U-Visa for Crime Victims: Path to Legal Status While Facing Removal.

U Visa for Crime Victims: Path to Legal Status While Facing Removal

Can U status change a removal case into a route to residence?

While not a direct grant of lawful permanent residence, U status can offer a viable path for those who qualify. Once approved for U status, an individual can seek residence after three years of continuous physical presence in the United States. The application process involves demonstrating U-visa eligibility and admissibility or eligibility for a waiver of inadmissibility.

Ultimately, USCIS has the discretion to grant adjustment based on the U-visa pathway. However, the decision to grant permanent residency through this avenue depends on several factors. As a matter of law, USCIS will deny adjustment if there are admissibility issues that are not eligible for a waiver. Furthermore, there are statutory limits on the number of U visas available per year. The government reserves the right to deny individuals based on the availability of visas.

The U-visa pathway is also available to certain accompanying or following-to-join family members as derivative family members. When a foreign national is approved for U status, their spouse and unmarried children under 21 may be eligible for derivative U status, and their parents and unmarried siblings under 18 may be eligible only if the principal victim is under 21. Once granted, this status can lead to a path toward obtaining permanent residence as well.

For those who obtain permanent residence through the U-visa pathway, the ability to petition for further family members is also an option. Under the U-visa-specific family-member process, a U-1 principal may petition for a qualifying spouse or child, subject to the applicable requirements. Additionally, a U-1 principal may petition for a qualifying spouse or child for eligibility for lawful permanent residence, subject to the applicable requirements.

Which criminal activities and victims fall within U-visa rules?

The first step toward securing a U visa is to ensure that the criminal activity that occurred in the United States (or that violates United States law) falls within the scope of the law’s eligibility criteria. While it may not be immediately apparent which types of criminal activity are eligible, the U visa is available for victims of many serious crimes, including (but not limited to):

• Crimes of Sexual Abuse and Domestic Violence, This category encompasses a wide range of crimes. For many U-visa applicants, sexual abuse and domestic violence serve as the qualifying criminal activity.
• Crimes Against Children and Human Trafficking, Human trafficking and other crimes involving children are also considered qualifying criminal activities. This includes kidnapping, forced labor, and other similar offenses.
• Felonies and Other Crimes Against the Person, This is a broad category. While murders, manslaughter, rape, and torture are the most well-known qualifying crimes, this category includes all other serious crimes that qualify the victim to seek adjustment under the U-visa pathway.
• Other Crimes of Violence, Stalking, extortion, blackmail, witness tampering, and other crimes of a similar nature qualify as well. If you or a loved one has been the victim of one of these crimes, you may be able to pursue U status and potentially seek permanent residence.

These examples are only a small sample of the crimes that qualify as qualifying criminal activity under the U-visa pathway. If you or a family member has been a victim of a serious crime, there are many types of immigration relief that are available. Contact an immigration lawyer at Spodek Law Group to find out about your options for seeking U status and fighting removal.

What must a victim prove, and how does certification fit?

The U-visa pathway is available to victims who are eligible (or have the eligibility) to seek a U visa. To be eligible, you or a family member must:

• Have suffered substantial physical or mental abuse as a result of a qualifying crime;
• Possess information about the qualifying crime; and
• Have been helpful, be helpful, or be likely to be helpful to law enforcement in the investigation or prosecution of the qualifying crime.

Helpfulness may include:

• Making reports about the crime to law enforcement agencies;
• Testifying in a criminal trial against the criminal(s) involved;
• Making a statement to prosecutors about the crime;
• Cooperating with law enforcement in other ways.

Depending on the situation, these acts of helpfulness may have occurred before you apply, may occur during your application process, or may be expected to occur in the future.

Is certification always necessary?

If you or your family member has been helpful (or plans to be helpful) to law enforcement, certification is generally required to demonstrate helpfulness. Certification is required even if the qualifying criminal activity does not lead to an investigation or charges. Certification is also necessary for those who have not yet cooperated with law enforcement but have the capacity to do so.

How can law enforcement officers certify a victim’s helpfulness?

Law enforcement officers are encouraged to complete Form I-918 Supplement B: U Nonimmigrant Status Certification. This form is designed to facilitate the certification process. Victims who have been helpful, are helpful, or are likely to be helpful can use this form to attest to their cooperation with law enforcement.

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How does a pending petition affect removal, work authorization, and deferred action?

USCIS has introduced a bona-fide-determination review process for qualifying U-visa petitions. The purpose of this review process is to provide immediate relief to eligible applicants who are facing removal. For those who receive a bona-fide-determination from USCIS, two benefits may be available:

• Deferred Action. If USCIS determines that a U-visa petition is bona fide and warrants a favorable exercise of discretion, USCIS may grant the applicant deferred action. This action is an exercise of prosecutorial discretion, indicating that the government has decided not to pursue removal against the applicant.
• Employment Authorization. If USCIS determines that a U-visa petition is bona fide and warrants a favorable exercise of discretion, USCIS may grant the applicant employment authorization.

However, it is important to keep a few things in mind regarding these benefits:

• A pending petition will not automatically terminate removal proceedings. If you or a loved one are in removal proceedings, the filing of a U-visa petition with USCIS alone is not enough to bring those proceedings to a close. However, for those who receive deferred action based on a bona-fide-determination, enforcement action should not be taken.
• Deferred action does not confer immigration status. Deferred action is a form of prosecutorial discretion by the government, and while it may support employment authorization and defer removal, it does not make you or a family member a lawful permanent resident.
• U-visa petitions can be filed while removal proceedings are pending. If you or a family member are currently at risk of deportation and believe that you may be eligible for a U visa, you should file a petition with USCIS as soon as possible. At Spodek Law Group, we assist with all aspects of the U-visa process, from the initial filing of a petition through the process of seeking permanent resident status under the U-visa pathway.

What delays, waivers, or disqualifiers can prevent the next immigration step?

To qualify for a U visa, applicants must establish admissibility or request a waiver of inadmissibility using Form I-192. In cases where there are multiple grounds of inadmissibility, applicants must provide reasons why each of these grounds should be waived. The U visa is primarily for victims of serious criminal activity, and having a prior criminal record does not necessarily disqualify an applicant. In fact, U visa applicants with substantial criminal histories may still be eligible for U status if they meet the statutory and regulatory criteria. Our immigration attorneys can review all aspects of your case to determine your eligibility for U status and your subsequent path to permanent residence.

Additionally, the number of U visas available each year is capped at 10,000 principal U visas, but visas granted to derivative family members are not counted against the annual cap. If an applicant’s petition has been approved but there are no visas available, the applicant may be placed on a waiting list. Once approved for U status, the applicant may be granted temporary legal presence in the U.S. for up to four years, and the applicant may seek to extend this period if there are compelling reasons, such as ongoing cooperation with law enforcement.

Another requirement for applying for permanent residence is showing that the applicant has not unreasonably refused to provide assistance to law enforcement authorities. This includes participating in the investigation and prosecution of the qualifying crime if requested. U visa holders who have not provided reasonable assistance to law enforcement after obtaining U status may be denied adjustment to permanent resident status.

Lastly, while certain crimes may be considered grounds for inadmissibility, the fact that a crime involves an immigration violation does not invariably disqualify an otherwise eligible U visa applicant. Document fraud and marriage fraud are not, by themselves, qualifying criminal activities for U-visa purposes, although related conduct may qualify if it also constitutes a listed qualifying crime. An immigrant’s prior immigration violations do not always preclude them from being eligible for U status, as long as the statutory requirements are met. We can evaluate your situation on a case-by-case basis to determine if you are eligible for U status.

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