Victims of Criminal Activity: U Visas for Nonimmigrant Status
Lal Varghese, Attorney at Law, Dallas
Individuals and their families may fall victim to many types of crime in the U.S. These crimes include: rape, murder, manslaughter, domestic violence, sexual assault, human trafficking and many others. The U. S. Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. Even though the law was enacted about 10 years, so many victims of criminal activity is aware of this law. The purpose of this article is to introduce the victims of criminal activity to the provisions of this ten year old law. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.
You may be eligible for a U nonimmigrant visa if:
• You are the victim of qualifying criminal activity.
• You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
• You have information about the criminal activity. If you are 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 your behalf.
• You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are 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 your behalf.
• The crime occurred in the United States or violated U.S. laws.
• You are admissible to the United States. If you are not admissible, you may apply for a waiver from such inadmissibility.
The qualifying criminal activities include the following: Abduction, abusive sexual content, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint and other related crimes. In order to receive the U Non Immigrant Visa status, the victim of crime must file a petition for a U nonimmigrant status must submit the forms prescribed in this behalf. Your petition must supported by a Non Immigrant Status Certificate by a law enforcement official confirms that you were or will likely be helpful in the prosecution of the case. In addition to the above, you must submit a personal statement describing the criminal activity of which you were a victim, and also evidence to establish each eligibility requirement.
Certain qualifying family members are eligible for a derivative U visa. If the victim is under 21 years of age, you may petition on behalf of your spouse, children, parents and unmarried siblings under the age of 18 years. If you are 21 years of age or older, you may apply only on behalf of your spouse and children. To petition for a qualified family member, you must file a Petition for Immediate Family Member of U-1 Recipient, at the same time as your application or at a later time. The U visa will not give you permanent resident status for which you must apply for permanent residency (a green card) for yourself or a qualifying family member by following the provisions defined in that behalf.
There is no fee for applying for U visa since the program involves the well being of petitioners and USCIS' decision to waive the petition fee reflects the humanitarian purposes of the law. Petitioners for a U nonimmigrant status are entitled to request a fee waiver of any form associated with the filing for the U nonimmigrant status. The certifying agencies include Federal, State or local law enforcement agencies, prosecutors, judges or other authority that investigates or prosecutes criminal activity. Other agencies such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor also qualify as certifying agencies since they have criminal investigative jurisdiction within their respective areas of expertise.
Once your petition is approved the U nonimmigrant status will be valid for four years. However, extensions are available upon certification by a certifying agency that the foreign national's presence in the United States is required to assist in the investigation or prosecution of the qualifying criminal activity. USCIS has determined that the legal framework for U nonimmigrant status permits foreign national victims of criminal activity to petition for such status either inside or outside the United States. USCIS may grant no more than 10,000 U-1 nonimmigrant visas in any given fiscal year (October 1 through September 30). This does not apply to derivative family members such as spouses, children or other qualifying family members who are accompanying or following to join the principal foreign national victim. If the cap is reached in any fiscal year before all petitions are adjudicated, USCIS will create a waiting list that will provide a mechanism by which victims cooperating with law enforcement agencies can stabilize their immigration status. Further, U nonimmigrant visa petitioners assigned to the waiting list will be given deferred action or parole while they are on the waiting list. This means they will be eligible to apply for employment authorization or travel until their petitions can be adjudicated after the start of the following fiscal year. Family members who accompany the petitioner can, under certain circumstances obtain a U nonimmigrant derivative visa.
The individual must have been physically present in the United for a continuous period of at least three years since the date of admission as a U nonimmigrant, the individual must not have unreasonably refused to provide assistance to law enforcement since receiving a U nonimmigrant visa, the certifying agency must determine that the individual's continued presence in the country is justified on humanitarian grounds to ensure continuation of a cohesive family, or is otherwise in the national or public interest. There are two ways family members of a U nonimmigrant visa holder can apply for a green card. First, family members who hold a derivative U nonimmigrant visa themselves may be eligible for a green card. Second, certain family members who have never held a derivative U nonimmigrant visa may be eligible for a green card.
The law allows USCIS to extend these benefits to spouses, children, and parents based upon their relationship to the principal U ("U-1") nonimmigrant if:
• The qualifying family member was never admitted to the United States in U nonimmigrant status, and
• It is established that either the family member or the U-1 principal applicant would suffer extreme hardship if the qualifying family member is not allowed to remain in or be admitted to the United States.
Family members with derivative U nonimmigrant visas may apply for green cards if the U-1 has met the eligibility requirements for permanent residence and the U-1’s application for adjustment of status was approved, is currently pending, or is filed at the same time. To apply for a green card, qualifying family members with a derivative U nonimmigrant status must file a Form I-485, Application to Register Permanent Residence or Adjust Status.
To apply for permanent residence for family members who have never held a derivative U nonimmigrant visa, the U-1 status holder must file an immigrant petition for qualifying family member of a U-1 nonimmigrant, concurrently or subsequent to filing their application for adjustment of status in United States. If the petition is approved, qualifying family members in the United States may file application for adjustment of status if they are in United States. If they are not in United States, they should apply for immigrant visas at the U.S. embassy or consulate of their country to obtain their immigrant visas.
It should be remembered that the crime must have occurred while the victim is in United States. If the crime has occurred while the victim was outside United States, such crimes must have violated the U. S laws. In order to apply for U visa, the victim need not be present in United States. But the petition must be filed with the USCIS in United States. If you believe that you are victim of crime, you must contact an experienced immigration attorney, who is a member of the American Immigration Lawyers’ Association for reviewing the case and for representing you before the USCIS.
Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You may visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com for more information about other related immigration matters.