A violent crime can have devastating and lasting effects on the victims. The scars are physical and emotional, and often run deep. After an attack, when recovery and recuperation are of primary importance, a victim will often put his or her own needs aside to assist police or others in the crucial stages of an investigation.
Days, weeks, and months later, that victim may be needed to assist with a criminal prosecution, including identifying an attacker and testifying in court.
Sadly, when the victim of a violent crime is a person without immigration status in the United States, the victim may prefer to avoid law enforcement, and may not report the crime or seek crucial medical treatment.
To encourage cooperation and treatment, U.S. immigration law offers the “U” visa. The “U” visa provides nonimmigrant status (and a pathway to a green card) to victims of certain crimes who suffer substantial physical or mental abuse as a result of the crime, and who provide help in a criminal investigation or prosecution.
In order to qualify for a “U” visa, a person must be a victim (direct or indirect) of certain statutorily qualifying crimes. The list of specified crimes include rape, torture, domestic violence, kidnapping, sexual exploitation, murder, obstruction of justice, and others. A crime does not have to be specifically listed in order to qualify, but must be of a similar nature to one of the listed crimes, or must be related to one of the targeted offenses.
For example, “stalking” might qualify, if it is related to domestic violence. Generally, the immigration services have refused to recognize notario fraud or immigration fraud as a specified offense. A victim may be direct or indirect. A “direct” victim includes the person who directly suffers harm, as well as bystanders who suffer unusually direct injury (e.g., eyewitness to a murder who suffers psychological harm from witnessing horrific events).
An “indirect” victim is a family member (spouse, children, and parents) of a “direct” victim who is killed (or incapacitated) as a result of the crime. A “U” visa applicant must be helpful in the investigation or prosecution of the criminal perpetrator. The responsibility to be helpful is ongoing, and victim must not refuse to provide reasonably requested assistance.
As part of the application process for the “U” visa, the applicant must obtain a certification from a law enforcement official, recognizing that the victim has been helpful. Helpfulness might include providing a witness statement, identifying a perpetrator from a lineup, and providing testimony to a grand jury and in trial.
In addition, the victim/applicant must demonstrate that he or she suffered substantial physical or mental abuse as a result of the crime. Many factors will be considered, including the victim’s preexisting conditions, but in general, an applicant will satisfy this criterion if the harm is severe and the effects are long-lasting or permanent.
A person who qualifies for a “U” visa may be granted nonimmigrant status in the U.S., even when that person is otherwise “inadmissible” to the United States. A waiver is available for virtually all grounds of inadmissibility (e.g., prior convictions for drug offenses, health-related grounds, prior immigration fraud, etc.). A waiver of inadmissibility will be granted if it is in the public or national interest.
A “U” nonimmigrant may also be eligible for a green card. The “U” visa is granted for a period of four years. After three years in “U” status, an individual can file for adjustment to permanent resident status (green card). This process is discretionary, ant the applicant must demonstrate that permanent residency is justified on humanitarian grounds, to ensure family unity, or in the public interest. In addition, the applicant must demonstrate that he or she has not unreasonably refused to assist in any ongoing investigation or prosecution.
The “U” visa is a tremendous incentive to victims of crimes to seek necessary medical and psychological treatment, and to assist law enforcement agents in the investigation and prosecution of the crime. Reporting criminal activity and assisting law enforcement is essential to keeping this country safe and secure. The “U” visa may be the only option for certain persons who are in the United States without status and who are otherwise inadmissible to the U.S., but the criteria to qualify for the visa are strict. If you or someone you care about might be eligible for a “U” visa, you should contact an experienced immigration attorney to discuss your options.