U Visa Status for Victims of Serious Crime Who Assist Law Enforcement
A noncitizen who has been the victim of a violent or serious crime committed in the United States (or outside the U.S. under certain circumstances) may be eligible for lawful immigration status if he or she helped with the investigation and/or prosecution of the case. The victim also must have experienced substantial physical or mental abuse as a result of the crime. Note, the definition of "victim" includes indirect victims (such as parents and spouses) in some circumstances. Scott Mossman has represented many noncitizens on U nonimmigrant visa petitions.
What Types of Crimes Qualify?
Some of the qualifying crimes include felonious assault, domestic violence, sexual assault and rape, false imprisonment, kidnapping, torture, trafficking, incest, prostitution/sexual exploitation, female genital mutilation, involuntary servitude (which includes work performed under threats of violence, deportation, or other harm), blackmail/extortion, murder, manslaughter, witness tampering, obstruction of justice, or perjury. Attempt, conspiracy, or solicitation to commit any of the above crimes also qualifies under the statute.
Other similar crimes may also qualify, so consult a lawyer for advice. For example, Scott has had success in robbery cases where the suspect used a weapon or inflicted serious bodily harm, since those robberies are essentially felonious assault plus theft.
What Are the Requirements for U Visa Status?
The victim must obtain a certification (I-918, Supplement B) from the law enforcement agency, prosecutor, or judge that affirms the noncitizen was indeed the victim of a qualifying crime in the U.S. (or outside the U.S. under certain circumstances) and that he or she has helped (or likely will help) with the investigation and/or prosecution of the crime. Note that assistance does not require that the offender actually be caught or prosecuted in order for the victim to qualify for U status. The victim further must establish that he or she experienced substantial physical or mental harm as a result of the crime. Finally, the victim must be admissible (eligible for admission) to the U.S. or receive a discretionary waiver of inadmissibility from USCIS.
What if the Crime Happened a Long Time Ago?
USCIS has approved U nonimmigrant status in cases where the qualifying crime occurred years ago, and even where the crime occurred before Congress passed the law creating the U visa. A victim may run into practical difficulties, however, if a substantial length of time has passed since the crime. For example, the police may have destroyed the crime reports documenting the victim's assistance or the hospital may have destroyed records showing treatment for the injuries. If this documentation is not available, sometimes there are other sources of evidence to support a U petition, especially if the crime resulted in a criminal prosecution. In any case, though, the victim should consult with an immigration attorney as soon as possible.
What if I Entered the U.S. Illegally or Have a Criminal History or Other Ground of Inadmissibility?
Many people who apply for a U visa are ineligible for admission under the immigration laws ("inadmissible"), most commonly for entering the U.S. without inspection (EWI). Other common reasons for a person to be found inadmissible include crimes of moral turpitude, drug crimes or use, past misrepresentation to an immigration official, false claims to U.S. citizenship, a prior order of removal, etc. Fortunately, a discretionary waiver (I-192) exists to forgive almost all of the grounds of inadmissibility.
To obtain a waiver, the victim must show that admission would be in the public or national interest. This is a flexible standard that balances the reasons for admission against the negative factors in the noncitizen's history. For example, the waiver is easy to obtain if the only negative factor is entry without inspection. On the other hand, a very high level of hardship and positive discretionary factors may be required for a history of committing crimes involving drugs or violence. Consult a lawyer to determine whether you are inadmissible and to evaluate your chances for obtaining a waiver.
What Family Members May Benefit from an Approved I-918?
The victim's spouse and children (under the age of 21 at the time of filing and unmarried) may obtain derivative U status if the victim files an I-918A for them. If the victim is under 21 years of age, then he or she may also include his or her parents and brothers and sisters (under age 18) as derivative beneficiaries.
What Forms Are Used?
The form used to request U nonimmigrant status (a U visa) is Form I-918, Petition for U Nonimmigrant Status. The victim must also submit a Form I-918, Supplement B (the law enforcement certification), as well as Form I-918, Supplement A for any derivative family members. If the victim (or a family member) is inadmissible, then he or she must also submit Form I-192, Application for Advance Permission to Enter as a Non-Immigrant.
How Long Does the Process Take?
Unfortunately, the U visa petition process takes far longer now than when the U visa regulations first came out. The delay is due to the fact that USCIS can approve only 10,000 U petitions per fiscal year. It receives many more approvable petitions than that per year and the backlog continues to grow. For petitions that appear to be approvable, USCIS may put the petitioner on a waiting list and grant deferred action status to the petitioner and any eligible derivative spouse, child, parent, or sibling. Deferred action status is temporary protection from removal and it also permits the recipient to apply for employment authorization.
What if I Need to Leave the U.S. After Approval?
Although many people refer to the status as a "U visa," USCIS approval of an I-918 does not automatically result in a visa stamp (visa foil) in the victim's passport that can be used for travel. A victim outside of the U.S. at the time of approval of the petition would need to apply for a visa to actually enter the U.S. Most petitioners, however, are inside the U.S. at the time of approval and thus do not receive a visa. That means they need to apply for and obtain a U visa to return to the U.S. if they depart.
The process to obtain a U visa in the passport is complicated and time consuming--especially if the departure triggers a new ground of inadmissibility for past unlawful presence. In some cases, administrative processing may also delay the visa for weeks or even months. Therefore, a U nonimmigrant without a visa should coordinate with his or her attorney before leaving the U.S. This is critical because a U nonimmigrant generally may not remain outside the U.S. for any single period of more than 90 days without breaking the 3 years of continuous physical presence required to later obtain permanent resident status–even if the person is outside the U.S. for more than 90 days only due to delays in getting the visa.
How Do I Change from a U Visa to Lawful Permanent Resident Status?
A person with U visa status who has been continuously physically present for at least three years in that status may apply to adjust status to lawful permanent resident status (a green card) if he or she has not unreasonably refused to cooperate in the qualifying criminal investigation or prosecution. The applicant must submit a Form I-485 and supporting documents to adjust status. Note that criminal convictions or other unlawful conduct, especially if it occurs after approval of U status, may result in denial of adjustment.
The continuous physical presence required for adjustment to permanent residence is broken by any single absence of more than 90 days or an aggregate total of absences exceeding 180 days, unless the applicant has obtained a certification from the investigating or prosecuting agency that the absences were necessary for the investigation or prosecution or were otherwise justified. Once a U nonimmigrant breaks physical presence, the general rule is that he or she must reapply for, and obtain, U status to start the three years again.