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Monday, May 20, 2024 - 2:33 pm

A Violent Crime Against an Undocumented Immigrant Could Earn Him A U-Visa

Swaray Law Office, LTDCongress enacted the U-visa in October of 2000 under the Victims of Trafficking and Violence Protection Act (VTVPA). It was part of a two category law designed to protect victims of violent crime and human trafficking.  After its enactment, it did not appear that the Department of Homeland Security (DHS) was immediately willing to enforce it.  In fact, the Department granted no U-visa relief to anyone until 2007.  Even then, it did so under pressure of a class action suit, which the Center for Human Rights and Constitutional Law (CHRLW) and other interested parties initiated, to force DHS to enforce the enactment.

Under the enactment, victims of certain violent crimes who have suffered mental or physical abuse, and helpful to law enforcement, including federal or state government officials in the investigation or prosecution of the crimes can be eligible for U-visa classification.  The crimes include the following:  Abduction, Abusive Sexual contact, Blackmail, domestic violence, Extortion, False Imprisonment, Female Genital Mutilation, Felonious Assault, Hostage, Incest, Involuntary Servitude, Kidnapping, Manslaughter, Murder, Obstruction of Justice, Peonage, Perjury, Prostitution, Rape, Sexual Assault, Sexual Exploitation, Slave Trade, Stalking, Torture, Trafficking, and Unlawful Criminal Restraint.  Attempt or conspiracy to or solicitation to commit any of the crimes are also eligible crimes.

The U-visa is among those visas for which the Petitioner files for classification by himself.  But he has the burden to provide evidence to the Citizenship and Immigration Services (CIS) that will demonstrate that he is eligible for the visa.  As part of the supporting evidence, the Petitioner is required to provide a certification signed by a law enforcement agency that confirms that he is or was helpful or likely to be helpful in the investigation of the crime committed against him.

The qualifying crime must be committed in the United States, even though there are instances in which a crime committed outside the United States is deemed a qualifying crime if it violates a law of the United States.

A U-visa applicant can apply for his family members.  But the family member can only be found eligible for the derivative visa if the principal applicant’s visa application is approved.

In June of 2013, several changes were made to the U-visa to expand its family member eligibility scope. Before 2013, an unmarried child derivative beneficiary U-visa application must be filed before the child turned 21, or the child could be deemed ineligible for the visa.  Additionally, the child beneficiary must be unmarried.  U-visa applicants were also subject to the public charge inadmissibility ground of INA 212(a)(4), under which an individual is inadmissible as an immigrant to the United States, except he proves that he is not a public charge.

Under the 2013 changes, an unmarried U-visa derivative beneficiary child remains eligible for the visa even after he turns 21.  The age of the child is established and firmly set when the principal U-visa applicant files the petition with CIS.  In addition, unmarried children filing for their parents and unmarried siblings received the age 21 age-out protection.  The children could now file for their parents and siblings even if they were under 18.  The inadmissibility public charge provision was also removed.   As a result, a U-visa applicant was no longer required to submit an Affidavit of Support (Form I-864) with his application to show that he is not a public charge.

A U-visa is valid for four years after which the classified holder can file for adjustment of status to a Green Card holder. There are situations, however, in which the four year period are extended.  Examples are when the extension is specifically requested by law enforcement, exceptional circumstances, and consular processing delays if the U-visa applicant initiated the application while he was outside the United States.

After three of the four year durational period, the U-visa holder can apply for adjustment of status.  His family members can also adjust, but must do so under a separate application.

Congress authorized that only 10,000 U-visas be granted per year to eligible principal applicants.  But derivative family member U-visas have no cap.  In the event of a cap constriction, CIS is authorized to place eligible applicants on a waiting list, and grant them an interim deferred action status with eligibility to work in the United States.

Amadu Edward Swaray is an immigration lawyer at Swaray Law Office in Brooklyn Center, Minnesota.  Brooklyn Center is one of the contiguous cities in the north of Minneapolis.  Other cities in the area are Brooklyn Park, Crystal, Robbinsdale, and Maple Grove.  Swaray Law Office can be reached at or or 763-549-0670.

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