ASISTA

VAWA

Overview

  William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
This is an excerpt from the Wilberforce Trafficking Victims Protection Reauthorization Act detailing extensions and exceptions for victims and U and T visa holders.
  VAWA 2005: ANALYSIS AND PRACTICE POINTERS
Summary and Practice Pointers for the 2005 changes to VAWA
  VAWA 2005 Information Sheet in Spanish
by Joanne Lin and Leslye Orloff re: changes in VAWA 2005 In Spanish
  Extreme Hardship and Documentary Requirements involving Battered Spouses and Children
This memo offers guidelines and clarifications on matting the "extreme hardship", "battered or subjected to extreme cruelty" and "credible evidence" under VAWA.
  USCIS Fact Sheet on VAWA Self-Petitioners
This fact sheet clarifies the 2008 decision allowing self-petitioners who were formerly denied Adjustment of Status (because of illegal entry or entry without inspection) to file a Motion to Reopen.
 

Legislation and Statutes

  VAWA 2005: H.R. 3402 with Senate Amendments
Should be read with full Statute.
  8 USC 1367
Link to the Government Printing Office page with 8 USC 1367 relating to penalties for disclosure of information relating to battered or abused immigrants as well as use of information obtained from batterers and their families.
  Immigration and Nationality Act
Link to USCIS page with the Immigration and Nationality Act
  Legislative History: Congressional Record
  "Matter of T"- deportation proceedings
Where evidence of fraud of marriage to a U.S. citizen was found insufficient to support respondent's deportation under section 241(c) of the Immigration and Nationality Act, deportation on invalid visa charge under section 241(a)(1) is also precluded when predicated upon same evidence of fraudulent marriage. Act of 1952-Section 241(a)(1) [8 U.S.C. 1251 (a)]-Inadmissible at time of entry, not nonquota immigrant.
 

Regulations

  VAWA Regulations Preamble
  Challenging violations of confidentiality and prohibitions against using information from abusers/perpetrators
This document details confidentiality provisions according to the DHS, as well as contact information to report a violation of VAWA confidentiality.
 

Memos and Agency Decisions

  Requests for Evidence and Notices of Intent to Deny (June 3, 2013)
The purpose of this policy memorandum (PM) is to clarify the role of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) in the adjudication of petitions, applications, and other requests. It revises Chapter 10.5(a) of the Adjudicator’s Field Manual (AFM) – AFM Update AD12-04.
  Comments on USCIS VAWA EAD Guidance (January 10, 2013)
  VAWA EAD Draft Memo (December 12, 2012)
This policy memorandum (PM) provides guidance to U.S. Citizenship and Immigration Services (USCIS) officers regarding an amendment to the Immigration and Nationality Act (INA or the "Act") that provides eligibility for employment authorization to the beneficiary of an approved VAWA self-petition. This PM revises Adjudicator's Field Manual (AFM) Chapters 21.14(l) and 30.13 (AFM Update AD07-16) Additionally, this PM provides guidance to USCIS officers regarding an amendment to the Act that provides eligibility for employment authorization to battered spouses of certain nonimmigrants. The guidance contained in this PM will become effective, in advance of regulatory amendments, once the new information collection is approved by the Office of Management and Budget.
  AAO approves VAWA petition filed by 24 year old applicant (July 24, 2012)
In this decision, the Administrative Appeals Office determined that being under an abusive parent's control qualified as "one central reason for the filing delay" under INA 204(a)(1)(D)(v) and therefore excuses the failure to file an I-360 self petition before the applicant's 21st birthday.
  Continued Eligibility to File for Child VAWA Self-Petitioners After Attaining Age 21 (September 6, 2011)
CIS guidance on VAWA self-petitions for "children" who file between age 21 and 25.
  Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen (Aug. 31, 2011)
This policy memo details the revisions to the Adjudicator’s Field Manual (AFM) Chapter 21.15 (AFM Update AD 06-32).
  USCIS memo Revocation of VAWA-Based Self-Petitions (Forms I-360) (December 15, 2010)
This Policy Memorandum (PM) restates the Violence Against Women Act (VAWA) revocation policy.
  Adjudicating Forms 1-212 for Aliens Inadmissible Under Section 2l2(a)(9)(C) or Subject to Reinstatement Under Section 241 (a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS 508 F.3d. 1227(9th Circuit 2007) (Issued May 19, 2009)
This May 19, 2009 memo offers information regarding Reapplication of Admission and Adjustment of Status after a prior Removal Order or inadmissibility under section 212(a)(9)(C)(i)(II).
  Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) (May 6, 2009)
This memo details USCIS revisions and regulations on unlawful presence and inadmissibility under section 212(a)(9)(B) or (C).
  Revised Guidance for the Child Status Protection Act (CSPA) (May 6, 2008)
This guidance significantly modifies a prior interpretation of certain provisions of the CSPA. In particular, it changes how the agency interprets the statute to apply to aliens who aged out prior to the enactment date of the CSPA. It also permits those individuals who were ineligible under the prior policy to file a new application for permanent residence. Under certain circumstances, this guidance also permits those individuals who were previously denied for CSPA to file motions to reopen or reconsider without filing fee. It also explains what steps certain aliens who do not automatically benefit from the CSPA can take to protect their status as a child.
  Adjustment of status for VAWA self-petitioner who is present without inspection (Apr. 11, 2008)
This memo offers information on the policy allowing adjustment of status to VAWA petitioners who do not have “inspection and admission or parole” status.
  Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005 (Jan. 22, 2007)
ICE memo focusing on confidentiality, determining admissibility or deportability solely by information from people involved in the battery or extreme cruelty, etc.
  Disposition of Cases Involving Removable Aliens (July 11, 2006)
USCIS regulations on removal proceedings, including information on when and whether USCIS or ICE will issue Notices to Appear, under what circumstances or cases, and how those cases will be processed.
  CIS Policy Memorandum RE: Disposition of Cases Involving Removable Aliens (July 11, 2006)
This is one of several memoranda discussing CIS discretion to not place noncitizens in proceedings in certain circumstances, including vawa (p 2) (but read the whole memo).
  Legal and Discretionary Analysis for Adjudication (May 3, 2006)
Reminder for USCIS adjudicators to follow the typical approach of law enforcement checks, legal analysis, waivers, with special attention to discretionary analysis.
  Eligibility to Self-Petition as a Battered Spouse or Child of a U.S. Citizen or Lawful Permanent Resident Within Two Years of the Abuser’s Loss of Status (Oct. 31, 2005)
This is an amendment allowing self-petitioning eligibility for spouses and children of abusive U.S. Citizens or Legal Permanent Residents if the abuser lost his or her status “related to” or “due to” domestic violence during the two-year period immediately preceding the petition.
  Clarification of Classes of Aliens Eligible for Naturalization under Section 319(a) of the INA as amended by the VTVPA (Jan. 27, 2005)
Clarification that individuals who obtained lawful permanent residence by an approved waiver of the joint filing requirement under section 216(c)(4)(C) of the INA are also eligible for naturalization under section 319(a).
  Determinations of Good Moral Character in VAWA-Based Self-Petitions (Jan. 19, 2005)
This memorandum on good moral character should be read along with its two attachments and accompanying notes, and the ASISTA newsletter article on good moral character.
  Attachment 2 to previous Memo: Authorities Affecting False Testimony Determinations (January 2005)
This second attachment to the good moral character memo discusses the standards for the good moral character bar based on false testimony. Please note that the only false USC claim that IS a bar to GMC is a false claim to vote. General false claims to USC are NOT a GMC bar but implicate the "residual" GMC category. CIS agrees with this approach, so to the degree that this memo implies otherwise, it is legally inaccurate.
  Attachment 1 to previous Memo: Waivable Conduct Contained in the Statutory Bars to Establishing Good Moral Character (January 2005)
This first attachment to the good moral character memo provides a chart of various statutory bars to establishing good moral character and whether they are “waivable” for pruposes of overcoming good moral character problems for VAWA self-petitioners. CIS has acknowledged that its reference to 212(a)(9)(A) is no longer statutorily accurate; that bar applies to bigamy at 212(a)(10), not prior removals at (9)(A).
  Age-Out Protections Afforded Battered Children Pursuant to The Child Status Protection Act and the Trafficking and Violence Protection Act (August 17, 2004)
The purpose of this memorandum is to provide guidance to U.S. Citizenship and Immigration Services (CIS) personnel concerning these two laws.
  Revocation of VAWA-Based Self-Petitions (I-360s) (Aug. 5, 2002)
Prohibits local CIS offices from readjudicating self-petitions. Useful tool for educating local offices about their role in adjusting self-petitioners.
  DOJ and INS Memo on Unlawful Presence and Authorized Periods of Stay (June 12, 2002)
This memo provides a list of situations in which a person would qualify for an authorized period of stay, temporary protected status (TPS), or deferred enforced departure (DED).
  Eligibility to Self-Petition as a Battered Spouse of a U.S. Citizen or Lawful Permanent Resident within Two Years of Divorce (Jan. 2, 2002)
This is an amendment allowing eligibility to self-petition as a battered spouse or former battered spouse under VAWA, as long as the divorce was filed in the two-year period immediately preceding the VAWA self petition.
  Memorandum on Any Credible Evidence Standard (and Extreme Hardship) to Terrance O’Reilly, Director, Administrative Appeals Office (Oct. 16, 1998), reprinted in 76 (4) Interpreter Releases 162 (Jan. 25, 1999)
This old memo has excellent language near the end on the "any credible evidence" standard -- "Documentary Requirements" -- and why it exists. The discussion of "extreme hardship" is no longer relevant to VAWA self-petitions but may be helpful to those seeking VAWA cancellation, where that requirement still exists.
  Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA §384 (May 12, 1997)
Memo from Paul Virtue, in May, 1997, regarding privacy and use of information from abusers.
  Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues (May 6, 1997)
Some of this second INS memo on self-petitioning has been supplanted by subsequent statutory changes, but the sections on what CIS districts are supposed to do (p. 6-7) and the prima facie/public benefit system (p. 4-5 and attachments) are still valid and helpful .
  Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA section 382 (May 5, 1997)
Details what kind of information is categorized as non-disclosure information, specifically relating to INS employees.
  Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents (Apr. 16, 1996)
This is the first government memo on self-petitioning, so changes in the law may have affected some of it, but the information on annulments (p. 6) and transferring previous priority dates (p. 2) is still valid and helpful.
  Genco Opinion (June 4, 1993)
Whether a K-1 nonimmigrant is eligible for adjustment of status more than two years after marriage to the petitioner.
 

Forms and Instructions

  I-360 Form
Form for Self-Petitioner
  Instructions for I-360
  I-751 Form
Form for removal of conditions for conditional resident.
  Instructions for I-751
  I-485 Form
Application to Adjust Status
  Instructions for I-485
  I-765 Form
Application for work permit
  Instructions for I-765
  I-212 Form
Application to reapply for admission after deportation or removal
  I-212 Instructions
  I-601 Form
Application for waiver of Grounds of Inadmissibility
  Instructions for I-601
  I-912 Form
Fee waiver request
  Instructions for I-912
  I-918 Form
Petition for U Nonimmigrant Status
  Instructions for I-918 and I-918 A
  I-918 A Form
Petition for Qualifying Family Member of U-1 Recipient
  I-918 B Form
U Non-Immigrant Status Certification
  Instructions for I-918 B
 

Filing a VAWA Case

  Eligibility for VAWA
  Adjustment of Status
  Any Credible Evidence Standard
  USCIS Fact Sheet on Requests for Evidence (RFE)
  Sample Response to Request for Evidence
This sample is based off of a I-360 VAWA self petition, and is applicable when the adjudicator does not apply the correct standard of evidentiary review.
  Domestic Violence Expert Affidavit Guidelines
These guidelines outline what kind of information affidavits should include, as well as factors that may prove extreme hardship.
  Islamic Marriage Contracts: A Resource Guide For Legal Professionals, Advocates, Imams & Communities (2012)
Islamic Marriage Contracts A Resource Guide For Legal Professionals, Advocates, Imams & Communities 2012 Written By Maha Alkhateeb Peaceful Families Project Sponsored By Asian & Pacific Islander Institute on Domestic Violence and Battered Women’s Justice Project
  ASISTA Amicus Brief to AAO on VAWA Good Faith Marriage
 

Resources for Clients

  Challenging violations of confidentiality and prohibitions against using information from abusers/perpetrators
This document details confidentiality provisions according to the DHS, as well as contact information to report a violation of VAWA confidentiality.
  Corrections and Clarifications to Police Report(s)
This form is an opportunity for applicants to correct and/ or clarify a police report. This form would be especially important for cases where a language barrier created misunderstanding or false assumptions.
  Immigration Intake Form from Muna Legal Clinic
This form provides important questions to ask your client, and can be used as an intake form to determine how your client will best be served or if there is a case.
  Declaration Guidelines for Victim of Crime Advocate on Substantial Abuse
This article provides a description for what an advocate should include in their credentials, the victim's experience, and the victim's credibility.
  Follow-To-Join Checklist I-824
Checklist for clients who have completed form I-824 and I-485, and have a copy of approval notice of I360.
  Presentación por USCIS en cómo navegar el sitio web. ¡En Español!
Esta presentación explica paso a paso cómo navegar el sitio web para ver el estatus de su caso.
 

Q & A from CIS

  VSC Teleconference Notes and Practice Pointers Fall 2012
  Appendix 1 to VSC Fall 2012 Teleconference
  Advance Questions/Discussion Topics for VSC Meeting August 20, 2009
  Filing T, U, and VAWA Petitions with USCIS; June 2009
Q & A from June 2009
  Q & A from 2005
  Q & A from 2003
  VSC Stakeholder Event, October 2013
Notes and Practice Pointers from VSC Stakeholder Event on October 18, 2013.
  U visa Cap Advisory and Notes from VSC Stakeholder Teleconference December 12, 2013
These notes include important information, especially regarding USCIS reaching the U visa cap and other updates and changes. Please check back to the ASISTA website for changes and updates.
 

Cases in Proceedings

  Sanchez v. Keisler,
7th Circuit ruling that VAWA permits the filing of a motion to reopen and the Board has the independent power to accept such a motion, whether or not an attorney mentioned this law before the Immigration Judge. 10/14/2007
  Amicus Brief For Sanchez v. Keisler
Amicus Brief Submitted by the National Network to End Violence Against Immigrant Women, written by David R. Fine, KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP, Harrisburg, PA
  CIS Policy Memorandum RE: Disposition of Cases Involving Removable Aliens
This is one of several memoranda discussing CIS discretion to not place noncitizens in proceedings in certain circumstances, including vawa (p 2) (but read the whole memo). Read along with other documents in this section.
  Memo: Re; Exercising Prosecutorial Discretion To Dismiss Adjustment Cases
General memo on when ICE may join in or move to dismiss proceedings when adjustment applications are pending; may be be helpful to those who prefer to adjust outside of proceedings.
  EOIR Practice Manual
  In re Renato Wilhemy SANUDO (Aug. 1, 2006)
The Sanudo decision states that a conviction for domestic battery in violations of section 242 and 243(e)(1) of the California Penal Code does not qualify categorically as a conviction for a “crime involving moral turpitude” within the meaning of section 237(a)(2)(A)(ii) of the INA, nor does it qualify as a “crime of violence” under 18 U.S.C. section 16 (2000) of the act.
  Extreme Cruelty NOA
This document is a Notice of Action for Extreme Cruelty for an I-360 Petition.
  Court Denies Adjustment for VAWA Self-Petitioner Who Failed to Marry K-1 Fiancé
The Fifth Circuit denied the petition for review, finding that although the petitioner's VAWA self-petition was granted, she was not eligible to adjust status under INA §245(d) because she did not fulfill the conditions of the K-1 visa from a prior relationship.
  Letter to BIA requesting VAWA case publication
Attached is a letter a raft of attorneys and ASISTA sent to the BIA asking them to publish a packet of good VAWA (and one U) decisions, to help provide direction to immigration judges on these cases. Many thanks to Meghan Heesch and Krjerstin Sanden of the University of MN for putting it all together for us! I encourage you to use these cases even before they are published, since they show what the BIA thinks about issues such as extreme cruelty and extreme hardship in VAWA cases, among other issues.
 

Administrative Appeals Office (AAO) Decisions

  AAO Grants VAWA 212(a)(9)(C) & I-212
  AAO decision on VAWA filing age for abused children
This decision clarifies VAWA requirement that the abuse be “at least one central reason for the filing delay” in cases where the children filed after they turned 21 (but before the age of 25).
 

Privacy

  8 USC 1367
Link to the Government Printing Office page with 8 USC 1367 relating to penalties for disclosure of information relating to battered or abused immigrants as well as use of information obtained from batterers and their families.
  Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA §384
This first INS memo on the special confidentiality provisions and protections against using information from abusers remains the best government document on this issue. Read along with 8 USC 1367 and other documents in this section.
 

CONFIDENTIALITY PROTECTIONS

  DHS announcement on confidentiality protections 3/2011
Violence Against Women Act (VAWA) Confidentiality Provisions at the Department of Homeland Security 3-2011
 
©2014 Asista. All Rights Reserved