Immigration - Victims of Crimes & Violence - U Visas
The U visa is a nonimmigrant visa for certain victims of qualifying crimes in the U.S. In order to receive a U visa, an applicant needs to generally prove that he or she:
1) was a victim of a qualifying crime in the United States,
2) suffered substantial abuse from the crime,
3) has credible knowledge of the details about the criminal activity, and
4) was helpful, is being helpful, or will likely be helpful to a certifying agency in the investigation or prosecution of the criminal activity.
How many U visas are there?
USCIS only issues 10,000 U visas per fiscal year to individuals who qualify. Each year, the U visa number cap is being reached more quickly. For the 2014 fiscal year, the cap was reached in December 2013, which was only 2 months after the fiscal year began.
What happens after the maximum 10,000 visas has been reached?
The rules on this issue have recently changed for the better as of December 2013. Now, once the U visa cap has been reached, USCIS will continue reviewing pending applications and place those cases that USCIS has determined are otherwise eligible for U visa status on a wait list. For those individuals on the waitlist, USCIS sends out notice of eligibility for deferred action, which enables the applicant to apply for and receive work authorization until the U visa petition is granted.
USCIS will then continue issuing U visas in the next fiscal year when an additional 10,000 visas become available.
What types of crimes qualify for a U visa?
The immigration regulations list a variety of crimes that may qualify for a U visa, although these examples are not exclusive. The types of crimes include: 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 contact (abusive), sexual exploitation, slave trade, torture, trafficking, unlawful criminal restraint, witness tampering, or attempt, conspiracy to commit one of these crimes.
What does it mean to have suffered “substantial abuse”?
The immigration regulations define “substantial abuse” to mean physical or mental injury or harm to the victim’s physical person, or harm to or impairment of the emotional or psychological soundness of the victim. The immigration official can also consider aggravation of a victim’s preexisting conditions, such as depression or prior injury.
An applicant must prove his or her substantial abuse through evidence in the U visa application, which can include medical records, orders for protection obtained, etc.
U Visa Certification
The U visa application must also contain a Form I-918 Supplement B (“U Visa Certification”) signed by a certifying official within 6 months of filing the U visa application with USCIS. A certifying official can be the head or designated official of a federal, state, or local law enforcement agency (police), prosecutor, or other authority involved in the investigation or prosecution of the criminal activity.
The decision whether to sign a U Visa Certification is entirely discretionary by the certifying official; there is no requirement that he or she sign a certification.
Can a principal U visa applicant apply for a family member?
Yes. A principal U-1 applicant can apply for a qualifying family member. If the principal applicant is 21 years-old or older, he or she can apply for a spouse or child within the meaning of the immigration laws. If the principal applicant is under 21, s/he may apply for a spouse, child, parent, or sibling under 18.
A U-1 principal cannot apply for a grandchild.
Can an applicant qualify for a U visa if he or she was not a direct victim?
In certain circumstances, yes. Certain family members may apply for U visa status as an “indirect victim” if the direct victim is deceased, incompetent, or incapacitated (e.g. due to age) among other things. Relatives who may qualify as "indirect victims" include the direct victim’s spouse, the direct victim’s unmarried children under 21 years old, and if the direct victim is under 21 years old, his/her parents and unmarried siblings under age 18. A U visa derivative is different than an indirect victim.
What if my child is about to turn 21. Is s/he still eligible for a U visa as a derivative?
Yes, as long the U visa application is filed before the child turns 21 years-old and the child is unmarried. The Trafficking Victims Protection Reauthorization Act 2013 provided certain age-out protection for U derivatives. One of the protections was to allow children who turn 21 after filing the U visa application to still receive derivative U visa status for the full four years, assuming the child is otherwise eligible. This is important because it means that the child will be eligible to apply for permanent residence in the U.S. once s/he fulfills the necessary three years of physical presence in the United States and is otherwise eligible.
What do I receive if my U visa is granted?
If USCIS approves the U visa application, the applicant receives U nonimmigrant status in the United States. This is not the same thing as permanent residency. Upon approval of a U visa application, USCIS will issue notices of approval indicating the validity date of the individual's status along with a work authorization card.
When is a U visa recipient eligible to apply for permanent residency in the U.S.?
A U visa holder may apply for adjustment of status (permanent residency) in the U.S. if he or she (1) continues to hold U visa status at the time of filing for residency, (2) has been continuously physically present in the United States for three years, (3) is not inadmissible under certain provisions, (4) has not unreasonably refused to provide assistance regarding the criminal activity that led to U status, and (5) demonstrates presence in the US is justified on humanitarian grounds or is in the public interest.
An application for permanent residency is discretionary.
Please feel free to contact Wilson Law Group for a consultation to determine your eligibility for a U nonimmigrant visa or adjustment of status.