SANTA ANA, CA
December 23, 2009
U.S. Department of Homeland Security
U.S. Immigration and Customs Enforcement
Foreign Nationals Allegedly Paid Defendant Thousands For Aid In Illegally Obtaining Student Visas
A Korea-born pastor who owns and operates a religious school in Fullerton, Calif., is expected to make his initial appearance in federal court Wednesday to answer to charges that he used the school as a front for an elaborate student visa fraud scheme, going so far as to hand out phony diplomas and stage graduation ceremonies.
Samuel Chai Cho Oh, 65, owner of California Union University (CUU), surrendered to U.S. Immigration and Customs Enforcement (ICE) agents Tuesday morning. Oh, who also serves as pastor of the Union Church housed on the CUU campus, is accused in a criminal complaint of conspiracy to commit visa fraud.
According to the affidavit filed in support of the criminal complaint, a confidential source familiar with Oh’s business dealings alleged the pastor collected $40,000 to $50,000 a month in fees from foreign “students” who received Form I-20s from CUU certifying their eligibility for academic study. The Form I-20 enables prospective students to go to a U.S. Embassy or consulate abroad and apply for a student visa. Until October, when its federal certification was revoked, CUU was authorized by the Department of Homeland Security to accept foreign students pursuing an education in religious and biblical studies, English as a Second Language (ESL) and Oriental medicine.
As part of the investigation, which began 10 months ago, ICE agents arrested and questioned more than 30 foreign nationals who stated they paid Oh fees ranging from $600 to more than $10,000 for documentation enabling them to fraudulently obtain student visas and, in some cases, bogus degrees. The “students” acknowledged they never attended class, nor did they ever see any teachers or students on the CUU campus. In the case affidavit, one witness, who purportedly received his bachelor’s degree in education from CUU, recounted how Oh staged a graduation ceremony at the campus in May, where students clad in caps and gowns, laughed as they received their phony diplomas.
“Student visas are intended to give people from around the world a chance to come to this country to enrich themselves with the remarkable learning opportunities available here,” said Miguel Unzueta, special agent in charge for the ICE Office of Investigations in Los Angeles. “If the allegations uncovered in this case prove true, it appears the defendant was interested in a different kind of enrichment, his own. ICE will aggressively pursue those who seek to exploit and corrupt America’s legal immigration system for personal gain. ”
In October, ICE agents executed a search warrant at the school, seizing computers and more than 300 student files. A review of that evidence showed that while the majority of CUU’s enrollees were Korean, the school’s student body included foreign nationals from more than 20 countries.
“Our fraud detection officers work collaboratively with ICE to investigate fraudulent conduct that jeopardizes the integrity of our immigration system,” said Martha Flores, acting district director for U.S. Citizenship and Immigration Services (USCIS) in Los Angeles. “This case is a great example of the success our collaboration can achieve.”
In March, ICE agents and a compliance team from the Student and Exchange Visitor Program (SEVP) paid an unannounced visit to the CUU campus. At the time, CUU had more than 300 students on its rolls. According to the case affidavit, Oh conceded during that visit that three-quarters of the school’s students did not attend class regularly and he could only produce course schedules for computer and ESL classes, even though the school was certified to accept foreign students in several other disciplines, including religious studies and Oriental medicine.
Oh, a naturalized citizen, faces a statutory maximum sentence of five years in prison based solely on the single conspiracy charge alleged in the complaint. In addition to the criminal charge, ICE has seized more than $400,000 deposited in two separate bank accounts maintained by the defendant and an associate.
ICE officials stress the visa fraud probe is ongoing and agents are continuing to pursue numerous leads. The agency worked closely on the investigation with USCIS and the Department of State’s Diplomatic Security Service. ICE also received assistance with the case from U.S. Customs and Border Protection.
Monday, December 28, 2009
Passport Fraud and Identity Theft - Domingo Antonio Batista Florian Convicted
Miami, FL
December 15, 2009
Jeffrey H. Sloman, Acting United States Attorney
Southern District of Florida
Jeffrey H. Sloman, Acting United States Attorney for the Southern District of Florida, and James M. Foster, Special Agent in Charge, U.S. Department of State, Diplomatic Security Service (“DSS”), announced that defendant Domingo Antonio Batista Florian, 42, was convicted by a jury yesterday of all counts arising from his false application to obtain a U.S. passport. U.S. District Court Judge Jose E. Martinez scheduled sentencing for March 1, 2010 at 1:30 p.m.
More specifically, Batista Florian was convicted of three separate counts arising from his October 3, 2006, application for a U.S. Passport at a U.S. Post Office in Miami. The Indictment charged him with passport fraud, in violation of Title 18, United States Code, Section 1542; impersonation of a U.S. Citizen, in violation of Title 18, United States Code, Section 911; and aggravated identity theft, in violation of Title 18,United States Code, Section 1028A(a)(1).
The evidence and testimony at trial showed that Batista Florian submitted a Puerto Rican birth certificate as proof of citizenship, and a Florida Driver’s License as proof of identity, both in the name of a person whose identity had been stolen. Batista Florian used these identifications to support his application for a U.S. passport. Batista Florian also obtained social security cards and Florida identification cards in the name of another person whose identity had been stolen. Batista Florian used these false identifications and assumed the other person’s identity for three and a half years, until his passport application was questioned and investigated in 2007.
Mr. Sloman commended the collaborative investigative work of DSS, and the U.S. Passport Agency at the Department of State. Mr. Sloman also commended the Social Security Administration, Office of Inspector General, for its substantial assistance in the investigation. The case was prosecuted by Assistant U.S. Attorneys Randy Katz and William D.A. Zerhouni.
December 15, 2009
Jeffrey H. Sloman, Acting United States Attorney
Southern District of Florida
Jeffrey H. Sloman, Acting United States Attorney for the Southern District of Florida, and James M. Foster, Special Agent in Charge, U.S. Department of State, Diplomatic Security Service (“DSS”), announced that defendant Domingo Antonio Batista Florian, 42, was convicted by a jury yesterday of all counts arising from his false application to obtain a U.S. passport. U.S. District Court Judge Jose E. Martinez scheduled sentencing for March 1, 2010 at 1:30 p.m.
More specifically, Batista Florian was convicted of three separate counts arising from his October 3, 2006, application for a U.S. Passport at a U.S. Post Office in Miami. The Indictment charged him with passport fraud, in violation of Title 18, United States Code, Section 1542; impersonation of a U.S. Citizen, in violation of Title 18, United States Code, Section 911; and aggravated identity theft, in violation of Title 18,United States Code, Section 1028A(a)(1).
The evidence and testimony at trial showed that Batista Florian submitted a Puerto Rican birth certificate as proof of citizenship, and a Florida Driver’s License as proof of identity, both in the name of a person whose identity had been stolen. Batista Florian used these identifications to support his application for a U.S. passport. Batista Florian also obtained social security cards and Florida identification cards in the name of another person whose identity had been stolen. Batista Florian used these false identifications and assumed the other person’s identity for three and a half years, until his passport application was questioned and investigated in 2007.
Mr. Sloman commended the collaborative investigative work of DSS, and the U.S. Passport Agency at the Department of State. Mr. Sloman also commended the Social Security Administration, Office of Inspector General, for its substantial assistance in the investigation. The case was prosecuted by Assistant U.S. Attorneys Randy Katz and William D.A. Zerhouni.
Wednesday, December 23, 2009
Dating Schemes, Marriage Fraud in Ukraine
United States citizens should be alert to attempts at fraud by persons claiming to live in Ukraine who offer goods for sale or profess friendship, romantic interest, and /or marriage intentions over the Internet. Neither the Embassy nor the Department of State is in a position to help recover lost money or property in such cases.
Purchasing goods via the Internet: U.S. citizens should exercise extreme caution when conducting on-line transactions with parties in Ukraine. The Embassy receives frequent reports from Americans who have transferred funds to Ukraine for the purchase via on-line auctions of goods that never arrive. Likewise, the Embassy also receives reports of non-payment for items shipped to addresses in Ukraine. When considering such transactions, exercise due diligence.
Dating Schemes and Marriage Fraud: The most frequent reports of scams the Embassy and the Department of State receive relate to on-line dating and marriage services. Correspondents who quickly move to professions of romantic interest or discussion of intimate matters could very well be scammers. The anonymity of the Internet means that the U.S. citizen cannot be sure of the real name, age, marital status, nationality, or even gender of the correspondent. In many cases, the correspondent turns out to be a fictitious persona created only to lure the U.S. citizen into sending money.
Typically, once a connection is made, the correspondent asks the U.S. citizen to send money or credit card information for living expenses, travel expenses, or "visa costs." Sometimes, the correspondent notifies the American citizen that a close family member is ill and begins to request monetary assistance. In other instances, the scammer cites the need to pay for travel expenses and “necessary travel documents” or expresses the need for funds to settle a property or other legal dispute in order to leave Ukraine.
A request for funds almost always marks a fraudulent correspondent. American citizens who fall prey to these scams have reported suffering emotional damage as well as losing thousands of dollars. U.S. citizens are cautioned against sending any money to persons they have not actually met. If they do choose to send money, they can take several precautions.
Purchasing goods via the Internet: U.S. citizens should exercise extreme caution when conducting on-line transactions with parties in Ukraine. The Embassy receives frequent reports from Americans who have transferred funds to Ukraine for the purchase via on-line auctions of goods that never arrive. Likewise, the Embassy also receives reports of non-payment for items shipped to addresses in Ukraine. When considering such transactions, exercise due diligence.
Dating Schemes and Marriage Fraud: The most frequent reports of scams the Embassy and the Department of State receive relate to on-line dating and marriage services. Correspondents who quickly move to professions of romantic interest or discussion of intimate matters could very well be scammers. The anonymity of the Internet means that the U.S. citizen cannot be sure of the real name, age, marital status, nationality, or even gender of the correspondent. In many cases, the correspondent turns out to be a fictitious persona created only to lure the U.S. citizen into sending money.
Typically, once a connection is made, the correspondent asks the U.S. citizen to send money or credit card information for living expenses, travel expenses, or "visa costs." Sometimes, the correspondent notifies the American citizen that a close family member is ill and begins to request monetary assistance. In other instances, the scammer cites the need to pay for travel expenses and “necessary travel documents” or expresses the need for funds to settle a property or other legal dispute in order to leave Ukraine.
A request for funds almost always marks a fraudulent correspondent. American citizens who fall prey to these scams have reported suffering emotional damage as well as losing thousands of dollars. U.S. citizens are cautioned against sending any money to persons they have not actually met. If they do choose to send money, they can take several precautions.
Wednesday, December 16, 2009
Connecticut Driver License - Licensing Requirements for Foreigners
In accordance with the Connecticut General Statute Sec. 14-36(b)(2) a person holding a valid out-of-state motor vehicle operator's license may operate a motor vehicle for a period of thirty days following such person's establishment of residence in Connecticut, if the motor vehicle is of the same class as that for which his or her out-of-state motor vehicle operator's license was issued.
Sec. 14-1(53) defines "nonresident" as any person whose legal residence is in a state other than Connecticut or in a foreign country.
Connecticut DMV website instructs that non U.S. citizens will be required to show proof of legal status in this country, including a valid passport and one form of identification from list of acceptable forms of identification . Photocopies of documents are not acceptable. Following are additional documents required for specific visa types:
Holders of a B1 or B2 Visitor's Visa are not eligible for a driver's license or identification card unless a valid USCIS Employment Authorization Card and verification of an application pending for Lawful Permanent Residence/Adjustment of Status is provided.
Foreign students with an F1 Visa status must show USCIS document I-20 and verification of current enrollment in a Connecticut school.
J1 Visa holders are required to show USCIS document DS2019.
H1B Visa holders are required to show a valid USCIS Employment Authorization Card and an employment verification letter from a Connecticut employer or an employer from a bordering state. The employment verification letter must be dated within the past 30 days.
All applicants will be verified through USCIS for legal status before a driver's license/identification card will be issued. In some cases responses from USCIS may take an extended period of time and applicants will be asked to return the next business day to complete the licensing process. Responses are usually not received on Thursday evenings or Saturdays.
Visitors from another country are permitted to use their valid out-of-country license here in Connecticut for a period of one year with an International Driver Permit obtained from their home country.
Full time students, on a student visa, maintaining an out-of-country residency do not have to obtain a Connecticut license as long as full-time student status is in effect and are permitted to use their valid out-of-country license here in Connecticut with an International Driver Permit obtained from your home country.
At the same time Sec. 14-39(a) of the Connecticut General Status provides that any nonresident sixteen years of age or older who is licensed to operate a motor vehicle in the state or country of which he is a resident may, subject to the provisions of section 14-216, operate any registered motor vehicle on the highways of this state for the same period allowed by the state or country of his residence to residents of this state without complying with the provisions of this chapter requiring the licensing of operators; provided (1) no nonresident shall operate a commercial motor vehicle without a commercial driver's license or a motor vehicle belonging to a class other than that for which his license or commercial driver's license was issued in the other state or country, and (2) no person, including a nonresident, shall operate a motor vehicle with a load greater than the capacity designated in section 14-267a.
Sec. 14-40 is not of any help because it deals with the foreign vehicle itself rather than operator's driver's license. It states that any motor vehicle or trailer owned or operated by a resident of a foreign country, which country adheres to the articles of the "International Convention" held in Paris, April 24, 1926, or amendments thereto, relative to the operation of motor vehicles, may be operated on the highways of this state without registration, provided such nonresident operator is the holder of an international operator's license and provided such motor vehicle is legally registered in the country of his residence and also bears an international registration.
Sec. 14-1(53) defines "nonresident" as any person whose legal residence is in a state other than Connecticut or in a foreign country.
Connecticut DMV website instructs that non U.S. citizens will be required to show proof of legal status in this country, including a valid passport and one form of identification from list of acceptable forms of identification . Photocopies of documents are not acceptable. Following are additional documents required for specific visa types:
Holders of a B1 or B2 Visitor's Visa are not eligible for a driver's license or identification card unless a valid USCIS Employment Authorization Card and verification of an application pending for Lawful Permanent Residence/Adjustment of Status is provided.
Foreign students with an F1 Visa status must show USCIS document I-20 and verification of current enrollment in a Connecticut school.
J1 Visa holders are required to show USCIS document DS2019.
H1B Visa holders are required to show a valid USCIS Employment Authorization Card and an employment verification letter from a Connecticut employer or an employer from a bordering state. The employment verification letter must be dated within the past 30 days.
All applicants will be verified through USCIS for legal status before a driver's license/identification card will be issued. In some cases responses from USCIS may take an extended period of time and applicants will be asked to return the next business day to complete the licensing process. Responses are usually not received on Thursday evenings or Saturdays.
Visitors from another country are permitted to use their valid out-of-country license here in Connecticut for a period of one year with an International Driver Permit obtained from their home country.
Full time students, on a student visa, maintaining an out-of-country residency do not have to obtain a Connecticut license as long as full-time student status is in effect and are permitted to use their valid out-of-country license here in Connecticut with an International Driver Permit obtained from your home country.
At the same time Sec. 14-39(a) of the Connecticut General Status provides that any nonresident sixteen years of age or older who is licensed to operate a motor vehicle in the state or country of which he is a resident may, subject to the provisions of section 14-216, operate any registered motor vehicle on the highways of this state for the same period allowed by the state or country of his residence to residents of this state without complying with the provisions of this chapter requiring the licensing of operators; provided (1) no nonresident shall operate a commercial motor vehicle without a commercial driver's license or a motor vehicle belonging to a class other than that for which his license or commercial driver's license was issued in the other state or country, and (2) no person, including a nonresident, shall operate a motor vehicle with a load greater than the capacity designated in section 14-267a.
Sec. 14-40 is not of any help because it deals with the foreign vehicle itself rather than operator's driver's license. It states that any motor vehicle or trailer owned or operated by a resident of a foreign country, which country adheres to the articles of the "International Convention" held in Paris, April 24, 1926, or amendments thereto, relative to the operation of motor vehicles, may be operated on the highways of this state without registration, provided such nonresident operator is the holder of an international operator's license and provided such motor vehicle is legally registered in the country of his residence and also bears an international registration.
Saturday, December 12, 2009
Immigration Marriage Fraud in Ohio - Individuals entered into sham marriages to gain US citizenship
December 8, 2009
11 indicted in Ohio marriage fraud scheme
Individuals entered into sham marriages to gain citizenship
COLUMBUS, Ohio - U.S. Immigration and Customs Enforcement (ICE) agents and local officers in the metro-Columbus area arrested nine people charged with participating in a central Ohio based scheme to arrange sham marriages in order to evade U.S. immigration laws. Two additional arrests were made in New Orleans and Philadelphia. Two defendants remain at large. All 11 people were named Dec. 8 in federal indictments unsealed in federal district court.
Carter M. Stewart, United States Attorney for the Southern District of Ohio, and Brian Moskowitz, Special Agent in Charge, U.S. Immigration and Customs Enforcement (ICE) Office of Investigations in Ohio and Michigan, announced the arrests.
"ICE will not tolerate those who engage in sham marriages to circumvent and exploit our nation's immigration system," said Moskowitz. "Marriage fraud poses a significant vulnerability that must not go unchallenged. ICE aggressively investigates those who take illegal shortcuts to citizenship, whether they do so to gain an immigration benefit or simply for personal profit."
The indictment alleges that Columbus-area residents Hasan Salohutdinov, Dimitry Pani, Sviatlana A. Piskunova and Laura Elizabeth Grace Scott recruited U.S. citizens and foreign nationals, primarily Eastern Europeans, to enter into sham marriages to evade immigration laws, starting in January 2007. The foreign nationals paid about $17,000 to marry U.S. citizens. The foreign nationals were allegedly promised legal residency in return for marrying citizens and the citizens were promised monetary compensation.
The indictment also alleges that defendants would counsel sham wedding partners regarding actions to take in order to lend the appearance of being a legitimate marriage, and assist non-citizens in preparing fraudulent documents to present to immigration officials.
"The indictment alleges that the defendants took part in a scheme to arrange marriages between U.S. citizens and foreign nationals," Stewart said. "The grand jury alleges that motivation for the Americans who entered into these marriages was money. The motivation for the ones they married was American citizenship."
Each count of conspiracy to commit marriage fraud and marriage fraud is punishable by up to five years imprisonment, a fine of up to $250,000 and three years of supervised release. Foreign nationals also face deportation after any prison time served. A list of those charged is below:
Charged foreign nationals Name City Status
Hasan Salohutdinov
Columbus
In custody
Dmitri Pani
Columbus
In custody
Sviatlana Piskunova
Columbus
In custody
Laura Scott
Columbus
In custody
Courtnie Good
Columbus
In custody
Sobithon Mirzaev
New Orleans
In custody
Elbek Saidjanov
Philadelphia
In custody
Iskander Tairov
Columbus
In custody
Brent Woods
Columbus
In custody
LaDawna Tackett
Columbus
At large
Djafar Sobirov
Columbus
At large
Stewart commended the investigation by ICE agents, and the assistance of the ICE Office of Detention and Removal, U.S. Citizenship and Immigration Services, and the Columbus Police Department, Franklin County Sheriff's Office and Reynoldsburg Police Department.
An indictment is only a charge and is not evidence of guilt. A defendant is presumed innocent and is entitled to a fair trial at which the government must prove guilt beyond a reasonable doubt.
11 indicted in Ohio marriage fraud scheme
Individuals entered into sham marriages to gain citizenship
COLUMBUS, Ohio - U.S. Immigration and Customs Enforcement (ICE) agents and local officers in the metro-Columbus area arrested nine people charged with participating in a central Ohio based scheme to arrange sham marriages in order to evade U.S. immigration laws. Two additional arrests were made in New Orleans and Philadelphia. Two defendants remain at large. All 11 people were named Dec. 8 in federal indictments unsealed in federal district court.
Carter M. Stewart, United States Attorney for the Southern District of Ohio, and Brian Moskowitz, Special Agent in Charge, U.S. Immigration and Customs Enforcement (ICE) Office of Investigations in Ohio and Michigan, announced the arrests.
"ICE will not tolerate those who engage in sham marriages to circumvent and exploit our nation's immigration system," said Moskowitz. "Marriage fraud poses a significant vulnerability that must not go unchallenged. ICE aggressively investigates those who take illegal shortcuts to citizenship, whether they do so to gain an immigration benefit or simply for personal profit."
The indictment alleges that Columbus-area residents Hasan Salohutdinov, Dimitry Pani, Sviatlana A. Piskunova and Laura Elizabeth Grace Scott recruited U.S. citizens and foreign nationals, primarily Eastern Europeans, to enter into sham marriages to evade immigration laws, starting in January 2007. The foreign nationals paid about $17,000 to marry U.S. citizens. The foreign nationals were allegedly promised legal residency in return for marrying citizens and the citizens were promised monetary compensation.
The indictment also alleges that defendants would counsel sham wedding partners regarding actions to take in order to lend the appearance of being a legitimate marriage, and assist non-citizens in preparing fraudulent documents to present to immigration officials.
"The indictment alleges that the defendants took part in a scheme to arrange marriages between U.S. citizens and foreign nationals," Stewart said. "The grand jury alleges that motivation for the Americans who entered into these marriages was money. The motivation for the ones they married was American citizenship."
Each count of conspiracy to commit marriage fraud and marriage fraud is punishable by up to five years imprisonment, a fine of up to $250,000 and three years of supervised release. Foreign nationals also face deportation after any prison time served. A list of those charged is below:
Charged foreign nationals Name City Status
Hasan Salohutdinov
Columbus
In custody
Dmitri Pani
Columbus
In custody
Sviatlana Piskunova
Columbus
In custody
Laura Scott
Columbus
In custody
Courtnie Good
Columbus
In custody
Sobithon Mirzaev
New Orleans
In custody
Elbek Saidjanov
Philadelphia
In custody
Iskander Tairov
Columbus
In custody
Brent Woods
Columbus
In custody
LaDawna Tackett
Columbus
At large
Djafar Sobirov
Columbus
At large
Stewart commended the investigation by ICE agents, and the assistance of the ICE Office of Detention and Removal, U.S. Citizenship and Immigration Services, and the Columbus Police Department, Franklin County Sheriff's Office and Reynoldsburg Police Department.
An indictment is only a charge and is not evidence of guilt. A defendant is presumed innocent and is entitled to a fair trial at which the government must prove guilt beyond a reasonable doubt.
Immigration Fraud South Florida - South Florida man sentenced to 14 years in prison for immigration fraud
December 8, 2009
South Florida man sentenced to 14 years in prison for immigration fraud
MIAMI-A Tamarac man was sentenced to 14 years in prison for his involvement in an immigration benefit fraud scheme following a joint U.S. Immigration and Customs Enforcement (ICE), Federal Bureau of Investigation (FBI), Social Security Administration (SSA), and State of Florida's Department of Business and Professional Regulation investigation.
Audie Watson, 76, was sentenced Dec. 8 to 168 months in prison, followed by three years of supervised release by U.S. District Judge William J. Zloch. Watson was also ordered to forfeit assets and pay $11,250 in restitution.
Watson was charged on Aug. 29, 2008 in a seven-count indictment, along with his employees, Nancy Vertus, Anibal Reyes and Laura Reyes, with conspiracy to commit mail fraud and to encourage illegal aliens to remain in the United States. He is additionally charged with mail fraud and money laundering.
Watson's co-defendants pleaded guilty to the conspiracy and were sentenced to 18 months in federal prison. He was convicted of all seven counts on Sept. 22 after a four-day trial.
The evidence at trial established that Watson, the owner and president of Universal Service Dedicated to God, Inc., a Florida non-profit corporation, conspired with his employees to sell documents purporting to confer membership in a Native American tribe called the Pembina Nation Little Shell.
Watson sold these memberships to illegal aliens at a cost of $1,500 per individual and $2,000 per couple. He sold the supposed memberships in order for his customers to make claims of Native American lineage to immigration authorities and thereby avoid removal from the United States.
South Florida man sentenced to 14 years in prison for immigration fraud
MIAMI-A Tamarac man was sentenced to 14 years in prison for his involvement in an immigration benefit fraud scheme following a joint U.S. Immigration and Customs Enforcement (ICE), Federal Bureau of Investigation (FBI), Social Security Administration (SSA), and State of Florida's Department of Business and Professional Regulation investigation.
Audie Watson, 76, was sentenced Dec. 8 to 168 months in prison, followed by three years of supervised release by U.S. District Judge William J. Zloch. Watson was also ordered to forfeit assets and pay $11,250 in restitution.
Watson was charged on Aug. 29, 2008 in a seven-count indictment, along with his employees, Nancy Vertus, Anibal Reyes and Laura Reyes, with conspiracy to commit mail fraud and to encourage illegal aliens to remain in the United States. He is additionally charged with mail fraud and money laundering.
Watson's co-defendants pleaded guilty to the conspiracy and were sentenced to 18 months in federal prison. He was convicted of all seven counts on Sept. 22 after a four-day trial.
The evidence at trial established that Watson, the owner and president of Universal Service Dedicated to God, Inc., a Florida non-profit corporation, conspired with his employees to sell documents purporting to confer membership in a Native American tribe called the Pembina Nation Little Shell.
Watson sold these memberships to illegal aliens at a cost of $1,500 per individual and $2,000 per couple. He sold the supposed memberships in order for his customers to make claims of Native American lineage to immigration authorities and thereby avoid removal from the United States.
Tuesday, December 8, 2009
Immigration Humanitarian Parole
Humanitarian Parole
Humanitarian parole is used sparingly to bring someone who is otherwise inadmissible into the United States for a temporary period of time due to a compelling emergency.
USCIS may grant parole temporarily:
* To anyone applying for admission into the United States based on urgent humanitarian reasons or if there is a significant public benefit
* For a period of time that corresponds with the length of the emergency or humanitarian situation
Parolees must depart the United States before the expiration of their parole. You may request an extension of parole, which must be approved by USCIS. Parole does not grant any immigration benefits.
Requirements for Parole
* Anyone can file an application for humanitarian parole.
* You may file an application for parole if you cannot obtain the necessary admission documents from the Department of State.
* You cannot use parole to avoid normal visa-issuing procedures or to bypass immigration procedures. As noted above, there must be an urgent humanitarian reason or significant public benefit for the parole to be granted
* To see if you can obtain the necessary admission documents from the Department of State, see the “U.S. Department of State Visa Information” on the right.
Filing for Parole
To file for parole you must:
• Complete a Form I-131, Application for Travel Document, and Include the filing fee for each parole applicant.
• Complete a Form I-134, Affidavit of Support, for each applicant in order to demonstrate that you will not become a public charge.
• Include detailed explanation and evidence of your circumstances
If you are represented by an attorney, he or she must file a Form G-28, Notice of Entry of Appearance as Attorney or Representative.
All requests for parole must be submitted to:
Department of Homeland Security/USCIS
Attn: Chief, Humanitarian Affairs Branch
20 Massachusetts Avenue, NW Suite 3300
Washington, DC 20529-2100
You will receive a written notice once we have received your application and again when your case has been decided. If you do not receive a response within 120 business days, then you may contact the Parole Branch in writing at the address above.
If you are currently in removal proceedings or have been previously removed from the United States, you will need to submit your request to:
Department of Homeland Security/Immigration and Customs Enforcement
Office of International Affairs
Attn: Section Chief, Law Enforcement Parole Branch
800 N. Capitol St.
Washington, DC 20536
Parole Extension Request
We recommend that you file for an extension of parole at least 30 days before the expiration date on your Form I-94, Arrival/Departure Record.
To apply for an extension of parole with USCIS you must:
* Have received your humanitarian parole from USCIS
* File a Form I-131, Application for Travel Document, and on the first page write, ‘EXTENSION REQUEST’ in big, bold letters
* Include the filing fee
* File a Form I-134, Affidavit of Support
* Include current supporting documentation
* Include a copy of your Form I-94, Arrival/Departure Record, that you were issued upon parole into the United States
You must submit requests for extensions of parole to the Parole Branch at:
Department of Homeland Security/USCIS
Attn: Chief, Parole Branch
20 Massachusetts Avenue, NW Suite 3300
Washington, DC 20529-2100
Denied Parole Requests
There is no appeal from denial of parole. However, if there are significant new facts that are relevant to your application, you may submit new documents with updated supporting evidence following the “Filing for Parole” procedure outlined above.
Humanitarian parole is used sparingly to bring someone who is otherwise inadmissible into the United States for a temporary period of time due to a compelling emergency.
USCIS may grant parole temporarily:
* To anyone applying for admission into the United States based on urgent humanitarian reasons or if there is a significant public benefit
* For a period of time that corresponds with the length of the emergency or humanitarian situation
Parolees must depart the United States before the expiration of their parole. You may request an extension of parole, which must be approved by USCIS. Parole does not grant any immigration benefits.
Requirements for Parole
* Anyone can file an application for humanitarian parole.
* You may file an application for parole if you cannot obtain the necessary admission documents from the Department of State.
* You cannot use parole to avoid normal visa-issuing procedures or to bypass immigration procedures. As noted above, there must be an urgent humanitarian reason or significant public benefit for the parole to be granted
* To see if you can obtain the necessary admission documents from the Department of State, see the “U.S. Department of State Visa Information” on the right.
Filing for Parole
To file for parole you must:
• Complete a Form I-131, Application for Travel Document, and Include the filing fee for each parole applicant.
• Complete a Form I-134, Affidavit of Support, for each applicant in order to demonstrate that you will not become a public charge.
• Include detailed explanation and evidence of your circumstances
If you are represented by an attorney, he or she must file a Form G-28, Notice of Entry of Appearance as Attorney or Representative.
All requests for parole must be submitted to:
Department of Homeland Security/USCIS
Attn: Chief, Humanitarian Affairs Branch
20 Massachusetts Avenue, NW Suite 3300
Washington, DC 20529-2100
You will receive a written notice once we have received your application and again when your case has been decided. If you do not receive a response within 120 business days, then you may contact the Parole Branch in writing at the address above.
If you are currently in removal proceedings or have been previously removed from the United States, you will need to submit your request to:
Department of Homeland Security/Immigration and Customs Enforcement
Office of International Affairs
Attn: Section Chief, Law Enforcement Parole Branch
800 N. Capitol St.
Washington, DC 20536
Parole Extension Request
We recommend that you file for an extension of parole at least 30 days before the expiration date on your Form I-94, Arrival/Departure Record.
To apply for an extension of parole with USCIS you must:
* Have received your humanitarian parole from USCIS
* File a Form I-131, Application for Travel Document, and on the first page write, ‘EXTENSION REQUEST’ in big, bold letters
* Include the filing fee
* File a Form I-134, Affidavit of Support
* Include current supporting documentation
* Include a copy of your Form I-94, Arrival/Departure Record, that you were issued upon parole into the United States
You must submit requests for extensions of parole to the Parole Branch at:
Department of Homeland Security/USCIS
Attn: Chief, Parole Branch
20 Massachusetts Avenue, NW Suite 3300
Washington, DC 20529-2100
Denied Parole Requests
There is no appeal from denial of parole. However, if there are significant new facts that are relevant to your application, you may submit new documents with updated supporting evidence following the “Filing for Parole” procedure outlined above.
Wednesday, December 2, 2009
‘CHILD MODELING’ WEB SITE INDICTED - FLORIDA ‘CHILD MODELING’ WEB SITE OWNERS INDICTED FOR CONSPIRING WITH ALABAMA PHOTOGRAPHER TO PRODUCE CHILD PORNOGRAPHY
FOR IMMEDIATE RELEASE CRM
TUESDAY, NOVEMBER 28, 2006
WWW.USDOJ.GOV
FLORIDA ‘CHILD MODELING’ WEB SITE OWNERS INDICTED FOR
CONSPIRING WITH ALABAMA PHOTOGRAPHER TO PRODUCE CHILD
PORNOGRAPHY
WASHINGTON – A federal grand jury in Birmingham, Ala., has indicted two Florida men and a Web site corporation on charges of conspiring to use minors to engage in sexually explicit conduct for the purpose of producing visual depictions and with knowingly transporting in interstate commerce visual depictions of minors engaging in sexually explicit conduct, Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Attorney Alice H. Martin for the Northern District of Alabama announced today.
The 80-count indictment unsealed today charges Marc Evan Greenberg, 42, Jeffrey Robert Libman, 39, and Webe Web Corporation, all of the Ft. Lauderdale, Fla. area. A two-count criminal information charging Jeff Pierson, 43, of Brookwood, Ala. was also unsealed today. Pierson was charged with conspiring to transport child pornography in interstate commerce using a computer from January 2003 through 2004, and with having transported child pornography in interstate commerce using a computer during that time.
“The indictment alleges that these defendants conspired to produce pornographic images of under-aged girls posing in lascivious positions for profit, under the pretense of offering professional modeling services,” said Assistant Attorney General Alice S. Fisher of the Criminal Division. “The Department of Justice is committed to the protection of our children from those who violate the law and sexually exploit minors for commercial gain.”
“The images charged are not legitimate child modeling, but rather lascivious poses one would expect to see in an adult magazine. Here lewd has met lucrative, and exploitation of a child’s innocence equals profits,” said U.S. Attorney Alice H. Martin. The Indictment alleges that from December 2002 through April 2005, Greenberg, Libman, and Webe Web, conspired with Pierson to use minors to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct. Specifically, it is charged that Greenberg and Libman established a purported “child modeling” Web site business under the name Webe Web Corporation. The business operated using three primary Internet Web sites: a central Web site, an advertising Web site, and Web sites for each individual child “model.” Webe Web’s central Web site represented to be “a Web site to promote models ages 7 thru 16 and their photographers.” On the central Web site, a “gallery” or “previews” of 15-21 photographs of various underage female children could be viewed for free. If the viewer wanted to see additional photographs, he would click “Join” and subscribe to the “models” individual Web site where he could view approximately 100 photographs of the child. The typical cost to view each individual child’s website was $25 per month to subscribe and $20 per month thereafter.
Webe Web promoted subscriptions to these individual sites through its free advertising Web site. Babble Club allowed members to receive a “free sample” of images of the children. It encouraged the purchase of subscriptions to individual child Web sites, and hosted discussion boards/groups which were devoted to each individual child’s Web site. Babble Club members made postings to the discussion boards, which included comments on specific images they liked, the type of clothing and poses they liked, and poetry written to the photographed child. Certain members posted expressions of fondness and devotion for a photographed child. Most of the Babble Club members were adult men who were not affiliated with the modeling industry.
After a viewer “subscribed” he could view numerous photographs of the individual child which were not accessible on Webe Web’s central or advertising Web sites. These individual sites were similar in domain name style with the child’s name followed by model. In order to encourage continued monthly subscriptions, Webe Web would regularly update the photographs posted and delete older photographs. Webe Web had groups of photographers under contract that supplied images and in return received a percentage of the gross subscription fees generated at the various sites.
The Indictment stated that Pierson was a photographer who produced visual depictions of minors engaged in sexually explicit conduct in Alabama and transmitted those images to Greenberg, Libman, and Webe Web in Florida. They then posted the images to the individual Web sites, and advertised and promoted photographs through Babble Club.
Specifically, the indictment alleges that in 2002, Libman and Pierson began communicating about this business venture. During 2003, Pierson sent children’s photographs to Florida from Alabama which depicted sexually explicit conduct. These images were subsequently used to create different individual child websites for Webe Web in 2003. In December of 2003, Pierson received a “profitability detail statement” from Webe Web outlining his 2003 profits generated by the individual childs’ websites. In 2004, Pierson again sent children’s photographs from Alabama to Florida which depicted sexually explicit conduct. These images were subsequently used to create additional individual child Web sites. During 2004, Pierson received monthly statements which detailed the number of subscriptions to each of the individual child Web sites, the gross income of each site, and his cut of the proceeds. He also had numerous conversations with the defendants regarding the updating of images, drop in subscriptions, issues with postings or banners, and suggestions on how to conceal dates of his pictures when discussions on Babble Club regarding a date were posted that could hurt sales on the site. Pierson’s photography accounted for a substantial portion of the images of children posted by Webe Web.
If convicted of this conspiracy Greenberg and Libman face a penalty of imprisonment of not less than 15 years nor more than 30 years, and a fine of $250,000. The corporation faces a fine of $500,000.
If convicted on the charges in the Information, Pierson faces a penalty of imprisonment of not less than five years nor more than 20 years on each count and a fine of $250,000 on each count.
“The Webe Web investigation is the culmination of countless hours of dedicated law enforcement officers and prosecutors in an aggressive law enforcement action that will bring justice to those who exploit our children across the United States,” stated Carmen Adams, Special Agent in Charge, Federal Bureau of Investigation, Birmingham Field Division.
“The U. S. Postal Inspection Service is very pleased to join in the efforts to investigate anyone suspected of trafficking child pornography. Postal Inspectors are committed to aggressively pursing anyone suspected of using the United States Mail to sexually exploit children and seeking their prosecution to the fullest extent of the law,” said Martin D. Phanco, Inspector in Charge, Atlanta Division. Counts 2 through 79 in the indictment charge Greenberg, Libman, and Webe Web with knowingly transporting in interstate commerce visual depictions of a minor engaging in sexually explicit conduct. These allegations involve images of children which were published between 2004 and 2005. If convicted, the defendants face a possible penalty of not less than 5 years and not more than 20 years in federal prison, and a fine of $250,000 per count. Count 80 in the indictment seeks forfeiture of proceeds traceable to these offenses but not less than $600,000 in addition to real property located at 1881 Middle River Drive, Condominium #201, Ft. Lauderdale, Fla. 33305, and Internet domain names and Web site content associated with the business.
The joint investigation is being conducted by the Federal Bureau of Investigation and the U.S. Postal Inspection Service. Assistant U.S. Attorney Jim Phillips is prosecuting this case in cooperation with Department of Justice Trial Attorney Jennifer Toritto Leonardo of the Child Exploitation and Obscenity Section in the Criminal Division.
Members of the public are reminded that the indictment and information contain only charges. A defendant is presumed innocent of the charges and it will be the government’s burden to prove a defendant’s guilt beyond a reasonable doubt at trial.
TUESDAY, NOVEMBER 28, 2006
WWW.USDOJ.GOV
FLORIDA ‘CHILD MODELING’ WEB SITE OWNERS INDICTED FOR
CONSPIRING WITH ALABAMA PHOTOGRAPHER TO PRODUCE CHILD
PORNOGRAPHY
WASHINGTON – A federal grand jury in Birmingham, Ala., has indicted two Florida men and a Web site corporation on charges of conspiring to use minors to engage in sexually explicit conduct for the purpose of producing visual depictions and with knowingly transporting in interstate commerce visual depictions of minors engaging in sexually explicit conduct, Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Attorney Alice H. Martin for the Northern District of Alabama announced today.
The 80-count indictment unsealed today charges Marc Evan Greenberg, 42, Jeffrey Robert Libman, 39, and Webe Web Corporation, all of the Ft. Lauderdale, Fla. area. A two-count criminal information charging Jeff Pierson, 43, of Brookwood, Ala. was also unsealed today. Pierson was charged with conspiring to transport child pornography in interstate commerce using a computer from January 2003 through 2004, and with having transported child pornography in interstate commerce using a computer during that time.
“The indictment alleges that these defendants conspired to produce pornographic images of under-aged girls posing in lascivious positions for profit, under the pretense of offering professional modeling services,” said Assistant Attorney General Alice S. Fisher of the Criminal Division. “The Department of Justice is committed to the protection of our children from those who violate the law and sexually exploit minors for commercial gain.”
“The images charged are not legitimate child modeling, but rather lascivious poses one would expect to see in an adult magazine. Here lewd has met lucrative, and exploitation of a child’s innocence equals profits,” said U.S. Attorney Alice H. Martin. The Indictment alleges that from December 2002 through April 2005, Greenberg, Libman, and Webe Web, conspired with Pierson to use minors to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct. Specifically, it is charged that Greenberg and Libman established a purported “child modeling” Web site business under the name Webe Web Corporation. The business operated using three primary Internet Web sites: a central Web site, an advertising Web site, and Web sites for each individual child “model.” Webe Web’s central Web site represented to be “a Web site to promote models ages 7 thru 16 and their photographers.” On the central Web site, a “gallery” or “previews” of 15-21 photographs of various underage female children could be viewed for free. If the viewer wanted to see additional photographs, he would click “Join” and subscribe to the “models” individual Web site where he could view approximately 100 photographs of the child. The typical cost to view each individual child’s website was $25 per month to subscribe and $20 per month thereafter.
Webe Web promoted subscriptions to these individual sites through its free advertising Web site. Babble Club allowed members to receive a “free sample” of images of the children. It encouraged the purchase of subscriptions to individual child Web sites, and hosted discussion boards/groups which were devoted to each individual child’s Web site. Babble Club members made postings to the discussion boards, which included comments on specific images they liked, the type of clothing and poses they liked, and poetry written to the photographed child. Certain members posted expressions of fondness and devotion for a photographed child. Most of the Babble Club members were adult men who were not affiliated with the modeling industry.
After a viewer “subscribed” he could view numerous photographs of the individual child which were not accessible on Webe Web’s central or advertising Web sites. These individual sites were similar in domain name style with the child’s name followed by model. In order to encourage continued monthly subscriptions, Webe Web would regularly update the photographs posted and delete older photographs. Webe Web had groups of photographers under contract that supplied images and in return received a percentage of the gross subscription fees generated at the various sites.
The Indictment stated that Pierson was a photographer who produced visual depictions of minors engaged in sexually explicit conduct in Alabama and transmitted those images to Greenberg, Libman, and Webe Web in Florida. They then posted the images to the individual Web sites, and advertised and promoted photographs through Babble Club.
Specifically, the indictment alleges that in 2002, Libman and Pierson began communicating about this business venture. During 2003, Pierson sent children’s photographs to Florida from Alabama which depicted sexually explicit conduct. These images were subsequently used to create different individual child websites for Webe Web in 2003. In December of 2003, Pierson received a “profitability detail statement” from Webe Web outlining his 2003 profits generated by the individual childs’ websites. In 2004, Pierson again sent children’s photographs from Alabama to Florida which depicted sexually explicit conduct. These images were subsequently used to create additional individual child Web sites. During 2004, Pierson received monthly statements which detailed the number of subscriptions to each of the individual child Web sites, the gross income of each site, and his cut of the proceeds. He also had numerous conversations with the defendants regarding the updating of images, drop in subscriptions, issues with postings or banners, and suggestions on how to conceal dates of his pictures when discussions on Babble Club regarding a date were posted that could hurt sales on the site. Pierson’s photography accounted for a substantial portion of the images of children posted by Webe Web.
If convicted of this conspiracy Greenberg and Libman face a penalty of imprisonment of not less than 15 years nor more than 30 years, and a fine of $250,000. The corporation faces a fine of $500,000.
If convicted on the charges in the Information, Pierson faces a penalty of imprisonment of not less than five years nor more than 20 years on each count and a fine of $250,000 on each count.
“The Webe Web investigation is the culmination of countless hours of dedicated law enforcement officers and prosecutors in an aggressive law enforcement action that will bring justice to those who exploit our children across the United States,” stated Carmen Adams, Special Agent in Charge, Federal Bureau of Investigation, Birmingham Field Division.
“The U. S. Postal Inspection Service is very pleased to join in the efforts to investigate anyone suspected of trafficking child pornography. Postal Inspectors are committed to aggressively pursing anyone suspected of using the United States Mail to sexually exploit children and seeking their prosecution to the fullest extent of the law,” said Martin D. Phanco, Inspector in Charge, Atlanta Division. Counts 2 through 79 in the indictment charge Greenberg, Libman, and Webe Web with knowingly transporting in interstate commerce visual depictions of a minor engaging in sexually explicit conduct. These allegations involve images of children which were published between 2004 and 2005. If convicted, the defendants face a possible penalty of not less than 5 years and not more than 20 years in federal prison, and a fine of $250,000 per count. Count 80 in the indictment seeks forfeiture of proceeds traceable to these offenses but not less than $600,000 in addition to real property located at 1881 Middle River Drive, Condominium #201, Ft. Lauderdale, Fla. 33305, and Internet domain names and Web site content associated with the business.
The joint investigation is being conducted by the Federal Bureau of Investigation and the U.S. Postal Inspection Service. Assistant U.S. Attorney Jim Phillips is prosecuting this case in cooperation with Department of Justice Trial Attorney Jennifer Toritto Leonardo of the Child Exploitation and Obscenity Section in the Criminal Division.
Members of the public are reminded that the indictment and information contain only charges. A defendant is presumed innocent of the charges and it will be the government’s burden to prove a defendant’s guilt beyond a reasonable doubt at trial.
Child Pornography Conviction of Jeffrey R. Libman - Florida Man Sentenced to 87 Months for Receiving Child Pornography
November 13, 2009
United States Attorney's Office
Middle District of Florida
Contact: (813) 274-6000
Florida Man Sentenced to 87 Months for Receiving Child Pornography
WASHINGTON—Jeffrey Robert Libman, 42, of Fort Lauderdale, Fla., was sentenced to 87 months in prison today for receiving child pornography, Assistant Attorney General of the Criminal Division Lanny A. Breuer and Acting U.S. Attorney for the Southern District of Florida Jeffrey H. Sloman announced.
Libman was also sentenced by U.S. District Judge Cecilia Altonaga to lifetime supervised release, following his prison term. He was indicted by a grand jury in the Southern District of Florida on April 28, 2009, for child pornography offenses. He pleaded guilty to one count of receipt of child pornography on Sept. 8, 2009. As part of his plea agreement, Libman admitted he received images that depict prepubescent children and children engaged in sadistic or masochistic conduct.
Libman was first identified by the U.S. Postal Inspection Service (USPIS) and the FBI during an investigation of Webe Web Corp., a Florida-based company. According to court documents, during the execution of a search warrant at Libman’s residence in Fort Lauderdale, USPIS and FBI seized large volumes of computer media.
Libman, Marc Evan Greenberg and Webe Web Corp. were also indicted in November 2006 in a separate case in the Northern District of Alabama for conspiracy to produce images of child pornography and transportation of images of child pornography. That case is still pending.
An indictment is merely an allegation. Defendants are presumed innocent until and unless proven guilty in a court of law.
United States Attorney's Office
Middle District of Florida
Contact: (813) 274-6000
Florida Man Sentenced to 87 Months for Receiving Child Pornography
WASHINGTON—Jeffrey Robert Libman, 42, of Fort Lauderdale, Fla., was sentenced to 87 months in prison today for receiving child pornography, Assistant Attorney General of the Criminal Division Lanny A. Breuer and Acting U.S. Attorney for the Southern District of Florida Jeffrey H. Sloman announced.
Libman was also sentenced by U.S. District Judge Cecilia Altonaga to lifetime supervised release, following his prison term. He was indicted by a grand jury in the Southern District of Florida on April 28, 2009, for child pornography offenses. He pleaded guilty to one count of receipt of child pornography on Sept. 8, 2009. As part of his plea agreement, Libman admitted he received images that depict prepubescent children and children engaged in sadistic or masochistic conduct.
Libman was first identified by the U.S. Postal Inspection Service (USPIS) and the FBI during an investigation of Webe Web Corp., a Florida-based company. According to court documents, during the execution of a search warrant at Libman’s residence in Fort Lauderdale, USPIS and FBI seized large volumes of computer media.
Libman, Marc Evan Greenberg and Webe Web Corp. were also indicted in November 2006 in a separate case in the Northern District of Alabama for conspiracy to produce images of child pornography and transportation of images of child pornography. That case is still pending.
An indictment is merely an allegation. Defendants are presumed innocent until and unless proven guilty in a court of law.
Tuesday, December 1, 2009
Visa Fraud Scheme in US Embassy in Kiev Ukraine
For Immediate Release
October 29, 2009 FBI Cleveland
Contact: Special Agent Scott Wilson
(216) 622-6611
Members of International Criminal Organization Arrested
C. Frank Figliuzzi, Special Agent in Charge of the Cleveland Division of the Federal Bureau of Investigation (FBI), for the Northern District of Ohio, announces the arrests of Pavlo Mostranskyy, age 45, Ukrainian National from Cleveland, Ohio; Sonya Hilaszek, age 45, of Cleveland, Ohio; and Vitaly Fedorchuk, age 40, of Cleveland, Ohio on October 29, 2009.
Mostranskyy, Hilaszek, and Fedorchuk have been charged with a Federal Conspiracy to Commit Fraud and Related Activity in Connection with Identification Documents and Information. Mostranskyy, Hilaszek, and Fodorchuk were charged and arrested after a lengthy investigation conducted by the Ohio State Highway Patrol, Ohio Department of Public Safety-BMV Investigations Section, Immigration and Customs Enforcement of the United States Department of Homeland Security, Internal Revenue Service – Criminal Investigative Division, Social Security Administration’s Office of the Inspector General, and the Cleveland Office of the FBI.
Also charged in connection with this investigation are Johongir Masudov, age 27, Uzbekistan National from Cincinnati, Ohio; Azamjon Asodov, age 43, Uzbekistan National from Cincinnati, Ohio; Valentina Denisova, age 30, Russian National from Cincinnati, Ohio; Artak Serobyan, age 25, Armenian National from Philadelphia, Pennsylvania; Petro Vytvytskyy, age 45, Russian National from Newark, New Jersey; Galina Dobrova – Volochiy, age 49, Ukrainian National from Newark, New Jersey; Dmytro Karabinovych, age 47, of Newark, New Jersey; Ivan Volochiy, age 40, Ukrainian National from Newark, New Jersey; Roman Matveev, age 32, Russian National from Newark, New Jersey; Vasyl Yatskiv, age 30, Russian or Ukrainian National from Chicago, Illinois; Michael Slepyan, age 41, Israeli National from Chicago, Illinois; Hennadiy Vaskevych, age 43, of Chicago, Illinois; Bohdan Borsuk, age 48, Polish National of Chicago, Illinois; Zdzislaw Kowalczyk, age 52, of Chicago, Illinois; and Martynas Bojarcius, age 29, of Chicago, Illinois.
This investigation started in December of 2007 when information was received that individuals in the Cleveland Ukrainian community were involved in a scheme to bring foreign nationals to Cleveland, Ohio and help them fraudulently obtain real Ohio driver’s licenses for a fee, issued by the Ohio Bureau of Motor Vehicles (BMV) by a Deputy Registrar working for this criminal organization. The investigation focused on Vitaly Fedorchuk who was identified as the leader of the criminal organization; Sonya Hilaszek, a corrupt employee at the Deputy Registrars Office in Parma, Ohio; and Pavlo Mostranskyy, who acted as a middle-man bringing the foreign nationals to Cleveland. Other members of the organization were based in several cities throughout the United States and worked with and for Fedorchuk and Mostranskyy to identify and facilitate customers through the operation.
An undercover FBI agent was able to fraudulently obtain a real Ohio Driver’s License in August of 2008 for $3000 from this criminal organization. The investigation showed that this criminal organization operated for at least four years, charging foreign nationals, most of whom are unlawfully present, between $1,500 and $3,000 for Ohio driver’s licenses, and Ohio state identification cards using either fraudulent documentation or none at all.
During the course of the US-based investigation, the investigators here in Cleveland discovered evidence that the criminal group in Ohio were working with criminal counterparts in Ukraine. Together, they fraudulently obtained United States non-immigrant visas for Ukrainian nationals who then traveled to Ohio and other points in the United States. The visas were obtained from the United States Embassy in Kyiv, Ukraine, allegedly through corrupt Ukrainian national employees of the US Embassy. The investigative team from Cleveland, the FBI’s Legal Attaché’s Office in Kyiv, and Diplomatic Security Service Special Agents assigned to the US Embassy in Ukraine investigated the Ukrainian criminal group jointly with the Ministry of Internal Affairs of Ukraine Organized Crime Department over the course of many months. The criminal group allegedly charged each visa applicant $12,000.00. As a result of the joint international investigation, seven members of the Ukraine-based criminal organization, including two Embassy employees, were officially detained today in Ukraine by investigators of the Ukrainian Ministry of Internal Affairs for violation of Ukrainian laws.
Fedorchuk, Hilaszek, and Mostranskyy will appear today in United States District Court for their initial appearance on these charges.
October 29, 2009 FBI Cleveland
Contact: Special Agent Scott Wilson
(216) 622-6611
Members of International Criminal Organization Arrested
C. Frank Figliuzzi, Special Agent in Charge of the Cleveland Division of the Federal Bureau of Investigation (FBI), for the Northern District of Ohio, announces the arrests of Pavlo Mostranskyy, age 45, Ukrainian National from Cleveland, Ohio; Sonya Hilaszek, age 45, of Cleveland, Ohio; and Vitaly Fedorchuk, age 40, of Cleveland, Ohio on October 29, 2009.
Mostranskyy, Hilaszek, and Fedorchuk have been charged with a Federal Conspiracy to Commit Fraud and Related Activity in Connection with Identification Documents and Information. Mostranskyy, Hilaszek, and Fodorchuk were charged and arrested after a lengthy investigation conducted by the Ohio State Highway Patrol, Ohio Department of Public Safety-BMV Investigations Section, Immigration and Customs Enforcement of the United States Department of Homeland Security, Internal Revenue Service – Criminal Investigative Division, Social Security Administration’s Office of the Inspector General, and the Cleveland Office of the FBI.
Also charged in connection with this investigation are Johongir Masudov, age 27, Uzbekistan National from Cincinnati, Ohio; Azamjon Asodov, age 43, Uzbekistan National from Cincinnati, Ohio; Valentina Denisova, age 30, Russian National from Cincinnati, Ohio; Artak Serobyan, age 25, Armenian National from Philadelphia, Pennsylvania; Petro Vytvytskyy, age 45, Russian National from Newark, New Jersey; Galina Dobrova – Volochiy, age 49, Ukrainian National from Newark, New Jersey; Dmytro Karabinovych, age 47, of Newark, New Jersey; Ivan Volochiy, age 40, Ukrainian National from Newark, New Jersey; Roman Matveev, age 32, Russian National from Newark, New Jersey; Vasyl Yatskiv, age 30, Russian or Ukrainian National from Chicago, Illinois; Michael Slepyan, age 41, Israeli National from Chicago, Illinois; Hennadiy Vaskevych, age 43, of Chicago, Illinois; Bohdan Borsuk, age 48, Polish National of Chicago, Illinois; Zdzislaw Kowalczyk, age 52, of Chicago, Illinois; and Martynas Bojarcius, age 29, of Chicago, Illinois.
This investigation started in December of 2007 when information was received that individuals in the Cleveland Ukrainian community were involved in a scheme to bring foreign nationals to Cleveland, Ohio and help them fraudulently obtain real Ohio driver’s licenses for a fee, issued by the Ohio Bureau of Motor Vehicles (BMV) by a Deputy Registrar working for this criminal organization. The investigation focused on Vitaly Fedorchuk who was identified as the leader of the criminal organization; Sonya Hilaszek, a corrupt employee at the Deputy Registrars Office in Parma, Ohio; and Pavlo Mostranskyy, who acted as a middle-man bringing the foreign nationals to Cleveland. Other members of the organization were based in several cities throughout the United States and worked with and for Fedorchuk and Mostranskyy to identify and facilitate customers through the operation.
An undercover FBI agent was able to fraudulently obtain a real Ohio Driver’s License in August of 2008 for $3000 from this criminal organization. The investigation showed that this criminal organization operated for at least four years, charging foreign nationals, most of whom are unlawfully present, between $1,500 and $3,000 for Ohio driver’s licenses, and Ohio state identification cards using either fraudulent documentation or none at all.
During the course of the US-based investigation, the investigators here in Cleveland discovered evidence that the criminal group in Ohio were working with criminal counterparts in Ukraine. Together, they fraudulently obtained United States non-immigrant visas for Ukrainian nationals who then traveled to Ohio and other points in the United States. The visas were obtained from the United States Embassy in Kyiv, Ukraine, allegedly through corrupt Ukrainian national employees of the US Embassy. The investigative team from Cleveland, the FBI’s Legal Attaché’s Office in Kyiv, and Diplomatic Security Service Special Agents assigned to the US Embassy in Ukraine investigated the Ukrainian criminal group jointly with the Ministry of Internal Affairs of Ukraine Organized Crime Department over the course of many months. The criminal group allegedly charged each visa applicant $12,000.00. As a result of the joint international investigation, seven members of the Ukraine-based criminal organization, including two Embassy employees, were officially detained today in Ukraine by investigators of the Ukrainian Ministry of Internal Affairs for violation of Ukrainian laws.
Fedorchuk, Hilaszek, and Mostranskyy will appear today in United States District Court for their initial appearance on these charges.
U Visa - An Effective Resource for Law Enforcement
The U Visa
An Effective Resource for Law Enforcement
By Stacey IVIE, M.Ed., and Natalie Nanasi, J.D.
Law enforcement personnel strive for strong connections with all citizens. In pursuit of this goal, striking an appropriate balance—one that punishes wrongdoers while protecting victims—can present a challenge. One way that officers not only can foster better relationships with immigrant communities but also increase offender accountability, promote public safety, and help ensure that crimes translate into convictions is to promote awareness of the U visa, which provides important immigration benefits to cooperating crime victims.
The authors believe that the fear of deportation has created a class of silent victims and undermined officers’ attempts at community-oriented policing among immigrant populations. They opine that the U visa helps improve relations with these communities, increase the reporting of criminal activity, enable provision of services to victims, and enhance the prosecution of violent perpetrators. Also, the authors feel that officers may have misconceptions about the U visa and not recognize its effectiveness as a tool. They hope that this article will help clarify the intent, purpose, and benefits of the U visa to the law enforcement community.
DESCRIPTION OF THE U VISA
Congress created the U visa—available to immigrant victims of a wide range of serious crimes—as part of the Victims of Trafficking and Violence Protection Act of 2000, recognizing that many of these individuals, with temporary or no legal status, fear that assisting law enforcement could lead to deportation.1 By providing noncitizen victims a means of stabilizing their legal status, the U visa encourages them to report the crimes. It helps to curtail criminal activity, protect the innocent, and encourage victims to “fully participate in proceedings that will aid in bringing perpetrators to justice.”2 The U visa also can promote contact with law enforcement officers within isolated communities, which provides valuable assistance to individuals at heightened risk of victimization.
The U visa provides an avenue to legal status for immigrant crime victims who 1) have suffered substantial physical or mental abuse as a result of victimization; 2) possess information regarding the activity; and 3) offer a source of help in the investigation or prosecution.3 The incident in question must have violated U.S. law or occurred within the nation’s borders (including Indian country and military installations) or one of its territories or possessions. The qualifying criminal activities covered by the U visa include a long list of serious offenses or the attempt, conspiracy, or solicitation to commit any of them. Unlike other protections available to battered immigrants (such as those provided under the Violence Against Women Act), eligibility for a U visa does not depend on a marriage between the victim and abuser or the legal status of the perpetrator.4
To obtain a U visa, victims must demonstrate to the U.S. Citizenship and Immigration Services (USCIS) their willingness to cooperate in a qualifying investigation or prosecution by law enforcement entities, such as federal, state, or local police agencies; prosecutors; judges; or any other appropriate authority. This definition includes organizations with criminal investigative jurisdiction in their respective areas of expertise (e.g., Child Protective Services, the Equal Employment Opportunity Commission, and the Department of Labor).5
BENEFITS FOR VICTIMS
Approved U-visa petitioners receive temporary legal status and work authorization, which allows these victims to support themselves and rebuild their lives in safety while assisting law enforcement.6 After 3 years, they may gain eligibility for lawful permanent resident status (i.e., a Green Card). Such benefits make the U visa an effective tool for bringing victims, particularly those of domestic violence who may depend on the perpetrator for legal status or economic support, out of the shadows. Research shows that “immigrant battered women want…the violence to stop, but culture, lack of support and immigration status limit their ability to deal with the violence and make them particularly vulnerable to failure in their attempts to escape a battering relationship.”7 Often, these victims find it difficult to break free as social “isolation, exacerbated by lack of social contacts, geographic isolation, and limited mastery of English or cultural alienation…interferes with detection and accountability, makes it easier for the batterer to ignore social sanctions, promotes increased marital dependence, and increases intrafamilial exclusivity and intensity.”8 The prospect of a U visa may eliminate the person’s fear of calling the police for help, and, once connected to legal and social service systems (e.g., victim-witness advocates, battered-women’s shelters, health- and child-care programs), some of the pressures that discourage victims of domestic violence to leave a relationship may be alleviated, allowing them to ultimately break the cycle of abuse.
Photo of Detective Ivie Photo of Ms. Nanasi
Detective Ivie serves with the Alexandria, Virginia, Police Department. Ms. Nanasi is an attorney with the Tahirih Justice Center in Falls Church, Virginia.
Moreover, financial concerns pose significant barriers that prevent victims of crimes, such as domestic violence, from leaving and attaining economic self-sufficiency. Because battered immigrant women are not eligible for many work opportunities and public benefits, they and their children must choose between remaining in a violent situation or facing starvation and poverty. The U visa, therefore, can afford noncitizen victims of domestic violence the same opportunities as survivors with U.S. citizenship and allow them to obtain the resources crucial in helping them escape from abusive situations.9
ADVANTAGES FOR LAW ENFORCEMENT
Cooperative Victims
With immigrant victims no longer afraid to cooperate with the police, the subsequent increase in reporting will ensure the identification and apprehension of more violent criminals. Additionally, victim participation in the investigation or prosecution of cases increases the likelihood of convictions. The resulting accountability of offenders can lead to defendant rehabilitation, which, in turn, ultimately may increase the number of productive members of society, reduce crime rates, and promote public safety for all members of a community.
Use of the U visa also may cause a decline in recidivism, or the repetition of certain crimes, thus decreasing the frustration of officers and the loss of financial assistance and other services needed by victims. These issues prove particularly prominent in domestic violence cases. Statistics show that “on average, women…leave and return to an abusive relationship five times before permanently leaving….”10 Those five incidents may have involved law enforcement responding to the scene and spending numerous hours on a case, thereby decreasing officers’ availability to other crime victims. Perhaps, the prosecutor spent time and financial resources to create an evidence-based prosecution with a limited chance of conviction. In such instances, the U visa can increase the likelihood of victim cooperation, thereby eliminating these wasted hours.
Moreover, recidivism rates logically will decrease when public service resources are provided to undocumented victims of certain pattern crimes. The ability to earn an income and receive financial assistance may drastically change the outlook of victims who had no prospect for life modification prior to the availability of the U visa, allowing them to leave a violent relationship.
Last, use of the U visa also can eliminate the current conflict faced by officers who respond to domestic violence scenes. Like many other states, the commonwealth of Virginia mandates public assistance for victims of domestic abuse. The Virginia Code requires that the officer “provide the allegedly abused person, both orally and in writing, information regarding the legal and community resources available.…”11 However, this directive conflicts with the prohibition against immigrant victims receiving public benefits, creating a confusing situation for first responders. Putting noncitizen victims of domestic violence on the path to legal status can resolve this inconsistency.
Offenses Covered by the U Visa
To obtain a U visa, the immigrant must be the victim of one or more qualifying crimes; the attempt, conspiracy, or solicitation to commit any of the acts; or any similar activity in violation of federal, state, or local criminal law.
Rape
Trafficking
Domestic violence
Abusive sexual contact
Sexual exploitation
Being held hostage
Involuntary servitude
Kidnapping
Unlawful criminal restraint
Blackmail
Manslaughter
Felonious assault
Obstruction of justice Torture
Incest
Sexual assault
Prostitution
Female genital mutilation
Peonage
Slave trade
Abduction
False imprisonment
Extortion
Murder
Witness tampering
Perjury
8 U.S.C. 1101(a)(15)(U)(iii)
Community-Oriented Policing
Community-oriented policing “promotes and supports organizational strategies to address the causes and reduce the fear of crime and social disorder through problem-solving tactics and police-community partnerships.”12 In short, this law enforcement model is based on the principle that only the partnership of police and citizens can successfully address the problem of crime in communities. The U.S. Department of Justice promotes community-oriented policing as a highly effective problem-solving model.
Fear of deportation breaks down the ties that bind the police and the community, and, without a joint venture involving both participants and the trust that must exist between the two parties, community-oriented policing will not work. Use of the U visa can address this fear, giving victims more confidence about calling the police and increasing trust between community members and those sworn to protect and serve.
FREQUENTLYASKED QUESTIONS
Although the U visa can provide substantial benefits to both victims and officers, the authors recognize that valid questions and concerns exist that may limit its acceptance and effectiveness in the law enforcement community. The answers to some frequently asked questions can help address these issues.
* What role do law enforcement agencies have in the application process? Agencies only complete the 3-page Form I-918 Supplement B, U Nonimmigrant Status Certification (i.e., the “law enforcement certification form”), which simply requires the department’s information; the details of the crime; and the victim’s personal data, knowledge of the incident, and helpfulness to the investigation or prosecution. Signing the form does not indicate sponsorship of the immigrant. Although the form bears significant weight because it demonstrates that the individual has met several of the eligibility criteria, the USCIS decides whether to grant the U visa only after evaluating the totality of the circumstances. However, a U visa will not be issued without a signed law enforcement certification.
* Who can sign the law enforcement certification form? Heads of certifying agencies or any supervisory employee they appoint (i.e., a designated certifier) can sign the form. A designated certifier should know the certification requirements thoroughly and be readily identifiable and accessible to immigrant crime victims; this simplifies the process for applicants, serves as a quality control measure, and prevents abuse of the U visa.
* What if the victim stops cooperating? Certifying departments may notify USCIS if victims do not meet their ongoing responsibility to cooperate with law enforcement officers. However, agencies should recognize when a victim may have suffered abuse-related trauma (e.g., post-traumatic stress disorder or other debilitating emotional or physical condition) or legitimately fear retaliation from perpetrators; in such situations, agencies should be mindful of withdrawing or refusing certification. Departments also should remember that issuance of a U visa does not require any case outcomes or milestones; a victim must only be helpful.13 Last, USCIS assumes “an ongoing need for the applicant’s assistance”; if authorities no longer need help, the victims have fulfilled their obligation to law enforcement.14
* Is there a quid pro quo? No. The U visa is not given in exchange for filing a police report or for testimony at trial.
* Are some eligible victims criminals due to their illegal presence in the United States? The Immigration and Nationality Act (INA) determines an individual’s legal status. In enacting the Victims of Trafficking and Violence Prevention Act and creating the U visa, Congress modified the INA. The federal government weighed all of the interests involved and ultimately created a legal status for cooperating crime victims, regardless of their means of entry into the country, based on the determination that “the purpose of the U nonimmigrant classification is to strengthen the ability of law enforcement agencies to investigate and prosecute such crimes as domestic violence, sexual assault, and trafficking in persons, while offering protection to alien crime victims in keeping with the humanitarian interests of the United States.”15
* Will U visas increase the filing of false police reports? To combat false reporting, law enforcement officials should conduct a thorough investigation of any alleged crime to determine its authenticity. Concerning a false allegation, not only should officers not sign the U-visa certification form but they should initiate a criminal charge for the filing of a false police report. However, no evidence indicates that an agency’s use of the U visa will lead to the filing of false claims. The U visa covers crimes that are serious, predominantly violent, difficult to fabricate, and that carry dire legal consequences for the perpetrator. Additionally, immigrants hesitant to contact authorities regarding a real crime because of their fear of deportation probably would not do so to report a false one. Moreover, U-visa regulations protect against its abuse in this way. First, they specifically exclude “a person…culpable for the qualifying criminal activity” from U-visa eligibility.16 Further, if applicants cannot demonstrate a true crime’s occurrence, their suffering from the incident, or their cooperation with law enforcement, they cannot obtain a U visa.
* Do law enforcement agencies have to sign U-visa certification forms? The federal government does not mandate that law enforcement agencies implement a U-visa certification process. It only serves as a resource designed to augment the effectiveness of a criminal investigation or prosecution. However, departments that decline participation may prevent the identification and punishment of violent perpetrators. Moreover, refusing to certify a qualifying victim not only undermines the purpose of the federal law but decreases an agency’s ability to combat crime, apprehend perpetrators, foster relationships within immigrant communities, and provide crucial assistance to victims of violent crime.
CONCLUSION
The fear of deportation can cause immigrant communities to cut themselves off from police and not offer information about criminal activity, even when victimized. Consequently, predators remain on the street, emboldened because they know they can strike with a degree of impunity. As a result, societies face increased crime, including serious offenses, and the perpetrators victimize and endanger everyone, not just illegal immigrants.17
The U visa can alleviate the concerns of immigrant communities, open lines of communication, and enhance public safety for all. It then helps law enforcement officers fulfill their ultimate goal of ensuring the well-being of those they serve.
Endnotes
1 New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, Background and Legislative Authority, retrieved from http://bibdaily.com/pdfs/E7-17807.pdf. See also http://www.ilrc.org/resources/U%20Visa/Frequently%20Asked%20Questions.html.
2 http://www.uscis.gov/files/pressrelease/U-visa_05Sept07.pdf
3 The U visa is available to individuals with temporary immigration status (e.g., student, employment-based, and tourist visas or Temporary Protected Status), as well as undocumented persons with no legal status.
4 Because of their experience and expertise, the authors use examples of domestic violence and other crimes against women throughout the article. However, the U visa is available to both men and women and serves as a useful tool against a wide range of violent crimes.
5 8 C.F.R. §214.14(a)(2) (defining a “certifying agency” for U-visa purposes).
6 Pursuant to 8 U.S.C. 1184(p)(2), the maximum number of issued U visas may not exceed 10,000 per fiscal year.
7 M.A. Dutton and G.A. Hass, “The Use of Expert Testimony Concerning Battering and Its Effects on Immigrant Women”; retrieved from http://www.legalmomentum.org/site/ DocServer/wwwappendixcesperttestimonyconcerningbattering.pdf?docID=631.
8 Joyce Nielson, Russell Endo, and Barbara Ellington, “Social Isolation and Wife Abuse: A Research Report,” in Intimate Violence: Interdisciplinary Perspectives, ed. Emilio C. Viano (Bristol, PA: Taylor and Francis, 1992); and Bruce Rounsaville, “Theories in Marital Violence: Evidence from a Study of Battered Women,” Victimology: An International Journal 11 (1978): 21.
9 National Immigration Law Center Fact Sheet on the Women Immigrants Safe Harbor Act; retrieved from http://www.nilc.org/ immspbs/cdev/wish/WISH_2-pgr_3-26-04.pdf.
10 http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/fs_domestic_violence.html
11 VA Criminal Procedure Code §19.2-81.3.
12 U.S. Department of Justice, Office of Community Oriented Policing Services, “What Is Community Policing?” retrieved from http://www.cops.usdoj.gov/Default.asp?Item=36. See also David Allender, “Community Policing: Exploring the Philosophy,” FBI Law Enforcement Bulletin, March 2004, 18-22; Clyde Cronkhite, “Fostering Community Partnerships That Prevent Crime and Promote Quality of Life,” FBI Law Enforcement Bulletin, May 2005, 7-10; John Ellison, “Community Policing: Implementation Issues,” FBI Law Enforcement Bulletin, April 2006, 12-16; and Carl Peed, “The Community Policing Umbrella,” FBI Law Enforcement Bulletin, November 2008, 22-24.
13 U visa regulations broadly define the concept of helpfulness, to include victims who have been helpful in the past, are currently being helpful, or are likely to be helpful in the future. 8 CFR 214.14(b)(3).
14 8 C.F.R. §214.14(a)(2).
15 U Visa Regulations, Document Summary, 8 C.F.R. § 214.14.
16 8 C.F.R. §214.01(a)(14)(iii).
17 David Harris, “Avoidable Disaster: Police Enforcing U.S. Immigration Law”; retrieved from http://jurist.law.pitt.edu/forumy/2006/10/avoidable-disaster-police-enforcing-us.php.
An Effective Resource for Law Enforcement
By Stacey IVIE, M.Ed., and Natalie Nanasi, J.D.
Law enforcement personnel strive for strong connections with all citizens. In pursuit of this goal, striking an appropriate balance—one that punishes wrongdoers while protecting victims—can present a challenge. One way that officers not only can foster better relationships with immigrant communities but also increase offender accountability, promote public safety, and help ensure that crimes translate into convictions is to promote awareness of the U visa, which provides important immigration benefits to cooperating crime victims.
The authors believe that the fear of deportation has created a class of silent victims and undermined officers’ attempts at community-oriented policing among immigrant populations. They opine that the U visa helps improve relations with these communities, increase the reporting of criminal activity, enable provision of services to victims, and enhance the prosecution of violent perpetrators. Also, the authors feel that officers may have misconceptions about the U visa and not recognize its effectiveness as a tool. They hope that this article will help clarify the intent, purpose, and benefits of the U visa to the law enforcement community.
DESCRIPTION OF THE U VISA
Congress created the U visa—available to immigrant victims of a wide range of serious crimes—as part of the Victims of Trafficking and Violence Protection Act of 2000, recognizing that many of these individuals, with temporary or no legal status, fear that assisting law enforcement could lead to deportation.1 By providing noncitizen victims a means of stabilizing their legal status, the U visa encourages them to report the crimes. It helps to curtail criminal activity, protect the innocent, and encourage victims to “fully participate in proceedings that will aid in bringing perpetrators to justice.”2 The U visa also can promote contact with law enforcement officers within isolated communities, which provides valuable assistance to individuals at heightened risk of victimization.
The U visa provides an avenue to legal status for immigrant crime victims who 1) have suffered substantial physical or mental abuse as a result of victimization; 2) possess information regarding the activity; and 3) offer a source of help in the investigation or prosecution.3 The incident in question must have violated U.S. law or occurred within the nation’s borders (including Indian country and military installations) or one of its territories or possessions. The qualifying criminal activities covered by the U visa include a long list of serious offenses or the attempt, conspiracy, or solicitation to commit any of them. Unlike other protections available to battered immigrants (such as those provided under the Violence Against Women Act), eligibility for a U visa does not depend on a marriage between the victim and abuser or the legal status of the perpetrator.4
To obtain a U visa, victims must demonstrate to the U.S. Citizenship and Immigration Services (USCIS) their willingness to cooperate in a qualifying investigation or prosecution by law enforcement entities, such as federal, state, or local police agencies; prosecutors; judges; or any other appropriate authority. This definition includes organizations with criminal investigative jurisdiction in their respective areas of expertise (e.g., Child Protective Services, the Equal Employment Opportunity Commission, and the Department of Labor).5
BENEFITS FOR VICTIMS
Approved U-visa petitioners receive temporary legal status and work authorization, which allows these victims to support themselves and rebuild their lives in safety while assisting law enforcement.6 After 3 years, they may gain eligibility for lawful permanent resident status (i.e., a Green Card). Such benefits make the U visa an effective tool for bringing victims, particularly those of domestic violence who may depend on the perpetrator for legal status or economic support, out of the shadows. Research shows that “immigrant battered women want…the violence to stop, but culture, lack of support and immigration status limit their ability to deal with the violence and make them particularly vulnerable to failure in their attempts to escape a battering relationship.”7 Often, these victims find it difficult to break free as social “isolation, exacerbated by lack of social contacts, geographic isolation, and limited mastery of English or cultural alienation…interferes with detection and accountability, makes it easier for the batterer to ignore social sanctions, promotes increased marital dependence, and increases intrafamilial exclusivity and intensity.”8 The prospect of a U visa may eliminate the person’s fear of calling the police for help, and, once connected to legal and social service systems (e.g., victim-witness advocates, battered-women’s shelters, health- and child-care programs), some of the pressures that discourage victims of domestic violence to leave a relationship may be alleviated, allowing them to ultimately break the cycle of abuse.
Photo of Detective Ivie Photo of Ms. Nanasi
Detective Ivie serves with the Alexandria, Virginia, Police Department. Ms. Nanasi is an attorney with the Tahirih Justice Center in Falls Church, Virginia.
Moreover, financial concerns pose significant barriers that prevent victims of crimes, such as domestic violence, from leaving and attaining economic self-sufficiency. Because battered immigrant women are not eligible for many work opportunities and public benefits, they and their children must choose between remaining in a violent situation or facing starvation and poverty. The U visa, therefore, can afford noncitizen victims of domestic violence the same opportunities as survivors with U.S. citizenship and allow them to obtain the resources crucial in helping them escape from abusive situations.9
ADVANTAGES FOR LAW ENFORCEMENT
Cooperative Victims
With immigrant victims no longer afraid to cooperate with the police, the subsequent increase in reporting will ensure the identification and apprehension of more violent criminals. Additionally, victim participation in the investigation or prosecution of cases increases the likelihood of convictions. The resulting accountability of offenders can lead to defendant rehabilitation, which, in turn, ultimately may increase the number of productive members of society, reduce crime rates, and promote public safety for all members of a community.
Use of the U visa also may cause a decline in recidivism, or the repetition of certain crimes, thus decreasing the frustration of officers and the loss of financial assistance and other services needed by victims. These issues prove particularly prominent in domestic violence cases. Statistics show that “on average, women…leave and return to an abusive relationship five times before permanently leaving….”10 Those five incidents may have involved law enforcement responding to the scene and spending numerous hours on a case, thereby decreasing officers’ availability to other crime victims. Perhaps, the prosecutor spent time and financial resources to create an evidence-based prosecution with a limited chance of conviction. In such instances, the U visa can increase the likelihood of victim cooperation, thereby eliminating these wasted hours.
Moreover, recidivism rates logically will decrease when public service resources are provided to undocumented victims of certain pattern crimes. The ability to earn an income and receive financial assistance may drastically change the outlook of victims who had no prospect for life modification prior to the availability of the U visa, allowing them to leave a violent relationship.
Last, use of the U visa also can eliminate the current conflict faced by officers who respond to domestic violence scenes. Like many other states, the commonwealth of Virginia mandates public assistance for victims of domestic abuse. The Virginia Code requires that the officer “provide the allegedly abused person, both orally and in writing, information regarding the legal and community resources available.…”11 However, this directive conflicts with the prohibition against immigrant victims receiving public benefits, creating a confusing situation for first responders. Putting noncitizen victims of domestic violence on the path to legal status can resolve this inconsistency.
Offenses Covered by the U Visa
To obtain a U visa, the immigrant must be the victim of one or more qualifying crimes; the attempt, conspiracy, or solicitation to commit any of the acts; or any similar activity in violation of federal, state, or local criminal law.
Rape
Trafficking
Domestic violence
Abusive sexual contact
Sexual exploitation
Being held hostage
Involuntary servitude
Kidnapping
Unlawful criminal restraint
Blackmail
Manslaughter
Felonious assault
Obstruction of justice Torture
Incest
Sexual assault
Prostitution
Female genital mutilation
Peonage
Slave trade
Abduction
False imprisonment
Extortion
Murder
Witness tampering
Perjury
8 U.S.C. 1101(a)(15)(U)(iii)
Community-Oriented Policing
Community-oriented policing “promotes and supports organizational strategies to address the causes and reduce the fear of crime and social disorder through problem-solving tactics and police-community partnerships.”12 In short, this law enforcement model is based on the principle that only the partnership of police and citizens can successfully address the problem of crime in communities. The U.S. Department of Justice promotes community-oriented policing as a highly effective problem-solving model.
Fear of deportation breaks down the ties that bind the police and the community, and, without a joint venture involving both participants and the trust that must exist between the two parties, community-oriented policing will not work. Use of the U visa can address this fear, giving victims more confidence about calling the police and increasing trust between community members and those sworn to protect and serve.
FREQUENTLYASKED QUESTIONS
Although the U visa can provide substantial benefits to both victims and officers, the authors recognize that valid questions and concerns exist that may limit its acceptance and effectiveness in the law enforcement community. The answers to some frequently asked questions can help address these issues.
* What role do law enforcement agencies have in the application process? Agencies only complete the 3-page Form I-918 Supplement B, U Nonimmigrant Status Certification (i.e., the “law enforcement certification form”), which simply requires the department’s information; the details of the crime; and the victim’s personal data, knowledge of the incident, and helpfulness to the investigation or prosecution. Signing the form does not indicate sponsorship of the immigrant. Although the form bears significant weight because it demonstrates that the individual has met several of the eligibility criteria, the USCIS decides whether to grant the U visa only after evaluating the totality of the circumstances. However, a U visa will not be issued without a signed law enforcement certification.
* Who can sign the law enforcement certification form? Heads of certifying agencies or any supervisory employee they appoint (i.e., a designated certifier) can sign the form. A designated certifier should know the certification requirements thoroughly and be readily identifiable and accessible to immigrant crime victims; this simplifies the process for applicants, serves as a quality control measure, and prevents abuse of the U visa.
* What if the victim stops cooperating? Certifying departments may notify USCIS if victims do not meet their ongoing responsibility to cooperate with law enforcement officers. However, agencies should recognize when a victim may have suffered abuse-related trauma (e.g., post-traumatic stress disorder or other debilitating emotional or physical condition) or legitimately fear retaliation from perpetrators; in such situations, agencies should be mindful of withdrawing or refusing certification. Departments also should remember that issuance of a U visa does not require any case outcomes or milestones; a victim must only be helpful.13 Last, USCIS assumes “an ongoing need for the applicant’s assistance”; if authorities no longer need help, the victims have fulfilled their obligation to law enforcement.14
* Is there a quid pro quo? No. The U visa is not given in exchange for filing a police report or for testimony at trial.
* Are some eligible victims criminals due to their illegal presence in the United States? The Immigration and Nationality Act (INA) determines an individual’s legal status. In enacting the Victims of Trafficking and Violence Prevention Act and creating the U visa, Congress modified the INA. The federal government weighed all of the interests involved and ultimately created a legal status for cooperating crime victims, regardless of their means of entry into the country, based on the determination that “the purpose of the U nonimmigrant classification is to strengthen the ability of law enforcement agencies to investigate and prosecute such crimes as domestic violence, sexual assault, and trafficking in persons, while offering protection to alien crime victims in keeping with the humanitarian interests of the United States.”15
* Will U visas increase the filing of false police reports? To combat false reporting, law enforcement officials should conduct a thorough investigation of any alleged crime to determine its authenticity. Concerning a false allegation, not only should officers not sign the U-visa certification form but they should initiate a criminal charge for the filing of a false police report. However, no evidence indicates that an agency’s use of the U visa will lead to the filing of false claims. The U visa covers crimes that are serious, predominantly violent, difficult to fabricate, and that carry dire legal consequences for the perpetrator. Additionally, immigrants hesitant to contact authorities regarding a real crime because of their fear of deportation probably would not do so to report a false one. Moreover, U-visa regulations protect against its abuse in this way. First, they specifically exclude “a person…culpable for the qualifying criminal activity” from U-visa eligibility.16 Further, if applicants cannot demonstrate a true crime’s occurrence, their suffering from the incident, or their cooperation with law enforcement, they cannot obtain a U visa.
* Do law enforcement agencies have to sign U-visa certification forms? The federal government does not mandate that law enforcement agencies implement a U-visa certification process. It only serves as a resource designed to augment the effectiveness of a criminal investigation or prosecution. However, departments that decline participation may prevent the identification and punishment of violent perpetrators. Moreover, refusing to certify a qualifying victim not only undermines the purpose of the federal law but decreases an agency’s ability to combat crime, apprehend perpetrators, foster relationships within immigrant communities, and provide crucial assistance to victims of violent crime.
CONCLUSION
The fear of deportation can cause immigrant communities to cut themselves off from police and not offer information about criminal activity, even when victimized. Consequently, predators remain on the street, emboldened because they know they can strike with a degree of impunity. As a result, societies face increased crime, including serious offenses, and the perpetrators victimize and endanger everyone, not just illegal immigrants.17
The U visa can alleviate the concerns of immigrant communities, open lines of communication, and enhance public safety for all. It then helps law enforcement officers fulfill their ultimate goal of ensuring the well-being of those they serve.
Endnotes
1 New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, Background and Legislative Authority, retrieved from http://bibdaily.com/pdfs/E7-17807.pdf. See also http://www.ilrc.org/resources/U%20Visa/Frequently%20Asked%20Questions.html.
2 http://www.uscis.gov/files/pressrelease/U-visa_05Sept07.pdf
3 The U visa is available to individuals with temporary immigration status (e.g., student, employment-based, and tourist visas or Temporary Protected Status), as well as undocumented persons with no legal status.
4 Because of their experience and expertise, the authors use examples of domestic violence and other crimes against women throughout the article. However, the U visa is available to both men and women and serves as a useful tool against a wide range of violent crimes.
5 8 C.F.R. §214.14(a)(2) (defining a “certifying agency” for U-visa purposes).
6 Pursuant to 8 U.S.C. 1184(p)(2), the maximum number of issued U visas may not exceed 10,000 per fiscal year.
7 M.A. Dutton and G.A. Hass, “The Use of Expert Testimony Concerning Battering and Its Effects on Immigrant Women”; retrieved from http://www.legalmomentum.org/site/ DocServer/wwwappendixcesperttestimonyconcerningbattering.pdf?docID=631.
8 Joyce Nielson, Russell Endo, and Barbara Ellington, “Social Isolation and Wife Abuse: A Research Report,” in Intimate Violence: Interdisciplinary Perspectives, ed. Emilio C. Viano (Bristol, PA: Taylor and Francis, 1992); and Bruce Rounsaville, “Theories in Marital Violence: Evidence from a Study of Battered Women,” Victimology: An International Journal 11 (1978): 21.
9 National Immigration Law Center Fact Sheet on the Women Immigrants Safe Harbor Act; retrieved from http://www.nilc.org/ immspbs/cdev/wish/WISH_2-pgr_3-26-04.pdf.
10 http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/fs_domestic_violence.html
11 VA Criminal Procedure Code §19.2-81.3.
12 U.S. Department of Justice, Office of Community Oriented Policing Services, “What Is Community Policing?” retrieved from http://www.cops.usdoj.gov/Default.asp?Item=36. See also David Allender, “Community Policing: Exploring the Philosophy,” FBI Law Enforcement Bulletin, March 2004, 18-22; Clyde Cronkhite, “Fostering Community Partnerships That Prevent Crime and Promote Quality of Life,” FBI Law Enforcement Bulletin, May 2005, 7-10; John Ellison, “Community Policing: Implementation Issues,” FBI Law Enforcement Bulletin, April 2006, 12-16; and Carl Peed, “The Community Policing Umbrella,” FBI Law Enforcement Bulletin, November 2008, 22-24.
13 U visa regulations broadly define the concept of helpfulness, to include victims who have been helpful in the past, are currently being helpful, or are likely to be helpful in the future. 8 CFR 214.14(b)(3).
14 8 C.F.R. §214.14(a)(2).
15 U Visa Regulations, Document Summary, 8 C.F.R. § 214.14.
16 8 C.F.R. §214.01(a)(14)(iii).
17 David Harris, “Avoidable Disaster: Police Enforcing U.S. Immigration Law”; retrieved from http://jurist.law.pitt.edu/forumy/2006/10/avoidable-disaster-police-enforcing-us.php.
U Visa Nonimmigrant Status - Questions & Answers: Victims of Criminal Activity
Questions & Answers: Victims of Criminal Activity, U Nonimmigrant Status
The U nonimmigrant status (U visa) is set aside for victims of crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity. Below are Questions and Answers pertaining to U nonimmigrant visas.
Background
Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while, at the same time, offer protection to victims of such crimes. The legislation also helps law enforcement agencies to better serve victims of crimes.
Q: How Does One Become Eligible for U Nonimmigrant Status?
A: There are four statutory eligibility requirements. The individual must:
• Have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity.
• Have information concerning that criminal activity.
• Have been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime.
Q: What Qualifies as "Criminal Activity"?
A: Qualifying criminal activity is defined as being an activity involving one or more activities that violate U.S. criminal law, including
* Abduction
* Abusive Sexual Contact
* Blackmail
* Domestic Violence
* Extortion
* False Imprisonment
* Genital Female Mutilation
* Felonious Assault
* Hostage
* Incest
* Involuntary Servitude
* Kidnapping Manslaughter
* Murder
* Obstruction of Justice
* Peonage
* Perjury
* Prostitution
* Rape
* Sexual Assault
* Sexual Exploitation
* Slave Trader
* Torture
* Trafficking
* Witness Tampering
* Unlawful Criminal Restraint
* Other Related Crimes
Q: What are the Procedures to Request U Nonimmigrant Status?
A: Foreign national victims of crime must file a, Form I-918, Petition for U Nonimmigrant Status. The form requests information regarding the petitioner's eligibility for such status, as well as admissibility to the United States. Currently, USCIS has designated its Vermont Service Center as the centralized location to receive all U nonimmigrant petitions.
Q: Is There a Fee for Applying for U Nonimmigrant Status?
A: No. The program involves the well being of petitioners and USCIS' decision to waive the petition fee reflects the humanitarian purposes of the law.
Petitioners for a U nonimmigrant status are entitled to request a fee waiver of any form associated with the filing for the U nonimmigrant status.
For more information about fee waivers, see the “Fee Waiver Guidance” link to the right.
Q: What Prevents Any Foreign National From Claiming This Status By Saying They Were a Victim of a Crime?
A: A petition for U nonimmigrant status must also contain a certification of helpfulness from a certifying agency. That means the victim must provide a U Nonimmigrant Status Certification (Form I-918, Supplement B), from a U.S. law enforcement agency that demonstrates the petitioner "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution of the criminal activity.
Q: What Qualifies as a "Certifying Agency"?
A: Certifying agencies can be Federal, State or local law enforcement agencies, prosecutors, judges or other authority that investigates or prosecutes criminal activity.
Other agencies such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor also qualify as certifying agencies since they have criminal investigative jurisdiction within their respective areas of expertise.
Q: How Long Can One Maintain the U Nonimmigrant Classification?
A: U nonimmigrant status cannot exceed four years. However, extensions are available upon certification by a certifying agency that the foreign national's presence in the United States is required to assist in the investigation or prosecution of the qualifying criminal activity.
Q: Can a Foreign National Petition for U Nonimmigrant Status From Outside the United States?
A: Yes. USCIS has determined that the legal framework for U nonimmigrant status permits foreign national victims of criminal activity to petition for such status either inside or outside the United States.
If not admissible to enter the United States as a foreign national, an applicant for a U visa must obtain a waiver of inadmissibility through submission of a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant. This waiver is adjudicated by the Vermont Service Center of USCIS on a discretionary basis, allowing the petitioner to continue with the U nonimmigrant visa process.
Q: Is There a Cap on The Number of U Nonimmigrant Status Grants?
A: Yes. USCIS may grant no more than 10,000 U-1 nonimmigrant visas in any given fiscal year (October 1 through September 30). This does not apply to derivative family members such as spouses, children or other qualifying family members who are accompanying or following to join the principal foreign national victim.
If the cap is reached in any fiscal year before all petitions are adjudicated, USCIS will create a waiting list that will provide a mechanism by which victims cooperating with law enforcement agencies can stabilize their immigration status. Further, U nonimmigrant visa petitioners assigned to the waiting list will be given deferred action or parole while they are on the waiting list. This means they will be eligible to apply for employment authorization or travel until their petitions can be adjudicated after the start of the following fiscal year.
Q: Can Family Members of the Petitioner Receive U Nonimmigrant Status?
A: Family members who accompany the petitioner can, under certain circumstances obtain a U nonimmigrant derivative visa. The U nonimmigrant visa principal must petition on behalf of qualifying family members.
If the principle of petitioner is... Then...
Under 21 years of age They may petition on behalf of spouse, children, parents and unmarried siblings under age 18.
21 years of age or older They may petition on behalf of spouse and children
The principal petitioner needs to file a Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient, on behalf of their qualifying family members.
Q: Can an Individual Who Has Held U Nonimmigrant Status Eventually Apply for a Green Card (Permanent Residence)?
A: Yes.
• The individual must have been physically present in the United for a continuous period of at least three years since the date of admission as a U nonimmigrant,
• The individual must not have unreasonably refused to provide assistance to law enforcement since receiving a U nonimmigrant visa.
• The certifying agency must determine that the individual's continued presence in the country is justified on humanitarian grounds to ensure continuation of a cohesive family, or is otherwise in the national or public interest.
Q: Can Qualifying Family Members Apply for Permanent Residence (a Green Card)?
A: Yes. There are two ways family members of a U nonimmigrant visa holder can apply for a green card. First, family members who hold a derivative U nonimmigrant visa themselves may be eligible for a green card. Second, certain family members who have never held a derivative U nonimmigrant visa may be eligible for a green card.
Q: What are the Eligibility Requirements for Qualifying Family Members Who Have Never Held U Nonimmigrant Status to be Granted Permanent Resident Status?
A: The law allows USCIS to extend these benefits to spouses, children, and parents based upon their relationship to the principal U ("U-1") nonimmigrant if:
* The qualifying family member was never admitted to the United States in U nonimmigrant status, and
* It is established that either the family member or the U-1 principal applicant would suffer extreme hardship if the qualifying family member is not allowed to remain in or be admitted to the United States.
Q: What are the Procedures for Qualifying Family Members to Apply for Permanent Residency?
A: Family members with derivative U nonimmigrant visas may apply for green cards if the U-1 has met the eligibility requirements for permanent residence and the U-1’s application for adjustment of status was approved, is currently pending, or is filed at the same time.
To apply for a green card, qualifying family members with a derivative U nonimmigrant status must file a Form I-485, Application to Register Permanent Residence or Adjust Status. For detailed instructions and requirements about filing for a green card please refer to special instructions on Form I-485, Supplement E.
To apply for permanent residence for family members who have never held a derivative U nonimmigrant visa, the U-1 status holder must file an immigrant petition on Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant, concurrently or subsequent to filing their Form I-485, Application for Adjustment of Status. If the Form I-929 is approved, qualifying family members in the United States may file a Form I-485. Qualifying family members outside the United States may visit a U.S. embassy or consulate to obtain their immigrant visas.
Q: Can a U-1 Nonimmigrant File a Form I-929, Petition For Qualifying Family Member of a U-1 Nonimmigrant, on Behalf of a Sibling?
A: No, only the spouse, children, and parents (if the petitioner is under 21) of a U-1 nonimmigrant are eligible.
Q: When Can a U-1 Nonimmigrant File a Form I-929 on Behalf of a Qualifying Family Member?
A: U-1 nonimmigrants may file the Form I-929 concurrently with, or at any time after they have filed, their Form I-485 based upon their U status.
Q: Can a Family Member File Their Form I-485 Concurrently With the Form I-929?
A: No. Only the U-1 principle can file their Form I-485 concurrently with the Form I-929.
Q: Can the Form I-929 Be Approved Before the Petitioner’s I-485 Is Approved?
A: No. The petitioner’s I-485 must be approved prior to the approval of the I-929. If the petitioner’s Form I-485 is denied, the Form I-929 will automatically be denied.
Q: Is a Biometric Fee Required for the Form I-929?
A: No. The only fee required is the filing fee.
Q: Can the Filing Fee Be Waived?
A: Yes. Applicants who can show they are financially unable to pay specific fees may submit an application for a fee waiver. The decision to grant such waivers lies within the sole discretion of USCIS. For further information on fee waivers, see the "Fee Waiver Guidance” link to the right.
Q: If the Petition is Approved, What Status Is Given To The Qualified Family Members (Beneficiary)?
A: Approval of the I-929 petition does not confer status upon the beneficiary.
Q: Does Approval of the I-929 Petition Grant Employment Authorization?
A: No. Approval of the petition only makes the beneficiary eligible to apply for adjustment of status.
Q: Is There an Annual Limit on the Number of I-929 Beneficiaries Who Can Be Approved?
A: No. There is no numerical limitation.
Q: Can a T Visa Holder File A Form I-929 on Behalf of His or Her Family Members?
A: No, Form I-929 may only be filed by a U-1 status holder on behalf of eligible family members.
The U nonimmigrant status (U visa) is set aside for victims of crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity. Below are Questions and Answers pertaining to U nonimmigrant visas.
Background
Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while, at the same time, offer protection to victims of such crimes. The legislation also helps law enforcement agencies to better serve victims of crimes.
Q: How Does One Become Eligible for U Nonimmigrant Status?
A: There are four statutory eligibility requirements. The individual must:
• Have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity.
• Have information concerning that criminal activity.
• Have been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime.
Q: What Qualifies as "Criminal Activity"?
A: Qualifying criminal activity is defined as being an activity involving one or more activities that violate U.S. criminal law, including
* Abduction
* Abusive Sexual Contact
* Blackmail
* Domestic Violence
* Extortion
* False Imprisonment
* Genital Female Mutilation
* Felonious Assault
* Hostage
* Incest
* Involuntary Servitude
* Kidnapping Manslaughter
* Murder
* Obstruction of Justice
* Peonage
* Perjury
* Prostitution
* Rape
* Sexual Assault
* Sexual Exploitation
* Slave Trader
* Torture
* Trafficking
* Witness Tampering
* Unlawful Criminal Restraint
* Other Related Crimes
Q: What are the Procedures to Request U Nonimmigrant Status?
A: Foreign national victims of crime must file a, Form I-918, Petition for U Nonimmigrant Status. The form requests information regarding the petitioner's eligibility for such status, as well as admissibility to the United States. Currently, USCIS has designated its Vermont Service Center as the centralized location to receive all U nonimmigrant petitions.
Q: Is There a Fee for Applying for U Nonimmigrant Status?
A: No. The program involves the well being of petitioners and USCIS' decision to waive the petition fee reflects the humanitarian purposes of the law.
Petitioners for a U nonimmigrant status are entitled to request a fee waiver of any form associated with the filing for the U nonimmigrant status.
For more information about fee waivers, see the “Fee Waiver Guidance” link to the right.
Q: What Prevents Any Foreign National From Claiming This Status By Saying They Were a Victim of a Crime?
A: A petition for U nonimmigrant status must also contain a certification of helpfulness from a certifying agency. That means the victim must provide a U Nonimmigrant Status Certification (Form I-918, Supplement B), from a U.S. law enforcement agency that demonstrates the petitioner "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution of the criminal activity.
Q: What Qualifies as a "Certifying Agency"?
A: Certifying agencies can be Federal, State or local law enforcement agencies, prosecutors, judges or other authority that investigates or prosecutes criminal activity.
Other agencies such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor also qualify as certifying agencies since they have criminal investigative jurisdiction within their respective areas of expertise.
Q: How Long Can One Maintain the U Nonimmigrant Classification?
A: U nonimmigrant status cannot exceed four years. However, extensions are available upon certification by a certifying agency that the foreign national's presence in the United States is required to assist in the investigation or prosecution of the qualifying criminal activity.
Q: Can a Foreign National Petition for U Nonimmigrant Status From Outside the United States?
A: Yes. USCIS has determined that the legal framework for U nonimmigrant status permits foreign national victims of criminal activity to petition for such status either inside or outside the United States.
If not admissible to enter the United States as a foreign national, an applicant for a U visa must obtain a waiver of inadmissibility through submission of a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant. This waiver is adjudicated by the Vermont Service Center of USCIS on a discretionary basis, allowing the petitioner to continue with the U nonimmigrant visa process.
Q: Is There a Cap on The Number of U Nonimmigrant Status Grants?
A: Yes. USCIS may grant no more than 10,000 U-1 nonimmigrant visas in any given fiscal year (October 1 through September 30). This does not apply to derivative family members such as spouses, children or other qualifying family members who are accompanying or following to join the principal foreign national victim.
If the cap is reached in any fiscal year before all petitions are adjudicated, USCIS will create a waiting list that will provide a mechanism by which victims cooperating with law enforcement agencies can stabilize their immigration status. Further, U nonimmigrant visa petitioners assigned to the waiting list will be given deferred action or parole while they are on the waiting list. This means they will be eligible to apply for employment authorization or travel until their petitions can be adjudicated after the start of the following fiscal year.
Q: Can Family Members of the Petitioner Receive U Nonimmigrant Status?
A: Family members who accompany the petitioner can, under certain circumstances obtain a U nonimmigrant derivative visa. The U nonimmigrant visa principal must petition on behalf of qualifying family members.
If the principle of petitioner is... Then...
Under 21 years of age They may petition on behalf of spouse, children, parents and unmarried siblings under age 18.
21 years of age or older They may petition on behalf of spouse and children
The principal petitioner needs to file a Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient, on behalf of their qualifying family members.
Q: Can an Individual Who Has Held U Nonimmigrant Status Eventually Apply for a Green Card (Permanent Residence)?
A: Yes.
• The individual must have been physically present in the United for a continuous period of at least three years since the date of admission as a U nonimmigrant,
• The individual must not have unreasonably refused to provide assistance to law enforcement since receiving a U nonimmigrant visa.
• The certifying agency must determine that the individual's continued presence in the country is justified on humanitarian grounds to ensure continuation of a cohesive family, or is otherwise in the national or public interest.
Q: Can Qualifying Family Members Apply for Permanent Residence (a Green Card)?
A: Yes. There are two ways family members of a U nonimmigrant visa holder can apply for a green card. First, family members who hold a derivative U nonimmigrant visa themselves may be eligible for a green card. Second, certain family members who have never held a derivative U nonimmigrant visa may be eligible for a green card.
Q: What are the Eligibility Requirements for Qualifying Family Members Who Have Never Held U Nonimmigrant Status to be Granted Permanent Resident Status?
A: The law allows USCIS to extend these benefits to spouses, children, and parents based upon their relationship to the principal U ("U-1") nonimmigrant if:
* The qualifying family member was never admitted to the United States in U nonimmigrant status, and
* It is established that either the family member or the U-1 principal applicant would suffer extreme hardship if the qualifying family member is not allowed to remain in or be admitted to the United States.
Q: What are the Procedures for Qualifying Family Members to Apply for Permanent Residency?
A: Family members with derivative U nonimmigrant visas may apply for green cards if the U-1 has met the eligibility requirements for permanent residence and the U-1’s application for adjustment of status was approved, is currently pending, or is filed at the same time.
To apply for a green card, qualifying family members with a derivative U nonimmigrant status must file a Form I-485, Application to Register Permanent Residence or Adjust Status. For detailed instructions and requirements about filing for a green card please refer to special instructions on Form I-485, Supplement E.
To apply for permanent residence for family members who have never held a derivative U nonimmigrant visa, the U-1 status holder must file an immigrant petition on Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant, concurrently or subsequent to filing their Form I-485, Application for Adjustment of Status. If the Form I-929 is approved, qualifying family members in the United States may file a Form I-485. Qualifying family members outside the United States may visit a U.S. embassy or consulate to obtain their immigrant visas.
Q: Can a U-1 Nonimmigrant File a Form I-929, Petition For Qualifying Family Member of a U-1 Nonimmigrant, on Behalf of a Sibling?
A: No, only the spouse, children, and parents (if the petitioner is under 21) of a U-1 nonimmigrant are eligible.
Q: When Can a U-1 Nonimmigrant File a Form I-929 on Behalf of a Qualifying Family Member?
A: U-1 nonimmigrants may file the Form I-929 concurrently with, or at any time after they have filed, their Form I-485 based upon their U status.
Q: Can a Family Member File Their Form I-485 Concurrently With the Form I-929?
A: No. Only the U-1 principle can file their Form I-485 concurrently with the Form I-929.
Q: Can the Form I-929 Be Approved Before the Petitioner’s I-485 Is Approved?
A: No. The petitioner’s I-485 must be approved prior to the approval of the I-929. If the petitioner’s Form I-485 is denied, the Form I-929 will automatically be denied.
Q: Is a Biometric Fee Required for the Form I-929?
A: No. The only fee required is the filing fee.
Q: Can the Filing Fee Be Waived?
A: Yes. Applicants who can show they are financially unable to pay specific fees may submit an application for a fee waiver. The decision to grant such waivers lies within the sole discretion of USCIS. For further information on fee waivers, see the "Fee Waiver Guidance” link to the right.
Q: If the Petition is Approved, What Status Is Given To The Qualified Family Members (Beneficiary)?
A: Approval of the I-929 petition does not confer status upon the beneficiary.
Q: Does Approval of the I-929 Petition Grant Employment Authorization?
A: No. Approval of the petition only makes the beneficiary eligible to apply for adjustment of status.
Q: Is There an Annual Limit on the Number of I-929 Beneficiaries Who Can Be Approved?
A: No. There is no numerical limitation.
Q: Can a T Visa Holder File A Form I-929 on Behalf of His or Her Family Members?
A: No, Form I-929 may only be filed by a U-1 status holder on behalf of eligible family members.
Wednesday, November 25, 2009
8 CFR 1292.1 Immigration Court Representation
§ 1292.1 Representation of others.
(a) A person entitled to representation may be represented by any of the following:
(1) Attorneys in the United States. Any attorney as defined in §1001.1(f) of this chapter.
(2) Disclosure of information for the purpose of conducting a preliminary inquiry. The EOIR disciplinary counsel, in the exercise of discretion, may disclose documents and information concerning complaints and preliminary inquiries to the following individuals and entities:
(i) He or she is appearing at the request of the person entitled to representation;
(ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents;
(iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; and
(iv) The law student's or law graduate's appearance is permitted by the official before whom he or she wishes to appear (namely an immigration judge, district director, officer-in-charge, regional director, the Commissioner, or the Board). The official or officials may require that a law student be accompanied by the supervising faculty member, attorney, or accredited representative.
(3) Reputable individuals. Any reputable individual of good moral character, provided that:
(i) He is appearing on an individual case basis, at the request of the person entitled to representation;
(ii) He is appearing without direct or indirect renumeration and files a written declaration to that effect;
(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and
(iv) His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so.
(4) Accredited representatives. A person representing an organization described in §1292.2 of this chapter who has been accredited by the Board.
(5) Accredited officials. An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his official capacity and with the alien's consent.
(b) Persons formerly authorized to practice. A person, other than a representative of an organization described in §1292.2 of this chapter, who on December 23, 1952, was authorized to practice before the Board and the Service may continue to act as a representative, subject to the provisions of §1292.3 of this chapter.
(c) Former employees. No person previously employed by the Department of Justice shall be permitted to act as a representative in any case in violation of the provisions of 28 CFR 45.735–7.
(d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby.
(e) Except as set forth in this section, no other person or persons shall represent others in any case.
[40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996; 62 FR 23635, May 1, 1997; 73 FR 76927, Dec. 18, 2008]
(a) A person entitled to representation may be represented by any of the following:
(1) Attorneys in the United States. Any attorney as defined in §1001.1(f) of this chapter.
(2) Disclosure of information for the purpose of conducting a preliminary inquiry. The EOIR disciplinary counsel, in the exercise of discretion, may disclose documents and information concerning complaints and preliminary inquiries to the following individuals and entities:
(i) He or she is appearing at the request of the person entitled to representation;
(ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents;
(iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; and
(iv) The law student's or law graduate's appearance is permitted by the official before whom he or she wishes to appear (namely an immigration judge, district director, officer-in-charge, regional director, the Commissioner, or the Board). The official or officials may require that a law student be accompanied by the supervising faculty member, attorney, or accredited representative.
(3) Reputable individuals. Any reputable individual of good moral character, provided that:
(i) He is appearing on an individual case basis, at the request of the person entitled to representation;
(ii) He is appearing without direct or indirect renumeration and files a written declaration to that effect;
(iii) He has a pre-existing relationship or connection with the person entitled to representation (e.g., as a relative, neighbor, clergyman, business associate or personal friend), provided that such requirement may be waived, as a matter of administrative discretion, in cases where adequate representation would not otherwise be available; and
(iv) His appearance is permitted by the official before whom he wished to appear (namely, a special inquiry officer, district director, officer-in-charge, regional commissioner, the Commissioner, or the Board), provided that such permission shall not be granted with respect to any individual who regularly engages in immigration and naturalization practice or preparation, or holds himself out to the public as qualified to do so.
(4) Accredited representatives. A person representing an organization described in §1292.2 of this chapter who has been accredited by the Board.
(5) Accredited officials. An accredited official, in the United States, of the government to which an alien owes allegiance, if the official appears solely in his official capacity and with the alien's consent.
(b) Persons formerly authorized to practice. A person, other than a representative of an organization described in §1292.2 of this chapter, who on December 23, 1952, was authorized to practice before the Board and the Service may continue to act as a representative, subject to the provisions of §1292.3 of this chapter.
(c) Former employees. No person previously employed by the Department of Justice shall be permitted to act as a representative in any case in violation of the provisions of 28 CFR 45.735–7.
(d) Amicus curiae. The Board may grant permission to appear, on a case-by-case basis, as amicus curiae, to an attorney or to an organization represented by an attorney, if the public interest will be served thereby.
(e) Except as set forth in this section, no other person or persons shall represent others in any case.
[40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988; 55 FR 49251, Nov. 27, 1990; 61 FR 53610, Oct. 15, 1996; 62 FR 23635, May 1, 1997; 73 FR 76927, Dec. 18, 2008]
Fraudulent marriage conspiracy Chicago - 10 indicted in Chicago sham marriage conspiracy
November 23, 2009
10 indicted in Chicago sham marriage conspiracy
CHICAGO - An immigration attorney and five current and former Cook County Traffic Court employees were among those charged on Monday for allegedly arranging sham marriages to evade U.S. immigration laws. The charges resulted from an investigation by U.S. Immigration and Customs Enforcement (ICE).
A federal grand jury returned a 14-count indictment last week that was unsealed Nov. 23 after ICE agents arrested five of the defendants. Among the 10 individuals charged are a Chicago immigration attorney and five current or former Cook County Traffic Court employees. However, the charges do not allege that their employment played any role in the alleged fraud scheme.
According to the indictment, Maria F. Cruz and others recruited U.S. citizens and foreign nationals, primarily Filipinos, who entered into at least 15 sham marriages to evade immigration laws. The foreign nationals paid Cruz about $3,000 each to arrange for them to marry U.S. citizens. Cruz allegedly promised U.S. citizens that in return for marrying a foreign national they would receive about $3,000 after the marriage and about $350 a month until the foreign national obtained U.S. citizenship.
Foreign nationals who marry U.S. citizens can become U.S. permanent residents - and ultimately obtain U.S. citizenship - but not if the marriage is identified as a sham solely to evade immigration laws.
Cruz, 49, formerly of Chicago and currently living in American Canyon, Calif., was arrested on an initial complaint in late August; she was released on a $200,000 secured bond. She was a Cook County Traffic Court employee until this past summer when she moved to California.
In addition to the 15 allegedly fraudulent marriages detailed in the indictment, Cruz allegedly attempted to arrange two additional marriages between individuals and ICE agents during an undercover portion of the investigation.
Among the five people arrested Monday was Manny Aguja, 53, of Chicago, an immigration attorney with an office at 3144 W. Montrose Ave. Also arrested were two of Aguja's employees: his twin brother, Marc Aguja, 53; and Celeste Ligutan-Lopez, 36, both of Chicago.
According to the indictment, between July 2003 and October 2009 Cruz allegedly paid fees to individuals who referred U.S. citizens to her who were willing to enter into fraudulent marriages. Cruz then drove them to weddings and took photos before and after, knowing that they would be used to make it appear that the sham marriages were legitimate. She also advised the participants of steps they needed to take to make their marriages appear legitimate.
Cruz allegedly referred sham marriage participants to Manny Aguja's law office to prepare paperwork in support of the conspiracy. In addition to preparing allegedly fraudulent immigration papers, the Aguja brothers and Ligutan-Lopez met with participants and coached them on how to make the marriages appear legitimate. The indictment also seeks forfeiture of Manny Aguja's law office.
Also arrested Monday were Keisha McGary, 33; and Eugene Wilson, 30, both Cook County employees residing in Chicago. The Aguja brothers, Ligutan-Lopez, McGary and Wilson are scheduled to appear at 1:30 p.m. Monday before U.S. District Judge Samuel Der-Yeghiayan, Northern District of Illinois.
Cruz and the remaining four defendants will be ordered to appear for arraignment at a later date. They include Maria Cyd Adriatico-Fernandez, 53, of Oakbrook, and the following three Cook County Traffic Court employees: Sonia Maki, 43; DeShawn Barksdale, 39; and Eugene Wilson's sister, Latrice Wilson, 37, all of Chicago.
Each defendant was charged with conspiracy to commit marriage fraud. Some defendants were charged with additional counts of marriage or immigration fraud, including Cruz who faces 10 counts of marriage fraud. The Aguja brothers were also charged with conspiracy to induce foreign nationals to reside illegally in the United States.
"ICE will not tolerate those who engage in sham marriages to circumvent and exploit our nation's immigration system," said ICE Assistant Secretary John Morton. "Marriage fraud poses a significant vulnerability that must not go unchallenged. ICE aggressively investigates those who take illegal shortcuts to citizenship, whether they do so to gain an immigration benefit or simply for personal profit."
ICE was assisted in the investigation by the U.S. Citizenship and Immigration Service's Fraud Detection and National Security (FDNS) program.
Assistant U.S. Attorney Jason Yonan, Northern District of Illinois, is prosecuting the case.
Conspiracy to commit marriage fraud and marriage fraud carry a maximum penalty of five years in prison and a $250,000 fine. Other immigration fraud counts in the indictment carry a maximum penalty of 10 years in prison and a $250,000 fine. If convicted, however, the Court would impose a sentence it deems reasonable under the advisory U.S. Sentencing Guidelines.
The public is reminded that an indictment contains only charges and is not evidence of guilt. The defendants are presumed innocent and are entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.
10 indicted in Chicago sham marriage conspiracy
CHICAGO - An immigration attorney and five current and former Cook County Traffic Court employees were among those charged on Monday for allegedly arranging sham marriages to evade U.S. immigration laws. The charges resulted from an investigation by U.S. Immigration and Customs Enforcement (ICE).
A federal grand jury returned a 14-count indictment last week that was unsealed Nov. 23 after ICE agents arrested five of the defendants. Among the 10 individuals charged are a Chicago immigration attorney and five current or former Cook County Traffic Court employees. However, the charges do not allege that their employment played any role in the alleged fraud scheme.
According to the indictment, Maria F. Cruz and others recruited U.S. citizens and foreign nationals, primarily Filipinos, who entered into at least 15 sham marriages to evade immigration laws. The foreign nationals paid Cruz about $3,000 each to arrange for them to marry U.S. citizens. Cruz allegedly promised U.S. citizens that in return for marrying a foreign national they would receive about $3,000 after the marriage and about $350 a month until the foreign national obtained U.S. citizenship.
Foreign nationals who marry U.S. citizens can become U.S. permanent residents - and ultimately obtain U.S. citizenship - but not if the marriage is identified as a sham solely to evade immigration laws.
Cruz, 49, formerly of Chicago and currently living in American Canyon, Calif., was arrested on an initial complaint in late August; she was released on a $200,000 secured bond. She was a Cook County Traffic Court employee until this past summer when she moved to California.
In addition to the 15 allegedly fraudulent marriages detailed in the indictment, Cruz allegedly attempted to arrange two additional marriages between individuals and ICE agents during an undercover portion of the investigation.
Among the five people arrested Monday was Manny Aguja, 53, of Chicago, an immigration attorney with an office at 3144 W. Montrose Ave. Also arrested were two of Aguja's employees: his twin brother, Marc Aguja, 53; and Celeste Ligutan-Lopez, 36, both of Chicago.
According to the indictment, between July 2003 and October 2009 Cruz allegedly paid fees to individuals who referred U.S. citizens to her who were willing to enter into fraudulent marriages. Cruz then drove them to weddings and took photos before and after, knowing that they would be used to make it appear that the sham marriages were legitimate. She also advised the participants of steps they needed to take to make their marriages appear legitimate.
Cruz allegedly referred sham marriage participants to Manny Aguja's law office to prepare paperwork in support of the conspiracy. In addition to preparing allegedly fraudulent immigration papers, the Aguja brothers and Ligutan-Lopez met with participants and coached them on how to make the marriages appear legitimate. The indictment also seeks forfeiture of Manny Aguja's law office.
Also arrested Monday were Keisha McGary, 33; and Eugene Wilson, 30, both Cook County employees residing in Chicago. The Aguja brothers, Ligutan-Lopez, McGary and Wilson are scheduled to appear at 1:30 p.m. Monday before U.S. District Judge Samuel Der-Yeghiayan, Northern District of Illinois.
Cruz and the remaining four defendants will be ordered to appear for arraignment at a later date. They include Maria Cyd Adriatico-Fernandez, 53, of Oakbrook, and the following three Cook County Traffic Court employees: Sonia Maki, 43; DeShawn Barksdale, 39; and Eugene Wilson's sister, Latrice Wilson, 37, all of Chicago.
Each defendant was charged with conspiracy to commit marriage fraud. Some defendants were charged with additional counts of marriage or immigration fraud, including Cruz who faces 10 counts of marriage fraud. The Aguja brothers were also charged with conspiracy to induce foreign nationals to reside illegally in the United States.
"ICE will not tolerate those who engage in sham marriages to circumvent and exploit our nation's immigration system," said ICE Assistant Secretary John Morton. "Marriage fraud poses a significant vulnerability that must not go unchallenged. ICE aggressively investigates those who take illegal shortcuts to citizenship, whether they do so to gain an immigration benefit or simply for personal profit."
ICE was assisted in the investigation by the U.S. Citizenship and Immigration Service's Fraud Detection and National Security (FDNS) program.
Assistant U.S. Attorney Jason Yonan, Northern District of Illinois, is prosecuting the case.
Conspiracy to commit marriage fraud and marriage fraud carry a maximum penalty of five years in prison and a $250,000 fine. Other immigration fraud counts in the indictment carry a maximum penalty of 10 years in prison and a $250,000 fine. If convicted, however, the Court would impose a sentence it deems reasonable under the advisory U.S. Sentencing Guidelines.
The public is reminded that an indictment contains only charges and is not evidence of guilt. The defendants are presumed innocent and are entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.
Tuesday, November 24, 2009
Deceased U.S. Citizens and their Children - Guidance Regarding Surviving Spouses (Neufeld Memo 06/15/2009)
U.S. Citizenship and Immigration Services
June 15, 2009
Memorandum
TO: Field Leadership
FROM: Donald Neufeld Acting Director
SUBJECT: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
I. Purpose
This memorandum provides guidance to U.S. Citizenship and Immigration Services (USCIS) field offices and service centers regarding the processing of surviving spouses of deceased U.S. citizens and qualifying children of the surviving spouses. It affords a new process by which they may apply for deferred action. This policy guidance will be in effect until further notice and may be revised as needed.
II. Background
Section 205. 1 (a)(3)(i)(C) of title 8 of the Code of Federal Regulations (8 CFR) requires that the approval of Form 1-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not adjusted status in the United States or been inspected and admitted as an immigrant. In such instances, the beneficiary may request a reinstatement of the approval and USCIS, in its discretion, may grant such a request for humanitarian reasons. 8 CFR 20S.1(a)(3)(i)(C)(2).
However, no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's death and (1) the immigrant petition filed by the citizen on behalf of the surviving spouse has not been adjudicated by USCIS at the time of the citizen's death, or (2) no petition was filed by the citizen before the citizen's death. This issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in the U.S. Congress (bills S. 815 and H.R. 1870).
1 Depending on context, the term beneficiary in this guidance may include both actual and potential beneficiaries of Forms 1-130 filed on their behalf.
III. Policy Guidance
This policy guidance covers only (1) surviving spouses of U.S. citizens who died before the second anniversary of the marriage, who have not remarried and were not legally separated from the citizen spouse at the time of the citizen’s death, and who are residing in the United States,2 and (2) such surviving spouses’ qualifying children. For purposes of this policy guidance, “qualifying children” are any children of the surviving spouse of the deceased U.S. citizen who remain unmarried and under 21 years of age (age determinations for beneficiaries of Forms I-130 should be made as provided in section 201(f) of the INA).
This guidance applies to the aforementioned beneficiaries without regard to their manner of entry into the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried.3
This guidance does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. This guidance also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated). This guidance does not cover any beneficiary who was legally separated from his or her U.S. citizen spouse at the time of the citizen’s death, or such beneficiary’s children.
Since current section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) treats covered widow(er)s of U.S. citizens and their children as immediate relatives based upon a self-petition, they are not covered by this guidance. They may file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens, USCIS is instituting the following policy guidance, which is effective immediately and until further notice.
A. Form I-130 Approved Prior to the Death of the U.S. Citizen Spouse (Petitioner)
Upon the death of the U.S. citizen petitioner, the approved Form I-130 is automatically revoked pursuant to 8 CFR 205.1(a)(3)(i)(C). The beneficiary, however, may request reinstatement of the revoked petition pursuant to 8 CFR 205.1(a)(3)(i)(C)(2). USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular
2 Section III(A) of this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses outside the United States. 3 This guidance is also applicable to a beneficiary who entered the United States on a K-1 Nonimmigrant Visa and married a U.S. citizen other than the U.S. citizen petitioner who filed the I-129F. If the U.S. citizen spouse died before the second anniversary of the marriage, the widow(er) is eligible for deferred action or humanitarian reinstatement as described herein.
case. If the request for humanitarian reinstatement is approved, the beneficiary may proceed to the adjustment of status or consular processing stage.
This memorandum does not alter the process for reviewing a Form I-130 returned to USCIS by a U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. If USCIS reinstates the Form I-130 returned by the consular officer, the I-130 should be forwarded to the National Visa Center to allow the beneficiary to resume consular processing. Section III(A) of this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or outside the United States.
If a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should presume that humanitarian reasons support a grant of the request. Absent extraordinary factors or a failure to meet the regulatory requirements of 8 CFR 205.1(a)(3)(i)(C)(2), adjudicators should favorably exercise discretion accordingly. If the request for reinstatement cannot be granted for any reason other than confirmed or suspected fraud or issues of criminality or national security, the beneficiary should be informed that he or she may request deferred action in the manner described in III(E) below.
In a case governed by First, Sixth or Ninth Circuit law, officers should consult with local USCIS counsel before treating an approved spousal immediate relative petition as “revoked” under 8 CFR 205.1(a)(3)(i)(C). Courts in those jurisdictions have held that the visa petitioner’s death does not end a surviving spouse’s eligibility for classification as an immediate relative. Taing v. Napolitano, ___ F.3d ___, 2009 WL 1395836 (1st Cir. 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).
B. Form I-130 Pending at the Time of Death of the U.S. Citizen Spouse (Petitioner) – Married Less than 2 Years at Time of Death
Once USCIS has received a copy of the U.S. citizen petitioner’s death certificate, the pending, stand¬alone Form I-130 should be held in abeyance at the pending location. Petitions may be transferred to the Vermont Service Center to be consolidated with the A-file housing a deferred action request, if such a request is made by the beneficiary (see further guidance below).
Any concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-130, should be held in abeyance at the National Benefits Center until further guidance. The beneficiary will remain eligible to receive the interim benefits of advance parole and employment authorization on the basis of the pending adjustment of status application.
If a Form I-485 was not concurrently filed, the beneficiary should be informed that he or she may request deferred action in the manner described in section III(E) below.
Note: In instances where the beneficiary and deceased U.S. citizen petitioner were married for at least two years at the time of the petitioner’s death, the Form I-130 should be denied under existing
procedures. Instructions should be provided to the beneficiary regarding the availability of the Form I-360 as a special immigrant widow/widower. Any associated Form I-485 should also be denied.
C. Form I-130 Denied (Prior to the Issuance of this Guidance) due to the Death of the U.S. Citizen Spouse (Petitioner)
A beneficiary who is the surviving spouse of a U.S. citizen petitioner and whose petition was denied by USCIS (1) due to the death of the U.S. citizen petitioner, and (2) prior to the issuance of this guidance, may request deferred action in the manner described in section III(E) below.
D. Form I-130 Not Filed Prior to the Death of the U.S. Citizen Spouse
A beneficiary who was legally married to a now deceased U.S. citizen at the time of the U.S. citizen’s death, but for whom no Form I-130 was filed, may request deferred action in the manner described in section III(E) below.
If the beneficiary was not legally married to, or was legally separated from, the deceased U.S. citizen at the time of the U.S. citizen’s death, a qualifying relationship does not exist. The beneficiary is therefore not eligible to submit Form I-360 based on the specific policy guidance set forth in section III(E) below.
E. Required Documentation for Requests for Deferred Action
Beneficiaries may request deferred action by submitting the following:
1) A Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate, nonwaivable filing fee (currently $375), completed in the format explained below; and 2) All of the documents requested in the Form I-360 filing instructions for widow/widowers.
The beneficiary of the Form I-360 must check box “m. Other, explain:” in Part 2 of the petition and cite the basis for eligibility as “Deferred Action --Surviving spouse of a deceased U.S. citizen, married less than 2 years.” The Form I-360 must be submitted to the Vermont Service Center for deferred action consideration. Note that while USCIS is utilizing Form I-360 for these deferred action requests, such filings are NOT immigrant self-petitions under current law. They should be adjudicated as requests for deferred action only. In addition to the Part 2 information described above, the applicant must complete Parts 1, 3, 4, 7, 9, 10 and 11 of the Form I-360.
F. Decision on Requests for Deferred Action
Requests for deferred action based on the specific policy guidance set forth in this memorandum may only be considered for: 1) surviving spouses of U.S. citizens whose U.S. citizen spouse died before the second anniversary of the marriage and who are unmarried and residing in the United States; and 2) their qualifying children who are residing in the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated from the U.S. citizen spouse at the time of the U.S. citizen’s death; and 3) beneficiaries with other serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. A grant of deferred action is a discretionary action on the part of USCIS. It is intended that this discretion should be liberally applied to provide a humanitarian benefit to eligible beneficiaries. However, deferred action may be denied for serious adverse factors, whether or not such factors are specifically identified in this guidance.
Requests for deferred action based on the specific policy guidance set forth in this memorandum will not be considered for beneficiaries who: 1) are surviving spouses or qualifying children of non-U.S. citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth in INA 201(b)(2)(A)(i); or 4) have remarried subsequent to the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be communicated to the beneficiary via a decision letter. If the request has been granted, the deferred action grant letter must state that the beneficiary is eligible to file Form I-765, Application for Employment Authorization. If the request has been denied, the deferred action denial letter must cite the reasons for the denial. A decision on a request for deferred action falls within the discretion of the Secretary. A denial of a request for deferred action is not subject to administrative appeal or judicial review, see INA § 242(a)(2)(B), and (g).
G. Validity Period for Deferred Action
The validity period of deferred action based on the policy guidance set forth in this memorandum is two (2) years from the date of grant of the Form I-360 request for deferred action.
H. Eligibility for Employment Authorization
The appropriate classification for Form I-765 filed on the basis of a deferred action grant is (C)(14) pursuant to 8 CFR 274a.12(c)(14). Beneficiaries may submit Form I-765, with the appropriate filing fee (currently $340), using this classification at any time after the grant (but prior to the expiration) of deferred action. However, they must demonstrate an economic necessity. The validity period for an employment authorization document (EAD) under the classification (C)(14), based on the specific policy guidance set forth in this memorandum is two (2) years, not to exceed the expiration date of the grant of deferred action.
All requests for employment authorization based on the policy guidance set forth in this memorandum must contain the appropriate required supporting documentation. Applicants must follow currently established filing procedures for the Form I-765 in accordance with the instructions on the form. Fee waiver of the Form I-765 fee is available on a case-by-case basis for substantiated inability to pay as provided in 8 CFR 103.7(c)(1).
A beneficiary whose Form I-485 is being held in abeyance may also file a Form I-765, with the appropriate filing fee. The appropriate classification for employment authorization filed on such a basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence of an economic necessity is not required if using this classification. A beneficiary whose application is being held in abeyance may have been issued an employment authorization document valid for one year under category (C)(9). When such an applicant files a Form I-765 for renewal of his or her EAD under the classification (C)(9), based on the specific policy guidance set forth in this memorandum, the validity period will be two
(2) years. An applicant with a valid EAD under the classification (C)(9) may file for renewal no more than 90 days prior to the expiration date of the valid document. The employment authorization may then be granted for two (2) years based on the specific policy guidance set forth in this memorandum.
I. Effect of Grant of Deferred Action
The grant of deferred action by USCIS does not confer or alter any immigration status. It does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to DHS or other agencies at the time of the request for deferred action. A grant of deferred action also does not eliminate any period of prior unlawful presence. However, periods of time in deferred action do not count as unlawful presence for the purposes of sections 212(a)(9)(B) and (C) of the INA. Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security for those purposes.
J. Eligibility for Advance Parole
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum or whose applications for adjustment of status are being held in abeyance may request advance parole. Such request may be made by filing Form I-131, Application for Travel Document, in accordance with the Form I-131 instructions and with the appropriate fee. Note, however, that departure from the United States and return, even under a grant of advance parole, may adversely affect eligibility for adjustment of status of aliens with past periods of unlawful presence.
K. Implementation
USCIS offices and centers are to begin implementing the instructions established in this memorandum immediately.
L. Contact Information
Questions regarding this memorandum should be directed to the Office of Domestic Operations through appropriate channels.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.
Distribution:
Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors
June 15, 2009
Memorandum
TO: Field Leadership
FROM: Donald Neufeld Acting Director
SUBJECT: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children
I. Purpose
This memorandum provides guidance to U.S. Citizenship and Immigration Services (USCIS) field offices and service centers regarding the processing of surviving spouses of deceased U.S. citizens and qualifying children of the surviving spouses. It affords a new process by which they may apply for deferred action. This policy guidance will be in effect until further notice and may be revised as needed.
II. Background
Section 205. 1 (a)(3)(i)(C) of title 8 of the Code of Federal Regulations (8 CFR) requires that the approval of Form 1-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not adjusted status in the United States or been inspected and admitted as an immigrant. In such instances, the beneficiary may request a reinstatement of the approval and USCIS, in its discretion, may grant such a request for humanitarian reasons. 8 CFR 20S.1(a)(3)(i)(C)(2).
However, no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's death and (1) the immigrant petition filed by the citizen on behalf of the surviving spouse has not been adjudicated by USCIS at the time of the citizen's death, or (2) no petition was filed by the citizen before the citizen's death. This issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in the U.S. Congress (bills S. 815 and H.R. 1870).
1 Depending on context, the term beneficiary in this guidance may include both actual and potential beneficiaries of Forms 1-130 filed on their behalf.
III. Policy Guidance
This policy guidance covers only (1) surviving spouses of U.S. citizens who died before the second anniversary of the marriage, who have not remarried and were not legally separated from the citizen spouse at the time of the citizen’s death, and who are residing in the United States,2 and (2) such surviving spouses’ qualifying children. For purposes of this policy guidance, “qualifying children” are any children of the surviving spouse of the deceased U.S. citizen who remain unmarried and under 21 years of age (age determinations for beneficiaries of Forms I-130 should be made as provided in section 201(f) of the INA).
This guidance applies to the aforementioned beneficiaries without regard to their manner of entry into the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried.3
This guidance does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. This guidance also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated). This guidance does not cover any beneficiary who was legally separated from his or her U.S. citizen spouse at the time of the citizen’s death, or such beneficiary’s children.
Since current section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) treats covered widow(er)s of U.S. citizens and their children as immediate relatives based upon a self-petition, they are not covered by this guidance. They may file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens, USCIS is instituting the following policy guidance, which is effective immediately and until further notice.
A. Form I-130 Approved Prior to the Death of the U.S. Citizen Spouse (Petitioner)
Upon the death of the U.S. citizen petitioner, the approved Form I-130 is automatically revoked pursuant to 8 CFR 205.1(a)(3)(i)(C). The beneficiary, however, may request reinstatement of the revoked petition pursuant to 8 CFR 205.1(a)(3)(i)(C)(2). USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular
2 Section III(A) of this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses outside the United States. 3 This guidance is also applicable to a beneficiary who entered the United States on a K-1 Nonimmigrant Visa and married a U.S. citizen other than the U.S. citizen petitioner who filed the I-129F. If the U.S. citizen spouse died before the second anniversary of the marriage, the widow(er) is eligible for deferred action or humanitarian reinstatement as described herein.
case. If the request for humanitarian reinstatement is approved, the beneficiary may proceed to the adjustment of status or consular processing stage.
This memorandum does not alter the process for reviewing a Form I-130 returned to USCIS by a U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. If USCIS reinstates the Form I-130 returned by the consular officer, the I-130 should be forwarded to the National Visa Center to allow the beneficiary to resume consular processing. Section III(A) of this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or outside the United States.
If a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should presume that humanitarian reasons support a grant of the request. Absent extraordinary factors or a failure to meet the regulatory requirements of 8 CFR 205.1(a)(3)(i)(C)(2), adjudicators should favorably exercise discretion accordingly. If the request for reinstatement cannot be granted for any reason other than confirmed or suspected fraud or issues of criminality or national security, the beneficiary should be informed that he or she may request deferred action in the manner described in III(E) below.
In a case governed by First, Sixth or Ninth Circuit law, officers should consult with local USCIS counsel before treating an approved spousal immediate relative petition as “revoked” under 8 CFR 205.1(a)(3)(i)(C). Courts in those jurisdictions have held that the visa petitioner’s death does not end a surviving spouse’s eligibility for classification as an immediate relative. Taing v. Napolitano, ___ F.3d ___, 2009 WL 1395836 (1st Cir. 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).
B. Form I-130 Pending at the Time of Death of the U.S. Citizen Spouse (Petitioner) – Married Less than 2 Years at Time of Death
Once USCIS has received a copy of the U.S. citizen petitioner’s death certificate, the pending, stand¬alone Form I-130 should be held in abeyance at the pending location. Petitions may be transferred to the Vermont Service Center to be consolidated with the A-file housing a deferred action request, if such a request is made by the beneficiary (see further guidance below).
Any concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-130, should be held in abeyance at the National Benefits Center until further guidance. The beneficiary will remain eligible to receive the interim benefits of advance parole and employment authorization on the basis of the pending adjustment of status application.
If a Form I-485 was not concurrently filed, the beneficiary should be informed that he or she may request deferred action in the manner described in section III(E) below.
Note: In instances where the beneficiary and deceased U.S. citizen petitioner were married for at least two years at the time of the petitioner’s death, the Form I-130 should be denied under existing
procedures. Instructions should be provided to the beneficiary regarding the availability of the Form I-360 as a special immigrant widow/widower. Any associated Form I-485 should also be denied.
C. Form I-130 Denied (Prior to the Issuance of this Guidance) due to the Death of the U.S. Citizen Spouse (Petitioner)
A beneficiary who is the surviving spouse of a U.S. citizen petitioner and whose petition was denied by USCIS (1) due to the death of the U.S. citizen petitioner, and (2) prior to the issuance of this guidance, may request deferred action in the manner described in section III(E) below.
D. Form I-130 Not Filed Prior to the Death of the U.S. Citizen Spouse
A beneficiary who was legally married to a now deceased U.S. citizen at the time of the U.S. citizen’s death, but for whom no Form I-130 was filed, may request deferred action in the manner described in section III(E) below.
If the beneficiary was not legally married to, or was legally separated from, the deceased U.S. citizen at the time of the U.S. citizen’s death, a qualifying relationship does not exist. The beneficiary is therefore not eligible to submit Form I-360 based on the specific policy guidance set forth in section III(E) below.
E. Required Documentation for Requests for Deferred Action
Beneficiaries may request deferred action by submitting the following:
1) A Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate, nonwaivable filing fee (currently $375), completed in the format explained below; and 2) All of the documents requested in the Form I-360 filing instructions for widow/widowers.
The beneficiary of the Form I-360 must check box “m. Other, explain:” in Part 2 of the petition and cite the basis for eligibility as “Deferred Action --Surviving spouse of a deceased U.S. citizen, married less than 2 years.” The Form I-360 must be submitted to the Vermont Service Center for deferred action consideration. Note that while USCIS is utilizing Form I-360 for these deferred action requests, such filings are NOT immigrant self-petitions under current law. They should be adjudicated as requests for deferred action only. In addition to the Part 2 information described above, the applicant must complete Parts 1, 3, 4, 7, 9, 10 and 11 of the Form I-360.
F. Decision on Requests for Deferred Action
Requests for deferred action based on the specific policy guidance set forth in this memorandum may only be considered for: 1) surviving spouses of U.S. citizens whose U.S. citizen spouse died before the second anniversary of the marriage and who are unmarried and residing in the United States; and 2) their qualifying children who are residing in the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated from the U.S. citizen spouse at the time of the U.S. citizen’s death; and 3) beneficiaries with other serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. A grant of deferred action is a discretionary action on the part of USCIS. It is intended that this discretion should be liberally applied to provide a humanitarian benefit to eligible beneficiaries. However, deferred action may be denied for serious adverse factors, whether or not such factors are specifically identified in this guidance.
Requests for deferred action based on the specific policy guidance set forth in this memorandum will not be considered for beneficiaries who: 1) are surviving spouses or qualifying children of non-U.S. citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth in INA 201(b)(2)(A)(i); or 4) have remarried subsequent to the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be communicated to the beneficiary via a decision letter. If the request has been granted, the deferred action grant letter must state that the beneficiary is eligible to file Form I-765, Application for Employment Authorization. If the request has been denied, the deferred action denial letter must cite the reasons for the denial. A decision on a request for deferred action falls within the discretion of the Secretary. A denial of a request for deferred action is not subject to administrative appeal or judicial review, see INA § 242(a)(2)(B), and (g).
G. Validity Period for Deferred Action
The validity period of deferred action based on the policy guidance set forth in this memorandum is two (2) years from the date of grant of the Form I-360 request for deferred action.
H. Eligibility for Employment Authorization
The appropriate classification for Form I-765 filed on the basis of a deferred action grant is (C)(14) pursuant to 8 CFR 274a.12(c)(14). Beneficiaries may submit Form I-765, with the appropriate filing fee (currently $340), using this classification at any time after the grant (but prior to the expiration) of deferred action. However, they must demonstrate an economic necessity. The validity period for an employment authorization document (EAD) under the classification (C)(14), based on the specific policy guidance set forth in this memorandum is two (2) years, not to exceed the expiration date of the grant of deferred action.
All requests for employment authorization based on the policy guidance set forth in this memorandum must contain the appropriate required supporting documentation. Applicants must follow currently established filing procedures for the Form I-765 in accordance with the instructions on the form. Fee waiver of the Form I-765 fee is available on a case-by-case basis for substantiated inability to pay as provided in 8 CFR 103.7(c)(1).
A beneficiary whose Form I-485 is being held in abeyance may also file a Form I-765, with the appropriate filing fee. The appropriate classification for employment authorization filed on such a basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence of an economic necessity is not required if using this classification. A beneficiary whose application is being held in abeyance may have been issued an employment authorization document valid for one year under category (C)(9). When such an applicant files a Form I-765 for renewal of his or her EAD under the classification (C)(9), based on the specific policy guidance set forth in this memorandum, the validity period will be two
(2) years. An applicant with a valid EAD under the classification (C)(9) may file for renewal no more than 90 days prior to the expiration date of the valid document. The employment authorization may then be granted for two (2) years based on the specific policy guidance set forth in this memorandum.
I. Effect of Grant of Deferred Action
The grant of deferred action by USCIS does not confer or alter any immigration status. It does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to DHS or other agencies at the time of the request for deferred action. A grant of deferred action also does not eliminate any period of prior unlawful presence. However, periods of time in deferred action do not count as unlawful presence for the purposes of sections 212(a)(9)(B) and (C) of the INA. Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security for those purposes.
J. Eligibility for Advance Parole
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum or whose applications for adjustment of status are being held in abeyance may request advance parole. Such request may be made by filing Form I-131, Application for Travel Document, in accordance with the Form I-131 instructions and with the appropriate fee. Note, however, that departure from the United States and return, even under a grant of advance parole, may adversely affect eligibility for adjustment of status of aliens with past periods of unlawful presence.
K. Implementation
USCIS offices and centers are to begin implementing the instructions established in this memorandum immediately.
L. Contact Information
Questions regarding this memorandum should be directed to the Office of Domestic Operations through appropriate channels.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.
Distribution:
Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors
Monday, November 23, 2009
Writ Coram Nobis - Requirements
The writ of error coram nobis is a common law writ that means, "an error remains in our presence." Only the court that issued the judgment has jurisdiction to grant the writ. To warrant coram nobis relief, the petitioner must satisfy four requirements, including a showing that fundamental error occurred in the proceedings and that there are valid reasons why the petitioner did not act to attack the conviction earlier. See Hirabayashi I,. United States, 828 F.2d 591. 604 (9th Cir.1987). The Ninth Circuit Court of Appeals, the jurisdiction in which this case arises, has made it clear that the writ of error coram nobis is a "highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable." United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.2007). "[A] petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of
Article 111; and (4) the error is of the most fundamental character." Id. at 1006 (citation omitted).
Article 111; and (4) the error is of the most fundamental character." Id. at 1006 (citation omitted).
Immigration Consequences of Guilty Plea in Criminal Proceedings in CT - Conn. Gen. Stat. § 54-1j
Sec. 54-1j. Ascertainment that defendant understands possible immigration and naturalization consequences of guilty or nolo contendere plea. (a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea.
(b) The defendant shall not be required at the time of the plea to disclose the defendant's legal status in the United States to the court.
(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.
(P.A. 82-177; P.A. 97-256, S. 6; P.A. 03-81, S. 1.)
History: P.A. 97-256 amended Subsec. (c) by imposing a three-year time period after the acceptance of the plea for the defendant to show that his plea and conviction may have one of the enumerated consequences, and deleting provision that, in the absence of a record that the court provided the required advice, the defendant is presumed not to have received such advice; P.A. 03-81 amended Subsec. (a) to replace former provision prohibiting the court accepting plea unless the court "advises" the defendant of the possible immigration or naturalization consequences of conviction if the defendant is not a citizen and setting forth specific language of such advisement with provision that prohibits the court accepting plea unless the court first addresses the defendant personally and determines that the defendant fully understands such possible consequences, add "removal" from the United States as a possible consequence and add provision requiring the court to permit the defendant to discuss these possible consequences with the defendant's attorney prior to accepting plea, amended Subsec. (b) to make a technical change for purposes of gender neutrality and amended Subsec. (c) to make provisions applicable if court fails "to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section" rather than if court fails "to advise a defendant, as required in subsection (a) of this section" and make a technical change for purposes of gender neutrality.
Court found that the time limit for filing motion was procedural in nature and therefore could be applied retroactively. 251 C. 617. Warning of deportation and denial was substantial compliance with provisions of statute since defendant was warned guilty plea implicates immigration status. 257 C. 653.
Court need only inform defendant of potential deportation consequences rather than engaging defendant in a manner to ensure full understanding. 62 CA 805. Section is in place only to call defendant's attention to potential immigration consequences under federal law, not to inform defendant of every possible consequence of a plea. 68 CA 499.
(b) The defendant shall not be required at the time of the plea to disclose the defendant's legal status in the United States to the court.
(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant's plea and conviction may have one of the enumerated consequences, the court, on the defendant's motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.
(P.A. 82-177; P.A. 97-256, S. 6; P.A. 03-81, S. 1.)
History: P.A. 97-256 amended Subsec. (c) by imposing a three-year time period after the acceptance of the plea for the defendant to show that his plea and conviction may have one of the enumerated consequences, and deleting provision that, in the absence of a record that the court provided the required advice, the defendant is presumed not to have received such advice; P.A. 03-81 amended Subsec. (a) to replace former provision prohibiting the court accepting plea unless the court "advises" the defendant of the possible immigration or naturalization consequences of conviction if the defendant is not a citizen and setting forth specific language of such advisement with provision that prohibits the court accepting plea unless the court first addresses the defendant personally and determines that the defendant fully understands such possible consequences, add "removal" from the United States as a possible consequence and add provision requiring the court to permit the defendant to discuss these possible consequences with the defendant's attorney prior to accepting plea, amended Subsec. (b) to make a technical change for purposes of gender neutrality and amended Subsec. (c) to make provisions applicable if court fails "to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant's plea, as required in subsection (a) of this section" rather than if court fails "to advise a defendant, as required in subsection (a) of this section" and make a technical change for purposes of gender neutrality.
Court found that the time limit for filing motion was procedural in nature and therefore could be applied retroactively. 251 C. 617. Warning of deportation and denial was substantial compliance with provisions of statute since defendant was warned guilty plea implicates immigration status. 257 C. 653.
Court need only inform defendant of potential deportation consequences rather than engaging defendant in a manner to ensure full understanding. 62 CA 805. Section is in place only to call defendant's attention to potential immigration consequences under federal law, not to inform defendant of every possible consequence of a plea. 68 CA 499.
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