advocacy with immigrant survivors toolkit

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Help with Legal Cases: Immigration remedies

Survivor-specific: U-visas

 

Congress created the U-visa program as part of the Victims of Trafficking and Victim Protection Act of 2000.[1] There are two primary goals for the U-visa:

1)    to help law enforcement increase public safety by facilitating crime reporting by undocumented immigrants

2)    to provide immigration protections to victims of crimes and their families.

These two goals are complementary – the U-visa exists to encourage immigrant crime victims’ collaborations with law enforcement, and a fair process of providing access to a specific form of immigration relief will promote these collaborations. Legal advocates have noted that law enforcement “that posses an understanding of the broader circumstances related to immigrant crime victims, the barriers they face in reporting crime, and their need for humanitarian assistance, act to benefit individuals and community policing efforts” [emphasis added].[2]

 

This is a basic overview of U-visas, eligibility requirements, and resources, and should not be considered legal advice.  For more information about U-visa practitioners in your area, visit the National Immigration Legal Services Directory (by Immigration Advocates Network) or the Directory of Service Providers (by the National Immigrant Women’s Advocacy Project).

 

1.     What’s a U-visa?

 

A U-visa is a nonimmigrant (temporary status) visa given to victims of certain crimes. A person is eligible for a U-visa if they:

  • Are a victim of qualifying criminal activity (see #3, below)
  • Had information about the crime (if the victim is under 16, incapacitated, or unable to give information about the crime due to disability, a parent, guardian, or “next friend” can provide information and assistance on the victim’s behalf)[3]
  • Suffered substantial physical or mental harm due to the victimization
  • Was, is, or will be helpful in the detection, investigation, prosecution, conviction, or sentencing of the crime (this means providing assistance when reasonably requested by law enforcement, prosecutors, judges, or other officials, even after the U-visa is granted). Note, however, that this also means “a current investigation, the filing of charges, a prosecution or conviction is not required to sign the law enforcement certification,” and that there is no time limit to signing a certification (one can be signed for a crime that happened many years ago, very recently, or for a closed case).[4]
  • Are admissible to the US or have an approved I-192 waiver of inadmissibility

 

The crime must have occurred in the US or violated U.S. law. The law does not require that the perpetrator be a US citizen or legal permanent resident (VAWA self-petitions do); or a criminal investigation, filing of charges, prosecution, or conviction by law enforcement.

 

2.     What are the benefits of applying for a U-visa?

 

An approved U-visa application confers to immigrant crime victim applicants a four-year visa and work authorization, enabling them to work and live legally in the US. After living continuously for three years in the US in U-visa status, victims may apply for legal permanent residence. In this way, U-visas can provide long-term security for immigrant victims of crime.

 

Family reunification is another important benefit of the U visa program. Victims of U-visa qualifying crimes may include in their applications certain family members (both in the US and abroad) who, through their relationship to the victim, can receive U-visa “derivative” status.

  • Victims who are over 21 years old may include their spouse and children under 21 in their applications. 
  • Victims who are under 21 years old may include their siblings under 18 years old, spouse, minor children, and parents in their applications.

 

U-visa “derivative” status cannot be given to family members who commit the qualifying crime(s) against the victim.  For example, the abusive spouse in a situation of domestic or sexual violence is not eligible to receive U-visa “derivative” status.

 

Note on conditional approvals:Currently, 10,000 U-visas are available annually. US Citizenship and Immigration Services (USCIS) has reached the U-visa cap every year for the past six years.  For U-visa applications that are filed and approved after the cap has been met, USCIS designates them “conditionally approved” and puts them on a waitlist until U-visas become available (at this point, about 2 years after receiving “conditional approval” status). Victims and family members who hold “conditionally-approved” U-visas also receive work authorization.

 

Victims can still apply for U visa status after the cap has been met! USCIS will evaluate cases to see whether they can be conditionally approved. For more information on conditional approvals, see ASISTA’s Practice Advisory on Conditional Approvals.

 

3.     What crimes count as qualifying crimes for U-visas?

 

The following crimes are considered qualifying criminal activity for obtaining a U-visa:

 

 

§  Abduction

§  Abusive sexual contact

§  Blackmail

§  Domestic violence

§  Extortion

§  False imprisonment

§  Female genital mutilation

§  Felonious assault

§  Fraud in foreign labor contracting

 

§  Hostage taking

§  Incest

§  Involuntary servitude

§  Kidnapping

§  Manslaughter

§  Murder

§  Obstruction of justice

§  Peonage

§  Perjury

§  Prostitution

 

§  Rape

§  Sexual assault

§  Sexual exploitation

§  Slave trade

§  Stalking

§  Torture

§  Trafficking

§  Witness tampering

§  Unlawful criminal restraint

 

Some of these crimes (like extortion, witness tampering, obstruction of justice, or sexual assault) may be issues that the survivor is facing at work. It is important to screen for any issues in the context of workplace violence.

 

In addition to these crimes, USCIS will also consider for U-visa purposes “substantially similar” crimes to one of the listed crimes; or attempts, conspiracy, or solicitation to commit any of the listed crimes as qualifying criminal activity.

 

Most U-visa cases filed with USCIS involve domestic or sexual violence.

 

4.     How would someone prove substantial physical or mental harm as a result of being a victim of a qualifying crime?

 

All U-visa applicants are required to write a personal declaration describing the criminal incident, their helpfulness to law enforcement, and what harm resulted as result of their victimization. 

 

The U-visa regulations state that in evaluating “substantial harm” USCIS will look at:

  • the nature of the injury
  • the severity of the perpetrator’s conduct
  • the severity of the harm suffered
  • the duration of the infliction of harm
  • any permanent or serious harm to appearance, health, and physical or mental soundness of the victim, including any aggravation of pre-existing conditions.

 

USCIS evaluates substantial harm as it applies to the individual applicant.  That is, what may be “substantial harm” for one person may not be for someone else.

 

The law states that no one factor is necessary to prove the abuse is substantial. Rather, “a series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level.”[5] But on the other hand, no single factor or combination of factorsautomatically means that the abuse suffered was substantial.

 

Tools & Resources

 

Evidence checklist for immigrant victims applying for the crime victim visa (U-visa)by the National Immigrant Women’s advocacy Project and Legal Momentum

 

U-visa application victim flow chartby the Bureau of Justice Assistance and the American University Washington College of Law

 

A U-visa factsheet for advocatesby Legal Momentum



[2] UNC School of Law Immigration/Human Rights Policy Clinic & ASISTA (n.d.). The political geography of the U visa: Eligibility as a matter of locale.

[3]INA Sec. 101(a)(15)(U); 8 USC Sec. 1101(a)(15)(U)