On October 28, 2000, with bipartisan support, Congress passed the Victims of Trafficking and Violence Prevention Act (“VTVPA”) and the Battered Immigrant Women’s Protection Act (“BIWPA”). Congress’ legislative intent was to encourage victims of certain crimes to report those crimes without fear of repercussions regarding their immigration status in order to aid criminal investigations/prosecutions. The legislation aimed to motivate the victims to support law enforcement efforts in investigating crimes that target immigrant workers. With the passage of this legislation, law enforcement agencies are better suited to serve the victims (immigrants, mostly women and children) of crimes.
The U-Visa offers immigration benefits to the victims of qualifying crimes (list is provided below) who have suffered mental or physical abuse and are currently helping, have previously helped, or are likely to be helpful to the government or law enforcement officials in the investigation or prosecution of a crime. The Department of Homeland Security (“DHS”) has defined “helpful” as when the victims are being supportive and providing assistance upon reasonably requested by the law enforcement agencies.
The U-Visa gives a temporary legal status to the victims of crimes who take advantage of this legislation. In addition, family members of the victims may qualify for a derivative U-Visa based on their relationship to the victims. If certain requirements (listed below) are met, then the victims and their family members with or without U-Visa may adjust their temporary legal status to lawful permanent residence (Green Card) status. All U-Visa applications and petitions related to those applications should be filed at the Vermont Service Center (“VSC”).
The following information taken directly from USCIS is helpful in determining whether an individual qualifies for the U-Visa:
• The applicant is a victim of a qualifying crime.
• The applicant has suffered substantial mental or physical abuse due to being a victim of a crime.
o Substantial mental or physical abuse means harm to the applicant’s body or emotional/psychological well-being. Factors that play an important in determining whether it is substantial mental or physical abuse include, but not limited, severity of crime, nature of the injury, and severity of harm that the applicant has suffered.
• The applicant has information concerning the crime. If the applicant is under the age of 16 or disable, then his/her family members may have the information instead of the applicant.
• The applicant was helpful, is helpful, or is likely to be helpful to law enforcement in the investigation or prosecution of the crime. (If the applicant is under the age of 16 or disable, then his/her family members may assist law enforcement on applicant’s behalf.)
• And the crime occurred in the U.S. or violated the U.S. laws.
• Then the applicant is admissible to the U.S.
o If not, he/she can apply for a waiver using a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.
• Abduction, Abusive Sexual Contact, Blackmail, Sexual Assault, Slave Trade, Stalking, Torture, Trafficking, Witness Tampering, Unlawful Criminal Restraint, Sexual Exploitation, Hostage, Incest, Involuntary Servitude, Kidnapping, Manslaughter, Murder, Obstruction of Justice, Peonage, Perjury, Prostitution, Rape, Domestic Violence, Extortion, False Imprisonment, Female Genital Mutilation, Felonious Assault, Fraud in Foreign Labor Contracting.
• Any similar crime with substantially similar elements.
• Any attempt, conspiracy, or solicitation to commit the aforementioned or similar crimes.
Forms Required to be Submitted When Applying for a U-Visa When Applicant is in the U.S.
• Form I-918, Petition for Nonimmigrant Status.
• Form I-918, Supplement B, U Nonimmigrant Status Certification. (This form must be signed by the law enforcement or government officials stating that qualifying crime occurred and that a victim was helpful, is helpful, or likely to be helpful in the investigation or prosecution of a crime.)
• If the applicant is inadmissible, then he/she must file a Form I-192, Application for Advance Permission to Enter as Nonimmigrant, requesting a waiver of the inadmissibility;
• Personal statement explaining the crime of which the applicant became a victim;
• And evidence establishing each eligibility requirement – use the applicable Humanitarian Benefits Based Forms.
Applying for U-Visa when the Applicant is Outside of the U.S.
• File all the above-mentioned forms for U-Visa with the VSC;
• After filing with the VSC, follow the instructions that include taking fingerprints at the nearest U.S. embassy or Consulate;
• If the application is approved, the applicant must go through consular process that includes an interview with a consular officer at the nearest U.S. embassy or Consulate.
Qualifying Family Members
• If the petitioner is under 21, then the following family members may qualify for a derivative U-Visa:U
o Spouse (U-2);
o Unmarried Children under 21 (U-3);
o Parents (U-4); and/or
o Unmarried siblings under 18 (U-5).
• If the petitioner is 21 years or older, then the following family members may qualify for a derivative U-Visa:
o Spouse (U-2); and/or
o Unmarried children under 21 (U-3).
Applying for the Family Members of the Victims
• For family members to be eligible, the applicant must have his/her application for U-Visa approved.
• Family members may also qualify for the U-Visa if they are considered indirect victims of a crime and prove that they meet other U-Visa eligibility requirements (listed above).
• The petitioner must file a Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient. If the petitioner wants, he/she can petition for family members’ U-Visa with his/her U-Visa application.
• Upon granted, U-Visa is valid for 4 years. If the applicant wants to ensure that his/her family members remain eligible for U-Visa, then he/she should extend U-Visa status instead of applying for adjustment of status. However, if the applicant applies for adjustment of status and receives Green Card, then the family members are no longer eligible for a derivative U-Visa, but may be able to apply for permanent residence.
• Extensions are only available in certain/limited circumstances. The following are the examples of certain/limited circumstances:
o Needs based on a request from the law enforcement agencies,
o Needs based on exceptional circumstances, or
o Needs due to delays in consular processing.
• U-Visa is automatically extended if the adjustment of status (Green Card) application is filed and pending with the U.S. Citizenship and Immigration Services (“USCIS”).
Fees to File for U-Visa/U-Visa Extensions
• U-Visa applications and extensions are free. However, an applicant can request a fee waiver by filing a Form I-912, Request for Fee Waiver, if fees are attached with other forms that need to be submitted in support of U-Visa application.
• Congress has capped the availability of U-Visa to 10,000 applications per fiscal year, which means not every application gets approved by the USCIS. But, there is no cap for family members deriving U-Visa status from the petitioner.
• When cap is reached before adjudicating all U-Visa applications, then the USCIS creates a waiting list for any eligible U-Visa applications or derivative U-Visa petitions. Waiting applicants (including family members) will be granted a deferred action, which allows them to apply for work authorization. But, this temporary work permits are only given to the applicants and their family members who are present in the U.S.
• Once U-Visas are available, waiting applicants (including family members) will be granted U-Visa as per the order in which their applications (or petitions) were received by the USCIS.
Green Card – Victims (Applicant)
• Following conditions need to be met for applying:
o Continuous physical presence in the U.S. for least 3 years while on U-Visa status.
o Never unreasonably refused to provide assistance to the law enforcement agencies since received U-Visa.
o Continue to have U-Visa status at the time the applicant applies for adjustment of status.
o Lawfully admitted to the U.S. as applicant with U-Visa status.
o Presence in the U.S. is justified on humanitarian grounds, to ensure family unity or is in the public interest.
• File a Form I-485, Application to Register Permanent Residence or Adjust Status.
• File a Form I-693, Report of Medical Examination and Vaccination Record.
• Other requirements listed in the Form I-485, Supplement E.
Green-Card for Family Members
• Family members who had derivative U-Visas:
o Should file a Form I-485, Application to Register Permanent Residence or Adjust Status.
o Other requirements listed in the Form I-485, Supplement E.
• Family members who never had derivative U-Visas:
o Should meet following conditions:
Must have specific relationship with the applicant at the time of applying for lawful permanent residence; and
Show that it is necessary to get lawful permanent status for avoiding extreme hardship.
o First, the applicant must file a Form I-929, Petition Qualifying Family Member of U-1 Nonimmigrant, at the time same time or after filing his/her Form I-485.
o Form I-929 carries filing fees of $215, so if the petitioner is unable to pay, then he/she may request a fee waiver by filing a Form I-912 or submitting a written request.
o For the Form I-939 to be approved, the applicant’s Form I-485 must be approved. If a Form I-485 is denied, then the Form I-929 will automatically be denied.
o But, if a Form I-929 is approved, then
Family members present in the U.S. may file a Form I-485.
Family members outside of the U.S. should visit the U.S. embassy or consulate to obtain their immigrant visas.
The creation of the U-Visa was a progressive step towards victims of crimes and their families by providing an immigration status that ensures their safety. Demand has outpaced the 10,000 per year cap set for new petitions with over 26,000 filed in just the past year. USCIS has not evaluated any new petitions since 2013 in order to catch up with this ongoing demand for assistance.