Disclaimer: The information provided in this handout is for general informational purposes only and does not constitute legal advice. Always consult with an attorney before applying for any benefit mentioned herein, as well as before applying for any immigration relief.
What is a U visa?
A U visa is a visa that is available for victims of a qualifying crime in the United States, who have information about that crime and who have, or can be, helpful to a law enforcement agency in the investigation of that crime.
There are only 10,000 U visas available per year, and there is a long backlog of people waiting for visas, but you can still apply for a visa to be placed “in line” for a visa when one becomes available. As of the writing of this informational handout, the backlog of visas is 10 years. You may, however, still apply for a U visa.
How do I qualify?
To be eligible to apply for a U visa, you must have suffered physical or mental abuse because you were the victim of a “qualifying” crime.
You must have credible and reliable information that you have knowledge of the details of the criminal activity.
You must have been helpful, are being helpful, or are likely to be helpful in the investigation and/or prosecution of the crime.
The crime must have been committed in the US or a US territory. That may include a military base or Indian territory.
What is a qualifying criminal activity?
A qualifying criminal activity can include of the following, or a similar activity that is a violation of state, local or federal criminal law: abduction/ kidnapping, blackmail, felonious assault, fraud in foreign labor contracting, being held hostage, sexual abuse, sexual exploitation, rape, stalking, torture, trafficking, false imprisonment, extortion, incest, involuntary servitude, witness tampering, conspiracy to commit any of these crimes, obstruction of justice, forced labor/peonage domestic violence, murder or manslaughter. These are categories of crimes that may qualify. Other crimes may also be qualifying crimes.
Who is the victim?
A victim in this situation must be someone who has suffered direct and proximate harm as a result of the crime. Or, a victim could be an indirect victim if the victim is the family member of someone killed by murder or manslaughter, and the family is the spouse and any children under 21. If the deceased victim is under 21, the victims may be siblings under 18, parents, and spouses or children of the victim.
A person may also be a victim if she or he is a victim of witness tampering, obstruction of justice or perjury, including attempted tampering and obstruction or solicitation or conspiracy to commit those crimes, if the victim is harmed by those crimes or attempts, and the perpetrator committed them to avoid arrest or prosecution or to further control over or abuse of the victim.
What is physical or mental abuse?
Physical abuse is abuse to the physical person. Mental abuse is harm to the emotional or psychological soundness of a person. Things that the government will look at to determine if abuse was suffered are the severity of the harm, the nature of the injury, the severity of the crime, the duration of the harm, permanent or serious harm to physical or mental health or aggravation of a pre-existing condition.
What does it mean to be helpful?
You are helpful to the law enforcement agency if you cooperate with the investigation. This might mean making a report, providing a witness statement, or making yourself available to the law enforcement agency. It does not have to be currently helpful at the time you file the petition. You can be a victim of a crime and have cooperated years ago and still file a petition. It is not necessary that the perpetrator of the crime was arrested or prosecuted for you to still be a victim. However, because you will need a certification from a law enforcement agency or DA, it is necessary that that crime be reported.
How do I apply?
The form used to apply for a U visa is the I-918. It is filed with USCIS. There is no fee for this form. With the petition you must submitting supporting documentation. That documentation includes a signed declaration or statement from the petitioner and any evidence of the victimization and the harm suffered. That could be medical records, psychological reports, witness statements. If you are inadmissible you must also request a waiver of inadmissibility.
You must also submit a certification from the law enforcement agency. This is done by filing a Supplement B to the form I-918 that is completed by a certifying official of the applicable law enforcement agency.
A certifying official is the head of the agency in charge of investigating or prosecuting the crime, or a supervisor designated as a certifying official, or it could be a judge if the case was prosecuted. The EEOC, Department of Labor and Child Protective Services may all be certifying agencies if they were involved in the investigation of the crime.
The certification must state how the person completing the certification is a certifying official, that the victim/ petitioner was a victim of a crime that the certifying agency has investigated or will investigate or prosecute, that the victim has knowledge of the crime and is or has been helpful to the agency or will be helpful to the agency and that the crime violated U.S. law or was committed on U.S. soil.
The certification must be filed within six months of filing the petition for the U visa. Its best to make sure you can get the certification before filing the petition for the visa because sometimes it can take some time to find the correct person to get the certification and have it completed.
Once it is filed, if everything is in order you will receive a conditional approval. Because the U Visa is not an immigrant visa, the conditional approval provides a deferred action, or parole. You can also get a work authorization during this time.
Once you finally wait out the long wait time, and get the visa, it is good for 4 years with a possible extension of up to 4 more years if necessary for the investigation or prosecution of the case or in exceptional circumstances as determined by the Department of Justice.
Can my family members get visas too?
Yes! Family members are, for victims over 21, spouses and children under 21. For victims under 21, family members are spouse, children, parents, and unmarried siblings. You can file a petition for family members at the same time your I-918 and Supplement are filed. Derivatives, or family members, do not count towards the cap.
You can apply for derivative U visas for family members outside of the United States but those family members must process through the consulate where they are located.
An important note regarding derivative visas for children under 21 – the age of the child is frozen as of the date of the filing of the I-918 and Supplement A. So if the primary applicant is a child and turns 21 while waiting for a visa, the child’s application is still treated as if the child were under 21 at the time of the adjudication. Similarly, if under 21 children are derivatives, their age is frozen until visas become available.
Family members can also get work authorizations.
Can I file for a U visa if I am already in Removal or Deportation proceedings?
Yes. You can request that the IJ continue, stay or terminate removal proceedings while the U visa is pending from USCIS. The judge cannot grant a U visa, only USCIS can adjudicate those visas. You can ask the DHS attorney to agree to a motion to stay the removal proceedings pending the U visa.
ICE is not permitted to use information it learns by the filing of a U visa and prosecution of the qualifying crime to put someone in removal proceedings.
If you already have a final order of removal you will have to request a stay of removal from DHS. This should be granted as long as you have made a prima facie showing of eligibility for a U visa, which means you can show you qualify based on your filings. You can request a prima facie determination on your petition from USCIS to show ICE when requesting a stay of removal.
However, if there is no prima facie showing or you were denied, then you cannot get a stay of removal.
Can I gain Legal Permanent Residence Status from my U visa?
Yes, after 3 years of continuance residence, meaning you did not leave the US for more than 90 days at a time or for a total of 180 days, you can file a petition to adjust your status to that of a permanent resident. You must also show that your continued presence in the US is necessary for humanitarian reasons or reasons of family unity.
Derivatives may also apply to adjust their status to Permanent Resident status. This is true even if the principal applicant for the U visa died before adjusting status.
The law on U visas can be complicated. The process is detailed and can take a long time. It is always best to consult with an attorney before beginning this or any other immigration petition.
Call my office at (915) 209-5910 to schedule a consultation to discuss whether you or your loved one qualifies for a U visa or any other immigration benefit.