U Visas

Noncitizen crime victims are often reluctant to report the crime or provide law enforcement with much needed information about the criminal activity. Noncitizens fear communicating with law enforcement will lead to backlash in the form of lost family support, loss of a job, or even deportation. This fear of reporting crime may be even stronger when the perpetrator of the crime was a family member or employer.

In passing the Victims of Trafficking and Violence Protection Act of 2000, Congress created the nonimmigrant U visa. The nonimmigrant U visa exists to encourage victims of certain crimes to assist in the investigation or prosecution of the criminal offense.

This article will explain the requirements to obtain a U visa as well as the application process and the benefits derived therefrom.

U Visa Requirements

In order to be eligible for a U visa, you must meet several requirements.

First, you must have been a victim of a qualifying crime. The crime must have occurred in the United States or violated U.S. law. Dozens of specified crimes count as qualifying criminal activity. Some examples include:

• Blackmail
• Perjury
• Domestic Violence
• Incest
• Murder

The above list is not exhaustive. Other crimes also qualify if they are substantially similar. Further, attempt, solicitation, and conspiracy to commit one of the listed crimes constitutes qualifying criminal activity.

Second, you must have suffered substantial mental or physical abuse as a result of the crime.

Third, you must possess information about the crime.

Fourth, you must be willing to or actually provide assistance to law enforcement or the government during the investigation or prosecution of the crime. If you are under 16 years old, your parent or guardian with knowledge of the crime may be the person to provide the required assistance to law enforcement.

Fifth, you must obtain a certification verifying your helpfulness in the investigation or prosecution.

Sixth, you must be admissible to the United States or able to obtain a waiver of inadmissibility.

U Visa Annual Cap

Congress caps the number of U visas available annually at 10,000. U.S. Citizenship and Immigration Services (“USCIS”) creates a waiting list when more than 10,000 eligible noncitizens apply for a U visa in one year.

If you are placed on the waiting list, you will likely receive deferred action or parole. During this time period, you are eligible to apply for work authorization by filing Form I-765, Application for Employment Authorization under both the category for U visa applicants and also deferred action.

While your U visa petition is pending (potentially for several years as the backlog continues to increase), you should not travel outside of the United States.

U Visa Application Process

Filing for a U visa is a rather straightforward process if you are currently in the United States. You must file Form I-918, Petition for U Nonimmigrant Status, with USCIS. You must also submit Form I-918, Supplement B, Nonimmigrant Status Certification. This certification, signed by an authorized law enforcement official, verifies your willingness to help in the investigation or prosecution of the criminal activity.

If you are otherwise inadmissible, you must also file Form I-192, Application for Advance Permission to Enter as Nonimmigrant, to request a waiver of your inadmissibility grounds.

Recent USCIS directives have emphasized that USCIS may reject your Form I-918 or any of the relevant supplements if you leave any nonoptional field blank.

When filing Form I-918, you should submit a personal statement detailing the relevant criminal activity and your experience as a victim of that criminal activity. You must also submit relevant evidence to support each eligibility requirement along with your petition. Examples of appropriate evidence for each requirement may include:

• Evidence that you are a qualifying victim: affidavits, police reports, and news stories
• Evidence that the crime was a qualifying criminal activity occurring in the United States or violating U.S. law: statutory language detailing the criminal offense
• Evidence that you suffered substantial physical or mental abuse: reports from medical professionals or social workers, photos of physical injuries, affidavits from witnesses, protection orders, and other evidence showing the extent, duration, and severity of the harm
• Evidence that you possess relevant information about the crime and are assisting in the investigation or prosecution: affidavits from police or judges, police reports, news stories, and court documents

If you are outside the United States when applying for U status, you follow the same steps along with the additional step of consular processing at a U.S. consular post abroad.

U Visa Derivatives

After obtaining a U visa for yourself (you are considered the “principal”), you may also seek a “derivative” U visa for certain family members.

If you are under 21 years old, you may seek a derivative U visa for your spouse, children, parents, and unmarried siblings who are under 18 years old. However, if you are 21 years old or older, you may only seek a derivative U visa for your spouse and your children.

To obtain derivative U visas for your eligible family members, you will file Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient. You may file Form I-918 simultaneously with your petition or at a later time. Either way, derivative visas will not be available for your family members until your principal U visa is granted.

While U visas for principals are capped at 10,000 each year, there is no annual cap for derivative family members.

U Visa Benefits

If you are granted a U visa, you receive authorization to live in the United States for up to four years. Extensions are available in limited situations. For example, you may be granted an extension upon a request from law enforcement, due to exceptional circumstances, or as a result of delayed consular processing.

Employment Authorization

One significant benefit of a U visa is that you automatically receive work authorization. Your qualifying family members may also obtain work authorization after filing Form I-765, Application for Employment Authorization.

In recent years, the processing times to receive an approved application for Employment Authorization for U visa applicants has become quite long. To address this issue, USCIS issued a Policy Alert: Bona Fide Determination Process for Victims of Qualifying Crimes, and Employment and Deferred Action for Certain Petitioners.

Under this new policy, USCIS will take it upon itself to conduct a bona fide determination (“BFD”) of all currently pending Forms I-918 and those filed on or after June 14, 2021, using certain discretionary standards.

It is unknown how long it will take USCIS to comb through the nearly 270,000 pending U visa applications, but it could be years. USCIS is starting with cases filed in 2016, where the waitlist left off. The agency is reviewing cases on a “first in, first out” policy.

If the U visa applicant is granted BFD, they do not later undergo waitlist adjudication. The BFD process is therefore an alternate route to gain an EAD and deferred action while waiting for a final decision on the U visa petition.

If the U visa applicant is not granted BFD, their EAD application will be adjudicated under the usual waitlist procedure.

Adjustment of Status

You will also be eligible to obtain lawful permanent resident status (also known as a “Green Card”) through a process called adjustment of status. In order to adjust your status, you must meet several requirements, including:

• You have been physically present in the United States in U status for at least continuous 3 years, and
• You have provided assistance when possible to law enforcement since receiving your U visa.

There is no annual cap on how many U visa holders can adjust their status each year.

Your family members with a derivative U visa may also obtain LPR status by filing their own Form I-485, Application to Register Permanent Residence or Adjust Status.

Additional Information

For more information on obtaining U visa classification, please contact Gillin Law Group at (425) 947-1130.