Archive | March, 2013

How would a Supreme Court ruling striking down DOMA affect immigration?

27 Mar

Theya & Edie

One of the biggest immigration cases of the current Supreme Court terms is not about immigration at all.  Today, March 27, 2013, the Court heard arguments in U.S. v. Windsor, a case that is about the validity of a same-sex marriage and its recognition under U.S. law.  In 2007, Edie Windsor married her longtime partner, Theya Speyer in Canada, which allows same-sex marriage.  When Speyer died in 2009, Windsor was hit with a $363,000 tax bill that she would not have been required to pay if Speyer had been a man.  Federal law passed in 1996, the Defense of Marriage Act (DOMA), prohibited the federal government from recognizing Windsor and Speyer’s marriage and disallowed Windsor from claiming an exemption to the federal estate tax.  Windsor sued and prevailed in the U.S. Court of Appeals for the Second Circuit.  The government, now being represented by conservative members of the House of Representatives because the Justice Department refuses to defend the Act, sought Supreme Court review and the Justices heard the case today.  A decision is due by June.  According to Supreme  Court guru and editor of the SCOTUSblog.com, Tom Goldstein, there appears to be the votes to invalidate DOMA.  Given our confidence in Tom Goldstein’s analysis, we provide our own analysis how the demise of DOMA would affect immigration law.

First, DOMA prohibits the federal government from recognizing same-sex marriages legally performed in U.S. states.  Currently, there are nine states, Massachusetts, Connecticut, Vermont, New Hampshire, Maine, New York, Iowa, Maryland, Washington and the District of Columbia, that allow same-sex couples to get married.  Presumably some of those marriages would be between an American citizen and a foreign national.  However, while an American citizen can file an immigrant petition on behalf of their foreign national opposite-sex spouse, DOMA prevents the approval of an immigrant petition by an American citizen in a same-sex marriage.  Although the marriage between the two men or two women is perfectly legal in the state in which it was performed, DOMA relieves the federal government from recognizing that marriage.  Therefore, a U.S. citizen can not sponsor their foreign same-sex spouse for residence.

The inability of a U.S. citizen to sponsor their foreign spouse has led many binational couples to pursue very unconventional solutions to live together in the U.S. We have seen individuals take the long, difficult and expensive route to seek their residence because the simple path is foreclosed.  In addition, we have seen adoptions between partners, the establishment of businesses to bring their spouse-employee to the U.S., and desperate resort to fake marriages.  When a law causes good people to break the law, there is often something wrong with the law.  If DOMA is struck down, a U.S. citizen could file an immigrant petition on behalf of their same-sex spouse and have the same expectation of approval as a heterosexual couple has.

Second, same-sex spouses could serve as “qualifying relatives” for relief from removal.  Foreign nationals facing removal often can seek to avoid removal by applying for relief from removal.  Many of these forms of relief require a demonstration of hardship to a U.S. citizen or permanent resident spouse.  In the past, one member of a same sex couple could face removal and not be eligible to apply for relief due to the absence of a spouse, regardless of how long that individual were in a relationship with an American of the same sex.

Third, it may help multinational corporations transfer employees more easily.  U.S. law provides for temporary visa for foreign employees needed in the U.S.  Spouses and children of the foreign employee are entitled to derivative visas.  However, same-sex spouses do not get the same benefit and key employees do refuse transfer to the U.S. due to the inability of their same-sex spouse to join them.  DOMA’s prohibitions deprive U.S. business of workers they have determined they need.

DOMA’s demise would be a very good thing for the development of immigration law.  The pernicious effect of DOMA on the lives of thousands of Americans and their partners/ spouses has led Immigration Equality, the nation’s leading LGBT immigrant rights organization, to file suit on behalf of five gay binational couples challenging DOMA in the immigration context.  Those cases are on hold pending the Supreme Court’s decision in Windsor.  We are hopeful that the Supreme Court makes the Immigration Equality suits moot.

STEM Sells: But the U.S. Economy Depends on the Arts and Humanities Too

22 Mar

Increasing the number of immigrant and non-immigrant visas available to highly-skilled workers – particularly in the fields of science, technology, engineering and math (STEM) – currently appears to be the least controversial and most bipartisan aspect of the various immigration reform proposals being discussed, debated, and leaked to the public, even if the discussion about how to increase the number of STEM visas remains unclear. If certain U.S. industries – particularly tech industries that could easily pull the plug and set up shop elsewhere – contend that they cannot hire enough qualified workers because of visa limits, who is to argue in response that the U.S. does not need more engineers and rocket scientists? Everyone can get behind increasing STEM jobs. However, when we propose stapling a green card only to those diplomas earned in STEM fields, and when visas available to artists, writers, educators, historians, and musicians are limited to those who demonstrate “extraordinary” ability in their field, we risk losing the contributions of those who can demonstrate only “high skill” in non-STEM fields. We risk the imbalance that comes with planning to “overbuild” in one area only.

The focus on highly-skilled STEM workers, to the exclusion of those highly skilled in the arts and humanities, misses a critical component of a lasting healthy economy: across a range of industries, long-term career success requires both in-depth knowledge and skills that apply to a specific field or position and a broad range of skills and knowledge that apply to a range of fields and positions. A 2009 survey of more than 300 employers (conducted by Hart Research Associates on behalf of the Association of American Colleges and Universities) demonstrates that a high percentage of employers want colleges and universities to place more emphasis on written and oral communication (89%), critical thinking and analytic reasoning (81%), complex problem solving (75%), teamwork skills in diverse groups (71%), creativity and innovation (70%), information literacy (68%), and quantitative reasoning (63%) – the skills that are the hallmarks of a liberal arts education.

There is no doubt that American culture benefits from the contributions of those foreign-born workers educated and skilled in the arts and humanities, but the U.S. economy benefits as well, not only in the arts and entertainment industries, but even in STEM fields. In a September 21, 2011 opinion piece in the Wall Street Journal, Norm Augustine, the former CEO of Lockheed Martin, argued that the long-term success of the U.S. economy requires those educated in historical literacy: “In my position as CEO of a firm employing over 80,000 engineers, I can testify that most were excellent engineers — but the factor that most distinguished those who advanced in the organization was the ability to think broadly and read and write clearly.”

In an acceptance speech at the Academy Awards in 1988, the Austrian-born screenwriter, producer, filmmaker, artist, and journalist Billy Wilder thanked the unnamed American consul officer in Mexicali, Mexico who permitted Wilder to enter the United States in 1934 despite a lack of proper documentation – because Wilder told the officer that he wrote movies – stating simply “write some good ones.” Wilder became one of the most successful filmmakers in the entertainment industry, in addition to shaping American film culture. Immigration reform of course must prioritize the needs of certain growing U.S. industries, but those industries in turn must recognize that the long-term success of the U.S. economy depends on a broader spectrum of qualifications than the singular focus on highly-skilled STEM workers permits. Like Billy Wilder’s consul officer, immigration reform must have the foresight to recognize that those who enrich our lives through the arts and humanities contribute to both the culture and to the economy.

An Open Letter to Rep. Spencer Bachus

21 Mar

Dear Congressman Bachus,

Thank you very much for speaking out about the overuse of detention by Immigration & Customs Enforcement (ICE) in civil proceedings to determine the removability of individuals in the U.S.  By stating and asking “it looks to me like there is an overuse of detention by this administration.  If these people are not safety risks . . . why are we detaining them?,” you have joined the growing chorus of Americans who wonder why the government, during a time of fiscal crisis, spends so much money locking people up during immigration proceedings when they present no danger to society.  You are welcome in our club and we are glad to have you.

However, we do think it is important that you understand the role you played in building the gulag archipelago of immigration detention.  The explosion of immigration detention is a direct result of legislation you voted for, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  This law, more than any decision by the Obama administration, has resulted in the overuse of detention for individuals in removal proceedings.  While you are right to question the overuse of detention by the administration, please do not overlook Congress’, and your, responsibility in forcing the detention of tens of thousands of people, the vast majority of whom are not safety risks.  IIRIRA fueled the explosion of detention in several ways.  First, it expanded mandatory detention to cover lots of people convicted of minor offenses.   Mandatory detention has forced ICE (and INS before ICE) to detain people during the course of their removal proceedings.  These individuals had no right to individualized determinations of their risk to society or likelihood to appear for hearings.  By expanding the classes of people subject to mandatory detention, Congress created a base layer of detainees.  It is true that interpretations by this and previous administrations have increased the potential pool of mandatory detainees, but mandatory detention and its wide reach is a creation of Congress.  Second, IIRIRA labelled many minor offenses as “aggravated felonies,” requiring detention during removal proceedings.  For example, an individual convicted of shoplifting a pair of $100 sunglasses might be sentenced to one year imprisonment, with service of the sentence suspended.  In other words, the criminal court would determine that that individual should not serve jail time unless they do something bad during the year of the suspended sentence.  Under IIRIRA’s overinclusive language, such an offense would be an aggravated felony and subject that individual to mandatory detention.  And IIRIRA made it clear that it did not matter when the offense occurred.  It is hard to imagine that this hypothetical defendant is a safety risk, but the law gives ICE and the immigration courts no authority to release that individual.  Third, IIRIRA created 287(g) partnerships with state and local law enforcement to enforce immigration law.  The explosion of detention is also directly related to the numbers of people coming to ICE’s attention because a local police officer pulls an immigrant over for failing to use a turn signal.  IIRIRA is the impetus to Arizona-style laws, one of the worst of which was passed in your own Alabama, Congressman.  Fourth, by creating the ten year bar to return to the U.S., IIRIRA made it close to impossible for many immigrants to regularize their status.  Thus, individuals who would have been able to obtain residence under previous laws, remained in the U.S. in unlawful status.  When encountered by ICE, they have often been detained in the discretionary determinations of ICE.  It is true that here is an area where the administration’s overuse of detention is due to the refusal to exercise favorable discretion, but please note that many of these people would be legal residents if not for the 1996 Act.  In addition, please recognize the role that the fear of Congressional rebuke plays in ICE’s decisions.  Take a look at the outcry from your colleagues when ICE released 2200 detainees last month in anticipation of the sequester.  Moreover, Congressional intent has been a key building block of the judicial decisions that have legalized the massive detention edifice.  Decisions such as the Supreme Court’s Demore v. Kim, which upheld mandatory detention, and Matter of Rojas, where the Board of Immigration Appeals decided that mandatory detention applies to people released from custody years or decades ago, are underpinned by statements that Congress intended to impose an unyielding policy of detention in IIRIRA.

Finally, Congress has provided ICE with enormous sums of money to spend on detention.  As you know, nature abhors a vacuum.  As Congress states that it intends to tighten spending, the unnecessary detention of the thousands of people who present no real danger to society should be looked at skeptically.  ICE will spend the money Congress gives it on detention.  It is up to Congress to say “no.”

Congressman, thank you for taking a stand against the overuse of detention.  We are glad to have you as an ally and hope that you use your position in Congress to advocate for more sensible immigration policies.  Thanks again for speaking out and we hope that the words are matched with action.

Sincerely,

Benach Ragland LLP

 

Could Bar Rafaeli seek asylum for refusal to join the Israeli Defense Forces?

19 Mar

Bar Refaeli Host a 'Lexus' Party in Madrid

Yesterday, we had some fun noting that Israeli supermodel Bar Rafaeli had drawn the rhetorical fire of the Israeli Defense Forces (IDF) due to her failure to serve the two years of service in the IDF required of all Israeli citizensWe offered Ms. Rafaeli a free consultation so she could consider a claim to asylum on account of forced conscription into the Israeli Army.  As far as we know, she has not yet availed herself of our very generous offer.  So, we will share our thoughts here for her to review in the privacy of her home.

However, it did occur to us that many people are unaware of how conscription laws worldwide may impact eligibility for asylum.  Many individuals have obtained asylum in the U.S. due to their philosophical refusal to serve in their home country’s armed forces.  As a general rule, asylum law starts from the proposition that a nation has the right to conscript its citizens into the armed forces.  Conscription is the common practice in which a country forces its citizens to serve the armed forces.   Refusal to accept conscription into the armed forces is not ordinarily sufficient to establish that one is a refugee deserving of asylum.  However, asylum law recognizes two exceptions to this general rule.  First, conscription into the armed forces may constitute persecution if punishment for refusal to accept conscription is meted out exclusively to individuals based upon their race, religion, nationality, political opinion, or membership in a particular social group.  So, if only members of one religion in a religiously pluralistic society were punished for refusal to serve in the armed forces, that may constitute persecution.  The second exception is where service in the armed forces would require the individual to commit war crimes or crimes against humanity.  If the armed forces were routinely engaged in war crimes or crimes against humanity, the punishment of an individual’s refusal to serve may also constitute persecution worthy of protection under U.S. asylum law.

How do these factors effect the Bar Rafaeli case?  As an aside, we have no reason to believe that Ms. Rafaeli did not serve in the IDF for philosophical or political reasons.  We have no reason to believe that the Israeli government seeks to punish Ms. Rafaeli.  We just think that this is a fun intellectual exercise.  If Ms. Rafaeli were actually facing punishment for her refusal to join the IDF, could she obtain asylum in the U.S.?

As we said earlier, conscription, in and of itself, will not serve as a basis for a claim to asylum.  The first exception to this rule, if punishment for refusal to serve is forced only upon certain groups of individuals in a society, does not seem to apply as Israeli conscription is universal and there is no evidence that punishment for refusal to serve is forced only upon particular races, religions, nationalities, political groups, or members of particular social groups.  The second exception to the rule is if conscription into the IDF would force Ms. Rafaeli to engage in human rights abuses.  Certainly, there are many armed forces worldwide that commit war crimes and crimes against humanity.  Right now, the Syrian Army is engaged in war crimes and crimes against humanity on a daily basis.  Years ago, we won asylum for a Russian man who reserved to serve in the Russian Army due to the activities of the Russian Army in Chechnya.

Does the IDF fit this mold?  Can it be shown that the IDF engages in war crimes or crimes against humanity?  How does this work?  This exception implicates one of the epic immigration cases of all time: M.A. v. I.N.S., 899 F.2d 304 (4th Cir 1990).  This case was argued before the entire Fourth Circuit Court of Appeals in October 1989.  Arguing for the immigrant, a Salvadoran who refused to join the Salvadoran army during the peak of that country’s vicious civil war, was William van Wyke, a passionate defender of immigrant rights who went on to become an immigration judge.  Also involved was John Bolton, who went on to become a prominent figure in the George W. Bush administration.  Arthur Helton, one of the great human rights lawyers of all time and a victim of the attack on the UN compound in Iraq in 2003, also supported the immigrant.  M.A. was a Salvadoran man who refused to join his country’s military because of the Salvadoran military’s shameful record of gross human rights abuses.  He argued that if he did not resist conscription he would be forced to commit such atrocities or be killed for refusing to do so.  He submitted voluminous reports showing from Human Rights watch, Amnesty International and other highly credible human rights organizations to document the military’s role in these atrocities.  Yet, the Board of Immigration Appeals and the 4th Circuit rejected this evidence and demanded that there be international condemnation by other governments to establish the violations of the law of war or the commission of crimes against humanity.  Non-governmental organizations, even those with decades of expertise in human rights issues and researchers ion the ground, could not provide evidence that would satisfy this standard.  As the U.S., at the time, failed to condemn the Salvadoran military for these atrocities, M.A. lost.

So back to the question: Could Ms. Rafaeli prove that the IDF is engaged in violations of the law of war or the commission of crimes against humanity?  Certainly, there are many NGOs that would say that the IDF does.  But has there been governmental sanction of the IDF?  While the U.S. has condemned the building of settlements in the occupied territories, the U.S. has not condemned the IDF’s actions against civilians during military excursions in Gaza and Lebanon.  Moreover, the U.S. has used its power to stop the U.N. from condemning Israel.  We are not expressing an opinion on whether the IDF has committed crimes against humanity.  However, we do note that there is plenty of information that indicates that this is the case, while at the same time noting that the U.S. government has not accepted such criticism.  These facts seem strikingly similar to the situation in M.A. where the NGOs were vociferous in their condemnation fo El Salvador, but the governments were more restrained in their criticism.  The BIA and the 4th circuit deemed this insufficient to establish that an individual conscripted into the armed forces would face persecution and Ms. Rafaeli would likely fail to gain asylum as M.A. did.

How Can I Prepare for Immigration Reform?

12 Mar

No comprehensive immigration reform bill has been introduced in Congress, much less signed into law. But it’s never too early to start to prepare. If and when reform is enacted, millions of undocumented immigrants will finally be able to come out of the shadows. And just as the early bird gets the worm, those who apply first will (generally) be approved first. While the enactment of legislation is months away at a minimum, there are numerous steps noncitizens can now take to ensure they qualify for a path to legalization.

  • Don’t get scammed

The first thing undocumented immigrants should do while awaiting comprehensive immigration reform is actually something they should not do: get scammed. The road to passage of a final bill will be filled with notarios, immigration “consultants,” and other unethical (and unsavory) characters who promise legal status in exchange for inordinate sums of money. Don’t fall for it. Unless an individual is a licensed attorney, he or she cannot provide legal representation. (Make sure to avoid any practitioners currently disciplined by the immigration courts, however.) And until President Obama signs a bill that has passed both Houses of Congress, immigration reform will not be a sure thing.

  • Settle up with Uncle Sam

When politicians talk about a possible pathway to citizenship, the first thing they invariably mention is the requirement that undocumented immigrants pay any “back taxes.” While reinforcing the false notion that undocumented immigrants pay no taxes at all, such a requirement will almost certainly be included in any eventual legislation. Contrary to popular belief, a Social Security number is not required to pay taxes. Individuals can instead use an “Individual Taxpayer Identification Number,” or ITIN, which can be obtained from the Internal Revenue Service. (More information about ITINs is available here.) As always, the deadline to file taxes for last year is April 15.

  • Know your criminal history

If Congress creates a pathway to citizenship, another virtual certainty is that it will exclude persons with serious or extensive criminal records. Under the leaked version of a bill being readied by the Obama administration, for example, undocumented immigrants could not legalize if they have been convicted of (a) any offense for which they served more than one year in prison, (b) three separate offenses for which they served more than 90 total days, (c) any crime rendering them inadmissible under the immigration laws, or (d) any “aggravated felony” after entering the United States.

Undocumented immigrants who have spent even one day in jail thus will likely want to consult an attorney before applying for legalization. And the first thing an attorney will want to see are records relating to prior arrests or convictions. Obtaining such records now will allow potential beneficiaries to apply sooner rather than later if and when immigration reform is signed into law. A good way to start is requesting an official criminal background check from the FBI, which costs $18.

  • Get some ID

Undocumented immigrants would also be wise to obtain some form of government identification before applying for legalization. For example, noncitizens who lack a passport can generally obtain one from their embassy or consulate of their country of nationality.  Despite being undocumented, noncitizens with employment authorization can generally obtain a valid Social Security card and/or driver’s license. If no other options exist, foreign nationals from countries that issue “matricula” cards might be able to use them in connection with their applications.

  • Establish prior presence

An as-yet-unknown requirement is the date by which undocumented immigrants must have entered the country to be eligible for a path to citizenship. For example, the legalization proposal enacted in 1986 only applied to non-farm workers who entered the country before 1982. And the bills introduced in 2006 and 2007 also contained cut-off dates stretching a number of years back.

Fortunately, it appears that any cut-off requirement will be more lenient this time around. For example, under the leaked version of the bill being readied by the Obama administration, noncitizens would have to be in the country on the date of introduction in order to qualify. And the framework released by the “Gang of 8” in the Senate contains no mention of a cut-off date, suggesting that it too would be open to recent arrivals.

Nonetheless, potential beneficiaries would still be wise to start collecting evidence now that establishes their prior presence in the country—school records, medical records, bank statements, utility bills, pay stubs, tax returns, etc.—to satisfy whatever cutoff date the final bill includes.

  • Talk to a trusted attorney

Not every undocumented immigrant will need an attorney to take advantage of a pathway to citizenship. But many will. And it can be hard to know whether one needs to hire an attorney unless one talks to an attorney. In fact, as occurred in many consultations involving prospective DACA applicants, one might discover that they were already eligible for legal status through another route.

If you want to further discuss how you might benefit from immigration reform, visit us at BenachRagland.com or check with your local bar or the American Immigration Lawyers Association.

Congress Reauthorizes VAWA But Falls Short On Immigration Provisions

6 Mar

After a long wait, Congress has reauthorized the Violence Against Women Act (VAWA), with several new protections that are of relevance to immigrant clients and practitioners. President Obama is expected to sign the bill this afternoon.

VAWA evil

VAWA evil (Photo credit: Wikipedia)

But first, what is VAWA? In 1994, Congress enacted the Violence Against Women Act (VAWA I), the first comprehensive federal legislation to address specifically the issue of violence against women. VAWA I improved greatly the availability of overall support and resources for domestic violence survivors through the creation of new criminal enforcement authority and enhanced penalties to combat domestic violence in federal courts, and provided grants to fund programs to fight violence against women.

Prior to VAWA I, immigrant spouses and children could only apply for legal residency if their United States citizen or legal permanent resident spouses filed legal residency applications on their behalf. VAWA I changed that by providing a way for battered immigrant spouses and children to gain legal immigration status by self-petitioning, so that they could escape abusive marriages with U.S. citizen or lawful permanent resident spouses. Additionally, VAWA I also provided a special form of suspension of deportation for battered spouses or children to apply to become lawful permanent residents if they could demonstrate extreme hardship to themselves or to immediate relatives. However, VAWA I proved to be ineffective and inaccessible for many due to subsequent changes and additions to immigration law, which unintentionally eliminated or rendered inaccessible many of the VAWA I protections for battered immigrant spouses and their children.

Despite its noble intentions, VAWA I fell short on several fronts. The battered immigrant had the burden to proof that the batterer was a U.S. citizen or lawful permanent resident, which was often difficult to establish. Additionally, under VAWA I, if a batterer lost U.S. citizenship or lawful permanent resident status prior to approval of the self-petition, the former INS could automatically deny the battered immigrant’s petition. Moreover, VAWA I prevented victims from divorcing their batterers prior to filing the petition. As such, battered immigrants with pending divorces could not request fee waivers for their VAWA petitions without the risk that such waiver requests would potentially delay the filing of the self-petitions until after their divorces had been finalized. Battered immigrants in removal proceedings had to prove “extreme hardship” to prevail, which often served as a bar to relief. VAWA I also had a “good moral character” requirement that served as a bar to abused immigrants who had been convicted of crimes against their perpetuators due to self-defense. In order to address these shortcomings, in 2000, Congress enacted the Violence Against Women Act of 2000 (VAWA II) to re-authorize grants and programs established under the original VAWA.

Title V of VAWA II, or the “Battered Immigrant Women Protection Act of 2000” (BIWPA), was enacted to improve access to immigration protections of VAWA for battered immigrant women, improve access to cancellation of removal and suspension of deportation, and create new VAWA II provisions, such as the “U” nonimmigrant visa, which allowed people without immigrant status to gain a visa for reporting serious crimes perpetrated against them. Under VAWA II, a battered immigrant retained the right to self-petition if the batterer was a United States citizen who died within the past two years or the batterer lost or renounced immigrant status within the past two years due to an incident “related” to the domestic violence. VAWA II also allowed the battered immigrant to self-petition even if the marriage had already been terminated if the battered immigrant could prove that the divorce was “connected” to battering or extreme cruelty by the United States citizen spouse or legal permanent resident. In addition, VAWA II permitted battered immigrant self-petitioners to remarry during the self-petition process, and allowed divorced victims to file for naturalization. It also created a good-faith exception for battered immigrants who married U.S. citizen or lawful permanent resident bigamists.

For battered immigrants in removal proceedings, VAWA II also removed the “extreme hardship” requirement for cancellation of removal. It also allowed a battered immigrant who had committed a crime to maintain “good moral character” if s/he could prove that the crime was connected to the abuse s/he had suffered and s/he not been the prime perpetrator of violence in the relationship.

Perhaps, most importantly, VAWA II created the U nonimmigrant visa to prosecute serious crimes, not limited to domestic violence, against abused non-citizens who are not in lawful immigration status as long as they cooperated with law enforcement. Such crimes include rape, torture, trafficking, incest, domestic violence, sexual assault, prostitution, kidnapping, or murder, among many others. This allowed non-citizen victims of violence not covered VAWA to gain lawful status and thus, filled an essential gap in VAWA. However, a central criticism of the U-Visa is that it is capped at 10,000 per year and easily reached within the first few months of the fiscal year.

As a response to the criticism of the U-Visa cap, in May 2012, the Senate passed a re-authorization of the Violence Against Women Act, where it raised the cap on U visas to 15,000. But the House of Representatives passed a separate bill, that omitted the cap increase, eliminated the ability of U-visa holders to apply for lawful permanent residency and presented a slew of new problems for victims. Congress never got around to reconciling the two different versions of VAWA, and hence it failed to issue a final bill to the President for reauthorization of VAWA.

In response to mounting public pressure, Congress reauthorized the VAWA last week. The relevant immigration provisions that made it into the final bill include:

  • Adding “stalking” to the list of crimes covered by the U visa.
  • “Widow penalty” extension – Allowing the surviving minor children of a VAWA self-petitioner to retain the ability to qualify for lawful permanent residence in the event that the qualifying relative passes away after the filing of the application.
  • Child Status Protection – When victims of a qualifying crime, who cooperate in the investigation or prosecution of that crime, file for a U visa that includes their children under 21 years old, the children will not age out during the process. The child will be able to receive a visa alongside the parent even if the child turns 21 before final adjudication.
  • Strengthening the International Marriage Broker Regulation Act (IMBRA) to provide vital disclosures regarding any violent criminal histories of the U.S. citizen spouse so that the foreign fiancé(e)s of U.S. citizens information they need to protect themselves from entering abusive marriages.
  • Public Charge Bar – Clarifying that a VAWA self-petitioner, a U visa petitioner or holder, or an immigrant who was battered and is deemed a “qualified alien” under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 is not subject to the public charge bar.
  • Clarifying the eligibility of crime and trafficking victims who are T or U Visa holders in the Commonwealth of the Northern Mariana Islands to adjust status after three years continuous presence

Unfortunately, the 2013 version of VAWA reauthorization passed by Congress did not permit a modest increase of U-visa numbers. Additionally, implementation difficulties remain with VAWA. The battered self-petitioner still needs to provide proof that the abuser is or had been either a United States citizen or lawful permanent resident and that the abuser’s loss of citizenship status was somehow due to an incident “related” to the domestic violence. The battered immigrant who has been divorced also finds it difficult to prove that the divorce was connected to the violence or cruelty through the marriage. In many instances, a battered spouse may not possess documentation necessary to prove that the marriage was entered into with good faith. VAWA self-petitioners are also hampered by the stringent good moral character requirements. Additional changes to VAWA provisions are also necessary to assist battered immigrants and non-immigrants with obtaining the legal and economic help necessary to combat.

Despite its drawbacks, VAWA remains a vital tool for victims of violence to escape abusive relationships. Since it was enacted, more than 98,000 people have filed petitions under VAWA, and 75% of these petitions have been approved. It is our hope that Congress will act to address any and all shortcomings remaining with the VAWA and the U-Visa as it takes up comprehensive immigration reform.

Why has my case been transferred to California?

4 Mar

California

Recently, the Citizenship & Immigration Service sent out thousands of notices to people with applications pending notifying them that their application has been transferred to the California Service Center.   Many DACA applicants with applications pending in the Vermont Service Center received this notice as did many individuals with applications for adjustment of status.  Clients often called, panic-stricken, and ask “what does it mean??”

Quite simply, it means that there was an imbalance in the workload between the two Service Centers.  There were too many applications for the adjudicators in Vermont and too many adjudicators in California with time on their hands.  So, CIS shifted some applications from Vermont to the less busy California Service Center.  That’s it.  Workload allocation and management.  Nothing sinister or foreboding.  CIS periodically makes such adjustments between Service Centers and always causes some anxiety on behalf of applicants.  It only means that the transferred case has a better chance of being resolved more quickly than it did if it sat idle in an overburdened office.

So, relax.  It’s California, after all.