• U Visa Law Enforcement Certification
  • February 23, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Introduction: U Visa Law Enforcement Certification

    The U nonimmigrant visa category is for certain victims of particularly serious crimes who cooperate with law enforcement in the investigation or prosecution of the criminal activity. To learn about U nonimmigrant visas, please see these full articles about applying for U status and the benefits of U status.

    In order to be eligible for a U visa, the applicant must obtain what is called “law enforcement certification” on the Form I-918, Supplement B. In this article, we will use the United States Citizenship and Immigration Services’ (USCIS’) Law Enforcement Certification Guide (“LEC Guide”)[see guide] to review the requirements for law enforcement certification.

    What is Law Enforcement Certification?

    Under section 214(p)(1) of the Immigration and Nationality Act (INA), a U visa petition must include a law enforcement certification signed by the law enforcement agency investigating or prosecuting the crime. Under 8 C.F.R. 214.14(c)(2)(i), the law enforcement certification must be submitted within 6 months of the filing of the Form I-918 petition for U status.

    The LEC Guide provides the following non-exhaustive list of persons and entities that may sign a law enforcement certification:
    • Federal, State, and Local law enforcement agencies;
    • Federal, State, and Local prosecutors' offices;
    • Federal, State, and Local Judges;
    • Federal, State, and Local Family Protective Services;
    • Equal Employment Opportunity Commission;
    • Federal and State Departments of Labor; and
    • Other investigative agencies.
    In addition to being required by statute, the law enforcement certification attests to USCIS the following (per the LEC Guide):
    • The petitioner was a victim of a qualifying crime;
    • The petitioner has specific knowledge and details of the crime; and
    • The petitioner has been, is being, or is likely to be helpful to law enforcement in the detection, investigation, or prosecution of the qualifying crime.
    In short, the law enforcement certification will serve as evidence that the U visa applicant was the victim of a qualifying particularly serious crime for purpose of U visa eligibility and that he or she is fulfilling her statutory and regulatory requirements to assist law enforcement in the investigation and/or prosecution of the criminal activity.

    It is important to remember that under 8 C.F.R. 214.14(a)(14)(iii), a person who was culpable in the crime in which he or she is a victim is ineligible for a U visa.

    The Place of Law Enforcement Certification in the U Visa Petitioning Process

    Law enforcement certification is necessary, but not sufficient, for U visa eligibility. Ultimately, the decision on whether to grant a U visa is in the discretion of USCIS. USCIS may decide to deny a U visa petition even if the applicant has obtained the requisite law enforcement certification.

    However, the decision on whether to sign a law enforcement certification is solely in the discretion of the authority that is investigating or prosecuting the criminal activity in question. Neither a crime victim nor USCIS may compel the law enforcement authority to sign a law enforcement certification. If the law enforcement authority refuses to sign law enforcement certification, the U visa applicant will be ineligible for a U visa.

    Requirements for Law Enforcement Certification

    It is important to remember the purpose of the U visa category. The U visa exists not only to provide immigration relief to victims of particularly serious crimes, but also as a powerful inducement to such victims to assist authorities in in the investigation and possible prosecution of the criminal activity. Both components are necessary in order for a crime victim to be eligible for a U visa. Accordingly, it is imperative that the crime victim comply with all reasonable requests for assistance from law enforcement.

    However, there are limited situations in which the crime victim may have someone else provide information on his or her behalf. These situations arise when the crime victim is under the age of 16, incompetent, or incapacitated at the time of his or her victimization. In this situation, a parent, guardian, or “next friend” may provide information on the crime victim’s behalf (a “next friend cannot be a party to a legal proceeding involving the crime victim and does not qualify for immigration benefits by acting as a “next friend”). However, it is important to remember that the parent, guardian, or next friend must possess information that will be of use to law enforcement.

    In limited cases, the “indirect victim” of a particularly serious crime may be eligible for a U visa. Under 8 C.F.R. 214.14(a)(14), the alien spouse or child(ren) under 21 years of age of the direct victim may qualify as indirect victims if the direct victim is deceased due to murder or manslaughter or is incompetent or incapacitated and thus unable to assist in the investigation of the criminal activity. If the direct victim is under the age of 21, his or her parents or unmarried sibling(s) under the age of 18 may qualify as indirect victims. The LEC Guide explains that the immigration status of the direct victim in such a case is not relevant. The LEC Guide explains that in order for the parent of a direct victim under the age of 21 to qualify as an indirect victim for U visa eligibility, he or she will be required to possess information about the crime and be helpful to law enforcement.

    Determining Helpfulness

    The LEC Guide explains that in order to be eligible for a U visa, the applicant must comply with “all reasonable requests for assistance” by law enforcement. Furthermore, this obligation does not end once law enforcement certification has been signed. If the U visa applicant subsequently refuses to comply with a reasonable request for assistance, the law enforcement agency has the discretion to withdraw or disavow its law enforcement certification. Furthermore, in order to adjust from U visa status to permanent resident status, the U visa holder must be found to have complied with all reasonable requests for assistance.

    However, there is no specific requirement for “helpfulness” aside from having information that is useful to law enforcement authorities and complying with all reasonable requests for assistance. In fact, law enforcement certification may be granted to an alien who was helpful to law enforcement in a case that was subsequently closed.

    Law enforcement certification may also be granted when prosecution is unlikely. Accordingly, there is no particular requirement that an alien testify against the perpetrator at trial. However, if the crime victim is asked to testify, he or she may not unreasonably refuse to do so.

    Law enforcement certification may be granted even if a different crime is prosecuted than the crime that the U visa applicant was a victim of. The LEC Guide uses the example of a case where police determine in the course of a drug trafficking investigation that the drug trafficker’s alien wife is a victim of domestic violence (which is a qualifying crime for U visa purposes). The wife in such a case would be eligible for law enforcement certification as the victim of domestic violence even if the domestic violence is not prosecuted and she is assisting law enforcement instead with the drug trafficking investigation.

    Conclusion: Law Enforcement Certification

    The LEC Guide is useful for understanding how the law enforcement certification process works. The victim of a particularly serious crime that is covered in the U visa rules should consult with an experienced immigration attorney for guidance. During the U visa application process, it is important for the crime victim to be cooperative with law enforcement. This is because the U visa in and of itself is in large part a reward for cooperating with law enforcement in the investigation of serious criminal activity. Furthermore, it is important to remember that the obligation to assist law enforcement does not end when law enforcement certification is signed. Rather, the alien’s continued cooperation with law enforcement is necessary in order for him or her to ultimately be eligible for adjustment to permanent resident status.