What is a U Visa

The Department of Homeland Security (DHS) provides this guidance to federal, state, local, tribal and territorial law enforcement officers. This public guidance primarily concerns law enforcement certifications for U nonimmigrant status, also known as U visas. The U visa is an immigration benefit that can be sought by victims of certain crimes who are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or who are likely to be helpful in the investigation or prosecution of criminal activity. The law enforcement certification USCIS Form I918, Supplement B, U Nonimmigrant Status Certification (Form I-918B) is a required element for U visa eligibility. Included is the contact information for DHS personnel on U visa issues. U Visa Basics The Victims of Trafficking and Violence Prevention Act (VTVPA) of 2001, passed with bipartisan support in Congress, encourages victims to report crimes and contribute to investigations and prosecutions regardless of immigration status, and supports law enforcement efforts to investigate and prosecute crimes committed against immigrant victims. The U visa is an immigration benefit that can be sought by victims of certain crimes who are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or who are likely to be helpful in the investigation or prosecution of criminal activity. The U visa provides eligible victims with nonimmigrant status in order to temporarily remain in the United States(U.S.) while assisting law enforcement. If certain conditions are met, an individual with U nonimmigrant status may adjust to lawful permanent resident status. Congress capped the number of available U visas to 10,000 per fiscal year. Immigrants, especially women and children, can be particularly vulnerable to crimes like human trafficking, domestic violence, sexual assault, and other abuse due to a variety of factors. These include, but are not limited to, language barriers, separation from family and friends, lack of understanding of U.S. laws, fear of deportation, and cultural differences. Congress recognized that victims who do not have legal status may be reluctant to help in the investigation or prosecution of criminal activity for fear of removal from the United States. The VTVPA was enacted to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of persons and other crimes while offering protection to victims of such crimes without the immediate risk of being removed from the country. Congress also sought to encourage law enforcement officials to serve immigrant crime victims.If an individual believes he or she may qualify for a U visa, then that person should contact Allcanza to guide them through the process of certification and then full visa application.

Who is Eligible for a U visa?

The U visa was specifically designed to benefit victims of certain crimes in the US and their immediate family members, either in the US or abroad. The whole idea was to facilitate the reporting and prosecution of crimes in the US by ensuring legal protection for the people who are victims of the crimes, but may not have a lawful status in the US. In order to know where to put law enforcement and other resources, the agencies need to know where the crime has occurred, what crime occurred there, and who were the actors (victims and perpetrator). Prior to the passage of the law in which the U visa designation is included (VTVPA), the government began to notice a vast amount of unreported crime. Most of the unreported/underreported crime was happening in neighborhoods composed of people with unknown or undocumented immigration status. The prevailing opinion was that people in these neighborhoods would not report crimes for fear of falling into the hands of the immigration service and would be expelled from the country. In order to assuage these fears, the government created a legal protection mechanism. If a person is a victim of a qualifying crime, reports the crime to the authorities and does not unreasonably deny assistance to law enforcement in the investigation and prosecution, then that person could request not only a work permit (EAD), but also could eventually get a full lawful permanent residence status.

Who are the family members that can apply with me?

Certain immediate family members of U visa recipients may also be eligible to live and work in the United States as derivative U visa recipients based on their relationship with the principal recipient. These family members include:

• Unmarried children under the age of 21 of principal U visa recipients;

• Spouses of principal U visa recipients;

• Parents of principal U visa recipients under age 21; and

• Unmarried siblings under 18 years old of principal U visa recipients under age 21.

What are the Steps to Requesting a U Visa?

The steps to requesting a U visa are pretty clear and simple. But, just because they are clear and simple, does not mean that they are easy. For example, a person that obviously qualifies for U visa because they were a victim of a qualifying, they have the report, they helped law enforcement with everything asked, and they deserve favorable discretion, could still find it impossible to get a U visa because local law enforcement does not know what a U visa is, puts a time limit, is not inclined to help immigrants, and the list goes on. Here is how Allcanza can help. In order to properly request a U visa you have to complete the following steps:

• Report the crime

• Get a police report of the crime

• Verify that you are listed as a victim of the crime - this will differ for indirect victims

• Prepare the proper form for certification

• Figure out which agency is responsible for this certification - this would be only police if the perpetrator is unknown, it could be law enforcement or prosecutors if the case went to court, it could be a Judge if that is necessary, it could be a victims advocacy group or youth services agency

• Submit the form to the certifying agency

• Follow up regularly with the certifying agency - but do not badger them, you need them to help you

• If they refuse to certify, then ask why and determine if you may be able to get another agency to certify

• If they do certify, then begin the process of the full U visa application

• Complete all necessary forms for full U visa application (918, 918b, 918a, 765, 192, and more)

• Gather all your evidentiary documents and make sure everything has an English language translation, if applicable

• Make sure you know the address and fees associated with each application

• Create a good cover letter to inform immigration services what you are submitting and the evidence and fees included.

• Make sure the cover letter has the proper filing address for your jurisdiction

• Make at least one copy of the whole packet (either paper or, preferably, digital) to keep for your records

• Submit the application to the address on the cover letter with all forms, evidences, and fees included

• In about 2-6 weeks you will received a receipt from immigration services verifying their receipt of your application and the fees - if you do not receive these receipts, then the packet likely did not make it to the location

• 6-12 weeks you will receive a notice to go and submit for photos and fingerprints

• In about 18-24 months you will receive you work authorization (EAD) and your social security card at the same time or soon thereafter

• The entire approval process for the U visa is taking anywhere from 12-15 years at the current yearly approval rates (10,000 per year by statute)

What crimes qualify for a U visa?

The list of crimes that qualify a person for U visa are mostly severe, but the law allows for certain general category crimes that can fit almost any crime that has an element of violence whether actual or threatened (in-person). Here is a general list:

• Abduction

• Abusive Sexual Contact

• Blackmail

• Domestic Violence

• Extortion

• False Imprisonment

• Felonious Assault

• Female Genital Mutilation

• Being Held Hostage

• Incest

• Involuntary Servitude

• Kidnapping

• Manslaughter

• Murder

• Obstruction of Justice

• Peonage

• Perjury

• Prostitution

• Rape

• Sexual Assault

• Sexual Exploitation

• Slave Trade

• Torture

• Trafficking

• Witness Tampering

• Unlawful Criminal Restraint

• Other Related Crimes*† *Includes any similar activity where the elements of the crime are substantially similar. †Also includes attempt, conspiracy, or solicitation to commit any of the above, and other related, crimes.

Note that a Felonious Assault is not necessarily a touching, but can include a gesture that places a person in fear for immediate bodily harm or death when combined with another element. For instance, a person coming into a place of work with a weapon of some kind and threatening everyone inside the establishment. A weak U visa would be if a person was in the back, they hear, and are named as a victim, but the person was not in immediate danger. A strong U visa would be if the person was the cashier and was in direct proximity to the perpetrator. No actual violence occurred but you were assaulted in a felonious manner.

What agencies can certify my U visa?

USCIS Form I-918, Supplement B is the U visa certification document that a law enforcement agency can complete for a victim who is petitioning USCIS for a U visa. USCIS is the federal component of DHS with the responsibility to determine whether immigration benefits and immigration status should be granted or denied. Form I-918B is a required piece of evidence to confirm to USCIS that a qualifying crime has occurred and that the victim was helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of criminal activity. Form I-918B and its instructions are available on the USCIS website at www.uscis.gov with the Form I-918 for the U visa. In order to be eligible for a U visa, the victim must submit a law enforcement certification completed by a certifying agency. Certifying agencies include all authorities responsible for the investigation, prosecution, conviction or sentencing of the qualifying criminal activity, including but not limited to: Federal, State and Local law enforcement agencies; Federal, State and Local prosecutors’ offices; Federal, State and Local Judges; Federal, State, and Local Family Protective Services; Equal Employment Opportunity Commission; Federal and State Departments of Labor; and Other investigative agencies. The law enforcement certification, Form-918B, is a required piece of evidence to confirm that a qualifying crime has occurred and that that the victim was helpful, is being helpful, or is likely to be helpful in the detection, investigation or prosecution of criminal activity. Although a law enforcement certification is a required part of a victim’s petition for a U visa, law enforcement officers cannot be compelled to complete a certification. Whether a certifying law enforcement agency signs a certification is at the discretion of that law enforcement agency and the policies and procedures it has established regarding U visa certifications. The law enforcement certification validates the role the victim had, has, or will have in being helpful to the investigation or prosecution of the case; therefore, it is important that the law enforcement agency complete certifications on a case-by-case basis. Without a completed U visa certification, the victim will not be eligible for a U visa.

What if I can’t get anyone to sign my Certification?

Unfortunately there are a lot of agencies that are unaware of the U visa process or its potential benefits for immigrants. In some cases, a person can provide valuable information about the U visa process and can get law enforcement to sign off. However, there are times when law enforcement either does not agree with the philosophy of the visa or when ignorance and pride get in the way of understanding and helping. In these cases, there are various agencies that can sign off on your U visa certification (see “Which agencies can certify my U visa”). The first thing to do is find out whether the case is being prosecuted. If so, then you have two options outside of direct law enforcement - District Attorney/Federal Prosecutor’s Office and Judge. Another option opens up when you are working with a state victim support agency. Many times these agencies have authority to sign a U visa certification. If the event that gave rise to your victimization was in your work, then you can see if the EEOC would be the agency to investigate and then sign your certification. In short, there are many options and instead of being discouraged because one of the options did not work out, try and figure out another way to make the system work for you. Allcanza can help with all of these processes and more.

What are the main benefits from a U visa?

There are various benefits to applying and being approved for a U visa. Firstly the application process can allow an applicant to apply for a deferred action employment authorization document (work permit). The whole process is long and fraught with multiple steps. If the applicant is not careful, they can find themselves in a situation where they do not understand what they are doing and what is the next step. At Allcanza we can help you with each and every step of the process. The U visa can take up to 15 years to get a final approval - category A19 or A20. But in the meantime the government can grant a work permit (category C14), forgiveness for many inadmissibilities, and protection from deportation. After the full U visa is approved, the applicant will receive a new 4-year work permit under category A19 (principal applicant) or A20 (derivatives). Once the applicant has been under the new U visa for three years, the applicant can apply for a Lawful Permanent Resident status (LPR or Green Card). The applicant then can apply for US Citizenship through Naturalization after 4 years and 9 months.

What if I was the victim of a crime when I was not around?

This may sound like an odd question, but this is a question that many people have - “Thieves broke into my house and stole all my stuff, surely I qualify for a U visa” - or some variation of this question. Other questions like my truck was stolen, I was in a car accident, etc. The government is very clear that a crime of purely economic loss is not sufficient to qualify for a U visa. If the person was physically present during the home invasion or the truck robbery, then maybe that would give rise to the U visa; or, if the car accident resulted in a criminal charge like DUI, then maybe the person could apply for a U visa. Allcanza can help you determine if you have a good case for a U visa or if you even qualify at all. Use our eligibility exam on Allcanza.com.

Can a U visa give forgiveness for the permanent bar (INA 212(a)(9)(C))?

One of the many awesome facts about the U visa is that with a non-immigrant waiver (I-192) connected to your U visa application, the applicant can have almost any and all inadmissibilities forgiven or waived. This includes all crimes, entry and exit inadmissibilities, unlawful presences, permanent bars, previous deportations, and almost all other inadmissibilities. The applicant has to remember that just because the U visa can provide forgiveness for many inadmissibilities, it is not automatic. In other words, forgiveness through the U visa waiver is discretionary. This means that the officer that is reviewing and adjudicating the application has a lot of unilateral authority to approve or deny the applicant’s application based on the other negative factors in the case. It is imperative to really highlight the positive factors of the case as well as the level of victimization of the applicant in order to offset any negative factors.

What are crimes or inadmissibility that cannot be forgiven by a U visa

There are not very many crimes that make an applicant completely ineligible for a U visa, but that does not mean that the adjudicators will forgive any previous crime or inadmissibility. I know what you are thinking: “Stop talking in riddles and just tell me straight”. Well, in the law “it depends” is the answer we give; and for good reason. There are so many variables. In this case, we can talk about a few of those variables. Like was mentioned, almost any crime CAN be forgiven under the U visa process with the waiver, but the approval is based on discretion. This means that the immigration officer reviewing the case can make a decision about whether or not the applicant warrants or deserves the benefit. What exactly does this mean? Well, it means that an applicant can be denied the U visa even if the applicant qualifies for the U visa under the legal requirements. What kinds of situations would warrant a denial even when a person qualifies? A weak application - like I was slapped lightly and have no lingering harm - would technically be a felonious assault, but if the applicant has 2 previous deportations and a couple DUIs, the officer might decide that the person is a recidivist that could be a danger to society (driving drunk on the roads) and does not deserve the U visa. Another good example, an applicant was the victim of a gunshot and was rushed to the hospital. The applicant did not unreasonably deny assisting law enforcement and obviously is the victim of a violent crime. However, during the immigration process information comes out that the applicant was actually at a drug buy and was shot due to the deal going bad. This is an example of a person that an immigration officer would not adjudicate favorably. In conclusion, while almost all crimes are waivable under the U visa process, it does not mean that the U visa is a blank check for forgiveness. A person must evaluate their case properly with Allcanza to determine whether or not they should file.