WHO IS ELIGIBLE TO APPLY FOR THE NONIMMIGRANT U-VISA?
In order to be eligible for U-visa status, the immigrant victim must:
1. Have suffered substantial physical or mental abuse as a result of having been a victim of the one or more of the criminal activities listed under INA ? 101(a)(15)(U)(iii)
2. Possess information concerning the criminal activity;
3. Obtain a certification from a law enforcement official, prosecutor, judge, Immigration official, or other federal or state authority that he or she is being, has been, or is likely to be helpful to a federal, state, or local investigation or prosecution of a form of listed criminal activity;
4. The criminal activity violated the laws of or occurred in the United States.
Substantial Physical or Mental Abuse
In order to be eligible for U-visa status, an applicant must have suffered substantial physical or mental abuse as a result of being a victim of the criminal activity. In determining whether the abuse is substantial, DHS will consider:
o The nature of the injury;
o Severity of the perpetrator's conduct;
o The severity of the harm suffered;
o The duration of the infliction of harm;
o Permanent or serious harm to appearance;
o And health, physical, and mental soundness.
Victim of Enumerated Criminal Activity
Congress created an extensive list of criminal activities that qualify under the U-visa.
Trafficking Unlawful criminal restraint
Incest False imprisonment
Domestic violence Blackmail
Sexual assault Extortion
Abusive sexual contact Manslaughter
Sexual exploitation Felonious assault
Female genital mutilation Witness tampering
Being held hostage Obstruction of justice
Involuntary servitude Slave trade
The applicant may be a direct victim or an indirect victim of the criminal activity. Indirect victims may also apply for U-visa in specific circumstances. If the criminal activity renders the primary victim deceased (e.g. murder, manslaughter) or incompetent or incapacitated, the Spouse, Children under 21 years of age, and if the direct victim is under age 21, the parents and siblings under age 18 qualify as victims.
DHS requires all applicants to provide certification from a state, local, or federal agency (Form I-918 Supplement B) in order to grant U-visa status. This is mandatory. The form requires the law enforcement official, judge, or other authorized state, local, or federal employee to certify that the applicant has been, is being, or is likely to be helpful and that the applicant is a victim of a qualifying criminal activity. This includes past, present, and future helpfulness. The certification form also requires the government signatory to demonstrate their authority as a supervisory or designated agent to sign on behalf of their department and that their agency is eligible to certify.
Though it is not required that the case be prosecuted, the applicant must continue to cooperate through the duration of the U-visa status.
If Victim is in Removal Proceedings
Victims who are currently still in removal proceedings or in detention may apply for a U-visa. An attorney can assist an applicant in applying for a motion to terminate removal proceedings. Those who already have a final removal order may file a motion to stay their removal. This would prevent them from being removed from the United States while their U-visa application is pending. After the U-visa is approved, any final order the U-visa holder has will be effectively cancelled.
Additional resources provided by the author
INA § 101(a)(15)(U)(i); 8 U.S.C. § 1101(a)(15)(U)(i).