U Visas for Crime Victim.

• Introduction: Qualifies for a U visa? - U visa is a non-immigrant visa for crime victims.
• Qualifying Crime: Occurs in U.S. or violates U.S. law.
• Suffering: Substantial physical or mental abuse.
• Information Possession: Must have pertinent information about the crime.
• Helpfulness: Has been, is, or likely to be helpful to law enforcement or the prosecutor.
• Examples: Domestic violence, sexual assault, kidnapping, murder, etc.

Content

The U visa was created to allow qualifying crime victims to remain in the United States legally, and in many cases, it also allows them to eventually apply for permanent residence. But what constitutes a qualifying crime? As the statute states:

“.... (1) U nonimmigrant means an individual who is eligible for such status, except that no fee may be imposed in connection with such status;

(2).... U nonimmigrant status is available only to:

(A) an individual who has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii), and who:

(i) has information pertaining to that trafficking,

(ii) has been, is, or is likely to be helpful to law enforcement or the prosecutor in the investigation or prosecution of that trafficking,

(iii) is eligible for admission to the United States, and

(iv) is continuing to cooperate with law enforcement or the prosecutor (to the extent of the applicant’s ability to do so); or

(B) an individual who has suffered substantial physical or mental abuse as a result of criminal activity, as defined in paragraph (2) of section 101 of the Immigration and Nationality Act (as amended), that occurred in the United States or violates United States law, and who:

(i) has information pertaining to that criminal activity,

(ii) has been, is, or is likely to be helpful to law enforcement or the prosecutor in the investigation or prosecution of that criminal activity,

(iii) is eligible for admission to the United States, and

(iv) is continuing to cooperate with law enforcement or the prosecutor (to the extent of the applicant’s ability to do so).”

How is helpfulness certified when police do not prosecute?

The applicant’s helpfulness is documented through Form I-918, Supplement B, the Certification of Helpfulness. An eligible certifying authority uses this form to attest that the applicant has been, is, or is likely to be helpful in the criminal investigation or prosecution of the qualifying crime. According to the U.S. Citizenship and Immigration Services, certifying authorities include:

• a law enforcement agency, prosecutor, or judge;
• a judge or other official from the United States Department of State, Department of Justice, Department of Homeland Security, Department of Labor, or the Department of Health and Human Services;
• the President of the United States or the Attorney General;
• an eligible federal or state government agency that works with law enforcement to protect victims of human trafficking; and,
• other qualified certifying authorities to be designated by the Secretary of Homeland Security on a case-by-case basis.

The certifying authority’s signature on the Form I-918, Supplement B, does not, by itself, establish the applicant’s eligibility for a U visa. Each U visa applicant must still demonstrate that they have met every requirement in the relevant statute.

The certifying agency retains discretion over whether to sign the Form I-918, Supplement B. If an applicant’s certifying agency refuses to sign the form, that refusal itself does not preclude the applicant from seeking certification from another certifying agency.

The investigation or prosecution of a qualifying crime can involve a number of different aspects, and assisting with any of them can satisfy the U visa’s helpfulness requirement. According to the U.S. Citizenship and Immigration Services, this “Investigation or prosecution refers to the detection or investigation of a qualifying crime or criminal activity, as well as to the prosecution, conviction, or sentencing of the perpetrator of the qualifying crime or criminal activity.”

When can USCIS provide work authorization while the U visa cap delays a decision?

When applying for a U visa, you must understand the annual limits that Congress has established for principal visa applicants. Specifically, Congress has limited principal U visa approvals to 10,000 in any given fiscal year. While this annual cap applies to the primary applicants, it does not apply to derivative U visas for family members. As a result, family members are not counted toward the 10,000-visa cap. Despite the annual cap, there are multiple avenues for U visa applicants to obtain employment authorization while they await the processing of their petitions.

In June 2021, the U.S. Citizenship and Immigration Services (USCIS) began implementing a process known as the “bona fide determination.” Under the bona fide determination process, USCIS reviews an applicant’s U visa petition, and it may grant the applicant deferred action status if it determines that the petition is “bona fide.” While deferred action does not confer lawful immigration status, it generally allows U visa applicants to remain in the United States during the deferred-action period while their petitions are pending final adjudication. Along with granting deferred action status, a bona fide determination may allow an applicant to apply for employment authorization so that they can continue to work in the United States while their petition is processed.

If USCIS approves the applicant’s petition, the applicant then qualifies for a U visa, and they can then apply for employment authorization if they have not already done so. When the U visa is approved, the applicant is then granted lawful status as a nonimmigrant in the United States for four years. Lawful status also enables U visa applicants to work lawfully in the United States, and they can renew their U visa status or apply for lawful permanent resident status if they meet all of the qualifying requirements.

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Could Prior Immigration Problems Block a U Visa or Later Green Card?

Can I Apply for a U Visa If I Have Prior Immigration Problems?

If you have prior immigration problems, such as a previous deportation, an arrest, or other issues that would make you ineligible for a visa, you may still be able to apply for a U visa. However, you must demonstrate that you are eligible for a waiver for your inadmissibility problems. Along with the other required application documents, you can file Form I-192 to request a waiver for any and all inadmissible grounds.

What is the Basis for USCIS’s Waiver Authority in U Visa Cases?

The basis for USCIS’s waiver authority is Section 212(d)(14) of the Immigration and Nationality Act. Section 212(d)(14) states that:

“(14) The Secretary of Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section 1101(a)(15)(U) of this title. The Secretary of Homeland Security, in the Attorney General's discretion, may waive the application of subsection (a) of this section (other than paragraph (3)(E)) in the case of a nonimmigrant described in section 1101(a)(15)(U) of this title, if the Secretary of Homeland Security considers it to be in the public or national interest to do so.ual’s U nonimmigrant status would otherwise be precluded by such ground of inadmissibility.”

Is Every Applicant Entitled to a Waiver for Inadmissibility?

Although Section 212(d)(14) gives USCIS broad waiver authority, it does not necessarily mean that every applicant with an inadmissibility problem is entitled to a waiver. Rather, USCIS has discretionary authority to determine which cases deserve waivers on a case-by-case basis.

How Long is U Status Valid?

The duration of principal U nonimmigrant status is generally four years. During the 4-year period of nonimmigrant status, U visa holders are entitled to work in the U.S., and their status also helps them build familiarity with the customs and culture of life in the U.S.

Does U Status Help You Build Eligibility for a Green Card?

While many U visa recipients will simply leave the country after their four years are up, U visa status also can facilitate the adjustment to lawful permanent resident status. Specifically, when you have continuously held U status for at least three years, you can apply for adjustment of status under section 245(m) of the Immigration and Nationality Act (8 U.S.C. § 1255(m)).

Who Can a U Visa Reach?

Who are the eligible family members who can apply for a derivative U visa?

For individuals at least 21 years of age, spouses and unmarried children under the age of 21 are eligible to apply for a derivative U visa. For those under the age of 21, spouses, children, parents, and unmarried siblings under the age of 18 may all apply for a derivative U visa.

When does an applicant qualify for a derivative U visa?

An applicant’s eligibility to receive a derivative U visa is dependent upon the principal applicant’s age at the time the visa petition is filed.

Can I use the U visa process to shield myself from ICE?

USCIS and ICE are two of several agencies that fall under the umbrella of the Department of Homeland Security (DHS). However, they are separate agencies that fulfill entirely different purposes. USCIS handles U visa applications and has sole jurisdiction over U visa petitions; ICE may separately exercise prosecutorial discretion, including deferred action or a stay of removal.

Will my case remain private if I apply for a U visa?

With certain exceptions, Section 1367 prevents the disclosure of information about U and T visa petitioners and visa recipients by government agencies. This statute provides protections that keep applicants’ files and the existence of the petition itself private from the general public and private entities. This also means that, unlike with most other visa types, there is no need to obtain the petitioner’s consent to keep the application confidential.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.