November 19, 2015
When a serious crime has been committed, justice can only be served when the perpetrator of the crime is successfully prosecuted and jailed. Unfortunately, justice is often not served when the victim of the crime is an undocumented immigrant. This has been the case as many fear that may suffer because of their unlawful immigration status should they seek help from the police.
In an effort to combat this fear and rightly redress victims of crimes, Congress passed the Victims of Trafficking and Violence Prevention Act of 2000. This Act created the U Visa, which confers legal, nonimmigrant status to an individual of certain serious crimes. The Department of Homeland Security (DHS) began issuing U visas in 2008. Every year since then, the maximum number of U visas that can be issued each year, which is 10,000, has been granted.
To be eligible for a U visa, a noncitizen applicant must provide evidence establishing the following requirements: (1) the individual, or a qualifying relative, must have suffered substantial physical or mental abuse due to a qualifying criminal activity; (2) the victim has information concerning the criminal activity; (3) the victim has been helpful, is being helpful, or is likely to be helpful to law enforcement officials in investigating or prosecuting the criminal activity; and (4) the crime violated US laws or occurred within the US. U visas are available to those residing both within the US and those who may have already departed the US, whether voluntarily or under an order of removal.
The types of criminal activities that qualify a victim for a U visa are numerous. There is no exhaustive list of offenses, but rather they are defined by various federal, state and local criminal laws. Examples of qualifying criminal activities include domestic violence, child abuse, rape, sexual abuse, abduction, involuntary servitude, torture, murder, witness tampering, obstruction of justice, perjury, kidnapping, prostitution, trafficking, false imprisonment, blackmail, and extortion. In the domestic violence context, it is worthwhile to note that it includes offenses between non-married couples. As well, the immigration status of the criminal perpetrator is irrelevant, so it includes offenses committed by one undocumented individual to another.
An individual who has been the victim of criminal activity may obtain a U visa, which confers legal status in the US and a work permit valid for a period of 4 years. If the victim is under the age of 21, then his/her parents, spouse, children, and unmarried siblings under age 18 are also eligible for a U visa. If the victim is age 21 or older, then the victim’s spouse and children may obtain a U visa as well.
Individuals granted a U visa may thereafter apply for permanent residency upon fulfilling the following: (1) be a U nonimmigrant; (2) be physically present in the US continuously for at least 3 years as a U nonimmigrant; and (3) he/she has not unreasonably refused to provide assistance to law enforcement officials prosecuting the criminal activity underlying the U Visa.
In addition, the immigration service will use its discretion when evaluating applications to determine if the applicant should be accorded permanent resident status to the US. The immigration will balance any negative factors, such as a criminal record, fraud, or immigration violation, against any positive factors, such as family ties, hardship, or length of residence in the US, to determine whether an individual should be granted permanent residency.
The U visa empowers a victim of a serious crime to not only ensure that justice against the criminal perpetrator is obtained, but also to secure justice for himself/herself as a victim deserving of an opportunity in the United States. Given the legal complexities involved, individuals burdened by such a traumatic experience as being a victim of a serious crime should consult with a qualified immigration attorney to ensure that the rights and privileges afforded under the law are applied fairly and justly.
For further information, please schedule an appointment with an attorney at Aquino & Loew, Immigration Law Specialists. Please also connect with us on Facebook and Twitter. Aquino & Loew also handles family law and criminal matters. Providing Personalized Service Nationwide & Abroad Since 1996.