Violence Against Women Reauthorization Act of 2013: Changes to U Nonimmigrant Status and Adjustment of Status Provisions
Recently the USCIS policy memo laid out the new legislation that amends the INA affecting U Nonimmigrant status and the adjustment of status applications. This updates the sections 39.1(a)(9) and 39.1(f)(4) of Chapter 39 of Adjudicator’s Field Manual.
To be eligible under U Nonimmigrant Provisions of VAWA 2013, an alien has to show the following:
- an alien must have suffered substantial physical or;
- mental abuse as a result of having been a victim of certain qualifying criminal activity.
The INA provides the statutory list of qualifying criminal activity for U nonimmigrant status. This list includes any attempt, conspiracy, or solicitation to commit any of the statutorily listed crimes, including any criminal offense that is substantially similar to one of the listed crimes. Firstly, as per this new legislation, two new crimes have been added to the original statutory list for nonimmigrant eligibility, namely “Stalking” and “Fraud in Foreign Labor Contracting (as defined in section 1351 of title 18, United States Code)” are now qualifying criminal activities for U nonimmigrant purposes. USCIS reviews each U nonimmigrant petition on a case-by-case basis, including all evidence from the victim and law enforcement, to determine whether the criminal activity described in the petition meets the general definition of a qualifying criminal activity.
Secondly, the Policy Memorandum provides age-out protection to those previously granted derivative U nonimmigrant status but whose status expired upon turning 21 years of age. Further, this Memo allowed for derivative petitions properly filed on or after the date of the publication of the memo to be allowed the full 4 years of derivative U nonimmigrant status upon approval of the derivative petition. It specifically deals with cases wherein the he qualifying family member turned 21 years of age while his or her petition was pending. Specifically, when a principal petitioner for U nonimmigrant status now properly files his or her principal petition, the age of the qualifying family member is established upon the date on which the principal properly filed for his or her principal U nonimmigrant status. Therefore, the age of the qualifying family member is determined by the date on which the principal properly filed his or her Form I-918, Petition for U Nonimmigrant Status. An unmarried qualifying family member “child” under 21 years of age who has a derivative petition properly filed for him or her by the principal will continue to be considered a “child” throughout the adjudication process, even if the qualifying family member turns 21 years of age while the principal or derivative petition is pending.
Moreover, unmarried siblings under 18 years of age at that time and parents will still be considered qualifying family members for derivative U nonimmigrant status, even if, at the time of adjudication, the principal is over 21 years of age and even if the unmarried sibling is over 18 years of age.
Thirdly, VAWA 2013 provides that the “public charge” ground of inadmissibility at INA § 212(a)(4) does not apply to any alien who is petitioning for or has been granted U nonimmigrant status, or derivative U nonimmigrant status. Therefore, any alien seeking or granted principal or derivative U nonimmigrant status is not subject to the public charge ground of inadmissibility, and will not have to submit a waiver application for this ground of inadmissibility. USCIS plans to eliminate the question relating to public charge from the Form I-918. Until that time, petitioners should write in “not applicable” in response to the related question on the Form I-918.
Fourthly, USCIS has the discretionary authority to deny any U nonimmigrant adjustment of status application when a negative exercise of discretion is warranted, the public charge ground of inadmissibility shall not apply to U nonimmigrant applications for adjustment of status.
Fifthly, VAWA 2013 provides for placement in federal foster care under the Unaccompanied Refugee Minors Program to principal and derivative U nonimmigrant children.26 To access this benefit, eligible U nonimmigrant children must apply with HHS and be placed prior to turning 18 years of age.
Lastly, Violence Against Women Act (VAWA) amended the Cuban Adjustment Act (CAA) specifically, for an abused spouse or child applying for adjustment of status under section 1 of the CAA. The VAWA amendments provides that:
- The abused spouse or child does not need to demonstrate he or she currently resides with the abusive Cuban spouse or parent;
- The abused spouse remains eligible to file an application for adjustment of status within two years after the death of the abusive Cuban spouse, if the applicant lived with the abusive Cuban spouse; and
- The abused spouse remains eligible to file an application for adjustment of status within two years after the termination of the marital relationship (i.e., divorce or annulment) from the abusive Cuban spouse, if the abused spouse demonstrates that the:
- Termination of the marriage and the abuse by the Cuban spouse are connected;
- and the abused spouse lived with the abusive Cuban spouse.