Applying for a U-Visa (for Crime Victims)
(by Laura Monagle)
In 2008, the United States government began issuing U-Visas, a non-immigrant visa for victims of crime who have assisted with a criminal investigation and/or prosecution.
The intention behind the introduction of this visa was to increase the incentive for victims of crime to come forward, without fear of deportation. Congress particularly had in mind female victims of domestic abuse, who do not report the violence against them because of their undocumented status.
The US government grants a maximum of 10,000 U-Visas a year, and since its inception has received an ever increasing number of applications for such visas. Because of the sensitive nature of such applications, the government strongly advises applicants to seek legal advise before making a formal application. Galluzzo & Arnone has experience in this area of the law, and could assist an applicant throughout this process.
There are four requirements for a U-Visa, set out below:
- The immigrant suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity.
- The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) possesses information concerning that criminal activity.
- The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity, and
- The criminal activity violated the laws of the United States or occurred in the United States.
The applicant must have been the victim of one of the following crimes (or a substantially similar crime): 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. It is not necessary for a criminal conviction to be recorded.
Applicants can be either direct (suffered direct harm as a result of the crime) or indirect (the spouse or child under 21 of the direct victim; the parents and unmarried siblings under 18 of a direct victim under 21 who is deceased due to murder or manslaughter, or incompetent or incapacitated) victims of the crime.
In order to determine whether substantial harm has been suffered, the following factors will be considered:
- The nature of the injury inflicted or suffered.
- The severity of the perpetrator's conduct.
- The severity of harm suffered.
- The duration of infliction of harm.
- The extent to which there is permanent or serious harm to appearance, health, or physical/mental soundness, including aggravation of pre-existing conditions.
In addition to the above criteria being made out, an applicant for a U-Visa is required to file a Form I-918, certifying their assistance in the criminal investigation and/or prosecution of a crime. This form must be certified by either a federal, state or local law enforcement officer, or a judge investigating or prosecuting the criminal matter. It must be kept in mind that while there is no statute of limitations regarding when the crime was committed (ie. an applicant will not be rejected because of how long ago the crime occurred), the Form I-918 must have been certified within the 6 months preceding the U-Visa application filing.
U-Visas are subject to the grounds for inadmissibility set out in §212(a) of the Immigration and Nationality Act ('INA'). The most commonly problematic of these is the undocumented status of the applicant, however, the applicant can apply for a waiver of this ground of inadmissibility. Other grounds of inadmissibility include criminal convictions/admissions of criminal activity (including prostitution), health related grounds, and previous deportations. All of the grounds of inadmissibility listed in the INA have the potential to be waived (except for those relating to Nazi persecution, genocide, torture and extrajudicial killing). The grounds of inadmissibility make clear the sensitive nature of a U-Visa application, and thus the need for an experienced attorney to assist in making the application.
Individuals who are already involved in deportation proceedings are not excluded from applying for a U-visa.
A successful applicant for a U-Visa can receive a visa for a maximum of four year. After three years, a holder of a U-Visa is permitted to apply for a green card, the first step towards achieving citizenship (a green card holder becomes eligible for citizenship after five years of holding a green card).
There are some risks involved with applying for a U-Visa, particularly for those of undocumented status. The application process involves providing truthful information regarding the applicant's contact information, as well as their immigration status (even if undocumented). A full background check is completed as part of the application process. This does expose the applicant to deportation proceedings, if immigration were to forward this information to the Department of Homeland Security. However, it is important to remember that undocumented persons are always at risk of having deportation proceedings instigated against them.
If you are the victim of a crime who qualifies for a U-Visa, consider contacting the offices of Galluzzo & Arnone LLP to assist you with the application process.