S F Bay Immigration Collage
Visas
U Visa for Victims of Certain Crimes and their Family Members
The U Visa is one of the most generous and truly humanitarian forms of immigration relief available today. Though it is classified as a nonimmigrant visa, it is intended for use as the basis on which to apply for lawful permanent resident status after three years in the United States in U Visa status and proof that the applicant has not unreasonably refused to provide assistance to law enforcement. The accompanying work authorization card has a validity period of four years, instead of the usual one year period.

For many people it may be the only possible means of obtaining lawful permanent resident status, because there is a U Visa (form: I-192) waiver for those who entered the country without authorization, which is the inadmissibility ground that creates a barrier for so many people who are otherwise applicable for a green card. In fact, the U Visa process includes a waiver option for almost all bases of inadmissibility. The waiver is certainly not guaranteed, but with sufficient supporting documentation of good moral character and of serious hardship should the waiver not be granted, there is a good chance that even multiple, significant inadmissibility grounds can be waived.

Furthermore, the benefits of the U visa extend to the spouse and unmarried children under age 21 or parents and siblings under 18 (if the principal applicant is under 21 and unmarried) of the principal applicant. These derivative beneficiaries may receive a U Visa even if they live outside of the U.S. After a derivative family member outside the United States receives the approval of their U status from USCIS, he or she would need to apply for a visa to enter the United States. That visa application process is the same one used to apply for a visitor visa, and the State Department fee is the same as well. The applicant would submit evidence that he or she has already received U status approval from USCIS, and is therefore eligible to reside in the United States for four years, per the dates of the approval notice. After receiving the entry visa, the derivative family member would need to enter the United States within the next thirty days. After residing three years in the United States, the derivative applicant could apply for permanent residence.

The current position of USCIS is that those who apply for a U Visa but are denied will not be referred to I.C.E. for removal, unless they are deemed to be a security threat. There is no application fee for the U Visa, but there is a biometrics fee, and there is a fee for the waiver of inadmissibility. Both of these fees can be waived for qualifying low income applicants. The fee waiver is generously adjudicated to make this visa available to low income applicants.

Some of the significant inadmissibility grounds that may be waived in the U Visa application process include being present in the U.S. without permission, visa fraud, false claim to US citizenship, alien smuggling, being previously removed, entry after unlawful presence, crimes, and being a public charge. The derivative family members may also be granted this waiver, but will be subject to a higher standard, since they were not victimized by the relevant crime.

If granted a U Visa, the applicant and eligible derivatives receive temporary nonimmigrant status for 4 years, employment authorization, the right to apply for permanent residence after 3 years, CalWorks and Medi-Cal eligibility, the possible termination of a deportation process.

The application process for permanent residence after three years living in the United States with U Visa Status requires once again submitting the I-918B certification form to law enforcement or a declaration from the applicant stating he or she has not unreasonably refused to assist law enforcement regarding the applicable crime. This second use of that same form is for law enforcement to certify that the applicant has not unreasonably refused to provide any assistance that was requested by law enforcement during the relevant three year period. In addition, the applicant will need to prove that he or she in fact has resided continuously in the Unted States since receiving the U Visa.

In order to be granted a U Visa the applicant must be the victim or indirect victim of one of the designated crimes in the US or its territories: 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, and perjury. Indirect victims may apply as the principal applicant. An example of this might be the undocumented parent of a United States citizen child under 21 who has been the direct victim of a crime. The parent would need to provide evidence of helpfulness in the investigation or prosecution of the crime and that he or she has suffered substantial abuse as a result of the crime.

The applicant must have information about the crime and must demonstrate that he or she has been, is, or is likely to be helpful in the investigation or prosecution of the crime. If the applicant was under 16 on the day the crime was committed, he or she is not required to have this information. The parent, guardian, or next friend may possess this information if the applicant does not. A specifically designated law enforcement officer must certify this using form I-918B, and the applicant cannot unreasonably refuse to help. The applicant must have suffered "substantial abuse" as a result of the crime. USCIS will consider the nature of the injury, severity of the perpetrator's conduct, severity of the harm suffered, duration of the harm, and the permanent or serious harm to appearance, health, physical or mental soundness in determining whether the applicant has suffered substantial abuse as a result of the crime. This may be proved by records relating to medical or mental health treatment, or by the applicant's own declaration and those of other people who know the applicant. Letters from those who have observed changes in the applicant stemming from the trauma of the crime can be submitted to support the applicant's own statement.

The applicant must submit a detailed written statement regarding the crime, the specific helpfulness to law enforcement and the substantial abuse that he or she has suffered. It is important that this statement is in the applicant's own words, whenever possible. In addition to the applicant's declaration, corroborating documentation of each of these legal elements should be submitted whenever possible. The principal applicant needs to have a passport from their home country, though this too can be waived on form I-192. Other necessary documents might include medical records, eligibility documents for victim services, mental health evaluations, letters from witnesses, and police reports.

As can be seen even from this brief introduction, the U Visa is a very different, and much more generous kind of benefit from almost any other available under the current punitive immigration system. Because of this fact, many people find it hard to believe that it could be true. That is entirely understandable given the harsh denial of the basic human rights of undocumented immigrants in the US and the use of immigration law as a way of increasing profits while denying labor rights.

Please feel free to call us and set up an appointment for a consultation to see if you may be eligible. You have nothing to lose, and could find that a path to permanent residence and United States citizenship is indeed open to you! If you do qualify, it would be our sincere pleasure to assist you in obtaining the U Visa.

Overview of Family Sponsored Immigration
There are two main categories of family relationships that support sponsorship for lawful permanent residence:

Immediate Relatives

Preference Immigrants

Immediate Relatives

Spouses of U.S. citizens.

Minor (under 21) unmarried children of U.S. citizens.

Parents of U.S. citizens, where the citizen petitioner is at least 21 years of age.

It is critical to understand that each immediate relative requires his or her own visa petition. Unlike the preference categories,

THERE ARE NO DERIVATIVES IN THE IMMEDIATE RELATIVE CATREGORY.

I emphasize this because it can be truly disheartening to learn that one has successfully petitioned for one’s overseas spouse, but, since a separate petition was not filed for the minor child, the process has not even started for the child.

Preference Immigrants

First Preference:

Unmarried sons or daughters (over 21) of U.S. citizens

Second Preference

Third Preference

Married sons or daughters of citizens of the United States.

Fourth Preference

Brothers or sisters of citizens of the United States, if such citizens are at least 21 years of age. The Department of State Visa Bulletin can be viewed at http://travel.state.gov, This is the best way to check what priority dates are currently being processed.

For most applicants, the first step is the filing of an I-130 petition for the beneficiary.

The exception to this is for battered an abused spouses and children of US citizens and residents who can self-petition using form I-360.

If the priority date is current, or for immediate relatives, the I-485 can be filed a the same time as the I-130.

For spousal petitions, the G-325A for both spouses and photographs of both spouses must be submitted.