U VISA STATUS FOR IMMIGRANT CRIME VICTIMS
By Barbara Ann Williams, Esq.
The U visa process has evolved significantly over the last decade and a half during which our office has aided numerous victims of various crimes and their loved ones obtain U visa status. Victims of a qualifying crime who suffered substantial harm and were helpful to law enforcement may qualify for U visa status for themselves and their families. The U visa is the gold standard of visas because it is extremely forgiving. This is because whether someone entered the US without papers, or is no longer in legal status, they can still qualify for a U visa. Even those in removal proceedings, those who have already been deported, or have a criminal record may still qualify for a U visa if they meet the above criteria.
Over the years, USCIS has narrowed the types of crimes that can qualify for U visa status. These crimes are considered serious crimes such as armed robbery, kidnapping, slavery, rape, and attempted murder, as listed under 8 CFR 214.14(a)(9). For a complete list of qualifying crimes, go here: https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-criminal-activity-u-nonimmigrant-status
Substantial Harm: In addition to showing that the applicant is a victim of one of the listed crimes, they must also demonstrate they suffered substantial harm. Substantial harm can be either physical injury or psychological injury such as PTSD. Providing proof of injury is required to qualify. Any physical injuries including any long-term impairment suffered as a result of the crime should be documented through medical records and include any treatment protocols such as pain medication, or physical therapy if proscribed. For those suffering long-term psychological injury, a psychological evaluation done by a qualified professional can help to document the harm and tie it back to the crime.
Helpful to Law Enforcement: Victims who called 911, were interviewed and filed a police report, or who otherwise assisted or are willing to assist the police or law enforcement concerning the crime meet this requirement. However, in order to demonstrate one’s helpfulness, a certified I-918B U Visa Status Certification must be completed and signed by the investigating law enforcement agency. This can be tricky when the victim did not call the police such as in a domestic violence situation where the victim fears retaliation from the abuser, or the crime victim fears contacting the police for fear of being deported. Unfortunately, unless the crime was prosecuted, it can be extremely difficult, if not impossible to get law enforcement to sign off on the I-918B Certification. For those in this situation, contact our office for a consultation to discuss other options.
Within the past several years, many states and counties have adopted legislation to aid crime victims including immigrants crime victims. This is a huge leap forward as many include legislation that encourages or requires law enforcement outright to certify a victim’s helpfulness no matter when the qualifying crime occurred. This is extremely helpful in cases where the qualifying crime took place years, perhaps even decades ago such as we find with many Domestic Violence cases.
Indirect victims: In some cases, even “indirect” victims may qualify for U visa status. For example, the U.S. citizen child who is the victim of a listed crime, whose parents are undocumented, can serve as the basis for U visa status for the parents who would be considered “indirect” victims. In the unfortunate circumstance where a family member was murdered, regardless of their status, their undocumented spouse and minor children could qualify as “indirect” victims upon a showing of substantial harm and that they were helpful to the prosecution.
Once granted, U visa status is valid for four (4) years during which the person is considered in LEGAL status and can work with authorization, obtain a social security number and driver’s license. After 3 years, U visa holders may apply for lawful permanent residency (a green card) as well and be eligible for citizenship after 5 years of permanent residency. This makes the U visa a viable path to US citizenship for many immigrants who would not otherwise qualify.
Visa Backlog and Work Permits: Since only 10,000 U visas are made available, the current backlog is over 10 years. This means if a victim of a crime files a U visa application today, USCIS will not render a decision for 10 years. In prior years, victims had to wait until their U visa was approved before they were granted work authorization. However, recently President Biden signed an order allowing U visa applicants to be granted a work permit upon the issuance of “deferred action” notification. Applicants are encouraged to submit a work authorization application with their U visa applications as well as a Waiver of Inadmissibility if out of status or without status.
Many counties have Victim Assistance programs to aid victims including language assistance, free counseling and in some instances, limited financial assistance with legal fees. These counties typically are also more amenable to signing off on the Certification of Victim’s Helpfulness (Form I-918B) required of a law enforcement agency. Victims should check with their state and local counties for more information on available FREE resources.
Current Posture on Removal Proceedings: For those in removal proceedings who are victims of crimes, many courts no longer entertain administrative closure due to Trump era restrictions that are still in play. Thus, even with a U visa application pending, many judges have taken to denying requests for continuances and administrative closure, instead ordering removal proceedings to continue. If ordered removed, a U visa applicant may still proceed with their application but may have to wait outside the US for a decision. This could mean waiting outside the U.S. for over ten years at current processing times. Once removed, a waiver to re-enter the US may also required.
The above information is general information only and not to be construed as legal advice. Due to the complexity of US immigration law, obtaining proper legal counsel from a qualified US immigration attorney is recommended. Contact us now to schedule your consultation and see how we can assist you obtain legal status.
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