U Visa Law Enforcement Certification

u visa

 

Introduction: Law Enforcement Certification for U Visas

The U Visa is a nonimmigrant visa for victims of certain crimes who cooperate with law enforcement in the investigation and/or prosecution of the crime perpetrators. The U-1 (U1) visa provides substantial relief and immigration benefits to crime victims, and thus serves as a significant incentive for the victim to assist authorities in the investigation and prosecution of serious criminal offenders.

In order to obtain a U1 visa, the crime victim must obtain “law enforcement certification” from the certifying law enforcement agency that is investigating the case, which will attest that the U Visa petitioner has been helpful, is currently being helpful, or will likely be helpful in the future. The Department of Homeland Security (DHS) has released a short manual titled the “U Visa Law Enforcement Certification Guide” [PDF version] [henceforth “Certification Guide”] to the public.1 In this article, we will use the guide and relevant regulations to provide a detailed look at the law enforcement certification process for U visas.

If you have not read about applying for U visas in general, please follow this link to learn about the process before reading this article. To learn about the benefits of being on U status, please follow this link to read our article on that subject.

Review of the Requirements for U Visas

By statute [PDF version], in order to be eligible for a U Visa, the alien must be the victim of a qualifying criminal activity for U status [see article]. The criminal activity must have either occurred in the United States (including overseas territories, military installations, or Indian country) or have violated U.S. laws. Furthermore, he or she must have suffered “substantial physical or mental abuse” as a result of the criminal activity. The crime victim must possess information about the criminal activity and be helpful to law enforcement in the investigation or prosecution of the crime. If the crime victim is under the age of 16, incompetent, or incapacitated at the time the qualifying crime occurred, a parent, guardian, or “next friend” may provide the information instead. The petitioner must ultimately be admissible to the United States (if he or she is initially inadmissible, a waiver of inadmissibility is required) in order to qualify for U status.2

Furthermore, regulations state [PDF version] if the alien is culpable for the criminal activity that is being investigated, he or she cannot be considered a “victim” of the criminal activity, and therefore would be ineligible for a U Visa.3

Overview of Law Enforcement Certification

By statute [PDF version], a U Visa petition must contain a law enforcement certification signed by the law enforcement agency investigating or prosecuting a crime.4 The law enforcement certification takes the form of the Form I-918, Supplement B, “U Nonimmigrant Status Certification,” and must be signed by a certifying official at the law enforcement agency within six months of the filing of the Form I-918 petition for a U Visa.5

The Certification Guide provides a non-exhaustive list of the agencies that may act as “certifying agencies”:

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.6

The law enforcement agency that would complete and sign the Form I-918, Supplement B, depends wholly on the specific case.

The decision to sign a law enforcement certification is completely in the discretion of the law enforcement agency.7 Neither United States Citizenship and Immigration Services (USCIS) nor anyone else can compel a law enforcement agency to sign a law enforcement certification. If a law enforcement agency declines to sign a law enforcement certification, the alien will be ineligible for a U visa.

It will be the crime victim's responsibility to submit the signed Form I-918, Supplement B, to USCIS as part of the complete U visa petition.

The Purpose of Law Enforcement Certification

The Certification Guide explains that when a law enforcement agency signs a Form I-918, Supplement B, it is attesting to USCIS that:

The petitioner was a victim of a qualifying crime;
The petitioner has specific knowledge and details of the crime; and
The petitioner has been, is being, or is likely to be helpful to law enforcement in the detection, investigation, or prosecution of the qualifying crime.8

It is important to remember the exceptions that exist when the crime victim is less than 16 years of age. We will discuss these further in the law enforcement certification context later in this article.

In addition to being required both by law and by regulation, the law enforcement certification demonstrates to USCIS that the petitioner meets the following requirements for U visa eligibility:

1. was a victim of a qualifying crime;
2. has knowledge of the crime that he or she was a victim of; and
3. has been helpful, is being helpful, or is likely to be helpful to law enforcement.

The Separate Roles of USCIS and Law Enforcement Agencies in the U Visa Petitioning Process

This is important because USCIS' responsibility in the U visa petitioning process is only to make a determination on whether the petitioner is eligible for a U visa. Because USCIS will never be the investigative or prosecuting agency for a crime that would make an alien eligible for a U visa, USCIS relies upon qualifying law enforcement agencies to certify the petitioner is a victim of a qualifying criminal activity and that the petitioner has been, is being, or is likely to be helpful in the investigation.

Furthermore, a law enforcement certification is, while necessary, not sufficient for approval of a U Visa. It is possible that a crime victim obtains a law enforcement certification, but be found to be ineligible for a U Visa for other reasons. For example, if the crime victim is unable to have a ground of inadmissibility waived, he or she will be eligible for a U Visa. USCIS may determine that while the crime victim meets other requirements for a U visa, he or she did not suffer “substantial physical or mental abuse,” which must be demonstrated by the crime victim (however, information on the Form I-918, Supplement B, may help support a petitioner's argument that he or she suffered substantial physical or mental abuse).9 USCIS may also find that the crime victim is should not be granted a U visa on other discretionary grounds.

Law Enforcement Certification and the Criminal History of the Crime Victim

If the crime victim has a criminal history, he or she will not be automatically ineligible for a U Visa unless he or she is culpable for the crime that he or she claims to be a victim of. USCIS has broad discretion to waive inadmissibility stemming from criminal issues, although it is a discretionary matter that will be decided on a case-by-case basis.

However, the certifying law enforcement agency may inform USCIS of the crime victim's criminal history on the Form I-918, Supplement B, if it believes that USCIS should know about it.10

Requirement to “Possess Information” for Law Enforcement Certification

In order to be eligible for a U Visa, the crime victim must possess credible and reliable information that establishes that he or she has knowledge of the crime that he or she is a victim of. It is not sufficient for purpose of U Visa eligibility that the crime victim is ready and willing to cooperate if he or she does not possess information that is valuable to the investigation or prosecution of the crime. However, as we will discuss later in this article, there may be other forms of relief available for alien crime victims who do not possess information that can help law enforcement.

There are certain situations where the crime victim does not need to be the person assisting law enforcement. If the crime victim is under 16 years of age, incompetent, or incapacitated at the time the qualifying crime occurred, one of the following people may assist law enforcement instead:

Parent;
Guardian;
Next Friend.

A “next friend” is defined as a person who appears in the lawsuit to act on behalf of a crime victim who is under 16, incompetent, or incapacitated. The next friend cannot be a party to a legal proceeding involving the crime victim and cannot be a court appointed guardian. The next friend does not qualify for any immigration benefits by acting as a next friend, but nevertheless may possess the required information about the criminal activity and provide the requisite assistance to law enforcement.

In this scenario, the parent, guardian, or next friend must meet the requirements with regard to possessing and assisting law enforcement that the crime victim would normally be required to meet.11

Indirect Victims and Law Enforcement Certification

Regulations generally require that in order to be eligible for a U Visa, the crime victim must be “an alien who has suffered direct and proximate harm as a result of the commission of the qualifying criminal activity.”12 However, there are limited situations in which an “indirect victim”13 may qualify.

The Certification Guide explains that a parent may qualify as an indirect victim if the principal victim is under 21 years of age and is incompetent or incapacitated to provide assistance to law enforcement, or if the principal victim is deceased due to murder or manslaughter.14 The immigration status of the child is not relevant (for example, if the child is a lawful permanent resident or U.S. citizen, an alien parent may still be recognized as an indirect victim in this situation). In order for a parent to qualify as an indirect victim, the crime must qualify for U Visa eligibility purposes and the parent will be required to both possess information and be helpful to law enforcement.15

Determining whether Crime Victim is Helpful, and Revocation of Law Enforcement Certification

“Helpfulness” means that the victim has, 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.16 This requires that the petitioner comply with all reasonable requests for assistance.17

It is important to remember that the petitioner's duty to be helpful to law enforcement does not cease once he or she obtains law enforcement certification. If a petitioner or U Visa holder, subsequent to obtaining law enforcement certification, unreasonably refuses to provide assistance, he or she may face adverse consequences. The law enforcement agency may withdraw or disavow its signed Form I-918, Supplement B, if the alien unreasonably refuses to cooperate in the investigation or prosecution of the case.18 Furthermore, a U Visa holder will be ineligible to adjust status if he or she does not comply with all reasonable requests for assistance subsequent to obtaining law enforcement certification. In that scenario, the burden will be upon the adjustment of status applicant to prove to USCIS that his or her refusal or failure to cooperate was not “unreasonable.”

Issues Pertaining to Law Enforcement Certification and the Outcome of the Investigation and/or Prosecution

Law Enforcement Certification when a Case is Closed

A law enforcement agency may submit a Form I-918, Supplement B, even after an investigation or case is closed. This is because there is no statute of limitations for when the crime must have occurred relative to the filing of the U Visa petition. Provided that the crime victim met all of the requirements when the investigation was ongoing, he or she is still eligible to petition for a U visa and obtain law enforcement certification.19

Law Enforcement Certification when Prosecution is Unlikely

Law enforcement certification can be granted when the perpetrator is no longer in the jurisdiction or prosecution is unlikely. This is because there is nothing in the laws or regulations regarding U Visa eligibility that requires that the perpetrator of the criminal activity be arrested, prosecuted, or convicted. The only requirements are that the crime victim was the victim of a qualifying crime and that he or she cooperated with law enforcement in the investigation and/or prosecution of that crime.

It follows that there is no requirement that the crime victim ultimately testify against the perpetrator in trial in order to be eligible for a U visa. However, if the crime victim is called upon to testify, he or she may not unreasonably refuse to do so.20

Law Enforcement Certification when a Different Crime is Prosecuted than the Crime that was Initially Investigated

The Certification Guide explains that law enforcement certification remains valid so long as the crime victim was the victim of a crime that qualifies him or her for U classification. Thus, the law enforcement certification will continue to be valid even if a different crime is prosecuted than was originally investigated, so long as the crime is still a crime that qualifies the U Visa petitioner for U status. The Certification Guide provides illustrative examples:

An initial investigation of rape eventually leads to a charge and prosecution of sexual assault. Both rape and sexual assault are qualifying crimes.
An initial investigation of embezzlement leads to a charge and prosecution of extortion. While embezzlement is not a qualifying crime, extortion is. If the crime victim assisting in the investigation was a victim of extortion, he or she may qualify for a U Visa.
In the process of investigating drug trafficking allegations, police determine that the drug trafficker's wife is a victim of domestic violence. She reported the domestic abuse. The state prosecutes her husband for drug trafficking but not for domestic violence. She is cooperating with the drug prosecution. Law enforcement may complete a Form I-918, Supplement B, for reporting the domestic abuse case that is not being prosecuted.

Law enforcement certification may also be submitted for criminal activity that is similar to the criminal activity that qualifies a crime victim for U status. The Certification Guide uses as an example that while video voyeurism is not one of the types of criminal activity listed, it may fall under “sexual exploitation,” which is a qualifying category of criminal activity. In this scenario, the crime victim would be required to present evidence and a law enforcement certification that show how the crimes are related.21

Law Enforcement Certification for a Crime Victim who is not in the United States

Law enforcement certification may be completed for a crime victim who is not in the United States provided that the qualifying crime took place in the United States or violated U.S. law.22

Law Enforcement Certification Guidance

Obtaining law enforcement certification is a necessary component of the U Visa petitioning process. Because the U visa petitioning process is complicated, a crime victim who is seeking immigration relief should consult with an experienced immigration attorney who has experience working with aliens who are victims of serious crimes. An experienced immigration attorney will be able to help a crime victim through each step of the process, including obtaining law enforcement certification. Furthermore, an experienced immigration attorney will be able to help a crime victim determine if the U visa is an appropriate form of relief given the facts of his or her situation (for example, certain trafficking victims may be eligible for the somewhat similar T visa [see article] while domestic violence victims in immigration proceedings may be eligible for VAWA cancellation of removal [see article]).

It is important to remember that because law enforcement agencies have complete discretion with regard to whether to grant certification, it is incumbent upon the crime victim seeking relief to comply with all reasonable requests for assistance. Furthermore, it is important to remember that the obligation to assist law enforcement does not cease after law enforcement certification is initially granted. A subsequent failure to cooperate may lead to the disavowal or revocation of law enforcement certification, and may ultimately prove fatal to a U visa-holder's ability to adjust status.

_______________________

  1. DHS, “U Visa Law Enforcement Certification Resource Guide: for Federal, State, Local, Tribal and Territorial Law Enforcement”
  2. This paragraph refers to INA § 101(a)(15)(U)(i); 8 U.S.C. § 1101(a)(15)(U)(i)
  3. 8 C.F.R. § 214.14(a)(14)(iii)
  4. INA § 214(p)(1)
  5. 8 C.F.R. § 214.14(c)(2)(i)
  6. Certification Guide, Pages 2-3
  7. Certification Guide, Page 5
  8. Certification Guide, Page 6
  9. Certification Guide, Page 11
  10. Certification Guide, Page 14 [for the section]
  11. Certification Guide, Page 14 [for the section]
  12. 8 C.F.R. 214.4(a)(14)
  13. There are certain persons who may qualify as “indirect victims” who are not discussed in the Certification Guide, there are other classes of people who may qualify for U status as “indirect victims.” These include certain victims of witness tampering, obstruction of justice, or perjury [8 C.F.R. § 214.4(a)(14)(ii)]. To learn more about indirect victims, please read or full article on applying for U visas.
  14. Certification Guide, Page 13; see also 8 C.F.R. § 214.14(a)(14)(i) [Explains that in this same situation, unmarried siblings under 18 years of age may also be considered indirect victims. Furthermore, regardless of the age of a direct victim, provided that he or she is incompetent, incapacitated, or deceased due to murder or manslaughter, an alien spouse or children under 21 years of age may be considered indirect victims].
  15. Certification Guide, Page 13 [for the section]
  16. Certification Guide, Page 3
  17. Id.
  18. Certification Guide, Page 12 [explaining how law enforcement agencies should explain in the reason for revocation/disavowal how the victim's refusal to cooperate is “unreasonable”].
  19. Certification Guide, Page 10 [for the subsection]
  20. Certification Guide, Page 11 [for the subsection]
  21. Certification Guide, Page 13 [for the subsection]
  22. Certification Guide, Page 10
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