SUMMARY OF THE VIOLENCE AGAINST WOMEN ACT (VAWA) AND TRAFFICKING BILL THAT PASSED October 11

* Background

The Victims of Trafficking and Violence Protection Act of 2000 (H.R. 3244) passed Congress last Wednesday, October 11. The measure, which will soon receive President Clinton's enthusiastic signature, incorporates both the Violence Against Women Act reauthorization (VAWA 2000) and protection for traffickers, which had been working their way through Congress on separate tracks.

As passed, H.R. 3244 includes the Senate VAWA provisions, which expand and improve protections for immigrant battered spouses and children under the original VAWA, which was enacted in 1994.

Under pre-VAWA immigration law, immigrant spouses and children of U.S. citizens or lawful permanent residents (LPRs) were dependent on the citizen or LPR to petition to immigrate them, and this dependency left them particularly subject to abuse on the part of that relative. VAWA created a procedure whereby abused spouses and their children or abused children and their parents can "self-petition" to obtain LPR status without the cooperation of the abusing relative. VAWA also enabled battered spouses and children to obtain suspension of deportation or cancellation of removal if they were present in the U.S. for at least three years rather than the seven years normally required for suspension or ten years for cancellation.

But the experience of intervening years has exposed some of the weaknesses of the original VAWA immigrant protections, and in addition, updates were needed to harmonize VAWA with changes in immigration law that have been enacted in the intervening years.

VAWA 2000 removes a number of obstacles that battered spouses and children have encountered in attempting to use provisions of the VAWA intended to help them. For example, a battered spouse whose marriage is defective because her husband failed to tell her that he was already married is not eligible to immigrate under VAWA 1994. VAWA 2000 corrects this problem by allowing individuals who believed that they were married to a U.S. citizen or LPR to self-petition.

VAWA 2000 also allows individuals to self-petition even though they have been divorced from the citizen or LPR, provided that the marriage terminated within the past two years and a connection between the termination of the marriage and the abuse of the immigrant can be shown. These changes also apply to VAWA suspension of deportation and cancellation of removal. Moreover, individuals may self-petition even if the citizen relative has died, provided they petition within two years of the death.

The new law allows all VAWA self-petitioners to apply for adjustment of status in the United States, regardless of whether they were inspected when they entered the country or whether they subsequently maintained lawful status.

The act also eliminates the disparate treatment of self-petitioners who, under prior law, had to meet certain requirements not applied to regular family immigrant visa applicants. Most significantly, self-petitioners no longer need to show that their deportation would cause "extreme hardship." This eliminates an enormous evidentiary hurdle from the self-petition procedure. The law also allows abused spouses and children of U.S. employees or military personnel abroad to self-petition.

Under the new law, if the U.S. citizen or LPR parent or spouse subsequently loses that status for reasons related to their abusive conduct, the loss does not affect the abused immigrant's eligibility to immigrate if they petition within two years.

Abused immigrants with approved self-petitions may now remarry without causing the petition to be revoked.

Self-petitioners under the new law still must show that they have "good moral character." However, the new law partially exempts them from the bar on establishing good moral character outlined in INA section 101(f). Under that provision, immigrants cannot establish good moral character if they have committed or been convicted of certain criminal acts. The new law removes the bar if the act constitutes a ground of admissibility or deportability that is waivable, and the act was connected to the abuse the applicant suffered. There is a similar waiver for applicants for VAWA suspension or cancellation.

Under the act, children who have filed a self-petition or are derivative beneficiaries of a parent's petition no longer "age out," or become subject to normal family visa rules, when they become 21 years old. Instead, they are treated as self-petitioners under the appropriate category (as unmarried sons or daughters of U.S. citizens or LPRs, or married sons or daughters of citizens), with the parent's priority date.

The act allows applicants for VAWA cancellation of removal to show that they have three years' continuous physical presence in the U.S., despite a single absence longer than 90 days or cumulative absences exceeding 180 days, if there is a connection between the absence and the abuse perpetrated against the applicant. The act also eliminates application of the "stop-time rule" (under which service of a Notice to Appear stops the accrual of continuous physical presence) in VAWA cancellation and suspension cases.

The act requires the attorney general to grant parole status to the children or parents of individuals who are granted VAWA suspension or cancellation.

The act allows individuals who become eligible for VAWA suspension or cancellation because of the changes made by the new law to move to reopen their proceedings. It also amends the INA's time limitations on motions to reopen, allowing individuals to file a motion to reopen to apply for VAWA cancellation within one year of the entry of a final order. The attorney general may also waive the one-year limitation in cases of extraordinary circumstances or extreme hardship to a child.

The act establishes waivers of certain grounds of inadmissibility for abused immigrants. There is a waiver of the ground of inadmissibility for reentering the U.S. without inspection following a one-year period of unlawful presence or after having been ordered removed. This waiver is available to individuals who can establish a connection between the abuse they suffered and their departure or reentry.

There is also a waiver of the ground of deportability for having a conviction for a crime of domestic violence or for violation of a protective order, if the abused immigrant can show that she was not the primary perpetrator of violence in the relationship. She must also show that she was acting in self-defense or that the crime did not result in serious bodily injury and was connected to the abuse that the immigrant suffered.

The act makes available to abused immigrants the INA's waivers for certain criminal grounds (§ 212(h)), fraud or misrepresentation (§ 212(i)), and health grounds (§ 212(g)). Expanding the availability of these waivers was considered necessary because they had been limited to spouses of U.S. citizens or LPRs. Abused immigrants may no longer have such a relationship.

The act amends the public charge ground of exclusion to provide that cash or other benefits received pursuant to 8 U.S.C. section 1641(c) (which permits VAWA beneficiaries to obtain cash and other government assistance in connection with their escape from domestic violence) may not be considered in public charge determinations.

The act also amends the Cuban Adjustment Act, the adjustment of status provisions of the Nicaraguan Adjustment and Central American Relief Act (NACARA), and the Haitian Refugee Immigration Fairness Act (HRIFA). These amendments allow abused spouses or children who are dependents of individuals eligible for relief under these laws to adjust their status, without having to reside with the principal or maintain the relationship. Under the act, persons who become LPRs through VAWA may also apply for naturalization after they have resided in the U.S. in LPR status for three years.

The act creates two new categories of nonimmigrant visas."T" visas are available to victims of "a severe form of trafficking in persons," who are in the U.S. because of the trafficking, who would suffer "extreme hardship involving unusual and severe harm" if removed from the U.S. Severe forms of trafficking include sex trafficking of persons under 18 years of age, or recruiting or obtaining persons for labor or services through the use of force, fraud, or coercion "for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery."

Nearly all grounds of inadmissibility may be waived in these cases, and individuals granted T visas may adjust to LPR status three years after they are granted the T visa. If the Attorney General considers it necessary to avoid extreme hardship, the victim's spouse and children (and parents, if the victim is under 21 years old) are also eligible for a T visa as derivatives. There is a limit of 5,000 T visas that may be issued in one year, and 5,000 adjustments of T-visa holders that may be granted. This numerical restriction applies only to principals and not to spouses, children, or parents of the principal immigrant.

The other visa created by the act is the "U" visa, described in the legislation as a "humanitarian/material witness" visa. The "U" visa is available to immigrants who are either victims of or who possess information concerning one of the following forms of criminal activity: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage holding, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit one of these offenses.

A federal, state, or local official must certify that an investigation or prosecution would be harmed without the assistance of the immigrant or, in the case of a child, the immigrant's parent. Nearly all grounds of inadmissibility may be waived in these cases, and individuals granted U visas may adjust to LPR status three years after they are granted the U visa. The spouse and children of the crime victim (and the parents of a child victim) may also be granted a visa if the Attorney General considers it necessary to avoid extreme hardship, or if the family member would be helpful to the investigation or prosecution. There is a limit of 10,000 U visas that may be issued in one year, applicable only to principals and not to derivative family members.

Victims of a severe form of trafficking in persons are granted expanded access to government benefits regardless of their immigration status. To qualify, a trafficking victim must either be under 18 years old or obtain certification from the U.S. Department of Health and Human Services (HHS) of the following:

1. She is willing to assist in every reasonable way in the investigation and prosecution of trafficking perpetrators (this does not require actual cooperation, or even the existence of an investigation, just willingness to cooperate); and
2. She has made a bona fide application for a "T" visa that hasn't been denied (or she has been granted permission to stay by the Attorney General to assist in a prosecution of traffickers).

Although the language is murky, it appears that those who meet these conditions will be eligible for all programs funded or administered by federal agencies, including HHS, Legal Services Corporation, and the Department of Labor, to the same extent as refugees, and, in the case of food stamps and Supplemental Security Income (SSI), even more than refugees. As a practical matter, this should mean that qualifying trafficking victims will be eligible for refugee-specific programs such as those administered by HHS' Office of Refugee Resettlement, and will also be eligible for all non-refugee-specific federal programs on the same basis as U.S. citizens.

FOR FURTHER INFORMATION, CONTACT: National Immigration Law Center, Los Angeles Office: 213-639-3900 (general calls and requests for materials); Washington, D.C. Office: 202-216-0261 (calls regarding policy issues)

(Valory Greenfield, Esq., Florida Legal Services, Inc.,  e-mail: valory@floridalegal.)