• U Nonimmigrant Visa
  • September 25, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • WHAT IS A U NONIMMIGRANT VISA?

    Persons who are victims of certain crimes that take place in the United States or are subject to U.S. jurisdiction, did not partake in the crimes, and have information that they are willing to offer that will help authorities investigate or prosecute the crimes, may be eligible for U-1 Visas. Congress established the U-1 Visa as an incentive for victims to cooperate with authorities in investigating and prosecuting those who commit certain very serious crimes. In addition, certain family members of U-1 visa beneficiaries may be eligible for derivative U visas.

    WHAT ARE THE BENEFITS OF U STATUS?

    U status lasts for duration of four years after being granted.1 Provided that the U-1 Visa holder continues to cooperate with authorities and does not render him or herself inadmissible to the United States, he or she should remain on U-1 status for that entire period. Persons with U status are granted employment authorization.2 U-1 Visa holders may apply for I-551 Cards (commonly known as Green Cards) three years after being granted a U-1 Visa.3 Immediate family members of U-1 Visa holders may be eligible for derivative U-2, U-3, U-4, or U-5 visas depending on their relation to the principal U-1 Visa holder. Derivative U Visa holders are also eligible for adjustment of status after three years on derivative U status.4

    AM I ELIGIBLE FOR A U-1 VISA?

    In order to be eligible for a U-1 visa, an applicant must be the victim of a qualifying crime that must have been considered a crime in the United States. Furthermore, the crime must have either been commissioned in the United States, or abroad but subject to U.S. jurisdiction.5

    A successful U-1 visa applicant must be a victim of a crime involving at least one of the following as defined in INA § 101(a)(15)(U)(iii):
    • rape;
    • torture;
    • trafficking;
    • incest;
    • domestic violence;
    • sexual assault;
    • abusive sexual contact;
    • prostitution;
    • sexual exploitation;
    • stalking;
    • female genital mutilation;
    • being held hostage;
    • peonage (forced labor on account of debt or convict labor);
    • involuntary servitude;
    • slave trade;
    • kidnapping;
    • abduction;
    • unlawful criminal restraint;
    • false imprisonment;
    • blackmail;
    • extortion;
    • manslaughter;
    • murder;
    • felonious assault;
    • witness tampering;
    • obstruction of justice;
    • perjury;
    • fraud in foreign labor contracting; or
    • attempt, conspiracy, or solicitation to commit any crime on this list or any crime related to crimes on this list.6
    The crime victim must also have suffered “substantial mental or physical abuse” related to the crime.7 Furthermore, the crime victim must possess information that is helpful to U.S. authorities in investigating or prosecuting the crime, and the victim must be helpful or considered likely to be helpful in the investigation or prosecution of the crime.8 If the victim is under the age of 16, he or she is eligible for U-1 status if a parent, guardian, or the “next friend”9 can be helpful to the investigation or prosecution of the crime.10

    U-1 visas are annually capped at 10,000.11 If the cap has been reached but a U-1 applicant is otherwise approvable for U status, he or she will be given a Notice of Conditional Approval and be admitted under a grant of deferred action or parole until he or she may be granted an available U visa.12

    Successful applicants for U visas must be admissible to the United States except for public charge.13 Almost all grounds of inadmissibility are waivable if the Attorney General determines a waiver to be in the public interest.14 Because of this and potential complications in establishing that a U-1 applicant will be helpful in the investigation or prosecution of the crime that he or she is a victim of, any applicants for U-1 status are well advised to consult with an experienced immigration attorney.

    Please note that certain victims of human trafficking should check their eligibility for the T-1 visa.

    ELIGIBILITY FOR DERIVATIVE U VISAS

    In the case that the U-1 beneficiary is less than 21 years of age, the spouse, children, or unmarried siblings less than 18 years of age on the date that the U-1 beneficiary applied for a U-1 visa are eligible for derivative U Visas. Parents in this situation are also eligible for derivative U Visas.15

    If the U-1 beneficiary is 21 years or older, his or her spouse and children are eligible for U status.16

    Derivative U visas are not subject to the cap on U-1 visas.17

    HOW DO I APPLY FOR A U VISA?

    Due to the trying circumstances that would lead someone to apply for a U-1 visa, there is no fee for filing an application. However, U-1 visa applicants must submit:
    • A completed Form I-918, Petition for U Nonimmigrant Status; and
    • A Supplement B Form to the I-918 that is completed by a U.S. law enforcement agency; and
    • A written statement attesting to the crime(s) for which the applicant was a victim of and how you meet the criteria for eligibility for a U-1 visa.18
    Derivatives of a U-1 visa applicant must file a Supplement A Form to the Form I-918. This supplement should be filed concurrently with the Form I-918; however, it may be filed afterwards. Provided that the U-1 beneficiary adjusts to lawful permanent resident (LPR) status, family members who never obtained one of the four derivative U visas may seek LPR status.

    1
    S. Kurzban, Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1053, citing; 8 C.F.R. § 214.14(g)
    2 Kurzban 1053
    3 Kurzban 1055, citing; INA § 245(m); 8 C.F.R. § 245.24
    4 Kurzban 1055, citing; Policy Memo, Extention of U Nonimmigrant Status for Derivative Family Members, PM-602-0001 (Jun 22, 2010), published on AILA InfoNet at Doc. No. 10062830; AFM 39.1(g)(2)(B); Policy Memo USCIS, PM-602-0004 (July 21, 2010), published on AILA InfoNet at Doc. No. 10072930. [Derivative U visa holders may obtain extensions of status if necessary to accrue the requisite 3 years required to adjust status]
    5 INA § 101(a)(15)(U)(i)(IV)
    6 Note that persons involved in the commission of any of the above crimes are ineligible for U status even if they meet every other requirement.
    7 INA § 101(a)(15)(U)(i)(I)
    8 INA § 101(a)(15)(U)(i)(III)
    9 Citing 8 C.F.R. 214.4(a)(7) [defining “next friend” as a person who appears in a lawsuit to act for the benefit of an applicant less than 16 years of age who has suffered substantial physical or mental abuse as a result of being a victim of a crime. The next friend cannot be a party to the legal proceeding and cannot be the guardian of the U-1 visa applicant].
    10 INA § 101(a)(15)(U)(i)(II)
    11 Kurzban 1053
    12 Kurzban 1052-53, citing; 8 C.F.R. § 214.14(d)(2); USCIS, Questions and Answers, USCIS Reaches Milestone: 10,000 U Visas Approved in Fiscal Year 2010 (July 15, 2010), published on AILA InfoNet at Doc. No. 10071530.; INA § 212(a)(9)(B) [will not accrue unlawful presence while waiting for U visa under grant of parole or deferred action]
    13 Kurzban 1054, citing; INA § 212(a)(4)(E) for statute regarding public charge.
    14 Kurzban 1054, citing; INA § 212(d)(14); 8 C.F.R. § 212.17(b)(1); INA § 212(a)(3)(E) [list of non-waivable crimes that involve Nazis, genocide, torture, or extrajudicial killings]
    15 INA § 101(a)(15)(U)(ii)(I)
    16 INA § 101(a)(15)(U)(ii)(II)
    17 Kurzban 1053, citing; AFM at 39(d)
    18 Kurzban 1052, citing; 8 C.F.R. § 212.7, 8 C.F.R. § 214.14(c)(2) for the list