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Category - Other Visas
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Employers sometimes need to hire foreign labor when there is a shortage of available U.S. workers to fill certain jobs. Under certain conditions, U.S. immigration law may allow a U.S. employer to file a Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS) on behalf of a prospective foreign national employee. Upon approval of the petition, the prospective employee may apply for admission to the United States, or for a change of nonimmigrant status while in the United States, to temporarily work or to receive training. For most employment-based nonimmigrant visa categories, the employer starts the process by filing Form I-129 with USCIS. Filing instructions and forms are available on the USCIS web site at www.uscis.gov. Please note that in some cases the employer must file a Labor Condition Application or Application for Temporary Employment Certification with the Department of Labor (DOL) and/or obtain certain consultation reports from labor organizations before filing a petition with USCIS. What are the various types of visa classifications under which a foreign national may temporarily engage in employment or training? The following are the most common visa classifications under which a foreign national may temporarily work or train: Am I required to file an application or other request with the U.S. Department of Labor for each foreign national employee? Certification from the Department of Labor (DOL) is required only for the H-1B, H-2A, and H-2B nonimmigrant classifications. You must first request certification from DOL before submitting your I-129 petition to USCIS. For H-1B nonimmigrants, a Labor Condition Application, and for H-2A and H-2B nonimmigrants, an Application for Temporary Employment Certification must be filed in accordance with DOL instructions. For filing instructions and other information, please see the DOL Web site at www.foreignlaborcert.doleta.gov. DOL certification is not required for the other nonimmigrant, employment-based, or investor-based visa classifications previously listed. What happens after I file a Form I-129, Petition for aNonimmigrant Worker?After you file, we will send you a receipt so you know that we havereceived your petition. If your petition is incomplete, we may have toreject it and return your fee,or ask you for more evidence or information, which will delayprocessing. We will notify you when we make a decision. If theprospective employee is in the United States in a valid nonimmigrantstatus, he or she can begin working for the employer upon approvalof the Form I-129 petition, provided that: How can an employee extend his or her status if it is aboutto expire? If it appears that an employee may be needed longer than the period for which he or she was approved in his or her current nonimmigrant status, an employer may be able to file a new Form I-129 petitionon behalf of the employee. To avoid disruption of authorized employment, employers are encouraged to file a petition to extend the employee’s status well before it expires. Note, however, that if the employee has already stayed for the maximum allowable period of time, an extension may not be granted. If I filed for an extension of status for my employee, buthave not received a decision by the time his or her statusexpires, can I continue to employ the individual? If:
Legal Authorities For A Religious Worker Eligibility Requirements For a Religious Worker Religious Worker Adjustment of Status Eligibility Requirements The applicant has been inspected and admitted or inspected and paroled into the United States. The applicant is physically present in the United States at the time of filing and adjudication of an adjustment application. The applicant is eligible to receive an immigrant visa because the applicant is the beneficiary of an approved Form I-360 classifying him or her as a special immigrant religious worker. The applicant had an immigrant visa immediately available when he or she filed the adjustment of status application and at the time of final adjudication. The applicant is not subject to any applicable bars to adjustment of status. The applicant is admissible to the United States or eligible for a waiver of inadmissibility or other form of relief. The applicant merits the favorable exercise of discretion. Documentation and Evidence An applicant should submit the following documentation to adjust status as a religious worker: In addition, a spouse or child who is filing as a derivative applicant should submit the following: Additional Information Bars to Adjustment Unless exempt, religious workers and their derivatives are ineligible for adjustment of status if any of the bars to adjustment of status apply. Religious workers and their derivatives may be exempt under INA 245(k) from some of the bars to adjustment. To qualify for an exemption, the applicant must not have accrued more than 180 days of certain immigration violations since his or her last lawful admission. If the applicant does not qualify for the exemption, then the applicant remains subject to the adjustment bars. Sunset Date Except for ministers, all other religious workers and their derivatives must adjust to LPR status on or before the designated sunset date.[USCIS Policy Manual] USCIS denies any adjustment applications based on special immigrant religious worker petitions (other than for ministers) that are pending or filed after the designated sunset date. Treatment of Family Members The spouse or child (unmarried and under 21 years of age) of a religious worker may accompany or follow-to-join the principal applicant if the spouse or child is otherwise eligible.[USCIS Policy Manual] The spouse and child may, as derivative applicants, apply to adjust status under the same immigrant category and priority date as the principal applicant. Frequently Asked Questions About Religious Worker Visas Q: What are the first steps to receiving an R-1 visa? A: The petitioning religious organization must first file form I-129 (Petition for Nonimmigrant Worker). Workers who are visa exempt must carry a copy of the I-797 approval notice when they enter the US. Q: Can I work for another employer once I am in the US as an R-1 religious worker? A: Yes. However, the new employer must petition you for a new visa. Example, if you wanted to go work for another religious organization, they would need to sponsor you for a new R-1 visa (If the prospective employer is not a religious body, they would need to sponsor you for another type work visa). Q: Once I enter the US on my R-1 visa, am I allowed to leave and then reenter the US on my R-1 status? A: As long as the R-1 visa remains valid, you may travel to the US. However, the validity period of the R-1 visa may not be as long as the authorized period of stay. Additionally, the number of reentries that may be made on an R-1 visa varies depending on the country of citizenship of the religious worker. Time spent outside of the US cannot be recaptured. Please see the next questions for explanation. Q: I am on my R1 extension, and am about to reach the 60 month limit. I spent 6 months outside the US while holding R1 status. Do the 6 months spent outside the US count against my R1 60 month limit? A: Yes, the 6 months spent outside the US counts against your 60 month R1 status limit. Time spent outside the US while on R1 status cannot be recaptured. In other words, you cannot seek an extension of your R1 status based on your absence from the US. After the 60 month limit is reached, you must leave the US and remain outside the country for a full year before seeking R1 status again. Q: What kind of religious workers are eligible for an R-1 visa? A: Individuals seeking an R-1 visa can be members of clergy (ministers, priests, monks, rabbis, officers, etc) or classified as ‘other religious workers’ who perform religious duties directly related to carrying out the beliefs and creed of the religious organization. However, all applicants bear the burden of proof that they are a religious worker and current member of the denomination. Volunteers and other non-religious centric employees (Such as janitors, musicians, clerks, fundraisers,etc) are not eligible for R-1 status. The intending worker does not need to be currently employed by the organization abroad, but must prove they have been a member of the denomination for a minimum of two years prior to filing. Q: How long will it take to receive my visa if I am outside the US? A: It is impossible to accurately guess without knowing more information and even then it is difficult because there are a number of factors that could affect this. Consular processing times vary from office to office. Q: How can I become a permanent resident after working on an R-1 visa? A: Religious workers may seek to become US permanent residents through the Eb-4 ‘Special Immigrant: religious worker’ category. The requirements are nearly identical to that of the R1 category; with the additional requirement that the intending immigrant must have two years of full-time religious work immediately prior to filing. The intending immigrant can be self-petitioning or be petitioned by a religious non-profit organization. There is no annual cap for religious workers who fall under the ‘minister’ category, and a 5000 annual cap on all other religious workers in the Eb-4 category. Eb-4 religious workers must wait for their I-360 application to be approved before they can filed to adjust status, if already in the US. There is no labor certification process for Eb-4 religious workers, however a work
VIOLENCE AGAINST WOMEN ACT (VAWA) The Violence Against Women Act of 1994 (VAWA) and its subsequent reauthorizations amended the Immigration and Nationality Act (INA) to allow abused spouses and children of U.S. citizens and lawful permanent residents (LPRs) and abused parents of U.S. citizen sons and daughters 21 years of age or older to file their own self-petition for immigrant classification. The VAWA self-petition is filed on the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). An approved Form I-360 provides self-petitioners with immigrant classification as either immediate relatives or under a family-based preference category and allows them to apply for LPR status. It would then be the same as if the person had an approved I-130 petition from that family member. They can adjust status using an I-485 Application for Adjustment of Status. Who is eligible for VAWA? You may be eligible to apply for VAWA if you: 1. Be AND 2. you were abused by them. WHAT BENEFITS DOES VAWA PROVIDE? An individual who is approved for VAWA: WHAT DO I HAVE TO SHOW TO APPLY FOR VAWA? There are several requirements that need to be met and proven when applying for VAWA. You will need to demonstrate that you:
THE THREE OPTIONS 1. Widow(er) Petition under INA 201(b)(2)(A)(i) Widow(er)s of U.S. citizens have the broadest avenue of relief should their U.S. citizen spouse die. The statute allows them to remain classified as immediate relatives and to continue to be eligible to immigrate if they file an I-360 self-petition within two years of the death of the U.S. citizen or to automatically convert an already-filed I-130 to an I-360. See Widow Petition Page for more info. 2. INA § 204(I) 204(l) Covers: In 2009, Congress created a broad protection for survivors with the enactment of INA § 204(l). There are no regulations on this provision, but there is a USCIS Policy Memo. USCIS, 204(l) Memo and USCIS Webpage, “Basic Eligibility for Section 204(l) Relief for Surviving Relatives,” https://www.uscis.gov/greencard/section-204l-relief-surviving-relatives, The USCIS Webpage also has an overview of the three types of survivor relief discussed here: 204(l), widow/widowers of U.S. citizens, and humanitarian reinstatement, https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/Sept.%202011/I-130_Humanitarian_Relief_Presentation_09_27_2011.pdf. See INA 204(I) Page for more info. 3. Humanitarian Reinstatement: Petitioner Dies, Beneficiary Has an Approved Petition This limited relief can only be requested by the principal beneficiary of an approved petition, thus it is not a possible remedy for someone whose long pending petition had not yet been approved, nor can it provide a remedy for derivatives of a principal beneficiary. USCIS treats this as an entirely discretionary request, and denials cannot be challenged by appeal. See Humanitarian Reinstatement Page for more info.
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Once you receive the I-918 approval notice indicating you are in U nonimmigrant status, can you can travel outside of the United States? Technically, individuals in U nonimmigrant status are eligible to apply for a U visa abroad at a U.S. consulate and may be able to use that visa to reenter the United States after a trip abroad. While theoretically possible, it would not be advisable. There are also two serious concerns that would arise relating to unlawful presence bars and the continuous physical presence requirements for U nonimmigrants to be able to adjust status and obtain a green card after three years in U status. Unlawful Presence Bars There are also complications that arise from unlawful presence. If the U visa holder accrued unlawful presence, which most have, then departure from the United States will trigger a three- or ten-year bar making them inadmissible. Once a U nonimmigrant that is outside of the country has triggered a new ground of inadmissibility such as the unlawful presence, they will need to apply for a new waiver of inadmissibility on Form I-192 (any existing I-192 that was approved will only cover grounds of inadmissibility that existed at the time it was approved not grounds that were triggered after). They will be required to remain outside of the United States during the adjudication of the waiver. Note: This is because they are outside the United States and reentering thus they must be admissible, otherwise new grounds of inadmissibility would not necessarily require a new waiver for purposes of adjustment of status. Continuous Physical Presence Requirements for Adjustment of Status In Three Years Further it may create an obstacle to later eligibility to adjust status to become a legal permanent resident and get a green card. In order for U visa holders to apply for adjustment of status to lawful permanent residence, she must demonstrate continuous physical presence in the United States. The regulations state that “an alien shall be considered to have failed continuous physical presence…if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate of 180 days.” Since it will almost certainly take more than 90 days to process the visa and/or waiver needed, the U visa holder will likely become ineligible for adjustment of status since they will have an interruption in their continuous physical presence. Grounds of Inadmissibility Triggered After The Approval U visa holders are not required to demonstrate their admissibility when applying to adjust their status pursuant to INA §245(m). Thus, when the U visa holder applies to adjust her status, there is no need—and, indeed, no mechanism—for USCIS to waive her smuggling ground of inadmissibility, and the existence of the unwaived ground of inadmissibility will not preclude them from adjusting status. However, the new ground of inadmissibility may (and very likely will) factor into USCIS’s determination as to whether discretion should be exercised in the applicant’s favor. Therefore, it is likely that it will ultimately end up preventing them from being able to adjust status just under a different legal ground. Per the regulations, where new grounds of inadmissibility and other adverse factors are present at the adjustment stage, the applicant may “offset” them “by submitting supporting documentation establishing mitigating equities that the applicant wants USCIS to consider when determining whether or not a favorable exercise of discretion is appropriate.” See 8 CFR §245.24(d)(11). Depending on the nature and severity of the adverse factors, “the applicant may be required to clearly demonstrate that the denial of adjustment of status would result in exceptional and extremely usual hardship.” See 8 CFR §245.24(d)(11). [The regulations provide that “USCIS will generally not exercise its discretion favorably in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns.” Id.] In that scenario, if trying to overcome new grounds of inadmissibility, you would want to try to tie the new ground of inadmissibility or other adverse factor(s) to the applicant’s victimization and/or cooperation with law enforcement. Though such a showing is not legally required, it can serve as a strong mitigating equity. Address and provide evidence of the humanitarian considerations and disruption to family unity that will result if USCIS denies the adjustment application.
NEW YORK STATE CRIME VICTIM SERVICES SERVICES PROVIDED BY OFFICE OF VICTIMS SERVICES (OVS) OVS provides compensation to innocent victims of crime for their out-of-pocket losses related to the crime. OVS funds local victim assistance programs that provide a variety of direct services to crime victims, including helping victims complete their OVS application for assistance. OVS advocates for the rights and benefits of all innocent victims of crimes. CONTACTING THE NY OFFICE OF VICTIMS SERVICES TELEPHONE: 1-800-247-8035 or (718) 923-4325 EMAIL: ovsinfo@ovs.ny.gov WEBSITE: www.ovs.ny.gov OFFICE: 55 Hanson Place, 10th Floor Brooklyn, NY 11217 APPLICATION FOR COMPENSATION ONLINE CONTACT https://ovs.ny.gov/victim-compensation https://ovs.ny.gov/form/contact-form OVS RESOURCE CENTER – FIND VICTIM ASSISTANCE PROGRAMS Find resources provided by OVS-funded Victim Assistance Programs (VAPs) from across New York State. Search by zip code using the OVS Resource Center website. https://ovs.ny.concerncenter.com ADDITIONAL INFORMATION FROM OFFICE OF VICTIM SERVICES: https://ovs.ny.gov/ Restitution Payment Restitution is compensation paid to a victim by the perpetrator of a criminal offense for the losses or injuries incurred as a result of the criminal offense. It must be ordered by the Court at the time of sentencing, and is considered part of the sentence. Restitution may include but is not limited to reimbursement for medical bills, counseling expenses, loss of earnings and the replacement of stolen or damaged property. How do I ask for Restitution? You should contact the DA’s office and advise them of the extent of your injury, your out-of-pocket losses and the amount of damages you are requesting. They would ask the Judge to order the payment of restitution or include such payments in any plea agreement. If you do not ask the DA for restitution and provide necessary documents prior to sentencing then you may not get it. It is your duty to request restitution and provide copies of bills and documentation of the extent of your injuries, out-of-pocket expenses, and other damages. If your request is not provided to the Criminal Court before sentencing, you may have to pursue reimbursement of your losses in Civil Court. BE SURE TO: The DA will provide you with more information about this process. FIND DISTRICT ATTORNEY OFFICE: www.nypti.org/new-york-district-attorneys CRIME VICTIM COMPENSATION FROM OFFICE OF VICTIMS SERVICES The OVS offers compensation related to: personal injury, death and loss of essential personal property. YOU MUST FILE FOR COMPENSATION WITHIN ONE YEAR AND COMPLY WITH OTHER DEADLINES TO BE ELIGIBLE. WHAT EXPENSES MAY OVS COVER? WHO MAY BE ELIGIBLE? What if my property was lost, damaged or destroyed because of the crime? If you are under 18, 60 or over, disabled or were injured, you may apply for benefits to repair or replace your essential personal property lost, damaged or destroyed as a direct result of a crime that was not covered by any other source. Essential means necessary for your health and welfare, like eyeglasses, cash and clothes. How do I apply for compensation? You can apply for compensation using the NYS OVS Claim for Compensation Application, from the OVS website, or contact us to find a local victim assistance program near you. You may also get an application from any police station, precinct house, or hospital emergency room. Send OVS your completed OVS application along with photocopies of: What if I need compensation right away? In limited cases, you may ask for an emergency award, up to $2,500. What if I don’t have some of the papers OVS needs? Send your application in right away. You can send the other documents later. ADDITIONAL INFORMATION: https://ovs.ny.gov/
U VISA PETITION Form I-918 U VISA CERTIFICATION Form I-918, Supplement B REQUESTS FOR U VISA CERTIFICATIONS Form I-918, Supplement B, U Visa Certification forms and requests for certification can be sent by mail to: Domestic Violence Unit / U visa Certification OfficeNew York City Police DepartmentOne Police Plaza, Room 605New York, NY 10038 What are the requirements for a U visa? Who can complete the Form I-918B? What does “helpful to law enforcement or a certifying agency” mean?
General Eligibility Requirements for SIJ Classification INA§101(a)(27)(J) (codified at 8 U.S.C. § 1101(a)(27)(J) (a) As used in this chapter— (1)–(26) * * * (27) The term “special immigrant” means— (J) an immigrant who is present in the United States— (i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and (iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that— (I) no juvenile court has jurisdiction to determine the custody status or placement of an alien in the custody of the Secretary of Health and Human Services unless the Secretary of Health and Human Services specifically consents to such jurisdiction; and (II) no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; PROCESS Age-out Protections for Filing with USCIS In general, a juvenile may seek SIJ classification if he or she is under 21 years of age and unmarried at the time of filing the petition with USCIS. However, state law is controlling as to whether a petitioner is considered a “child” or any other equivalent term for a juvenile subject to the jurisdiction of a state juvenile court for custody or dependency proceedings. If a petitioner was under 21 years of age on the date of the proper filing of the Form I-360, and all other eligibility requirements under the statute are met, USCIS cannot deny SIJ classification solely because the petitioner is older than 21 years of age at the time of adjudication. USCIS RECENTLY IMPLEMENTED IN-PERSON APPOINTMENTS AT USCIS FIELD OFFICES FOR SIJS AGE-OUTS For Applicants who are within a month of their 21st birthday, USCIS allows them to make an appointment to drop off their I-360 self-petition in-person to ensure it is timely filed. Juvenile Court Order For purposes of SIJ classification, a juvenile court is defined as a U.S. court having jurisdiction under state law to make judicial determinations on the dependency and/or custody and care of juveniles. This means the court must have the authority to make determinations about dependency and/or custody and care of the petitioner as a juvenile under state law at the time the order was issued. Depending on the circumstances, such a determination generally would be expected to remain in place until the juvenile reached the age of majority, or until the goal of a child welfare permanency plan, such as adoption, or other protective relief ordered by the juvenile court has been reached. The title and the type of court that may meet the definition of a juvenile court varies from state to state. Examples of state courts that may meet this definition include: juvenile, family, dependency, orphans, guardianship, probate, and youthful offender courts. Not all courts having jurisdiction over juveniles under state law may be acting as juvenile courts for the purposes of SIJ classification. For example, a court of general jurisdiction that issues an order with SIJ-related findings outside of any juvenile custody or dependency proceeding would generally not be acting as a juvenile court for SIJ purposes. The burden is on the petitioner to establish that the court is acting as a juvenile court at the time that the order is issued. To be eligible for SIJ classification, the petitioner must submit a juvenile court order(s) with the following determinations, and the record must provide evidence that there is a reasonable factual basis for each of the determinations:
INA §245(h) / 8 USC 1255 (h) Application with respect to special immigrants In applying this section to a special immigrant described in section 1101(a)(27)(J) of this title- (1) such an immigrant shall be deemed, for purposes of subsection (a), to have been paroled into the United States; and (2) in determining the alien’s admissibility as an immigrant- (A) paragraphs (4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), and (9)(B) of section 1182(a) of this title shall not apply; and (B) the Attorney General may waive other paragraphs of section 1182(a) of this title (other than paragraphs (2)(A), (2)(B), (2)(C) (except for so much of such paragraph as related to a single offense of simple possession of 30 grams or less of marijuana), (3)(A), (3)(B), (3)(C), and (3)(E)) in the case of individual aliens for humanitarian purposes, family unity, or when it is otherwise in the public interest. The relationship between an alien and the alien’s natural parents or prior adoptive parents shall not be considered a factor in making a waiver under paragraph (2)(B). Nothing in this subsection or section 1101(a)(27)(J) of this title shall be construed as authorizing an alien to apply for admission or be admitted to the United States in order to obtain special immigrant status described in such section. See full at uscode.house.gov.
USCIS had update their policy manual but the following changes were only recently updated in the regulations in April 2022. CHANGES TO 8 CFR § 204.11 UNMARRIED 8 CFR § 204.11(b)(2): SIJS applicant now required to remain unmarried only through the adjudication of the SIJS petition, rather than through the adjudication of the subsequent application for adjustment of status. Prior to the change in the regulations a SIJS applicant had to remain unmarried until they completed their adjustment of status and obtained residency. Under the changed regulations a SIJS applicant can get married once their I-360 petition is approved and while they are waiting for the priority date to become current so they can adjust status. JUVENILE COURT’S JURISDICTION 8 CFR § 204.11(c)(3)(ii): The juvenile court order must be in effect on the date the applicant files the SIJS petition and continue only through USCIS’s adjudication of the SIJS petition, rather than through the adjudication of the subsequent application for adjustment of status. 8 CFR §204.11(c)(3)(ii) specifies the judicial determinations that the juvenile court order must contain, including: (1) the dependency or custody determination, (2) the determination that the young person cannot reunify with one or both parents due to abuse, neglect, abandonment, or a similar basis under State law, and (3) the best interest determination. For this reason it is important to make sure the juvenile court order should include the “factual basis” for each of the three SIJS findings/judicial determinations as required by 8 CFR § 204.11(d) and should also cite to state law for each of the determinations. 1 If the juvenile court indicates that parental reunification was not viable due to a basis other than abuse, neglect, or abandonment, the applicant must include evidence of how that basis is legally similar to abuse, neglect, or abandonment under state law. For additional guidance about what to include in the juvenile court order, see 6 USCIS-PM J.3(A)(1).
THE THREE OPTIONS 1. Widow(er) Petition under INA 201(b)(2)(A)(i) Widow(er)s of U.S. citizens have the broadest avenue of relief should their U.S. citizen spouse die. The statute allows them to remain classified as immediate relatives and to continue to be eligible to immigrate if they file an I-360 self-petition within two years of the death of the U.S. citizen or to automatically convert an already-filed I-130 to an I-360. See Widow Petition Page for more info. 2. INA § 204(I) 204(l) Covers: In 2009, Congress created a broad protection for survivors with the enactment of INA § 204(l). There are no regulations on this provision, but there is a USCIS Policy Memo. USCIS, 204(l) Memo and USCIS Webpage, “Basic Eligibility for Section 204(l) Relief for Surviving Relatives,” https://www.uscis.gov/greencard/section-204l-relief-surviving-relatives, The USCIS Webpage also has an overview of the three types of survivor relief discussed here: 204(l), widow/widowers of U.S. citizens, and humanitarian reinstatement, https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/Sept.%202011/I-130_Humanitarian_Relief_Presentation_09_27_2011.pdf. See INA 204(I) Page for more info. 3. Humanitarian Reinstatement: Petitioner Dies, Beneficiary Has an Approved Petition This limited relief can only be requested by the principal beneficiary of an approved petition, thus it is not a possible remedy for someone whose long pending petition had not yet been approved, nor can it provide a remedy for derivatives of a principal beneficiary. USCIS treats this as an entirely discretionary request, and denials cannot be challenged by appeal. See Humanitarian Reinstatement Page for more info.
WIDOW(er) A. Who is Covered: Legal Marriage to U.S. Citizen, Not Remarried Widow(er)s of U.S. citizens have the broadest avenue of relief should their U.S. citizen spouse die. The statute allows them to remain classified as immediate relatives and to continue to be eligible to immigrate if they file an I-360 self-petition within two years of the death of the U.S. citizen or to automatically convert an already-filed I-130 to an I-360. They must also show a good faith marriage, and demonstrate that they have not remarried to immigrate as an immediate relative.6 Note that if the applicant does remarry, they may still be able to pursue relief, under INA § 204(l) instead (see next section). Although previously the law required that the marriage have lasted a minimum of two years before the U.S. citizen’s death in order to seek relief as the widow(er) of a U.S. citizen, that requirement was removed in 2009.8 In order to continue with the immigration process after a U.S. citizen spouse’s death, applicants must not remarry, must show that they were legally married to the U.S. citizen, are otherwise admissible, and that there was no legal separation or divorce at the time of the death. Depending on where they were in the immigration process when the U.S. citizen spouse passed away, the noncitizen widow(er) may submit an I-360 self-petition or, if the deceased spouse had already submitted an I-130 petition on their behalf, then the widow(er) may proceed with their permanent resident application notwithstanding the spouse’s death. The widow(er)s apply as immediate relatives, and unlike other immediate relatives, they can include unmarried sons or daughters under 21 in the application, if the child was under 21 when the visa petition (I-130 or I-360) was filed. Although widow(er)s of U.S. citizens must still prove they are admissible, there are some differences in terms of how the inadmissibility grounds apply to these applicants. USCIS does not require a Form I-864 Affidavit of Support for either the widow(er) or the accompanying children in order to establish they will not become a public charge under INA § 212(a)(4).9 A Form I-864W exemption should be filed. 10 Additionally, for purposes of INA § 212(a)(9)(B)(i), a widow(er) and accompanying children will not accumulate unlawful presence if they were the beneficiary of a spousal I-130 that was pending on October 28, 2009 and that is later approved as a self-petition.11 Widow(ers) are not otherwise exempt from the bars for unlawful presence, and will be subject to the three- and ten-year bars if they accumulate sufficient time and must consular process. The waiver for unlawful presence requires a U.S. citizen or permanent resident spouse or parent, which many widow(ers) will lack. USCIS “should generally exercise discretion favorably” if an applicant has a prior removal order and files an I-212 form for permission to reapply, if there are no significant adverse factors, and the underlying Form I-130 has been approved as a Form I-360.13 Widow(er) benefits have the broadest coverage for surviving spouses compared to other paths covered here in that no affidavit or support or substitute sponsor is needed, no U.S. residence is required, and special considerations are given for certain grounds of inadmissibility. B. How to Apply for U.S. Citizen Widow(er) Benefits Upon notification of the death of a U.S. citizen petitioning spouse, USCIS will automatically convert a pending or approved Form I-130 to a Form I-360 self-petition, and the applicant does not need to re-file. The date of filing is deemed to be the date that the initial I-130, if any, was filed. Otherwise, the filing of the I-360 initiates the process. Children who are unmarried and under age 21 at time of filing the I-130 or I-360 can be included. If there was no I-130 pending at the time of death, the widow(er) can file an I-360 self-petition as an immediate relative. In this circumstance, the I-360 must be filed within two years of the U.S. citizen’s death. Applicants cannot remarry before they adjust or receive an immigrant visa, must show that there was a legal marriage, and that there was no divorce or legal separation at the time of the U.S. citizen’s death. An I-360 can be filed simultaneously with an I-485 adjustment application. An overseas widow(er) can go through the I-360 approval or I-130/I360 conversion process and consular process overseas. Supporting documents for the widow/(er)’s I-485 include: • Two passport photos; • Copy of birth certificate(s) for applicant and any accompanying children; • Copy of passport page with admission stamp or other proof of admission; • Form I-693 Medical Exam, valid for one year, which can be presented at time of interview to avoid expiration; • Form I-864W Request for Exemption for Intending Immigrant’s Affidavit of Support; • Copy of I-130 receipt and approval, if applicable; or Form I-360 receipt and approval; or • Form I-360 with required documents, which include the death certificate and documentation to evidence a good faith marriage, if filing concurrently with I-485.
INA 204(I) Who is Covered by 204(I) ? Unlike the widow(er) protections described in the previous section that are limited to U.S. citizen spouses, and unlike humanitarian reinstatement discussed in the next section that is limited to principal beneficiaries of approved I-130 petitions, INA § 204(l) covers several categories of pending or approved petitions. Section 204(l) provides that the persons listed below can seek relief if they can show residence in the United States at the time of the death, and they continue to reside in the United States. Note that 204(l) provides protections not only when the petitioner dies, but also, in some cases, when the principal beneficiary or other principal applicant dies. 204(l) covers: • Principal or derivative beneficiary of a pending or approved I-130 petition, when petitioner died; • Derivative beneficiary of a pending or approved I-130 petition, when the principal beneficiary died; • Derivative beneficiary of a pending or approved I-140 employment-based petition, when the principal beneficiary died; • Beneficiary of a pending or approved I-730 refugee/asylee relative petition, when the petitioner died; • Derivative of a T or U nonimmigrant visa holder, admitted as a derivative when the principal has died; • Derivative asylee, where the principal asylee died. Residence Requirement for 204(I) The statute requires that the applicant be residing in the United States at the time of the qualifying relative’s death and continue to reside in the United States. Residence is the applicant’s “principal, actual dwelling place in fact, without regard to intent.”21 Residence is not the equivalent of physical presence, and it is possible to qualify while briefly abroad if the applicant can show that they were actually residing in the United States. While many persons seeking 204(l) may be doing so through adjustment in the United States, it is possible to use 204(l) for a surviving relative who is consular processing if that individual maintains U.S. residence while making a temporary trip abroad. The residence requirement has been interpreted by USCIS to mean that at least one beneficiary, if there are several derivative beneficiaries, must meet the requirement of living in the United States at the time of the death, and be continuing to live in the United States when seeking relief. If one beneficiary meets the requirement, all beneficiaries may be found to meet the requirement. Admissibility and 204(I) 204(l) applicants are subject to the grounds of inadmissibility at the time of adjustment or immigrant visa interview. If applicants are in a category that is required to submit an affidavit of support (either Form I-864 or I-864W), they will need to do so despite the death of the original petitioner. Substitute sponsors must be a U.S. citizen or lawful permanent resident, at least 18 years old, and the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, or legal guardian of the applicant. For waivers of grounds of inadmissibility where the statute requires a showing of extreme hardship to a qualifying relative, USCIS will deem the death of a qualifying relative as the “functional equivalent” of a finding of extreme hardship. In other words, USCIS will assume that the death of the qualifying relative constitutes extreme hardship for purposes of the waiver, although the waiver applicants will still need to establish they warrant the favorable exercise of discretion. In addition, the waiver applicant must have a qualifying relative that was already a citizen or permanent resident at the time of the death to be eligible. Since derivatives can also qualify for 204(l), and the principal beneficiary can be the qualifying relative, when that principal beneficiary dies before immigrating the derivatives may lack the relative needed for a waiver or the consideration of “functional equivalent” hardship. “Public Interest” Discretionary Standard INA § 204(l) states that the Secretary of Homeland Security can deny a petition if the approval would not be in the “public interest.” Given the mandatory language in the statute and this fairly generous standard, most cases should be approved. According to USCIS guidance, “USCIS officers will not, routinely, use this discretionary authority to deny a visa petition that may now be approved, despite the death of the qualifying relative.” Adjustment is also a discretionary remedy and presentation of favorable factors are always helpful to support favorable discretion. Retroactivity INA §204(l) became law on October 28, 2009. Grants of 204(l) relief are possible for cases that arose because the qualifying relative died prior to the date of enactment. 30 USCIS will allow untimely motions to reopen a petition, adjustment application, or waiver application that was denied prior to October 28, 2009 if 204(l) would now allow approval. The motion to reopen fee, or a fee waiver, must accompany such a motion, as well as supporting documentation for 204(l) eligibility.31 If USCIS denies a case on or after October 28, 2009 without considering the effect of 204(l) for an eligible applicant, the agency must reopen on its own motion. How to Apply for 204(I) There is no specific application form to use to apply for 204(l) relief. Instead, to request 204(l) coverage, applicants should submit a cover letter explaining their eligibility and providing supporting documents. The applicant should clearly distinguish 204(l) applications from humanitarian reinstatement, as the former has statutory authority and mandatory language, while the latter is entirely a creature of USCIS regulation and is highly discretionary. Sometimes 204(l) applications are confused with humanitarian reinstatement requests, which have very different eligibility criteria.
THE THREE OPTIONS 1. Widow(er) Petition under INA 201(b)(2)(A)(i) Widow(er)s of U.S. citizens have the broadest avenue of relief should their U.S. citizen spouse die. The statute allows them to remain classified as immediate relatives and to continue to be eligible to immigrate if they file an I-360 self-petition within two years of the death of the U.S. citizen or to automatically convert an already-filed I-130 to an I-360. See Widow Petition Page for more info. 2. INA § 204(I) 204(l) Covers: In 2009, Congress created a broad protection for survivors with the enactment of INA § 204(l). There are no regulations on this provision, but there is a USCIS Policy Memo. USCIS, 204(l) Memo and USCIS Webpage, “Basic Eligibility for Section 204(l) Relief for Surviving Relatives,” https://www.uscis.gov/greencard/section-204l-relief-surviving-relatives, The USCIS Webpage also has an overview of the three types of survivor relief discussed here: 204(l), widow/widowers of U.S. citizens, and humanitarian reinstatement, https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/Sept.%202011/I-130_Humanitarian_Relief_Presentation_09_27_2011.pdf. See INA 204(I) Page for more info. 3. Humanitarian Reinstatement: Petitioner Dies, Beneficiary Has an Approved Petition This limited relief can only be requested by the principal beneficiary of an approved petition, thus it is not a possible remedy for someone whose long pending petition had not yet been approved, nor can it provide a remedy for derivatives of a principal beneficiary. USCIS treats this as an entirely discretionary request, and denials cannot be challenged by appeal. See Humanitarian Reinstatement Page for more info.
Humanitarian Reinstatement: Petitioner Dies, Beneficiary Has an Approved Petition A. The Limitations of Humanitarian Reinstatement For many years, the only relief available for petitioners in cases where the petitioner died was a discretionary mechanism under a USCIS regulation which gives the agency discretion to decide not to revoke an approved petition upon death for “humanitarian reasons.” This limited relief can only be requested by the principal beneficiary of an approved petition, thus it is not a possible remedy for someone whose long pending petition had not yet been approved, nor can it provide a remedy for derivatives of a principal beneficiary. USCIS treats this as an entirely discretionary request, and denials cannot be challenged by appeal. B. How to Request Humanitarian Reinstatement USCIS directs applicants to request humanitarian reinstatement by letter to the office that approved the petition, as no USCIS form exists for this purpose. Because some USCIS offices will not entertain repeated requests for humanitarian reinstatement, it is particularly important to file the initial request with all the supporting evidence that USCIS requests. After the death of petitioner, wait to file the request until the substitute sponsor’s affidavit of support and the humanitarian documentation can be gathered, as well as the identifying information about the underlying petition and the petitioner’s death certificate. The specific documents to include are described below. Persons requesting humanitarian reinstatement are subject to the affidavit of support requirement and should include a Form I-864, Affidavit of Support from a substitute sponsor, (or an I-864W, Affidavit of Support Exemption), since the petitioning relative has died and can no longer provide an affidavit of support. In addition, applicants should include documentation showing that they warrant a favorable exercise of discretion. Humanitarian reinstatement requests should also include a copy of or identifying information about the underlying petition, the receipt and approval notice, the name of applicant and the deceased petitioner, any A-numbers for applicant or decedent, and the petitioner’s death certificate. In addition, an individual requesting humanitarian reinstatement should provide evidence of the following to support favorable discretion: • Impact on family living in the United States, especially U.S. citizens, lawful permanent residents, and others lawfully present; • Advanced age or health concerns; • Ties or lack thereof to the home country; • Other factors such as unusually lengthy government processing delays; and • Any other factors that weigh in favor of reinstatement. In practice, the factors different USCIS offices weigh in adjudicating reinstatement can vary because the requests are solely within USCIS’s discretion. Humanitarian reinstatement processing can be unpredictable and take a long time, due to problems arising from the lack of a standardized form and confusion on the part of both USCIS and applicants over which USCIS office has jurisdiction over a particular humanitarian request. Unrepresented applicants sometimes have difficulty submitting requests that USCIS deems complete and approvable, and a partially documented request may be denied, rather than receive a request for further evidence. After a denial, some USCIS offices will not permit subsequent requests for reinstatement without the filing of a motion to reopen, I-290B, with the required fee, submitted within 30 days of the USCIS decision.47 Since it may take months for an applicant to gather necessary documentation of humanitarian grounds and the I-864 Affidavit of Support, and there is no appeal from denial of humanitarian reinstatement, this means some potential applicants lose the opportunity to request reinstatement. MORE INFO: USCIS Web Page, “Humanitarian Reinstatement,” https://www.uscis.gov/greencard/humanitarian-reinstatement USCIS, AFM, Chapter 21.2(h)(2)(C)
THE THREE OPTIONS 1. Widow(er) Petition under INA 201(b)(2)(A)(i) Widow(er)s of U.S. citizens have the broadest avenue of relief should their U.S. citizen spouse die. The statute allows them to remain classified as immediate relatives and to continue to be eligible to immigrate if they file an I-360 self-petition within two years of the death of the U.S. citizen or to automatically convert an already-filed I-130 to an I-360. See Widow Petition Page for more info. 2. INA § 204(I) 204(l) Covers: In 2009, Congress created a broad protection for survivors with the enactment of INA § 204(l). There are no regulations on this provision, but there is a USCIS Policy Memo. USCIS, 204(l) Memo and USCIS Webpage, “Basic Eligibility for Section 204(l) Relief for Surviving Relatives,” https://www.uscis.gov/greencard/section-204l-relief-surviving-relatives, The USCIS Webpage also has an overview of the three types of survivor relief discussed here: 204(l), widow/widowers of U.S. citizens, and humanitarian reinstatement, https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/Sept.%202011/I-130_Humanitarian_Relief_Presentation_09_27_2011.pdf. See INA 204(I) Page for more info. 3. Humanitarian Reinstatement: Petitioner Dies, Beneficiary Has an Approved Petition This limited relief can only be requested by the principal beneficiary of an approved petition, thus it is not a possible remedy for someone whose long pending petition had not yet been approved, nor can it provide a remedy for derivatives of a principal beneficiary. USCIS treats this as an entirely discretionary request, and denials cannot be challenged by appeal. See Humanitarian Reinstatement Page for more info.
Eligibility for Special Rule (VAWA) Cancellation Non-Lawful Permanent Residents (non-LPRs) facing removal proceedings who are victims of domestic violence may be eligible to apply for cancellation of removal under special rules designed to protect battered spouses and children (INA § 240A(b)(2)(A)(i)-(v)). To qualify, the non-LPR must meet several key requirements: If the abuse was committed by a USC or LPR spouse, the marriage must have been entered into in good faith (bona fide). Marriages found to be fraudulent, as defined in 8 C.F.R. § 204.2(c)(H), will disqualify a non-LPR from claiming spousal status for these protections. Subject to Battery or Extreme Cruelty To be eligible for VAWA cancellation, a non-LPR must have experienced battery or extreme cruelty from a U.S. citizen (USC) or Lawful Permanent Resident (LPR) spouse or parent. “Battery” in this context doesn’t require a level of violence that meets a specific state criminal law definition. Courts have varied in their interpretations of “extreme cruelty,” particularly regarding whether it is a discretionary determination and subject to judicial review. The regulations (8 C.F.R. § 204.2(c)(vi)) provide examples of abuse that may qualify as battery or extreme cruelty for those self-petitioning under VAWA. This list is not exhaustive and includes: Continuous Physical Presence The continuous physical presence requirement for VAWA cancellation is only 3 years instead of 10 for general non-LPR cancellation. Unlike for regular non-LPR cancellation, the stop time rule on continuous physical presence does not trigger with the issuance of a notice to appear (NTA), and continuous physical presence will continue to accrue until cancellation is requested. However, as is the case in regular non-LPR cancellation, the commission of a crime that would render the alien inadmissible or deportable stops the accrual of continuous physical presence pursuant to INA § 240A(d)(1). In the required 3 years of continuous presence, the applicant may not have a single absence from the United States in excess of 90 days, or have been absent in excess of 180 days total, in order to meet the continuous physical presence requirement. However, pursuant to INA § 240A(b)(2)(B), absences of impermissible lengths may be excused provided that the applicant demonstrates that the absences were connected to his or her abuse at the hands of the USC or LPR spouse or parent. Good Moral Character (GMC) The applicant for VAWA cancellation must have been a person of GMC for the requisite continuous physical presence period. Pursuant to INA § 240(b)(2)(C), something that would otherwise constitute a bar to GMC will not apply if the applicant demonstrates that the act or conviction causing a bar to GMC was connected to the battery or extreme cruelty that the applicant suffered. Inadmissibility and Deportability In order to be eligible for special rule cancellation for battered spouses and children, an applicant may not be inadmissible for a crime committed that is covered by INA §§ 212(a)(2) or (3), and may not be deportable for a crime committed under INA §§ 237(a)(1)(G)(2)-(4), or have been convicted of an aggravated felony. You may learn more about the prohibited offenses by reading the section that covers them in our article about regular cancellation of removal for non-permanent residents. Extreme Hardship While standard cancellation of removal for non-LPRs requires demonstrating “exceptional and extremely unusual hardship” to a qualifying relative, the special rules for battered spouses and children have a less stringent requirement. Applicants under these special rules need only show that “extreme hardship” would result from their removal. This hardship can be to the applicant, their parent, or their child. Beyond the general factors considered for extreme hardship, specific circumstances related to the abuse suffered are also relevant. The regulations at 8 C.F.R. § 1240.20(c) explain that the factors outlined in 8 C.F.R. § 1240.58, which pertain to suspension of deportation for battered spouses and children, also apply to VAWA cancellation cases. These factors include: Discretionary form of Relief Cancellation of removal is a discretionary form of relief. Accordingly, an immigration judge may deny cancellation due to mitigating factors even when an applicant appears otherwise eligible for cancellation of removal relief. Annual Cap on Adjustment of Status Each VAWA cancellation grant counts toward the 4,000 per year fiscal year cap that we describe here in the article on regular non-LPR cancellation of removal. The same procedures for granting temporary relief apply for VAWA cancellation cases. Parole of Family Member The child of a non-LPR granted special rule cancellation or the parent of a non-LPR child granted special rule cancellation may be paroled into the United States until his or her status may be adjusted. LPRs May Apply The Board of Immigration Appeals (BIA) held in 2009 that LPRs, despite the statute only referring to non-LPRs, may apply for special rule cancellation of removal for battered spouses and children.
