U visas available for out-of-status immigrants in US who are victims of certain crimes

CHICAGO, Illinois — Victims of certain crimes may have an avenue to gain legal status through the U visa.  This immigration benefit extends to the victim and qualifying family members of the victim.

The U visa was implemented to help law enforcement investigate and prosecute crimes that are mostly related to domestic violence, human trafficking, sexual assault, as well as other crimes listed in the regulations.

There are 10,000 visas allocated per year.  Since 2008, close to 90,000 U visas have been issued to victims and their qualifying family members.  When the per-year limit of 10, 000 visas is reached, USCIS continues to review applications and it will send out letters of eligibility.  The applicant who is deemed eligible, but has not made the quota, is waitlisted and must continue to meet the qualifying requirements (e.g., cooperate with law enforcement) until the visa is issued.

If granted, the applicant obtains legal status for four years with an employment authorization.  The status may be extended if the presence of the victim is necessary in the continued investigation and prosecution of a crime or the Department of Homeland Security determines the existence of exceptional circumstances.

U visa beneficiaries may eventually apply for permanent residency after a continuous presence of three years and the continued presence of the victim is based on humanitarian grounds to ensure family unity.

The U visa has been used as a form of relief from deportation and lately, it has gained momentum as an avenue for the redress victims of immigration fraud. The U visa has also been used as a form of seeking justice for the victims of labor contracting fraud such as when foreign workers are intentionally brought into the United States under false terms.

Qualifying Crimes

Not all crime victims may apply for a U visa.  Victims of the following or similar crimes may apply for a U visa: abduction, unlawful criminal restraint, kidnapping, false imprisonment, blackmail,        involuntary servitude, extortion, peonage, domestic violence, slave trade, crimes sexual in nature,  trafficking, (abusive sexual touching, sexual assault,       felonious assault, sexual exploitation), female genital mutilation, manslaughter, incest, murder, prostitution, torture, rape, obstruction of justice, being held hostage, witness tampering, perjury and similar criminal activities to the above.

Any attempt, conspiracy or solicitation to commit the above-listed or related crimes is a qualifying crime for purposes of the U visa.

Who may avail of a U Visa?

A victim of one of the above qualifying crimes, as well as his or her spouse and children below 21 may apply for a U visa. A crime victim who is under 21 may also benefit an unmarried sibling who is under 18 and parents to become eligible for a U visa.

Should the qualifying crime be committed within the United States?

The victim of a qualifying crime within the U.S. may apply for a U visa.  Also, a crime that is perpetrated outside the U.S. may be a qualifying crime if it violates U.S. federal law.

How does it work?

A successful U visa application is conditioned upon evidence that the victim suffers substantial physical or mental abuse as a result of being the victim or indirect victim (eligible family members) of a qualifying crime.

The victim must be in possession of reliable information to help in the investigation of a qualifying criminal activity in the U.S. military installations, territories and outside the U.S, if a federal law is violated.

It is important to also obtain a certification from an official –- the police, a judge or a prosecutor –- who knows how the applicant will help in the prosecution of the qualifying crime.

A U visa application must be fully documented with affidavits from those who know about the crime, medical records, the victim’s sworn statement about the facts of the crime, professional evaluation how the crime affected the U visa applicant, and similar pieces of evidence.

It is also important to submit vital documents to prove the relationship between the U visa principal applicant and the derivative beneficiaries.

Successful/Potential U Visa Cases and Challenges

An undocumented woman who owned a business was robbed by three armed men. This experience has left an indelible mark on her resulting in psychological harm. She had to move out of the neighborhood, causing her to lose customers.  She reported the incident to the police.  She learned about the U visa and availed of it.

Her cooperation with the police and testimony in court led to the conviction of the armed robbers.  With the help of a knowledgeable attorney, she was able to comply with the requirements. Years ago, she was granted a U visa. She is now a resident of the United States, trying her best to complete an education so that she can pursue dream career.

Foreign workers looking for greener pastures are lured to work in the United States.  Oftentimes, this involves a network of a recruiter in the foreign country working with an unscrupulous financing company and equally deceptive local placement agencies or individuals.  The worker is made to sign a fake contract reflecting compliant wages and conditions such that the opportunity is too inviting to pass up.

The worker is then made to sign a loan agreement to pay off the placement and visa fees by installment prior to their departure for the United States.  This means that the worker is already deep in debt even before he or she starts earning income.

The bigger surprise is when the worker finds out that the job is sporadic, not full time, and the wages are way below the promised wages.  To make it worse, the workers are placed in cramped housing conditions.  This scenario has the makings of medieval peonage or slave trade, in violation of federal law.

Oftentimes, the challenge is that victims in real sympathetic situations are not willing to come forward. Sometimes they never thought of keeping evidence that could someday substantiate their claim, and law enforcement agencies may not be willing to issue the required certification  (because the U visa has been abused in the past as well).  However, dogged determination on the part of advocates, have resulted in U visas being rightfully issued to real victims.