USCIS Publishes Interim Final Rule on Adjustment of Status for U Nonimmigrants By Sarah Bronstein December 2008

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1 USCIS Publishes Interim Final Rule on Adjustment of Status for U Nonimmigrants By Sarah Bronstein December 2008 The Victims of Trafficking and Violence Protection Act of 2000 created two new immigration benefits, T and U nonimmigrant status, in an effort to assist law enforcement with the investigation and prosecution of trafficking and serious crimes. T nonimmigrant status is available to aliens who are victims of severe human trafficking. U nonimmigrant status is available to aliens who are victims of certain crimes. Regulations implementing the T nonimmigrant provisions became effective on March 4, FR 4784 (Jan. 31, 2002). The U nonimmigrant regulations became effective on October 17, FR (Sept. 17, 2007). Both T and U nonimmigrant status offer pathways to adjustment of status. On December 12, 2008, after much anticipation, USCIS published interim regulations providing for adjustment of status for individuals in T and U status. 73 FR The T and U adjustment of status regulations become effective on January 12, 2009 and allow for a 60 day comment period. This article will examine the U status adjustment provisions. The February issue of the CLINIC News will include an article on the T status adjustment provisions. In conjunction with these articles, CLINIC is offering two free webinars for CLINIC affiliates. If you missed the January 8 th webinar on the U adjustment regulations, you may visit the members only page of the CLINIC website for a recorded version of the presentation. On February 11 th, CLINIC will offer a webinar on the T adjustment regulations. Section 245(m) of the INA provides for adjustment of status for U nonimmigrant status holders. The regulations clarify that INA 245(m) is not a variation of INA 245(a) and therefore the restrictions on adjustment found in that provision do not apply. In addition, while there is a statutory limit on the number of U visas which can be issued under INA 214(p)(2), there is no limit on the number of U adjustments which can be approved per year. In order to qualify for adjustment of status under INA 245(m), the applicant must have been lawfully admitted to the United States in U nonimmigrant status and must continue to hold that status at the time of the application. The applicant must have maintained continuous physical presence in the U.S. for at least three years since the date of admission as a U nonimmigrant. Finally, the applicant must not have unreasonably refused to provide assistance in the investigation or prosecution of the crime of which he or she was a victim. The Applicant Was Admitted in and Maintained U Nonimmigrant Status In order to show that the applicant was admitted in U nonimmigrant status, the applicant must submit a copy of the Notice of Action, Form I-797, granting U nonimmigrant status, along with the I-94 Arrival/Departure Record if the applicant was in the U.S. when the U status was approved. If the applicant entered the U.S. on a U visa, he or she must submit

2 a copy of the passport containing a U nonimmigrant visa along with a copy of his or her I-94. The Applicant Maintained Three Years Continuous Physical Presence The regulations require that the applicant must have maintained at least three years of continuous physical presence in the U.S. since the date of admission as a U nonimmigrant. If the applicant has been absent from the U.S. for more than ninety consecutive days or for more than 180 days in the aggregate (a series of absences added together which equal more than 180 days), he or she has not maintained continuous physical presence. These absences will only be excused if the applicant can show that the absence was necessary to assist in the investigation or prosecution of the qualifying crime or if an official involved in the investigation certifies that the absence was otherwise justified. The regulations state that the applicant must submit an affidavit, as well as additional evidence, showing that he or she has accrued three years of continuous physical presence. The regulations are unclear as to exactly how much evidence must be submitted or for what periods of time. The preamble to the regulations states that the applicant does not need to provide evidence of presence on every day of the three year period, but that there should be no significant chronological gaps in documentation. (Preamble at p. 31). In addition, the applicant s affidavit alone will not be sufficient to establish continuous physical presence. The preamble suggests applicants may submit as evidence documents issued by a governmental or nongovernmental authority with the name of the applicant, the date it was issued and a signature, seal or some other means of authentication if the document would normally contain such information. Other suggestions of evidence include school or employment records, tax returns, a series of utility bills or rental receipts or documents in the applicant s DHS file such as a law enforcement certification indicating the applicant has provided ongoing assistance during a certain period of time. The Applicant has not Unreasonably Refused to Assist in Investigation or Prosecution The preamble to the regulations state that USCIS interprets section 245(m)(1) of the INA to impose an ongoing requirement that U nonimmigrants not unreasonably refuse to provide assistance in the investigation or prosecution of the qualifying criminal activity. If there is a determination that the applicant s refusal to provide assistance was unreasonable, he or she will not be eligible for adjustment of status. The regulations state that if there is any evidence that the applicant refused to provide assistance, the application for adjustment of status will be referred to the Department of Justice (DOJ) to determine whether the refusal to assist was unreasonable. The determination should take into account the totality of the circumstances by considering factors such as general law enforcement, prosecutorial, and judicial practices; the nature of the request for assistance and the specific circumstances of the applicant including level of trauma, age and maturity. DOJ will have ninety days to either provide a written decision to USCIS or request an extension of time. If ninety days have passed without response from DOJ, USCIS may go forward with adjudicating the application.

3 The regulations require that applicants describe any requests they received for assistance from law enforcement and how they responded. The preamble to the regulations suggests that in order to facilitate the adjudication process, applicants satisfy this requirement by having an official involved with the investigation or prosecution sign a document stating that the applicant complied with or did not refuse to comply with any requests for assistance. Though it is not required, the preamble states that if the applicant meets this requirement by submitting a newly executed Form I-918, Supplement B law enforcement certification, USCIS will not refer the application to the Attorney General for review unless there are extraordinary circumstances. The regulations acknowledge that it may not be possible for the applicant to obtain a new law enforcement certification in which case the applicant may submit an affidavit describing his or her efforts to obtain a new law enforcement certification. In this case, the applicant should include a description of all requests for assistance after the applicant was granted U nonimmigrant status and how he or she responded to those requests. The applicant should also provide identifying information about the law enforcement officials involved in the case and the status of the investigation or prosecution. This could be done through court documents, police reports, news articles or affidavits from others involved in the case. If the applicant refused to comply with requests for assistance, the regulations suggest that he or she may want to provide a detailed description of the circumstances of the refusal to assist. Inadmissibility Issues Adjustment is Discretionary Generally applicants for adjustment of status must show that they are not inadmissible under any of the provisions of 212(a) of the INA. However, U nonimmigrants applying for adjustment of status under sec 245(m) are only subject to one ground of inadmissibility, 212(a)(3)(E), which pertains to participants in Nazi persecution, genocide or the commission of any act of torture or extrajudicial killing. There is no waiver of this ground of inadmissibility. While U nonimmigrant applicants for adjustment of status are not required to show they are not inadmissible under any of the other grounds, the regulations reiterate that adjustment of status is a discretionary benefit. The regulations state that applicants have the burden of showing that discretion should be exercised in their favor. In the absence of adverse factors, family ties, hardship and length of residence in the U.S. may be enough to merit a favorable exercise of discretion. Where there are adverse factors, the applicant must make greater attempts to show he or she has sufficient equities to outweigh the negative factors. The regulations indicate that there is a possibility that the adverse factors will be such that the applicant may be required demonstrate that the denial of adjustment would result in exceptional and extremely unusual hardship. The regulations go on to state that there may be circumstances where even if the applicant is able to meet this heightened hardship standard, a favorable exercise of discretion would not be warranted. The preamble lists examples such as where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse of a child, multiple drug-related crimes or where there are security or terrorism related issues.

4 Transitional Rule for those with Four or More Years of Interim Relief The regulations provide a transitional process for individuals who have accrued four years or more in U interim relief status prior the issuance of the new regulations. During the period of time between the creation of U status in 2000 and the issuance of implementing regulations in 2007, U nonimmigrant status applications could not be approved. Instead, USCIS granted interim relief, generally in the form of deferred action status, to those who demonstrated prima facie eligibility for U status. Section 214(p)(6) of the INA provides that the maximum duration of U nonimmigrant status is four years absent a law enforcement certification stating that the U nonimmigrant s presence continues to be necessary for law enforcement purposes. The U status regulations provide that those who had interim relief whose U status application is approved will be granted nonimmigrant status retroactively to the date that the request for interim relief status was first approved. In order to avoid the situation where individuals who had been in interim relief status for more than four years would no longer be in that status upon application for adjustment of status, USCIS created a transitional rule for individuals in that situation. The transitional rule provides that those with more than four years in interim relief status must apply for adjustment of status within 120 days of the approval of their U nonimmigrant status. In addition, the preamble to the regulations states that those with more than four years in interim relief status whose U nonimmigrant status petitions (Form I-918) are still pending before USCIS, may apply for adjustment of status without waiting for approval of the I The regulations themselves do not contain this provision, however, and at this time USCIS is taking the position that the adjustment application can not be filed until the I- 918 has been approved. Application Process As with other requests for adjustment of status, requests for adjustment of status for U nonimmigrants must be made on Form I-485 and must include the standard fees or a fee waiver request and the supporting documents described above. The instructions to the I- 485 specify the filing locations. U adjustment applicants may apply for employment authorization under category (c)(9) once their I-485 is filed. Process for Family Members not in U Status The INA permits both qualifying family members who are already in U status as derivatives and certain family members who have never obtained U status to apply for adjustment of status. The application process for derivative family members who already hold U status is the same as the process outlined above for U principals. The regulations set forth a new procedure for spouses, children and parents (only if the principal is under 21) who have never held U status to apply for adjustment of status or an immigrant visa once the principal applicant s adjustment application has been approved. In order to qualify, either the family member or the principal applicant must show that he or she would suffer extreme hardship if the family member is not allowed to remain in the U.S.

5 The regulations create a new form, Form I-929, Petition for Qualifying Family Member of U-1 Nonimmigrant which the principal may file either with his or her own adjustment application or at any time after filing. The I-929 can not be approved, however, until the principal s adjustment application has been approved. The I-929 should be filed with evidence establishing the relationship and evidence of extreme hardship. If the application is approved and the family member is outside of the U.S., USCIS will forward the approval notice to the National Visa Center for consular processing or to a port of entry for applicants from visa exempt countries. It is important to note that unlike family members who are in the U.S., family members who are outside the U.S. will be subject to all of the inadmissibility grounds when seeking admission at a port of entry. If the family member is in the U.S., once the I-929 is approved, he or she becomes eligible to apply for adjustment of status. Approvals and Denials If the adjustment application is approved, USCIS will send an approval notice which will direct the applicant to a local USCIS office or an Application Support Center to complete Form I-89 for final green card processing. At that time the applicant will be able to request temporary evidence of lawful permanent resident status. If the application is denied, the applicant may appeal the denial to the Administrative Appeals Office. The INA gives exclusive jurisdiction over adjustment of U nonimmigrants to the Department of Homeland Security therefore adjustment applications may not be filed or renewed in removal proceedings. Travel Issues U nonimmigrants who have pending applications for adjustment of status must apply for advance parole from USCIS prior to traveling. If the applicant does not do so, USCIS will consider the application to be abandoned upon the applicant s departure from the U.S. Applicants should seek advance parole by using the standard advance parole form, Form I-131. It is important to remember that U adjustment applicants who travel outside the U.S., even on advance parole, will be subject to all of the grounds of inadmissibility upon seeking re-entry to the U.S. New Fee Waiver for U Status Applicants It is important to note that this interim final rule adds a fee waiver provision for Form I- 192 for those applying for U nonimmigrant status. Form I-192 is the form USCIS has designated for U nonimmigrant status applicants to use to seek waivers of the inadmissibility grounds. This change was much sought after by advocates because the $545 fee posed a significant hardship to many applicants. Remember, Form I-192 is for U nonimmigrant status applicants with inadmissibility issues. U nonimmigrant status holders who are applying for adjustment of status need not file Form I-192 or Form I-601 because the only ground of inadmissibility which applies to them, INA sec. 212(a)(3)(E) (Nazi persecution, genocide ), is not waivable.