VAWA II Immigration Fixes^[1]

Quick Summary

Prefatory notes:  (1) This is not an exhaustive list, and you should read the law yourself.  Assume existing eligibility requirements not mentioned remain the same.  (2) This bill does not contain everything we wanted, and does contain some language we disfavored (e.g., requiring connection to domestic violence for loss of status, divorce, and various other things).  As you can see, however, it is a significant step forward.

Adjustment for Approved Self-Petitioners

• Approved self-petitioners eligible to adjust under 245(a)

• Approved self-petitioners exempt from 245(c)

Effective date:  Applications for adjustment pending or filed on or after Jan. 14, 1998 (i.e., pending or post-245(i) filing deadline)

New Motions to Reopen

• Must file within one year of final removal order if eligible to adjust on self-petition or applying for VAWA cancellation

• Waiver of one-year deadline for extraordinary circumstances or extreme hardship to child

• No deadline for motions to reopen proceedings or rescind in absentia orders under pre-IIRIRA law if eligible to adjust on self-petition or applying for VAWA suspension under either old 244(a)(3) or 244(a)(3) amendments of this law

Effective date for motions for reopening removal proceedings:  IIRIRA § 304 effective date = AEDPA effective date = April 24, 1996

Self-Petitioning Improvements

• No extreme hardship requirement

• May apply from abroad, if there has been some domestic violence in the U.S.

• Spouses and children of USC/LPR employees and military living abroad eligible

• May show good moral character despite 101(f) 212(a) bars if conduct was "connected" to domestic violence

• Derivatives who age out transform into self-petitioners with same priority date

• Automatic upgrade to immediate relative if abuser naturalizes (no relationship required)

• Remarriage does not terminate self-petition

Self-petitioners eligible even if

• Marriage terminated in past 2 years "connected" to domestic violence

• Abusers loss status in past 2 years "related" to domestic violence

• Abusers died in past 2 years (only USC abusers)

• Abusers are/were bigamists

Effective Date:  Not specified, therefore enactment (when President signs)?

VAWA Cancellation/Suspension Improvements

• Abusers may lose USC/LPR status before applicant files (no time frame)

• Same language may be read as allowing abusers to die as well

• NTAs and OSCs do NOT terminate continuous presence

• Absences "connected" to domestic violence do NOT count for continuous presence

• IJ may waive ineligibility because of domestic violence ground of removal deportability

• IJ may find good moral character despite 101(f) bar if "connected" to domestic violence

• Extreme hardship to parent qualifies (including spousal applicants)

• Children and parents of applicants are eligible for 212(d) parole until eligible to adjust as beneficiary of applicant's second preference petition

• Those now eligible may file new motion to reopen (see below)

Effective Dates

• Cancellation effective date = "as if included in IIRIRA § 304" = AEDPA effective date = April 24, 1996 (odd, but good)

• Suspension effective date = VAWA effective date = Jan. 1, 1995

• IIRIRA § 309(c)(5) fix for NTA/OSC termination of continuous presence = IIRIRA § 309 effective date = IIRIRA Title III-A effective date = April 1, 1997

Inadmissibility and Deportability Waivers

• Public charge ground amended to exclude from consideration public benefits for which VAWA applicants qualified

• Inadmissible fraud waiver expansion, 212(i), allows extreme hardship for approved VAWAs to self or USC/LPR or "qualified alien" child/parent (note that "qualified alien" = welfare bill term and includes approved VAWA self-petitioners) NOTE NO WAIVER for false claims to citizenship.

• Deportable fraud waiver, 237(a)(1)(H), for "qualifying" self-petitioners

• 212(a)(9)(C) ("permanent" unlawful presence bar) waiver for approved self-petitioners if "connection" between domestic violence and removal, departure, reentry or attempted reentry

• Waiver of domestic violence ground of removal, 237(a)(2)(E), for those not primary perpetrators and self-defense, civil protection order violation was against self, or crime involved no serious bodily injury and domestic violence connection.  Any credible evidence standard applies.

• HIV waiver for "qualifying" self-petitioners, 212(g)(1)

• 212(h) criminal offenses waiver expanded for "qualifying" self-petitioners

Effective Date:  Not specified, therefore date of enactment (when Pres signs)?

Other Applications for Status

New "U" Nonimmigrant Visa

• New nonimmigrant visa with adjustment possibility after three years for noncitizens who suffer "substantial physical or mental abuse" as result of a laundry list of criminal violations (and things like them), including domestic violence, peonage and involuntary servitude  (for some of those housekeeper cases, maybe?)

• Applicant (or, if child, someone who represents you has info on the crime) must have information on the crime, must be "helpful" or "likely to be helpful" to federal, state or local law enforcement official, prosecutor, judge, other authority or to INS in investigating or prosecuting the crime

• Crime must violate U.S. laws or occur in the U.S. or its territories (includes military bases)

• Derivatives may get too, if show extreme hardship to them otherwise

• Must have "certification" from federal, state or local law enforcement official, prosecutor, judge, other authority or INS officer investigating the criminal activity

• Certification must state that the applicant "has been helpful, is being helpful, or is likely to be helpful" in investigating or prosecuting the crime

• Any credible evidence standard applies

• No more than 10,000 "U" visas a year (not including derivatives)

• Visa holders authorized to work

• Adjustment available (unless a terrorist or "unreasonably refused to provide assistance" in the criminal investigation or prosecution) after 3 years of continuous presence and humanitarian grounds, family unity or public interest justify continued presence.

• Continuous presence = 90/180 day test unless absent to help with investigation/prosecution or official certifies absence justified

• Derivatives (without their own visas) may adjust to avoid extreme hardship

Naturalization

• LPRs through VAWA may naturalize in 3 years (no residence-with-spouse requirement)

Cuban Adjustment Fix

• Spouses and children of primary applicants need not reside with primary if show battery/extreme cruelty; any credible evidence standard applies

Effective date:  VAWA = Jan. 1, 1995

NACARA Fixes

Adjustment for Nicaraguans and Cubans

• Spouses and children of those adjusted under NACARA eligible if show battery/extreme cruelty; any credible evidence standard applies

Suspension Applicants

• NACARA suspension applicants' spouses and children of (at time of filing, suspension decision, registering for ABC class, applying for Temporary Protected Status, applying for asylum) eligible to file under IIRIRA § 309(c)(5)(C) if battery/extreme cruelty by primary applicant; no residence with abuser required.

Effective date: NACARA, presumably 309(c)(5) effective date? = 4/1/97

HRIFA Fix

• Spouses and children of HRIFA adjusters eligible to adjust if show battery/extreme cruelty by HRIFA adjuster; any credible evidence standard applies