– Be filing at the same time as the QFM Petition

• Family relationship must exist:– At the time U Visa holder adjusts AND– At the time QFM adjusts or consular

processes


Additional Requirements• Must prove that if QFM can't remain in or

enter the US, the U1 and/or the QFM will suffer extreme hardship.

• If the qualifying (petitioned) family member possessed information about the crime, may not unreasonably refuse to assist.

• Support for positive discretionary determination


Family Petitioning Process• Step One: Petition to Establish Eligibility

– Principal applicant files I-929 with • $215 fee or fee waiver request• evidence establishing relationship

– May be filed concurrently with the U1 Nonimmigrant's I-485 although instructions say have to have receipt notice

– Can send all in one packet

• Step Two: Application for Permanent Residence (discuss after I-929 process)


Documents for QFM Petition• Photo of QFM• Form I-929 for QFM

– Filing fee of $215 or fee waiver request• Proof of petitioner’s I-485 filing or approval• Evidence of relationship• Evidence of extreme hardship to U1 or QFM if

QFM can't stay in or enter U.S.• Evidence in support of favorable exercise of

discretion• Petitioner (U1)'s signed statement (?)

– Must include QFM's signed statement


Proof of Petitioner’s I-485 Filing or Approval

• Copy of front and back of permanent resident card; or

• Copies of passport biographic page and page showing admission as a permanent resident; or

• Other evidence of permanent resident status issued by UCSIS; or

• Copy of approval notice of I-918 and receipt notice showing I-485 has been filed

• How about concurrent filing?


Evidence of family relationship–Primary evidence such as birth

certificates, marriage certificates• Proof of divorce(s) from both spouses' prior marriage(s)

–Secondary evidence may be used• Must prove unavailability of primary evidence• Form I-929 instructions list types of acceptable

secondary evidence.

–Must be translated into English


Qualified Family Member’s Signed Statement

• Describe eligibility under all of the grounds, including:– He or she would suffer extreme hardship if not

allowed to remain in or join the U1 in the U.S.– He or she merits a favorable exercise of discretion– Either that he or she had no information about the

qualifying crime, or that having information, he or she did not unreasonably refuse to cooperate with the law enforcement agency in charge of the investigation or prosecution

• Sign it


Showing Extreme Hardship• To U1 and/or QFM• ““Must be a degree of hardship beyond that typically associated

with such a removal or refusal”• To U1 and/or QFM

– Hardship to U1 if QFM leaves/can't enter US. Consider both:• Will U1 leave US with QFM? What hardship if U1 effectively

removed?• Will U1 remain in US without QFM? What hardships living

without QFM– Hardship to QFM if he leaves/can't enter US

• If U1 leaves also• If U1 remains in US

• Any credible evidence(c) Immigrant Legal Resource Center 2010 42

Relevant Hardship Factors-Regs

• U1's lost access to US courts and justice system• Nature, extent of U1's physical or mental abuse • Likelihood that perpetrator or people acting for

him in home country would harm U1 or children• Willingness of authorities in the home country to

protect U1 and children• U1's need for social, medical, mental health/other

services• Law/social practices in home country that punish U1

or children for leaving abuser • QFM's age at entry to U.S. or adjustment application


Relevant Extreme Hardship Factors (Instructions)

• Age of U1 and QFM• Language/cultural assimilation• Health conditions• Medical treatment in home country• Ability to obtain work in home country• Relative length of US residence• Other family legally residing in U.S.• Financial impact of departure


Relevant Extreme Hardship Factors (Instructions) continued

• Disruption of education opportunities

• Psychological impact

• Political, economic conditions in home country

• Family ties (or lack) to home country

• Contributions to U.S. community

• Availability of QFM to adjust through other means [what does this mean? .. that unavailability of other option = hardship?]


Demonstrating Eligibility for Exercise of Discretion

• Probably similar to I-192 guidelines for U applicants and derivatives– If only one EWI, just include equities and

hardships in QFM's signed STATEMENT– The more adverse factors, the more equities

need to be shown• In addition to QFM's statement, include good moral

character letters, volunteer activity, certificates, etc.


Additional Extreme Hardship Documentation

• Letters and declarations from people with knowledge of community ties and potential hardships

• Evidence of family members in US – birth, marriage certificates

• Reports, declarations on adverse country conditions in home country.


Step 2: QFM's Application for Permanent Residence

• When the I-929 is approved, QFM can apply for permanent resident status

•Adjust status in the U.S. OR

•Consular process for an immigrant visa


QFM's Adjustment Application• I-485

– $1010 Fee or Fee waiver

• Copy of I-929 Approval

• May submit I-765 in C9 for employment authorization pending adjustment adjudication (only biometric fee if concurrent filing ? Aren't biometrics with I-485?)

• [Request for favorable exercise of discretion even if I-929 adjudicated it already?]


Adjustment of Status for Family Members

Sally Kinoshita,

Immigrant Legal Resource Center



Adjustment for Family • Derivative U nonimmigrants (U-2, U-3, U-4

and U-5) adjust under the same procedure as U-1 principal nonimmigrants

• Approved I-929s will adjust under INA § 245(m) also, appears they can concurrently file the I-485 with the I-929

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Where to find the law• Statutory Cites

– INA § 245(m): adjustment

• Interim Regulations – Federal Register: December 12, 2008

(Volume 73, Number 240) [Pages 75540-75564]

– 8 CFR § 245.24

• USCIS Memoranda– See www.uscis.gov or www.asistahelp.org

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http://www.uscis.gov/

http://www.asistahelp.org/


U Adjustment of StatusOverview

• INA § 245(m) is not a variation of INA § 245(a)– Restrictions under § 245(a) and § 245(c) do not apply

• Principal and derivatives must apply to adjust before U nonimmigrant status expires

• U nonimmigrant adjustment-eligible after 3 years in U status

• USCIS has sole jurisdiction– Vermont Service Center will adjudicate

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Adjustment Requirements• Lawfully admitted as U nonimmigrant • In lawful U nonimmigrant status• 3 years continuous physical presence since

grant of U nonimmigrant status• Not inadmissible under INA § 212(a)(3)(E)• Has not unreasonably refused to provide

assistance in investigation/prosecution• Justified on humanitarian grounds, to ensure

family unity, or in the public interest

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Questions and Evaluation


assisting family members through the u nonimmigrant status process september 30, 2010 presented by...

Documents

immigrant victims of

victim direct victim

family members spouse

family members of usc

eligible family members

direct vs

u visa

u case