OUT OF STATUS?
This article was originally researched and written by attorney at law, Raquel M. Gayle, Esq., during her association with BLACKMAN & MELVILLE, P.C. The article is being edited and republished for reprint by Nigel E. Blackman, Esq.
YOU MAY QUALIFY FOR A U-VISA
An often unfamiliar but perfectly legitimate way in which to adjust the status of an immigrant seeking to obtain legal status in the United Sates — or even facing possible deportation— is the U-Visa.
WHAT IS THE U-VISA?
The U-Visa was created as part of the Victims of Trafficking and Violence Protection Act of 2000, became a valid Visa on October 17th, 2007, and is available only to immigrants who have been victims of serious crimes.
The government’s interest in providing U-Visas to out of status immigrants is two-fold: (i) to provide for the protection of victims of serious crimes (given that many immigrants who fall victim to a crime are reluctant to involve or otherwise cooperate with police for fear of revealing their unlawful status); and (ii) to assist in the prosecution of criminal perpetrators.
If a victim is successfully granted a U-Visa he or she may become a legal permanent resident in just three years after receipt of the visa benefit. See Lee v. Holder, 599 F.3d 973, 975-76 (9th Cir. 2010) (noting that a U-Visa may be extended by certification of a law enforcement agency that the victim is needed in connection with further investigation and/or prosecution of the crime, and also that U-Visa applicants may apply for legal permanent residence after three years of receipt of the U-Visa and for naturalization at the end of five years). Moreover, immediately upon approval of a U-Visa, an immigrant is authorized to accept employment in the United States.
ARE U ELIGIBLE?
To qualify for a U-Visa you must meet certain statutory requirements, including being a victim or a victim of an attempt of one of the following crimes:
- Domestic violence
- Abusive sexual contact
- Obstructing Justice
- Felonious Assault
- Female Genital Mutilation
- Kidnapping and
- Peonage (the practice of holding a person in servitude or partial slavery, as to work off a debt or serve a penal sentence).
The crimes listed above are considered “qualifying crimes” for eligibility for the U-Visa and you must have suffered physical or mental abuse in connection with one of the applicable crimes to be eligible. Furthermore, the crime must have taken place in the United States, violate U.S. law, and your information about the crime must advance the prosecution or at least possibly lead to prosecution of the crime. Finally, certification by a law enforcement agency that you qualify for a U-visa is at the discretion of the law enforcement agency where the request is made and no more than 10,000 U-visa applicants may be awarded a U-Visa per fiscal year. Spouse, children and other qualifying relatives who apply under the primary U-Visa’s application are not subject to the 10,000 person limitation. See 8 CFR 1101(a)(15)(U)(iii).
HOW IS THE U-VISA APPLICATION PROCESSED?
Processing of the U-Visa application involves first having a law enforcement agency certify that the crime as eligible under the U-Visa requirements and second that the applicant has been cooperative and helpful in the investigation and prosecution of the crime.
Next, the applicant must petition for certification by completing Form I 918. The application should include the requisite legal forms, evidence of the crime and all other outstanding but required documents. There is no filing fee for the U-Visa application regardless of your income. The submission should include, among other documentary evidence, the petitioner’s own statement regarding the criminal activity, describing the particulars of the applicant’s criminal victimization.
Filing the U-Visa application does not give the applicant any immigrant benefits unless the actual petition is approved; and USCIS processing can take up to six months.
If you are in removal proceedings, there exists strong case law discouraging removal of U-Visa applicants pending the processing of their application. See Ramirez Sanches v. Mukasey, 508 F3d 1254 (9th Cir. 2007) (directing the Board of Immigration Appeals to reopen the case of an immigrant in removal proceedings because of his outstanding U-Visa application—despite the fact that the offense listed on the U Visa application was not charged in the underlying complaint).
USCIS permits consular processing of U-Visa applicants for individuals residing outside of the United States.
The U-Visa is a great tool for assisting undocumented immigrants in their adjustment of status process.
HOW DO I GET MORE INFORMATION?
If you think you or someone you know may qualify for the U-Visa, contact the Immigration Law Department of Blackman and Melville, P.C. at firstname.lastname@example.org or call 718-576-1646.
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