U Status Victim of Criminal Activity

In order to assist victims of crimes, Congress established U-Visa status in 2000. The goal of the U-Visa is to encourage victims of crimes to assist law enforcement in investigating and prosecuting crimes without fear of deportation.

The U-Visa allows law enforcement agencies to investigate and prosecute crimes while, at the same time, protecting cooperating victims so that they can assist in the investigation, apprehension, and prosecution of the criminal without the fear of deportation.

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The United States Congress has capped the number of U-Visas that can be issued each fiscal year at 10,000 for primary victims. This limit does not apply to spouses, children, parents and unmarried siblings who are accompanying or following-to-join the primary victim. If the cap is reached in a given fiscal year, USCIS will create a waiting list. The Applicants placed on the waiting list will be given deferred action (they will be eligible to apply for employment authorization and permitted to travel) until their petitions can be approved after the start of the following fiscal year.

No, there is no statute of limitations. However, it is better to apply sooner rather than later, especially in regard to obtaining/collecting evidence.

Once granted, U status is valid for a maximum of four years. After being in U status for three years, the applicant and their qualifying family members become eligible to apply for Adjustment of Status to obtain a green card.

The United States Citizenship and Immigration Services (USCIS) has the ability, under the law, to give work authorization to people who have submitted petitions for U nonimmigrant status and are found bona fide. The USCIS launched the bona fide determination (BFD) process in June 2021, with the goal of expediting the preliminary processing of petitions for U nonimmigrant status. The fundamental goal of this process is to give eligible victims of certain crimes with work authorization and deferred action while their U nonimmigrant status petitions are completely adjudicated, subject to the annual statutory limit. This legislation attempts to provide victims with a sense of stability while also enhancing their ability to assist law enforcement agencies.

The bona fide determination policy applies to all pending Form I-918 petitions as of June 14, 2021, as well as those filed on or after that date by the primary victim and their qualifying family members residing in the United States. This policy, however, does not apply to primary victims and their qualifying family members living overseas, as USCIS cannot grant deferred action or employment permission to those not physically present in the United States.

In most cases, yes. If the USCIS has not processed a primary victim's or eligible family member’s U nonimmigrant status petition within the 4-year period of the EAD and deferred action, the individual may request renewal of EAD. If granted, the individual will be issued a new EAD based on the bona fide determination, and a new four-year period of deferred action will begin. However, USCIS retains the right to revoke the EAD and terminate the deferred action at any time throughout the four-year period if they find that the EAD was issued incorrectly or is no longer reasonable. This could happen if, for example, the law enforcement certification on Form I-918 Supplement B is retracted, or if national security or public safety issues arise.

The Department of Homeland Security lists the following criminal activities as qualifying crimes for a U-Visa:

• Abduction
• Abusive Sexual Contact
• Blackmail
• Domestic Violence
• Extortion
• False Imprisonment
• Female Genital Mutilation
• Felonious Assault
• Fraud in Foreign Labor Contracting
• Hostage
• Incest
• Involuntary Servitude
• Kidnapping
• Manslaughter
• Murder
• Obstruction of Justice
• Peonage
• Perjury
• Prostitution
• Rape
• Sexual Assault
• Sexual Exploitation
• Slave Trade
• Stalking
• Torture
• Trafficking
• Witness Tampering
• Unlawful Criminal Restraint
• Other Related Crimes*+

*Includes any similar activity where the elements of the crime are substantially similar.

+Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.

Eligibility for a U-Visa requires that the crime victim has credible and reliable information indicating their knowledge about the criminal activity or the events that preceded it. This encompasses specific details about the crime or victimization that would lead law enforcement to conclude that the victim has provided, is providing, or is likely to provide help in the investigation or prosecution of the criminal act.

Being helpful indicates that the victim has provided, is presently providing, or is likely to provide assistance to law enforcement in connection with the qualifying crime of which they have been a victim off. This includes a willingness to assist upon reasonable request, as well as a continuing obligation for the victim to cooperate. Even after receiving a U-Visa, the victim is expected to continue cooperating with law enforcement. If a victim refuses to help after receiving a U-Visa, USCIS has the right to revoke the visa.

If the applicant is inadmissible, then they are eligible for inadmissibility waiver using Form I-192.

Form I-918B can be endorsed by an official from a federal, state, or local law enforcement entity, a prosecutor, a judge, or any other authority charged with the duty of investigating or prosecuting a qualifying criminal act. Eligible signatories extend to entities vested with criminal investigative powers within their specific domains of authority. This encompasses a variety of agencies such as those overseeing child and adult protective services, the Equal Employment Opportunity Commission, as well as Federal and State Labor Departments, among others.

Eligibility for a U-Visa is not contingent upon the victim's presence within the United States at the time of filing the application. Although the crime in question must have taken place in the United States, its territories, or possessions, or have contravened U.S. law, victims can apply for a U-Visa from locations outside the United States.

The issuance of a law enforcement certification does not necessitate an ongoing investigation, the filing of charges, an active prosecution, or a conviction. There are situations where a victim has reported a crime, but an arrest or prosecution may not proceed due to issues like insufficient evidence. Such scenarios include instances where the perpetrator has escaped or is outside the jurisdiction, remains unidentified, or has been deported by federal authorities. There is no time limit imposed for providing a law enforcement certification. Certifications can also be issued for victims in cases that have already been concluded.

Eligibility for a U-Visa does not hinge on an arrest, prosecution, or conviction taking place. Although giving testimony in court is not a prerequisite for obtaining a U-Visa, victims are expected not to unreasonably refuse to cooperate with law enforcement, including testifying if requested. Should a victim unreasonably decline to testify when asked, the corresponding law enforcement agency is obliged to inform USCIS, and it may retract the Form I-918B it had initially endorsed.

A conviction is not a prerequisite for U-Visa eligibility. The victim's eligibility is not adversely affected by plea bargains to lesser charges or case dismissals. Provided that the victim has cooperated with the authorities in the investigation or prosecution of the qualifying criminal activity and fulfills all other eligibility criteria, they may proceed with petitioning for a U-Visa.

When the victim of a crime is a juvenile, they might be unable to adequately assist law enforcement, possibly because of their youth, the impact of trauma, or other factors. The victim's parents often play a pivotal role in identifying and reporting the crime, offering information, and aiding law enforcement in the investigative or prosecutorial process regarding the offense against their child. In light of this, a non-citizen parent may be eligible to apply as an "indirect victim" if the primary victim is a child under the age of 21 who is unable to assist due to incompetence or incapacity, or in tragic circumstances where the child has passed away as a result of the crime.

A U-Visa petition may be denied by USCIS for several reasons, one being if the victim has a criminal record that justifies such action. Denials can happen if the victim has a history of multiple arrests, convictions, or a record of serious or violent criminal offenses. USCIS will also deny a petition if it is found that the victim played a willing or active role in the criminal activity that they allege victimized them. However, a criminal history does not automatically disqualify a victim from U status eligibility. USCIS possesses the discretion to forgive many grounds of inadmissibility, including those related to criminal matters. Petitions for U-Visas are assessed individually, taking into account the specifics of each case.

There are some risks associated with traveling outside of the U.S. on a U-Visa, because this status is not a visa.If an Applicant departs the U.S., a U-Visa needs to be obtained at the U.S. Consulate, before one can return to the U.S. However, when applying for Adjustment of Status, after meeting the required requirements, a travel permit can be requested concurrently. The Applicant can leave the U.S. with this travel permit, while the Adjustment of Status application is pending and return to the U.S.

There are different types of U-Visas that victims of crimes and derivative family members can obtain. Below are the types of U-Visas:

• U-1 visa for the principal victim of the criminal activity who can share information with U.S law enforcement.
• U-2 visa is a derived U visa for the spouse of the U-1 visa holder. The U.S only accepts legal marriage which can be proven through certificates and ceremonies and does not accept multiple spouses.
• U-3 visa is for the children of the U-1 visa holder who have valid birth certificates.
• U-4 visa is for the parents of the U-1 visa holders. The U-1 visa holder must be under 21 years old for the parents to qualify for a U-4 visa.
• U-5 visa is for unmarried siblings under 18 years old of the U-1 visa holder. For the siblings to qualify for a U-5 visa, the U-1 visa holder must be under 21 years old.