CIS Update: Practice Pointers - asista

CIS Update: Practice PointersPRESENTED BY GAIL PENDLETON &CECELIA FRIEDMAN LEVINMODERATOR: SONIA PARRASApril 22, 2013This project is supported by Grant No. 2009TAAXK009 awarded by the United States Department of Justice, Office on Violence AgainstWomen. The opinions, findings, and recommendations expressed in this document are those of the author (s) and do not necessarily reflectthe views of the United States Department of Justice, Office on Violence Against Women.Copyright © ASISTA 2013All rights reserved

GOALSLegal Practice Updates CIS Stakeholder call Other recent discussions with DHS New laws in VAWA 2013 New memoranda from CIS CIR VAWA provisions update Hot Topics Practice Pointers

VSC Updates Suggestions & requests Other interesting information

VSC Practice Pointers Use blue pen (not black) Make sure original signatures where needed (192s;G-28s) G-28s for derivatives, not just principal Remember EAD options Immediately eligible to adjust = (c)(9) Deferred Action = (c))(14) Incident to grant = (c)(31) for VAWA; (a)(19) for Us U derivatives = (a)(20)

New laws Encouraging LEO U protocols Funding streams New U crime categories Stalking Labor recruitment fraud U Derivative Fix

What the fix does Measures derivative age on date of PRINCIPAL filing Back dates to original U law = 2000 Who does this cover? What about interim relief derivatives abroad? What if principal adjusted?

What should you do now? Follow CIS memo until regulations come out For those not covered by memo, keep cases alivethrough principal extensions If adjusted, is CIS aware case exists?

Three Categories covered innew U visa Age-Out GuidanceDerivatives who age out1. while the principals U visa application ispending2. after the principals U visa application hasbeen approved3. U-3 status has already expired

1. U-3 Derivatives who age outwhile the I-918A is pending• Derivatives who turn 21 after the I-918A U visa application isfiled will be eligible for deferred action (DA) status ifrequirements are met• Process for issuance of DA:• Derivative must submit prima facie evidence of his/hereligibility for derivative non-immigrant status, THEN• Case will be reviewed to determine whether to exercisediscretion to grant deferred action status• If granted, applicant will be notified to file EAD• Applications considered on case-by-case basis

Deferred Action & Prima FacieDA "should not be granted" where there are adversefactors such as- clearly ineligible- aggravated criminal history- poses a threat to public safety of nationalsecurity- It does not preclude govt from initiating orconducting removal proceedings

Practice Pointers for Derivatives• Adjustment Issueswith Deferred Action• If a derivative has deferred action status, then theprincipal U-1 applicant SHOULD NOT ADJUST his/herStatus to LPR• Principal U-1 applicant should file I-539, Extensionof Status See:USCIS. Extension of Status for T and U Nonimmigrants; Revisionsto Adjudicators Field Manual (AFM) Chapter 39.1(g)(3) andChapter 39.2(g)(3) (AFM Update AD11-2 (April 11, 2011).

Practice Pointers for EAD• Need to be notified of granting of DA to then submit765• File I-765 for derivative using (c)(14) deferredaction status designation.

2. U-3 Derivatives who turn 21after approval• USCIS will (as of the effective date of the Guidance--December 12, 2012)grant full four-year U-3 status to derivatives who are under 21 years of ageat the time of approval, but who will turn 21 during the four-year statutoryperiod.• For derivatives overseas• VSC will send the approval of the U-3 to the principal applicant andforward all documents to Department of State for processing.• The derivative will have the responsibility to schedule the appointmentwith the U.S. Embassy or Consulate to apply for his/her U visa and enterthe U.S. prior to turning 21 years old.• TIP: work with derivative from the beginning to ensure passportrequirements, location of embassy and trip etc. are planned for aheadof time

U-3 Derivatives whoturn 21 after approvalFor those currently were granted U-3 status for a period less than 4years and has yet to turn 21- USCIS will extend their U-3 status to a 4 year period- The U-3 derivative must file an I-539 extension of status withUSCIS- This will allow derivatives to accrue enough continuous presenceto adjust under INA 245(m)

Practice Pointers for Derivativeswho Age-Out after approval• U-3 derivatives should file an I-539 extension of statusif their initial grant was less than the 4 year statutoryperiod.• If needed, file an I-765 concurrently under (a)(20)designation.• Cite recent guidance in cover letter.

3. U-3 Derivatives whose statushas expired• Guidance permits derivatives to file a Form I-539: Application toExtend/Change Nonimmigrant Status (I-539 applications) after theexpiration of their U-3 status.• No expiration for filing date• Upon approval of a U-3s I-539 application, derivatives would begranted the remaining time of the four-year period of U nonimmigrantstatus.• For these U-3 derivatives who aged out long before the Guidance,USCIS may grant the remaining time available in U nonimmigrantstatus, to equal four years, as well as an additional time fromexpiration of the four-year period up to one year from the date ofapproval of the I-539 application.

Procedural Practice Pointers• I-539 instructions state that if the application is filed after statushas expired then the individual must demonstrate that the delaywas caused by circumstances outside of their control.• The Age-Out Guidance specifically states that for those withderivative U-3 status who aged out prior to the implementationof the Guidance, the failure to maintain U-3 status was due toextraordinary circumstances beyond their control.• CITE this language of the Guidance in your application to makethe connection for the adjudicator.• File an I-539 extension for aged-out derivatives ASAP togetherwith an I-765 under (A)(20) eligibility

New Regulations Should Fix• Derivatives abroad• Adjustment

Work Authorization Memo First part explains existing systems VAWA derivatives who age out Second part = Derivatives of certain other nonimmigrants,especially H visa holders Work authorization only Unclear what severing relationship does CIR options

U Hot Topic Practice Pointers

More U Practice Pointers Bystanders vs. Indirect vs. Direct victims Direct and proximate harmInadmissibility IssuesMust make SOME argument even for EWI onlyWaiver practice pointersTravel IssuesDocuments and processing

ADJUSTMENT OF STATUS- U Final orders Failure to voluntarily depart Inadmissibility in discretion decision Second LEO certification options Derivatives = 929 issues

For Prima Facie U decisionsCase-by-case: imminent removal, detention ICE must contact VSC; they communicate with ICE orEOIR If they wont, go up chain of command, then contact us We report to VSC, CIS HQ and ICE HQ Otherwise, VSC does not communicate with ICE on Udecisions and ICE has no role in decisions

VAWA Hot Topic Practice PointersRFE problemsproject with AILA & AAOAvoiding Reinstatement of Removal CIS HQ will help educate districts Lets try filing 601 & I-212 at VSC (work with us)

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