U & T Visas

U Visa

About U Visa

In 2000, Congress created the U non immigrant visa in passing the Victims of Trafficking and Violence Protection Act. The purpose of the act was to encourage undocumented immigrants to report crimes to law enforcement and to provide protection to those undocumented immigrants with respect to their immigration status.

The U visa allows for qualifying undocumented immigrants to gain lawful status in the United States for up to four years. The U visa also grants recipients the right to work and provides a work authorization card (EAD). Protection against removal is also granted, and, after 3 years, the U visa recipient may have the ability to apply for a green card. Finally, some U visa recipients may have the ability to travel although travel is generally restricted.

Limitations include being unable to travel outside the United States; likely ineligibility for many public benefits such as Medicaid and Food Stamps; derivative family member applicants being dependent on the primary victim’s application and desire to apply for them.

Eligibility

To be eligible for a U visa, an individual must meet the following criteria:

  1. The individual must have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity;
  2. The individual has information about the criminal activity;
  3. The individual has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime; and
  4. The criminal activity violated local, state, or federal law, or occurred in the U.S.
  5. The U visa petition includes the necessary certification by a governmental agency that has authority to certify U-visas; and
  6. The individual merits a waiver if she or he is considered to be inadmissible.

Prior interactions with USCIS (such as deportations) and/or a criminal record can affect your case so you will want to collect as much documentation as you have before meeting with an attorney, as well as be as honest and forthcoming as possible regarding what you know. By doing so, you will not necessarily be ineligible for a U-Visa, as you may be able to waive inadmissibility. A criminal record that tends to support crimes of moral turpitude may make you ineligible for a waiver

Family Members

Some family members of the principal applicant (direct victim) may qualify as derivatives. If the principal applicant is under 21, qualifying derivatives include the principal’s spouse, children, unmarried siblings under 18 (on filing date of principal’s petition), and parents. If the principal applicant is over 21, qualifying derivatives include the principal’s spouse and children.

Where the victim is an alien child under 21, the parent, legal guardian, or other family member, may apply for their own principal U visa status as an indirect victim.  Where a victim is under the age of 16 or otherwise incapacitated/incompetent, the victim’s parent, guardian, or next friend can meet the requirements that the victim possess information and assist law enforcement on their behalf.  If they assume this role, however, they cannot then seek status themselves as an indirect victim.

Qualifying Criminal Activity

Qualifying Criminal Activity

The following are non-exhaustive examples of qualifying criminal activity that have been recognized as such for purposes of U visa eligibility:

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, perjury, felonious assault, false imprisonment, blackmail, extortion, murder, manslaughter, witness tampering, unlawful criminal restraint, obstruction of justice.

Attempt, conspiracy, or solicitation to commit any of the above.

Although the more recent the crime occurred, the better; an older crime will not necessarily disqualify you from applying.

Certification by Governmental Agency

As stated above, in order to be eligible for a U visa, the applicant must submit a certification from a qualifying governmental agency. The certification is titled, “Supplement B” to Form I-918. The certification must verify that the applicant:

  • has been a victim of qualifying criminal activity;
  • possesses information about the qualifying criminal activity;
  • has been, is being, or is likely to be helpful to the investigation of that qualifying criminal activity; and
  • the qualifying criminal activity occurred in the U.S. or violated U.S. law.

The certification must be completed by a certifying governmental agency and must be signed by a certifying official. Some examples of a certifying agency include:

  • a federal, state, or local law enforcement agency;
  • a prosecutor;
  • a judge; or
  • any other authority that has criminal investigative jurisdiction in their respective area of expertise (e.g. Child or Adult Protective Services, Equal Employment Opportunity Commission, U.S. or State Department of Labor).

Examples of certifying officials include:

  • the head of one of the qualifying agencies listed above;
  • any person in a supervisory role in a qualifying agency who is specifically designated by the head of that agency to issue certification; or
  • federal, state, or local judges.

Without a certification from a governmental agency, the noncitizen applicant will be ineligible for a U visa.  The governmental agency is not required to complete the certification.  Certification by the agency is entirely within the agency’s discretion.

“Helpful” in Criminal Case

USCIS interprets “helpful” to mean assisting law enforcement in the investigation and/or prosecution of the criminal activity of which the applicant is a victim. The Immigration and Nationality Act provides that a noncitizen applicant is eligible when she or he (1) is being helpful, (2) was helpful, or (3) may be helpful in the future. Thus, according to the language of the statute, noncitizen applicants may be eligible for a U visa at the very early stages of an investigation by a law enforcement agency if the agency believes that the applicant may be helpful at some point in the future.

It is within the discretion of the governmental agency as to whether or not it will consider a noncitizen applicant “helpful.” Additionally, a certifying governmental agency has the authority to revoke its certification in the instance that the noncitizen applicant unreasonably refuses to provide assistance. Thus, in the case where the governmental agency provides a certification early in the investigation process, the noncitizen applicant is still responsible for providing ongoing assistance to law enforcement throughout the life of the U visa status.  It is, therefore, important that U visa recipients notify law enforcement of any changes in contact information in the event that their assistance is required at a later time.

Duration of Stay

U visa status may be approved for a period of up to four years unless there is a need for an extension that is necessary in order to allow the noncitizen applicant to remain in the U.S. to assist in the investigation or prosecution of the crime.

A U visa recipient may be eligible for legal permanent resident status if the USCIS determines that the individual has not unreasonably refused to provide assistance in the criminal investigation or prosecution and his or her continued presence in the country is justified on humanitarian grounds, to ensure family unity, or is otherwise in the best interest of the public. U nonimmigrant visa holders may be eligible to apply for a permanent residence after 3 years in U nonimmigrant status by submitting form I-485, application to register permanent residence or adjust status. To qualify for permanent residence, an applicant must:

  1. have been lawfully admitted to the United States as a U nonimmigrant and must continue to hold such status at the time of application;
  2. be physically present in the United States for a continuous period of at least three years in U nonimmigrant status;
  3. have not unreasonably refused to assist in the investigation or prosecution of the qualifying crime.

Do not leave the U.S. Do not commit any crimes. Continue to participate in your community, be a good community member, participate in your surrounding community, volunteer, learn English! Notify your attorney or representative if there are any changes, or if you have any questions.

Application Process

U visa applicants must complete Form I-918 along with supporting documentation. The entire U visa application consists of:

  • the I-918, Petition for U Nonimmigrant Status;
  • I-918 Supplement A, Petition for Qualifying Family Member of U-1 Recipient (if applicable);
  • the I-918 Supplement B, U Nonimmigrant Status Certification (required); and
  • a I-192 waiver (if applicable).

The application and documentation is submitted to the USCIS Vermont Service Center’s “VAWA Unit,” which reviews the petition and documentation.

U visa applications are processed through the Vermont Service Center (VSC). The USCIS provides a website that shows the processing time for particular forms. Choose “Vermont Service Center” in the Service Center drop box. Then click “Service Center Processing Dates.” Currently, the USCIS indicates that the Vermont Service Center is processing U visa petitions (I-918) that were filed as of February 11, 2103.

Cases are adjudicated in chronological order as they become “adjudication ready.” More specifically, USCIS provides that VSC focuses first on adjudicating cases with an I-192 waiver request on file. A I-192 is a form that allows inadmissible nonimmigrant aliens to apply for advance permission to temporarily enter the United States. Grounds for inadmissibility include health, criminal, national security and unlawful presence related grounds among others. USCIS will also prioritize applicants who have been sent and have responded to Requests for Supplemental Information.

According to the USCIS, customers and their representatives may request that the VSC expedite their application on the basis of compelling humanitarian issues. However, the USCIS warns that any request for expeditious processing on humanitarian grounds must involved “extraordinary circumstances.” The USCIS states that “the VAWA unit will entertain and answer every request it receives based on a full review of the unique facts presented.” USCIS provides that VSC has expedited U visa applications involving petitioners detained at government expense.

According to the USCIS, once a decision is made on whether to expedite processing, the attorney of record will be notified of the decision. When a case is approved for expeditious processing, an expedite cover sheet is placed on the A-file, clearly designating the case as an expedite, and the case is immediately assigned to an adjudicator. The adjudicator takes action on the case within one to two days, and the action may be a decision, Request for Evidence (RFE), or hold. If the case requires an RFE, the applicant has up to 87 days to respond to the RFE. Cases requiring RFE processing are tracked as expedites throughout the RFE process, and when a response is received, VSC endeavors to complete the decision as quickly as possible.

You will not be personally interviewed on your U visa application. For this reason it is very important to submit strong statements and as much evidence as possible with your case. The person who makes the decision on your case will never meet you in person.

Are there a limited number of U nonimmigrant visas given each year?

Yes, Congress has limited the number of U nonimmigrant visas granted each year to 10,000. As of July 17, 2014, the cap has been reached for this fiscal year and the next.  However, applications are still being accepted and processed daily.  Because the cap has been reached, approved applicants are placed on a waiting list for a U visa and granted deferred action.  Applicants placed in deferred action are eligible for work authorization.

Last Review and Update: Aug 15, 2014

T Visas (Trafficked Victims)

What is a T visa?

The T visa, like the U visa was created when Congress passed the Victims of Trafficking and Violence Protection Act in 2000. The T visa was created to allow law enforcement agencies to investigate and prosecute cases of human trafficking while also providing protection to the victims of severe forms of human trafficking. The T visa allows victims to remain in the United States to assist federal authorities in the investigation and prosecution of human trafficking cases.

What is human trafficking?

Human trafficking, also known as trafficking in persons, is a form of modern day slavery in which traffickers lure individuals with false promises of employment and a better life. Traffickers often take advantage of poor, unemployed individuals who lack access to social safety nets. To consider a situation “trafficking” depends on the type of work and the use of force, fraud, or coercion to obtain or maintain work. Under federal law, the term “severe forms of trafficking” can be broken into two categories:

Sex Trafficking: recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is under 18 years of age.

Labor Trafficking: recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of involuntary servitude, peonage, debt, bondage, or slavery.

What are the benefits of obtaining a T visa?

The benefits of a T visa are similar to those of the U visa including that the T visa allows for qualifying undocumented immigrants to gain lawful status in the United States for up to three years and a work authorization card (EAD). T visa recipients also enjoy protection against removal, and, after 3 years in T visa status, the possibility to apply for a green card. A limited number of individuals also may have the ability to travel, which is generally restricted.

What are the criteria to be eligible for a T visa?

To qualify for a T nonimmigrant visa, an individual must meet the following criteria:

  1. she or he is or has been a victim of severe trafficking in persons;
  2. she or he is physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry on account of trafficking;
  3. she or he must comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking;
    • However, if the individual was under the age of 18 at the time of the victimization, or if s/he is unable to cooperate with a law enforcement request due to physical or psychological trauma, she or he may qualify for the T nonimmigrant visa without having to assist in the investigation or prosecution.
  4. she or he must demonstrate that she or he would suffer extreme hardship involving severe and unusual harm if she or he were removed from the United States; and
  5. she or he must also be admissible to the U.S. or obtain a waiver of admissibility.

What is the application process to obtain a T visa?

Victims of severe forms of trafficking must submit a Form I-914, application for T nonimmigrant status. Form I-914 requests information regarding the applicant’s eligibility for T nonimmigrant status as well as admissibility to the United States. Applicants must also include a statement in their own words about their victimization. Applicants may also submit a law enforcement agency endorsement using Form I-914, supplement B, declaration of law enforcement officer for victim of trafficking in persons. The applicant also has the option to submit secondary evidence of compliance with reasonable requests for assistance (e.g. trial transcripts, court documents, police reports, news articles and affidavits).

Like VAWA petitions and U visa applications, T visa applications are process through processed through the Vermont Service Center (VSC). The USCIS provides a website that shows the processing time for particular forms. Choose “Vermont Service Center” in the Service Center drop box. Then click “Service Center Processing Dates.” Currently, the USCIS indicates that the processing time for T visa applications is 4 months.

Can a T visa applicant’s family members also obtain T nonimmigrant status?

Yes, if the principal applicant is under 21 years of age, they may apply on behalf of a spouse, children, parents and unmarried siblings under age 18 as derivatives. If the principal is 21 years of age or older, they may apply on behalf of a spouse and children as derivatives. To apply for family members, the principal applicant must submit a Form I-914 Supplement A, Application for Immediate Family Member of T-1 Recipient.

Are there a limited number of T nonimmigrant visas given each year?

Yes, Congress has limited the number of T nonimmigrant visas granted each year to 5,000. This does not apply for family derivative visas. Once the cap is reached, applicants will be placed on a waiting list. This waiting list allows those applicants who cannot be granted a visa due to the numerical limitation to obtain priority in the following year.

Can I eventually apply for a status as a legal permanent resident (green card)?

Yes, T nonimmigrant visa holders may be eligible to apply for a permanent residence after 3 years in T nonimmigrant status by submitting form I-485, application to register permanent residence or adjust status. To qualify for permanent residence, an applicant must:

  • been lawfully admitted to the United States as T nonimmigrant and must continue to hold such status at the time of application;
  • be physically present in the United States for a continuous period of at least three years in T nonimmigrant status, or a continuous period during the investigation or prosecution of the acts of trafficking, provided that the Attorney General has certified that the investigation or prosecution is complete, whichever time is less;
  • maintain good moral character during his/her stay in the United States;
  • have complied with any reasonable request for assistance in investigation or prosecution or demonstrate that s/he would suffer extreme hardship involving unusual and severe harm upon removal from the U.S.
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