Victims of Certain Crimes Understanding the U Visa Eligibility and Application Process

By Brian Figeroux, Esq.

The U Visa is a nonimmigrant visa in the United States designed to provide legal status to victims of certain crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement in the investigation or prosecution of the criminal activity. Established by the Victims of Trafficking and Violence Protection Act in 2000, the U Visa aims to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, human trafficking, and other crimes, while offering protection to victims. Read more at www.askthelawyer.us. To read the complete analysis in our publication, click here, and on our immigration blog, click here.

Eligibility Criteria for a U Visa

To qualify for a U Visa, an applicant must meet the following criteria:

1. Victim of a Qualifying Criminal Activity: The individual must have been a victim of one or more qualifying criminal activities, which include, but are not limited to: abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, female genital mutilation, hostage, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, stalking, torture, trafficking, witness tampering, unlawful criminal restraint, and other related crimes. 
2. Suffered Substantial Physical or Mental Abuse: The victim must have endured significant physical or mental abuse as a result of the criminal activity. This can be demonstrated through medical records, psychological evaluations, or affidavits from professionals attesting to the harm suffered.
3. Possesses Information Concerning the Criminal Activity: The applicant must have knowledge of the details surrounding the criminal activity. If the victim is under 16 years of age or incapacitated, a parent, guardian, or next friend may possess the information on their behalf.
4. Helpfulness in Investigation or Prosecution: The individual must have been, currently be, or be likely to be helpful to law enforcement officials in the investigation or prosecution of the crime. This requires obtaining a law enforcement certification confirming the victim’s assistance.
5. Criminal Activity Occurred in the U.S. or Violated U.S. Laws: The qualifying criminal activity must have taken place within the United States or its territories, or violated U.S. laws.
6. Admissibility to the United States: The applicant must be admissible to the U.S. under immigration laws. If deemed inadmissible, the individual may apply for a waiver using Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

Step-by-Step Application Process for a U Visa

Applying for a U Visa involves several critical steps:

1. Obtain Law Enforcement Certification (Form I-918, Supplement B): Secure a certification from a law enforcement agency, prosecutor, judge, or other authority responsible for investigating or prosecuting the qualifying criminal activity. This certification confirms that the applicant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution. 
2. Complete Form I-918, Petition for U Nonimmigrant Status: Accurately fill out Form I-918, providing detailed information about the applicant, the criminal activity, and the assistance provided to law enforcement. If applying for qualifying family members, complete Form I-918, Supplement A for each individual. 
3. Prepare a Personal Statement: Write a detailed account describing the criminal activity, the harm suffered, and the assistance provided to law enforcement. This personal statement is a crucial component of the application, offering insight into the victim’s experience.
4. Gather Supporting Documentation: Collect evidence to substantiate the claims, including medical records, police reports, court documents, photographs of injuries, psychological evaluations, and affidavits from witnesses or professionals familiar with the case.
5. Complete Form I-192, if Necessary: If the applicant is inadmissible to the U.S., complete Form I-192 to request a waiver of inadmissibility. This form allows individuals who are otherwise ineligible to seek permission to enter the U.S.
6. Submit the Application Packet: Compile all forms, personal statements, supporting documents, and the law enforcement certification into a complete application packet. Submit this packet to U.S. Citizenship and Immigration Services (USCIS) for review. It is advisable to retain copies of all documents submitted.
7. Await USCIS Decision: USCIS will review the application, which may take several months or years due to high demand and the annual cap of 10,000 U Visas for principal applicants. During this period, USCIS may issue a Request for Evidence (RFE) if additional information is needed.
8. Receive Bona Fide Determination and Employment Authorization: If USCIS determines that the application is bona fide (made in good faith), the applicant may receive employment authorization, allowing them to work legally in the U.S. while the application is pending. 
9. Approval and Issuance of U Visa: Upon approval, the applicant will be granted U Nonimmigrant Status, valid for four years. Extensions are possible under certain circumstances, such as ongoing law enforcement needs or exceptional circumstances.
10. Apply for Adjustment of Status: After three years of continuous physical presence in the U.S. under U Nonimmigrant Status, the visa holder may be eligible to apply for lawful permanent residence (a Green Card). This requires meeting specific criteria, including continued cooperation with law enforcement and demonstrating that their continued presence is justified on humanitarian grounds, to ensure family unity, or is in the public interest. 

Considerations for Family Members

Certain family members may be eligible for derivative U Visas based on their relationship to the principal applicant:

1. If the Principal Applicant is Under 21: They may petition for their spouse, children, parents, and unmarried

1. Complete Form I-918, Petition for U Nonimmigrant Status:
   • The primary form for applying for a U Visa is Form I-918, which requires detailed information about the applicant, the qualifying criminal activity, and evidence of eligibility.
   • Include personal information, details of the crime, and supporting documentation, such as police reports, medical records, psychological evaluations, and affidavits.

1. Gather Supporting Documentation:
   • Assemble evidence to prove the following:
     • The occurrence of a qualifying criminal activity.
     • The substantial harm suffered due to the crime.
     • Helpfulness to law enforcement.
   • Supporting documents might include:
     • Medical and mental health reports.
     • Law enforcement reports.
     • Affidavits from therapists, doctors, or social workers.

1. File Form I-192, Application for Advance Permission to Enter as a Nonimmigrant (if necessary):
   • If the applicant is inadmissible due to criminal history, prior immigration violations, or other factors, they must file Form I-192 to request a waiver of inadmissibility.
   • This step is critical as the U Visa is unavailable without an approved waiver for inadmissible applicants.

1. Submit the U Visa Application:
   • Send Form I-918, Supplement B (law enforcement certification), and all supporting documents to the U.S. Citizenship and Immigration Services (USCIS) Vermont Service Center.
   • The application is free of charge, but fees may apply for Form I-192 if applicable.

1. Biometric Services Appointment:
   • USCIS will notify the applicant of the need to attend a biometric appointment for fingerprinting and photographing.
   • This step ensures background checks and identity verification.

1. Await USCIS Decision:
   • USCIS reviews the application, including all supporting evidence and law enforcement certification.
   • Processing times can vary, and due to the annual cap of 10,000 U Visas issued to principal applicants, cases may experience delays.
   • If approved, applicants may receive deferred action and work authorization while awaiting an available visa.

1. Receive Work Authorization:
   • Once the application is approved, U Visa recipients are eligible for employment authorization.
   • File Form I-765, Application for Employment Authorization, to obtain a work permit.

1. Apply for Adjustment of Status:
   • After holding U Visa status for three years, recipients may apply for a Green Card (permanent residency) through Form I-485, Application to Register Permanent Residence or Adjust Status.
   • To qualify, recipients must:
     • Continue to cooperate with law enforcement.
     • Reside continuously in the U.S. during their U Visa status.

Additional Considerations

1. Derivative Applicants:
   • Immediate family members of the principal applicant may qualify for U Visa status as derivatives:
     • For adults, qualifying family members include spouses and children.
     • For minors, parents and unmarried siblings under 18 may qualify.
   • Family members require separate applications but depend on the principal applicant’s status.

1. Victim Protections:
   • U Visa applicants benefit from protections such as the confidentiality provision under the Victims of Trafficking and Violence Protection Act, preventing the disclosure of application details to anyone, including abusers or perpetrators.

Challenges in the U Visa Process

1. Annual Cap:
   • Congress has limited the number of U Visas issued annually to 10,000 for principal applicants.
   • Applicants not granted a visa within the cap may be placed on a waiting list, during which they may receive deferred action and work authorization.
2. Lengthy Processing Times:
   • Due to high demand and limited resources, U Visa processing can take several years, leading to uncertainty for applicants.
3. Law Enforcement Certification:
   • Obtaining certification from law enforcement may be challenging, particularly if the agency is reluctant or if the crime occurred long ago.

Conclusion

The U Visa provides a lifeline for victims of crime who seek safety and justice while contributing to law enforcement efforts. Although the process is rigorous and often lengthy, its protections and potential pathway to permanent residency make it a crucial immigration relief option. By addressing challenges such as processing delays and the annual cap, the U.S. government can ensure that this vital program continues to fulfill its purpose.