The U visa provides temporary status and often eventually permanent residence to victims of violent crime who assist law enforcement in the investigation or prosectuion of the crime. Unlike most other applications for benefits and defenses to deportation, a person with significant prior immigration violations may still qualify for the U visa by making an application for a waiver.
Congress set an annual cap of 10,000 U visas and the cap is renewed at the start of each federal government fiscal year starting on October 1. Although the cap is sometimes reached, even those applying when no visas are available are entitled to deferred action and are eligible to apply for employment authorization pending available visa numbers. 8 CFR § 214.14(d)(1) and (2). A U visa is available when the crime victim assisted law enforcement in the investigation or prosecution of the crime, has suffered substantial physical or mental abuse as a result of the crime, and the crime is identified on the following list, or is substantially similar to a crime listed at INA § 101(a)(15)(U)(i):
Unlawful criminal restraint
Obstruction of justice
Attempt, conspiracy, or solicitation to commit any of the above
The U visa is a nonimmigrant or temporary visa that affords temporary status for four years, and may sometimes be extended. 8 CFR § 214.14(g). And U visa applicants may seek permanent residence after holding U status for three years. INA § 245(m). U visa applicants must also pay a biometrics fee, unless they qualify, a fee waiver. 8 CFR § 103.7(c).
The legislative history of the Violence Against Women Acts of 1994, 2000, and 2005 expresses Congress’ dual purposes of VAWA—to strengthen relief and protection for victims of domestic violence, sexual assault, stalking, and trafﬁcking and to facilitate the investigation and prosecution of the perpetrators who commit these crimes. See, e.g., 151 CONG. REC. S13, 749-13,765 (2005) (statement of Sen. Leahy); H.R. REP. NO. 109-233, at 123 (2005); 146 CONG. REC. S10,192 (2000) (statement of Sen. Hatch on behalf of the joint managers of the 2000 reauthorization of the Violence Against Women Act); Victims of Trafﬁcking and Violence Protection Act of 2000, §§ 1502, 1513, Pub. L. No. 106-386, 114 Stat. 1464 (2000) (codiﬁed as amended in various sections of the U.S.C.); H.R. REP. NO. 103-395, at 38 (1993).
The U visa applicant must submit a signed form I-918 Supplement B. The form must be completed and signed by an authorized law enforcement agent and certify that the applicant was helpful, is being helpful, or is likely to be helpful in the criminal investigation or prosecution of the crime. 8 CFR § 214.14(c)(2)(i). The signature on the I-918B certification must be dated no earlier than six months before USCIS receives the application. 8 CFR § 214.14(c)(2)(i).
The regulations also require the applicant to remain cooperative throughout the prosecution of the crime and not refuse to provide reasonably requested information or assistance. 8 CFR § 214.14(b)(3). This means, for example, that if the applicant initially cooperated in the investigation of the crime, but later refused to cooperate in the prosecution of the crime that law enforcement could report this and the applicant would be ineligible for U status.
A certifying agency is one that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity, including but not limited to local, state and federal law enforcement, prosecutors, judges, child protective services, the Equal Employment Opportunity Commission, or US the Department of Labor. 8 CFR § 214.14(a)(2).
Only the head of a certifying agency, or a supervisor who has been specifically designated by the head of the certifying agency may sign the U visa certification. 8 CFR designated by the head of the certifying agency may sign the I-918B certification. 8 CFR § 214.14(c)(2)(i).
On January 1, 2016 a new California law will take effect regulating law enforcement agencies' responsibilities to consider requests for I-918B U visa law enforcement certifications. SB 674 applies to certifying officials, which it defines as law enforcement agency employees, prosectors and judges. The law requires that:
An alien who is the subject of a final order of removal, deportation, or exclusion is not precluded from filing a petition for U-1 nonimmigrant status directly with USCIS. The filing of a petition for U-1 nonimmigrant status has no effect on ICE's authority to execute a final order, although the alien may file a request for a stay of removal pursuant to 8 CFR § 241.6(a) and 8 CFR § 1241.6(a). If the alien is in detention pending execution of the final order, the time during which a stay is in effect will extend the period of detention (under the standards of 8 CFR § 241.4) reasonably necessary to bring about the petitioner's removal.
The applicant must include a signed statement with the I-918 application describing the facts of the victimization. 8 CFR § 214.14(c)(2)(iii). When the petitioner is under the age of 16, incapacitated, or incompetent, a parent, guardian, or next friend may submit a statement on behalf of the petitioner. 8 CFR § 214.14(c)(2)(iii).
Derivative family members include the spouse parent and child under age 21 of the victim. If the victim is under age 18, the victim's siblings under age 18 as well as children and parents qualify for derivative status. Derivative beneficiaries of U status may file for a waiver of inadmissibility just like the principal U visa applicant. 8 CFR § 214.14(f)(3)(ii).
Where the victim is young or incapable of providing sufficient information or assistance to law enforcement, the victim's parents may qualify as indirect victims. During a USCIS Vermont Service Center (VSC) USCIS Stakeholder’s Meeting, VSC stated regarding parents of sexually abused US citizen children:
Parents of sexually abused children qualify as indirect victims, even if the child is a USC. It falls under the incompetent/incapacitated victim. The I‑918B should reflect the parent/indirect victim as the victim on the form. The confusion has been in cases where the I-918B indicated the direct victim.
In cases where a child is the victim of a crime, the child may not be able to provide law enforcement with adequate assistance. This may be due to the child’s age or trauma. Parents of a child victim often detect, report and assist law enforcement in the investigation and prosecution of crimes committed against children. Thus the alien parents of a minor victim may apply for a U visa as an indirect victim of the crime if the principal victim is a child under 21 and is incompetent to provide sufficient assistance to law enforcement in the investigation or prosecution of the crime committed.
The immigration status of the child victim is not relevant to this determination. Form I-918B may be submitted for an alien parent whether or not the child is a US citizen or resident, or illegally present in the United States. The victim's parents qualify as indirect victims if they meet the remaining eligibility requirements for a U visa. But to qualify as indirect victims, the parents must have information about the crime, and must assist law enforcement in the investigation or prosecution of the crime and the crime must have occurred in the United States or violated U.S. law. The parents will also be subject to standard background checks (FBI fingerprint and name/DOB check) and immigration records review as well. U Visa Law Enforcement Certification Resource Guide, Department of Homeland Security at page 13-14.