U Visa & Status
The U visa category is codified in INA §§101(a)(15)(U), 214(p), 245(m), 8 U.S.C. §§1101(a)(15)(U), 1184(p), 1255(m).
Its requirements are:
- The visa/status is for a person who has suffered substantial physical or mental abuse as a result of having been a victim of one or more of the following crimes or similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of these crimes. The applicant must also demonstrate that:
- s/he possesses information concerning the criminal activity;
- s/he has been helpful, is being helpful, or is likely to be helpful to law enforcement officials, prosecutors, judges, or other investigating authorities and a certification has been provided to that effect by such official or a Service official; and
- the criminal activity violated the laws of the U.S. or occurred in the U.S. or the territories or possessions of the U.S. If the visa applicant is under 21, her spouse, children, unmarried siblings under 18 on the date she applied for U status and her parents may accompany her or follow to join. If over 21, then only her spouse and children are covered. The applicant can provide any credible evidence to support his or her petition.
- 10,000 visas/status may be issued annually and the limit only applies to principal aliens. The Sec. of DHS shall provide employment authorization. The Sec. of DHS may waive all grounds of inadmissibility except for Nazis.
- Nonremoval–DHS officers are instructed to use existing authority and mechanisms, such as parole, deferred action, continuances and stays of removal, to prevent the removal of possible “U” victims. They should also be provided employment authorization. Memo, Cronin, supra
The procedure for U Applicants are as follows:
- Applications must be filed with the Vermont Service Center only. Until regulations are issued, as interim relief Vermont Service Center officers may grant deferred action to persons who produce prima facie evidence demonstrating their eligibility for the visa including certification from a state or federal law enforcement officer attesting to the person’s status as a victim (even if it occurred in the past) and her or her “helpfulness.” The victim may also obtain employment authorization if interim relief is granted. DHS, however, may terminate deferred action if the circumstances no longer warrant it. Letter and Memo, Yates, Assoc. Dir. Operations, USCIS (Oct. 8, 2003), posted on AILA InfoNet at Doc. No. 03101420.
- Date of U Grant–Where applicants for U status can be granted interim relief in the form of deferred action, parole or stays of removal; their status as a U, once granted, will be recorded as of the day the interim relief was approved. AFM 39.10(c).
- A U-1 is given for a maximum period of 4 years. It is not renewable except that the status may be extended if law enforcement officials certify that her presence is necessary to assist in the investigation or prosecution of criminal activity.
- If the visa applicant is under 21, her spouse, children, unmarried siblings under 18 on the date she applied for U status, and her parents may accompany her or follow to join. If over 21, then only her spouse and children are covered. Spouse, children and parents (where the child is a victim under 16) may also obtain interim relief in the form of deferred action, parole, and stays of removal. Family members cannot obtain U-2, U-3 or U-4 designations until principal is granted U-1. There is no annual cap to the grant of these visas. AFM 39.13(f)(7).
- All grounds of inadmissibility except for INA §212(a)(3)(E) [Nazi persecutors] are waivable by DHS if in the “public or national interest.” INA §212(d)(14).9. Notwithstanding the prohibitions under INA §248 regarding a change of status, those bars do not apply to a change of status to U classification. INA §248(b).
10. Adjustment of Status–Unless the Sec. of DHS determines based on affirmative evidence that the U visa holder unreasonably refused to provide assistance in a criminal investigation or prosecution, s/he may adjust the status of such person if: (1) s/he has been physically present in the U.S. for a continuous period of 3 years; and (2) in the opinion of the AG her continued presence in the U.S. is justified on humanitarian grounds to ensure family unity or is otherwise in the public interest. Physical presence is broken if the person is outside the U.S. in excess of 90 days or an aggregate of 180 days unless the absence is to assist in an investigation or prosecution or a person involved in the investigation certifies that the absence was otherwise justified. The AG may adjust the spouse and children of the U visa holder. In the case of a U visa holder who is a child, the AG may adjust the parent if s/he considers the grant necessary to avoid extreme hardship. INA §245(m).
11. A VAWA self-petitioner or a person who had T or U status cannot file a nonimmigrant or immigrant visa petition on behalf of the person who abused her or her child. INA §204(a)(1)(L).