U Visa for Crime Victims

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Martin Law

Bloomington, MN

Practice Areas

Immigration Law, Divorce, US Citizenship, Green Card, Deportation, Asylum

Introduction

In 2000 Congress passed the Victims of Trafficking and Violence Prevention Act and created the U visa. In creating the U visa, Congress acknowledged that immigrants, especially women and children, are particularly vulnerable to crimes like domestic violence or sexual assault and, due to language barriers and fear of deportation, may be afraid or reluctant to report the crime to law enforcement. The U visa is an immigration benefit that can be sought by victims of certain crimes who are currently assisting or who have previously assisted law enforcement in the investigation or prosecution of a crime.

Who qualifies for a U Visa?

A person may be eligible or a U visa if they meet the following requirements:

They are the victim of a qualifying crime,

  1. They have suffered substantial physical or mental abuse as a result of being the victim of criminal activity,

  2. They have information about the criminal activity,

  3. They have been helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime,

  4. The crime occurred in the US, and

  5. They are inadmissible in the US or they apply for a waiver from the Immigration Service.

The U Certification

If an immigrant believes he or she may qualify for a U visa, the first step in the U visa application process is to request a U visa certification from a qualifying agency. Certifying agencies include all authorities responsible for the investigation, prosecution, conviction or sentencing of the qualifying criminal activity, such as federal, state or local law enforcement agencies, prosecutors' offices, judges, family protective services, or the Department of Labor. By signing the certification, the law enforcement agency is confirming that the qualifying crime occurred and that the victim was helpful. Although the U visa certification is a required piece of the U visa application, law enforcement agencies cannot be compelled to sign the certification.

What is a qualifying crime?

There are many different crimes that may make someone eligible for a U visa. The most common crimes are domestic violence, felonious assault, kidnapping, rape, sexual assault and sexual exploitation. Immigrants who have been the victim of peonage, blackmail or extortion in their workplace may also qualify for a U visa from the Department of Labor. See 8 § C.F.R. 214.14(a)(9) for the complete list of qualifying crimes.

What is substantial physical or mental abuse?

An applicant for a U visa must show to the Immigration Service that they have suffered substantial physical or mental abuse as a result of being a victim of the qualifying crime. Physical or mental abuse is defined as "injury or harm to the victim's physical person, or harm or impairment of the emotional or physiological soundness of the victim." 8 C.F.R. § 214.14(a)(8). The Immigration service will not look at one single factor to determine if substantial harm has occurred, but will instead consider a series of acts taken together to determine what may constitute substantial physical or mental abuse.

What does "Helpful" in the investigation mean?

As stated above, an immigrant will only qualify for a U visa if they are helpful in the investigation or prosecution of the crime. Helpfulness means that the victim was, or is likely to, assist law enforcement in the investigation or prosecution of the criminal activity. Common examples of law enforcement assistance include calling the police, giving the police a statement about the crime, letting the police take pictures, talking to the prosecutor or testifying in court. Immigrants who refuse to assist after reporting a crime, will not be granted a U visa.

The criminal case does not need to be ongoing in order for a person to qualify for a U visa. Furthermore, there is no requirement that the perpetrator be prosecuted for the crime or convicted. In many U visa cases, the victim may report the crime and give a statement to police, but due to evidentiary or other circumstances, there may not be an arrest or a criminal charge. In these situations, a victim can still obtain a U visa.

What are the benefits of a U visa?

If a victim is granted a U visa, they will receive nonimmigrant status to live and work in the US for a period up to four years. Qualified immigrants have the opportunity to apply to adjust their status to become a lawful permanent resident after three years of continuous presence in the US as a U visa holder. In addition, certain immediate family members of U visa recipients may also be eligible to live and work in the US as derivative U visa recipients based on their relationship with the U visa holder. These family members include unmarried children under the age of 21, spouses of U visa holders, parents of U visa holders who are under 21 or unmarried siblings under 21 or U visa recipients under 21. Furthermore, recipients of U visas may request permission from the US government to travel outside of the US to visit friends or family in their home country.

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