U Visas are a type of visa that we have experience processing for some of our clients.
Like any immigration related matter, many questions arise as to what the process involves. Timing, qualifications, and of course the process itself. This article gives explains what the U Visa is and how it works. But before we get to that information, we want to highlight the topic of timing.
Recently, we have noticed that the priority date for some U Visas has been extended way into the future with delays up to four years. Currently, experts are estimating that the government will take about 12 years to catch up on U Visas pending applications. This delay is not new. We noticed it years ago, however based on the latest information, the backlog will continue.
We typically advise not wait on any immigration matter (unless recommended by your attorney). Immigration can often have an unexpected change so, if you qualify for relief, explore your options.
U VISAS (CRIME VICTIMS)
A U-Visa is non-immigrant visa for certain victims of criminal activity in the United States. To qualify for a U visa, the victim has to prove that she/he suffered a direct and proximate harm as a result of the commission of one of the following criminal acts or any similar activities in violation of federal, state, or local criminal laws such as:
- abduction; blackmail; domestic violence; extortion; false imprisonment; felonious assault; female genital mutilation; forced labor o fraud in foreign labor contracting, hostage (being held as a); incest; involuntary servitude; kidnapping; manslaughter; murder; obstruction of justice; peonage; perjury; prostitution; rape; sexual assault or sexual contact (abusive) or sexual exploitation; slave trade; stalking, torture; trafficking; unlawful criminal restraint; witness tampering; or attempt, conspiracy, or solicitation to commit any of these crimes.
- Any “similar activity” refers to criminal offenses in which “the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities. Agencies will also look to see whether the crime involved is within the category of crimes enumerated because they have parallel elements. The above list of specific statutory violations shall not be considered restrictively, but instead a list of general categories of criminal activity.
A direct victim may include a witness to the crime who had a severe reaction such as a miscarriage or heart attack. Indirect victims include family members of the direct victim such as the spouse and children under 21.
If the direct victim was under 21, his or her siblings under 18 and parents as well as spouse and children may qualify as indirect victims. A person may be the victim of witness tampering, obstruction of justice or perjury, including attempt, solicitation or conspiracy to commit one or more of those offenses if he or she has been directly and proximately harmed by the perpetrator of those crimes and the perpetrator committed them as a means to avoid or frustrate efforts to investigate, arrest, prosecute or otherwise bring to justice the perpetrator for other criminal activity or to further the perpetrator’s abuse or exploitation of or undue control over the petitioner.
SUBSTANTIAL PHYSICAL OR MENTAL ABUSE
To qualify for a U-Visa, the person must prove substantial physical or mental abuse, that is, injury or harm to the victim’s physical person, or harm to or impairment of the emotional or psychological soundness of the victim. Factors considered include: the nature of the injury; the severity of the perpetrator’s conduct; the severity of the harm; the duration of the infliction of harm; any permanent or serious harm to appearance, health and physical or mental soundness, and any aggravation of a victim’s preexisting conditions. No single factor is required, and a series of acts may suffice, even where no single act meets the standard.
DOCUMENTATION TO PROVE ABUSE
The evidence to prove the abuse may include reports and affidavits from police, judges, other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. If petitioner has obtained a protective order, he/she should provide it. The applicant may be able to demonstrate the physical and mental abuse in the summing up (aggregate) several events, even if individual ones might not be sufficient.
HELP TO QUALIFYING AGENCY AND AGENCY CERTIFICATION
To qualify for the U-visa, the victim must cooperate with law enforcement agencies in the prosecution of the crime even if no arrest or charges are brought or if the applicant does not testify against the perpetrator. Either the police, the district attorney or the judge must sign a certification affirming that the applicant complied with reasonable requests for assistance.
The certification shall be signed by the certifying official within 6 months of filing the petition and must contain:
- (1) how the person qualifies as a certifying official;
- (2) that the petitioner has been a victim of qualifying criminal activity that the certifying official’s agency is investigating or prosecuting;
- (3) that the petitioner possesses information concerning the activity;
- (4) that the petitioner has been, is being, or is likely to be helpful; and
- (5) that the criminal activity violated U.S. law or occurred in the U.S. or its possessions and territories including but not limited to Indian country or on a military installation.
Alternatively, the applicant may submit an affidavit describing his efforts. The affidavit can be accompanied by court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits of other witnesses or officials.
If the U-Visa applicant refuses to cooperate, USCIS will determine if it was unreasonable under the “totality of the circumstances based on all available affirmative evidence.” It is USCIS’s decision although they may consult with the AG.
USCIS may take into account:
- (i) general law enforcement, prosecutorial, and judicial practices;
- (ii) the kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud;
- (iii) the nature of the request;
- (iv) the nature of the victimization;
- (v) existing guidelines for victims and witness assistance; and
- (vi) specific circumstances of the applicant including fear, severe mental and physical trauma, age and maturity. Also, if the party agrees to cooperate but then declines to do so after obtaining the certification, the law enforcement agency may withdraw or disavow the certification by notifying USCIS
VICTIM CAN REQUEST U-VISA
The applicant does not have to be in the U.S. when he/she completes the application if the crime arose in the U.S.
GROUNDS OF INADMISSIBILITY
Applicants for a U visa/status must be admissible, except public charge. However, most grounds of inadmissibility are waivable by DHS if in the “public or national interest.” A waiver may be granted where the petitioner not only establishes that she was the victim of a qualifying crime, but that she suffered substantial physical or mental abuse in connection with the crime. Inadmissibility is not waived for Nazis, genocide, or torture or extrajudicial killings. If the applicant is inadmissible on criminal or related grounds, USCIS will consider the number and severity of the offenses. In cases involving violent or dangerous crimes or inadmissibility based on security or related grounds, USCIS will only exercise discretion in “extraordinary circumstances.” No appeal from the discretionary denial of the waiver. But an Immigration Judge may independently grant a waiver to waive the predicate inadmissibility for the U visa.
APPROVAL OF U-VISA
- Approval – If approved, an outstanding administrative order of removal, deportation or exclusion, will be deemed cancelled by operation of law as of the date of USCIS’s approval. Orders issued in proceedings may be cancelled by filing with the Immigration Judge (IJ) or the Board of Immigration Appeal (BIA), a motion to reopen and terminate removal proceedings which ICE may agree, as a matter of discretion to overcome time and numerical bars.
- Employment Authorization – Employment is authorized incident to status and USCIS will automatically issue an Employment Authorization Document when U-Visa status is granted. The Secretary may grant work authorization to any alien who has a pending bona fide application for” U status.
- Admission and Duration of Status – Approved for 4 years. Status may be revoked but notice is required unless the U notifies USCIS that she will not seek admission to the U.S. The 4 years may be extended if the certifying official attests that the U1’s presence in the U.S. is necessary to assist in the investigation or prosecution of qualifying criminal activity, or DHS determines that there are exceptional circumstances. USCIS will extend the U beyond the four years where: (i) petitioner’s presence continues to be necessary to assist in the investigation or prosecution of the qualifying criminal activity when submitted with an I‐539 and a newly executed I‐918, Supplement B; or (ii) an AOS is pending under the law. Extension is valid for one year. USCIS has discretion to grant the I‐539 even if the applicant is O/S. A family member’s extension of stay may be granted beyond the expiration of the principal’s U-1 status where the family member is unable to enter the U.S. due to consular delays and extension is necessary to obtain the 3 years needed for AOS.
- Adjustment of Status (AOS) – A U-Visa holder may AOS if: (1) he or she has been physically present in the U.S. for a continuous period of 3 years since being admitted as a U; and (2) the U’s continued presence in the U.S. is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest. Physical presence is broken if the person is outside the U.S. in excess of 90 days or an aggregate of 180 days unless the absence is to assist in an investigation or prosecution, or a person involved in the investigation. Family Members may also adjust status if they comply with the requirements established by law.
This writing is intended as a blog for informational purposes only, and not intended to be legal opinions or counseling. Therefore, the reader must not rely on the information provided herein as such. There is much information, including exemptions and exclusions, regarding U visas that, for the sake of brevity, are not covered in this writing. For further information and/or consultation, you may request an interview with our office.
CAVEAT – CAP FOR U VISAS
The laws provide for 10,000 U-visas per year. Cap on U-1 Status – 10,000 visas/status may be issued annually and the limit only applies to principal aliens. It does not apply to spouses or other dependents. If the 10,000 cap has been reached, U-1 applicants who are approved will be given a Notice of Conditional Approval and will be given deferred action or parole. Given the current substantial backlog, applicants will be placed on a waitlist and given deferred action until USCIS even considers the application. The waiting list at this time is between 50 and 51 months. During the time of deferred action or parole, the grantee awaiting a visa/status will not accrue unlawful presence for purposes of and will be eligible for employment authorization. Actions to compel issuance of backlogged cases because of USCIS delay in issuing regulations have been dismissed.