Tag Archives: VAWA

Lifted Lamp’s Top Ten Blog Posts for 2013 & Poll for Topics for 2014

27 Dec

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Looking back on what turned out to be a disappointing 2013 for the lack of progress on meaningful immigration reform and on the continuing pace of removals, we have tried to figure out what articles and stories most appealed to our readers.  Turns out that our readers were not as interested in the minute-by-minute accounts of progress, but rather came to Lifted Lamp for information about developments in the law that had a real impact upon their lives.  The provisional waiver, DACA, the de Osorio litigation were topics that continually received interest from our readers.  We hope to use this information to make this blog more useful and interesting to our readers.

We have compiled our 2013 Top Ten Blogposts and provide some thoughts on them after they have been written, published and we have received feedback.

10.  Leave it to controversy to be popular.  Our tenth most popular blog of 2013 is just over a month.  On November 25, we wrote about the young man who challenged the President to halt removals while waiting for immigration reform.  In “Does the President Have the Power to Stop All/Most Removals?“, we discussed whether the President can use his executive power to halt all deportations.  We decided that the President probably could not halt all deportations, but he could definitely stop a whole lot more.

9.   The provisional waiver, which has allowed the spouses of U.S. citizens to seek the required waiver of the ten year bar before traveling abroad, has been a continually popular topic on this blog.  In February 2013, we asked “Should I Apply for a Provisional Waiver or Wait for Immigration Reform?”  We answered that the provisional waiver was likely the better bet.  Turns out we were right.  Hundreds of people have received their residence through the provisional waiver, whereas immigration reform remains stuck in the quagmire of today’s politics.  While there is lots of talk about the prospects for reform in 2014, we continue to place our bet on the provisional waiver.

8.  The de Osorio litgation regarding the interpretation of the Child Status Protection Act has generated a lot of interest on this site.  We have chronicled the litigation from our submission of an amicus brief on behalf of undocumented youth at the 9th circuit and celebrated the victory in the 9th Circuit decision.  We implored the administration not seek review of the 9th Circuit’s decision in the Supreme Court and  shared our disappointment in the government’s decision to seek certiorari review in “Opportunity Lost: Administration Seeks Supreme Court Review of de Osorio.”  The Court heard arguments on December 12, 2103 and a decision is expected by June 2014.

7.  Also, in January 2013, we sought to explain some basics of immigration law as the popularity of the “go to the back of the line” school of thought dominated discussion of immigration reform.  In “What’s The Deal with the Immigration Line?“, we discussed how the visa numbers and quotas work and, more often, don’t work.  We had a lot of fun with this post and are glad that it was so well received.

6.  In February 2013, we highlighted a piece of legislation proposed by Senator Orrin Hatch (R-UT) called the I-Squared Act.  In “Immigration Reform 2013: Understanding the I-Squared Act,” we described Senator Hatch’s proposals to modernize and improve the visa process for high tech workers.  Much of Senator Hatch’s bill was folded into the Senate bill which passed the Senate in June 2013 and remains languishing in the House of Representatives.

5.  A surprise for number 5!  In March, we wrote about Congress’ belated re-authorization of the Violence Against Women Act.  In “Congress Reauthorizes VAWA But Falls Short on Immigration Provisions,” we discussed the history of the VAWA, improvements made in the 2013 reauthorization, and disappointments in the bill.  One of the bigger disappointments was Congress’ failure to raise the cap on U visas, a failure that has proven to be significant as the U visa cap for 2013 was reached in December.

4.  In January 2013, we discussed the development and roll-out of the provisional waiver process.  The provisional waiver has been one of the most popular topics on our blog.  And for good reason, the provisional waiver is one change to the immigration laws that has directly benefited immigrants in 2013.  While immigration reform has stalled, the provisional waiver has proven to be a way out of the catch-22 of ineligibility for adjustment in the U.S. and the ten year bar triggered by traveling abroad.  In “Q&A on I-601A Provisional Waivers,” we reported on the procedures that CIS would use in executing the provisional waiver process.

3.  The provisional waiver dominates the top three spots.  In “The Provisional Waiver and Removal Proceedings,” we discussed the process of seeking a provisional waiver for individuals in removal proceedings.  This topic still draws interest as I took a call yesterday from a lawyer who wanted our thoughts on a government motion to terminate removal proceedings so that the client could seek the provisional waiver.

2. Again, the provisional waiver draws a lot of interest.  In this post, “What is Extreme Hardship?“, we used our years of experience preparing applications for waivers to help illuminate this very subjective and squishy standard.  One of our most popular posts, this post is very similar to many of the consultations we do where we help people identify relevant hardship factors before applying for waivers.

numero uno1.  Our most popular post is “10 Facts About the Provisional Waiver Process.”  This is, by far, our most popular post.  It was our first post of 2013.  We are a bit curious as to its popularity given how many developments there have been in the provisional waiver process, but this post remains an informative introduction to the provisional waiver, what it means to accomplish, and the mechanics of seeking a waiver.

Thanks to all of our readers.  We have studied these results and will use this information to make this blog more interesting and useful to you.  Happy new year to all!

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.