U Visa: A Brief Overview
Thursday, March 2nd, 2017
What is the U visa?
The U visa was created with bipartisan support under the reauthorization of the Violence Against Women Act (VAWA) in 2000 in order to protect immigrant victims of certain serious crimes and encourage them to report these crimes and assist in the investigation and prosecution, regardless of their immigration status.
Who can apply for a U visa?
Victims of qualifying crimes can apply for a U visa if they are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or are likely to be helpful in the investigation or prosecution of criminal activity. In order to apply for a U visa, certification is required from a law enforcement or investigative agency attesting to the victim’s helpfulness in the investigation or prosecution of a qualifying crime.
What are the benefits of a U visa?
The U visa provides eligible victims with nonimmigrant status for a four year period in order to temporarily remain in the United States. A U-visa recipient is also eligible for work authorization. If certain conditions are met, a U visa recipient may be eligible to adjust their status to lawful permanent resident (“green card”) after three years. Additionally, certain immediate family members of U visa recipients may also be eligible to live and work in the United States as derivative U visa recipients based on their relationship with the principal recipient.
Which crimes are designated as qualifying crimes for the purpose of applying for a U visa?
|Incest||Trafficking||Unlawful Criminal Restraint|
|Abusive Sexual Contact||False Imprisonment||Being Held Hostage|
|Prostitution||Murder||Obstruction of Justice|
|Sexual Exploitation||Felonious Assault||Peonage|
|Female Genital Mutilation||Witness Tampering||Perjury|
|Involuntary Servitude||Slave Trade||Other Related Crimesii|
What are the Eligibility Requirements to Apply for the U visa?
An individual may be eligible for a U visa if she/he:
- is the victim of a qualifying crime designated above;
- has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;
- has information about the criminal activity. (If under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on the individual’s behalf);
- was helpful, is being helpful, or is likely to be helpful to law enforcement in the investigation or prosecution of the crime. (If under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on behalf of the individual;
- obtains the required law enforcement certification (Form I-918B) attesting to their helpfulness in the investigation or prosecution of a crime;
- is the victim of a crime that occurred in the United States or violated U.S. laws; and
- is admissible to the United States. (If not admissible, an individual may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant)
To apply for the U visa, does the victim need to be related to the perpetrator and is the immigration status of the perpetrator relevant?
No. In order to be eligible for a U visa the victim does not need to be related to the perpetrator of the crime, and the perpetrator does not need to have lawful immigration status. (Note: This is different than the VAWA Self-Petition which is limited to immigrant victims who are married to an abusive spouse who must be a U.S. Citizen or Lawful Permanent Resident).
If the victim is a child, can the immigrant parent apply for a U visa as the principal applicant?
Parents of a child victim may play an important role in detecting and reporting crimes, providing information, and assisting law enforcement in the investigation or prosecution of a qualifying crime committed against their child. As a result, an immigrant parent can apply to be recognized as an “indirect victim” if the principal victim is a child under 21 years of age and is incompetent or incapacitated to provide assistance to law enforcement in the investigation or prosecution of the crime committed against the child. Likewise, a parent can apply as an “indirect victim” if the child is deceased due to murder or manslaughter. The immigration status of the victim child is not relevant in determining eligibility of the parent.
What agencies can sign the law enforcement certification (Form I-918B)?
A federal, state, or local law enforcement agency, prosecutor, judge, or other authority that has the responsibility for the investigation or prosecution of a qualifying crime or criminal activity is eligible to sign Form I-918B. This includes agencies with criminal investigative jurisdiction in their respective areas of expertise including, but not limited to, Child and Adult Protective Services, the Equal Employment Opportunity Commission, and Federal and State Departments of Laboriii.
The person who can provide certification must be the head of the certifying agency, or any person in a supervisory role that has been specifically designated by the head of the certifying agency, or a federal, state or local judge.
By signing a certification, the law enforcement agency attests that the information is true and correct to the best of the certifying official’s knowledge. The law enforcement certification essentially states to USCIS that:
- the petitioner was a victim of a qualifying crime;
- the petitioner has specific knowledge and details of the crime; and
- the petitioner has been, is being, or is likely to be helpful to law enforcement in the detection, investigation, or prosecution of the qualifying crime.
When can the law enforcement certification be issued?
The certification can be issued prior to completing the investigation, even at the very early stages of the investigation into the criminal activity. It can also be issued during the investigation or after the investigation has terminated. A current investigation, the filing of charges, a prosecution, or conviction is not required to sign the law enforcement certification. (For example, when a warrant is issued for the perpetrator but no arrest can be made due to the perpetrator fleeing the jurisdiction). There is no cut-off date for issuing a certification and no statute of limitations for being able to apply for a U visa. However, the law enforcement certification (Form I- 918, Supplement B) must be certified within the six months immediately before the filing of the U visa application.
If a victim obtains a law-enforcement certification, does that mean he/she will automatically receive a U visa?
An individual cannot apply for a U visa without the requisite law enforcement certification (Form I-918B). However, submission of that form does not mean they will automatically receive a U visa since they also need to meet the other eligibility requirements and undergo a thorough background check.
Who determines if the victim suffered “substantial physical or mental abuse?”
USCIS will make the determination as to whether the victim has met the “substantial physical or mental abuse” requirement on a case-by-case basis during its adjudication of the U visa petition based on the totality of the evidence submitted. Certifying law enforcement agencies do not make this determination. However, certifying agencies may, at their discretion, provide any additional information the agency considers relevant regarding injuries or abuse on Form I-918B.
How does a victim of a qualifying crime apply for a U visa?
The application (USCIS Form I-918, Petition for U Nonimmigrant Status) and all relevant documentation is submitted to the Department of Homeland Security (DHS), United States Citizenship and Immigration Service (USCIS), where it is adjudicated by a specially trained VAWA unit based at the Vermont Service Center.
Which immediate family members of a victim may be eligible for U visa derivative status?
When a victim is applying for a U visa, he or she may also apply for admission of immediate family members. In the case of a victim who is 21 years old or older, his or her spouse and unmarried children (under the age of 21) will be eligible for derivative status. In the case of a victim under the age of 21, the victim’s parents, unmarried siblings (under the age of 18), spouse, and children will be eligible for derivative status. The perpetrator of the criminal activity cannot obtain derivative status as a qualifying family member.
Does the U visa applicant/recipient have an ongoing obligation to be helpful in the investigation or prosecution of the crime?
The victim cannot unreasonably refuse to continue cooperating with law enforcement; otherwise the law enforcement agency can notify USCIS and withdraw its certification. Also, to be eligible for lawful permanent residence, the victim has an ongoing responsibility to provide assistance to the investigation or prosecution when reasonably requested.
How many U visas can be granted each year and what happens if the annual cap is reached?
There is an annual of cap of 10,000 U visas for qualified applicants (not counting derivative family members within that cap). If the U visa cap is reached in any fiscal year, any subsequent qualified applicants will be placed on a wait list. USCIS grants deferred action or parole to U visa applicants on the wait list and their qualifying family members (derivatives) until U visas become available at the start of the next fiscal year. USCIS may authorize employment for these wait-listed applicants and qualifying family members.
iiIncludes any similar activity where the elements of the crime are substantially similar. Also includes attempt, conspiracy, or solicitation to commit any of the crimes listed above, and other related crimes. INA § 101(a)(15)(U)(i)(IV); 8 C.F.R. § 214.14(b)(4).
iiiDepartment of Homeland Security (2011). “U Visa Law Enforcement Certification Resource Guide”, p.3.