By Attorneys Nancy E. Miller and Amanda C. Kwong
No one wants to be a victim of crime. It often results in the person feeling vulnerable and helpless. But, if it does happen, the victim may be able to obtain a U –visa under the Victims of Trafficking and Violence Protection Act. 10,000 U visas are available each year to persons who have suffered substantial physical or mental abuse as a result of having been the victim of qualifying criminal activity; possess credible and reliable information establishing that they have knowledge of the details concerning the criminal activity; have been helpful, are being helpful, or are likely to be helpful to a certifying agency in the investigation or prosecution of the criminal activity and that the criminal activity occurred in the United States. It is available to those in removal proceedings, those under a final order of removal or those seeking the relief who are not in proceedings. The visa is approved for 4 years. During that time, the U visa beneficiaries (which includes spouse and under 21 year old children) may work. As discussed below, the U visa can lead to a green card.
Qualifying criminal activity includes any of the following or similar activities in violation of the law: abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, female genital mutilation, fraud in foreign labor contracting, being held as a hostage, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, abusive sexual contact, sexual exploitation, slave trade, stalking, torture, trafficking, unlawful criminal restraint, witness tampering, or attempt, conspiracy or solicitation to commit any of these crimes. Similar activity means that the nature and elements of the offense are substantially similar to the specifically named offenses.
A direct victim is one who has suffered direct and proximate harm as a result of the criminal activity, including a witness to the offense who had a severe reaction, such as a miscarriage or a heart attack. An indirect victim means a family member where the direct victim is deceased due to murder or manslaughter or is incompetent or incapacitated if the family member is a spouse or child under the age of 21 of the direct victim or the under 18 year old the sibling if the direct victim was under 21.
An applicant for a U visa must provide a document signed by a certifying official stating how the person qualifies as a certifying official; that the petitioner has been a victim of a qualifying criminal activity that the certifying official’s agency is investigating or prosecuting; that the petitioner possesses information concerning the activity; that the petitioner has been or may be helpful and that the criminal activity occurred in the U.S. Certifying official has been defined as a head of a certifying agency or law enforcement agency or prosecutor, judge or other authority involved in the investigation or prosecution; a supervisor who has been designated by the head of the agency to issue U status certifications; or a federal or state or local judge. Getting this certification has been a complicated and difficult experience. However, thanks to the California Legislature, that process just became easier.
The Immigrant Victims of Crime Equity Act, marks a milestone in immigrant victim rights. The bill is awaiting Governor Jerry Brown’s signature. While he has not specifically addressed the issue, those “in the know” expect that he will sign the bill.
Under the proposed law, the definition of certifying officer has been expanded to include local law enforcement agencies and child protective service agencies. In addition, the Immigrant Victims of Crime Equity Act adds a requirement that the certifying official process the certifying statement within 90 days of the request, or within 14 days of request if the noncitizen is in removal proceedings. Previously, there was no guidance on the timeframe for certifying entities to respond to requests. This will make obtaining timely certification easier for the victim.
After three years of physical presence in the United States in U status, survivors may apply for a green card as long as they have not unreasonably refused to provide assistance in the criminal investigation or prosecution. One of the only exceptions rendering ineligibility is for the limited few who are inadmissible for participating in Nazi persecution. Therefore, any noncitizen whose immigration status is not settled and who has been a victim of what might be a qualifying crime should consult with an experienced and knowledgeable immigration attorney regarding your potential options.