Obtaining Lawful Immigration Status After Being The Victim Of A Crime

By Attorneys Nancy E. Miller and Devin M. Connolly

Sometimes a good thing can come out of a terrible event.  Being involved in a crime is one of those situations.   U visas and, ultimately, green cards are available to persons who: have suffered substantial physical or mental abuse as a result of having been a victim of “qualifying criminal activity”; possess credible and reliable information establishing that she has 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; if the criminal activity occurred in the U.S. 

“Qualifying criminal activity” includes one or more of the following or any similar activities in violation of federal, state, or local criminal laws:  abduction; blackmail; domestic violence; extortion; false imprisonment; felonious assault; female genital mutilation; involuntary servitude; kidnapping; manslaughter; murder; obstruction of justice; perjury; prostitution; rape; sexual assault; sexual exploitation; slave trade; torture; trafficking; witness tampering or attempt, conspiracy or solicitation to commit any of these crimes.

“Victim of qualifying criminal activity” means a person who has suffered direct harm as a result of the commission of the criminal act.  It may include a witness to the crime who had a severe reaction, such as a miscarriage or heart attack or an indirect victim, such as a family member, where the direct victim is deceased due to murder or manslaughter or is incompetent or incapacitated and where the family is the spouse or children under 21.  Where the direct victim is under 21, his siblings under 18 and his parents are indirect victims.  If the person is a victim of witness tampering, obstruction of justice or perjury, or attempt, solicitation or conspiracy to commit those crimes, the victim must show that he has been directly harmed by the perpetrator of those crimes and that the perpetrator committed them as a means to avoid or frustrate efforts to bring to justice the perpetrator for other crimes or to further the abuse, exploitation or undue control of the victim.  Both direct and indirect victims are eligible for U visas and the accompanying work authorization.

 A petition for ‘U’ nonimmigrant status must be accompanied by certification from a certifying agency.  This provides evidence that the victim has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity.  The certifying agency can be a federal, state, or local law enforcement agency, a prosecutor or a judge, or any other authority that investigates or prosecutes criminal activity. 

Applicants for U visas must be admissible.  However, almost all grounds of inadmissibility are waivable if DHS finds that it is in the public or national interest to do so.

10,000 visas or status may be granted each year.  If the cap has been reached, approved applicants will be granted deferred action or parole.  During that time period, they do not accrue unlawful presence and are eligible for work authorization. 

Upon approval of the petition, any outstanding order of removal will be deemed cancelled by operation of law.  However, one should file a motion to reopen or terminate removal proceedings with the Immigration Court or the BIA. 

‘U’ nonimmigrant visas are valid for four years.  After four years have elapsed, they can only obtain an extension upon certification by a certifying agency that their continued presence in the U.S. is required to assist in the investigation or prosecution of the underlying criminal activity.  However, frequently people in ‘U’ nonimmigrant status will be able to file an application for adjustment to permanent resident status. 

There are several requirements for the U-visa recipient to be eligible for permanent resident status.  These requirements include continuous physical presence in the U.S. as ‘U’ nonimmigrant for at least three years, not having unreasonably refused to provide assistance to a law enforcement agency since being granted ‘U’ nonimmigrant status, and the certification by an agency that the person’s continued presence in the U.S. is justified on humanitarian grounds to ensure family unity or is otherwise in the public interest. 
Obtaining ‘U’ nonimmigrant status as the victim of a qualifying criminal act is a complex process and requires excellent advocacy before the USCIS and Immigration Court.  Individuals seeking assistance in such matters should therefore always consult a knowledgeable and experienced immigration attorney.