Congress created specific immigration benefits as part of the Victims of Trafficking and Violence Prevention Act of 2000 known as the U nonimmigrant status or U Visa. The U Visa is for noncitizen victims of certain crimes granted in exchange for cooperating in a police investigation or prosecution of criminal activity. Congress recognized that people with unlawful status or no status can be vulnerable to victimization and may be reluctant to help law enforcement fearing removal from the United States.
The U Visa was designed with the dual purpose of protecting noncitizen victims of serious crimes and promoting cooperation between law enforcement and victims. The U Visa has allowed law enforcement to strengthen its ability to investigate and prosecute serious crimes. It has encouraged victims to report crime agencies by offering temporary legal status. It also offers protection to victims of certain crimes by allowing them to temporarily remain and work with authorization in the U.S. for up to four years. The same benefits are also offered for spouses and unmarried children under the age of 21 years old of the victim.
To be eligible for the U Visa, noncitizen victim must meet the following requirements: (1) the crime must be recognized by U.S law; (2) the victim must have credible information about the criminal activity; (3) the victim must have suffered significant physical or mental abuse as a result of this crime; and (3) the victim must be willing to help law enforcement agencies.
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The crime must be recognized by U.S. law as qualifying for U Visa eligibility.
The individual needs to be a victim of qualifying criminal activity to be eligible for U Visa status. The qualifying criminal activities are listed below:
- Abduction
- Abusive Sexual Contact
- Blackmail
- Extortion
- False Imprisonment
- Felonious Assault
- Female Genital Mutilation
- Fraud in Foreign Labor Contracting
- Hostage
- Incest
- Involuntary Servitude.
- Kidnapping
- Manslaughter
- Murder
- Obstruction of Justice
- Peonage
- Perjury
- Prostitution
- Rape
- Sexual assault
- Sexual exploitation
- Slave trade
- Stalking
- Torture
- Witness Tampering
- Unlawful Criminal Constraint
- Domestic Violence
- Trafficking
A victim may also qualify based on an attempt, conspiracy, or solicitation to commit any of these crimes. A person may be a direct or indirect victim of the crimes listed above to qualify for a U Visa. A direct victim is a person whom the crime was perpetrated against and who suffered direct and proximate harm as a result of the commission of qualifying criminal activity. An indirect victim is a family member of the direct victim. An indirect victim may apply for U-Visa as a primary victim for U Visa purposes, even if the underlying criminal activity was not perpetrated directly upon them.
To qualify as an indirect victim the following two requirements must be met:
- A person must have a qualifying family relationship with the direct victim. If the direct victim is age 21 or older at the time the qualifying crime was committed, then his/her spouse and unmarried children under age 21 may qualify. Otherwise, if the direct victim is under the age of 21 at the time of the qualifying crime and his/her spouse and unmarried children under 21, parents and unmarried siblings under age 18 may qualify.
- The direct victim is unable to assist because he/she is dead due to murder or manslaughter or incompetent or incapacitated for any reason. Thus, preventing the direct victim from providing information regarding the qualifying criminal activity or being helpful in the investigation and prospection of the criminal activity.
USCIS, on a case-by-case basis, may treat bystanders who suffer unusually direct injuries, such as a pregnant bystander who suffers a miscarriage for fright over witnessing a violent crime, as indirect victims.
ILBSG’s experienced attorneys have in-depth knowledge of the U Visa requirements. ILBSG specializes in analyzing circumstances surrounding U-Visa and can provide valuable advice on whether the events leading to the case meet the requirements for U Visa. It is important to consult with an experienced attorney to determine the qualifying criminal activity, therefore ILBG offers consultation for assistance to victims of qualifying criminal activity who may be eligible for U-Visa nonimmigrant status.
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The victim possesses credible reliable information about the criminal activity.
The second requirement to qualify for U Visa is for the victim to have information about the criminal activity. Victims must possess and share with law enforcement specific facts about the qualifying criminal activity to be considered credible and reliable. If the victim was under the age of 16 on the date of the qualifying criminal activity or the victim was incapacitated or incompetent; a parent or guardian may provide information on their behalf.
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Suffered substantial physical or mental abuse as a result of the criminal activity.
Victims must have endured significant physical or mental harm as a result of the crime they experienced for the third requirement. The victim must provide information about any known or observed physical or mental harm or abuse sustained. Doctors’ reports are encouraged if the victim sought medical care to treat their injuries. USCIS has favored police reports as well or any supplemental documentation related to injuries. Keep in mind that USCIS may require additional information before adjudicating the petition.
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The victim was/is being helpful or likely to be helpful to law enforcement, prosecutors, judges, or other officials in the detection investigation, and prosecution of the criminal activity including the conviction or sentencing stages.
Victims seeking a U Visa must provide ongoing assistance and must be willing to assist law enforcement agencies including after reporting the crime. Cooperation is a vital component of the U-Visa application process. The noncitizen applicant must submit a certification from a federal, state, or local law enforcement official who is investigating or prosecuting criminal activity. The certification must state that the noncitizen has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity. The certifying official must complete USCIS Form I-918, Supplement B. Agencies whose law enforcement officials may provide the required certification include those agencies which have criminal investigative jurisdiction in their respective areas of expertise, including, but not limited to, Child Protective Services, the Equal Employment Opportunity Commission, and the Department of Labor. Additionally, any local, state, or federal district attorney’s office or police office, or the state police may provide the certification.
In addition to the above requirements, a noncitizen must be admissible to the United States or receive a waiver of inadmissibility. An individual may be inadmissible for various reasons including health, criminal, security, or other grounds. A noncitizen applying for a U-Visa may file to waive most inadmissibility. Those that can’t be waived are participation in Nazi persecution, genocide, or committing any act of torture or extrajudicial killing. Other inadmissibility such as entering the U.S. without proper documentation and inspection and working without proper work authorization may be waived by filing Form I-192. If an individual entered the United States illegally or if there was a violation committed, applying for a green card may be barred and an individual may be found inadmissible to the United States. Waivers are available for most inadmissibility grounds and allow eligible applicants to request forgiveness for their unlawful presence or other inadmissibility in the United States.
U-Visa offers many benefits to qualifying noncitizens even while the initial application is pending. A U-visa applicant and qualifying family members may receive work authorization and potential eligibility for state public benefits. More importantly, a U-Visa provides a pathway to a green card. However, as a result of Congress capping the number of U-Visa available each fiscal year to 10,000, there are long delays in USCIS processing these petitions. Currently, there are over 300,000 U-Visa petitions waiting to be adjudicated. Thus, noncitizen applicant filing now may have their petition pending for a long time. Even so, most are afforded work authorization and protection from deportation during the pendency of the application.
U-Visa serves as a lifeline for victims who have suffered and empowers them to rebuild their lives with legal status. However, it is crucial to recognize the complexity of this process as the time between the initial filling, review, and final adjudication of the case (approval or denial) can vary due to various factors. Seeking legal counsel is recommended to ensure you have all the required forms. ILBSG can provide guidance to ensure victims meet the necessary qualifications to present a strong case to the USCIS.
If you have any questions or concerns about a U-Visa or any other immigration-related issue, please contact us at ILBSG. We are closely monitoring all immigration-related issues. Our team ensures to guide you through all immigration complications and ensures you get the right legal advice.