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
21AD0037