Thanks to the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women's Protection Act) in October 2000, victims of certain crimes may be eligible for a U non-immigrant status visa ("U visa”). The U visa is set aside for victims who meet certain criteria.
In order to be eligible for a U visa, an applicant must show s/he:
(a) has suffered substantial physical or mental abuse as a result of having been a victim of "qualifying criminal activity" pursuant to INA §101(a)(15)(U) listed below;
(b) possesses credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based;
(c) has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity; AND
(d) the qualifying criminal activity occurred in the U.S. or violated U.S. laws or the territories and possessions of the United States.
Qualifying Criminal Activities include, but is not limited to: 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 the above.
A petitioner must file a Petition for U non-immigrant Statuswith the USCIS. S/he may file Form I-918 if s/he is in pending immigration proceedings, has a final order of removal, deportation or exclusion, or seeks non-immigrant visa ("NIV") status outside of any proceeding. However, you must be admissible to the U.S. in order to apply for a U visa. If you are not admissible, you may apply for a waiver on an Application for Advance Permission to Enter as a Non-Immigrant .
Please note that there is a cap of 10,000 visas/statuses that may be issued annually and the limit only applies to principal aliens. Once granted, employment is authorized and the USCIS will automatically issue an employment authorization document ("EAD"). Additionally, the U visa is approved for a period of four (4) years. The four years may be extended if the certifying official attests that the U-1s presence in the U.S. is necessary to assist in the investigation or prosecution of a qualifying criminal activity.
Under INA § 245(m), a U visa holder may be eligible to adjust status to that of a lawful permanent resident ("LPR"). In order to adjust, U non-immigrants must demonstrate:
(a) Lawful admission to the U.S. as a principal or derivative in U status (U-1, U-2, U-3, U-4, or U-5 non-immigrant status);
(b) U status at the time of application, OR accrual of at least 4 years in interim relief status;
(c) Continuous presence in the U.S. for 3 years;
(d) Is not inadmissible;
(e) Has not "unreasonably refused to provide assistance to an official or law enforcement agency…after the alien was granted U non-immigrant status, as determined by the Attorney General, based on affirmative evidence" (8 CFR § 245.24(b)(5));
(f) That a favorable exercise of discretion is "justified on humanitarian grounds, to ensure family unity, or is in the public interest" (8 CFR § 245.24(b)(6));
An applicant may NOT adjust if:
(a) They participated in Nazi persecution, genocide, or any act of torture or extra-judicial killing (other grounds of inadmissibility do not preclude adjustment).
(b) Affirmative evidence shows that the person unreasonably refused to provide assistance in investigation or prosecution of criminal activity.
(c) U non-immigrant status has been revoked. (8 CFR § 245.24(c)).
Please keep in mind that adjustment is discretionary, and applicants must prove that they are not inadmissible.
If you feel that you are eligible for a U visa or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.