Foreign nationals in the U.S. should be aware of a unique form of immigration relief should they or a close relative (e.g., spouse, minor child) ever suffer the misfortune of being the victim of qualifying criminal activity that violated the laws of the United States or occurred in the U.S., including its territories and military installations (Note: even if criminal activity occurred overseas, it might qualify an individual for a U visa if it falls within the jurisdiction of U.S. law.)  .  U nonimmigrant status may be issued to victims of certain crimes who have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity and who have received certification from law enforcement that they have been, are being or are likely to be helpful in the investigation or prosecution of the criminal activity at issue. In addition, the victim’s derivatives or qualifying relatives – including a spouse, children under 21 where the principal petitioner is over 21 years of age; and, if the principal petitioner is under 21, their parents, as well as siblings under 18 at the time of filing may derive status. It is important for the immigration practitioner to consider the U visa option, among all the other options, in the event that a non-citizen has ever been a victim of a qualifying crime. Hence, asking the following question during a consultation is crucial: ‘Have you ever been the victim of a crime?”.

Qualifying Crimes

The crimes include “one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.” INA § 101(a)(15)(U)(iii). 

Origin of U Status

Congress created this category to strengthen the ability of law enforcement to fight crime, encourage law enforcement officials “to better serve immigrant crime victims”, and to encourage immigrant crime victims who are out of status to report crimes without fear of being subject to removal if they qualify under the category requirements.  See Victims of Trafficking and Violence Protection Act of 2000, §1513, Public Law No. 106-386, 114 Stat. 1464.  Although it was created 10 years ago, the U visa has only recently become a full-fledged nonimmigrant status providing a realistic path to lawful permanent resident (often called “green card”) status and the possibility of travel outside the U.S.  The Department of Homeland Security did not issue the regulations governing the issuance of actual U nonimmigrant status until September 2007. Prior to that, qualifying individuals were granted “interim status,” which allowed them to live and work in the U.S., but did not allow them to travel outside the U.S.  Thus people in interim U status were unable to visit family or travel for work, in many cases for almost 10 years! 

The regulations governing the U-based “green card” process were not issued until December of 2008 and only very recently, in February 2010, did the Department of State issue guidance to its consular officers regarding the grant of U visa stamps, which would allow individuals in U nonimmigrant status to travel outside the US and return to the US (or, if they applied for U nonimmigrant status from outside the US, to enter the U.S. for the first time in U status).  The Department of State guidance serves the important purpose of ensuring that consular officers will not try to re-adjudicate the grant of U status and that the decisions regarding eligibility will be made by the officers at USCIS’s Vermont Service Center who are specially trained to handle the U category. 

Law Enforcement Certification

U nonimmigrant status is by no means easy to obtain and usually requires a great deal of advocacy, not only with regard to obtaining the law enforcement certification, but also with regard to establishing eligibility and addressing waiver issues.  The law enforcement certification is often the most difficult piece of the puzzle in the U petition process.  The regulations require that certification must be signed by the head of the particular law enforcement agency or by the person(s) designated by the head of the agency.  Many law enforcement agencies are not familiar with the U visa, have not yet designated someone to serve as a signatory, or do not realize that the victim’s assistance need not result in a prosecution or a conviction – aiding in an investigation satisfies the requirements, and law enforcement may certify even the future helpfulness of a victim.  In New York City, for example, the NYPD has not yet made public the specifics of its U certification process, and it is not clear whether or not Commissioner Raymond Kelly has designated particular signatories.  Local police are often the only possible signatories where a crime victim’s attacker has not been apprehended, and many advocates in New York have complained that the NYPD has been standing in the way of immigration relief for crime victims, as noted in a recent story from the Daily News.  http://tiny.cc/9re3d.  The New York City District Attorneys’ offices and the NYC Administration for Children’s Services, on the other hand, have appointed signatories and have been very responsive, as a general matter, to requests from advocates where the victims have assisted in the investigation and/or prosecution of a crime. 

Advocates should think creatively about possible law enforcement agencies involved in a case.  The regulations provide that a certification may be issued by a Federal, State, or local law enforcement official or judge investigating or prosecuting the criminal activity.  If the local police or prosecutor is unable or unwilling to provide certification, the advocate should determine whether other local, state or federal agencies or judges may have been involved in the case and provide that agency or judge with information to assist in the certification process.  Such information might include a summary of the agency’s or judge’s authority to sign and the specifics involved in completing Form I-918B, especially where the case involves an indirect victim such as the foreign parent of a US citizen child who was the victim of a crime. 

The definition of “certifying agency” includes “agencies that have criminal investigative jurisdiction in their respective areas of expertise, including but not limited to, child protective services, the Equal Employment Opportunity Commission, and the Department of Labor.”  8 CFR § 214.14(a)(2).  In March 2010, the United States Department of Labor announced that its Wage and Hour Division, which enforces federal labor laws, is authorized to sign U certifications, and will establish the necessary protocols by mid-summer 2010.  In some cases even the Department of Homeland Security, specifically Immigration and Customs Enforcement (“ICE”), will sign a U certification for a crime victim who has assisted them in an investigation. 

Suffered Substantial Mental or Physical Abuse

As noted above, in order to be eligible for the U visa, an individual must show that they have suffered substantial mental or physical abuse as a result of the crime.  Advocates should consider carefully the many ways a victim’s suffering might manifest, and should consider including psychological evaluations and other reports conveying the extent of the harm suffered.  Unfortunately, the victim must include a signed statement “describing the facts of the victimization, ” which may be emotionally difficult for the victim to prepare.  It is unclear why such a statement is required in light of the fact that a law enforcement certification is required and the impact on the individual can be conveyed without forcing the individual to personally re-experience the details of the crime.

With regard to admissibility issues, the regulations governing U nonimmigrant status provide one of the most liberal waivers available in US immigration law.  Any ground of inadmissibility may be waived except INA 212(a)(3)(E) (Nazi persecution, genocide, torture, or extrajudicial killing), although depending on the ground, different showings must be made.  For example, for most grounds of inadmissibility, the applicant must show that it is in the public or national interest to grant the waiver.  However, if the inadmissibility arises out of a more serious issue, such as the commission of a violent or dangerous crime, the waiver will only be granted in “extraordinary circumstances.”  Overall, the waiver process is quite forgiving in the U context, but it is discretionary – thus, if the adjudicating officer is not provided with adequate information to convince him or her that the applicant should be granted the waiver, it may be denied and therefore the individual will not be granted U nonimmigrant status. 

The U visa category is limited to 10,000 per fiscal year.  As of the end of February 2010, 5,914 U visas were approved for principal applicants (2,043 were denied) and 5,507 U visas were issued for derivatives (there are no numerical limits on the number of U visas that may be issued to qualifying derivatives).  In the event the limit is reached, individuals who establish their eligibility for U status are placed on a waiting list. 

If it can be obtained, a prima facie finding of U status eligibility from USCIS provides important protections, especially for individuals in removal proceedings.  In September 2009, ICE issued guidance on how its Field Office Directors (FODs) should “favorably view” requests for a stay of removal where the individual has provided proof of prima facie eligibility for U status from USCIS, and should “consider favorably any humanitarian factors.”  Overall, the guidance indicates that in the absence of significant negative factors, “the FOD should generally grant the alien a Stay of Removal” when USCIS has determined prima facie eligibility.

U nonimmigrant status has come a long way since 2000, when it was more of a holding pattern than a status.  Now it is established as a path to lawful permanent resident status and provides protection to immigrant crime victims.  Many questions remain, however, such as how USCIS will deal with extensions for both principals and derivatives, and how they will address the cases of derivatives who may have aged-out.  A potential threat to U nonimmigrant status has also been raised by legislation like that recently adopted by Arizona, SB 1070 (as amended by HB 2162), which calls on law enforcement to target, rather than protect, the immigrant community.  For more information Arizona’s new law see David Isaacson’s article “A Preliminary Look at some of the Constitutional and Practical Problems with Arizona’s New Immigration Law” available here: http://bit.ly/dwKqSY.

*Myriam Jaidi is an Associate with Cyrus D. Mehta & Associates, PLLC where she represents clients on a full range of employment- and family-based immigration matters.  Ms. Jaidi has previously worked as a public defender with The Legal Aid Society in New York City, and worked on U Visa and T Visa cases at the City Bar Justice Center and the Urban Justice Center.  She received her J.D. from the University of Michigan Law School, her M.A. from Stanford, and her B.A. cum laude from Harvard University.