ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

Results 1 to 3 of 3

Thread: RESPONSES FROM VSC ON VAWA CASES, CPR'S AND MORE!! REALLY INTERESTING!

  1. #1
    I found the following doing some research, I hope it will be useful for you!


    "Questions for Q&A Panels with DHS
    (with some notes on practice and advocacy from Gail Pendleton)

    Panelists: Laura Dawkins, Walter Laramie, George Murphy
    Moderator: Sally Kino****a"

    VAWA Self-Petitioning Questions

    Can you please give us an update on what the situation is like now at VSC how many adjudicators, what the turnaround/processing times are, how the supervision structure works, and what hotline numbers we should be using for what.

    Approximately 19 adjudicators work in the VAWA unit at this time, with new personnel to be added as they are fully trained on VAWA related issues. One staff person is assigned to full time adjudication of U visa interim relief requests, and 4 staff work on T visa adjudications. The rest are all VAWA I-360 adjudicators. Four Information Officers handle responses to messages and questions left on the VAWA hotline. The hotline number for VAWA cases is (802) 527-4888. This hotline number is for advocates only. That number should not be used for status inquiries.

    VAWA unit staff are starting to work on the case backlog, but current adjudication time runs upwards of 9 months from date of self-petition submission to adjudication. They're trying to make prima facie determinations with 21 days of filing.

    Is there a separate hotline for trafficking cases?

    The hotline number for T visa cases is (888) 428-7581. This is the trafficking hotline number; it is not associated with the Vermont Service Center (VSC). It is also not limited to advocates. Attorneys/representatives should use the VAWA Hotline (802) 527-4888 for contacting the VSC.

    Do you have any statistics on the number of self-petitions, grants, denials and fraud cases?

    The number of applications has gone up every year. In fiscal year 2003, 6700 VAWA self-petitions were filed with the VSC. In this same year, 3900 petitions were approved, 1100 were denied, and 23 were forwarded to the district office. The overall self-petition approval rate for FY 2003 was 78%. In fiscal year 2002, 5922 VAWA self-petitions were filed, 4992 were approved, 986 were denied, and 22 were forwarded to the district office. The overall self-petition approval rate for FY 2002 was 83.5 %.

    Are there particular ways you would like the I-360 to be assembled? Any special mailing instructions?

    All VAWA submissions should have "VAWA" noted in bold red letters on the envelope to avoid being misrouted in the mailroom. Do NOT use the "Box 1000" address specified for U interim relief applications unless you are asked to do so on a case-by-case basis.

    RFEs are sent out on I-797 blue sheets of paper. For various reasons, many respondents send a copy of the I-797 RFE when they respond. If you copy the I-797 RFE on a blue sheet of paper, it will help the mailroom sort your response to the right place.

    Can you explain what you're looking for in proving "extreme cruelty?" Is CIS accepting the 9th Circuit's Luis-Hernandez "extreme cruelty" decision as binding precedent in VT?

    The VSC confirmed that the determination of extreme cruelty focuses on evidence that addresses how the abuser's conduct impacted on the quality of life of the self-petitioner or her ability to function. For this reason, the evidence needs to not only state what the abuser did, but how the self-petitioner felt as a result of the abuser's actions or behavior. The self-petitioner should explain what was done to her, how it made her feel, what were the results. She should also include information if relevant about the abuse within the context of her own life.

    They cannot comment on the Luis-Hernandez decision at this point and its impact on their interpretation. They're waiting for guidance on this.

    What is CIS's interpretation of "any credible evidence?" In particular, how do you interpret "any credible evidence" when you do not have any evidence contradicting a self-petitioner's testimony?

    They're looking to see if there are parts of the self-petitioner's statement that can be supported by other evidence for example, witnesses who can corroborate. If the self-petitioner claims she was taken by an ambulance during a medical emergency then there should be documentation of that provided or an explanation as to why not. (NOTE FROM GAIL: Please see Virtue memo on this issue; it is very helpful.)

    Could you please clarify what circumstances are sufficiently compelling to warrant expedited review of an I-360? Also, what is the best procedure for requesting expedited review?

    The VSC noted that approximately one third of VAWA self-petitioners are in removal proceedings while their applications are pending; for this reason, being in proceedings is not typically a good enough reason for an expedite request. Expedited adjudication will be considered in compelling circumstances, including situations where the self-petitioner is in danger of imminent removal and very rarely where employment is a necessity. In such circumstances, VAWA unit staff check with district counsel to confirm the urgency of the situation. Expedite requests can be made in writing or through the VAWA hotline. You can also try having Gail or Sally help with the expedite.

    Is it possible to have a prima facie determination extension for more than 2 months? Are the extensions automatic? If an advocate neglects to submit a request to extend a prima facie determination, can the prima facie determination lapse such that the self-petitioner will need to submit a new VAWA self-petition?

    The VSC is limited by an internal policy memo to issuance of initial PFD notices valid for a 150-day period, to be extended in 60-day increments. There is no limit on how many extensions you can get, but they will each be for only 60 days. VSC clerical staff should send out extensions automatically, but advocates are welcome to submit extension requests by phone or by mail. A memo that will provide for longer PFD periods is pending final approval. (NOTE FROM GAIL: We are working to dislodge this memo and other pending guidance noted in these answers.)

    If an LPR abuser has lost status in the past 2 years due to, say, a drug conviction rather than a domestic battery conviction, can the abused spouse still self-petition?

    No. Where the abuser has lost qualifying status, the self-petitioner must show that the loss of status was due to domestic violence. Guidance on this issue is pending. In the meantime, cases are currently being adjudicated where it is clear that the self-petitioner doesn't qualify in any event (e.g. abuser loss of status more than 2 years before self-petition submission) and where there are records available to establish that the abuser was found deportable based on domestic violence against the self-petitioner.

    Follow up question: Can an abused spouse self-petition if her abuser gained status after separation from self-petitioner: Walt Laramie stated that where the abuser gains LPR status after separation from his/her spouse, but prior to any divorce, the self-petition may be approved. There is no guidance yet from DHS regarding eligibility to self-petition where the abuser gains LPR status after divorce from the abused spouse.

    What is the process for adjudicating a common law marriage cases?

    All self-petitions based on common-law marriages are adjudicated based on the requirements of the statute of the state in question.

    We've heard a lot of folks in the field have been receiving RFEs lately for things that they feel they'd addressed in the original I-360 or would not have been required in the past. Is this a training issue or the case of a rogue adjudicator? Can a supervisor review the RFEs?

    For the past three years, officers have been required to get any permanent immigration record of the self-petitioner before making decisions on the VAWA application. As a result, some RFEs are generated by apparent conflicts between the self-petition and information about the self-petitioner contained in his or her permanent record. Officers have been encouraged to give specific information in the RFE about any perceived conflicts so that the applicant has an opportunity to meaningfully reply to the request. (NOTE FROM GAIL: Please consult with Sally or me on cases where you think the adjudicator is wrong.)

    What is the process for getting an extension of an RFE? Can an advocate request an extension more than one time? Can an advocate fax the request?

    Requests for more evidence (RFE) are issued on blue sheets, and advocates are encouraged to reply to the RFE with the blue sheet enclosed, so that the case is more easily identified and properly routed to the VAWA unit. The time period for responding to an RFE is set at 60 days, and extensions are routinely granted for another 60 days. Note that any extension runs from the date of the granting of the request, so if an advocate needs the full 120 day period, s/he should request an extension toward the end of the initial 60 day period. You may be able to get additional extensions where there are extenuating circumstances.

    In the past, the VSC did not forward cases for removal. Can you please explain which VAWA cases, if any, now may be placed in removal proceedings by the VSC?

    Current DHS policy requires that all self-petition cases involving an aggravated felony or an absconder from a final removal order be forwarded for further action to the district office. There is some movement within DHS, however, to require that ALL denied self-petition cases be referred to the district offices for issuance of Notices to Appear. (NOTE FROM GAIL: We will expend great effort to stop attempts to report self-petitioners for removal and may call on you, through the VAWA Updates list serve, for examples to support our work with Congress and CIS.)

    VAWA Adjustment of Status Questions

    What happens when the attorney asks CIS to hold open a previously filed adjustment application (filed based on marriage) while we file the I-360 petition and the husband/sponsor subsequently withdraws the marriage petition - will CIS still hold the adjustment application open, or will they deny it solely because the husband withdrew his petition?

    Laura Dawkins urges individual districts to hold a case until interview. Some will give a time limit to file the I-360; most District Offices are willing to hold a case in abeyance. (NOTE FROM GAIL: Contact Sally or me if your district is being unhelpful.)

    212(a)(6)(A) inadmissibility ground. For persons who do not meet the requirements of the VAWA waiver, is DHS considering issuing a memo similar to that issued for 245(i), under which this inadmissibility ground will be waived for persons adjusting status?

    CIS is working on guidance with regards to changes included in 245(a) and 245(c) which should clarify the 212(a)(6)(A) and EWI issues.

    212(a)(9)(B) - How does DHS interpret the VAWA waiver (212(a)(9)(B)(iii)(IV)? Does it mean that persons whose first entry was before April 1, 1997, are exempt from this inadmissibility ground?

    People who entered before April 1, 1997 are exempt as long as they remain in the United States. Departure from the United States and reentry after that date may trigger inadmissibility based upon unlawful presence accrued after April 1, a1997. Any time accrued AFTER April 1, 1997 will be counted for unlawful presence purposes if the self-petitioner departs the U.S. (NOTE FROM GAIL: Remember that NOT ALL TIME in US is unlawful presence; for instance, deferred action is NOT unlawful presence).
    The ground of inadmissibility based upon the accrual of unlawful presence following the expiration of a nonimmigrant visa [212(a)(9)(B)(iii)(IV)] is excused if the battered immigrant can demonstrate a substantial connection between the battery or extreme cruelty and her continued presence in the U.S. following the visa's expiration.

    212(a)(9)(B) - another question on DHS interpretation. Does the VAWA waiver apply to persons who EWI'd?

    Regulations are being drafted to address this issue and its application to EWIs. The way the statute was written, the waiver currently applies to visa overstays. (NOTE FROM GAIL: A technical correction to fix this unintentional and nonsensical statutory problem is included in a bill we hope will pass in 2004; we will let you know how you can help via VAWA Updates.)

    Conditional Residency Questions

    Can a conditional resident amend her I-751 joint petition to include an I-751 waiver at the time of the client's I-751 interview? Yes. In order to file an amended I-751 (with a new waiver basis), would the conditional resident have to first withdraw her original I-751?

    There is currently a group working on a national standard operating procedure for I-751s. You do NOT need to withdraw the original I-751. If you encounter problems with this, go up the chain of command. If you receive no response for 90-120 days, contact Gail or Sally.

    U visa Questions

    What is the current processing time for a U interim relief request?

    U visa interim relief processing is CURRENT at this time; there is no backlog. This may be due to the fact that most local offices have not yet sent in any locally filed U visa interim relief requests, although all have been instructed to do so. One officer is assigned to exclusively deal with U interim relief requests. If you previously submitted a U interim relief request to a DHS local office and don't' hear anything about your case from VSC by the end of the month, you can resubmit directly to VSC. You can also use the same hotline number for questions about U interim relief cases.

    Are there any special mailing instructions for U interim relief requests? Should the cases still be CC'd to Laura Dawkins?

    U visa interim relief requests should be directed to Box 1000. These are the only filings that should be sent to this P.O. Box, unless an advocate is specifically directed by a VSC officer to send another type of submission to this Box number.

    You should no longer CC the cases to Laura or Gail. Just contact Gail or Sally if there are problems.

    Is being the victim of a misdemeanor for one of the statutorily listed crimes sufficient for the U interim relief or need the crime be a felony?

    The designated crime for U visa status need not be a felony. Currently, it is sufficient if the case is a misdemeanor, but it's hard to say what will be sufficient once the regulations come out. Laura said she would be hesitant to submit a weak misdemeanor case. (NOTE FROM GAIL: Please contact me if you have such a case. We will challenge the regulations in federal court if they are narrower than the statute, which makes no distinctions amongst misdemeanors and felonies. If the "criminal activity" in the state or federal criminal statute or is "similar" to such a crime, it is covered, period.)

    For the T visa, an advocate can send evidence other than a federal law enforcement certificate as part of the application. For U interim relief, is it possible to submit documents other than a law enforcement certificate like police reports or other evidence to show that an applicant was helpful in the investigation or prosecution of a crime?

    The applicant must have some form of statement from a law enforcement agency stating that the victim was a victim of a crime. CIS will accept the sample U certification form on the National Immigration Project website or a letter on LEA letterhead. However, as required by statute, it must be an affirmative statement from a law enforcement official. Police reports may be helpful but they alone are not sufficient.

    If someone is submitting a U interim relief request to VSC, can they submit the I-765 concurrently with it or should they wait to receive their deferred action grant?

    You can file the I-765 concurrently with the request for U interim relief. However, keep in mind that everything you file concurrently is dependent on the assessment of the base application. If you are absolutely positive the applicant will get deferred action, then file the I-765 concurrently. Initial deferred action will be issued for 12 months. EADs will also be issued for 12 months. If the EAD is issued after the deferred action grant, then the deferred action expiration date will be changed to expire at the same time as the EAD.

    Does filing an interim relief request ensure a place in line for a U visa once regs are promulgated?

    A grant of U interim relief does not guarantee a place in line for the U visa once the application process commences. A form application will have to be filed with required evidence.

    If VSC finds that someone is NOT prima facie eligible for the U visa, will you forward the case for removal?

    An applicant who is determined to not be eligible for U interim relief will not be placed in removal proceedings at this time. The only cases that will be forwarded to the local office for potential enforcement are those concerning aggravated felons and absconders. However, that policy may change in future. (NOTE FROM GAIL: Please also note that the statute does NOT make ineligible U applicants with aggravated felonies or, for that matter "absonders," which means people with final removal/deport orders. Contact me if you have such cases. We must show Congress why the narrow U interpretation is wrong and how both the "aggravated felony" definition and the "absconder" initiative are overbroad, harming many people Congress does not or should not wish harmed.)

    Will VSC forward information about perpetrators for removal actions (regardless of what action it takes on interim relief requests)?

    VSC will not be reporting perpetrators to DHS for enforcement at this time; this could change in the future.

    If someone got a certificate from law enforcement more than six months ago and already filed the U interim relief request, what do they need to do now to meet the "within six months" requirement? What about for folks who have not yet submitted their request? Can they return to the same LEA official to initial it with a more recent date to meet the "within six months" requirement?

    A law enforcement certification that was submitted to DHS within 6 months of being signed may still be used. If the certification is more than 6 months old and was never presented to DHS, a new certification must be obtained. It is acceptable to have the certification revalidated with a new signature and date.

    What should a person in proceedings do if they appear to be eligible for the U visa? Even though VSC cannot grant deferred action to someone in proceedings, can they issue a prima facie determination without deferred action?

    The VSC cannot issue "prima facie" determinations because this is not language outlined in statute or regs. As stated in the Oct. 8, 2003 memo, persons in removal proceedings cannot apply for interim relief with the VSC because they are not considered eligible for deferred action. Laura Dawkins of CIS noted that persons in removal proceedings are counseled to seek administrative closure of the proceedings in the August 2001 memo, but this does not resolve the problem because the applicant still would not be able to get deferred action because the IJ retains jurisdiction. Laura is working on this issue. (NOTE FROM GAIL: DHS personnel also are working on alternative options for U applicants in proceedings, such as termination and EAD options for those who remain in proceedings; stay tuned to VAWA Updates.)

    Persons NOT considered eligible for interim relief will receive a notice with a check-off list noting the reason, e.g. in removal proceedings, in valid non-immigrant status.

    If a person in proceedings has a prima facie determination from VSC, shouldn't that be enough for the DC/TA/DD to agree to admin close or terminate proceedings?
    NOTE: At this time, we can't use the wording "prima facie" in regard to the "U" because there are no regulatory requirements.
    Can't answer that right now. Looking for a way to make that happen.

    If a person leaves the U.S. while a U interim relief request is pending; does that cancel out her pending U visa petition?

    Travel is always risky. There is no procedure in place at this time for U visa interim relief recipients to receive advance parole or some other permission to travel. If someone leaves and comes back, they may not be able to get back into the country. Laura warns against it at this time.

    If a person is currently on a valid nonimmigrant visa like a tourist visa can they apply for U interim relief? If so, can they renew a tourist visa while waiting for the U interim relief to be adjudicated?

    They can apply but why would they? (NOTE FROM GAIL: because you need work authorization). You cannot be in valid nonimmigrant status and be granted deferred action. So you would have to terminate your status in order to receive interim relief. If someone were thinking of renewing their tourist visa during the process of applying for U interim relief, they would be committing fraud."

  2. #2
    I found the following doing some research, I hope it will be useful for you!


    "Questions for Q&A Panels with DHS
    (with some notes on practice and advocacy from Gail Pendleton)

    Panelists: Laura Dawkins, Walter Laramie, George Murphy
    Moderator: Sally Kino****a"

    VAWA Self-Petitioning Questions

    Can you please give us an update on what the situation is like now at VSC how many adjudicators, what the turnaround/processing times are, how the supervision structure works, and what hotline numbers we should be using for what.

    Approximately 19 adjudicators work in the VAWA unit at this time, with new personnel to be added as they are fully trained on VAWA related issues. One staff person is assigned to full time adjudication of U visa interim relief requests, and 4 staff work on T visa adjudications. The rest are all VAWA I-360 adjudicators. Four Information Officers handle responses to messages and questions left on the VAWA hotline. The hotline number for VAWA cases is (802) 527-4888. This hotline number is for advocates only. That number should not be used for status inquiries.

    VAWA unit staff are starting to work on the case backlog, but current adjudication time runs upwards of 9 months from date of self-petition submission to adjudication. They're trying to make prima facie determinations with 21 days of filing.

    Is there a separate hotline for trafficking cases?

    The hotline number for T visa cases is (888) 428-7581. This is the trafficking hotline number; it is not associated with the Vermont Service Center (VSC). It is also not limited to advocates. Attorneys/representatives should use the VAWA Hotline (802) 527-4888 for contacting the VSC.

    Do you have any statistics on the number of self-petitions, grants, denials and fraud cases?

    The number of applications has gone up every year. In fiscal year 2003, 6700 VAWA self-petitions were filed with the VSC. In this same year, 3900 petitions were approved, 1100 were denied, and 23 were forwarded to the district office. The overall self-petition approval rate for FY 2003 was 78%. In fiscal year 2002, 5922 VAWA self-petitions were filed, 4992 were approved, 986 were denied, and 22 were forwarded to the district office. The overall self-petition approval rate for FY 2002 was 83.5 %.

    Are there particular ways you would like the I-360 to be assembled? Any special mailing instructions?

    All VAWA submissions should have "VAWA" noted in bold red letters on the envelope to avoid being misrouted in the mailroom. Do NOT use the "Box 1000" address specified for U interim relief applications unless you are asked to do so on a case-by-case basis.

    RFEs are sent out on I-797 blue sheets of paper. For various reasons, many respondents send a copy of the I-797 RFE when they respond. If you copy the I-797 RFE on a blue sheet of paper, it will help the mailroom sort your response to the right place.

    Can you explain what you're looking for in proving "extreme cruelty?" Is CIS accepting the 9th Circuit's Luis-Hernandez "extreme cruelty" decision as binding precedent in VT?

    The VSC confirmed that the determination of extreme cruelty focuses on evidence that addresses how the abuser's conduct impacted on the quality of life of the self-petitioner or her ability to function. For this reason, the evidence needs to not only state what the abuser did, but how the self-petitioner felt as a result of the abuser's actions or behavior. The self-petitioner should explain what was done to her, how it made her feel, what were the results. She should also include information if relevant about the abuse within the context of her own life.

    They cannot comment on the Luis-Hernandez decision at this point and its impact on their interpretation. They're waiting for guidance on this.

    What is CIS's interpretation of "any credible evidence?" In particular, how do you interpret "any credible evidence" when you do not have any evidence contradicting a self-petitioner's testimony?

    They're looking to see if there are parts of the self-petitioner's statement that can be supported by other evidence for example, witnesses who can corroborate. If the self-petitioner claims she was taken by an ambulance during a medical emergency then there should be documentation of that provided or an explanation as to why not. (NOTE FROM GAIL: Please see Virtue memo on this issue; it is very helpful.)

    Could you please clarify what circumstances are sufficiently compelling to warrant expedited review of an I-360? Also, what is the best procedure for requesting expedited review?

    The VSC noted that approximately one third of VAWA self-petitioners are in removal proceedings while their applications are pending; for this reason, being in proceedings is not typically a good enough reason for an expedite request. Expedited adjudication will be considered in compelling circumstances, including situations where the self-petitioner is in danger of imminent removal and very rarely where employment is a necessity. In such circumstances, VAWA unit staff check with district counsel to confirm the urgency of the situation. Expedite requests can be made in writing or through the VAWA hotline. You can also try having Gail or Sally help with the expedite.

    Is it possible to have a prima facie determination extension for more than 2 months? Are the extensions automatic? If an advocate neglects to submit a request to extend a prima facie determination, can the prima facie determination lapse such that the self-petitioner will need to submit a new VAWA self-petition?

    The VSC is limited by an internal policy memo to issuance of initial PFD notices valid for a 150-day period, to be extended in 60-day increments. There is no limit on how many extensions you can get, but they will each be for only 60 days. VSC clerical staff should send out extensions automatically, but advocates are welcome to submit extension requests by phone or by mail. A memo that will provide for longer PFD periods is pending final approval. (NOTE FROM GAIL: We are working to dislodge this memo and other pending guidance noted in these answers.)

    If an LPR abuser has lost status in the past 2 years due to, say, a drug conviction rather than a domestic battery conviction, can the abused spouse still self-petition?

    No. Where the abuser has lost qualifying status, the self-petitioner must show that the loss of status was due to domestic violence. Guidance on this issue is pending. In the meantime, cases are currently being adjudicated where it is clear that the self-petitioner doesn't qualify in any event (e.g. abuser loss of status more than 2 years before self-petition submission) and where there are records available to establish that the abuser was found deportable based on domestic violence against the self-petitioner.

    Follow up question: Can an abused spouse self-petition if her abuser gained status after separation from self-petitioner: Walt Laramie stated that where the abuser gains LPR status after separation from his/her spouse, but prior to any divorce, the self-petition may be approved. There is no guidance yet from DHS regarding eligibility to self-petition where the abuser gains LPR status after divorce from the abused spouse.

    What is the process for adjudicating a common law marriage cases?

    All self-petitions based on common-law marriages are adjudicated based on the requirements of the statute of the state in question.

    We've heard a lot of folks in the field have been receiving RFEs lately for things that they feel they'd addressed in the original I-360 or would not have been required in the past. Is this a training issue or the case of a rogue adjudicator? Can a supervisor review the RFEs?

    For the past three years, officers have been required to get any permanent immigration record of the self-petitioner before making decisions on the VAWA application. As a result, some RFEs are generated by apparent conflicts between the self-petition and information about the self-petitioner contained in his or her permanent record. Officers have been encouraged to give specific information in the RFE about any perceived conflicts so that the applicant has an opportunity to meaningfully reply to the request. (NOTE FROM GAIL: Please consult with Sally or me on cases where you think the adjudicator is wrong.)

    What is the process for getting an extension of an RFE? Can an advocate request an extension more than one time? Can an advocate fax the request?

    Requests for more evidence (RFE) are issued on blue sheets, and advocates are encouraged to reply to the RFE with the blue sheet enclosed, so that the case is more easily identified and properly routed to the VAWA unit. The time period for responding to an RFE is set at 60 days, and extensions are routinely granted for another 60 days. Note that any extension runs from the date of the granting of the request, so if an advocate needs the full 120 day period, s/he should request an extension toward the end of the initial 60 day period. You may be able to get additional extensions where there are extenuating circumstances.

    In the past, the VSC did not forward cases for removal. Can you please explain which VAWA cases, if any, now may be placed in removal proceedings by the VSC?

    Current DHS policy requires that all self-petition cases involving an aggravated felony or an absconder from a final removal order be forwarded for further action to the district office. There is some movement within DHS, however, to require that ALL denied self-petition cases be referred to the district offices for issuance of Notices to Appear. (NOTE FROM GAIL: We will expend great effort to stop attempts to report self-petitioners for removal and may call on you, through the VAWA Updates list serve, for examples to support our work with Congress and CIS.)

    VAWA Adjustment of Status Questions

    What happens when the attorney asks CIS to hold open a previously filed adjustment application (filed based on marriage) while we file the I-360 petition and the husband/sponsor subsequently withdraws the marriage petition - will CIS still hold the adjustment application open, or will they deny it solely because the husband withdrew his petition?

    Laura Dawkins urges individual districts to hold a case until interview. Some will give a time limit to file the I-360; most District Offices are willing to hold a case in abeyance. (NOTE FROM GAIL: Contact Sally or me if your district is being unhelpful.)

    212(a)(6)(A) inadmissibility ground. For persons who do not meet the requirements of the VAWA waiver, is DHS considering issuing a memo similar to that issued for 245(i), under which this inadmissibility ground will be waived for persons adjusting status?

    CIS is working on guidance with regards to changes included in 245(a) and 245(c) which should clarify the 212(a)(6)(A) and EWI issues.

    212(a)(9)(B) - How does DHS interpret the VAWA waiver (212(a)(9)(B)(iii)(IV)? Does it mean that persons whose first entry was before April 1, 1997, are exempt from this inadmissibility ground?

    People who entered before April 1, 1997 are exempt as long as they remain in the United States. Departure from the United States and reentry after that date may trigger inadmissibility based upon unlawful presence accrued after April 1, a1997. Any time accrued AFTER April 1, 1997 will be counted for unlawful presence purposes if the self-petitioner departs the U.S. (NOTE FROM GAIL: Remember that NOT ALL TIME in US is unlawful presence; for instance, deferred action is NOT unlawful presence).
    The ground of inadmissibility based upon the accrual of unlawful presence following the expiration of a nonimmigrant visa [212(a)(9)(B)(iii)(IV)] is excused if the battered immigrant can demonstrate a substantial connection between the battery or extreme cruelty and her continued presence in the U.S. following the visa's expiration.

    212(a)(9)(B) - another question on DHS interpretation. Does the VAWA waiver apply to persons who EWI'd?

    Regulations are being drafted to address this issue and its application to EWIs. The way the statute was written, the waiver currently applies to visa overstays. (NOTE FROM GAIL: A technical correction to fix this unintentional and nonsensical statutory problem is included in a bill we hope will pass in 2004; we will let you know how you can help via VAWA Updates.)

    Conditional Residency Questions

    Can a conditional resident amend her I-751 joint petition to include an I-751 waiver at the time of the client's I-751 interview? Yes. In order to file an amended I-751 (with a new waiver basis), would the conditional resident have to first withdraw her original I-751?

    There is currently a group working on a national standard operating procedure for I-751s. You do NOT need to withdraw the original I-751. If you encounter problems with this, go up the chain of command. If you receive no response for 90-120 days, contact Gail or Sally.

    U visa Questions

    What is the current processing time for a U interim relief request?

    U visa interim relief processing is CURRENT at this time; there is no backlog. This may be due to the fact that most local offices have not yet sent in any locally filed U visa interim relief requests, although all have been instructed to do so. One officer is assigned to exclusively deal with U interim relief requests. If you previously submitted a U interim relief request to a DHS local office and don't' hear anything about your case from VSC by the end of the month, you can resubmit directly to VSC. You can also use the same hotline number for questions about U interim relief cases.

    Are there any special mailing instructions for U interim relief requests? Should the cases still be CC'd to Laura Dawkins?

    U visa interim relief requests should be directed to Box 1000. These are the only filings that should be sent to this P.O. Box, unless an advocate is specifically directed by a VSC officer to send another type of submission to this Box number.

    You should no longer CC the cases to Laura or Gail. Just contact Gail or Sally if there are problems.

    Is being the victim of a misdemeanor for one of the statutorily listed crimes sufficient for the U interim relief or need the crime be a felony?

    The designated crime for U visa status need not be a felony. Currently, it is sufficient if the case is a misdemeanor, but it's hard to say what will be sufficient once the regulations come out. Laura said she would be hesitant to submit a weak misdemeanor case. (NOTE FROM GAIL: Please contact me if you have such a case. We will challenge the regulations in federal court if they are narrower than the statute, which makes no distinctions amongst misdemeanors and felonies. If the "criminal activity" in the state or federal criminal statute or is "similar" to such a crime, it is covered, period.)

    For the T visa, an advocate can send evidence other than a federal law enforcement certificate as part of the application. For U interim relief, is it possible to submit documents other than a law enforcement certificate like police reports or other evidence to show that an applicant was helpful in the investigation or prosecution of a crime?

    The applicant must have some form of statement from a law enforcement agency stating that the victim was a victim of a crime. CIS will accept the sample U certification form on the National Immigration Project website or a letter on LEA letterhead. However, as required by statute, it must be an affirmative statement from a law enforcement official. Police reports may be helpful but they alone are not sufficient.

    If someone is submitting a U interim relief request to VSC, can they submit the I-765 concurrently with it or should they wait to receive their deferred action grant?

    You can file the I-765 concurrently with the request for U interim relief. However, keep in mind that everything you file concurrently is dependent on the assessment of the base application. If you are absolutely positive the applicant will get deferred action, then file the I-765 concurrently. Initial deferred action will be issued for 12 months. EADs will also be issued for 12 months. If the EAD is issued after the deferred action grant, then the deferred action expiration date will be changed to expire at the same time as the EAD.

    Does filing an interim relief request ensure a place in line for a U visa once regs are promulgated?

    A grant of U interim relief does not guarantee a place in line for the U visa once the application process commences. A form application will have to be filed with required evidence.

    If VSC finds that someone is NOT prima facie eligible for the U visa, will you forward the case for removal?

    An applicant who is determined to not be eligible for U interim relief will not be placed in removal proceedings at this time. The only cases that will be forwarded to the local office for potential enforcement are those concerning aggravated felons and absconders. However, that policy may change in future. (NOTE FROM GAIL: Please also note that the statute does NOT make ineligible U applicants with aggravated felonies or, for that matter "absonders," which means people with final removal/deport orders. Contact me if you have such cases. We must show Congress why the narrow U interpretation is wrong and how both the "aggravated felony" definition and the "absconder" initiative are overbroad, harming many people Congress does not or should not wish harmed.)

    Will VSC forward information about perpetrators for removal actions (regardless of what action it takes on interim relief requests)?

    VSC will not be reporting perpetrators to DHS for enforcement at this time; this could change in the future.

    If someone got a certificate from law enforcement more than six months ago and already filed the U interim relief request, what do they need to do now to meet the "within six months" requirement? What about for folks who have not yet submitted their request? Can they return to the same LEA official to initial it with a more recent date to meet the "within six months" requirement?

    A law enforcement certification that was submitted to DHS within 6 months of being signed may still be used. If the certification is more than 6 months old and was never presented to DHS, a new certification must be obtained. It is acceptable to have the certification revalidated with a new signature and date.

    What should a person in proceedings do if they appear to be eligible for the U visa? Even though VSC cannot grant deferred action to someone in proceedings, can they issue a prima facie determination without deferred action?

    The VSC cannot issue "prima facie" determinations because this is not language outlined in statute or regs. As stated in the Oct. 8, 2003 memo, persons in removal proceedings cannot apply for interim relief with the VSC because they are not considered eligible for deferred action. Laura Dawkins of CIS noted that persons in removal proceedings are counseled to seek administrative closure of the proceedings in the August 2001 memo, but this does not resolve the problem because the applicant still would not be able to get deferred action because the IJ retains jurisdiction. Laura is working on this issue. (NOTE FROM GAIL: DHS personnel also are working on alternative options for U applicants in proceedings, such as termination and EAD options for those who remain in proceedings; stay tuned to VAWA Updates.)

    Persons NOT considered eligible for interim relief will receive a notice with a check-off list noting the reason, e.g. in removal proceedings, in valid non-immigrant status.

    If a person in proceedings has a prima facie determination from VSC, shouldn't that be enough for the DC/TA/DD to agree to admin close or terminate proceedings?
    NOTE: At this time, we can't use the wording "prima facie" in regard to the "U" because there are no regulatory requirements.
    Can't answer that right now. Looking for a way to make that happen.

    If a person leaves the U.S. while a U interim relief request is pending; does that cancel out her pending U visa petition?

    Travel is always risky. There is no procedure in place at this time for U visa interim relief recipients to receive advance parole or some other permission to travel. If someone leaves and comes back, they may not be able to get back into the country. Laura warns against it at this time.

    If a person is currently on a valid nonimmigrant visa like a tourist visa can they apply for U interim relief? If so, can they renew a tourist visa while waiting for the U interim relief to be adjudicated?

    They can apply but why would they? (NOTE FROM GAIL: because you need work authorization). You cannot be in valid nonimmigrant status and be granted deferred action. So you would have to terminate your status in order to receive interim relief. If someone were thinking of renewing their tourist visa during the process of applying for U interim relief, they would be committing fraud."

  3. #3
    Aguila

    Thanks for updating us all with this . Keep up the good work

Similar Threads

  1. Replies: 1
    Last Post: 10-08-2004, 01:25 AM
  2. Replies: 3
    Last Post: 10-06-2004, 12:14 PM
  3. VSC is on fire!!!-- 154 Approvals (I-485) in July from VSC
    By fpelz in forum Immigration Discussion
    Replies: 2
    Last Post: 07-22-2004, 02:58 AM
  4. Separation before removing CPR
    By in forum Immigration Discussion
    Replies: 7
    Last Post: 08-02-2003, 08:14 AM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: