By Attorneys Robert L. Reeves, Nancy E. Miller and Erin Lee
Being the victim of a crime is terrifying. It is even more frightening for someone who is living in the United States without status. A United States citizen or a lawful resident would not hesitate to report the crime to the police. An undocumented immigrant, however, agonizes that, by filing a complaint, they will be placing themselves in a precarious position.
They experience the very real fear that, instead of obtaining justice, they will be turned over to Immigration & Customs Enforcement and be subject to removal and separation from their loved ones. Fortunately, the law allows for certain victims of qualified crimes to remain in the United States lawfully.
The U visa, is a visa for victims of crimes who have suffered substantial mental or physical abuse and are willing to assist law enforcement agencies in investigating or prosecuting a case. However, there is a cap of 10,000 visas that can be issued in a fiscal year. Family members can also derive benefits from the principle’s U-visa application.
If the principle applicant is under 21 years of age, he or she can also petition on behalf of his or her spouse, children, parents, and unmarried siblings under 18 years old. If the principle applicant is 21 years or older, he or she may only petition for their spouses and children under 21 years old. The cap does not include derivative family members.
The U visa requires: 1) the victim to have suffered substantial mental or physical abuse as a result of being a victim of a qualifying criminal activity; 2) the victim to have information concerning that criminal activity; 3) the victim to have been, is being, or will likely be helpful in the investigation or prosecution of the case; and 4) that the criminal activity have violated U.S. laws. A person is not a victim if he or she is culpable for any of the criminal activity.
“Criminal activity” does not necessarily include any and all crimes. The law defines “criminal activity” to be one or more activities that violate federal, state, or local criminal laws, including but not limited to: abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, incest, hostage, murder, obstruction of justice, prostitution, rape, sexual assault, sexual exploitation, torture, witness tampering, unlawful criminal restraint, and other related crimes.
If approved, the applicant will be given a visa for four years, and may be extended if his or her presence continues to be necessary in the investigation of prosecution of the criminal activity in which he or she was involved. Eventually, a U visa holder may apply for a green card if 1) he or she was physical present in the U.S. for a continuous period of at least 3 years since obtaining his or her U visa; 2) must not have refused to assist law enforcement since receiving the visa; and 3) the certifying law enforcement agency must make a determination that the applicant’s continued presence in the U.S. is justified, either on humanitarian grounds, to maintain a cohesive family unit, or for other national or public interests.
Qualifying members of a U visa holder also can reap the benefits of the principle’s U visa. If a derivative family member is already in possession of a U visa, he or she may also apply for a green card upon the principle obtaining a green card. Even family members that have never possessed a U visa can apply for their green cards, as long as the principal applicant would suffer “extreme hardship” of the relative is not allowed to remain in the U.S.
Being a victim of a crime is a traumatic experience. The loss of control that one feels is devastating. Being able to come forward and report the crime to the police enables the victim to regain some control over their life. They can only do this if they do not fear being removed. The U visa allows them to do this. However, one should not be victimized twice. In seeking the protection and benefits of a U visa, one should only place themselves and their lives in the hands of an experienced and knowledgeable immigration attorney.