CHAPTER 4 THE VAWA SELF-PETITIONING PROCESS Contents
Transcription
CHAPTER 4 THE VAWA SELF-PETITIONING PROCESS Contents
VAWA Manual February 2002 CHAPTER 4 THE VAWA SELF-PETITIONING PROCESS Contents 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 4.11 4.12 4.13 4.14 4.15 4.16 4.17 4.18 4.19 4.20 4.21 4.22 4.23 4.24 4.25 4.26 4.27 Introduction to the Self-Petitioning Process....................................................................... 4-2 Completing the Self-Petition.............................................................................................. 4-2 Filling out the I-360............................................................................................................ 4-2 Documenting the Requirements for the I-360.................................................................... 4-4 A Detailed Cover Letter with an Index of the Documentation .......................................... 4-5 Notice of Entry of Appearance by the Attorney or BIA-Accredited Representative......... 4-6 INS Filing Fee Amount ...................................................................................................... 4-7 The Self-Petitioner’s Detailed Declaration or Affidavit .................................................... 4-7 Proof that the Abuser is (or was) a Lawful Permanent Resident or United States Citizen 4-8 Proof that the Self-Petitioner is (or was) Married to the LPR or USC............................... 4-9 Proof that the Self-Petitioner Suffered Battery or Extreme Cruelty ................................ 4-10 Proof that the Marriage or Intended Marriage was in Good Faith ................................... 4-11 Proof that the Self-Petitioner Resided with the Abuser ................................................... 4-12 Proof that the Self-Petitioner has Good Moral Character ................................................ 4-12 Evidence of the Self-Petitioner’s Current Residence ....................................................... 4-13 Documenting Eligibility for a VAWA Self-Petition for a Child ..................................... 4-14 Filing the completed I-360 packet.................................................................................... 4-16 Prima Facie Eligibility ..................................................................................................... 4-17 Notice of Action/Request for Evidence ........................................................................... 4-18 Deferred Action................................................................................................................ 4-18 Preference Categories for Family-Based Immigration..................................................... 4-19 How the Preference System Works.................................................................................. 4-19 Using the State Department Visa Bulletin to Make an Estimate of when Your Client can Immigrate............................................................................................... 4-20 Employment Authorization .............................................................................................. 4-22 Adjustment of Status ........................................................................................................ 4-23 Notice of Intent to Deny................................................................................................... 4-24 Special Concerns for Advocates who are not Attorneys or Accredited Representatives. 4-25 4-1 VAWA Manual February 2002 § 4.1 INTRODUCTION TO THE SELF-PETITIONING PROCESS Obtaining lawful permanent residence through VAWA self-petitioning is a two-step process: First, the abused spouse or child files the self-petition by mail to the INS. If the petition is approved, the self-petitioner waits for a visa to become available. Second, the approved selfpetitioner applies for adjustment of status to get a “greencard,” or lawful permanent resident status. This chapter will discuss the VAWA self-petitioning process. Chapter 5, “Adjustment of Status” and Chapter 8, “Consular Processing” will discuss how to obtain lawful permanent residency based on an approved self-petition. See also Chapter 2, “Initial Discussions with Clients” for a detailed discussion of working with clients in the process. § 4.2 COMPLETING THE SELF-PETITION The VAWA self-petition, whether from a self-petitioner living in the U.S. or abroad, is submitted on Form I-360 (although the form may change in the near future). The self-petitioner must also submit documentation showing how she meets the VAWA requirements. This section discusses both of these steps. § 4.3 FILLING OUT THE I-360 The first step in the self-petitioning process is to complete the I-360 petition. The petition form is called a “Petition for Amerasian, Widow(er), or Special Immigrant.” (See blank Form I-360 in Appendix [ ].) This petition is available at local INS offices, by calling the INS at 1-800-870-3676, or by downloading it from the INS website at www.ins.gov. It is also acceptable to use photocopies of the Form I-360 provided that the pages are printed exactly the same way as the official form.1 The petition must be completed in black ink or on a typewriter. (See a sample completed Form I-360 in Appendix [ ].) PRACTICE TIP: Using the Correct INS Forms and Filing Fee Amounts Forms sometimes contain incomplete or out of date information, especially about petition fees. To check what the correct fee us for any petition and to get the most current information on forms is from the government website for the INS, which is found at www.ins.gov. You can also call the INS at their new national customer service number for current fee information at 1-800375-5283. There will be some sections of the Form I-360 that are not relevant for a VAWA selfpetition because this form is used for a number of different types of immigration petitions. However, do NOT leave any space blank. If there are sections that do not apply to the selfpetitioner, write “N/A” or “not applicable” if the question doesn’t apply. Where the answer to a question is “none,” write “none” in that section. 1 8 § CFR 299.2-4. Every part of the official form must be copied onto the photocopy or laser printed form. Furthermore, the forms must use black ink that will not fade or “feather” within 20 years. 4-2 VAWA Manual February 2002 Although the Form I-360 is fairly straight-forward, several points can cause confusion for self-petitioners. These include: Part 1: “Information about person or organization filing this petition” This information is what the INS will use to contact or correspond with the self-petitioner. The self-petitioner does not have to include her own address on the I-360, but can instead list the name of a friend, or your agency, in the c/o space, along with that person's address. This gives the INS an alternative address to send correspondence, and therefore helps prevent the selfpetitioner's spouse or parent from discovering that she has filed a self-petition. Part 2: “Classification requested” Self-petitioners should check the appropriate classification, either (i) or (j). Part 3: “Information about the person this petition is for” If the person entered legally, he or she probably entered with a nonimmigrant visa and obtained an I-94 card at the border upon entry. The I-94 card is a white cardboard card marked I-94. It may be loose or stapled to the passport. You must read the card to answer the bottom part of Part 3. It should indicate the date of arrival, the current nonimmigrant status and whether it is current or expired. If the person entered illegally, write “N/A” for the question about the I-94 number and nonimmigrant status. Part 4: “Processing Information” The question about U.S. Consulates is applicable only to self-petitioners who are outside of the United States. In those cases, the visa will be processed by the U.S. consulate with jurisdiction (legal control) over the area where the self-petitioner resides.2 A petition for adjustment of status can be attached if the self-petitioner is or was married to a US citizen or has a current priority date. Parts 5 and 6: Regarding Amerasians and Special Immigrant Juvenile Court Dependent These parts are not applicable to self-petitioners and should be checked “N/A” in all sections. 2 The INS will send the petition to whatever consulate is named on the application. However, the consulate will not accept the petition unless it believes it has jurisdiction. The INS will forward the visa petition to a consulate, which it believes is the right one, or notify you that another consulate must be found. 4-3 VAWA Manual February 2002 Part 7: “Complete only if filing as a Widow/Widower, a Self-petitioning Spouse of an Abuser, or as a Self-petitioning Child of an Abuser” Complete this section as instructed. Part 8: “Information about the spouse and children of the person this petition is for.” Make sure to include all children, including children born out of wedlock, adopted children, stepchildren and even children who do not plan to immigrate. It is important to include children who do not plan to immigrate currently because it may make the process easier for them if they decide to immigrate in the future. It will be more difficult for children who were not listed in the petition to immigrate later because the INS might doubt they are legally the applicant’s children. § 4.4 DOCUMENTING THE REQUIREMENTS FOR THE I-360 Attached to the completed Form I-360, the self-petitioner must also send documentation showing how she meets each of the VAWA requirements. However, VAWA recognizes that victims of domestic violence may face greater than normal obstacles to getting documentation. Therefore, although the self-petitioner is required to prove that she meets the VAWA requirements, the INS is required to accept “any credible evidence” as proof. This section will discuss ideas for obtaining and preparing documents to prove the requirements for a self-petition and what to do when documentation is unavailable. Using the Any Credible Evidence Standard to Document the Self-Petition Sometimes the client and the advocate cannot obtain evidence to establish a crucial element of the self-petition, such as evidence of the abuser’s immigration status. This is especially likely where the abuser has controlled the family records and not allowed the victim to access to those records. In such situations, the INS will attempt to verify the missing information from its records.3 The cover letter to the application should indicate what documentation is missing, describe the self-petitioner’s attempts made to obtain the documentation, and indicate that those attempts were unsuccessful. The cover letter should also include all information in the self-petitioner’s possession that would assist the INS in its verification efforts. For example, if the self-petition cannot obtain documentation of the abuser’s immigration status, he or she should provide as much information about the abuser as possible, such as his or her date of birth, social security number, address, driver’s license number and nationality (if not a U.S. citizen). A self-petition must contain evidence to support each of the eligibility requirements, or “elements.” Advocates should try to obtain primary source documents, such as birth certificates, naturalization certificates, and permanent resident cards.4 It is important to remember, however, that there is a special evidentiary standard for VAWA self-petitions and for certain other types of petitions related to abused immigrants. This standard is called the “any credible evidence 3 4 8 CFR § 204.1(g)(3). 8 CFR § 204.2(c)(2)(I) [spouses and intended spouses]; 8 CFR § 204.2(d)(2)(i) [children]. 4-4 VAWA Manual February 2002 standard.”5 Under it, the INS must consider all credible evidence submitted with the petition before reaching a conclusion.6 Thus, if primary evidence is not available, secondary evidence, such as declarations or affidavits, is acceptable to make out the elements of the claim. Advocates using secondary evidence, however, should document their attempts to obtain primary source evidence and explain why they were unable to do so. PRACTICE TIP: Community cooperation in gathering documents A strong advocacy team that includes immigration advocates, domestic violence counselors and shelter staff is key in preparing VAWA cases. If possible, the work should always include the involvement of a mental health counselor. They can help the self-petitioner develop her story for her affidavit, identify others who can provide affidavits, help collect documents and write corroborating affidavits about the abuse. You should work with them to develop safety plans that include collecting and protecting essential documents. Similarly, police departments, district attorneys, courts and hospitals are important sources of documents, including reports of domestic violence. These sorts of professionals can expedite the process of getting those reports to domestic violence victims. See Appendix [ ] for a list of important documents and tips for working with immigrant victims of domestic violence. This list may be given to government and community agencies to help them identify and prepare necessary documentation. The self-petition packet should be paginated consecutively and should contain the information listed below.7 If the self-petitioner or advocate cannot obtain documentation to make out each requirement, she should request verification by the INS, as described in the preceding subsection. § 4.5 A DETAILED COVER LETTER WITH AN INDEX OF THE DOCUMENTATION A detailed cover letter with an index of the supporting documentation will help the INS examiner more clearly see how the self-petitioner qualifies for VAWA. See Appendix [ ] for a sample cover letter. The cover letter should provide a “roadmap” for the INS examiner by describing how the self-petitioner satisfies each requirement and how the evidence and documentation prove it. In addition, an index or table of contents should present the documentation in an organized manner by listing each of the VAWA requirements separately and listing under each of them the documents that prove that the requirement is met. It should list each document contained in the petition and the page at which it appears. 5 INA § 204(a)(1)(J). Id. 7 See, Gail Pendleton and Ann Block, Applications for Immigration Status under the Violence Against Women Act, 2001 AILA Annual Meeting Materials, at Volume II, page 436 (also available from the National Lawyers’ Guild Website), at 447-448; Lauren Gilbert, Family Violence and U.S. Immigration Law: New Developments, Immigration Briefings (March 2001). 6 4-5 VAWA Manual February 2002 1. What to Do if a Petition Was Already Filed for the Self-Petitioner In some cases the abuser may have filed an immediate relative or family preference visa petition, on Form I-130, for the abused spouse or child. In this case, the self-petitioner may be able to “recapture” the priority date of the previously filed petition, even if the I-130 petition was subsequently withdrawn by the abuser or if the application was denied or its approval revoked.8 In addition, if a self-petitioner has an I-130/I-485 relative visa petition/adjustment of status application pending, the self-petitioner or her advocate may either proceed with the adjustment based on the I-130 or ask the INS to withhold adjudication of the I-485 pending resolution of the self-petition.9 If an I-130 Petition for Alien Relative was previously filed by any qualifying relative on the self-petitioner’s behalf, the cover letter should reference this fact and, if possible, include documents such as an approval notice, to show the date on which the I-130 petition was filed. The cover letter should also indicate the outcome or status of that I-130. The self-petitioner may therefore be able to “recapture” that priority date and be eligible to adjust status at a sooner time. (See Chapter 5 for more information on Adjustment of Status.) 2. What to Do if the Abused Spouse is Already a Conditional Permanent Resident In other cases, an abused spouse may be in conditional permanent resident status, based upon an approved I-130 filed by the abuser. In this case he or she should probably file an I-751 petition for a waiver of the requirement of the jointly-filed petition to remove the condition, rather than filing a new I-360 self-petition. Please see Chapter 9 for more information on conditional permanent residence and the waivers of the joint petition requirements. § 4.6 NOTICE OF ENTRY OF APPEARANCE BY THE ATTORNEY OR BIA-ACCREDITED REPRESENTATIVE If the self-petitioner is being assisted by an attorney or a BIA-accredited representative, the attorney or BIA-accredited representative should submit a Form G-28 signed by the selfpetitioner and the attorney/representative. The form can be downloaded from the INS website at www.ins.gov. The G-28 form authorizes the attorney/representative to represent the client in front of the INS. See Appendix [ ] for a blank Form G-28. 8 Alenikoff, Executive Associate Commissioner, Office of Programs, INS Mem. HQ 204-P, April 16, 1996, at 2-3 [reprinted as Appendix II, 73 Interpreter Releases 737, May 24, 1996]. 9 Id. at 3. 4-6 VAWA Manual February 2002 § 4.7 INS FILING FEE AMOUNT The petition fee should be paid by check10 or money order, made payable to the INS. The filing fee is currently $130.00.11 The self-petitioner’s name and A number (if she has one) should be clearly printed on the check or money order. Requesting a Fee Waiver A self-petitioner who cannot afford the filing fee can apply for a fee waiver.12 The fee waiver request must be in writing and included with the application. More information and model fee waiver request is included at Appendix [ ]. The fee waiver request should list the selfpetitioner’s assets and income (if any) and expenses. If possible, also provide evidence of the self-petitioner’s income (which could include the previous year’s tax returns, pay stubs or documentation submitted with an application for public assistance), assets and expenses with the fee waiver request. WARNING: An application is not considered properly filed until it is received by the Vermont Service Center with the correct fee or until the fee waiver is granted. Therefore, requesting such a fee waiver MAY cause a delay in the process. Advocates should also be aware that a request for a fee waiver may raise questions at the time of adjustment of status consular processing because of the public charge inadmissibility ground. § 4.8 THE SELF-PETITIONER’S DETAILED DECLARATION OR AFFIDAVIT The self-petitioner’s declaration or affidavit may be the most critical document submitted in support of the application. If possible, every requirement of the self-petition should be addressed in the declaration. Therefore, it should include the self-petitioner’s personal knowledge on each requirement of the claim: good moral character, residence, good faith marriage (or other qualifying relationship to the abuser), the abuser’s immigration status, and the nature of the battery or extreme cruelty. See Appendix [ ] for a sample self-petitioner declaration. The declaration should concentrate on the self-petitioner’s detailed description of the abuse he or she suffered. It should describe this abuse in detail and should be organized so as to make the events clear to the reader. The declaration should also include the self-petitioner’s statement that she is of good moral character. If there is some issue as to good moral character, the self-petitioner should include an explanation of that issue. For a more detailed discussion on helping your client to draft her declaration, see Chapter 2. 10 Payment by check can be useful because when the INS cashes the check, the applicant will have the cancelled check as evidence that the application and fee were received by the INS. 11 8 CFR § 103.7(b). 12 8 CFR § 103.7(c). 4-7 VAWA Manual February 2002 § 4.9 PROOF THAT THE ABUSER IS (OR WAS) A LAWFUL PERMANENT RESIDENT OR UNITED STATES CITIZEN The VAWA self-petition form asks for proof of the abuser’s lawful immigration status or U.S. citizenship. Where the abuser is a United States citizen (USC) by birth, that status is proved by the abuser’s birth certificate showing birth within the United States or its possessions, or by a certification of citizenship or a birth certificate showing birth abroad to two USC parents or to one USC who meets the residential requirements necessary to convey citizenship upon his or her children.13 The status of an abuser who is a naturalized USC is shown by the abuser’s naturalization certificate. For information regarding a person born in the United States, the self-petitioner can contact the state or county office of vital statistics (often the county clerk) to obtain a copy of the abuser’s birth certificate. An internet website -- www.vitalcheck.com -- lists many local offices that provide vital statistics throughout the U.S. Sympathetic friends or relatives can also help the applicant in locating the information. The status of an abuser who is a lawful permanent resident (LPR) is shown by the abuser’s permanent resident card. If the abuser is an LPR, the self-petitioner can try to find the abuser’s "A" number on his lawful permanent resident card ("green card"). PRACTICE TIP: What to do if documentation of the spouse’s USC or LPR status cannot be obtained If the applicant is unable to comply, INS will attempt to verify an abuser’s status through its computer records.14 However, this process will delay processing of the self-petition, and if the search fails, it may lead to a denial. Most likely, INS will not have records from U.S.-born individuals who have never filed any paperwork with the Service. Therefore, it is in the selfpetitioner's best interest to prove the abuser's legal status or to provide secondary evidence such as declarations, affidavits, school records, medical records, etc. to try to prove his status. 13 See, INA § 301 et seq., defining United States citizens at birth. 14 8 CFR § 204.2(c)(2) (spouse), 8 CFR § 204.2(e)(2)(child). 4-8 VAWA Manual February 2002 PRACTICE TIP: What to do if the abuser lost his status If the abuser lost his citizenship or his lawful permanent resident status because of an incident of domestic violence, the self-petition should include a record of the removal, citizenship revocation, or denaturalization proceedings that indicate the loss of status including the date on which status was lost as well as the connection between the loss of status and the incident of domestic violence. The self-petitioner should also provide affidavits and other evidence showing that the loss of status was due to an incident of domestic violence. This does not mean the abuser must have been deported for a domestic violence incident or conviction, only that the deportation must flow from an incident of domestic violence. The self-petition must also be filed within two years following the loss of status.15 § 4.10 PROOF THAT THE SELF-PETITIONER IS (OR WAS) MARRIED TO THE LPR OR USC The self-petition should include a copy of the marriage certificate of the marriage between the self-petitioner and the abuser.16 If either spouse had a prior marriage, the selfpetitioner should submit divorce or death certificates to prove the legal termination of the prior marriage(s).17 1. Divorce or Death of the Abuser If the marriage has terminated, the self-petition application must be filed within two years after divorce or the death of the abuser.18 Only the spouses of abusive USCs can apply after the death of the abuser. The self-petitioner must submit documentation of the death or termination to establish the correct filing date. If the marriage was terminated by divorce, a final divorce decree must be provided. The INS will not require that the divorce decree specifically state that the termination of the marriage was due to domestic violence.”19 However, the self-petitioner must “demonstrate that the battering or extreme cruelty led to or caused the divorce.”20 Details in the self-petitioner’s own declaration, affidavits and letters from witnesses, and other evidence submitted to meet the core eligibility requirements for VAWA may be sufficient to demonstrate the "connection" between the abuse the self-petitioner suffered and the legal termination of the marriage.21 15 INA § 204(a)(1)(iii)(II)(CC)(ccc). 8 CFR § 204.2(c)(2)(ii). 17 Id. 18 INA § 204(a)(ii)(II)(CC). 19 Pearson, Executive Associate Commissioner, Office of Field Operations, INS Mem. HQADN/70/8, January 2, 2002 [reprinted as Appendix II, 79 Interpreter Releases 131, January 21, 2002]. 20 Id. 21 Id. 16 4-9 VAWA Manual February 2002 If the abuser was a USC who died within two years of the filing of the self-petition, the self-petitioner should submit the abuser’s death certificate. 2. “Intended Spouses” If the abuser was a bigamist or polygamist (was actually married to someone else at the time that he and the self-petitioner married), the self-petitioner should show her good faith belief that the abuser was free to marry. This would include a statement in her affidavit that she had no prior knowledge of her spouse’s existing marriage and proof that she believed she was legally married to the abuser because a marriage ceremony was performed. She will still need to provide a marriage certificate. PRACTICE TIP: Obtaining Documents in the United States to Show Family Relationship To obtain a certified copy of a U.S. birth, marriage or divorce certificate, contact the appropriate state or county agency where the event took place. Find out the correct fee, if any; whether the fee must be paid by money order instead of personal check; and whether the person needs to sign a release form. You may also want to find out how long it will take to get the documents and, if necessary, if there is a way to obtain the documents more quickly. An excellent resource guide is Where to Find Vital Records. It provides information on how to get records from all 50 states, and the information is updated each year. It is available from any federal government bookstore for $2.50, or it may be ordered from the Government Printing Office website at www.gpo.gov. § 4.11 PROOF THAT THE SELF-PETITIONER SUFFERED BATTERY OR EXTREME CRUELTY A self-petitioning spouse must show that the abuse occurred during the marriage. The most important evidence of domestic violence is the self-petitioner's own affidavit. It should be very detailed in its descriptions of the abuse, including, if possible, the date that the abuse began, a description of each incident of physical injury, verbal threats, accounts of other cruelty, attempts to leave or seek help, difficulty in leaving, and feelings about the abuse. The self-petitioning case will be strengthened by other proof of abuse. The following is a non-exhaustive list of possible evidence of the battery or extreme cruelty that the self-petitioner suffered: • • • • The self-petitioner’s own detailed declaration; Copies of temporary and final protective orders from a court; Shelter records and other evidence that the victim sought shelter or protection; Counseling records and reports; 4-10 VAWA Manual February 2002 • • • • • • • Medical records documenting the abuse; Photographs of a visibly injured self-petitioner or property damage, supported by affidavits; Evidence of torn clothing, broken furniture, or photographs of injuries; Affidavits (a notarized statement), declarations (a statement signed under penalty of perjury), or letters from witnesses such as friends, relatives or neighbors which support the client's statements, or from shelter workers, police officers, counselors, social workers, medical workers, clergy, and experts on domestic violence. Police reports, police records, criminal court records, complaints; Letters from clergy to whom the abuse was reported; and School records reflecting the abuse.22 PRACTICE TIP: Proving Extreme Cruelty If the abuse suffered by the self-petitioner did not include any physical abuse, but constituted extreme cruelty, it’s critically important that the extreme cruelty that the selfpetitioner suffered and felt be well-documented. The INS will look for subjective details as to how the self-petitioner felt about the way her abuser treated her in addition to objective details of the abuser’s actions or behavior. A corroborating affidavit from a domestic violence counselor is essential for extreme cruelty cases and is extremely helpful in any case. § 4.12 PROOF THAT THE MARRIAGE OR INTENDED MARRIAGE WAS IN GOOD FAITH “Good faith” means that the self-petitioner married the abuser for the principal purpose of sharing a life together and not solely to obtain an immigration benefit. The following is a nonexhaustive list of possible evidence of the self-petitioner’s good faith intent: • • • • • • • 22 Birth certificates of children born of the marriage; Deeds to property or leases showing both spouses’ names; Bank accounts in both spouses’ names or showing one spouse as the beneficiary of the other; Vehicle registration in both spouses’ names; Wills indicating that the parties are married; Credit card, utility, and other bills in both spouses’ names; Jointly filed income tax returns; 8 CFR § 204.2(c)(2)(iv) [self-petitioning spouses]; 8 CFR § 204.2(e)(2)(iv) [self-petitioning children]. 4-11 VAWA Manual February 2002 • • • • • Insurance policies showing one spouse as the beneficiary of the other; Evidence of courtship, such as letters and photographs of the couple; Evidence of the marriage ceremony, such as photographs and invitations; Declarations from relatives or friends; and The self-petitioner’s own detailed declaration.23 § 4.13 PROOF THAT THE SELF-PETITIONER RESIDED WITH THE ABUSER A self-petitioner should submit any available record showing that she resides or resided at the same place as her spouse. The records do not have to show that the residence was in the U.S., nor that the residence is current. This sort of evidence can include: • • • • • • • • • • • Letters addressed to the abuser and the self-petitioner, together or in separate letters, at the same address; Bills in both names; Property deeds, lease agreements or rent receipts; Insurance policies; Employment records; Children’s birth certificates; School or medical records; Joint checking accounts; Utility or other bills; Tax returns; and The self-petitioner’s own declaration.24 Affidavits, declarations or letters from family members, neighbors, friends or other people who know they live together may be sufficient if other records are not available. § 4.14 PROOF THAT THE SELF-PETITIONER HAS GOOD MORAL CHARACTER Self-petitioners who are 14 years of age and older must provide a copy of police clearance letters from jurisdictions (including other countries) where they have resided for six months or more during the three year period preceding the filing of the self-petition. The self-petitioner’s own declaration is crucial in establishing good moral character. If there are no criminal convictions or other acts that would establish a statutory or discretionary bar to good moral character, then the self-petitioner may simply state in the declaration that he or she has never been arrested. A letter or declaration from friends, clergy, or employers attesting to the self-petitioner’s good moral character is useful if there is a problem with good moral character. If there is a statutory or discretionary bar to establishing good moral character, the 23 24 See, 8 CFR § 204.2(c)(2)(vii). 8 CFR § 204.2(c)(2)(iii) [self-petitioning spouses]; 8 CFR § 204.2(e)(w)(iii) [self-petitioning children]. 4-12 VAWA Manual February 2002 self-petitioner may use the declaration to explain the circumstances and connection between the offense and the abuse, as well as discuss the positive aspects of her good moral character. If the self-petitioner has done an act or has a conviction that would prevent her from establishing good moral character under INA § 101(f), there might still be an exception for it under INA §§ 212 or 237 (see Chapter 6). If that is the case, then evidence should be submitted to establish that the act or conviction would be waivable and that the act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty. The self-petitioner should explain in her declaration how the problems are related to her experience of domestic violence. The self-petition should also include affidavits from responsible people who can attest to the self-petitioner's otherwise good moral character. If the self-petitioner has criminal charges or convictions, she must submit court documents showing the disposition of the case. WARNING: Make sure to ask your client if she has EVER been arrested or convicted for any crime at any time. If your client has any criminal arrests or convictions, it is important to consult an immigration attorney or BIA-accredited representative for help with the case. In addition to making a self-petitioner ineligible for VAWA, some crimes can make a self-petitioner deportable and/or permanently barred from the United States. On the other hand, some self-petitioners will be able to qualify for VAWA despite having a criminal record. For example, if the self-petitioner has done an act or has a conviction that would prevent him or her from establishing good moral character under INA §101(f) but for which there might be an exception under the VAWA 2000 amendments, then she should submit evidence to establish that the act or conviction would be waivable under INA §§ 212 or 237 and that the act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty. This is a complicated legal argument and also should be referred to any immigration attorney or accredited-representative who has experience in these matters. See Chapter 6. § 4.15 EVIDENCE OF THE SELF-PETITIONER’S CURRENT RESIDENCE The self-petitioner should submit proof of her current residence in the United States or, if the self-petitioner lives outside of the United States, that the abuser is an employee of the U.S. government, a member of the uniformed services, or has subjected the self-petitioner to battery or cruel treatment in the United States. If the self-petitioner is currently residing in the United States, that residence can be shown through: • • • • • • Lease agreements or rental receipts; Shelter records documenting self-petitioner’s presence; Bills, receipts, medical records, or school records showing the self-petitioner’s presence in the United States; Employment records; Letters or declarations from relatives, friends or neighbors The self-petitioner’s own declaration. 4-13 VAWA Manual February 2002 § 4.16 DOCUMENTING ELIGIBILITY FOR A VAWA SELF-PETITION FOR A CHILD The self-petitioning child must provide documentation showing the parent-child relationship with the abuser. For a self-petitioning child born in wedlock, the child’s birth certificate should be submitted, showing the abuser as a parent.25 If the self-petitioning child was born out of wedlock and was abused by the father, then evidence must be submitted to show that either (1) the child was legitimated prior to the age of 18 and was in the custody of the legitimating parents at the time of legitimation, or (2) the father and child had a bona fide parent-child relationship.26 Examples of evidence to show the father and child had a bona fide parent-child relationship include evidence of payment of child support and statements from the self-petitioner, his or her mother, and other relatives or witnesses concerning the relationship between the father and child.27 If the child is adopted, copies of the legal adoption before the child turned 16 as well as documentation of two years’ physical and legal custody must be submitted. If the child is the stepchild of the abuser, then the child’s birth certificate and the marriage certificate of the child’s parent and the stepparent, showing that the marriage took place before the stepchild reached 18 years of age, and evidence of legal termination or all prior marriages of either parent, if any, should be submitted.28 PRACTICE TIP: Making Proper Copies of Official, Government Documents A document from a government agency, whether from the United States or another country, will probably be a photocopy of the document you requested, with an original certification stamp or signature from the government office. For immigration purposes, this is an “original” document. There are two things to remember about original documents: 1. Do not submit original documents to the INS unless you are told to do so. Instead of sending the original document, the INS generally permits the filing of photocopies instead of original documents with petitions, and the applicant does not need to individually certify the copies.29 The INS views the signing of the petition a certification under penalty or perjury that all evidence submitted with a petition is true and correct. It is important to make sure that legible copies are submitted with the petition 25 8 CFR § 204.2(e)(2)(ii). Id. 27 8 CFR § 204.2(d)(iii). 28 8 CFR § 204.2(e)(2)(ii). 29 8 CFR § 204.1(f)(2). 26 4-14 VAWA Manual February 2002 NOTE: If originals are submitted instead of copies, the INS will not return the originals to the applicant. 2. Keep the original document in a safe place and be prepared to show it to the INS upon request. In addition, you or the client must bring the original document to any interview that has to do with the case. If at all possible, return all original documents to the client and ask her to keep them safe. PRACTICE TIP: Making Certified Translations of Documents All documents that are not in English must be submitted to the INS with a full English translation made by a person who is competent to translate. Summary translations are no longer accepted. All foreign language documents must be accompanied with a full English translation.30 Anyone (other than the applicant or a close relative of the applicant) who is competent to translate may make the translation. It does not have to be an attorney, certified representative or notary public. The translator must certify the translation. To do that, the translator should write at the bottom of the last page of the English translation, “I certify under penalty of perjury that I am competent to translate from [the original language] to English and that the above is a correct and true translation to the best of my knowledge and belief.” The translator should sign and date this statement and should include his or her typed name, address and phone number. KEEP A COPY! The INS or the Post Office could lose your package. Never submit any documents to the INS without making a copy for your files. If you are helping someone that you will not represent, make sure that the applicant keeps a copy. Keep the receipt from the certified mail/return receipt requested mailing with the copy. If there is ever a problem, this will be the proof of filing and priority date. Furthermore, because she will later go to an INS interview, make sure the self-petitioner retains a copy of the complete petition. 30 8 CFR § 103.2(b)(3). 4-15 VAWA Manual February 2002 § 4.17 FILING THE COMPLETED I-360 PACKET All VAWA self-petitioners are adjudicated by specially trained INS officers at the Vermont Service Center.31 The self-petition must be mailed to: Immigration and Naturalization Service Vermont Service Center 75 Lower Weldon Street St. Albans, VT 05479-9589 Mark on the front of the envelope with the self-petition (and all correspondence with the INS) "VAWA" in large red letters. Writing “VAWA” on the envelope will make it easier for the INS to direct the self-petition application to the INS examiners who are specially trained to adjudicate I-360s. Mail the petition certified mail, return receipt requested. PRACTICE TIP: Clients in Removal Proceedings or Already Ordered Removed Caveat: If you have a client in removal proceedings, an attorney or BIA-accredited representative must represent him or her. If the client is in removal proceedings and appears eligible to self-petition under VAWA, the representative should file the self-petition with the Vermont Service Center as soon as possible. The representative should also talk with the INS Associate District Counsel handling the case about the possibility of ending or postponing the removal proceedings if it is more helpful to the applicant. There are a number of ways in which a case may be ended or postponed. First, the Associate District Counsel might be able to withdraw the Notice to Appear (the charging document for removal proceedings). Second, the Associate District Counsel might join with the self-petitioner’s representative in filing a motion to terminate the removal proceedings or a motion to administratively close the removal proceedings to allow the client to apply for adjustment of status before the INS. Finally, the Associate District Counsel might join in filing a motion to continue the removal proceedings until the Vermont Service Center decides the selfpetition. If the Vermont Service Center approves the self-petition, then the client can file an application for adjustment of status with the Immigration Court as a form of relief from removal if she is eligible to adjust status. See Chapter 5 for more information on Adjustment of Status. If the Associate District Counsel will not agree to withdraw the Notice to Appear or join in a motion to terminate or postpone the removal proceedings, then the representative should file a motion for a continuance with the Immigration Court. The motion should request that the removal proceedings be postponed until the Vermont Service Center makes a decision on the 31 INS Memorandum, May 6, 1997, from the Office of Programs, regarding Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues, at 2 [reprinted as Appendix I, 74 Interpreter Releases 971 (June 16, 1997)]. 4-16 VAWA Manual February 2002 self-petition. The representative should attach a copy of the Vermont Service Center’s receipt or a copy of the self-petition with certified mail receipts. If the Immigration Judge will not continue the proceedings to wait for the Vermont Service Center’s decision, if the Vermont Service Center does not approve the self-petition or if the client is not eligible to self-petition, the client may be eligible for a form of relief from removal known as VAWA cancellation of removal. If granted, VAWA cancellation of removal allows the applicant to gain permanent resident status. For more information on Cancellation or Removal, see Chapter 10. Even if ordered removed, the client should be able to reopen the proceedings at a later date if the Vermont Service Center approves the self-petition or if the client becomes eligible for VAWA cancellation of removal. § 4.18 PRIMA FACIE ELIGIBILITY When the INS receives the self-petition, it issues a receipt notice that includes the receipt date, the self-petitioner’s priority date and the Vermont Service Center case number. (See Appendix [ ] for a sample INS receipt notice.) The receipt date is the same as the priority date if a family based petition has never been filed for the self-petitioner.32 However, as mentioned in section [ ] above, if an approvable petition was previously filed on the self-petitioner’s behalf, the self-petitioner may recapture that priority date. Within several weeks, the INS will review the self-petition to determine whether it states facts that, if proved true, would lead to approval.33 (See Appendix [ ] for a sample INS notice of prima facie eligibility.) If it does, the INS will mail to the self-petitioner (or whoever she listed in the address section) a letter stating that she is “prima facie” eligible under VAWA.34 This is NOT a final approval letter, and self-petitioners must still respond to any requests for additional information from the INS. However, the self-petitioner can use this letter as proof of her status as a "qualified alien" to receive many forms of public assistance such as food stamps and Medicaid in many states.35 (See the chart prepared by the California Immigrant Welfare Collaborative in Appendix [ ] that describes what benefits are available to "qualified aliens," a category which includes VAWA self-petitioners.) If a self-petitioner needs public benefits right away, it may be better to file with the INS just a one-page affidavit stating that she meets the eligibility requirements. Otherwise, INS may discover a problem with the petition and find the person is not prima facie eligible. 32 If an approvable petition was previously filed on the self-petitioner’s behalf, the self-petitioner may recapture that priority date, even if the old petition was eventually withdrawn or denied. 33 8 CFR § 204.2(c)(6)(E). 34 Id. 35 Memorandum from INS Office of Programs, May 6, 1997, regarding Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues, at 3-5 [reprinted as Appendix I, 74 Interpreter Releases 971 (June 16, 1997)]. 4-17 VAWA Manual February 2002 INS always gives self-petitioners a chance to supplement their self-petitions. If the examiner believes that additional information is needed to adjudicate the case, he or she will issue a Notice of Action/Request for Evidence. § 4.19 NOTICE OF ACTION/REQUEST FOR EVIDENCE After sending the “prima facie” letter, the INS will do a more thorough review of the selfpetition and documentation provided. If more documentation is needed, the INS will request it in a "Notice of Action." (See sample INS Notice of Action at Appendix [ ]). The additional documentation must be sent to the INS within 60 days. If it is not possible to provide the additional documentation within 60 days, you must request an extension that may be granted for up to 60 additional days. PRACTICE TIP: Contacting the INS about a Case The Vermont Service Center has made available a Case Problem Resolution Line, for advocates only, at (802) 527-4888. § 4.20 DEFERRED ACTION If the self-petition is approved, the INS will mail the self-petitioner an Approval Notice (Form I-797). (See sample Form I-797 at Appendix [ ]). Normally, this includes an "Initial Grant of Deferred Action." This means that although the INS knows the self-petitioner is present in the U.S. without lawful immigration status, it will not deport her before she can adjust to lawful resident status. Initial grants of deferred action are for 15 months. Requests for extensions of deferred action status are granted in increments of 12 months.36 The VAWA unit at the Vermont Service Center is authorized to extend deferred action status as appropriate until the self-petitioner is able to obtain lawful permanent residency.37 36 37 Cronin, Acting INS Executive Associate Commissioner, INS Mem. HQ/AND/70/6.1IP, dated September 8, 2000. Id. 4-18 VAWA Manual February 2002 § 4.21 PREFERENCE CATEGORIES FOR FAMILY-BASED IMMIGRATION To determine when an approved self-petitioner is eligible to adjust her status to that of a lawful permanent resident, she must figure out under what preference category she falls. If she is or was the “spouse” or “child” of a United States citizen as defined in the discussion at Chapter 3, she is considered an immediate relative and can apply for adjustment of status right away. She may do so by filing her application at the INS closest to her residence or by submitting the application along with her I-360 to the Vermont Service Center. Although the Vermont Service Center will not adjudicate the I-485, they can forward it to the INS district office closest to the self-petitioner’s residence. Others who can generally migrate through a preference visa petition will fall into one of four categories. These categories are set forth at INA § 201(b). The preference categories are: FIRST PREFERENCE: The beneficiary is the unmarried son or daughter, 21 years of age or older, of a U.S. citizen. A first preference beneficiary is a U.S. citizen's "child" who has grown up and is unmarried. SECOND (2A) PREFERENCE: The beneficiary is the spouse or child of a lawful permanent resident. SECOND (2B) PREFERENCE The beneficiary is the unmarried son or daughter, 21 years of age or older, of a lawful permanent resident. If an unmarried son or daughter of a lawful permanent resident marries, he/she loses eligibility to immigrate. THIRD PREFERENCE: The beneficiary is the married son or daughter, of any age, of a U.S. citizen. (NOTE: Before the Immigration Act of 1990, this was referred to as Fourth Preference.) A third preference beneficiary is a U.S. citizen's "child" who is now married. FOURTH PREFERENCE: The beneficiary is the brother or sister of a U.S. citizen. The petitioner must be at least 21 years old. Both siblings must at some time have been the children of one common parent. (NOTE: Before the Immigration Act of 1990, this was referred to as Fifth Preference.) § 4.22 HOW THE PREFERENCE SYSTEM WORKS Once the self-petition is approved, an immediate relative may go to step two and apply for immigration. Spouses and children of lawful permanent residents, however, must wait until a visa is available under the preference system before going on to step two. Understanding how the preference system works will help you analyze when to submit the adjustment application. The preference system. When we discuss family visas in the preference system, we are talking about people who immigrate through the first, second, third, and fourth preference categories. 4-19 VAWA Manual February 2002 INS can approve an unlimited number of preference visa petitions each year. But not everyone with an approved petition will be able to immigrate. Only a certain number of people who are born in each country can immigrate to the U.S. each year under the family preference system. Each time someone immigrates to the United States under the preference system, one visa is charged to (subtracted from) the numbers of visas set aside for the country where the person was born. If more people per year want to immigrate than there are visas, that country develops a waiting list or "visa backlog." As far as theory goes, that is about all you need to know. The more people who want to immigrate from a country each year over its visa allotment, the longer the waiting list for that country will be. For that reason, someone from France or Uruguay may be able to immigrate much faster than someone with a similar visa petition from Mexico or the Philippines. § 4.23 USING THE STATE DEPARTMENT VISA BULLETIN TO MAKE AN ESTIMATE OF WHEN YOUR CLIENT CAN IMMIGRATE Each month the U.S. State Department issues a Visa Bulletin. With the right information, you can consult the State Department Visa Bulletin to see if your client is eligible to immigrate. When a backlog exists, predicting exactly when the client will be able to immigrate is impossible. But the Bulletin may be used to make a very rough estimate of when the client might be able to immigrate in the future. To do this you need to know the following information about the intending immigrant: 1. The priority date of the visa petition 2. The country of chargeability 3. The preference category 1. Priority date. The date that the I-360 petition is filed with the INS becomes, upon approval of the I-360, the beneficiary's "priority date" in the preference system. That date establishes the person's place in line to wait for a visa, and to determine when the person can immigrate. The priority date is the date that the INS received the petition and accepted the fee, not the date that the petition was approved. This is only fair, because in some cases the petition might not be approved for several months or even years after filing it. Alternatively, if an I-130 visa petition was previously filed for the self-petitioner, she can retain that priority date. 2. Country of chargeability. As a general rule, the person's place of birth is the country or territory to which a visa will be charged. This is true even if the person has become a citizen of another country. 4-20 VAWA Manual February 2002 3. Preference category. This is the category of the visa petition, for example second preference 2A for the immigrating spouse of a lawful permanent resident. PRACTICE TIP: How to Read the Visa Bulletin Look at the copy of a State Department Visa Bulletin in Appendix [ ]. First, notice the date on the upper right hand corner. This shows the month to which this visa bulletin is pertinent. The State Department issues a new visa bulletin each month and most of the information in the bulletin changes from month to month. So checking the new visa bulletin each month is important. Across the top portion of the bulletin are all the categories of preference visas. Along the left hand side is a list of countries called the "areas of chargeability." The first category says "All Chargeability Areas Except Those Listed.” Known as the "worldwide" category, it includes all countries not separately listed. For example, Argentina does not have a separate listing in the bulletin. Therefore, a person from Argentina should use the numbers listed in the "All Chargeability" column. The countries that fall into this category usually have the smallest backlogs and thus the shortest waiting periods. If the person is from a country that has its own separate listing, such as India or Mexico, he or she must consult that column of information. If you draw a line down from the relevant preference category and across from country of chargeability you will find a date. That is the priority date of persons from that country, and in that preference category, for whom visas are available now. The rule to reading the Bulletin is: If your client's priority date falls before the date listed, a visa is now available and she can immediately apply for lawful permanent resident status. If your client's priority date falls on or after the date listed, no visa is available to her that month and she must wait longer. Sometimes, categories show the letters "C" or "U" instead of a date. The letter "C" means that the category is current and there is no waiting for a visa, no matter when the petitioner filed the petition. The letter "U" means that the category is unavailable. All the visas in that category and country have been used up for the current year. Some visas may become available at the end of the year or the beginning of the next year's accounting in October. Until then, the person cannot immigrate no matter when his or her visa petition was filed. 4-21 VAWA Manual February 2002 PRACTICE TIP: How to Order the State Department Visa Bulletin You can receive the monthly State Department Visa Bulletin. There is no charge. Send your address and a letter requesting the VISA BULLETIN to: Visa Bulletin Visa Office Department of State Washington, D.C. 20522-0113 You can also access the Visa Bulletin on the Internet by going to http://travel.state.gov and can request at the website that the State Department email the Visa Bulletin to you monthly. You can also telephone (202) 663-1541 to hear a recorded message on current priority dates. PRACTICE TIP: Advising Your Client about When a Visa May Become Available Predicting exactly when a visa will become available for a person waiting to immigrate under the preference system is impossible. The priority dates in the Visa Bulletin do not advance consistently because the number of people who apply in a particular preference category can vary from month to month (the number is simply unpredictable), the number of people who are on the waiting list who still want to immigrate is unknown, and the number of derivative beneficiaries is unpredictable. The dates in one category may jump ahead three months over one month of "real time," or they may stand still or even go backwards. You can only make rough estimates of when a client will be able to immigrate when there is a backlog. This is because no one knows exactly how many people are on the waiting list. Some may have died, changed preference categories, or changed their minds. Some may have had children, adding to the number of derivative beneficiaries ahead of you. § 4.24 EMPLOYMENT AUTHORIZATION Approved self-petitioners also qualify for employment authorization. At this point, the INS also tells the self-petitioner that she may file an I-765 to obtain work authorization (Employment Authorization Document). (See blank I-765 at Appendix [ ]). 4-22 VAWA Manual February 2002 1. Self-Petitioners who are Immediate Relatives of U.S. Citizens Self-petitioners who are immediate relatives of U.S. citizens or have a current priority fate are eligible for employment authorization based upon their immediate eligibility to adjust status to permanent residence.38 They need not show any need for employment, and they may file their application for employment authorization at the same time as and along with the Form I-360 self-petition and the Form I-485 adjustment of status application. Self-petitioners who fall under the immediate relative category because the abuser is a USC can also file for work authorization at the local INS office. 2. Self-Petitioners who Must Wait until their Priority Dates Becomes Current Approved self-petitioners who must wait until their priority date becomes current are eligible for employment authorization based upon a grant of deferred action.39 Therefore, selfpetitioners who were abused by an LPR must wait until their self-petition is approved and they are granted deferred action before obtaining employment authorization. At that time, a selfpetitioner can apply for work authorization by submitting Form I-765 to the Vermont Service Center together with the filing fee of $120.00 and a statement that the self-petitioner has an economic necessity for employment authorization. This statement should list the selfpetitioner’s assets, income, expenses and dependents.40 The application may be submitted with the I-360 self-petition or may be filed after notification that the self-petition has been approved. Employment authorization granted by the Vermont Service Center is issued in one-year increments, so may need to be renewed annually.41 § 4.25 ADJUSTMENT OF STATUS If the Vermont Service Center approves the I-360 self-petition, then the self-petitioner proceeds to the final step of the immigration process – obtaining lawful permanent resident (“immigrant” or “green card” status). A permanent resident is someone who has a “green card.” There are two methods for obtaining lawful permanent residence based upon an approved self-petition. These two methods are: (1) adjustment of status and (2) consular processing. Adjustment of status is a process for changing one immigration status, or undocumented status, to the status of lawful permanent resident. It is done in the United States, through an application filed with the INS. Consular processing is a means of obtaining lawful permanent residence at a U.S. consulate abroad. If the self-petitioner will obtain a visa through adjustment of status, the INS will retain the approval notice. If the self-petitioner will obtain a visa through consular processing, the INS sends the approval notice to the National Visa Center of the Department of State.42 38 8 CFR § 274a.12(c)(9). 8 CFR § 274a.12(c)(14). 40 8 CFR § 274a.12(d). 41 Cronin, Acting Executive Associate Commissioner, Office of Programs, INS Mem. HQ/AND/70/6.1P (Sept. 8, 2000), reprinted in 77 Interpreter Releases, 1432-33 (Oct. 2, 2000). 42 8 CFR § 204.2(3)(i). 39 4-23 VAWA Manual February 2002 In general, adjustment of status is preferable to consular processing. Almost all VAWA self-petitioners who are present in the United States should be able to adjust status. Please see Chapter 5 for a detailed discussion of the Adjustment of Status process and Chapter 8 for a detailed discussion of Consular Processing. § 4.26 NOTICE OF INTENT TO DENY If the INS does not approve the self-petition, it will send the self-petitioner a Notice of Intent to Deny, setting forth the reasons for the intended denial.43 (See sample Notice of Intent to Deny at Appendix [ ]). The Notice will also give the self-petitioner additional time to respond with necessary facts and documents before a final decision is made.44 If the INS denies the self-petition the applicant may file a notice of appeal with the Board of Immigration Appeals (BIA) within 30 days after the date of the final decision to deny.45 Alternatively, the self-petitioner can file a Motion to Reconsider or Reopen with the Vermont Service Center.46 See Appendix [ ] for sample Motion to Reopen or Reconsider. There is a fee of $110.00 for these motions,47 but a fee waiver may be requested.48 For information about appeals of denial, contact Gail Pendleton of the National Lawyers Guild's National Immigration Project at [email protected]. PRACTICE TIP: Getting INS to apply VAWA 2000 standards to VAWA cases already filed. The 2000 amendments to VAWA made it apply to more victims of domestic violence and made it easier to meet the self-petitioning requirements. Some people who have already applied may have a better chance of having their self-petitions approved under the new rules. They may wish to try to convince the INS to apply the new rules to their cases. See Pendleton and Block, "Petitions For Immigration Status Under the Violence Against Women Act (VAWA): 2001," on the National Immigration Project website, www.nationalimmigrationproject.org (click on the "domestic violence" option), or contact Gail Pendleton at (617) 227-9727 or [email protected] for suggestions about making this argument. 43 8 CFR § 204.2(c)(3)(ii). Id. 45 8 CFR § 3.1(b)(5). 46 8 CFR § 103.5. 47 8 CFR § 103.7(b). 48 8 CFR § 103.7(c). 44 4-24 VAWA Manual February 2002 § 4.27 SPECIAL CONCERNS FOR ADVOCATES WHO ARE NOT ATTORNEYS OR ACCREDITED REPRESENTATIVES As noted elsewhere, gaining lawful permanent resident status (a green card) through VAWA self-petitioning is a two-step process. In the first step, the applicant files a self-petition, and if it is approved, she is granted permission to remain in the U.S. (“deferred action”), and is eligible for work authorization and certain public benefits. In the second step, she files to upgrade, or “adjust” her status to lawful permanent residence. Although many battered immigrants justifiably focus on the self-petition and its benefits as the way to escape an abusive situation, lawful permanent residence is both the official purpose of the family visa petitioning process and a status which provides permanent, and greater protection for the self-petitioner and her children. At times, advocates at shelters and other agencies may provide the only or most effective assistance to battered immigrants in many communities. However, the second stage of the process, adjustment of status, must only be completed with the assistance of an attorney or BIA Accredited Representative. Adjustment of status representation involves in-depth investigation and analysis of a client’s admissibility to the U.S., as well as maintenance and monitoring the client’s case over many years. Mistakes in representation may cause a client to lose her chance at gaining lawful permanent resident status, or even to be put into removal proceedings and deported. What, then, should agencies and individuals who help clients through the first step of the self-petitioning process do to ensure that those clients get adequate representation through the second, more critical step? First, they can explain the full process to their clients, including: 1) 2) 3) 4) 5) Whether the client is eligible to adjust status immediately (because the abuser is a U.S. citizen) or whether she must wait several years to do so; That how many years she must wait for a visa is determined by the State Department’s “Visa Bulletin,” and that it is her responsibility – the INS will not tell her to apply for adjustment of status when her visa petition becomes “current.” That the client will need assistance in determining whether she is admissible to the U.S., and whether she needs to apply for waivers of any grounds of inadmissibility; That someone who is found to be inadmissible may be put into removal proceedings, and possibly deported; That the client must work with an immigration expert to prepare her case for adjustment of status. Second, the advocate should help the client find an attorney or BIA Accredited Representative to represent her during the adjustment process, and should make sure the client is able to make appointments with, and work effectively with that person. We recommend that agencies that help battered immigrants to self-petition work to establish referral relationships well in advance with immigration experts who can represent their clients in adjustment proceedings. Some immigration experts may have special VAWA funding or otherwise be able to represent VAWA clients for no or low fees, or may be willing to charge lower fees to a particular agency’s clients in return for referrals from that agency. Because VAWA enables a 4-25 VAWA Manual February 2002 self-petitioner to get a work permit upon approval of the self-petition, many clients may not need free services as urgently at this point as during the first stage. NOTE that because in some cases many years will elapse between filing the self-petition and adjustment, immigration experts with whom you have developed relationships may have moved or gone out of business. We recommend that, where possible, you build relationships with established non-profit immigration service agencies like Catholic Charities, Legal Services, Legal Aid or International Institutes. If it is impossible or unworkable to immediately refer a client to an immigration expert, it is possible to reduce the risks of denial or removal by doing the following. First, a shelter or other agency may do a preliminary (and not determinative) screening to determine whether the client will have any problems showing that she is admissible by completing with the client the “Adjustment of Status Red Flag Checklist” at Appendix [ ]. However, it is essential to recognize that without accessing criminal or immigration records, this screening is not adequate to send the client through the adjustment process without further review. Second, an advocate may explain to the client how to keep track of her petition’s progress on the waiting list for an immigrant visa, and the need to find an immigration expert to help her when her petition becomes current. You should explain how the Visa Bulletin works, how to find her priority date and country, and how to obtain the Visa Bulletin regularly (see explanation on the following page). Finally, don’t give up hope during the period during which your client is waiting for her priority date to become current that an immigration expert may move to your area, or that your client will move to or have better access to a city with more immigration services. Ideally, you should stay in touch with the client over the years to monitor whether she is keeping track of the Visa Bulletin or has made any progress toward finding someone to represent her. 4-26