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USCIS Issues Policy Memos on VAWA EAD Eligibility and U Visa Derivative

Dec 14, 2012
Charles Wheeler

 CIS has just released interim guidance on age-out protection for U derivatives. Per the guidance:

  • U-3 derivatives will be approved for the full four-year eligibility period, allowing the U-3 to remain in status past his or her 21st birthday
  • CIS will promulgate regulations to "provide protection" for U derivatives who age-out while the 918-A is pending. In the meantime, aging-out derivatives will be considered for deferred action, which allows for work authorization
  • U derivatives whose status expired upon turning age 21 may now file for an extension of status to receive enough time in U status to allow them to apply for adjustment 

The interim guidance does not address derivatives who age-out abroad while the application for derivative status is pending. The guidance is effective immediately.

CIS has also released a draft policy memo on eligibility for employment authorization for (a) approved VAWA self-petitioners and (b) battered spouses of certain nonimmigrants. The draft guidance provides that:

  • Approved VAWA self-petitioners are eligible for employment authorization based on approval of the self-petition alone, but derivative children are only eligible if approved for deferred action status
  • A derivative child included in the VAWA self-petition who ages-out before immigrating is considered a VAWA self-petitioner in his or her own right and is then eligible for employment authorization as an approved VAWA self-petitioner
  • Only VAWA self-petitioners who are concurrently filing for adjustment of status are eligible to file an application for employment authorization before the VAWA self-petition has been approved
  • Battered spouses of nonimmigrants admitted under INA Sec. 101(a)(15)(A), (E)(iii), (G), or (H) are eligible to apply for work authorization, with applications to be adjudicated by the VSC. Work authorization will only be granted for a period equal to the remainder of the applicant's current authorized status. No extensions will be provided.

Comments to both the interim guidance on age-out protection and the draft memo on employment authorization are due on January 10, 2013. CLINIC will circulate a more detailed analysis of both policies in the coming week.