U Nonimmigrant Status (U Visa)

U Status

 

Introduction

U-1 nonimmigrant Visas are for victims of certain crimes committed in the United States or subject to U.S. jurisdiction who:

Possess knowledge that would be helpful to authorities in investigating or prosecuting the crime; and
Are either helping or deemed to be likely to help authorities in investigating or prosecuting the crime

Congress established the U Visa category [see category] both as a form of relief for victims of certain crimes, and an incentive for victims to help U.S. law enforcement authorities prosecute very serious offenses. In addition, certain family members of U-1 Visa beneficiaries are eligible for derivative U-2, U-3, U-4, and U-5 Visas. U status lasts for 4 years, unless extended, and persons are eligible to apply for adjustment of status from U status to lawful permanent resident (LPR) status after spending 3 years with U status. This article will explain which persons are eligible for U visas, the process for applying for U visas. If you or a loved one is applying for U status, please take note of the final section of this article, Tips for Filing for U Status [see section]. To learn more about the benefits of U status and the process for adjustment of status from U status, follow this link for our in-depth article on those issues [see article].

Eligibility for U-1 Visa

Admissibility

In order to be eligible to obtain a U-1 Visa, an applicant must be admissible to the United States except on grounds of public charge.1 The Attorney General may waive almost2 all grounds of inadmissibility if he or she deems doing so to be in the public interest.3 Since U Visas are by definition for those who are assisting or will assist in U.S. law enforcement authorities in conducting important criminal investigations and prosecutions, grounds of inadmissibility are more likely to be waived for U-1 Visa applicants on account of serving the public interest than for many other visa applicants. Nevertheless, U-1 Visa applicants whose grounds for inadmissibility are criminal (unrelated to the crime that they were a victim of for purpose of applying for U status) may have difficulty having those grounds waived.4 For example. as per regulations, United States Citizenship and Immigration Services (USCIS) will only waive inadmissibility based on violent crimes or security-related grounds5 under “extraordinary circumstances.”6

Eligible Crimes

Pursuant to INA § 101(a)(15)(U)(iii), a person must be the victim of a crime involving at least one of the following in order to be eligible for a U-1 Visa:

rape;
torture;
trafficking;
incest;
domestic violence;
sexual assault;
abusive sexual contact;
prostitution;
sexual exploitation;
stalking;
female genital mutilation;
being held hostage;
peonage (forced labor on account of debt or convict labor);
involuntary servitude;
slave trade;
kidnapping;
abduction;
unlawful criminal restraint;
false imprisonment;
blackmail;
extortion;
manslaughter;
murder;
felonious assault;
witness tampering;
obstruction of justice;
perjury;
fraud in foreign labor contracting; or
attempt, conspiracy, or solicitation to commit any crime on this list or any crime similar to or related to crimes on this list.7

In order to qualify a victim for U status, the crime he or she is a victim of must have taken place either in the United States, or have violated a U.S. federal law that provides for extraterritorial jurisdiction.8

Furthermore, if the U-1 Visa applicant played a part in the criminal activity that he or she is a victim of, he or she is ineligible to obtain a U-1 Visa.9

The U-1 Visa applicant must have suffered direct and proximate harm as a result of the crime he or she was a victim of.10 This definition, pursuant to regulations found in 8 C.F.R. 214.14(a)(14), includes certain indirect victims of the statutorily enumerated crimes who have suffered direct and proximate harm as a result of the crime.11

Victims of certain severe forms of human trafficking should consult our article on T-1 Visas [see article].

Suffered Substantial Physical or Mental Abuse

Pursuant to INA § 101(a)(15)(U)(i)(I), the victim of the crime must have suffered “substantial physical or mental abuse” related to the crime. Regulations define this as abuse that causes injury or harm to the victim's physical person or emotional or psychological soundness.12 Per regulations, United States Citizenship and Immigration Services (USCIS) will consider the nature of the injury suffered by the victim, the severity of the perpetrator's conduct, the severity of harm, the duration of infliction of harm, the existence of permanent damage to the victim's appearance, health, and physical or mental soundness, or any aggravation of a victim's preexisting conditions.13 Administrative Appeals Office (AAO) has held that an applicant may be able to satisfy the requirement that he or she has suffered substantial physical or mental abuse by the totality of the evidence of abuse even if no individual act of physical or mental abuse that he or she suffered would by itself satisfy the standard.14

Helpful in Assisting Law Enforcement in Investigating or Prosecuting the Crime

Pursuant to INA § 101(a)(15)(U)(i)(II), the U-1 visa applicant must possess information concerning the criminal activity that he or she is a victim of. Furthermore, he or she is required to have been helpful, be helpful, or deemed to be likely to be helpful to law enforcement in the investigation or prosecution of the crime.15 In the case of an applicant less than 16 years of age, this requirement may be fulfilled by the applicant's “parent, guardian, or next friend.”16 “Next friend” is defined in 8 C.F.R. § 214.14(a)(7) as a person who appears in a lawsuit to act for the benefit of an applicant less than 16 years of age who has suffered substantial physical or mental abuse as a result of being a victim of a crime. The “next friend” cannot be a party to the legal proceeding and cannot be the guardian of the U-1 Visa applicant.

In order to be approved for a U-1 Visa, the applicant will require a written form by the law enforcement officials he or she is assisting (see more in our section on applying for U-1 and derivative U Visas). It will be incumbent upon the applicant for the U-1 Visa and his or her legal representation to demonstrate that he or she is not only a victim of one of the statutorily enumerated crimes, but that the assistance he or she can and will provide in the investigation and prosecution of the perpetrators justifies the grant of U status.

Eligibility for Derivative U Visas (U-2, U-3, U-4, and U-5)

There are four types of derivative U Visas that certain family members of a person granted a U-1 Visa may be eligible for:

U-2 Visa (spouse)
U-3 Visa (child)
U-4 Visa (parent)
U-5 Visa (unmarried sibling)17

If the beneficiary of the U-1 Visa is less than 21 years of age, the following family members are eligible for derivative U Visas:

Spouse (U-2 Visa)
Children (U-3 Visa)
Unmarried sibling(s) less than 18 years of age (U-5 Visa)
Parent(s) (U-4 Visa)18
If the beneficiary of the U-1 Visa is over 21 years of age, the following family members are eligible for derivative U Visas:
Spouse (U-2 Visa)
Children less than 21 years of age (U-3 Visa)19

As with U-1 Visa applicants, derivative U Visa [see category] applicants must be otherwise admissible to the United States.20 Provided that the principal U-1 applicant filed his or her application before turning 21 years of age, he or she will be treated as being less than 21 years of age until he or she is approved for U status.21 Derivative U Visa applicants in the same situation do not age out provided that the principal was less than 21 years of age at the beginning of the application process.22

Applying for U-1 Visas and Derivative U Visas

In order to apply for a U-1 Visa, an applicant must file a Form I-918, Petition for U Nonimmigrant Status [link].23 The Form I-918 must include:

A signed statement by the applicant attesting to the facts of his or her victimization; and
Any additional evidence documenting victimization and proof of mental or physical abuse.24

Every applicant for a U-1 visa must also file a Form I-918, Supplement B within six months of filing for a U-1 Visa with the Form I-918. The Supplement B is filled out by a “certifying official” from an agency that is investigating or prosecuting the crime that the U-1 applicant is a victim of. Certifying officials are typically the head of a regulatory-defined certifying agency (e.g., a federal, state, or local prosecutor, judge, or official involved in an investigation; a supervisor designated by an agency to handle U status certifications; a federal state or local judge; or in certain cases, child protective services, the Department of Labor, or the Equal Employment Opportunity Commission).25 The Supplement B will demonstrate:

That the person filing is a certifying official; and
That the applicant for a U-1 Visa was a victim of a qualifying criminal activity that the certifying official's agency is investigation or prosecuting; and
That the U-1 Visa applicant possesses information about the criminal activity and has been, is being, or is likely to be helpful to the investigation or prosecution of those responsible; and
That the criminal activity violated U.S. law or is subject to U.S. jurisdiction.26

Persons filing for U status abroad must have biometrics taken at a U.S. consulate or military instillation.27

Unlike many applications for nomimmigrant or immigrant statuses, there is no filing fee for the Form I-918.

If the applicant has an unwaived ground of inadmissibility, he or she must file a Form I-912, Application for Advance Permission to Enter as Nonimimmigrant [link].28

Each applicant for a derivative U visa must file a Form I-918, Supplement A (the Supplement A is used for categories U-2 thru U-5). This may be done concurrently with the primary Form I-918 or after the principal files his or her Form I-918, although in the case that the Supplement A is filed after, it must include a copy of the original Form I-918.29 The Supplement A must include evidence that the family member is a qualifying relative of the primary U applicant, and a Form I-192 if the family member has any unwaived grounds of inadmissibility.30

Filing for U Status While in Removal Proceedings

Persons in removal proceedings who appear to be eligible for U status may seek a joint motion with the Department of Homeland Security (DHS) to continue, stay, or terminate removal proceedings in order to allow for a U status application to be considered.31 An immigration judge (IJ) may also grant a continuance.32 Applicants who have been issued a final order of removal may request a stay of removal so that their eligibility for U status may be fully adjudicated.33 Provided that the applicant appears to be eligible for U status, the petition has not been denied, and there are no serious adverse factors weighing against the applicant's staying in the United States, immigration authorities are instructed generally to exercise favorable discretion on not removing the applicant.34 If a U Visa application is approved, pending removal proceedings or orders of removal are canceled as of the date of approval.35

Approvable U-1 Visa Applications After Annual Cap on U Visas is Reached

There is an annual cap on U-1 Visas set at 10,000 allocated per year (there is, however, no cap on derivative U Visas).36 If a U-1 Visa applicant's Form I-918 is found to be approvable after the annual cap has been reached, he or she will be provided with a Notice of Conditional Approval and then granted either deferred action or parole until he or she may obtain a U Visa [see category] the following year.37 While under a grant of deferred action or parole, the grantee will not accrue any unlawful presence and will be authorized for employment.38 In most cases, an applicant who was already granted conditional approval will be permitted to file a Form I-918 without additional evidence when more U-1 Visas are available.39

Tips for Filing for U Status

Any applicant for U Status should seek experienced immigration counsel. Obtaining a U Visa [see category] is a complicated process, and there are many places during the process where innocent mistakes could lead to a needy and deserving applicant's petition being denied.

It is important to remember that U-1 Visas are benefits intended to encourage victims of serious crimes to cooperate in the investigation and prosecution of those crimes. A U Visa [see category] applicant will ultimately depend on the law enforcement agency he or she is assisting to file a Supplement B on his or her behalf, and there is no requirement that a law enforcement agency must do so.40 For these reasons, it is imperative for U Visa [see category] applicants to demonstrate not only that they useful information for law enforcement, but also to be fully cooperative in the investigation and prosecution of the crime.

U Visa [see category] applicants must also put together a compelling case that they suffered “substantial physical or mental abuse” as a result of their victimization in order to demonstrate that they should be eligible for the benefits of U status.

U Visa [see category] applicants must also be proactive in addressing any grounds of inadmissibility that may exist prior to their applications. While most grounds of inadmissibility are likely to be waived for qualifying U Visa [see category] applicants on public interest grounds, it is important that U Visa [see category] applicants and their attorneys request waivers early in the U Visa application process.

In the case of derivative U Visa [see category] applicants, while they may apply after the principal U-1 Visa applicant, if they ultimately plan to adjust to lawful permanent resident (LPR), they are best advised to apply as soon as possible since three years on U status are required before a person on U Status may adjust to LPR status.

______________________

  1. S. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1054, citing INA § 212(a)(4)(E) for statute regarding public charge.
  2. Kurzban 1054, citing INA § 212(d)(14); 8 C.F.R. § 212.17(b)(1); INA § 212(a)(3)(E) [list of non-waivable crimes that involve Nazis, genocide, torture, or extrajudicial killings]
  3. Kurzban 1054, citing INA § 212(d)(14); 8 C.F.R. § 212.17(b)(1)
  4. Kurzban 1054, explaining that USCIS will weigh the crimes against the public interest in granting a waiver
  5. Kurzban 1054, citing INA § 212(a)(3) for definition of these offenses
  6. Kurzban 1054, citing 8 C.F.R. § 212.17(b)(2)
  7. Kurzban 1051, citing 8 C.F.R. § 214.14(a)(9); 72 FR 53014, 53018 (Sept. 17. 2007) [defining similar as an offense that “the nature of the elements of the offenses are substantially similar to the elements of statutorily enumerated list of criminal activities”]
  8. Kurzban 1050, citing INA § 101(a)(15)(U), 8 C.F.R. § 214.14(b) [this includes Indian country, military installations, and territories and possessions of the United States]
  9. 8 C.F.R. § 214.14(a)(14)(iii) [If the applicant is culpable for the criminal activity being investigated, he or she cannot be considered a victim of the criminal activity]
  10. Kurzban 1051, citing 72 FR 53014, 53017 (Sept. 17, 2007); citing as perhaps non-obvious example of a person who would qualify, someone who witnesses a qualifying crime and as a result, has a miscarriage or a heart attack.
  11. Kurzban 1051, citing 8 C.F.R. 214.14(a)(14) [Providing examples of qualifying “indirect victims.” One example would be certain family members (depending on the age of the direct victim) of the direct victim where the direct victim is deceased due to murder or manslaughter, or is incompetent due to the crime. Another example is where the indirect victim is a victim of witness tampering, obstruction of justice or perjury (including an attempt to solicit the indirect victim to commit one of those offenses), he or she was directly and proximately harmed by the perpetrator of those crimes, and the perpetrator committed the crimes in order to make investigating his or her criminal activity more difficult or to further his or her control over or abuse of the indirect victim.]
  12. Kurzban 1051, citing 8 C.F.R. § 214.14(a)(8); 72 FR at 53018
  13. Kurzban 1051, citing 8 C.F.R. § 214.14(b)(1) [also noting that the totality of the evidence will be weighed to see if the victim meets the standard of having suffered “substantial physical or mental abuse”]
  14. Kurzban 1051, citing Mater of __ (AAO Apr. 7, 2011), published in 17 Bender's Immigr. Bull. 1907, 1924 (Dec. 1, 2012)
  15. INA § 101(a)(15)(U)(i)(III)
  16. Id.
  17. Kurzban 1053, citing INA § 101(a)(15)(U)(ii); 8 C.F.R. §§ 214.14(a)(10), (f)
  18. INA § 101(a)(15)(U)(ii)(I) for the list
  19. INA § 101(a)(15)(U)(ii)(II) for the list
  20. Kurzban 1053, citing 8 C.F.R. § 214.14(f)(3) [explaining that derivative U Visa [see category] applicants must apply for a waiver of a ground of inadmissibility if necessary]
  21. Kurzban 1054, citing INA § 214(p)(7)(B)
  22. Kurzban 1054, citing INA § 214(p)(7)(A)
  23. Follow link for USCIS page with downloadable Form I-918 and its accompanying forms
  24. Kurzban 1052
  25. Kurzban 1052, citing 8 C.F.R. §§ 214.14(a)(2), (c)(2); EEOC Memodrandum, EEOC Procedures for U Nonimmigrant Classification Certification (July 3, 2208), published on AILA InfoNet at Doc. No. 08070341
  26. Kurzban 1052, citing 8 C.F.R. § 214.14(c)(2)
  27. Kurzban 1053, citing Cable, supra at ¶7.
  28. Follow the link for the USCIS page on the Form I-192
  29. Kurzban 1053, citing 8 C.F.R. § 214.14(f)(2)
  30. Kurzban 1053, citing 8 C.F.R. § 214.14(f)(3)
  31. Kurzban 1054-55, citing 8 C.F.R. § 214.14(c)(1); 72 FR 53022 at n.10 (Sept. 17, 2007); AFM 39.1(c)(1)(B)
  32. Kurzban 1055, citing Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012); Ramierez Sanchez v. Mukasey, 508 F.3d 1254 (9th Cir. 2007) [remanding to the Board of Immigration Appeals (BIA) to reconsider a U Visa [see category] applicant's request for a continuance, or motion to terminate, or motion to stay removal proceedings to allow for the adjudication of his U Visa [see category] application]
  33. Kurzban 1055, citing 8 C.F.R. § 214.14(c)(1)(ii)
  34. Kurzban 1055, citing Memo, Venturella, Acting Director, ICE, Guidance: Adjudicating Stay Requests Filed by U Nonimmigrant Status (U-visa) Applicants (Sept 24, 2009), published on AILA InfoNet at Doc. No. 10050768
  35. Kurzban 1053, citing 8 C.F.R. § 214.14(c)(5)(i)
  36. Kurzban 1052, citing AFM at 39(d)
  37. Kurzban 1052, citing 8 C.F.R. § 214.14(d)(2); USCIS, Questions and Answers, USCIS Reaches Milestone: 10,000 U Visas Approved in Fiscal Year 2010 (July 15, 2010), published on AILA InfoNet at Doc. No. 10071530
  38. Kurzban 1053
  39. Kurzban 1052, citing 8 C.F.R. § 214.14(c)(1), but also see 8 C.F.R. § 214.14(c)(4) which explains that USCIS is not bound by its previous determination and may still request more evidence
  40. Kurzban 1052, citing Ordonez Orosco v. Napolitani, 598 F.3d 222, 225-27 (5th Cir. 2010) [in the view of 5th Circuit, the grant of law enforcement certification is at the discretion of the law enforcement agency]

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1051-1055,. Print. Treatises & Primers.

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U visa