Domestic Violence

Introduction

The U visa is a nonimmigrant visa that allows non-citizen crime victims and qualifying family members to live and work in the United States. It intends to protect victims of serious crime who decided to report the crime and assist in its investigation and prosecution, unlike other typical “nonimmigrant” visas that are temporary.

The U visa is a relatively new and untested visa classification. There is an annual limit of 10,000 U visas per year, but his number of available visas do not include family members. U visa has many benefits such as ensuring your stay in the United States for four years, leading you to the lawful permanent residence (a green card), or getting you an employment authorization.

So, if you are a victim who suffered mental or physical abuse, and you decided to help law enforcement or government officials in the investigation or prosecution of criminal activity, you can use the opportunity of getting a U visa status and advantages it brings.

Gun with bullet and money

Who Can Apply for a U visa?

To apply for a U visa, you have to be a non-citizen and meet certain requirements. Some of those are suffering substantial physical or mental abuse as a result of having been a victim of specific criminal activity, possessing information concerning that criminal activity, has been helpful in the investigation or prosecution of the criminal activity. The term Qualifying criminal activities include domestic violence, sexual assault or exploitation, rape, torture, incest, trafficking, abusive sexual contact, prostitution, etc. But, also, an attempt, conspiracy, or solicitation to commit any of the abovementioned criminal activities to qualify a victim to apply for U visa.

Besides these, there is some special consideration, such as your criminal history. It also matters whether you entered the United States legally, or if you have prior removal or deportation orders. Still, no matter what you have done in the past, it doesn’t have to affect your eligibility because a U visa allows you to ask for a waiver. But, keep in mind that the USCIS will examine each situation separately.

For example, in the case of JAN. 29, 2020, the Petitioner sought “U-1” nonimmigrant classification as a victim of qualifying criminal activity, and the Vermont Service Center denied this petition. VSC concluded that the record did not establish that the petitioner warranted a favorable exercise of discretion, so the petitioner appealed. The USCIS denied the appeal because the petitioner didn’t determine the admissibility to the United States. Furthermore, the petitioner entered the United States illegally three times without inspection or admission. Hence, USCIS ruled that the director was right when claiming that the petitioner did not deserve a waiver.

Form I-918

How to Apply?

There are several forms that you will need to fill out to apply for U Visa. Afterward, you will send gathered materials to U.S. Citizenship and Immigration Services. They will decide whether you should receive a U-Visa without the need to show up before the court or an interview. This means that the government will make its decision based entirely on the forms and papers you send, so carefully prepare your documents and personal statements. Otherwise, you risk being denied.

An excellent example you can see in the case of JAN. 3, 2020. It confirms how important it is to establish reasonable grounds and gather all relevant evidence. The Petitioner, as a victim of qualifying criminal activity which sought “U-1” nonimmigrant classification, but the Director of the Nebraska Service Center denied her form claiming that she wasn’t the direct victim in this criminal act. The petitioner filed personal statements written in details, a psychological evaluation, and numerous mental health assessments, as well as evidence of the severe emotional and psychological injury she suffered as a consequence of her daughter’s death. All of these documents helped the USCIS to withdraw the Director’s decision.

Now, if you are ready to apply, there are five steps that you will go through during the application process:

  1. Getting Supplement B Form that will prove you were, are or likely to be helpful to the law enforcement agencies;
  2. Filling out the main form;
  3. Filling out the form for a waiver- if you need one;
  4. Writing a detailed statement about what happened to you, explaining the events, reasons, consequences;
  5. Obtaining Additional Documents to Support your Case: a police report and court records, letters from doctors, mental health professionals, family, friends, community members, and similar.

To learn more about these steps, read our step-by-step guide on how to apply for a U visa.

As we already mentioned, there is a limit on the number of U visas. The number of U visas that may be granted to principal petitioners each year is 10,000 in total. Yet, there is no cap for family members deriving status from the principal applicant, such as spouses, children, or other eligible family members.

Man Holding Gun in the Back

Can I Apply for U nonimmigrant status if I am outside the United States?

U visa allows you to apply for it if you are not in the United States at the moment when you want to submit your application, and under specific circumstances when you are out of the state, which we will tell you more about later on in this article.

To apply for U visa while you are physically present in the United States, you must:

  • File all the necessary forms for U nonimmigrant status with the Vermont Service Center.
  • Follow all instructions that you get from the Vermont Service Center. This will include having your fingerprints taken at the nearest U.S. Embassy or Consulate.
  • If your petition is approved, you must consular process to enter the United States, which will include an interview with a consular officer at the nearest U.S. Embassy or Consulate.
Happy Family

Can My Family Members Apply for U Visa?

Sometimes your family member will also qualify for a U visa. This is one of the benefits that you can take advantage of. If you get a U-Visa, you can also help some of your family members do so. To do this, you will have to apply for them to get documents. Your family can be outside the United States or already reside in the country legally.

Certain qualifying family members are eligible for a derivative U visa based on their relationship to you, the principal, filing for the U visa. The principal petitioner must have their petition for a U visa approved before their family members can be eligible for their own derivative U visa.

The form that you need to petition for your family member is Form I-918, Supplement A. Their application can be sent at the same time as yours or at a later time.

Bank Notes

The cost of U-visa

The good news is that the U-Visa is free of charge for all applicants. You do not have to pay anything to apply. Still, if you need a waiver to send as an additional form, then there is a possibility to pay a fee for it, and it costs hundreds of dollars. There is the opportunity to ask for a free waiver if you cannot afford it. Most people in detention are allowed to apply for free.

All U nonimmigrant status applications (petitions) are free. You may request a fee waiver for any other form that is necessary for your U nonimmigrant status application (petition) by filing a Form I-912, Request for Fee Waiver, or by including your own written request for a free waiver with your application or petition.

Processing Times

How long I have to wait for a U-Visa approval?

It is hard to predict what will be the exact time for the government to decide on your application since processing times vary and depend on different factors.

Currently, there is a backlog from about six to nine months that takes the government to approve or deny a U application. This time will primarily depend on the number of applications people send in.

Moreover, the process can be extended if the government requests more information that you need to provide partway through the process.

Yes Sign

After the approval of U visa status

When U nonimmigrant status is granted, it is valid for four years. In particular, limited circumstances, your visa can be extended:

  • if law enforcement requests it,
  • due to exceptional circumstances,
  • due to delays in consular processing, or
  • automatically extended upon the filing and pendency of an application for adjustment (application for a Green Card).

Upon the approval of the U visa, you will automatically receive an employment authorization document (“EAD”) valid for the entire duration of status. Your family members have to file a separate request for employment authorization on Form I-765 concurrently with the I-918 Supplement A, or after the approval of the derivative U visa. If your family members are outside of the United States, they can only file Form I-765 when the U nonimmigrant status is admitted.

Once your U application is approved, you can travel abroad. However, considering the overall lack of guidance from DHS and DOS regarding the consequences of traveling and reentering procedures, it is highly advisable to take precaution activities:

  1. obtain the U-Visa stamp in your passport from the U.S. Embassy or Consulate abroad before you can return the U.S.
  2. take advice from a lawyer whether you might have difficulties obtaining the U-Visa stamp based on any criminal convictions, offenses, or immigration violations in your record.
Man Waiting and Watching his Watch

What if I am on a waiting list?

If the cap is reached before all U nonimmigrant petitions have been adjudicated, USCIS will create a waiting list. Petitioners who end up on the waiting list can have certain privileges such as deferred action or parole. Moreover, if you are on the waiting list, this means that you are eligible to apply for work authorization.

After numbers of visas become available again, the applicants will receive the U visa in the order they sent their petitions without taking any additional steps.

Green Card

Is U visa a green card?

The U visa is not a green card, but it is a beneficial path to a lawful permanent residence.

Under INA § 245(m), a U visa holder can be eligible to adjust status to a lawful permanent resident. To adjust your status, you will have to demonstrate:

  1. Lawful admission to the United States as a principal or derivative in U status
  2. Valid U status at the time of application;
  3. Continuous physical presence in the United States for three years;
  4. No inadmissibility under INA § 212(a)(3)(E);
  5. No unreasonable refusal to assist an official or law enforcement agency; and
  6. A favorable exercise of discretion is “justified on humanitarian grounds, to ensure family unity, or is in the public interest.”

Failing to prove any of these requirements can cost you losing the opportunity to adjust your status.

On the other side, you cannot adjust your status if:

  1. you participated in Nazi persecution, genocide, or act of torture or extra-judicial killing.
  2. you unreasonably refused to assist in the investigation or prosecution of criminal activity.
  3. your U nonimmigrant status has been revoked. (8 CFR § 245.24(c)).

Bear in mind that the adjustment is optional and that you must prove that you are not inadmissible.

If you feel that you are eligible for a U visa but find the process overwhelming, and although you can go through the process by yourself, try to get support from a lawyer who has experience in U visa application process and who can give you a hand with all the paperwork, as well as advise you on how to present yourself and win a U visa status.

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