Jan/Feb 2008

What Every Social Worker Should Know About Immigration Law
By Emily Haverkamp
Social Work Today
Vol. 8 No. 1 P. 26

If you haven’t already, chances are you will encounter clients who need help resolving immigration status. Understand the basics and know when to partner with an attorney.

Social workers have played a crucial role in many of the cases I have worked on as an immigration attorney. A social worker is often the first person people talk to about their immigration issues. I have had several cases that would have gone nowhere without the help of dedicated social workers who helped clients gather key evidence, wrote detailed evaluations, or were the primary contact with police officers. For many immigration cases, it is important that a knowledgeable social worker be involved in the process.

What social workers should understand is that immigration law is complex and can be unforgiving; decisions based on incomplete information can have irreparable results. Because of this, when an immigration law solution is needed for a client, an immigration law specialist should be consulted.

A comprehensive summary of immigration law would require a lengthy book, but there are several provisions every social worker should know. They apply to special immigrant juveniles, adoption and immigration status, Violence Against Women Act self-petitions, and U visa petitions for immigrant victims of certain crimes.

Special Immigrant Juveniles
Juan, a 16-year-old Honduran, is in foster care. He came to the United States illegally with his parents when he was 5. His parents disappeared when he was 11, and he is now in the state foster care system. What could a social worker do to help get him immigration status so he can remain in the United States legally?

Juan may be able to apply for a green card as a special immigrant juvenile (SIJ), but he must prove the following:

• A juvenile court declared him to be dependent and eligible for long-term foster care or committed him to the custody of a state agency due to abuse, neglect, or abandonment.

• A judge determined that it would not be in Juan’s best interest to return to Honduras.

For Juan to be deemed eligible for long-term foster care, he must be under the age of 18, and a juvenile court must determine that family reunification is no longer viable. The social worker in these cases can serve as a liaison between the family court and the immigration attorney. Family court issues must be handled before the immigration case can proceed, and the social worker can play a big part in getting them resolved.

Adoption and Immigration Status
Sandra is a 15-year-old from Mexico. Her mother, who was her sole caregiver, was deported. Sandra’s aunt is a U.S. citizen and wants to adopt Sandra. Sandra may be able to apply for a green card if she is adopted.

There are two methods of adoption for immigration purposes. One is for a child who is an orphan, and the other is for a child who is eligible for private adoption.

For a child to be considered an orphan, he or she must be the following:

• a ward of the state;

• under the age of 16;

• an orphan through death, disappearance, abandonment, or loss of both parents; and

• adopted abroad or coming to the United States for adoption.

Sandra would not qualify as an orphan because her mother brought Sandra to the United States to live with her. It must be determined if Sandra could apply for a green card through private adoption, which would be possible if the following conditions are met:

• She is legally adopted before she is 16 years old.

• Her aunt can prove that it is a bona fide adoption, meaning that her aunt is her actual caregiver and the adoption was not entered into solely for immigration purposes.

• Sandra lives in the custody of her aunt for two years.

While Sandra may be legally adopted under state law at any point, it can only affect her immigration status if she is adopted before she turns 16; otherwise, she cannot apply for a green card through the adoption. Also, if it is proven that her aunt is not acting in the capacity of adoptive mother and Sandra’s mother is the actual decision maker, the adoption would not be considered bona fide.

Applying for a green card based on private adoption can be difficult and time-consuming because of the two-year physical custody requirement. The best option for Sandra may instead be to have her declared eligible for long-term foster care with her aunt acting as a foster parent and then try to apply as an SIJ. Her aunt may still care for her while she awaits SIJ status and eventually adopt her.

Violence Against Women Act Self-Petitions
Mary, originally from India, is married to a U.S. citizen. Her husband has hit her several times and has been cruel and controlling. Mary came to the United States on a fiancé visa, but her husband never completed the green card process for her as promised. Mary reports that it would be a shaming experience for her to return to India following a divorce, and she wants to start a new life in the United States. She says that she was told she can only apply for a green card if she and her husband apply together.

Mary may be able to apply for her green card without her husband through the Violence Against Women Act (VAWA). Mary could potentially file a VAWA self-petition if the following is true:

• She entered into a good faith marriage to a U.S. citizen or permanent resident.

• She has good moral character.

• She is a victim of abuse or extreme mental cruelty.

A social worker can play a key role in helping with a VAWA self-petition. For instance, if Mary becomes distraught and leaves home with almost nothing, the social worker can help guide her through the process of gathering evidence during that stressful time.

Mary must find a copy of her husband’s U.S. passport or birth certificate to show that he is in fact a U.S. citizen. She needs to prove that her marriage was in good faith and will need evidence such as joint bills, cards, letters, photographs, or other items. To show good moral character, it is important to know if Mary has ever been to court and under what circumstances.

Finally, Mary must prove that she is a victim of abuse or extreme mental cruelty. Social workers can assist by helping victims collect records. Examples of evidence of abuse can include hospital records, shelter records, or an evaluation by a licensed clinical social worker, psychologist, or other licensed therapist. Shelter workers may be reluctant to release records, even with a confidentiality agreement. It is important that the attorney in the case obtain access to shelter records, as they can be key for proving abuse.

U Visa for Crime Victims
Maria is an 18-year-old from El Salvador. Maria came to the United States to live with her U.S. citizen aunt and uncle when she was 13. Her uncle, who was her legal guardian, promised that he would adopt her but never did. When Maria was 18, she told a school counselor that her uncle had sexually abused her since she was 15. She is now living with another aunt who has no immigration status.

Maria does not qualify as an SIJ because she is no longer a juvenile and not eligible for long-term foster care. Her abusive uncle never legally adopted her, so she cannot apply for a green card through adoption. She was never married to her abuser, so she cannot apply for a green card under VAWA.

Maria’s best option would be to apply for a U Visa, which is a visa for victims of certain crimes. Maria could apply for a U visa if she proves the following:

• She is a victim of abusive sexual conduct, incest, domestic violence, rape, sexual assault, or another crime listed under the statute that is a crime under local, state, or federal law according to the Immigration and Nationality Act.

• She is being helpful, has been helpful, or will be helpful to law enforcement agents in investigating the crime.

Maria appears to be a victim of abusive sexual conduct. If she has not spoken to the police, she must do so in order to qualify for a U Visa. The investigating police officer or other law enforcement official must then certify that Maria was helpful to the investigation.

Social workers can play a major role in the U Visa application process, especially since police officers can sometimes be skeptical of signing the U Visa certifications. Social workers can educate and advocate on behalf of the client for the officer to sign the certification; without it, there is no chance for a successful U Visa petition.

As with VAWA self-petitions, a social worker can help Maria gather the evidence for her case. Shelter files, clinical evaluations, police reports, and other evidence can be difficult for an immigrant crime victim to get on her own. A social worker can assist the client to obtain the evidence needed to prove that she was a victim, thereby assisting the attorney in proving the case.

Working With Immigration Attorneys
Social workers should have an immigration attorney on their list of important contacts. These contacts can come from local nonprofits or private attorneys. There may be a private attorney who takes certain cases on a pro bono or reduced fee basis.

Social workers can also be valuable contacts for immigration attorneys. Licensed clinical social workers can write detailed evaluations on the psychological state of victims of domestic violence or crime, which can be key pieces of evidence. As mentioned above, social workers can often be the most effective professionals in approaching police officers to obtain certifications for crime victims.

Immigration petitions must be precise and should be filed only by those experienced in the field. Social workers who recognize potential cases and contact an immigration professional provide an invaluable service for their clients.

Social workers and immigration attorneys often work as partners in cases. Social workers are well positioned to identify issues, refer questions when help is needed, and assist in gathering crucial evidence. From my experience, working on our pro bono cases would be virtually impossible without help from social workers.

— Emily Haverkamp is an immigration lawyer at the Mdivani Law Firm, LLC, in Overland Park, KS (www.uslegalimmigration.com). She specializes in family and business immigration, and her pro bono work includes legal services for immigrant victims of domestic violence.

Immigration Terminology Quick Reference

• Green card and U.S. lawful permanent residence: A green card is the common term for the card showing U.S. lawful permanent residence. A legal permanent resident (LPR) can legally remain in the United States and has many of the same rights and responsibilities as a U.S. citizen. After three to five years in LPR status, he or she may be able to apply for U.S. citizenship.

• Legal vs. illegal: A person from another country is here legally when he or she has permission to be in the country, which is often in the form of a visa. Examples of someone who is here legally include those studying on a student visa or a person who came illegally but was granted asylum or refugee status.

There can be some gray areas. For instance, a prima facie determination can be made in a VAWA self-petition, meaning that the victim’s petition was valid on its face. While she may still have no legal status, she is treated in many ways as having legal status and may remain in the country legally. When there is no permission from the government to be in the United States, then the person is considered illegal or undocumented.

• Special immigrant juvenile (SIJ): SIJs are juveniles in long-term foster care or committed to a state agency due to abuse, neglect, or abandonment, and a judge has determined that it is not in the juvenile’s best interest to return to his or her home country. SIJs may be able to apply for a green card.

• Violence Against Women Act self-petition (VAWA): VAWA self-petitions allow immigrant victims of domestic violence to apply for green cards without their abusive spouses petitioning for them.

• U Visas: U Visas are intended to give temporary legal status to victims of certain crimes, including abusive sexual conduct, domestic violence, rape, incest, sexual assault, or other crimes under state, local, or federal law. The victim must be helpful to law enforcement agents in order to be eligible for a U Visa.

— EH