There is a particularly heinous breed of criminal that preys on undocumented immigrants. These criminals are emboldened by the belief that undocumented immigrants are unlikely to report crimes due to fear of deportation. Unfortunately, there is some support for this assumption. The National Immigrant Women’s Advocacy Project conducted a survey in 2017 that sought the perspectives of judges, police, prosecutors, victim advocates and attorneys on questions related to their interactions with immigrant crime victims. The survey revealed that about 40 percent of the 50 prosecutors who responded said that in sexual assault and domestic violence cases, immigrant victims were less likely to work with prosecutors in 2017 than in previous years.
This is a troubling trend, which makes it more important than ever to educate the undocumented population on potential immigration benefits for crime victims. One benefit comes in the form of the U-Visa, which is a non immigrant status available for criminal victims of qualifying crimes who cooperate with a police investigation, receive government certification for such cooperation and demonstrate that they suffered harm as a result of the crime. Those who are granted U-Visa Status are able to work and live legally in the United States.
The Major Benefits of the U-Visa
One major benefit of the U-Visa is that there in no filing fee associated with most of the forms that are used to obtain it (these forms include the I-918 which is primary application for the U-Visa and the I-918, Supplement B which is used to show that the applicant cooperated in the police investigation or prosecution of the crime). Second, almost all grounds of inadmissibility that typically stand in the way of obtaining a green card are waivable for U-Visa crime victims. Third, a U-Visa petitioner may seek U Nonimmigrant status for certain family members including their spouse, unmarried children under 21 and possibly other family members. Fourth, a U-Visa applicant can obtain a work permit while their U-Visa application is pending. Finally, a person on U- Visa status can adjust to green card status after three years if certain requirements have been met.
The Requirements and Filing Process for the U-Visa
Does the Crime Qualify for a U-Visa?
The first issue to consider when evaluating U-Visa eligibility relates to the type of crime that was committed. There is a list of 28 crimes that qualify for U-Visa purposes which includes rape, domestic violence, sexual assault, abusive sexual contact, prostitution, kidnapping, unlawful criminal restraint, false imprisonment, manslaughter and felonious assault. If the crime that was committed is on the list, then it is important to consider the extent of the harm that was suffered by the victim. In order to qualify, the crime must have caused substantial physical or mental abuse. Oftentimes, this element can be proven by medical professionals, counselors or by submitting details from police reports or witness statements. The third requirement is that the victim cooperated with law enforcement as evidenced by the form I-918 which is provided by a law enforcement agency.
What Documents are Submitted to Obtain U-Visa Status?
The forms that are submitted to USCIS include the I-918, the I-918 Supplement B and the I-912 which is used if the applicant is applying for a waiver of inadmissibility. Once the documentation is submitted to USCIS, the applicant can expect a lengthy wait of 45 months(as of 7/23/18). Although the wait is long, prospective applicants can take comfort in knowing that they can obtain a work permit and remain in the United States during the period of time when the application is pending.
What is the standard for obtaining a waiver of inadmissibility for the U-Visa?
The waiver for grounds of inadmissibility is filed on form I-912. There are a number of factors that are considered when USCIS is evaluating the waiver. The list of factors that weigh in favor of granting a waiver includes: ongoing helpfulness to law enforcement, severity of the harm that was suffered, the applicant’s good moral character, length of time in the United States, family and community ties in the United States, lack of family or community ties in the home country, etc. Supporting documentary evidence should be filed in conjunction with the form I-912 and the applicant’s statement to increase the chances of a successful waiver.
The Green Card Process for those in U-Visa Status
If all goes well and the U-Visa status is granted, the U-Visa and the work permit will be valid for four years. After at least three years in U-Visa status, a person with a valid unexpired U-Visa may apply for lawful permanent resident status. Such an applicant must show that a grant of lawful permanent resident status “is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.”
There is a disturbing trend of immigrant crime victims who do not report crime due to the fear of deportation. Fortunately, people in this group who can overcome their fear oftentimes will be eligible for U-Visa non immigrant status. In order to determine eligibility and ensure that the proper steps are taken to obtain the U-Visa, criminal victims should consult with an immigration lawyer immediately after the crime occurs.