by Lisa Locher
U Nonimmigrant Status, commonly called the “U visa,” was created by Congress in 2000 to provide a mechanism to encourage undocumented immigrants who had been trafficked, exploited, victimized, or abused to “report these crimes to law enforcement and fully participate in the investigation of the crimes” without fear of removal or deportation. Victims of Trafficking and Violence Prevention Act, Pub. L. 106-386, § 1513(a)(1), 114 Stat. 1464, 1533 (2000). Specifically, if a law enforcement agency certifies that a victim has been “helpful” in the investigation or prosecution of a crime, he or she may then petition U.S. Citizenship and Immigration Services (“USCIS”) for a U visa, which, if granted, provides a legal right to live and work in the United States for up to four years. The U visa thus encourages undocumented immigrants to cooperate and participate with law enforcement to address crimes, resulting in safer communities.
U Visa Eligibility
To be eligible for a U visa, a petitioner must satisfy the following four criteria. See generally 8 U.S.C. § 1101(a)(15)(U)(i).
First, she must have suffered substantial mental or physical abuse as a result of being the victim of a “qualifying crime.” “[Q]ualifying crimes” include 28 crimes specified in the Immigration and Nationality Act, such as domestic violence, rape, torture, trafficking, incest, sexual assault, abusive sexual contact, sexual exploitation, felonious assault, and blackmail.
Second, she must possess information concerning the criminal activity.
Third, she must establish that she has been helpful, is being helpful, or is likely to be helpful in the investigation and/or prosecution of the crime. That circumstance must be certified by a law enforcement agency—that is, a federal, state, or local police agency, a prosecutor, or a judge—using USCIS Form I-918 Supplement B. See 8 U.S.C. § 1184(p). Without a completed Supplement B certification, the application cannot proceed.
Finally, the crime must have occurred in the United States.
U Visa Application Process
To apply for a U visa, a petitioner completes and submits a petition (USCIS Form I-918) containing biographical information, a personal statement “describing the facts of the victimization,” and the certified Supplement B. The petitioner typically will also include supporting evidence, such as police reports, medical records, court documents, and letters from therapists or counselors. Most petitioners also submit USCIS Form I-765, which requests authorization to be employed in the United States. And a petitioner may also apply for “derivative” visas to cover certain family members, using USCIS Form I-918 Supplement A. Specifically, if the petitioner is under 21 years of age, she can apply for her spouse, children, parents, and unmarried sibling(s) who are under the age of 18. If the petitioner is over 21, she may only apply for her spouse and children.
If the petitioner believes she has inadmissibility issues—which can include illegal entry into the country, prior removal from the country, or certain health conditions—she must also submit USCIS Form I-192, which requests a waiver of any grounds of inadmissibility that might otherwise prevent her from obtaining legal immigration status. The U visa program is not subject to certain grounds of inadmissibility that typically would apply—specifically that the petitioner is a public charge or is working without proper certification. Moreover, the U visa program allows USCIS to waive many of the remaining grounds of inadmissibility if it is in the “public or national interest to do so.” 8 U.S.C. § 1182(d)(14). Although the I-192 requires a petitioner to disclose damaging information to USCIS, in the past a petitioner was unlikely to face immigration consequences based on that disclosure alone. Pursuant to a 2011 internal agency memorandum, it was the policy of Immigration and Customs Enforcement (“ICE”) to not “initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.” The continuing viability of this policy is now in question due to the current administration’s recent executive orders.
While filing Form I-918 requires no fee, Forms I-192 and I-765 carry non-refundable filing fees totaling approximately $1,300. A petitioner may request a fee waiver using USCIS Form I-912.
Once the petitioner’s application packet containing all of these forms is submitted to USCIS’s Vermont Service Center in St. Albans, Vermont, USCIS will adjudicate the application. Adjudication can be time-consuming: The backlog is approximately three years, meaning that USCIS is currently adjudicating U visa applications filed during the summer of 2014.
If USCIS approves the application, USCIS will grant the petitioner employment authorization in the United States and legal status in the form of a U visa for up to four years. USCIS, however, is authorized to grant only 10,000 U visas annually. If an application is approved, but there are no U visas remaining available for quota reasons, USCIS will place the petitioner on a “deferred action” waitlist and typically will grant work authorization during that waiting period.
At the end of the petitioner’s four years of U visa status, she can apply to adjust her status to lawful permanent resident, i.e., become a “green card” holder.
The U Visa Experience for Petitioners
Despite the U visa program’s many positive aspects for undocumented immigrant victims of crime, the process to seek and obtain one can be frustrating, even harrowing.
Law enforcement agency practices vary widely as to when they will certify a petitioner’s helpfulness. Many agencies will certify the petitioner’s helpfulness during any stage of an investigation or prosecution, which accords with the fact that the U visa program does not require an actual prosecution or conviction to occur. Other agencies, however, will not certify helpfulness until the criminal prosecution is concluded or the defendant defaults, meaning that the time merely to confirm the petitioner’s eligibility for a U visa can drag out for years—to say nothing of the time for USCIS to adjudicate the application and for the victim to await an available U visa.
Additionally, even under the best of circumstances, undocumented immigrants will rarely come forward to report abuse or victimization. Undocumented immigrants often believe abusers’ routine threats to call the police or ICE. Many undocumented immigrants yield to this basic fear and will not disclose crimes to, or cooperate with, the police. The current administration’s actions threaten to chill undocumented immigrants from reporting crimes against them. President Trump’s January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States,” which sets enforcement priorities for removing undocumented immigrants, gives no deference to victims of crimes, unlike the 2011 ICE policy memorandum noted above. DHS Secretary John Kelly’s February 20, 2017 memorandum “Enforcement of the Immigration Laws to Serve the National Interest,” which implements the Executive Order, specifically states that “all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal are hereby rescinded to the extent of the conflict.” It is unclear exactly how this affects the 2011 memorandum that forswears removal proceedings against victims or witnesses of crimes. Lastly, the Administration has called for empowering state and local agencies to perform immigration enforcement functions, which threatens to further discourage undocumented immigrants from reporting crimes, despite the availability of U visa relief.
The uncertainty surrounding once-established policies is in such flux that immigration practitioners can no longer rely on previously established customary practices. Immigration practitioners are now more likely to warn undocumented clients who are prepared to come forward about the potential risks of seeking a U visa and thus drawing the attention of USCIS and ICE.
Lisa Locher currently works in the immigration unit at Greater Boston Legal Services (GBLS) and is a Guberman Fellow in the Legal Studies Department of Brandeis University. Her prior experience includes over 15 years of practicing family law at GBLS. Attorney Locher worked for the Department of Children and Families. Attorney Locher is a graduate of Northeastern University School of Law