U visa or status is set aside for victims of certain crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement and government officials in the investigation or prosecution of the criminal activity.
Congress created the U visa under the Trafficking Victims Protection Act of 2000 (TVPA).The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while, at the same time, it aimed at providing humanitarian relief to a vulnerable population, most of which do not have lawful status in the United States.
Only 10,000 U visas can be issued per year. The number of U visa petitions has outpaced this limit for many years, creating a long backlog of multiple years. However, once individuals are added to the U visa wait-list, they are eligible for employment authorization.
- Allows the noncitizen to remain legally in the United States for four years with a temporary visa.
- Provides employment authorization that allows the noncitizen to work in the United States for four years.
- Certain family members (spouse, minor children, and if applicant is a minor, parents and siblings) can also receive U visas based on their relationship to the principal U visa applicant.
- After three years, the U visa holder can apply for lawful permanent residency (“green card”).
- The foreign national was the victim of a qualifying crime.
- The foreign national and suffered substantial physical or mental abuse as a result of the crime.
- The foreign national (or in the case of a noncitizen child under the age of 16, the parent or guardian) possesses information concerning the crime and has been, is being, or is likely to be helpful in the investigation or prosecution of the crime.
- The federal, state, or local law enforcement authority has signed a specific form certifying foreign national’s helpfulness in the investigation or prosecution of the crime.
- The criminal activity violated the laws of the United States.
- Applicant is admissible to the United States or is eligible for a waiver of inadmissibility.
Qualifying criminal activity is defined as being an activity involving one or more activities that violate U.S. criminal law, including: 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” also encompassed by statute for related, non-enumerated crimes.
In certain cases, where the direct victim is deceased due to murder or manslaughter or is incompetent or incapacitated, certain family members (if the direct victim is under 21 years of age) may also qualify for the U visa.
It is mandatory that a petition for U nonimmigrant status or visa submitted to United States Citizenship and Immigration Services (USCIS) must contain a Certification of helpfulness from a certifying agency. That means the victim must provide a U Nonimmigrant Status Certification (Form I-918, Supplement B), from a U.S. law enforcement agency.
The Certification must be completed by the certifying official of the agency conducting an investigation or prosecution of the qualifying criminal activity. The Certification must contain following details: (1) how the person qualifies as a certifying official; (2) that the petitioner has been a victim of qualifying criminal activity that the certifying official’s agency is investigating or prosecuting; (3) that the petitioner possesses information concerning the activity; (4) that the petitioner has been, is being, or is likely to be helpful; and (5) that the criminal activity violated a U.S. law or occurred in the U.S.
The certifying agency is under no legal obligation to complete this certification. However, the foreign national will be ineligible for U nonimmigrant status without one. Also, Certification must have been signed within the six (6) months immediately preceding the submission of the petition to USCIS, and the signature on the Certification must be an original one.
There are two waivers available for U visa applicants. These are Immigration and Nationality Act (INA) § 212(d)(3)(A), the general nonimmigrant waiver provision, and INA § 212(d)(14), a provision specific to U visa applicants.
Under INA § 212(d)(3)(A), the adjudicator may waive any inadmissibility grounds except for some relatively rare inadmissibility grounds pertaining to sabotage, espionage, genocide, and participation in Nazi persecution. The INA does not specify a standard for discretionary waivers under § 212(d)(3)(A), but in Matter of Hranka, 16 I&N Dec. 491, 492 (BIA 1978), the Board of Immigration Appeals (BIA) set the following standard:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant’s prior immigration law or criminal law violations, if any; and;
- The applicant’s reason for seeking entry.
The waiver at INA § 212(d)(14) has slightly different eligibility bars, and employs a different standard. The INA § 212(d)(14) waiver is only barred for people who were involved in Nazi persecution, genocide, torture, or extrajudicial killing.
In addition, the statute sets forth a specific standard for the INA § 212(d)(14) waiver: it permits a waiver “if the Secretary of Homeland Security considers it to be in the public or national interest.”
When filing U visa petiiton with USCIS, an applicant seeking an INA § 212(d)(3)(A) waiver should submit a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.