Visa for Victims of Serious or Violent Crimes
The Victims of Trafficking and Violence Protection Act (VTVPA), enacted in 2000, creates a U visa classification to provide a visa to undocumented individuals who were victims of serious or violent crimes, thereby allowing these individuals to report the crime and to cooperate with government officials prosecute the crime. Significantly, it also provides for employment authorization for beneficiaries of U visas.
Since VTVPA’s enactment, USCIS has not issued regulations for persons to apply for the U visa. Without regulations, U visas cannot be issued. In the meantime, however, USCIS has issued U visa interim relief. Several memorandums have been issued for guidance in U visa interim relief.
In 2003, USCIS centralized the process of filing for U interim relief and required that all requests for U visa interim relief be file to the Vermont Service Center instead of the field offices. In reviewing applications, the Vermont Service Center was instructed to make prima facie determinations whether individuals merited U visa interim relief. This required the Vermont Service Center to determine whether on the face of an application, an applicant would be eligible for a U visa. No final decision would be made on the U visa itself. Rather, if given U visa interim relief, the individual would be granted deferred action and the ability to file for employment authorization. The grant of deferred action would be reviewed on an annual basis.
To be eligible for interim relief, an individual must show that the following: 1) The immigrant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity; 2) The immigrant possesses information concerning that criminal activity; 3) The immigrant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution the criminal activity; and 4) The criminal activity described violated the laws of the United States or occurred in the United States.
Moreover, an individual must be a victim of certain crimes. The Immigration and Nationality Act lists the following crimes: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law.
In addition, to obtain interim relief, an applicant must obtain certification from a government official signed within six months of application.
Notably, U visa interim relief is available to individuals who meet the requirements whether the crime occurred before or after the enactment of VTVPA. However, certain classes of aliens are ineligible for U interim relief. These individuals include persons convicted of an aggravated felony, persons who are inadmissible and persons who are in another valid nonimmigrant visa.
Nonetheless, a waiver is available to persons who are inadmissible to the United States and persons who are in another nonimmigrant visa can relinquish that status and file for U visa interim relief.
There is a limit of 10,000 U visas principal beneficiaries. Dependents of U visa beneficiaries include spouse, children, parents, siblings under the age of 18 at the time of the application, if the applicant is under the age of twenty-one. If an applicant is over the age of twenty-one, dependents include spouses and children. Dependents are not included in the numerical limit.
A person granted deferred action based on U visa interim relief has no status and Immigration and Customs Enforcement (ICE) can still institute removal proceedings against the individuals. Furthermore, U visa interim relief can be terminated if an individual is subsequently convicted for certain crimes or failed to disclose conduct that would have affected the grant of deferred action under U visa interim relief.
On September 17, 2008, USCIS issued regulations for the U visa and also issued a final interim rule requiring beneficiaries of U visa interim relief to apply for the U visa within 180 days of the effective date of the final rule, October 17, 2007, or the U visa interim status would be terminated. This required U nonimmigrant visa applications to file before April 13, 2008.
However, on April 10, 2008, USCIS announced U visa interim relief will not be terminated and that there would be no deadline for petitions for U nonimmigrant visas. Qualified individuals may file for a U visa petitions by filing Form I-918. No filing fee is required for this form. To overcome any grounds of inadmissibility, an individual must file Form I-192 with a $545 filing fee.
Once an application for a U visa has been approved, beneficiaries of a U visa may remain in that status for a period of up to four years and can apply for lawful permanent residence after three years. Their dependents can file for adjustment of status after their U principal beneficiary has adjusted to status to permanent residence.