By Susan Schreiber
On December 12, 2012, USCIS issued long-awaited policy guidance related to two categories of aged-out U child derivatives: (1) those who turned 21 before petition approval, and (2) those who turned 21 after approval but before accruing the three-years in U status necessary to qualify for adjustment of status. On the same day, USCIS also issued draft policy guidance regarding eligibility for employment authorization for approved self-petitioners and derivative beneficiaries and for battered spouses of certain nonimmigrants. These interim and draft policies are described below, along with a summary of the comments and recommendations submitted to USCIS by CLINIC and many other organizations.
Interim Policies for Aged-Out U Derivatives
Qualifying crime victims who apply for a U visa or U status may include their children as derivative beneficiaries. U visa regulations at 8 CFR § 214.14(f)(4), promulgated in 2007, require that a derivative have a qualifying relationship with the principal at three points in time: (1) when the petition is filed, (2) when the petition is adjudicated, and (3) when the derivative is subsequently admitted to the United States. Based on this regulation, the USCIS has not approved applications for derivative children who turn 21 while the I-918-A application for derivative status is pending. In addition, USCIS has only been granting U status until the date the U derivative child turns 21, leaving these U derivatives without the necessary three years of status to qualify for adjustment of status.
This new interim guidance, included in the Adjudicator Field Manual (AFM) at Chapter 39.1, addresses these aging-out problems by providing partial relief to derivatives who age-out while their applications are pending, and a more complete remedy for those who were granted U status but for an insufficient time to qualify for adjustment of status.
Deferred Action for Age-Outs while Application is Pending. In the December 12 guidance, USCIS states that it is engaged in rulemaking to change the current regulations to provide amended age-out protection. Until such time as the regulations are changed, the interim guidance provides that U derivatives who age-out while the 918-A is pending will be considered for deferred action, which in turn provides eligibility for work authorization. To qualify for deferred action, USCIS must determine that the U derivative (a) has submitted prima facie evidence of eligibility for derivative U status, and (b) does not have adverse factors, including an aggravated felony offense or circumstances that pose a threat to public safety or national security. Under the guidance, extensions of deferred action status will be reassessed each time an aged-out derivative applies for an extension of work authorization. Notably, the guidance fails to address the circumstances of U derivatives abroad who have aged-out while the 918-A application is pending.
Four-Year Period of Status for Derivatives Who Will Age-Out After Approval. The new guidance provides that USCIS will now be approving U status for the full four-year validity period if the derivative child is under 21 at the time the application is approved, even if the derivative will turn 21 during that four-year period. Derivative beneficiaries abroad will still have the responsibility of obtaining their visas and entry to the U.S. before turning 21.
Extensions of Status for U Derivatives Who Were Not Granted Four Years of Status. What about those U derivatives who were granted derivative status and aged-out before this interim policy was issued? Many U child derivatives are in this situation, where they were granted a visa or status that expired on their 21st birthdays, short of the time needed to qualify for adjustment of status. This new guidance states that derivatives who aged-out before accruing the requisite three years of continuous presence required for adjustment of status eligibility may apply for an extension of status by filing Form I-539. These late extension requests will be considered approvable because USCIS has determined that the failure to maintain derivative U nonimmigrant status in this situation was "due to extraordinary circumstances beyond the control of the derivative U nonimmigrant." If approved, the extension will date back to the derivative's 21st birthday, which is the date the authorized status expired. The derivative U nonimmigrant can then accrue the required three years of continuous residence in U status to qualify for adjustment of status. The guidance cautions that any further extension requests by the derivative would need to independently demonstrate that exceptional circumstances warrant another extension.
The interim guidance on this issue describes two different scenarios that will lead to different periods of U nonimmigrant extensions. First, where the approval of the extension does not exceed the four-year statutory maximum, the U derivative child will be granted the remaining time available in U nonimmigrant status, not to exceed four years. The following hypothetical illustrates this scenario: Gloria was granted U derivative child status on February 3, 2011, expiring on January 31, 2012 when Gloria turned 21. When Gloria's I-539 is approved, her status will be extended three years and three days, until February 3, 2015, so that she receives the full our years of status, dating back to her approval date.
Second, where the approval of the extension of U nonimmigrant status will result in the derivative receiving more than four years of status, the derivative will be granted an additional period of time from expiration of the four-year period up to one year from the date of approval of the I-539. This will allow the derivative to have enough time to apply for adjustment of status. The following hypothetical illustrates this scenario: Henrik was granted U derivative child status on March 1, 2009, expiring two and a half years later, on September 1, 2011, when Henrik turned 21. If USCIS approved Henrik's 539 to grant him a full four years, it will expire on March 1, 2013, leaving him no time to apply for adjustment of status. For this reason, when USCIS approves Henrik's I-539 application, it will extend his status beyond four years, to up to one year from the date of I-539 approval, so that he will have enough time to apply for adjustment of status.
CLINIC, along with many other organizations, submitted comments to USCIS about this guidance, which included several recommendations with respect to modifying the guidance and the content of future regulations, as follows:
1. The U visa age-out guidance and any new regulations should provide that the age of the derivative is established at the time the U-1 principal files the application, and not on the date of adjudication or date of entry of the U derivative child.
2. The U visa age-out guidance should provide additional protections to applicants who turn 21 while the principal's U visa application was pending. Pending new regulations defining qualifying derivative status, all aging-out derivatives presenting a prima facie case for approval, should be granted deferred action or, if abroad, be eligible for humanitarian parole.
3. While new regulations addressing age-out issues are pending, USCIS must provide expedited adjudication of cases involving derivatives abroad where a derivative child is at risk of aging out.
4. USCIS should adjudicate previously filed I-539 applications from aged-out derivatives without requiring a newly submitted application. USCIS should also modify the guidance to state that derivative children who did not receive four full years of status do not need to wait until 90 days before their status expires to apply for an extension.
Draft Policies on EADS for VAWA Self-Petitioners and Battered Nonimmigrants
Since VAWA 2005, self-petitioners have had three ways to qualify for employment authorization. Approved self-petitioners are eligible for employment authorization incident to status under the (c)(31) category, added by statute as part of VAWA 2005, or under the (c)(14) category through approval of deferred action status. Certain self-petitioners may also qualify for employment authorization under the (c)(9) category while the self-petition is pending, where the self-petitioner is concurrently filing for adjustment of status.
The USCIS draft policy guidance, set forth in new AFM chapter 21.14, confirms self-petitioner eligibility for employment authorization as described above, but states that derivative children are only eligible for employment authorization if approved for deferred action status. According to the draft guidance, a derivative child beneficiary of a self-petition may only rely on the (c)(31) category for an EAD if she or he ages out before immigrating and is then considered a self-petitioner in his or her own right.
In CLINIC's view, as expressed in our submitted comments, derivative beneficiaries of approved self-petitions should also qualify for employment authorization under the (c)(31) category to the same extent as principals; there is nothing in the statutory language on employment authorization at INA § 204(a)(1)(K) that makes a distinction between VAWA principals and derivatives. In addition, this proposed policy conflicts with the definition of VAWA self-petitioner at INA § 101(a)(51), which includes "an alien or a child of an alien, who qualifies for relief” under the VAWA provisions. For this reason, our comments included a recommendation that the guidance regarding issuance of EADs for VAWA derivatives be expanded to comport with the statutory language. This would allow derivatives to qualify for an EAD as approved self-petitioners to the same extent as principal applicants.
The draft VAWA policy guidance also addresses employment authorization for another category of victims of domestic violence: battered spouses of nonimmigrants admitted under INA § 101(a)(15)(A) (Ambassadors), (E) (iii) (Australian Specialty Occupation Workers), (G) (Foreign Government or International Organization Representatives), or (H (Special Occupation Workers). This guidance, long overdue, is directed at implementing INA § 106, which provides employment authorization to certain nonimmigrants if they demonstrate that during the marriage they (or their children) have been battered or subject to extreme cruelty perpetrated by their spouse. This draft guidance is the first step towards implementing this provision since it was enacted in January 2006.
The draft guidance for this category of EAD beneficiary is detailed in new AFM Chapter 30.13. As proposed, an applicant for this relief must still be maintaining nonimmigrant status, may only receive employment authorization for a period of time equal to the remainder of the applicant's current period of authorized stay, and will not be eligible for any extensions. The guidance also details the required evidence to submit and references a new supplementary Form I-765V that will be used along with the Form I-765 to request employment authorization by this new category of applicants.
CLINIC's comments to this draft guidance expressed our concern that the imposition of a "maintenance of status" requirement for employment authorization is not supported by the statute, and will in many instances disqualify the very individuals the statute aims to protect. In particular, we noted that INA § 106 does not require that employment authorization be limited to the period of the principal’s authorized stay, nor does it require that the marriage exist at the time of submission or adjudication of an application for employment authorization under this section. Further, such a narrow reading of the statute will undermine its benefits, by linking the validity of the applicant's nonimmigrant status to his or her eligibility for work authorization. For example, if the couple divorces due to the abuse, or if the abuser spouse loses status due to criminal activity related to domestic violence, the victim will no longer have a qualifying derivative nonimmigrant status and will not be eligible for employment authorization under the draft policy. We also noted that if the EAD application is submitted close in time to the expiration of status of the abused spouse, any work authorization period will be too limited to have any meaningful impact on the applicant's ability to seek safety and stability.
Other shortcomings in the draft guidance, as noted in our comments, include lack of an "any credible evidence standard" for proof of eligibility, and confidentiality protections for applicants.
For this reason, our comments included recommendations that the finalized guidance include the same evidentiary standards and confidentiality protections that apply to VAWA self-petitioners.
CLINIC will continue to advocate with USCIS to modify the U age-out and VAWA EAD guidance to respond to our concerns as described above. To this end, please share your experiences with us about representing clients whose cases are impacted by the USCIS guidance on these issues. Your feedback will help us provide concrete examples to USCIS about the effect of current policy and procedure, and support our advocacy for changes in the interim and draft guidance.