By Susan Schreiber
On June 27, 2014, USCIS released an interim policy memorandum addressing the legislative changes made by VAWA 2013 to U nonimmigrant status and related applications for adjustment of status. Each of the four issues addressed by the memorandum is described below.
1. U Nonimmigrant Status and New Qualifying Crimes
The interim guidance first notes that VAWA 2013 added "stalking" and "fraud in foreign labor contracting" to the original list of qualifying crimes for U nonimmigrant eligibility. Petitions based on either of these crimes will be evaluated on a case-by-case basis to determine if the essential elements of "stalking" or "fraud in foreign labor contracting" have been met. The guidance notes that VAWA 2013 requires that the crime of fraud in labor contracting must be established with reference to the definition of this crime at 18 U.S.C § 1351. Although not included in the interim guidance, the definition is shown below:
a) Work Inside the United States. — Whoever knowingly and with intent to defraud recruits, solicits, or hires a person outside the United States or causes another person to recruit, solicit, or hire a person outside the United States, or attempts to do so, for purposes of employment in the United States by means of materially false or fraudulent pretenses, representations or promises regarding that employment shall be fined under this title or imprisoned for not more than 5 years, or both.
(b) Work Outside the United States. — Whoever knowingly and with intent to defraud recruits, solicits, or hires a person outside the United States or causes another person to recruit, solicit, or hire a person outside the United States, or attempts to do so, for purposes of employment performed on a United States Government contract performed outside the United States, or on a United States military installation or mission outside the United States or other property or premises outside the United States owned or controlled by the United States Government, by means of materially false or fraudulent pretenses, representations, or promises regarding that employment, shall be fined under this title or imprisoned for not more than 5 years, or both.
2. U Nonimmigrant Status Age-Out Protections
The memorandum reviews the history of U nonimmigrant adjudications for derivative children, in which U derivative children aged out of eligibility upon turning age 21. With VAWA 2013, the age of the derivative is determined by the date on which the principal beneficiary filed the 918 petition for U nonimmigrant status. As long as the derivative was a child – unmarried and under age 21 – when the principal filed his or her petition, the derivative will continue to be considered a qualifying family member even if she or he turns 21 while the principal or derivative 918 petition is pending.
In addition, as the memo notes, VAWA 2013 provides new protections for family members of principals who are under 21 at the time of filing an application for U nonimmigrant status. In that situation, the parents and the unmarried siblings under age 18 of the principal applicant will still be eligible for derivative nonimmigrant status even if, at the time of adjudication, the principal is over 21 and the sibling is over age 18.
These provisions of VAWA 2013 are retroactive to the dates of enactment of Victims of Trafficking and Violence Protection Act of 2000 that created the U and T visa categories. Petitions that were on hold pending resolution of these issues will now be adjudicated in accordance with VAWA 2013.
3. Public Charge Exemption
VAWA 2013 provides that the public charge ground of inadmissibility under INA § 212(a)(4) is not applicable to a U applicant or U status holder. The memorandum notes that until the I-918 form is revised to eliminate the question relating to public charge, applicants should simply note "not applicable" in response to this question on the application forms (Part 3, question 2 on the I-918 Form; Part 4, question 9 on the I-918A form). The policy guidance further states that the public charge ground of inadmissibility shall not apply to U adjustment applications as a negative discretionary factor.
4. Access to Federal Foster Care and Unaccompanied Refugee Minor Protections
The policy memo reports that U principal and derivative nonimmigrant children are now eligible for placement in federal foster care under the Unaccompanied Refugee Minors Program. To qualify for this benefit, eligible U nonimmigrants must apply to the Department of Health and Human Services and be placed prior to turning age 18.
The directives of this interim policy memorandum are integrated into the Adjudicator Field Manual on U nonimmigrant status at Chapter 39.1(a)(9) and 39.1(f)(4). Comments regarding this guidance may be submitted through August 8, although the memo is in effect until further notice.