Comment Submitted by Sally Lin Kinoshita, Asista / Immigrant Legal Resource Center

Please see attached February 10, 2009 Chief, Regulatory Management Division U.S. Citizenship and Immigration Services Department of Homeland Security 111 Massachusetts Avenue, NW, 3rd Floor Washington, DC 20529 RE: DHS Docket No. USCIS-2006-0067 Dear Chief, We write to thank you for your efforts to implement the U adjustment provisions through regulations, and offer our suggestions for improving the regulations to ensure the law effects Congressional intent. We write on behalf of the Family Violence Prevention Fund and ASISTA for the National Network to End Violence Against Immigrant Women. The Family Violence Prevention Fund works to prevent violence within the home, and in the community by promoting leadership within communities to ensure that violence prevention efforts become self-sustaining, and transforming the way health care providers, police, judges, employers and others address violence. Asista is a partnership funded by the U.S. Department of Justice Office of Violence Against Women to centralize assistance for advocates and attorneys facing complex legal problems in advocating for immigrant survivors of domestic violence and sexual assault. Summary of Suggestions Some aspects of the regulations apply a higher burden or standard for meeting adjustment eligibility than justified by the statute, or are sufficiently limiting or unclear such that applicants Congress intended to protect may not be able to obtain this form of relief. These aspects include the following. First, specifically, the burden on applicants to prove they have continued to help law enforcement is not contained in the statute and shall also burden law enforcement in a way not intended by Congress. Second, the discretionary standard in the regulations, especially "exceptional and extremely unusual" standard to overcome certain negative factors, may also restrict access to status for crime survivors Congress sought to help. Third, limiting sole jurisdiction to USCIS is overly restrictive and may preclude eligible applicants from obtaining relief. Fourth, the regulations for adjustment of status for U visa holders should include a provision providing an automatic stay of removal if the applicant can show prima facie eligibility. Fifth, the 120-day filing deadline for those with sufficient interim relief to qualify is unduly burdensome, and should be extended or modified. Sixth, we also ask for further clarification on derivative adjustment. Inappropriate burden for the "unreasonable refusal to assist" requirement The interim rule at new 8 CFR § 245.24(d)(8) in its present forms say that “that applicants must submit evidence that demonstrates whether or not they received requests for assistance from an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the applicants were granted U nonimmigrant status and the applicants' response to such requests.” The U adjustment statute states that “Secretary of Homeland Security may adjust the status of an alien admitted into the United States (or otherwise provided nonimmigrant status) under INA § 101(a)(15)(U) to that of an alien lawfully admitted for permanent residence if the alien is not described in INA § 212(a)(3)(E), unless the Attorney General determines based on affirmative evidence that the alien unreasonably refused to provide assistance in a criminal investigation or prosecution.” The statute says applicants shall be adjusted unless there is affirmative evidence the applicant unreasonably refused to assist law enforcement exists. The requirement that adjustment applicants prove a negative – that they have not unreasonably refused to provide assistance in a criminal investigation or prosecution – is ultra vires and an incorrect interpretation of the statute. The statute clearly places the burden on the certifying agency to provide the affirmative evidence of unreasonable refusal to provide assistance. Requiring the applicant to provide such evidence is akin to asking a criminal defendant to prove her innocence rather than having the prosecutor prove her guilt. The certifying agency is already mandated to notify USCIS if, after certifying that a U visa applicant has been helpful, that applicant later unreasonably refuses to assist in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim. If Congress had intended to place the burden of proof on the adjustment applicant, it would have added that requirement to the other enumerated requirements listed under INA § 245(m)(1)(A) and (B) which list those requirements that an applicant must affirmatively show in order to be eligible for adjustment. This aspect of the regulations also unduly burdens law enforcement, which lacks the resources to check every old U file and trace subsequent developments. Had Congress intended such constant vigilance, it would have required applicants to show they continued to provide assistance until the termination of an investigation or prosecution. This is definitively not what Congress said and, to renew our objections to the "continuing assistance" requirement in the U regulations, is an explicit violation of the statute. The Congressional goals were to create a tool for law enforcement to encourage noncitizen victims of crimes to access justice and to provide humanitarian relief to those who did. Nowhere in the statute did it require they provide continuous, or ongoing assistance. Once law enforcement determines that a person has been, is being or is likely to be helpful in an investigation (emphasis supplied), law enforcement's role is done. If they later determine the applicant has unreasonably refused to assist, they can then provide affirmative evidence to USCIS. Conversely, having the law enforcement agency revisit a matter brought to them by the victim that was already addressed many years ago may cause resentment and resistance. Like many places, these agencies have high caseloads, experience staff turnover and have limited resources, and when a matter was already dealt with, they are not likely to allocate the resources to address that matter again. If the burden is more trouble than the purported benefits, then law enforcement agencies will probably be even more inclined to be suspicious of the U visa program and less likely to be involved. The language of the statute clearly places the burden on those who believe the applicant failed to provide assistance, not on the applicant herself. This should come from law enforcement, and the regulations and form for U visas provide that law enforcement may do this. Absent such communication from law enforcement after a U approval, there is no affirmative evidence that the applicant failed to apply. Adding a burden to the applicant to show a negative is contrary the letter and spirit of the law. Suggestion: Delete the requirement that applicants must show they have not unreasonably refused to assist law enforcement and state that, if USCIS receives affirmative evidence from law enforcement on this matter, applicants will have the opportunity to rebut that evidence. Discretionary Standard We understand that USCIS must and will make a discretionary determination in adjudicating a U adjustment application, that the burden is on the applicant and that negative factors will be considered. However, we have numerous concerns with the language of both the preamble and the regulations at 8 CFR § 245.24(d)(11) that purport to govern how discretionary determinations are to be made. Encouraging The Favorable Exercise of Discretion Whenever Possible Suggestion: In keeping with Congress’ generous and flexible statutory language, we request that USCIS reframe the language of the preamble and the regulations at 8 CFR § 245(d)(11) to more clearly reflect this. Specifically, we request that USCIS edit that language to establish a framework and tone that clearly encourages examiners to apply as generous and flexible a standard as possible when exercising discretion. And, additionally, that emphasizes that discretion should be exercised in the context of making particular individualized determinations based upon the totality of the circumstances in each case. Inclusion of a Process for Notice and Opportunity To Rebut Suggestion: To ensure USCIS has all the information it needs, applicants should be given notice and opportunity to rebut the intended basis for negative discretion decisions. This will help ensure that discretion does not become a back door for denying status to those Congress intended to help. Clarification of General Standard of Review Governing Discretionary Determinations The preamble language outlining discretionary determinations creates a skewed starting point for discretionary determinations that is not supported by case law and inconsistent with the overall humanitarian scheme that underlies Congress’s intent in making this avenue of relief available to crime survivors. Decades ago, the Board of Immigration Appeals established, and the United States Supreme Court affirmed, the baseline standard that the absence of adverse discretionary standards alone was sufficient to warrant a favorable exercise of discretion in applications for adjustment of status. See Matter of Arai, 13 I. & N. Dec. 494 (BIA 1970), quoted in Elkins v. Moreno, 435 U.S. 647, 667, 98 S. Ct. 1338, 55 L. Ed. 2d 614 (1978). This baseline standard is absent from the preamble and the regulatory language at 8 CFR § 245.24(d)(11). The current language contained in the preamble at page 33 states, “Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion.” (Emphasis added.) While it is well- established that those factors can be considered as positive discretionary factors, we believe that this language is misleading in that it leaves the strong impression that, first, such equities are required and, second, that even with such a showing such equities may not be sufficient. Suggestion: Eliminate the sentence from page 33 quoted supra and insert the following language: “Generally evidence of favorable factors such as family and community ties, hardship and length of residence in the United States will merit a favorable exercise of administrative discretion. However, in light of the clear intent of Congress to provide an humanitarian relief to U visa crime survivors, the absence of adverse discretionary factors may alone be sufficient to warrant a favorable exercise of discretion in some cases.” Insert the following sentence in the regulation at 8 CFR § 245.24(d)(11): “The absence of adverse discretionary factors may alone be sufficient to warrant a favorable exercise of discretion in some cases.” Previously Adjudicated Conduct Both the preamble at page 33 and the regulations at 8 CFR § 245.24(d)(11) include the following sentence: “Although U adjustment applicants are not required to establish that they [are not] inadmissible, USCIS may take into account all adverse factors, including acts that would otherwise render the applicant inadmissible, in making its discretionary decision on the application.” This language is misleading and problematic. Most notably, it fails to distinguish factors, particularly adverse factors, which have already been considered at the time of the granting of the U nonimmigrant status itself (when U nonimmigrants applicants did, in fact, already establish admissibility) from subsequently acquired adverse factors. In the case of a person granted U nonimmigrant status who is seeking adjustment, any factors that existed at the time the U nonimmigrant application was adjudicated that would “otherwise render the applicant inadmissible” have already been taken into account and subjected to discretion in connection with a waiver under INA § 212(d)(14). In particular, the interim U-visa regulations already contain a specific “violent or dangerous” crimes provision that conditions discretion for applicants inadmissible on criminal or related grounds and provides that “in cases involving violent or dangerous crime” USCIS will only exercise favorable discretion in “extraordinary circumstances.” That coupled with the more restrictive scope of the discretionary standard to obtain an INA § 212(d)(14) waiver clearly establish that conduct pre-dating U nonimmigrant approval has already been given an extraordinarily rigorous level of scrutiny before receiving a discretionary approval. The regulation as written will inevitably create confusion by establishing a general standard of discretion that will result in discretionary denials of adjustment under the more generous humanitarian and family unity standard mandated by the statute, after granting a nonimmigrant visa waiver under the more rigorous standard set forth under INA § 212(d)(14) Suggestions: Both the preamble and the regulations should be edited to make clear that 8 CFR § 245.24(d)(11)’s discussion of adverse discretionary factors is primarily directed at any new adverse factors not previously considered in the U nonimmigrant adjudication process. This language should also make clear that U adjustment discretionary determinations must not be inappropriately used as a mechanism to engage in de facto re-determinations of inadmissibility. Additionally, the language should make clear that even where a non-criminal negative discretionary factor may appear to trigger a statutory ground of inadmissibility, consideration of the totality of the circumstances can still warrant a favorable exercise of discretion. Cases Involving Criminal Conduct and/or Convictions We understand and acknowledge that USCIS can and must consider the adverse consequences of criminal conduct and convictions when making discretionary determinations. We do not believe, however, that either the statute or the lived-out reality of survivors justifies imposition of the extremely high "exceptional and extremely unusual" standard for “adverse” factors, which, by implication, is clearly directed at criminal conduct/convictions. Survivors of crimes, especially undocumented domestic violence survivors, may be (and often are) charged or convicted of "violent" or seemingly reprehensible crimes precisely because they are undocumented victims of crimes. For example, law enforcement all too frequently charges them with domestic violence offenses for actions that were in defense of themselves or their children. These situations are exactly why Congress created the U visa, so undocumented victims would no longer fear contacting law enforcement to gain safety for themselves and their children. To then deny lawful permanent residence for these reasons undermines the goal of the statute. With regard to previously adjudicated criminal conduct, if such applicants demonstrate at the U nonimmigrant phase that it's in the national or public interest to grant status despite these crimes, they should not later be denied adjustment for the same crimes. While clearly criminal conduct committed subsequent to issuance of the U visa must be considered in the exercise of discretion to grant adjustment of status, the language of both the preamble and the regulations should be reframed to provide more effective guidance directing examiners to consider this subsequent conduct in light of the totality of the circumstances that the survivor presents. Suggestion: Eliminate the mention of the higher standard for “adverse factors.” Just restate that all factors, especially those occurring after the U nonimmigrant grant, shall be considered in the exercise of discretion, and that applicants shall be given notice and an opportunity to rebut any assumptions underlying a negative discretionary decision. Alternative/Additional Suggestion: If USCIS maintains the current framework and language, amend the phrase in both the preamble and the regulations that reads, “a serious violent crime” to read, “ a serious violent felony.” In light of the fact that most examiners will have very limited legal expertise for determining what constitutes a “serious violent crime,” this clarification will ensure that lesser offenses will not trigger unwarranted denials. Limiting sole jurisdiction to USCIS The Immigration and Nationality Act (INA) provides a path for U visa holders to adjust status to become lawful permanent residents under INA § 245(m). In its current form, the statute reads as follows: “The Secretary of Homeland Security may adjust the status of an alien admitted into the United States …” Id. as amended by the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162, 119, Stat. 2960 (Jan. 5, 2006) (emphasis added). In its original form, INA § 245(m) read as follows: “The Attorney General may adjust the status of an alien admitted into the United States . . .” See Section 1513(f) of the Victims of Trafficking Violence Protection Act of 2000, (TVPA of 2000) Pub. L. 106-386, 114 Stat. 1464, 1536 (October 28, 2000) (emphasis added). Congress clearly intended for the Attorney General to have jurisdiction to adjust status of U visa holders. At that time, the Attorney General’s agencies involved in adjustment of status adjudications were the Executive Office for Immigration Review (EOIR) and the Immigration and Naturalization Service (INS). Had Congress intended to limit jurisdiction over adjustment of status applications to the agency, INS, it would have clearly stated so in the statute by using language such as “The District Director may . . .” However, by designating the Attorney General as the person authorized to adjust status of U visa holders, Congress clearly indicated its intent to give authority to both the agency, as well as EOIR, both which were under the jurisdiction of the Attorney General in the year 2000. In VAWA 2005, Congress passed amendments to the Violence Against Women Act (VAWA) as well as other technical amendments to INA § 245(m) changing the language from the Attorney General to the Secretary of Homeland Security. However, this change occurred in Congress without discussion about its ramifications. It seems apparent that Congress did not intend to limit jurisdiction over adjustment of status applications for U visa holder to the Department of Homeland Security, rather it updated the terms in the statute as by 2005 the Department of Homeland Security was already in existence. See The Homeland Security Act of 2002, Pub. L. 107–296, 116 Stat. 2135 (Nov. 25, 2002). In 2002, Congress created the Department of Homeland Security by passing the Homeland Security Act (HSA) of 2002. See Pub. L. 107–296, 116 Stat. 2135 (Nov. 25, 2002). The HSA created a Secretary of Homeland Security and reorganized the agencies so that the former INS became two agencies under the Department of Homeland Security (DHS): U.S. Citizenship & Immigration Services (USCIS) and Immigration and Customs Enforcement. Most importantly, USCIS was moved from the purview of the Attorney General and under the jurisdiction of DHS. Those reorganization changes did not affect the implementation of the Immigration and Nationality Act as it had been written. For example, the adjustment of status provisions under INA § 245(a) state that “The status of an alien … may be adjusted by the Attorney General . . .” The creation of DHS did not change the implementation of this rule. The reference to the Attorney General continued to signify that both the Attorney General, through EOIR, and DHS, through USICS, had authority to adjudicate adjustment of status applications depending on the applicant’s circumstances. Thus, reorganization changes, did not affect the implementation of the statute. Similarly, Congress was clear when it passed the TVPA of 2000 intending to protect victims of certain crimes by creating the U visa and the adjustment of status provisions for such victims. In 2005, Congress signed VAWA 2005 into law to strengthen federal criminal law, create new protections for victims in public housing, strengthen protections for battered immigrants and victims of trafficking and include new definitions and grant provisions. Congressional intent was to strengthen protections for victims of crimes, not to limit review of their applications. Suggestion: The regulations for the adjustment of status U visa holders should authorize DHS and EOIR to review such applications. Suggested language in italics: 8 CFR § 245.24(b). Eligibility of U nonimmigrants. Except as described in paragraph (c) of this section, USCIS has jurisdiction to adjudicate an application for adjustment of status filed by an alien, unless the immigration judge has jurisdiction to adjudicate the application under [IMPLEMENTING EOIR REGULATIONS], provided that the alien: … 8 CFR § 245.24(f)(2). Denials. Upon the denial of an application for adjustment of status under section 245(m) of the Act, the applicant will be notified in writing of the decision and the reason for the denial in accordance with 8 CFR part 103. No appeal lies from the denial of an application by the director, but the applicant retains the right to renew his or her application in proceedings under 8 CFR part 240. Strike the rest of this section regarding the Administrative Appeals Office. According to the statute and Congressional intent, USCIS does not have sole jurisdiction to adjudicate applications for adjustment of status under INA § 245(m). It is also not efficient for USCIS to have sole jurisdiction. USCIS has limited resources to adjudicate the thousands of applications that will be filed under this provision. Currently, there are more than 10,000 U visa applications pending and USCIS is unable to adjudicate them in a timely fashion. In addition, the agency is lagging in adjudication of many of the other types of applications it is charged with processing that are filed by noncitizens. Persons in removal proceedings, and especially those in detention, are particularly impacted by delayed adjudications. Immigration Judges often are unwilling to continue cases to allow the agency to adjudicate applications; thus, persons in detention are many times forcibly returned to their home countries where they often face additional harm and the inability to return. In addition, if DHS takes the position that it has sole jurisdiction to review adjustment applications, history has shown that such initiatives often create confusion and lead to litigation against the agency. For example, legalization provisions brought back by the Legal Immigration Family Equity Act (LIFE) and its amendments were instituted as a result of litigation and recognition by the agency that it had mishandled thousands of applications for individuals who were eligible to legalize under INA § 245A but were wrongfully denied the opportunity by the agency. Pub. L. 106-553, 114 Stat. 2762 (Dec. 21, 2000), amended by LIFE Act Amendments, Pub. L. 106-554, 114 Stat. 273 (2000). When an individual is facing removal proceedings and may be eligible for multiple forms of relief, it is not practical for the immigration judge to only have jurisdiction over certain forms of relief, but not others. This situation would create inefficiency not only for the agency, but also for the EOIR. Furthermore, it will deprive the victims that Congress intended to protect from due process under the law and access to the provisions created by Congress. If indeed the agency determines it has sole jurisdiction, applicants are eligible to apply for adjustment of status so long as they meet the requirements in INA § 245(m) and 8 CFR § 245.24, et.al. The statute and the regulations do not explicitly bar a noncitizen in removal, deportation or exclusion proceedings or a person with a final removal, deportation or exclusion order, from seeking adjustment of status. Suggestion: DHS should consider similar regulations explained below and determine that applicants for adjustment of status under INA § 245(m) may apply, notwithstanding removal, deportation or exclusion proceedings or a final order of removal, deportation or exclusion. LIFE Legalization 8 CFR §245a.10, et.al. 245a.12(a). … must properly file an application for adjustment of status … to the Service … 245a.12(b) … (1) Persons in deportation/exclusion/removal or with pending MTRs. “An alien who is prima facie eligible for AOS under LIFE Legalization who is in exclusion, deportation or removal proceedings before the Immigration Court of the BIA or who is awaiting adjudication of a MTR or motion to reconsider filed with the Immigration Court or the Board, may request that proceedings be administratively closed or that the motion filed be indefinitely continued, in order to allow the alien o pursue LIFE Legalization application with the service. (3) Aliens with final orders of exclusion, deportation or removal. An alien, who is prima facie eligible for adjustment of status under LIFE Legalization, and who is subject to a final order of exclusion, deportation or removal may apply to the Service for LIFE Legalization adjustment.” 245a.13(a) When an eligible alien in the U.S. submits a prima facie application for AOS under LIFE Legalization during the application period, until a final determination on his or her application has been made, the applicant: (1) May not be deported or removed from the U.S.; … Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), Division A, Title IX, Sec. 902 of Pub. L. 105-277, 112 Stat. 2681-538. 8 CFR 245.15, et.al. 8 CFR §245.15 Haitian nationals who filed for asylum before December 31, 1995 and have been physically present in the U.S. are eligible to apply for adjustment of status with U.S. Citizenship & Immigration Services (USCIS) notwithstanding an outstanding order of removal, exclusion or deportation. HRIFA provides for a stay of any order of deportation until the application for adjustment is finally adjudicated. See 8 CFR § 245.15. Need for Automatic Stay Provision Deporting an applicant for adjustment of status under INA § 245(m), before having given the applicant an opportunity to obtain the relief sought, would thwart Congressional intent in providing protection to victims of certain crimes and in encouraging collaboration with law enforcement officials. In addition, Congress again expressed its intent to protect victims of crimes and prevent their deportation before giving them an opportunity to seek protection with the passage of the Trafficking Victims Protection Reauthorization Act of 2008, (VTPA 2008) Pub. L. No. 110-457, 122 Stat. 5044 (Dec. 23, 2008). In the VTPA 2008, Congress added a provision to INA §237 that specifically addresses applicants for U and T visas who have outstanding removal orders. TVPA 2008 §204. Congress gave the Department of Homeland Security the ability to grant stays of removal when there is a pending prima facie case for approval of a T or U visa until the application is finally denied. Again, Congressional intent is clear. Congress intends to provide protections to victims of certain crimes who may be eligible for U visa relief and by extension to adjustment of status under the U visa. Suggestion: The newly promulgated regulations for adjustment of status for U visa holders should include a provision providing an automatic stay of removal if the applicant can show prima facie eligibility for the relief sought. 120-Day filing deadline for interim relief holders after U visa approval The proposed regulations provide that an applicant who has accrued at least 4 years in U interim relief status must file a completed adjustment application within 120 days of the date of approval of the Form I-918, Petition for U Nonimmigrant Status. The 120-day limit within which to file adjustment of status will present otherwise eligible U visa holders with insurmountable barriers and should be extended to a year with discretionary exceptions for late filing. As USCIS realized after promulgating the U visa regulations, a short deadline for interim relief holders is inappropriate to the effective administration of this law. For the reasons described below, many interim relief holders will be unable to comply with the deadline. Denying them adjustment for failing to meet such a deadline undermines the law. Burden to Legal Assistance Organizations Agencies engaged in assistance to U applicants will find it problematic to prepare the numerous applications that have been in interim status and are now eligible to file for adjustment of status. According to USCIS estimates there are 5,000 cases in which interim U relief has been granted, 2,100 of whom have had this status for the requisite 4 years and may apply for adjustment of status. There are a limited number of agencies working with this population, generally free of cost. The burden to the organizations in meeting the 120-day deadline will be huge. Cost For U visa applicants who are employed, the cost of applications for themselves and their dependents will be prohibitive. Many who have obtained interim U status will have jobs and will be earning more than the poverty guidelines. However the cost of an adjustment of status application is $1,010 per family member. While the regulations do provide that the principal applicant may apply first and later file for dependent family members, the $1,010 fee may be very difficult to raise within 120 days. Evidentiary Burden In Demonstrating Continuous Physical Presence The requirement to obtain proof that the applicant was continuously physically present and did not unreasonably refuse to provide evidence will likely take more than 120 days. The regulations state that there should be no significant chronological gaps in documenting continuous physical presence, but specify that an affidavit of the applicant is not enough and should be supplemented by documentation. Where documentation is unavailable, applicants may include affidavits of individuals. Experience has shown, from the requirements of the Nicaraguan Adjustment and Central American Relief Act (NACARA), that for some applicants the collection of evidence is more difficult. Where an applicant is, for example, a homemaker, or a young adult with transitory residences and a series of temporary day jobs, there will not be readily available documentation of residence or employment. With NACARA, some applicants needed over a year to collect the proper amount of proof for case submission. Particularly with crime and trauma victims, ordinary tasks may be more highly emotionally charged and difficult and therefore may require more time and effort than under ordinary circumstances. Evidentiary Burden In Demonstrating No Unreasonable Refusal To Assist in the Investigation or Prosecution The rule provides that applicants must submit evidence that demonstrates whether or not they received requests for assistance from an official or law enforcement agency that had responsibility for the investigation or prosecution of persons in connection with the qualifying criminal activity after the applicants were granted U status. The rule provides an option for applicants to obtain a document signed by an official or law enforcement agency that had responsibility for persons in connection with the investigation or prosecution of the qualifying criminal activity. As was demonstrated in the preparation of interim relief, obtaining the original certificate from law enforcement causes substantial delays in many districts or may meet resistance. In many instances, advocates needed more than 120 days to obtain documents from law enforcement. The rule acknowledges that in some cases this may not be appropriate and allows the applicant to supply a statement that should include a description of all instances of which the applicant is aware in which the applicant was requested to provide assistance in the criminal investigation or prosecution of persons in connection with the qualifying criminal activity after the applicant was granted U nonimmigrant status, and how the alien responded to such requests. Applicants are advised to also include, when possible, identifying information about the law enforcement personnel involved in the case and any information of which the applicant is aware about the status of the criminal investigation or prosecution, including any charges filed and the outcome of any criminal proceedings, or whether the investigation or prosecution was dropped and the reasons. Depending on the circumstances, evidence might include such documentation as court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits of other witnesses or officials. If applicable, an applicant also may choose to provide a more detailed description of situations where the applicant declined to comply with requests for assistance because the applicant believed that the failure to comply with such requests for assistance was reasonable under the circumstances. As stated above in the section on continuous physical presence, the collection of such facts and documents is burdensome and is likely to take applicants, particularly crime and trauma victims, more than 120 days to collect. The Skeletal Application Option Some have answered the above concerns by suggesting the applicant could simply file a skeletal application within the 120 days, knowing that an RFE would provide her with the opportunity to provide more substantial evidence afterward. While this is never considered best professional practice, there are specific risks involved in doing so. In particular, there may be only one RFE filed to request general evidence not submitted with the skeletal application. If there is then an area where the evidence needs further clarification or documentation, there is no guarantee the Service Center will issue a second opportunity to submit evidence. Suggestion: As it did with the deadline in the U regulations, USCIS should withdraw the specific deadline for interim relief applicants; if it deems a deadline necessary, it should allow interim relief applicants a year to file for adjustment after their U visas are approved, with discretionary exceptions for late filing. U derivatives U derivatives must be allowed to adjust, even if they have not accrued three years of status at the time the principal adjusts. The delays in getting the initial U status, creating the gap, do not flow just from consular processing problems, as addressed by earlier regulations. The statute itself contemplates that derivatives may acquire status after the principal. All derivatives in this situation, regardless of the reason, should be granted extensions of status so they can accrue the necessary time to adjust. Currently it is unclear from the statute and the regulations that all derivative family members will be able to adjust status if they received their U nonimmigrant status after the principal applicant. The interim U visa regulations say that a qualifying derivative family member will be approved for an initial period that does not exceed the expiration date of the initial period approved for the principal alien. 8 CFR § 214.14(g)(1). An extension of status may be approved beyond that date when the U-1 nonimmigrant’s status expires and the qualifying family member is unable to enter the United States due to delays in consular processing and the extension of status is necessary to ensure that the qualifying family members is able to attain the required 3 years in nonimmigrant status in order to adjust status under INA § 245(m). 8 CFR § 214.14(g)(2). The regulations are silent as to whether or not the same extension may be granted when consular processing delays are not an issue – for example, in the case of derivative qualifying family members in the United States who receive the U nonimmigrant status approval subsequent to the principal nonimmigrant status holder. TVPRA 2008 attempted to also provide additional means to extend the period of authorized status for U nonimmigrants. However, the language of the Act creates possibilities to extend status “beyond the 4-year period” which also does not help derivatives who have not yet accrued even three years of nonimmigrant status before the principal adjusts. Example: Chloe applied for U nonimmigrant status after the law enforcement agency she helped in conducting the criminal investigation signed her Form I-918 Supplement B and encouraged her to apply. Two years after her U-1 nonimmigrant status was approved, she found out she could submit a U derivative application on behalf of her 10-year old daughter, Zoe, who lives with her in Colorado. Chloe’s U-1 nonimmigrant status will expire two years after she submits the derivative application for Zoe. Because Zoe’s U-3 nonimmigrant status cannot exceed the expiration date of the principal’s U nonimmigrant status, Zoe’s status will expire after two years – not enough time for her to accrue the three years necessary for adjustment under INA § 245(m). Because this gap in time was not due to a gap in consular processing, 8 CFR § 214.14(g)(2) does not apply to extend her status. Because Zoe has not already accrued four years of nonimmigrant status, TVPRA Title II, Section 201(c) also does not enable her to extend her status due to exceptional circumstances (this section of the Act only allows USCIS to extend status “beyond the 4-year period authorized”). Suggestion: Explicitly state that all qualifying U family members will be granted extensions of status until they are eligible to adjust, regardless of time of principal's adjustment. Conclusion Thank you for your attention to our concerns. We hope you will respond to them by fixing these issues in implementing the U adjustment procisions and bring them into line with the rest of the regulations, which otherwise do a good job of furthering the goals of the law. Sincerely, Sally Kinoshita Asista