For fear of deportation, undocumented aliens who are victims of crimes choose to remain silent and are reluctant to provide law enforcement with information necessary for the prosecution of crimes. This is especially true for undocumented women and children who are most vulnerable to exploitation and abuse. The U visa addresses this plight of crime victims and offers them and their family members the protection they need.
The U visa is a temporary visa granted to victims of certain criminal activities which occurred in the United States, a U.S. territory or U.S. military installation or violated U.S. laws. The victim must have suffered substantial mental or physical abuse as a result of the criminal activity and must possess credible and reliable information about the criminal activity. Also, the victim must have been helpful, are being helpful or are likely to be helpful in the investigation and prosecution of the crime.
Among the qualifying criminal activities included are abduction, blackmail, domestic violence, extortion, involuntary servitude, witness tampering, obstruction of justice, perjury and false imprisonment, among others. Criminal activities also include rape, sexual assault, sexual exploitation, trafficking including attempt, conspiracy or solicitation to commit any of these crimes.
Application for U visa requires a law enforcement certification on Form I-918B. This form certifies that the qualifying criminal activity occurred and that the crime victim assisted, is assisting or is likely to be helpful in the investigation and prosecution of the crime. Among those who may sign the form are certifying officials of federal, state, local law enforcement agencies, prosecutors, judges and other investigative agencies such as family protective services, the Equal Employment Opportunity Commission, and the Department of Labor.
Crime victims are still eligible to receive U visas whether a conviction resulted or not. Even when the case is closed because the perpetrator could not be identified or that arrest was not made because the perpetrator fled, a law enforcement certification may still be issued for the crime victim.
Also, regulations do not place a time limit on the issuance of a law enforcement certification as it relates to the time when the crime was committed. So long as the crime victim assisted in the past to investigate and prosecute the qualified crime, a law enforcement certification may still be issued.
The visa is available to crime victims who are in the United States or abroad. If the crime victim is applying overseas, the Form I-918 petition must be filed directly with the USCIS Vermont Center. The individual may file for the U visa in a U.S. consulate abroad once the petition is approved. If the crime victim is already in the United States, the approval of the Form I-918 petition by the USCIS immediately grants the alien U nonimmigrant status.
If the petitioner is under 21, the spouse, children under the age of 21, parents and unmarried siblings under 18 may be included. If the petitioner is 21 years old or older, only the spouse and children under 21 may be included. A separate Form I-918 Supplement A must be completed for each family member. Once approved and the family members are overseas, they must apply for a visa at a U.S. consulate abroad.
Form I-918 petition may be filed even if the alien is in removal proceedings, has a final order of removal, deportation or exclusion. Once approved, the order of removal, deportation or exclusion will be deemed cancelled. Where a family member included in the petition also has a final order of removal, the order of removal is also deemed cancelled when the petition is approved.
There is a cap of 10,000 U visas each year. Family members do not count towards the cap. When the cap is reached, petitioners and their qualifying family members who are found to be eligible will be issued a Notice of Conditional Approval of U nonimmigrant status which will be valid until they are issued their visas in the next fiscal year. While on conditional approval, they can obtain work authorization. If they are in removal proceedings, the USCIS will also issue a deferred action.
When granted, the visa allows the alien to remain and work in the U.S. for four years. Extensions may be granted where the alien’s continued presence is necessary for the prosecution of the crime.