U AND OTHER CRIME VICTIMS VISAS

02 Dec U AND OTHER CRIME VICTIMS VISAS

With the recent upsurge in immigration enforcement, inquiries about applicable visa programs have correspondingly increased. One category of visas may be particularly helpful to many aliens, especially those who entered without inspection (EWI). The U, T, V, VAWA, Continued Presence (CP) and Significant Public Benefit Parole (SPBP) visas present such opportunities. Deferred Action will also be briefly mentioned.

U VISA

Congress passed the victims of Trafficking and Violence Prevention Act (VTPA) in 2000 (VTPA) Pub.L.No. 106-386, 114 Stat. 1464-1548 (2000) to encourage victims to report crimes, contribute to investigations and prosecutions regardless of immigration status and support efforts to investigate and prosecute crimes committed against immigrant victims.

The U- Visa is one of the visas contained in VTPA. The U-visa is an immigration benefit that can be sought by certain victims who are currently or have previously assisted law enforcement in investigation or prosecution of a crime, or who are currently or have previously assisted law enforcement in investigation or prosecution of a crime, or who are likely to be helpful in the investigation or prosecution of criminal activity. It provides eligible victims with nonimmigrant status in order to temporarily remain in the U.S while assisting law enforcement if certain conditions are met. An individual with U nonimmigrant status may adjust to lawful permanent residence status. The number of available visas is capped at ten thousand (10,000) per year.

Why U visa? 

Congress found that immigrants are particularly vulnerable to human trafficking, domestic violence, sexual assault either due to language barriers, separation from family and friends, lack of understanding of U.S. laws, fear of removal and cultural differences. Due to these reasons they may be reluctant to report or assist law enforcement in investigating crimes.

Requirements-

1. Complete form I-918, Petition for U Nonimmigrant Status
2. Submit to USCIS 
3. Include Form I-918 supplement B certification document 
4. Supplement B certification by a law enforcement agency.

To be eligible for a U visa, the victim must submit a law enforcement certification completed by a certifying agency. A certifying agency includes all authorities responsible for the investigation, prosecution, conviction or sentencing of the qualifying criminal activity. Examples:

• Federal, State & Local law enforcement agencies;
• Federal, State & Local prosecutors’ offices;
• Federal, State & Local Judges;
• Federal, State & Local family protective services;
• Equal employment opportunity commission;
• Federal and State Departments of labor; and
• Other investigative agencies.

Form 918B, confirms the following: (1) qualifying crime has occurred (2) that the victim is being helpful or that is likely to be helpful in the investigation, detection or prosecution of the activity.

Note- law enforcement cannot be compelled to complete the certification; it is entirely within their discretion. Most law enforcement agencies have their internal policy and procedure for certification. Without a law enforcement certification, a U Visa will not be granted.

Qualifying Crimes:

Abduction

How is a crime victim “helpful” to law enforcement?

This means that the victim was, is or is likely to be assisting law enforcement in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim. The victim has to be helpful and providing assistant when reasonably requested. This includes an ongoing responsibility on the part of the victim to be helpful. A victim who unreasonably refuses to assist after reporting a crime will not be eligible. The duty to be helpful to law enforcement remains even after a U visa is granted. A victim who unreasonably refuses to be helpful after a U visa is granted may have the visa revoked.

Post report development 

A current investigation, the filing of charges, a prosecution or conviction are not prerequisites for signing the law enforcement certification. This is because in some cases after a victim reports a crime, but there has been no arrest or prosecution either because the perpetrator  has fled or is otherwise no longer in the jurisdiction, cannot be identified or has been removed from the U.S. No statute of limitation on signing the law enforcement certification. A law enforcement certification can even be submitted in a closed case.

USCIS Review of U visa enforcement certification.

The fact that a law enforcement certification has been obtained and submitted does not guarantee a grant of a U visa. It is only one factor albeit a major factor, but the victim will have to be otherwise eligible, e.g. pass a biometric background check, immigration records of victim, criminal records, security records, etc

Benefits of a U visa

If approved the victim/applicant receives

1. Four year nonimmigrant visa to remain in the U.S. ;
2. May apply for lawful permanent residence after three years of continuous presence in the U.S. while having a U visa
3. Must continue to reasonably cooperate with law enforcement agency : 
4. Some family members may qualify as derivative beneficiary and live and work in the  U.S. based on their relationship with the principal resident. 

These family members include:

Once a law enforcement agency signs a certification it should be returned to the victim or his/her attorney. The victim is required to send the original certification form along with his or her complete U visa petition to USCIS. Some parts of form I-918B requests the certifying officer to indicate periods when the victim was not helpful.

Note: The certification form must contain an original signature and should be signed in color of INK OTHER THAN BLACK for verification purposes. Scan, fax, photocopies of the certification are unacceptable.

Form I-918B Information

1. Victim information;
2. Agency Information;
3. Crime information;
4. Date, location and other crime information; 
5. Helpful statements;
6. Additional helpful statements ;
7. Culpable family members
8. Certification

Notes:

1. A certifying agency cannot be held liable for the conduct or crime of a victim it had earlier certified.
2. A U visa can be completed for a victim who has left the U.S.
3. The USCIS will determine if the “substantial physical or mental abuse” requirement of 

the victim has been met. This is done on a case by case basis.

1. A victim is not required to testify in a trial of the perpetrator to be eligible for a U visa, but it may constitute an unreasonable refusal to cooperate with law enforcement, who could either refuse to issue a certification or notify USCIS about the refusal even after certification.
2. Helpfulness or enough cooperation; the victim since initiation of cooperation has not refused or failed to provide information and assistance to law enforcement.
3. A law enforcement agency may withdraw or disavow an earlier certification by notifying USCIS Vermont Service Center in writing and include the following information: 

1. A certification is valid even if one crime is initially investigated but a different crime is 

eventually prosecuted. This does not have a negative impact on the certification provided the prosecuted crime is also a qualifying crime. E.g. initial investigation- rape- prosecution for sexual assault. Both are qualifying crimes; initial investigation -embezzlement – prosecution for extortion, while embezzlement is not a qualifying crime, extortion is, so a certification could be obtained; initial investigation- drug trafficking- police determine that drug trafficker’s wife is the victim of domestic violence. The victim reported the domestic abuse. Only drug trafficking is prosecuted with wife cooperating with law enforcement, law enforcement may complete Form I-918B certification for domestic abuse although it was not prosecuted.

CHILD VICTIMS

A parent of child under 21 or otherwise incapacitated, is an indirect victim and may apply for a U visa and certification, even if the child dies as a result of the crime. The parent must however, meet all U visa requirements, e.g. must have information about the crime and must be helpful to law enforcement in the investigation or prosecution of the crime, and the crime must have occurred in the U.S or violated U.S law.

VICTIM MUST POSSESS INFORMATION

To be eligible, the victim must possess credible and reliable information establishing that the victim has knowledge of the details of the criminal activity or events leading up to the criminal activity, including specific facts about the crime/victimization leading law enforcement to determine that the victim has assisted in the investigation or prosecution of the crime.

For victims under 16, or incompetent or incapacitated at the time the crime occurred, a parent, guardian, or next of friend may possess the information.

VICTIMS WITH CRIMINAL HISTORY

Whether to approve or not approve a U visa for a victim with criminal history is entirely at the discretion of USCIS but it is not automatically disqualifying.

FRAUD

USCIS relies on law enforcement to wield out fraud through the certification process. It also relies on the Federal Detection and National Security (FDNS) unit of the USCIS to conduct investigation into suspicious cases.

OTHER FORMS OF RELIEF FOR CRIME VICTIMS 

1. T-Visa

It provides immigration protection to victims of severe forms of trafficking in persons who comply with reasonable requests for assistance from law enforcement in the investigation or prosecution of human trafficking cases. Unlike the U visas, the T visa does not require a law enforcement certification. Once a T visa status is granted, a victim can apply for permanent residence after 3 years.

Forms: I-914 filed with USCIS. 

I-914B filed with USCIS to verify that he or she had complied with any reasonable request by law enforcement in the investigation or prosecution of the trafficking crime BUT IT IS NOT REQUIRED, although recommended.

1. VAWA ( Violence Against Women’s Act) 

Passed in 1994, it creates a self petitioning process that removes control from the abuser and allows the victim of domestic violence to submit his or her own petition for permanent residence without the abuser’s knowledge or consent. Those eligible for VAWA include the abused spouse or former spouse of a U.S citizen or permanent resident, the abused child of a U.S citizen or lawful permanent resident or the abused parent of U.S citizen.

VAWA is gender neutral despite the name. File on Form I-360, no law enforcement certification is required but must include sufficient evidence of abuse, e.g. police report, medical report, social service report, counselor’s report, medical report, photographs, video, audio tapes, phone records. Etc.

1. Continued Presence (CP)

This is a temporary immigration status provided to individuals identified by law enforcement as victims of human trafficking who are potential witnesses in an investigation or prosecution. Federal law enforcement officials are authorized to submit a CP application which should be initiated upon identification of a victim of human trafficking. CP is usually granted for one (1) year to enable victims of trafficking stay in the US during ongoing investigation into the trafficking and related offense. Note- it is only law enforcement that can initiate this visa, usually USCIS Homeland Security Investigation (HIS) law enforcement parole unit or other federal law enforcement agent. State and local agencies are encouraged to work with federal authorities. in their area. Although cooperation with law enforcement is not an eligibility criterion for CP, but cooperating victims may be eligible for social service benefits through the Department of Health and Human Services Office of Refugees Settlement. They may also qualify for T visas.

1. Significant Public Benefit Parole (SPBP)

SPBP may be used to bring an individual to serve as a witness, defendant, cooperation source, and if necessary in very limited cases, the individual’s immediate family members, into the U.S. for up to one (1) year. Note, SPBP will only be granted for the minimum period of time required to accomplish the requested purpose e.g. to participate in trial scheduled to last six (6) months, only a six (6) months visa will granted. The is visa a temporary permit allowing the recipient, who is otherwise inadmissible to be present in the U.S., it does not constitute a formal admission to the U.S although an employment authorization may be granted for the period of authorized stay.

DEFERRED ACTION

This is a discretionary decision decision-making authority that allows DHS to determine which cases merit the commitment of limited resources e.g. focusing removal on serious criminals 8 C .F.R. S.274 (a)(12) (c)(14). It is “an act of administrative convenience to the government which gives some cases lower priority…” Factors considered include (1) humanitarian factor (2) the individual’s status as an important witness in an investigation or prosecution and (3)  under DACCA a person out of status brought to the U.S when they were 16 or under. It does not provide a pathway to permanent resident status.