CALL TO ACTION FOR DHS PUBLICATION OF A FINAL REGULATION TO IMPLEMEMT WORK AUTHORIZATION FOR CERTAIN BATTERED SPOUSES
SIGN ON DEADLINE: 5:00pm, Friday, April 1, 2016
HOW TO SIGN ON: http:/ /goog.gl/forms/sign_on
QUESTIONS: Contact Aparna Bhattacharyya @ (404) 876-0670 or [email protected]
ORGANIZATIONAL SIGN ON LETTER
March 8, 2016
The Honorable Jeh Johnson
Secretary of Homeland and Security
Department of Homeland Secretary
245 Murray Lane SW
Washington, D.C. 20528-0075
Dear Honorable Johnson:
We seek your urgent assistance on behalf of all those abused and vulnerable spouses whom US CIS has left unprotected by failing to implement legislation enacted to assist them over 10 years ago.
On January 5, 2006, Congress passed Section 814(c) of the Violence Against Women Act and Department of Justice Reauthorization Act of 2005 [VAWA 2005, Public Law 109–162], which provides employment authorization eligibility for abused H-4 visa holders and certain other dependent spouse visa categories. VAWA 2005 Section 814(c) allows these spouses (who don’t generally have work authorization) to request a work permit if they are being abused, thus relinquishing some of the power and control their abuser holds over them. Until USCIS implements this law, many victims remain dependent on their abusive spouses for both their legal status and economic security, creating significant barriers for those trying to remove themselves from an abusive home. While recent executive actions have resulted in providing work authorization to some H-4 dependents in the United States, the rule restricts eligibility to a certain subset of such individuals and is unrelated to the humanitarian concern which is the basis for this rule.
US CIS inaction results in survivors of violence staying in violent relationships due to an ability to support themselves and their children. It also leads to survivors to being vulnerable further harm by community members who via labor exploitation and other abuse, again based on the inability to work, when they are seeking housing or refuge. As non-profits,lawyers, advocates, and community members, we have heard countless stories of spouses being abused by their partners, community members, and employers based on their forced reliance on the kindness of others because they cannot work. Generally, a spouse leaving an abusive situation needs to access a domestic violence shelter. Shelter availability is typically 1 to 3 months, with extremely limited extensions. Without work authorization, these spouses are are often ineligible for transitional housing.
Even those brave enough to report the abuse to the police, despite the abuser’s typical threats of deportation and taking their kids, cannot be assured of a U visa. The prerequisite U visa law enforcement certification is tough to obtain in some jurisdictions, either because of outright refusal by some police departments or other procedural barriers (such as waiting on a case disposition, the age of the police report, or other reasons).
Over two years ago on December 12, 2012, US CIS issued a Draft Policy Memorandum, PM-602-XXX: Eligibility for Employment Authorization upon Approval of a Violence Against Women Act (VAWA) Self-Petition; and Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants. The draft memo fails to deliver the intent of the legislatures because it requires that the abused spouse applicant maintain H, G, E, or A non-immigrant status, whereas INA section 106 only requires that they were admitted under this classification.
This additional requirement, not contained in the statute, will harm potentially eligible victims in several scenarios:
- Abusive spouse fails to file a derivative green card.
- Abusive spouse withdraws a filed derivative green card.
- Abusive spouse files for divorce to render the derivative green card ineligible.
- Abusive spouse fails to maintain H1-B status based on their employer’s filing of an employment-based green card thus terminating any derivatives H-4 status.
All of these scenarios may lead to any of the following exposures and vulnerabilities:
- The abused spouse has no control over whether the abuser will file.
- The abused spouse has no control over whether the abuser will decline to file.
- The abused spouse has no control over whether the abuser will withdraw their spouse’s derivative green card.
- The abused spouse has no control over whether the abuser will continue to maintain their H1-B status during the pendency of the employment-based green card process.
- The abused spouse has no control over whether the abuser will file for divorce to render them ineligible for relief
- The abused spouse becomes ineligible for an I-360 VAWA Petition (as an abused spouse of an LPR).
Under any of these considerations, the conclusion is simple and singular – the victim is without status and only more vulnerable to abuse.
It is time for US CIS to act immediately to protect some of our most vulnerable community members. We further urge should allow INA Section 106 EAD applications to be based upon a demonstration that one “has been admitted as an alien spouse. . . .” with an explicit explanation that the subsequent termination of marriage or spouse status will not render one ineligible for an EAD.
This matter is of particular significance to the South Asian community because there are many battered H-4 South Asian spouses who cannot qualify for a VAWA self-petition due to green card backlogs for Indian foreign nationals of over a decade in some cases. This gives an abuser ample time to divorce their spouse (sometimes fraudulently when she is outside the U.S.) and to exclude the victim from a derivative employment-based green card or VAWA self-petition relief. VAWA self-petitions can only be filed if the abusive spouse is a permanent resident or U.S. citizen, and if there is a divorce, the VAWA petition must be filed within two years of the divorce date.
We implore your kind and swift assistance in this matter. We see many abused spouses eligible for the work permit the law allows them but who cannot avail themselves of this benefit critical to their safety and wellbeing. When we inform them about this section of law, they can find no helpful information about it on the US CIS website or internet, and they find no form, procedure or code by which to request this relief.
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Please return this form to: Aparna Bhattacharyya
Email: [email protected]