A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Sunday, September 21, 2014

Adopted children may self-petition for green card without living with abusive parents for 2 years

A recent USCIS policy memo implements an exception to the two-year custody and two-year residency requirement for abused adopted children.  This policy memo, dated July 14, 2014, provides guidance to USCIS officers in adjudicating Form I-360, filed by a self-petitioning adopted child for a green card, when the adopted child has been battered or abused.

Normal Requirements for Adopted Children Petition
Under normal procedure, an adopted child must meet certain legal requirements before he or she may apply for a U.S. green card based on the adoptive parent's petition.  The Immigration and Nationality Act (INA) requires that the child's adoption must have been completed before the adopted child’s 16th (or 18th, if the child's sibling had been adopted by the same adoptive parent prior to the age of 16)  birthday.  Further, the adoptive parent must also have had legal custody of the adopted child for at least two years, and must have resided with the adopted child for at least two years. There are some exceptions to these requirements. For example, orphan adoptions or Hague Convention adoptions are governed by different sets of rules.

Problems under the Regular Requirements
Under the regular legal requirements, adopted children were required to prove that they have had two years of legal custody and two years of residence with the U.S. citizen or lawful permanent resident adoptive parent.  These requirements created problems for adopted children who were abused by their parents.  These children were not able to apply for a green card until they had lived with their abusive parents for two years.  If they chose to escape or move out of the abusive home, they would become ineligible for a green card for failing to meet the two-year legal custody and two-year residency requirements.

Violence Against Women Act 2005 Amendments
In 1994, the Violence Against Women Act (VAWA) was signed into law, which allows certain abused adopted children of U.S. citizens or lawful permanent residents to self-petition for immigrant visas.  However, many adopted children were not able to self-petition because they failed to meet the two-year legal custody and two-year residency requirements.

In 2005, VAWA was amended to remove these two requirements by amending the definition of
an adopted child under INA for a child if the child has been battered or subjected to extreme cruelty by the adoptive parent or by household family members of the adoptive parent.  In effect, the VAWA 2005 amendments allow abused adopted children to leave their abusive home without jeopardizing their eligibility to file a self-petition for green card.

New Guidance under Policy Memo
The new policy memo provides guidance on the adjudication of a VAWA-based Form I-360.  The policy memo basically adopted the VAWA 2005 amendments in the adjudication process.  Under the new policy, an abused adopted child applying for a self-petition only needs to prove that he or she shared a residence with the abuse parents for some period of time.  If the child has been abused
by the adoptive parent or a household family member,  the two-year custody and two-year residence requirements no longer applies.  To apply, the adopted child must be at least 14 years old and a person of good moral character.

Further, an abused adopted child may file the I-360 petition outside of the U.S. if  the abuser is an employee of the U.S. government or a member of the uniformed services, or if the self-petitioning child was subjected to battery or extreme cruelty in the United States.

Late filing is also allowed under the new policy.  Specifically, if the abuse was "one central reason" for the delay in filing, the "child" may continue to be eligible to file a self-petition until the age of 25.

Claims of abuse and extreme cruelty are scrutinized carefully by the adjudicators.  Substantial evidence such as police reports, sworn statements, medical documentation, etc., is required to prove that a child was battered or subjected to extreme cruelty.  

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