VAWA 2013: New Aging-Out Provisions and Keeping Families Together

Kiersten Schramek, Empire Justice Center Intern July 13, 2016

In October of 2000, Congress created the U Visa with the passing of the Victims of Trafficking and Violence Protection Act.[1]  This legislation formed an incentive for crime victims to assist in the legal process because aiding law enforcement could be an effective path for them to obtain temporary status and other immigrant benefits.[2] Crime victims can help by reporting the crime to law enforcement, cooperating in law enforcement’s investigation, and aiding in the prosecution of the perpetrator. The law protects primary and secondary victims of domestic violence, sexual assault, trafficking, rape, felonious assault, and other enumerated crimes where the victim has suffered mental and/or physical abuse.[3]

More specifically, the eligibility requirements for the U Visa are: you are a victim of a qualifying crime, you have suffered substantial physical or mental abuse as a result of such crime, you have information about the criminal activity, you were helpful, are being helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime, the crime occurred in the US, and you are admissible to the US; if you are not admissible, you may be able to apply for a waiver.

In addition, if you are under age 16 and are unable to give information due to a disability, a family member, parent, guardian, or next friend (a court appointed special advocate) can provide the information on your behalf.[4] The U Visa is valid for four years and U Visa holders can petition to adjust their status to a Legal Permanent Resident (LPR), after three years. If the adjustment is approved the victim may continue to reside in the United States once the U visa expires.

Another characteristic of the U Visa is that the principal applicant may petition for qualifying family members.[5] This authorization does not include the abuser. The U visa principal can petition for her spouse and unmarried, minor children (less than 21 years of age). If the victim is less than 21 years old, she can also petition for her parents and unmarried minor siblings (less than 18 years of age).[6] The U Visa implementing regulations dictate that, in order to file for derivatives, the relationship must have existed at the time of filing the I-918 Supplement A form, the U visa derivative application, and must continue until the case is adjudicated.[7]

Before the newest edition of VAWA (S. 47), signed into law on March 7, 2013, the ability to petition for minor children and siblings under 18, coupled with the backlog of cases in the system and the implementing regulations resulted in children aging-out before their U Visas were ever actually adjudicated, making them ineligible for status.[8]

Thus, when a parent of a child under 21 filed for a U Visa on behalf of herself and her minor child, but the child turned 21 while the case was still pending, the child was not eligible for status. And, when a victim under 21 filed independently and added siblings as derivatives, but turned 21 while the case was still pending, the siblings were no longer eligible for status.[9] The new 2013 VAWA provisions rectify these dilemmas.

The statute states that in both of the above situations, an individual who turns 21 while the case is still pending shall continue to be classified as a child even if they turn 21 while the case is still pending because the benchmark date is the date of the principal’s filing.[10] In other words, so long as the child was under 21 at the date of filing, they remain a child for purposes of litigation. These provisions apply retroactively for derivatives back to the creation of the U Visa in 2000.[11] Therefore, these new provisions preserves a person’s and/or his derivatives’ ability to receive status dating back to 2000.[12]

ASISTA provides some practice tips for these types of cases. It states that practitioners should continue filing requests for deferred action and continue to request extensions for principals whose derivatives have not yet gotten status.[13] In addition, for those derivatives abroad, practitioners should continue to include derivatives as they are filing U applications even if they are abroad and about to turn 21 and continue to request extensions for U-1 principals whose derivatives have not yet gotten status.[14] Also, it is best for practitioners to advise their clients against marrying until the case is settled and litigation is completed.[15]  Marrying could change the eligibility of derivative status.[16]

Although immigration law has come a long way, there is still much reform to be made.  With this new provision, more families are able to stay together and ultimately create a better life here in the United States.

[1] U.S. Citizenship and Immigration Services, Victims of Criminal Activity: U Nonimmigrant Status,

http://www.uscis.gov/portal/site/uscis/ (last visited June 17, 2013).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] U.S Citizenship and Immigration Services, Title 8 of Code of Federal Regulations 8 CFR 214.14(4),

http://www.uscis.gov/portal/site/uscis/ (last visited 7/2/13)

[8] ASISTA, VAWA 2013 and TVPRA: What Practitioners Need to Know,

http://www.asistahelp.org/documents/news/Changes_and_Practice_PointersVAWA/, 1 (2013).

[9] Id.

[10] Violence Against Women Reauthorization Act, S. 47 (2013).

[11] Id.

[12] ASISTA, VAWA 2013 and TVPRA, at 2 (2013).

[13] Id.

[14] Id.

[15] Id.

[16] Id.