Published: October 20, 2013
In recent years, Congress has enacted various pieces of legislation addressing the vulnerabilities of our undocumented population as targets of criminal activity. Whether they fall victim to crimes relating to their person or property, the undocumented victim will likely think twice about reporting the crime to authorities for fear of having their immigration status uncovered and ultimately being deported. However, with the U and T Visa options, certain undocumented victims of crime – along with their spouses and under 21 year old children – have a vehicle toward both temporary and permanent lawful immigration status in the U.S. Whether they overstayed their nonimmigrant visa status, or merely entered the U.S. without any visa at all, the out of status/no status victim of certain crimes may apply for one of 10,000 U visas or 5,000 T visas made available yearly. Even individuals in removal proceedings, or who are the subject of a final deportation or removal order may be eligible for U or T visa status.
U Visa – To qualify, the applicant must demonstrate:
* He has suffered substantial physical or mental abuse as a result of being a victim of “qualifying criminal activity,”
* He is in possession of credible and reliable information, establishing their knowledge of essential details of the qualifying criminal act that is the subject of the U visa filing,
* He has been of assistance or will be of assistance to a law enforcement agency to investigate or prosecute the crime, AND
* The criminal activity took place in the U.S. or U.S territory/possession (or violate certain U.S. federal law)
Qualifying criminal activity for U visa eligibility includes: abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, fraud in labor contracting (new to the list), incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, perjury, prostitution, rape, sexual assault, torture, trafficking, unlawful criminal restraint and, witness tampering – among others. Furthermore, the governing statute allows for U visa classification for victims of the above crimes or “any similar activities” in violation of federal, state or local criminal laws.
An application for U visa status must be accompanied by certification signed by a designated official from a local, state or federal government agency – including local police departments – OR a judge, confirming that the applicant is indeed providing the requisite assistance in the investigation or prosecution of the crime at issue. Once approved, a U visa applicant will qualify for employment authorization and eventually – 3 years down the line – permanent resident status. Spouses and children of eligible applicants may also be eligible for derivative U status and eventually permanent residence as well.
T Visa – In comparison to the U Visa, the T visa classification is a bit more limited in scope and is available to persons who are physically present in the U.S. and have fallen victim to “severe trafficking” – which includes the use of force, fraud or coercion for sex trafficking and/or involuntary servitude, peonage, debt bondage or slavery. Many of the same requirements as outlined above for U visa eligibility also govern T visa applications.
For both U and T visa applicants, “Age Out” provisions have been adopted to protect most derivative children applicants from disqualification simply because they are turning 21 years of age at some point during the process.
Undocumented victims of criminal activity can find comfort in the protections these visas provide. Unfortunately, the process of coming to terms with the reality that one has been the victim of one of these awful crimes and then trusting a law enforcement official and a lawyer in a U or T visa context is by no means an easy one. But with careful analysis and planning, a qualified U or T visa applicant not only helps bring justice to the perpetrator and society, but also benefits himself by securing a path toward legalizing their immigration status.
PUBLISHED October 20, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois