U Visa Status: I Am The Victim Of A Crime, But I Do Not Have A Legal Status In The US. Is There Anything I Can Do?
Author: New York Immigration Lawyer Alena Shautsova
In the Law Office of Alena Shautsova, NYC Immigration attorney based in Brooklyn, New York, we help to qualify victims of crimes to obtain “legal” status in the United States. I am here to tell you that you do not have to be afraid if you are a victim of a crime, contact an attorney to make sure you do not incriminate yourself or place yourself in deportation proceedings when you are seeking help: such issues mainly arise from not being able to explain yourself properly when making a report, or filing applications. Depending on the severity of the circumstances you may even be able to apply for a nonimmigrant U or T Visa. Another option available is to apply under VAWA (Violence against Women Act).
The most common of these visas is the U Visa. You can apply for a U Visa if you have been the victim of a crime that happened in the US or if the US has jurisdiction over it, and you must provide assistance to law enforcement in reference to the qualifying crime. Some of the qualifying crimes include but are not limited to:
- Abduction/Hostage/Kidnapping type situations, False Imprisonment
- Abusive Sexual Contact, Rape, Sexual Assault, Sexual Exploitation, Forced Prostitution, Incest
- Blackmail, Domestic Violence, Extortion
- Obstruction of Justice, Perjury, Witness Tampering
- Assault, Torture
- Involuntary Servitude, Peonage, Slave Trade, Trafficking
- Genital Female Mutilation
- Any similar activity: criminal offenses in which the nature and the elements of the offenses are substantially similar to the enumerated above offenses.
This visa may be applied for after obtaining a certification from a US Law Enforcement Agency such as your local Police Station that states you have been, currently are, or are likely to help in assisting the law enforcement agency in the prosecution of the criminal activity. EEOC (Equal Employment Opportunity Commission) and the DOL (Department of Labor) and CPS (Child Protective Services) also qualify as a certifying agent as they have jurisdiction over the criminal investigation in their particular areas.
A qualifying victim for the visa may be a direct and indirect victim. A direct victim is someone who suffered harm. A direct victim may be a witness to the crime who had a severe reaction such as a miscarriage or heart attack. See72 FR 53014, 53017 (Sept. 17, 2007). A victim can be indirect: family member where the direct victim is deceased due to murder or manslaughter, or is incompetent or incapacitated and there the family is the spouse and children under 21, and if the direct victim is under 21, his/her siblings under 18 and parents as well as spouse and children; or where the victim is a victim of witness tampering, obstruction of justice or perjury, including attempt, solicitation or conspiracy to commit one or more of those offenses if he or she has been directly harmed by the offender who was committing those crimes to avoid being brought to justice for criminal activity or to further offender’s abuse and control of the U visa petitioner. A person is not a victim if he/she is culpable for criminal activity. 8 CFR 212.14(a)(14)(iii). Note that for indirect victims, the victim herself may be a US citizen, but qualifying family members non-citizens.
Once petitioning for a U Visa, it is also possible to petition for family members. If the Petitioner is under 21 years old, they may petition for their spouse, children siblings (if the sibling is under 18 and unmarried), or parents. If the petitioner is over 21 years old they may only petition for their spouse and children.
The petitioner must prove that he/she suffered substantial physical or mental abuse. No single factor is required and a series of acts may suffice, even where no single act meets the standard. 8 CFR 214.14(b)(1).
It is possible to obtain a Green Card after Three (3) years of continuous presence in the US for the petitioner. Afterward, when the individuals are eligible for and can be granted US Citizenship, they can apply for their family members that could not be applied during the process. It is up to the discretion of the attorney working on your U Visa to determine whether or not it is best to apply for your family members with your U-1 Petition altogether or after your application has been approved, as there are many factors to be taken into consideration.
There is 10,000 cap on U visas per year, and recently it created a long backlog for cases. However, visas for family members do not count towards the backlog. The good news is that if a U visa petition is approved, outstanding administrative order of removal, exclusion, deportation will be deemed canceled by operation of law as of the date of USCIS’ approval. Removal orders by an Immigration judge may be disposed of if a motion to reopen and terminate is filed and granted. 8 CFR 214.14 (c )(5)(i).
Once a U status is issued, USCIS will automatically issue an employment authorization to the petitioner. Note: even though the law provides that a person with a pending U visa status may receive a work authorization as well, in practice, USCIS has not been issuing such work permits without a lawsuit. U visa status is granted for four years, the status may be extended or revoked on notice. A family member’s extension of stay may be granted beyond the expiration of the principal’s U -1 status where the family member is unable to enter the US due to consular delays and extension is necessary to obtain the 3 years for Adjustment of status.
Note that family members: if the U visa principal dies, the surviving qualifying members may keep their status if the death occurred after the U relative was admitted in a U status. Importantly: some family members may qualify for U derivative status, and some may be regarded as dependents for adjustment of status even if they never held the U visa derivative status. All U visa applicants may qualify for very generous waivers of inadmissibility that can waive permanent bar, most criminal convictions, unlawful presence, etc.
Obtaining a Green Card through a U Visa
To obtain your Green Card through a U Visa, U-1 through U-5 holders you must have:
- Lawful U admission, and continue to hold U status at the time of filing for adjustment of status (or accrued at least 4 years in U interim status (deferred action and employment authorization) and files for AOS within 120 days of I-918 approval;
- Three (3) years of continuous presence in the US since the date of admission in U status. Physical presence would be considered broken if a person stayed outside of the US for more than 90 days, or 180 in the aggregate unless the absence was to assist the prosecution.
- Complied with US Law Enforcement for reasonable requests related to the prosecution of the crime you were a victim of.
- The Certifying Agency for your U Visa must show that your continued presence in the US is needed for a cohesive family and justifiable on humanitarian grounds, or otherwise are of national or public interest.
- Is not inadmissible on the grounds of being a Nazi, participating in genocide, torture, extrajudicial killing.
Family Members have different requirements for obtaining a Green Card through a U Visa dependent. They must not have ever been admitted to the US under U Visa Nonimmigrant Status and they must prove extreme hardship, either to the U-1 Visa petitioner or themselves if they were not allowed to remain in the US. It is best if the family members apply at the same time the U-1 Petitioner does for their Green Card. A spouse, child, or parent may adjust even if they never had U visa status by themselves. They will have to show extreme hardship to themselves or to the U principal for AOS. The principal will have to submit a form I 929 separately or concurrently with her own AOS. Only after that form is approved, the family member will be able to submit AOS. Note: in this situation, the children are not protected from aging out.
There is no time limit as to when a person may file his/her petition for a U visa: even if the crime occurred several years ago, one may still request a U visa certification necessary for the process. Once issued, a U visa certification is valid for six months. The U visa application must be filed on form I -918 during the validity of the U visa certification. It is possible to file for a U visa when a person is in removal proceedings or even once he/she received a removal order already. However, the filing of the U visa does not affect the removal proceedings by itself: a separate motion to stay the removal has to be submitted for the removal to be stayed.
If you have questions regarding the U visa status, please contact our New York Immigration lawyers at 917-885-2261 to reserve a confidential consultation.