Immigration Options for Abused Immigrant Seniors

1. Immigration Options for Abused Immigrant Seniors Sally Kinoshita Immigrant Legal Resource Center (415) 255-9499 ext. 546 sally@ilrc.org

2. VAWA Resources • Immigrant Legal Resource Center • www.ilrc.org • Attorney of the Day • (415) 255-9499 ext. 6263 • aod@ilrc.org • ASISTA Technical Assistance Project • www.asistaonline.org • National Immigration Project of the National Lawyers Guild • www.nationalimmigrationproject.org

3. Immigration Law Overview • Federal Immigration Law found at 8 U.S.C. (Immigration and Nationality Act – INA) • Interpreted in federal regulations at 8 C.F.R. (DOJ/INS/DHS) • CIS policy guidance (www.uscis.gov)

4. Violence Against Women Act Allows the abused spouses and children of lawful permanent residents and U.S. citizens and the abused parents of U.S. citizen sons and daughters to obtain their own immigration status

5. What is a U.S. Citizen? • Born on U.S. soil • Born abroad to a U.S. citizen • Naturalized U.S. citizen • Automatically became U.S. citizen when parent or parents naturalized  Not subject to deportation

6. What is lawful permanent residency? • Also called LPR status, green card holder • Permanent right to live and work legally in the U.S. and to travel • Lasts throughout life, unless become deportable for crime or other reason • Can apply for U.S. citizenship after 3 or 5 years of LPR status

7. Who else is here legally? • People on “non-immigrant” visas • Temporary • Do not necessarily lead to lawful permanent residency • For specific time period and/or purposes • Examples include work visas, tourists/visitor visas, student visa, etc.

8. What does it mean to be undocumented? • Entered on visa that expired or entered without inspection • Cannot work lawfully, cannot receive most public benefits • Can be deported if found by the DHS

9. Overview of Family-based Immigration

10. Family Visa Process is a Two-Step Process • First step: File petition for family member • Second step: Apply to immigrate either in the U.S. through adjustment of status or at a U.S. consulate in home country through consular processing • Inadmissibility issues • Waiting times

11. Red Flags: Inadmissibility Grounds • Include: • Misrepresentation/fraud for immigration benefit • Unlawful presence • False claim to US citizenship for any benefit • Certain communicable diseases • Criminal convictions • Prostitution

12. Who Can Petition Whom?

13. USCs can petition:  Spouses  Children (under 21 and unmarried) • Sons and Daughter (over 21 and/or married)  Parents (if USC if over 21) • Siblings (if USC is over 21)

14. LPRs can petition:  Spouses  Children (under 21 and unmarried) • Unmarried Sons (over 21) • Unmarried Daughters (over 21)

15. PETITIONER Initiates Process Controls Petition Can Withdraw Petition BENEFICIARY No Control Subject to Bars of Admission If Married to LPR or Child of LPR then Subject to Quotas System Family Relative Petitions

16. Violence Again Women Act (VAWA)

17. Benefits Under VAWA • Allows spouses and children of U.S. citizens and LPRs and parents of U.S. citizens to apply for LPR status without the abuser’s assistance or knowledge • Allows the self-petitioner to receive more public benefits

18. Benefits Under VAWA • Allows the self-petitioner to gain work authorization • Waives certain grounds of inadmissibility • Allows the self-petitioner to secure legal status for her minor children

19. Who qualifies for VAWA Self-Petitioning? • Abused spouse of USC or LPR • Non-abused spouse of USC or LPR whose child has been abused by the USC or LPR spouse, even if the child is not related to the abuser • Abused child of USC or LPR • Abused parent of USC son or daughter (over 21 years old)

20. Self-Petition Requirements • Spouse or child of a USC or LPR, or Parent of USC son or daughter • Good faith marriage • Battery or Extreme Cruelty by USC or LPR • Abuser has or had USC or LPR status • Residence with the abuser • Good moral character

21. Documenting the Self-Petition • Any credible evidence standard • Try to obtain primary source documents • If using secondary documents, explain attempts to obtain primary source documents

22. Who is a “spouse”? • Legally valid marriage in the location in which it took place • Common law marriages do not count in California • Previous marriages terminated • Bona fide marriage/good faith marriage

23. Former spouses If the marriage ended within two years of applying and there was a connection between the abuse and the termination of marriage, the former spouse can still qualify under VAWA – see CIS memo

24. “Intended spouses” Where someone believed she was legally married because a marriage ceremony was performed but the marriage was not valid due to the abuser’s bigamy, she can still qualify as an “intended spouse” under VAWA

25. Evidence of Marriage • Civil marriage certificate • Religious marriage certificate • If no marriage certificate is available, affidavits of witnesses or any other form of proof of marriage (i.e. photos) • Evidence of termination of all previous marriages • For intended spouses, the self-petitioner may simply state why he/she believed the abuser was free to marry (+ evidence of marriage ceremony)

26. Evidence of Marriage(continued) • If the marriage has been terminated, evidence of the termination • Divorce certificate • Annulment • Death certificate (ONLY is USC spouse)  Plus evidence of connection to abuse

27. Good Faith Marriage • The test is the intent to establish a life together at the time of marriage • The primary purpose must not have been to gain legal status in the United States

28. Good Faith Marriage Green Card The Movie

29. Wedding pictures and other records of ceremony Photos, letters, phone bills, other evidence of courtship Lease, utility bills, other records showing lived together Birth certificates of children Joint credit cards, bank accounts, tax returns Insurance provided by one spouse to other listing spouse as beneficiary Self-petitioners’ detailed declaration Other credible evidence Evidence of Good Faith Marriage

30. Who is a “child”? • Unmarried and under 21 • CIS recognizes parent-child relationship • Stepchild: child under 18 when the marriage occurred • Adopted child: under 16 years old and two years legal and physical custody • Exception for abused children • Child born out of wedlock • Legitimated and/or bona fide relationship

31. Parents of US Citizens • Abused parents can self-petition if • Abuser is a U.S. citizen (not LPR) • Abuser is over 21 years old • Can show the parent-son/daughter relationship • Can otherwise meet same VAWA self-petitioning requirements

32. Battery or Extreme Cruelty • Must be perpetrated by USC or LPR spouse or parent • To self or child (if spouse) • For a spouse (who was not abused) to qualify because of abuse to child, the child must be under 21, unmarried • Abuse must have occurred during the marriage

33. Battery or Extreme Cruelty • No exhaustive list of acts constituting abuse • Abuse need not be physical

34. Acts or threatened acts of violence Emotional abuse Psychological abuse, denigration Sexual abuse Using citizenship or residency privilege Economic abuse, such as not allowing spouse to work Social isolation Accusations of infidelity Possessiveness Minimizing, denying and blaming What is extreme cruelty?

35. Objective Factors Subjective Factors How to Show Extreme Cruelty?

36. Self-petitioner’s own detailed declaration Affidavits of witnesses Police reports Shelter reports School or church records Psychiatric evaluations Medical records Court records, protective orders Photographs Objective/subjective facts for extreme cruelty Any other credible evidence (may include affidavits) Evidence of Abuse

37. The Importance of Credible Evidence (And Corroborating Evidence!)

38. Status of the Abuser • U.S. Citizens • Lawful Permanent Residents  Petitions previously filed by abuser 

39. Status of the Abuser • Birth certificate, if born in the United States • Copy of naturalization certificate or greencard • USCIS will attempt to verify status if the naturalization certificate number or alien registration number are provided for the abuser. • Other credible evidence (may include hospital birth certificates, baptismal certificates, affidavits, marriage licenses, and marriage license applications, etc.)

40. Status of the abuser If the abuser had legal status but lost it (through deportation, removal or denaturalization) within the past two years due to an incident of domestic violence, then the spouse or child self-petitioner can still apply

41. Residence Requirements Residence with the abuser: Self-petitioner must have lived with the abuser at some time; for children, any period of visitation will count Residence in the United States: Current residence in the United States -OR- residence abroad, if abuser employee of U.S. Government or member of U.S. Armed Forces or some abuse occurred in the United States

42. Documents listing both spouses at same address: children’s school records, bills, bank acct statements, leases, property deeds Self-petitioner’s detailed declaration Two or more documents, each showing one spouse’s name, but bearing the same address -- example, letters or other mailings Any credible evidence (including affidavits) Evidence of residence with abuser

43. Employment records Children’s school records Lease with self-petitioner’s name Rent receipts Utility or other bills Car registration Cards or letters addressed to self-petitioner in the U.S. Witness, neighbors, etc. statements Self-petitioner’s detailed declaration Any credible evidence Evidence of residence in the U.S.

44. Good Moral Character • Children under 14 presumed to be of GMC • Must be established for 3 years preceding the self-petition • Must submit local police clearance letter or state criminal check from each place the self-petitioner has resided for 6 months of more during the last 3 years

45. VAWA Children’s Issues • A self-petitioning spouse can obtain legal status for her children simply by including them on her application (“derivatives”) • Self-petitioning children and derivative children do not “age out” as long as self-petition filed while unmarried and under 21

46. Final Family Issue Approved VAWA self-petitioners, including their derivatives, may never file an immigration petition for the abuser upon which the VAWA self-petition was based

47. Overview of the VAWA Self-Petitioning Process

48. Form I-360 • Downloadable from CIS website • Cautions regarding form instructions • Stated fee may not be current (there is currently NO fee for the VAWA I-360) • Requirements for eligibility may be more restrictive than those mentioned above. There may have been statutory, regulatory or policy changes since printing.

49. Where to file the I-360 • Centralized adjudications USCIS Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479 Print “VAWA” in red block letters at the top of the I-360 and the cover letter

50. CIS Review of VAWA cases • All VAWA self-petitions are filed to one central location – the Vermont Service Center (VSC) – regardless of self-petitioner’s residence • CIS adjudicators at VSC are specially-trained in domestic violence to review VAWA cases