Chapter 27 Getting a U Visa as a Crime Victim Assisting Law Enforcement

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 27 Getting a U Visa as a Crime Victim Assisting Law Enforcement

A. Are You Eligible for a U Visa?

1. What Crimes Qualify Their Victims for a U Visa
2. When Indirect Victims May Be Eligible for U Status
3. Requirement That You Suffered Substantial Abuse
4. Requirement That You Are Helping Law Enforcement
5. Available Waiver If You Are Inadmissible
6. Qualifying Family Members May Receive Derivative U Visas

B. How to Apply for a U Visa

1. Filling Out Form I-918 Petition for U Visa
2. Obtaining a Certification of Helpfulness
3. Preparing Documents to Support Your U Visa Petition
4. Filling Out Form I-765 (If You Have Family Members Who Want to Work in the U.S.)
5. Submitting Your U Visa Petition to USCIS
6. Your Status While a U Visa Is Pending
7. Deferred Action
8. Attending a U Visa Interview

C. Will You Be Eligible for a Green Card After Your U Visa?

1. Continuous U.S. Physical Presence of at Least Three Years
2. Continued Cooperation With Law Enforcement
3. U.S. Residence Justified on Humanitarian, Family Unity, or Public Interest Grounds
4. Immediate Relatives May Also Apply for Green Cards
5. Submitting Adjustment of Status Application
6. What Happens After Submitting Adjustment of Status Application

The Victims of Trafficking and Violence Protection Act of 2000 authorized a new visa for immigrant victims of serious crimes, called the "U" visa. The legislation was a response to rising public safety concerns, and the idea that foreign victims of crimes in the U.S. should be allowed to remain here so as to provide law enforcement officials with information that helps apprehend and prosecute criminal offenders. The U visa offers temporary legal status to crime victims. However, obtaining a U visa is a lengthy and complicated process, which can be risky for the applicant.

If approved for a U visa, you will be granted legal status in the U.S. for up to four years (which may be extended in "exceptional circumstances"). After holding U status for three years, you might be able to adjust status (apply for a green card).

As with all U.S. visas, you need to take several steps to prove that you qualify. It is not enough to simply claim that you have been a victim of a serious crime. Most notably, you will need to obtain a "certificate of helpfulness" from a qualifying law enforcement agency and prove that you suffered mental or physical abuse by the U.S. criminal perpetrator.

One final note: We will refer to the "U visa" throughout this chapter. However, only applicants who come from outside the U.S. will, in literal terms, receive a U visa in their passport. (A visa is an entry document.) Applicants from within the U.S. will technically receive "U status."

Other Temporary Visas for Crime Victims and Informants

There are other types of visas potentially available for victims or witnesses of crimes.
The "S" visa program was established to provide criminal informants (and qualified family members) with an avenue through which to maintain nonimmigrant status in the United States in exchange for their cooperation in investigations and prosecutions. There is also a "T" nonimmigrant visa for victims of severe human trafficking. The T visa allows victims to remain in the U.S. to assist federal authorities in the investigation and prosecution of human trafficking cases.
Because these visas are far less commonly used than the U visa, we don't cover them in this book.

A. Are You Eligible for a U Visa?

To qualify for a U visa in the U.S., you must meet the following criteria:

• You must have been a victim of a "qualifying criminal activity," and this crime must have occurred in the U.S. or violated U.S. law. Indirect and bystander victims are also eligible to apply for U visas in rare circumstances.

• In the course of or as a result of this criminal activity, you must have suffered substantial physical or mental abuse.
• You are able to provide useful information about the criminal activity (or if under age 16, your parent, guardian, or "next friend" such as a counselor or social worker can provide this information for you).
• You (or your parent, guardian, or next friend) are cooperating with U.S. law enforcement in order to bring the perpetrator of the crime to justice.
• You are admissible to the U.S. or you are applying for a waiver. Most grounds of inadmissibility are eligible for a waiver. It is up to USCIS's discretion whether it will grant the waiver, however.

1. What Crimes Qualify Their Victims for a U Visa

In a typical U visa case, the crime will have occurred within the United States. In some cases, however, the crime might have violated U.S. laws overseas (such as a human trafficking or kidnapping crime).

Examples of qualifying crimes are:

• Violent crimes: murder, manslaughter, vehicular homicide, robbery, felonious assault (which usually involves the use of a deadly weapon, and can include statutory rape and other offenses), domestic violence, or stalking.
• Enslavement crimes: criminal restraint, kidnapping, abduction, being held hostage, forced labor, slavery, human trafficking, indentured or debt servitude, or false imprisonment.
• Sex crimes: rape, incest, sexual trafficking, sexual assault and abusive sexual contact, prostitution, sexual exploitation, or female genital mutilation.
• Obstruction of justice crimes: perjury, witness tampering, extortion, blackmail, or withholding evidence.
• Fraud in foreign labor contracting: fraudulent or false promises made by an employer to a prospective employee regarding wages, housing, or other employment conditions, or luring someone to the U.S. for a job under false pretenses.

The crime need not have been "completed" to qualify its victims for a U visa. An attempt, solicitation, or conspiracy to commit one of the above-mentioned crimes is enough. For example, obviously a murder victim wouldn't be applying for a U visa. But the victim of attempted murder may qualify for a U visa.

2. When Indirect Victims May Be Eligible for U Status

In limited circumstances, USCIS may grant U status to people who are not the direct victims of crime. The two examples of this are close family members of the direct victim who suffer indirectly, or bystander victims. In either instance, however, indirect victims must meet all other requirements for a U visa, meaning that they:

• have been helpful, are being helpful, or will be helpful in the investigation of the crime suffered substantial harm as a result of the crime, and
• are either admissible to the U.S. or qualify for a waiver of inadmissibility.

The bystander example most often used is that of a pregnant woman who suffers a miscarriage as a result of witnessing a criminal activity.

Certain family members can also apply for U visas as indirect victims, if the primary victim died due to murder or manslaughter or was rendered incompetent or incapacitated and therefore cannot help authorities with the criminal investigation. For crime victims who are age 21 or older, their spouse, as well as their children under 21 years of age, may be considered indirect victims. For victims under age 21, their parents and unmarried siblings under 18 can be considered indirect victims.

Indirect victims still need to establish that they meet the other eligibility requirements for U status, meaning that they:

• have been helpful, are being helpful, or will be helpful in the investigation of the crime
• suffered substantial harm as a result of the crime, and
• are either admissible to the U.S. or qualify for a waiver of inadmissibility.

EXAMPLE: Miguel's daughter Maricela was murdered in the U.S. at age 20. Miguel, from Mexico, had a nervous breakdown soon after hearing the news. He helped the police investigation by providing information about his daughter and the events that happened on the day of the murder. Miguel would qualify as an indirect victim because he is the parent of a deceased victim under 21, suffered harm as a result of the crime, and helped in the investigation.

USCIS generally considers minors to be "incapacitated," and therefore their family members often qualify as indirect victims.

EXAMPLE: Seo-yun, who overstayed a visa from Korea, has a four-year-old daughter, born in the United States. The daughter becomes the victim of child molestation by a nanny. As soon as Seo-yun realized her daughter was being abused, she reported the incident to the police, and assisted with the investigation. She suffered serious emotional harm because of what the daughter went through, especially because she was also the victim of abuse as a child. Because the daughter was born in the U.S., she does not need to apply for immigration relief. Seo-yun therefore could not be a derivative on her U status application. However, she may qualify for U status as an indirect victim, because her daughter was incapacitated (by definition, due to her young age), she helped the investigation, and she suffered harm as a result of the crime.

In both the above examples of indirect victims, the noncitizen would also have to meet the other requirements for eligibility for a U visa, by showing admissibility to the U.S. or qualifying for a waiver of inadmissibility.

3. Requirement That You Suffered Substantial Abuse

It is not enough to merely be the victim of a qualifying crime. You must have...