Nonimmigrant visas allow aliens to stay in the U.S. for temporary periods to pursue activities authorized under various visa categories. The purpose of these visas may be for tourism, studies, business, employment, family-related, transit, or humanitarian benefits. The U nonimmigrant visa is issued for the humanitarian purpose of protecting victims of certain crimes.
Congress created the U visa through the Victims of Trafficking and Violence Protection Act of 2000. The purpose of this law was to strengthen the ability of law enforcement agencies to investigate and prosecute crimes by protecting victims and encouraging them to report crimes and fully cooperate with law enforcement authorities.
An alien is eligible for a U-1 visa if he could show that he: (1) has suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity; (2) possesses credible and reliable information on the details of the qualifying criminal activity; (3) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity; and (4) the qualifying criminal activity occurred in the U.S. or in its territories or possessions.
Qualifying criminal activities include: 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 any attempt, conspiracy, or solicitation to commit any of these mentioned crimes. Criminal offenses in which their nature and elements are substantially similar to the preceding criminal activities are also qualifying criminal activities.
It should be emphasized that to be eligible for a U-1 visa, it is not enough that an alien has been a victim of a qualifying criminal activity. The alien victim must show that he has suffered substantial physical or mental abuse. Abuse may be considered substantial depending on factors such as: (a) the nature of the injury inflicted or suffered; (b) the severity of the perpetrator’s conduct; (c) the severity of the harm suffered; (d) the duration of the infliction of the harm; and (e) the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions.
For example, X was walking to her car one night when Y suddenly appeared and grabbed her purse and car key. When Y was about to drive away with the car, X tried to block Y’s path. Y proceeded anyway and ran her over. X survived the attack but suffered several fractured bones. She regained her ability to walk only after several surgeries and months of recuperation but there has been a noticeable limp in her walk since then. In this example, X could be considered a victim of a felonious assault, which is a qualifying criminal activity. She could also possibly claim substantial physical abuse as a result of the assault.
However, not all qualifying criminal incidents should be as dramatic as what happened to X in order to be eligible for a U visa. The regulations recognize that a series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level.
The other important thing to remember about a U visa is that it requires a certification from a law enforcement agency. The certification must state, among other things, that the alien: (1) has been a victim of a qualifying criminal activity which the certifying official’s agency is investigating or prosecuting; (2) possesses information concerning the qualifying criminal activity; and (3) has been, is being, or is likely to be helpful to an investigation or prosecution of that qualifying criminal activity.
A U visa creates opportunities for immigration relief and benefits where none had existed before. Let’s say in our previous example that before the attack on X, she was in removal proceedings because she had entered the U.S. without inspection. Although she has been living in the country for years, she has no relief because she has no children, has a husband who’s also undocumented, has no U.S. citizen or lawful permanent resident relatives, and has no petition from a qualified relative or employer. Under these circumstances, X is almost certain to be removed.
However, if X obtains U-1 status based on the horrific attack she suffered, then she could have her removal proceedings terminated because of her new status. She would also have work authorization. She could even obtain U-2 status for her spouse as a qualifying family member. She could stay in the U.S. in U-1 status for a period not exceeding 4 years and apply for permanent residence within 3 years of the grant of her U-1 status.
Although no one in his right mind would wish to be a victim of a qualifying crime, if the unthinkable happens, one should be able to recognize the opportunities for immigration benefits that could arise out of a tragic situation.
