Overview Of The U Visa: “Race Between Approval And Removal”
Imagine a scenario where a criminal victim wants to disclose his or her injury to law
enforcement but cannot for fear of removal. Imagine the frustration of a law
enforcement officer needing key evidence from a person who refuses to come forward
for fear of revealing his or her unlawful status in the United States.
These are some of the problems that the U visa attempts to target and resolve
by allowing the victims of certain crimes to come forward, regardless of their immigration
status, and assist law enforcement without the fear of being deported. The U
visa addresses this issue by offering the possibility of obtaining legal status
in the United States
for the victims of crimes. The ultimate goal of the U visa is to provide for
the protection of the victims of serious crimes and assist in the prosecution
of the perpetrators by encouraging voluntary cooperation with law enforcement
to resolve investigations.
The U visa was created as a part of the Victims of Trafficking and Violence Protection Act of 2000,1
along with the creation of the T visa.2
The U visa is available to immigrants who are victims of criminal activities.
Also, in some cases, the victim’s family members can stay in the United States,
regardless of their current immigration status, as long as the applicant is a
victim of a crime listed under the guidelines of 8 CFR §214.14. 3
Once granted, the U visa lasts for four years.4
If a victim is granted a U visa, he or
she can adjust his or her status to become a lawful permanent resident (LPR)
after three years from the date of receipt the U visa.5
A U visa holder is authorized to accept employment in the U.S. 6
However, the U visa has not been utilized by many
attorneys as a remedy for their clients, not only because of the lack of knowledge
about the existence of U visa, but also due to the delay in the enactment of
the regulations from the Department of Homeland Security (DHS). The DHS did not
issue regulations until 2007.7
The DHS has set a cap of 10,000 as the total number of applicants who can
receive a U-1 visa on a year.8
It has been estimated that in 2008 only about sixty people had received a U visa;
however, by July 2009 more than 1600 U visas had already been granted.9
The objective of this article is to inform the legal community about the eligibility
requirements and procedural requirements for applying and obtaining a U visa,
and illuminate a potential conflict that might arise in the removal proceedings
of people who have U visa petitions pending.10
II. Eligibility Requirements for U visa Relief
Before attempting to obtain the U visa as a remedy, an
attorney needs to be aware of the eligibility requirements for U visa relief. To
be eligible to apply for U visa, the client must satisfy the statutory
requirements, which require that the individual: 1) “suffered substantial
physical or mental abuse as a result of having been a victim of a qualifying
criminal activity”, 2) possesses information about the criminal activity, 3)
has been helpful, is being helpful, or is likely to be helpful in the
investigation or prosecution of the crime; and, 4) the criminal activity must
have violated the laws of the United States or occurred in the United States.11
A. The Definition of a Victim
A victim is one who has suffered a “direct and proximate
harm as a result of” a criminal activity.12
Most likely, the person who has suffered from one of the statutorily listed
crimes will be considered a victim if the assertion can be supported by evidence
such as police reports.13
The principal petitioner of the U visa
application may be the victim, and he or she can petition on behalf of other
qualifying members. A derivative U visa based on the principal petitioner may
be granted to the victim’s spouse and children who are under twenty-one (21)
years old, or parents and unmarried siblings who are under eighteen (18) years
old can qualify as the victim.14
If the victim cannot petition directly, then the family members can be included
in the category of “victim” to apply as the principal petitioner.15
However, the eligibility of U visa does
not extend to a victim’s friend who might have information regarding a crime,
even as a representative to an incapacitated or incompetent victim.16
The victim’s age at the time of the
criminal activity will be used to determine whether the victim was a minor.17
B. The Eligible Criminal Activity
The types of criminal activities for application of the U
visa include: rape, torture, trafficking, domestic violence, sexual assault,
sexual exploitation, murder, witness tampers, perjury or any other activity in
violation of federal, state, or local criminal law.18
These activities do not necessarily have
to result in felony convictions.19
Nor does the aggressor have to be charged with the same crime as the victim is identified
based on the criminal activity.20
The eligible criminal activity is based on whether the crime is explicitly
listed under the statute, and whether a charging law enforcement agency is
willing to certify the crime as a violation of either the state or the federal
C. The Suffering of Physical or Mental Abuse
The victim must have suffered from “substantial physical
or mental abuse” as a result of the criminal activity.22
There are different factors for determining the severity of the abuse, such as
“the nature of the injury inflicted or suffered, the severity of the harm
suffered through the perpetrator’s conduct, and the duration of the infliction
of the harm.”23
Currently, there are no specific cases that interpret or determine what
constitutes substantial physical or mental abuse. However, it is critical to
submit relevant evidence with the filing which will support a finding that the
client suffered such serious abuse.
D. The Possession of the Helpful Information and Assistance to Law Enforcement.
In order to apply for a U visa, the victim must possess
“reliable information” relating to the criminal activity.24
Furthermore, the victim must provide proof that he or she “possesses specific
facts” about the qualifying crime.25
It is not necessary for the victim’s assistance to result in prosecution or arrest.26
However, it does require the victim to assist in either or both of the criminal
investigation and prosecution.27
The level of assistance in the investigation is essential to prove whether the
petitioner can be eligible for the U visa. The victim cannot refuse to assist
or provide information while holding U visa status, and must give continuous
cooperation to the investigating agency. If the victim is under sixteen (16)
years old, incapacitated or incompetent to assist the investigation, then his
or her parents, guardian or “next friend” can provide the assistance to the
E. The Location of the Occurred Criminal Activity
The qualifying criminal activity must have occurred in
the United States or in United States
territories.29 However, an application would not be denied solely based on the lack of territorial
determination of the criminal activity. If the crime did violate a United States
federal law, the eligibility depends on the law enforcement agency to exercise
the overseas jurisdiction upon the criminal activity.30
Once the activity is pursued and prosecuted by the United
States law enforcement agents, the greater weight is
given to support the eligibility for the U visa based on the criminal activity
related to the violation of United States laws.31
III. The Process for the U Visa Application
Mainly, the application is divided into two parts: the forms and the necessary supporting evidence.32
Each application should include the following documents: a cover letter, Form
I-918, Form I-918 Supplement A, and I-918 Supplement B.33
The U visa application must be submitted to the Vermont Service
Center of the U.S.
Citizenship and Immigration Services (USCIS).34
The application must include the forms, the evidence of the crime, and all the
other required documents. There is no filing fee for the application regardless
of the petitioner’s income.35
The filing fees for supplementary forms, such as form I-192 (inadmissibility waiver), the payment of the biometric fee,
and the payment for the adjustment of status application (form I-485) are required.36 If the petitioner cannot pay a fee, a waiver request may be submitted.37 The fee waiver will be determined based on the Poverty Guidelines published yearly by the Department of Health and Human Service.38 However, the request for waiver could delay the application process because such determination will be made before the review of U visa application.39
Form I-918, Supplement B, “U Nonimmigrant Status Certification” is the initial
petition for the U nonimmigrant visa. The Form requires basic information, such as the name of the petitioner, address, family members, work history, and other information.40 The USCIS website provides detailed instructions for completion.41 The attorney completing the form must pay close attention to providing the necessary information based on the need of
his or her client. For example, if the petitioner cannot receive mail or telephone
calls at a residence, he can provide a “safe mailing address” or “safe daytime
telephone number.” This is to protect the petitioner from the perpetrator of
the crime from obtaining knowledge of a pending U visa application if they are
living together at the same residence.42
This also allows individuals in a protective custody or in a shelter to receive mail
in different locations than their home address.43
The address used can be from a friend, an attorney, or any organization that
the petitioner can feel safe using for receiving a call or mail.44
Also, it is critical to include the correct information, such as the alien
registration or social security number. If this application is the first
contact with the USCIS, the petitioner will not have any alien number issued. However,
the attorney should check for any prior filing with the USCIS in case the
petitioner is unaware of the existence of an alien number for him or her, or
does not have the information. Also, the attorney should contact the USCIS to
check any pending application or immigration case against the petitioner.45
Additionally, the form I-918 Supplement B requires the submission
of supporting evidence to prove the petitioner’s eligibility for the U visa.46
It is critical to submit all the evidence to prove the eligibility for the U visa
because the burden of proof is on the petitioner.47
The petitioner should include evidence such as: the nature of the criminal
activity, when the criminal activity occurred, who was responsible, the events
surrounding the criminal activity, how the criminal activity came to be
investigated or prosecuted, and what substantial physical and/or mental abuse
was suffered as a result of having been the victim of criminal activity. This
information should be in a sworn affidavit signed by the petitioner.48
If the petitioner is under 16, incapacitated, or incompetent, a family member,
or a next friend may submit the statement on behalf of the petitioner.”49
The Form I-918, Supplement B, requires at least one government agency to show that the applicant has been a victim of the crime.
The qualified certifying agencies includes: federal, state or local law enforcement agencies, or any other agencies that conduct criminal investigation, such as the Equal Opportunity Commission, or Department of Labor.50
The document requires that the head of such qualifying agency provide official
documents, affirming in writing that: 1) he or she is the proper government
official authorized to sign the certificate, 2) the petitioner is the victim of
the qualifying criminal activity, 3) the petitioner possesses information about
the activity, and is helpful to the investigation; and, 4) the activity
violated U.S. law, or occurred within the U.S.51
The investigative law agency official attests to the applicant’s qualification
for the U visa by his or her signature. The certification should be signed by
the agency’s official representative within the past six months from the time
of the submission of the U visa petition.52
If the petitioner’s certification is older than six months, then it is better
to obtain a new certification.53
Some practitioners are having problems getting the U Nonimmigrant Status Certification
signed by an investigative officer for a variety of reasons. Some of the
reasons are that the designated officer has not worked on the case, does not
have time, or is reluctant to sign the form because of other personal reasons. It
is important to find out the reasons for the official’s reluctance. The best
way is to cooperate with the investigation and build trust with the law
enforcement. USCIS is reviewing the comments regarding the difficulties practitioners
are having in getting the agency to certify and in determining who might sign
The petitioner is required to submit a signed statement describing an accurate account of the criminal activity.55
The statement must be in the petitioner’s own words. Some of the information
should include, but is not limited to: the nature, time, and the perpetrator of
the criminal activity; the description of how the investigation commenced; and,
the suffering of the petitioner resulting from the crime. If the petitioner is
under the age of sixteen (16) or is incompetent or incapacitated, a parent,
guardian, or next friend must submit the declaration with the information in a
The submission of the petitioner’s own declaration about the substantial physical or mental abuse is required as proof of the suffering from the criminal activity.57
The supplementary information on Federal Register, Vol. 72, No 179, published
on September 17, 2007, states that evidence to further establish the nature of
the abuse suffered may include such documentation as reports and affidavits from
police, judges, and other court officials, medical personnel, school officials,
clergy, social workers, and other social service agency personnel. Petitioners
who have obtained an order of protection against the perpetrator, or have taken
other legal steps to protect themselves against the perpetrator should submit
copies of the related legal documents. A combination of documents such as
photographs showing visible evidence of the injured applicant supported by
affidavits of individuals who have personal knowledge of the facts regarding
the criminal activity may be relevant as well. 58
Form I-918, Supplement A, “Petition for Qualifying Family
Member of U-1 Recipient” is used to petition for the derivative U visas based
on the principal’s petition.59
The main petitioner who is eligible for a U visa can petition on behalf of his
or her family members. There is no annual cap on the number of derivative U
visas issued.60 If the U visa petitioner is under the age of twenty one (21) years old, he or she
can petition for a spouse, child, parent, or unmarried sibling under eighteen (18)
years old.61 If the petitioner is over the age of twenty one (21), he or she can petition for a
spouse or child.62 The date of filing of the form I-918 will determine the age of the petitioner and
the family members.63 The perpetrator of the wrongful criminal activity cannot receive a derivative U visa.64 An individual form is needed for each family member, and there is no filing fee
for the Supplement A.65 The Supplement A must be filed with the Supplement B concurrently.
To qualify for the derivative U visa, the petitioner must submit evidence to prove that there is a “qualifying family member” relationship between the petitioner and the family member.66 As such, an on-going relationship as a family member must be continuously demonstrated during the process of the filing.67 For example, a married couple must show proof that their marriage was valid prior to the petition and during the application process. A couple cannot file if they were not married at the time of the filing.68
The duration of the U visa status is up to four years.69 The derivative family members may receive up to four years of U visa status, but the period cannot exceed the period authorized for the petitioner.70 Petitioners for U visa approved who received U interim relief will be accorded
U nonimmigrant status as of the date that a request for U interim relief was
initially approved.71 Pursuant to the “Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA 2008), “petitioners who have accrued more than three (3) years in U
interim relief status shall be admitted as U nonimmigrants and such status
shall remain valid for a period of one year from the date of approval of the
IV. Race between U Visa Approval and Removal
Veronica Lopez spent nine months in a detention center in Arizona. She was under a final deportation
order and was scheduled to be removed to Guatemala, her country of birth, on
February 13, 2009.73
Although Lopez had applied for a U visa and the application was pending, the U.S.
Immigration Customs & Enforcement (ICE) officers were pursuing her removal.74 On February 12, 2009, one day before her scheduled flight, she received the approval notice of her U visa application.75 Lopez was released a few days later and was able to remain in the United States.76 There are many similar cases where the person is facing removal proceedings or
has received a final order of removal while waiting for the approval of the U
When a U visa petitioner is in pending removal proceedings, he or she could request
that the DHS Assistant Counsel apply his or her discretion by filing a joint
motion to terminate proceedings (without prejudice)77
with the Immigration Judge or the Board of Immigration Appeals (BIA), while the
petition for U visa is granted by USCIS.78
If the petitioner is the subject of a final order of removal, deportation, or
exclusion, he or she is not precluded from filing the U visa petition.79
The petition will have to be filed with USCIS.80
Although ICE has authority to execute the final order, the petitioner could
file a motion for a stay of removal.81
Filing the U visa petition with USCIS does not give the applicant any immigration
benefit until the petition is granted. Processing could take at least six
USCIS guidelines discourage the removal of U visa applicants pending their
Immigration courts and DHS Assistant Chief Counsels have been fairly receptive
to this guidance, administratively closing, terminating, or continuing removal
proceedings until USCIS determines whether to grant the U visa.84
In Ramirez Sanches v. Mukasey the
Ninth Circuit remanded the case to the Board of Immigration Appeals to consider
petitioner’s request for a continuance or motion to stay or terminate
proceedings in order to permit the adjudication of the U visa applied.85
USCIS permits consular processing of U visa applications for individuals outside the U.S. Even if
ICE removes an alien with a pending U visa, and the petition is approved after
the alien has been removed, he can request a parole for returning to the United States.
Law enforcement needs the cooperation of victims to prosecute perpetrators. Most
victims with unlawful immigration status will avoid interacting with law
The U visa is a tool for the law enforcement agencies and state attorneys to
pursue their goals of fighting crime. Securing criminal justice is an objective
that does not distinguish between lawful and unlawful immigration status.87
Many immigrants assist law enforcement by providing their testimony. The
reality is that victims would not be willing to cooperate if they have to fear removal
proceedings. Also, it is not fair that somebody who testified against a
criminal and cooperates with the authorities is removed.
Although the U visas were created by Congress in 2000, many law enforcement agencies
lack awareness of this relief for victims.88
The U visa is a great tool for law enforcement and for giving an opportunity to
undocumented immigrants to obtain legal status in the U.S.89
Obama’s administration is speeding up work on the backlog in order to fully
implement this type of relief.90
This is a good sign of potential hope for thousands of immigrants living in the
U.S. without an immigration status.
1Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 114 Stat. 1464, 1514 (2000). The purpose of this act is to deter the targeting of immigrant women and children as victims of crime.
2Karyl Alice Davis, Unlocking the Door By Giving Her the Key: A Comment on the Adequacy of the U-Visa As a Remedy, 56 Ala. L. Rev. 557, 560 (2004). T visas are granted to the victims of human trafficking. Similar to the U-visa, most inadmissibility grounds, such as visa status, are waived as long as the eligibility is satisfied. The cap of 5,000 T visas may be issued in one year, and a T visa holder may adjust to lawful permanent resident status after three years. Ira J. Kurzban, IMMIGRATION LAW SOURCEBOOK 766 (AILF 2008).
3U.S. Citizenship and Immigration Services, Fact Sheet USCIS Rules for Nonimmigrant Victims of Criminal Activity, available at: www.uscig.gov (Last visited October 10, 2009).
4Kurzban, supra note 4 at 768.
68 CFR §214.14 (c)(7) (2009).
7Gosia Wozniacka, Little-known visas free immigrants from Abuse, The Oregonian, July 18, 2009.
88 CFR §214.14 (c)(5)(i) (2009).
9Wozniacka, supra note 9.
10One issue faced by some immigration attorneys appear when the U visa applicant has criminal convictions or criminal history. For this issue see Ann Benson & Jonathan Moore, A Practice Guide for Representing U Visa Applicants With Criminal Convictions or Criminal History, available at: http://www.asistahelp.org/ (Last visited February 24, 2010). ASISTA website provides useful material for U visa, VAWA, and other immigration topics.
118 CFR §214.14 (b) (2009).
128 CFR §214.14 (a)(14) (2009).
13The Form I-918, which is described in detail in Section II below, shows how the applicant can prove that he or she was a victim by supplying the necessary documents to USCIS at the time of petition filing.
14U.S. Immigration Support, U Visa for Immigrants who are Victims of Crimes, available at: http://www. usimmigrationsupport.org/visa_u.html (Last visited October 8, 2009).
15The petitioner's spouse can receive the U-2 visa, and the unmarried children under 21 can receive the U-3 visa at the same time as the petitioner. Others U visas, such as U-4 & U-5, are granted to the parents and unmarried siblings of the petitioners. Womenslaw, U-Visa Laws and Procedures, available at: http://www.womenslaw.org/laws_ state_type.php?id=10271&state_code=US&open_id=10846 (Last visited October 8, 2009).
168 CFR § 214.14(b)(2) (2009); 8 CFR § 214.14(a)(7) (2009).
178 CFR § 214.14(a)(14)(i) (2009).
18INA § 101 (a)(15)(iii) (2009). See also 8 CFR § 214.14 (a)(9) (2009).
19Sally Kinoshita, HOW TO OBTAIN U INTERIM RELIEF: A BRIEF MANUAL FOR ADVOCATES ASSISTING IMMIGRANT VICTIMS OF CRIME 12 (Immigration Legal Resource Center 2007).
20Id. at 18.
21The certification process in support of the involvement of the petitioner from the law enforcement agencies is the critical part of the petition process. The petitioner must prove his or her status as a victim and the involvement with the criminal activity, but the law enforcement agency must support it through a written affirmation. See Section II for necessary documents to submit to the INS. See also Interoffice Memorandum from Michael Aytes, Acting Director of General Operations to Regional Directors and Service Center Directors 2 (Jan. 6, 2006) (On file with authors).
22INA §101(A)(15)(I)(i)(I) (2009).
238 CFR §214.14 (b)(1) (2009).
248 CFR §214.14 (b)(2) (2009).
278 CFR §214.14 (b)(3) (2009).
28Id at 19.
298 CFR §214.14 (b)(4) (2009).
30Instructions for I-918, Supplement B, U Nonimmigrant Status Certification, available at: http://www.uscis.gov (Last visited October 8, 2009).
328 CFR §214.14 (c) (2009).
33Also, if the petitioner entered without inspection, he or she will need to file the form I-192, Application for Advance Permission to Enter as Nonimmigrant, the current fee for this form is $545.00. Id
34U.S. Citizenship and Immigration Services, Vermont Service Center, VAWA Unit, Box 1000, 75 Lower Welden Street St. Albans, VT 05479-0001.
35Supra note 32.
36If the petitioner of the U visa includes the form I-918 Supplement A, Petition for Qualifying Family Member of U-1 Recipient, there will be no fee. However, if the petitioner's U visa is approved, the primary petitioner must petition on behalf of the relative by filing the form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant. The current fee for this form is $215.00. Id.
37Kinoshita, supra note 21.
38Supra note 32.
39Fee Waiver Guidance, Forms, U.S. Citizenship and Immigration Services, available at: http://www.uscis.gov (Last visited February 7, 2010).
408 CFR §214.14 (c)(1) (2009).
41Supra note 32.
42Kinoshita, supra note 21.
43Id. at 44.
44Id. at 29.
45Id. at 44.
46Supra note 34.
478 CFR §214.14 (c)(4) (2009).
488 CFR §214.14 (c)(2) (2009).
498 CFR §214.14 (c)(1) (2009).
518 CFR §214.14 (a)(3) (2009).
52Kinoshita, supra note 21.
54Immigration Daily, U Visa: One Year After the Interim Final Rule, available at: www.ilw.com (August 26, 2008) (On file with authors).
558 CFR §214.14 (c)(2)(iii) (2009).
578 CFR §214.14 (c)(2)(ii) (2009).
58See 72 Fed. Reg. at 53015, New Classification for Victims of Criminal Activity; Eligibility for "U" Nonimmigrant Status (Citing memoranda).
59For the family U visas listed as U-2 to U-5, the petitioner will need to include Form I-198 Supplement A with his application. See footnote 29. The family member who is eligible under 8 CFR §214.14 as a victim of the occurred criminal activity should file Form I-198 Supplement B, rather than Supplement A.
60Aytes, supra note 23.
618 CFR §214.14(f)(4)(ii) (2009).
648 CFR §214.14(f)(1) (2009).
658 CFR §214.14(f)(2) (2009).
668 CFR §214.14(a)(10) (2009); 8 CFR §214.14(f)(3) (2009); 8 U.S.C. 1101(a)(15)(U). "Qualifying family member means the spouse, child (or children), parents, or unmarried siblings under the age of 18 of such an alien."
678 CFR §214.14(f)(4) (2009); INA §101(a)(39).
698 CFR §214.14(g) (2009).
708 CFR §214.14(g)(1) (2009).
71 Interoffice Memorandum from Carlos Iturregui, Chief Office of Policy and Strategy to Donald Neufeld, Acting Associate Director Domestic Operations Directorate 2 (Jan. 15, 2009) (On file with authors).
73Anna Gorman, A Race between Protection and Deportation, Los Angeles Times, July 12, 2009.
77Where an offer or admission is made "without prejudice," or a motion is denied or a suit dismissed "without prejudice," it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost except in so far as may be expressly conceded or decided.
788 CRF § 214.14 (c)(i) (2009).
798 CRF § 214.14 (c)(ii) (2009).
81A motion to stay of removal is a temporary suspension of the removal proceedings. It is discretionary. See Id.
82Andrew Turner, Daniel Werner, and Vanessa Spinazola, Case Note: Case of First Impression: Federal Judge in Civil Case May Certify U Visa Applications of Undocumented Immigrant Human Trafficking Victims, 42 Clearinghouse Rev. 510, 512 (2009).
83See 72 Fed. Reg. at 53015, New Classification for Victims of Criminal Activity; Eligibility for "U" Nonimmigrant Status (citing memoranda).
85Ramirez Sanches v. Mukasey, 508 F. 3d 1254, 1255 (9th Cir. 2007).
86Juan A. Laguna, Feature: The "U" Visa: A Tool for Law Enforcement and an "a" Venue of Hope, 51 Orange County Lawyer 27, 28 (2009).
88Nadia Berenstein, U Visa Recipients Look for Better Enforcement, Women's eNews, September 24, 2009.
89Liz Jones, Feds Boost U Visa Program for Crime Victims, Kuow News, August 03, 2009. (On file with authors)
90Nadia Berestein, U Visas Speed Up for Immigrants Who Flee Abuse, Women's eNews, September 21, 2009.
About The Author
Jean Pierre Espinoza A Peruvian attorney and LLM in Comparative Law with certification in International Trade and Business Law by the University of Florida‘s Levin College of Law. Juris Doctor Candidate and president of the Immigration Law Student Association at Stetson University College of Law.
Jung Choi is a Juris Doctor candidate at Stetson University College of Law and members of the Immigration Law Student Association.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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