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VAWA Self-Petition Issues

By Kristina Karpinski and Susan Schreiber

On October 11, 2012, representatives from the VAWA, T Visa, and U Visa Units of the Vermont Service Center (VSC) participated in a question and answer session at CLINIC’s Immigration Remedies for Survivors of Domestic Violence and Other Crimes training held at Suffolk University Law School in Boston.  Participating in the session were USCIS Section Chief Karl Labor, Senior Immigration Services Adjudicators Bertha Petrie and Carson Carroll, and Office of Policy and Strategy Michele Young.  Summarized below are highlights from the session.

 U Visa Issues

Grounds of Inadmissibility

  • Current USCIS software does not allow for identifying the inadmissibility grounds waived.  Where the applicant is consular processing, VSC does notify the Department of State about inadmissibility grounds that have been waived by the Service.
  • If an inadmissibility ground is identified after U approval that was not disclosed in the U application, VSC recommends filing an amended I-192 and explaining why the issue was not disclosed before.  VSC noted that they might take responsibility for the error where sufficient facts were disclosed to identify the need for a waiver, although no waiver was requested.
  • If a new inadmissibility ground arises after U approval (e.g. U grantee convicted of offense creating inadmissibility), VSC advises against filing an amended I-192.  Instead, the U grantee should address the issue at the time of filing for adjustment of status, and include evidence to overcome the adverse factor, as if filing supporting documents for a waiver.
  • VSC will request a medical examination for a U applicant who discloses habitual drug or alcohol use, or has multiple DUI offenses.  An applicant who discloses schizophrenia or violent episodes is also likely to need a medical examination.  Applicants disclosing PTSD are not asked to get a medical examination.

 Law Enforcement Certifications

  • Law enforcement certifications must include proof that the person signing the form has authorization to do so.   The VAWA unit has a list of already known certifiers.  If a submitted 918B is signed by an unknown certifier and submitted without proof of authorization to sign, an RFE will be issued.  VSC recommends that the forms be signed in blue ink.
  • VSC has been approving cases submitted with certifications from civil court judges and other civil authorities with authority to investigate crimes.

Absences

U visa recipients with absences in excess of 90 days can restart the clock and accrue an additional three-year period upon return in order to qualify for adjustment of status.  Where necessary, a U visa holder may seek an extension of U status in order to have enough time to meet the required three-years after returning to the United States from an absence over 90 days.

U Status as Admission

The VSC officers did not know whether the grant of U status, by itself, may be viewed as an admission by CIS.  Treating U status approval as admission would (a) allow some U visa holders to qualify for adjustment of status under 245(a), and (b) expose U visa holders who entered the United States EWI to grounds of deportability in the event of future exposure to immigration enforcement.   They indicated that they would investigate this issue further.

Age-Outs

A policy memo has been drafted on the issue of U derivative age-outs, and is awaiting final approval.

Loss of Derivative Status 

The VSC officers confirmed that loss of derivative status at the time of adjustment does not require termination of status, although it may be a reason for termination.

Requests for Evidence

The high rate of RFEs in VAWA self-petitions may be due to skeletal petitions filed to meet a deadline or to get a prima facie notice.  VSC encouraged advocates to contact the VSC hotline if they believe an RFE was issued in error.

Stepchildren and Self-Petitions

An abused stepchild needs to show an ongoing relationship with an abusive stepparent in order to qualify for self-petition approval after a divorce between the biological parent and the stepparent.

VAWA Age-Out Derivatives as Principals

An aged-out derivative is treated as a principal self-petitioner and can proceed to adjust status even if the principal self-petitioner never adjusts status. 

Permanent Bar and Reinstatement of Removal

VSC is working on guidance for adjudication of waivers of the permanent bar and overcoming reinstatement of removal through an I-212 application.

Revocation of I-360 Approval

VSC reported that very few cases are being returned from the district offices for revocation.  Where cases are returned, the most frequent reasons relate to officers misunderstanding what triggers marriage fraud under INA § 204(c); concerns about good faith marriage and joint residence; and self-petitioner remarriage before approval of the I-360 petition.

Abuser Becomes LPR during Marriage but after Abuse Takes Place  

VSC confirmed that a self-petition may be approved where the abuser spouse was not an LPR at the time the abuse took place, but becomes an LPR while still married to the abused spouse, even if the spouses are living apart at that time.

Child Status Protection Act

VSC is not certain how to calculate adjusted age where an I-130 petition was previously filed for the self-petitioner by the abuser spouse or parent (i.e. is the adjusted age calculation based on the amount of time the I-360 was pending, or the time the I-130 was pending, or the calculation most favorable to applicant).  VSC agreed to check on this issue.

EADs for Certain Abused Non-immigrants

A policy memo has been drafted on issuance of EADs for certain abused non-immigrants, and is awaiting final approval.