VAWA Applicants—and Their Attorneys—Should Be Prepared for a Different Kind of USCIS Interview
Applicants seeking immigration benefits as victims of abuse should be aware of an important change in the way some VAWA cases are being reviewed by U.S. Citizenship and Immigration Services (USCIS).
For many years, a VAWA applicant who appeared for an adjustment-of-status interview could generally expect questions concerning ordinary eligibility issues, such as identity, immigration history, admissibility, and, where relevant, whether the marriage to the U.S. citizen or permanent resident spouse was genuine. Detailed questioning about how the VAWA case itself was developed and prepared was far less common.
That has changed.
Why Is USCIS Looking More Closely at VAWA Cases?
USCIS has publicly expressed concern about fraud and abuse within humanitarian immigration programs, including VAWA. The agency reported a dramatic increase in VAWA filings and has adopted additional measures intended to detect fraudulent applications.
The highly publicized case involving former immigration attorney Alexandra Lozano has brought additional attention to this issue. Former clients have filed lawsuits alleging, among other things, that fraudulent or fabricated claims of abuse were submitted in some immigration cases, sometimes allegedly without the clients' knowledge. Lozano resigned from the Washington State Bar in lieu of discipline, her law firm closed, and she was suspended from practicing before USCIS and the immigration courts. Federal immigration fraud investigators have also been investigating the matter.
These allegations should not be confused with legitimate VAWA cases. VAWA remains an important protection created by Congress for victims of battery and extreme cruelty. Nevertheless, the government's response to suspected fraud is now affecting the manner in which legitimate cases may be examined.
Applicants May Now Face Much More Detailed Questions
We are seeing a level of scrutiny that VAWA applicants and immigration attorneys should be prepared to address.
In addition to the traditional questions concerning the marriage, the alleged abuse, immigration history, and eligibility for permanent residence, applicants may encounter questions concerning how their case was developed, including subjects such as:
- Who referred the applicant to a psychologist, therapist, or other professional;
- When and why the psychological evaluation was obtained;
- How much the applicant paid the attorney or law firm;
- Who at the law firm actually worked with the applicant;
- How the applicant's personal declaration or affidavit was prepared;
- Who asked the applicant questions about the alleged abuse;
- Whether the applicant reviewed the declaration before signing it;
- Whether anyone suggested facts, words, or descriptions of abuse to include in the declaration; and
- Whether the applicant understood the documents that were ultimately submitted to USCIS.
For a person with a legitimate VAWA claim, the increased scrutiny does notmean that the case is fraudulent or that the applicant has done anything wrong. USCIS itself states that selection for a VAWA interview does not necessarily mean that the agency has identified a deficiency in the case.
It does mean that applicants should no longer assume that the interview will be limited to the questions traditionally asked during an adjustment-of-status interview.
A Serious Issue: Attorney-Client Confidentiality
The new line of questioning also creates an important legal issue that applicants and attorneys should recognize: attorney-client privilege.
A person does not surrender the confidentiality of communications with his or her attorney simply because that person applies for an immigration benefit.
The attorney-client privilege generally protects confidential communications between an attorney and client made for the purpose of obtaining or providing legal advice. In simple terms, USCIS may investigate the facts underlying an immigration application, but that does not automatically give the government unrestricted access to confidential conversations between an applicant and his or her lawyer.
There is also an important distinction.
USCIS may legitimately ask factual questions such as whether an applicant signed a declaration, whether the applicant read it, whether the facts contained in it are true, or whether the applicant actually experienced the events described in the application.
That is different from asking an applicant to disclose what the applicant privately told the attorney, what the attorney told the applicant, what legal advice the attorney provided, or the substance of confidential discussions between attorney and client while preparing the case.
Those questions can implicate attorney-client privilege.
Not every question concerning an attorney is privileged. For example, the identity of the attorney, the existence of the attorney-client relationship, the amount paid for representation in many circumstances, or the fact that a referral occurred may not themselves be confidential attorney-client communications. Each question must be evaluated individually.
Applicants therefore should not simply refuse to answer every question concerning their lawyer. Nor should they unknowingly disclose privileged communications because they believe they are required to answer absolutely everything an immigration officer asks.
This is one reason why representation at these interviews has become increasingly important.
Attorneys Should Prepare Differently as Well
Attorneys handling VAWA adjustment cases should prepare clients for the possibility that the interview may extend beyond the underlying relationship and abuse allegations and into the development and preparation of the case itself.
Preparation should include reviewing the actual declaration submitted to USCIS, the supporting evidence, psychological evaluations, prior immigration filings, and any potential inconsistencies in the record.
But preparation should never become coaching.
The objective is not to teach an applicant what to say. The objective is to make certain that the applicant understands his or her own case, recognizes the difference between a factual question and a potentially privileged communication, and is prepared to answer truthfully without guessing or volunteering information that was not requested.
Counsel attending the interview should likewise be prepared to identify a question that may intrude upon attorney-client privilege and, where appropriate, make a clear and professional objection. USCIS regulations recognize an attorney's role during examinations, including the ability to make objections on the record.
Psychological Evaluations Deserve Particular Attention
Psychological reports have long been used as supporting evidence in legitimate VAWA cases. But applicants should understand that USCIS may now examine not only what a report says, but also the circumstances surrounding its creation.
An applicant should therefore be prepared to truthfully explain who referred the applicant to the professional, whether the applicant actually met with that professional, what occurred during the evaluation, and whether the report accurately reflects the applicant's experiences.
The existence of a psychological evaluation does not establish fraud. A referral from an immigration attorney to a qualified mental-health professional does not establish fraud either. The concern arises when evidence was manufactured, dictated, materially altered, or submitted without the applicant understanding what was being represented to the government.
The Most Important Advice: Know What Was Filed in Your Name
Every VAWA applicant should obtain and carefully review a complete copy of everything submitted to USCIS.
Do not assume that because an attorney or law office prepared the case, everything in the filing must be correct.
An applicant signs immigration forms and declarations containing factual representations to the federal government. If something in a previously filed application is inaccurate, exaggerated, unfamiliar, or simply untrue, the applicant should discuss it with qualified immigration counsel before attending an interview rather than discovering the problem while sitting across from a USCIS officer.
Likewise, an applicant who does not recognize a declaration, does not remember providing information contained in it, or believes something was submitted without authorization should seek independent legal advice immediately.
Legitimate VAWA Applicants Should Not Be Discouraged
Increased fraud enforcement should not cause genuine victims of domestic violence or extreme cruelty to abandon relief that Congress specifically created for them.
VAWA remains available to qualifying applicants, and USCIS continues to recognize the special statutory confidentiality protections applicable to VAWA cases.
What has changed is the environment in which these cases are being adjudicated.
The days of assuming that a VAWA-based adjustment interview will involve only routine questions are over.
Applicants should expect careful scrutiny. Attorneys should expect detailed questioning. Both should understand the difference between legitimate examination of the facts and questions that potentially seek disclosure of privileged attorney-client communications.
Most importantly, every applicant should know what was filed, understand the factual basis of the case, answer questions truthfully, and obtain competent legal advice before the interview if there is any concern about how the case was originally prepared.
This blog is provided for general educational purposes and does not constitute legal advice. Immigration cases are highly fact-specific, and individuals with questions concerning a pending VAWA petition or adjustment application should consult qualified immigration counsel.