1. Victims on Campus: What Advisors
Need to Know about Domestic
Violence, VAWA, and U Visas
David Ware, Ware|Gasparian
Martha Staff, University of Hawai'i, Mānoa
2. What We Will Cover
• Overview of domestic violence
• Legal remedies for nonimmigrants—VAWA, U,
T
• Legal Consequences of DV for nonimmigrants
3. What is Domestic Violence?
• A pattern of behavior used to establish power and control
over another person through fear and intimidation, often
including the threat or use of violence.
4. The Power and Control Wheel
for Immigrants
Power Control
5. Immigration Options for Domestic
Violence Survivors
• Self-Petitioning under VAWA, I-360
• Cancellation of Removal under VAWA
• U (crime victim) Visa
• T (trafficking) Visa
6. The Violence Against Women Act
(VAWA)
• Enacted in 1994, amended 1996, 2000, 2005
• VAWA immigration provisions:
• Abused spouse, parent, or child of USC/LPR need not rely
on USC/LPR abuser to file petition
• Step 1: Self-petitioner files own form I-360
• Step 2: If approved, self-petitioner and children apply for
permanent residence based on approved I-360
7. Who Qualifies to Self-Petition
under VAWA?
• Abused spouses of USCs and LPRs, including their children as
derivatives
– Must file within 2 years of divorce or abuser’s loss of status
– Eligible if marriage would have been legal but for bigamy of
abuser
• Non-abused spouses of USCs or LPRs where their child is
abused
• Abused children of USCs and LPRs (up to age 25)
• Abused parents of adult USCs
8. Requirements of VAWA
Self-Petition
• Abuser is USC or LPR
• Relationship to Abuser
• Child or Good Faith Marriage
• Resided with abuser
• Battery or Extreme Cruelty
• Good Moral Character
9. The Self-Petitioning Process
• Receive Receipt notices from the VAWA unit
• Receive Prima Facie determination from VAWA unit on self-
petition
• Receive and Respond to Request for Evidence (RFE)
• Receive approval on self-petition
• Receive transfer notice from VAWA unit of I-485 Permanent
Residency application to local district office for interview
• Interview on I-485 application
10. Benefits of an Approved VAWA Self-
Petition
• Spouses/children of USC’s: ability to apply for PR immediately
• Spouses/children of LPR’s:deferred action status (places approved
individual on lower priority for removal)
• Employment authorization
• Cannot travel outside US
• Eligible for some public benefits
11. U visa Overview
• Congressional intent:
(1) Strengthen the ability of law enforcement agencies to detect,
investigate, and prosecute cases of domestic violence, sexual
assault, human trafficking, and other crimes; and
(2) To offer protection to victims of such crimes.
• Lawmakers recognized that a victim’s cooperation, assistance, and
safety are essential to the effective detection, investigation and
prosecution of crimes. Victims who fear deportation are unlikely to
come forward to cooperate and assist in investigative efforts. The
U visa allows immigrant crime victims to cooperate with law
enforcement officials and obtain lawful immigration status and
protection against deportation.
12. U Visas: Crime Victim visa
Requirements
• Victim of a qualifying crime
• Substantial physical/mental harm from the crime
• Applicant (or parent/guardian/next friend of child-victim) has
information; and “has been helpful, is being helpful, or is likely to be
helpful” to authority investigating or prosecuting the crime
• Applicant need not know, or be related to, the criminal
• Criminal’s immigration status is irrelevant
• Need “certification” from investigator, prosecutor, or Judge or DOL,
other government agency
• Limited to 10,000 per year
13. U Visa: Crime Victim Visa
List of Qualifying Crimes
Rape Torture Murder
Sexual Assault Female Genital Mutilation Manslaughter
Abusive Sexual Contact Trafficking Blackmail
Sexual Exploitation Held Hostage Extortion
Felonious Assault Involuntary Servitude Witness
Tampering Prostitution Abduction
Perjury Incest Peonage
Obstruction of Justice Domestic Violence Slave Trade
Kidnapping Unlawful Criminal Restraint False Imprisonment
Attempt/Conspiracy/Solicitation to Commit any of the above
Any similar activity in violation of Federal, State, or local criminal law
14. U Visa Certification
• May be signed by federal, state or local law enforcement officials, as well as
judges or other federal or state authority responsible for detection, investigating,
or prosecuting crimes
• As first responders, law enforcement officials may have first-hand knowledge
regarding a victim’s involvement in the investigation.
• The certification must confirm the immigrant victim’s past, present, or future
helpfulness in the detection, investigation, or prosecution of certain qualifying
criminal activity.
• Law enforcement officials who sign certification do not confer any immigration
status upon the victim but enable them to apply for a U visa with U.S. Citizenship
and Immigration Services (USCIS). Only USCIS has the discretion to grant or deny a
U visa application.
15. U Visa Certification
• Obtaining a certification can be the most difficult
part of the process, and may require direct
outreach with local law enforcement.
• Some agencies have indicated a policy of not
signing certifications under any circumstances.
• In some cases a prosecutor or judge may be
willing to sign the form.
16. Benefits and Limits of U Visas
• Permission to remain legally in the US for 4 years
• Employment Authorization
• Ability to apply for LPR status after holding the visa
for 3 years
• Spouse, children or parents may also qualify for visas
and to apply for LPR status
17. Notes on U Visas
• A crime does not have to lead to an
investigation or successful prosecution for a
victim to be eligible for a U visa
• There is no maximum time limit on crimes.
Victims may still be eligible to apply decades
after the crime was committed.
18. DV Convictions: Deportation
• If discovered by ICE, persons convicted of DV,
stalking, violation of protective orders are
subject to deportation.
• “Conviction” includes instances where the
accused pleads guilty, punishment is imposed
by the court, and charges later dismissed,
usually after anger mgmt, community service,
or other punishment.
19. Working with Student Victims
• Be sensitive to emotional distress. Be patient.
Victim will not always be comfortable telling
you what happened. May need to meet with
student several times.
• Post Traumatic Stress Disorder. Some victims
may be suffering from PTSD or other
emotional trauma. Be sensitive to that. Refer
to a mental professional if necessary.
• Conflicts of Interest. Be aware that you will
always have a conflict if a student’s
dependants allege abuse. Be wary of
advising them.
21. The Advising Framework
• Getting the story…whose story? Whose facts?
• Referring the parties to appropriate resources
• Possible conflict of interest in advising
relationship
• Immigration advising in relation to other legal
frameworks and counseling needs
• Institutional support for your involved student
• Safety of students and family members
• Cultural perspectives
22. Initial Complaint 2005
• F-2 Taiwanese female spouse complained of
domestic abuse.
• Perceived her as victim: withdrawn, nervous,
depressed, and unable to explain in English
• Events occurred off-campus and there was a
police report.
• Checked with Counseling Center regarding
services for F-2 spouse. Not available.
• Couple had a young F-2 child (toddler).
23. Referral
• Spouse told sketchy story through translator
• Referred to a nearby church counseling center
where services would be free to students and
spouses and
• Legal services could also be arranged.
• Director of that center reported that case was
serious and a possible candidate for U visa.
• Spouse reported she was being helped by off-
campus resources.
24. Flash Forward to 2007
• F-1 student (male) requested termination of
the F-2 spouse’s SEVIS record due to divorce.
• His story: Divorce had been contentious. He
had suffered abuse and had been awarded
physical and legal custody of child by court.
• Father noted child’s F-2 record should be kept
active.
• Adviser terminated spouse’s F-2 SEVIS record.
25. Flash Forward to 2011
• F-1 nearing completion of doctoral degree and
making plans to return to Taiwan to obtain
university faculty position.
• F-1 very agitated, thin, nervous. Explained long
history of interactions with family court/legal
system in Hawaii.
• Mutual allegations of abuse with F-1 student’s
accusations prevailing in court proceedings.
• Ex-wife still in Hawaii.
26. Student’s Story
• Multiple advising sessions with F-1. He began
to confide.
• Camera in apartment lobby recorded assault
by wife of husband holding toddler son.
• TRO granted to F-1. Retailiatory TRO initiated
by wife not granted due to lack of evidence.
• Father granted full physical and legal custody
with mother having supervised visitation and
requirement to attend parenting classes.
27. The Story, Continued
• Father continued full legal custody after
divorce.
• Later, mother granted unsupervised physical
custody 3 days/week and father 4 days/week.
• Father visited ISS adviser regularly to check
son’s SEVIS status (still F-2) and to speculate
about wife’s visa status. Father stated his ex-
wife had told him she had “U” visa status.
28. On-Going Custody Issues
• F-1 concerned about his ex-wife’s desire to
stay in Hawaii permanently.
• F-1 noted his job options in Hawaii non-
existent, but very promising in Taiwan.
• F-1 notified ex-wife of his desire to depart the
US in January 2013 upon completion of
degree; she objected and sought custody.
• Family court prohibited either parent leaving
the state without other parent’s consent.
29. Planning for Family Court Hearing
• F-1 informed me his ex-wife claimed both she
and son had green cards but refused to
provide a copy.
• F-1 requested my testimony in court regarding
his visa status and the dependent status of his
son.
• F-1’s academic adviser and I consulted on his
case, as both of us were to testify on his
behalf.
30. Status Options
• F-1 student very concerned about obeying law
and maintaining status.
• Discussed end of program options:
-Leave within grace period
-Apply for OPT and seek work
-Apply for B-2 (to buy time necessary for
family court)
31. Where we are today
• January 2013: F-1 student had Skype interview for
faculty position at Taiwan university.
• February: F-1 accepted job beginning April, 2013.
• Early April – F-1 still in Hawaii awaiting court decision.
• Mid-April – Student departed US for Taiwan taking son.
Asked Taiwanese court to work with Hawaii family
court.
• Mother : complaint in Hawaii court alleging
kidnapping.
• Child: now 10 years old, attending school in Taiwan;
happy, doing well. Connected with multi-generational
family on both sides. Court actions still pending.
32. Where we are today
• Former student feels betrayed by US legal
system (secretive U visa system, no chance to
defend himself, no apparent consideration of
his custodial role)
• Former wife still maintains desire to stay in
Hawaii and continues custody battle
• Child is very bonded with both parents who
cannot agree what is in his best interest
• No evidence of continuing victimization of
either parent.
33. Issues for Advisers to Consider
• Conflict of interest in advising F-1 and F-2.
• Safety of your student and his/her family
members.
• Probable need for off-campus resources even if
there is a counseling center on-campus
• Cultural perspectives and language issues
• Difficulties in determining who are victims and
who are perpetrators. Can’t know entire story.
• Roles of institutional advisers: setting limits and
performing “due diligence”
