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U Visas: Turning Violent Crime into a Blessing in Disguise

While no one wants to be the victim of violent crime, it is becoming increasingly easier for certain immigrants to see the silver lining in an otherwise daunting experience. Specifically, the Victims of Trafficking and Violence Protection Act of 2000 created a special visa category for victims of violent crime. As its name implies, the Act not only helps those who have been victimized by human trafficking, it also assists individuals who have been traumatized by violent crimes in the United States and who agree to assist law enforcement in investigating such crimes.

Who Qualifies?

To be eligible for a U visa, noncitizen victims of violent crimes must meet the following requirements as codified in 8 CFR § 214.14 and INA § 101(a)(15)(U):

  • Issuance and production of law enforcement certification that says two things:
    1. That the person was a victim of a qualifying criminal activity that occurred in the U.S., its territories, or possessions, or that such activity violated U.S. law, and
    2. That the victim is helping, has helped, or will help in the prosecution or investigation of crimes enumerated in the U visa statute
  • Evidence of substantial mental or physical abuse as a result of being a victim of that crime

I love the U Visa

Those seeking a U visa must also prove that they are eligible to be admitted in this status, or that they are eligible to have admissibility requirements waived. Grounds for inadmissibility include certain criminal activity, entering without permission and unlawful presence in the U.S., lying to immigration officials, and terrorist-related activity, among others. Even if an applicant might normally be inadmissible based on these criteria, they may be able to apply for a waiver that would make them eligible for U nonimmigrant status. In fact, the only two grounds of inadmissibility that cannot be waived are being a terrorist or a Nazi. 

Wow! Think about that for a moment! What that means in reality is that a qualifying victim of a violent crime can get a U visa even if they have a deportation order, or have been deported but reentered illegally. There is even an immigration waiver for drug trafficking or most other serious convictions. My law firm has done a successful U visa for a person who was deported for drug trafficking and reentered illegally, but was a victim of a serious violent felony.

Unlike almost all other immigration benefits, the U visa has a built-in waiver for almost everything.   As a practicing New York City based immigration lawyer for over 20 years, I love the U visa.

Who Benefits?

While many associate the Victims of Trafficking and Violence Protection Act with women’s rights issues, the immigration legislation has also assisted men as well. We have done many U visas for men and children, who were victims of various qualifying crimes. While the list of crimes is lengthy, there is also a section that is broad enough to allow for interpretation. Here’s the list: 

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

So for example, while robbery is not on the list, assault is.  Most robberies have some type of assault as an element of the crime and with the use of the generic “other related crimes” section, we have been very successful in getting U visas for victims of robberies.

Noncitizen victims of crime who believe their cooperation with law enforcement might make them eligible for U visa status should discuss their case with an immigration attorney at the earliest opportunity.

U visa applicants’ spouses, parents, children and in some cases, siblings can also benefit from the U visa.  The following persons may apply as derivative beneficiaries:

  • If petitioner is under 21, then spouse, children, parents (only if petitioner is unmarried) and siblings under 18 at the time of filing I-918 can apply for derivative status.
  • If petitioner is over 21, then spouse and children can apply for derivative status.

Derivatives may apply for EAD either as part of the initial submission, or after receiving U nonimmigrant status.

Can I travel?

Technically, individuals in U status may travel abroad and are eligible to apply for a U visa at a U.S. consulate in order to reenter.  However, overseas travel raises a number of concerns, so it is better to err on the side of caution and only travel if it is an emergency.  Before you travel abroad while in U status, speak to a qualified immigration lawyer about the potential risks.

I have a final order of removal, can I still apply?

Yes!  U visas offer a unique benefit in that they allow even those non-citizens with prior orders of removal or deportation to apply for this status.  The process is trickier and may require reopening of your deportation proceedings and/or an immigration waiver, so a full consultation with your New York immigration attorney is recommended. 

Pathway to Residency

Beneficiaries of a U visa get up to four years of legal status to remain in the United States along with the ability to work in the U.S. legally.  However, the U visa also offers its beneficiaries a pathway to residency.  Beneficiaries may become lawful permanent residents after three years of holding U visa status.  The requirements are simpler than adjusting through a family member or employer, making this a distinct form of adjustment.  The requirements under INA § 245(m) that a U visa holder must demonstrate are:

  • Continuous presence in the U.S. for three years; (no travel outside the U.S. for more than 90 days or 180 days in the aggregate)
  • Is not inadmissible pursuant to those grounds listed at INA § 212(a)(3)(E).
  • Has not “unreasonably refused to provide assistance to an official or law enforcement agency…after the alien was granted U nonimmigrant status and
  • That a favorable exercise of discretion is “justified on humanitarian grounds, to ensure family unity, or is in the public interest”.

**Note that the requirements for lawful permanent resident status for derivative beneficiaries may be different than the principal applicant.

U(nique) Visa

All in all, the U visa is a distinct visa that holds many benefits.  It is a great way for victims of serious crimes who are helpful to law enforcement to obtain temporary and ultimately, permanent legal status to remain in the United States.  If you or someone you know fits any of these criteria, speak with a qualified immigration attorney today.

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Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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