11/1/2010

1

Adjustment of Status for T Non-Immigrants

Protecting Immigrant Women and Girls Fleeing Violence

Morgan WeibelImmigration Staff Attorney

morgan@tahirih.org571-282-6161

© Tahirih Justice Center November 1, 2010

Jessica SalsburySenior Immigration Staff Attorneyjessica@tahirih.org571-282-6161

Background: VTVPAThe Victims of Trafficking and Violence Prevention Act of 2000 created:

• The U Visa - for victims of certain crimes

Protecting Immigrant Women and Girls Fleeing Violence

– Federal Register Volume 72, Number 179, Pages 53013-53042 (September 17, 2007)

• The T Visa - for victims of human trafficking– Federal Register: Volume 67, Number 21, Pages 4783-4820

(January 31, 2002)

Background: The T VisaTo be eligible for a T visa, an applicant must show the following:

• She is a victim of a “severe form of trafficking” (sex or labor)

• She is physically present in the US “on account of ” the trafficking

d b f

Protecting Immigrant Women and Girls Fleeing Violence

• She has complied with any reasonable request for assistance in the investigation and prosecution of acts of trafficking or meets the trauma exception; and

• She would suffer extreme hardship involving unusual and severe harm upon removal

11/1/2010

2

• Primary evidence of cooperation (ideal but not required): – I-914B, Declaration of Law Enforcement Officer (DOJ, FBI,

ICE, etc.);– Continuous Presence

• Secondary evidence of cooperation:

Background: Cooperation with Law Enforcement is Essential

Protecting Immigrant Women and Girls Fleeing Violence

– Letters or other correspondence detailing efforts to obtain I-914B or client’s cooperation with federal law enforcement;

– I-914B signed by local law enforcement;– Letters from local enforcement

• Success of investigation and/or prosecution does not affect eligibility!

Background:T Visa Adjustment Regulations

– Adjustment Regulations published on December 12, 2008 went into effect on January 12, 2009. 73 Fed. Reg. 75540-75564 (December 12, 2008) (codified at 8 C.F.R. 245.23 and 245.24)

– T adjustment is controlled by INA §245(l) These are stand

Protecting Immigrant Women and Girls Fleeing Violence

– T adjustment is controlled by INA §245(l). These are stand-alone provisions, not variations of INA §245(a) which controls general adjustment of status

– USCIS Form I-485(e) contains instructions for completing T visa-based adjustments

T Visa Adjustment:Requirements

1. Admitted as T nonimmigrant2. Continuous physical presence (“CPP”)

3 ears CPP in US since the T isa as granted

Protecting Immigrant Women and Girls Fleeing Violence

– 3 years CPP in US since the T visa was granted – But, can file before three years if investigation or

prosecution is complete (and you can prove it)

11/1/2010

3

T Visa Adjustment:Requirements (continued)

3. Applicant complied with any reasonable requests for assistance OR would suffer extreme hardship upon removal

4 Good moral character since grant of T

Protecting Immigrant Women and Girls Fleeing Violence

4. Good moral character since grant of T visa

5. Admissible to the U.S. as an LPR

Continuous Physical Presence

• Departures from the U.S.: More than 90 days for one departure or aggregate of 180 days = no CPP

• Must submit copies of every page of passport or equivalent travel document and documentation related to all

Protecting Immigrant Women and Girls Fleeing Violence

departures/reentries

• If the applicant does not have a passport, she must explain why in her declaration

Documenting Continuous Physical Presence

• Client declaration required, but is not alone sufficient

• Additional documentation can include: – Government documents– Transcripts or school records– Employment records

Protecting Immigrant Women and Girls Fleeing Violence

– Rent/Mortgage payments– Utility bills

• If no additional documentation is available, must submit statement explaining why and include additional affidavits that attest to CPP

11/1/2010

4

Complied with Reasonable Requests for Assistance

• Must demonstrate that applicant complied with reasonable requests for assistance– Submit DOJ issued document/letter (rule

Protecting Immigrant Women and Girls Fleeing Violence

J / (does not prescribe form)

Extreme HardshipAs an alternative to proving cooperation with law enforcement, the applicant may demonstrate that she would suffer extreme hardship involving unusual and severe harm upon removal:

– Physical or mental illness, need for medical or h l i l h i il bl i h

Protecting Immigrant Women and Girls Fleeing Violence

psychological care that is unavailable in home country, likelihood of harm in home country, etc.

– May not be based on economic detriment– Do not need to resubmit extreme hardship evidence

submitted with I-914, but may establish that hardship is ongoing.

Inadmissibility• Applicants must be admissible

– USCIS Form I-601 can be used to waive grounds of inadmissibility

– Waiver not required for public charge ground if applicant received refugee benefits as a certified trafficking victim

– Waiver not required for unlawful presence if it is related to

Protecting Immigrant Women and Girls Fleeing Violence

Waiver not required for unlawful presence if it is related to the trafficking.

• Security-related grounds, International Child Abduction, and renouncing citizenship to avoid taxation cannot be waived.

11/1/2010

5

Good Moral Character

• INA 101(f) lists categories precluding good moral character (criminal grounds, gambling, false testimony habitual drunkard etc ) but the list is not conclusive

Protecting Immigrant Women and Girls Fleeing Violence

drunkard, etc.) but the list is not conclusive

Good Moral CharacterTo prove good moral character, the applicant must provide:

– Local police clearance or state-issued criminal background check from each locality or State in the US in which she has resided for 6 or more months since

Protecting Immigrant Women and Girls Fleeing Violence

being granted a T visa (or explanation in declaration/additional evidence if not available)

– Affidavit from applicant attesting to her good moral character

Derivative Adjustments

• Must be family member of the T-1 principal applicant

• Must be in lawful T derivative (T-2, T-3, T-4, or T-5 nonimmigrant status)

Protecting Immigrant Women and Girls Fleeing Violence

g )• Principal’s I-485 has been approved, is pending, or

is concurrently filed• Principal is eligible for adjustment• Derivative is admissible to the U.S. as an LPR

11/1/2010

6

Derivative AdjustmentsThe T derivative’s adjustment application is based on the principal’s eligibility.

Derivatives do NOT need to submit:

Protecting Immigrant Women and Girls Fleeing Violence

• Proof of CPP• Criminal background check• Proof of reasonable assistance to law

enforcement

Components of Adjustment Packet (Part One)

• Copy of personal documents (i.e. birth certificate, driver’s license)

• USCIS Form I-485 (application for permanent residency)• USCIS Form G-28 (notice of entry of appearance)• USCIS Form G-325A (biographic information)

Fili d bi i f ( f i )

Protecting Immigrant Women and Girls Fleeing Violence

• Filing and biometrics fees (or fee waiver request)• Copy of I-797, T visa approval notice• Copy of all pages of passport (or explanation)• Copy of I-94 Arrival/Departure record (and/or add’l evidence)• USCIS Form I-601 (if necessary) with filing fee (or fee waiver) • Medical examination

Components of Adjustment Packet (continued)

Client declaration and other evidence showing:• Evidence of Continuous Physical Presence• Evidence of Continued Cooperation or

Protecting Immigrant Women and Girls Fleeing Violence

Evidence of Continued Cooperation or Extreme Hardship

• Evidence of Good Moral Character• Evidence in support of favorable exercise

of discretion

11/1/2010

7

Components of Adjustment Packet- Derivatives

For each T derivative, you should also submit:• Form G-28• Form I-485 • Filing and biometrics fees (or fee waiver request)

Protecting Immigrant Women and Girls Fleeing Violence

g ( q )• Personal documents • Copy of all pages of passport• I-94 arrival/departure record• Medical examination

Application Process

• File application with Vermont Service Center; specify VAWA Unit on envelope

• Adjustment applicants are eligible for Employment Authorization Documents– Category (c)(9)

• USCIS sends Approval Notice

Protecting Immigrant Women and Girls Fleeing Violence

• USCIS sends Approval Notice• Denials are given in writing; appeals can be made to

the Administrative Appeals Office• 3-6 months estimated time to adjudicate

* Cap of 5,000 T visa adjustments per year

Final Note: Travel• T nonimmigrants must apply for Advance Parole

before traveling; if not, application for adjustment is considered abandoned.

Remember:

Protecting Immigrant Women and Girls Fleeing Violence

– Even if Advance Parole is granted, grounds of inadmissibility are considered upon re-entry.

– Advance Parole does not overcome three and ten year bar issues.

11/1/2010

8

Morgan WeibelImmigration Staff Attorney

Jessica SalsburySenior Immigration Staff Attorney

Follow up questions? Contact us at:

Protecting Immigrant Women and Girls Fleeing Violence

Immigration Staff Attorneymorgan@tahirih.org

571-282-6161

Senior Immigration Staff Attorneyjessica@tahirih.org571-282-6161