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u visa process immigrant victims of crimeBeing the victim of a crime is devastating and nothing should stand in your way to help law enforcement to bring the person responsible to justice. For this reason, Congress enacted legislation to help immigrants who were the victims of certain qualifying crimes. A U visa allows immigrant victims of crimes to legally live and work in the U.S. for up to four years. Furthermore, after living in the U.S. on a U visa for three years, it is possible to apply for a green card.

The following information will help you to understand if you may be eligible for a U visa because you have been the victim of a crime. If you would like to learn more about the U visa application process, click here. If you want to know more about U visa applications, call Mr. Cruz today at (619) 717-2233 for a free consultation.

Eligibility

 

Am I eligible for a U visa?

To be eligible for a U visa, you must meet all of the following legal and procedural requirements:

– Victim of a qualifying crime

– Harmed because of the crime

– Helpful in investigating the crime

– Admissible to the U.S.

The information in this article will explain these requirements in more detail and help you determine whether you may be eligible for a U visa because you meet all of the requirements.

 

VICTIM | Was I the victim of a crime for U visa purposes?

canstockphoto16673333There are many different ways in which you may have suffered from a crime. For the purpose of obtaining a U visa, however, the United States Citizenship and Immigration Services (USCIS) considers you a “victim of a crime” if you have been:

– a direct victim

– a bystander victim

– or an indirect victim of a crime

 

What is a direct victim (target of a crime) for U visa purposes?

You have been the direct victim of a crime if you were directly harmed through the criminal act and the person responsible for the criminal act was aware of this consequence of his or her actions upon you. This means that there must be a direct link between the action, that is the crime, and the harm you suffered because of it. Therefore, being a direct victim is the most common and most obvious way to suffer from a crime, but nevertheless not the only way.

The following example demonstrates how Rosa became the direct victim of a crime: During an argument at home, Rosa was hit by her husband. Rosa personally and directly suffered harm at the hands of her husband and her husband was aware of it. Rosa was, therefore, the direct victim of a crime.

If you feel you have been harmed as a consequence of the crime but this description does not quite apply to your situation, you may have been a bystander or an indirect victim.

 

What is a bystander victim (witness of a crime) for U visa purposes?

It is also possible that you have suffered directly from a crime even though you were not the target of the crime. Just being the witness of a crime may have caused you physical or psychological harm, for example, because you have suffered from a trauma related to your experience. Situations, in which a bystander becomes a victim of the crime along with the actual target of the crime, are rare. Nevertheless, USCIS has made the decision to protect all victims who directly suffered from a crime, regardless of whether they have been the target of the crime or just a bystander.

The following example demonstrates how Linda became the bystander victim of a crime: Linda witnessed her boyfriend commit suicide when shooting himself with a gun. The experience left her traumatized even though she was not physically injured. Linda was, therefore, a bystander victim of the crime.

 

What is an indirect victim (family member of a direct victim) for U visa purposes?

Even if you were not personally the direct victim of a crime, you may have suffered because one of your loved ones died or became physically or mentally unable to care for him- or herself as a result of a crime. Although this situation is hard for all family members, only the closest family members are considered indirect victims of the crime: spouses, children (if under the age of 21 and unmarried), parents (if the victim was under the age of 21), and siblings (if under the age of 18 and if the victim was under the age of 21). You can think of your role as an indirect victim in this situation as taking action on behalf of your family member to bring the person responsible for their injury to justice.

The following example demonstrates how Maria became the direct victim of a crime: Maria and her husband Roberto driving on the highway when their car was hit by a drunk driver who lost control of his car. The accident left Roberto permanently disabled and unable to care for himself. Maria, his wife, is, therefore, the indirect victim of the crime.

 

VICTIM | I was the victim of a crime – does my crime qualify as the basis for a U visa?

A U visa petition requires that you be the victim of a “qualifying crime”.

Keep in mind that every case is different, and you should not be discouraged if you cannot find the crime category your case fits under. The most common crimes are:

  • Abduction
  • Abusive Sexual Contact
  • Blackmail
  • Domestic Violence
  • Extortion
  • False Imprisonment
  • Female Genital Mutilation
  • Felonious Assault
  • Fraud in Foreign Labor Contracting
  • Hostage
  • Incest
  • Involuntary Servitude
  • Kidnapping
  • Manslaughter
  • Murder
  • Obstruction of Justice
  • Peonage
  • Perjury
  • Prostitution
  • Rape
  • Sexual Assault
  • Sexual Exploitation
  • Slave Trade
  • Stalking
  • Torture
  • Trafficking
  • Witness Tampering
  • Unlawful Criminal Restraint
  • any similar activity in violation of federal, state, or local criminal law where the elements of the crime are substantially similar
  • attempt, conspiracy, or solicitation to commit any of the above and other related crimes

 

What if the crime you were a victim of, is not listed as a qualifying crime for U visa purposes?

If the crime you are looking for is not listed, it does not necessarily mean your crime does not qualify. For example, federal and state law may use different terms to describe the same crime. Even if your crime is not specifically mentioned above, it may fall into one of the broader categories on the list. For example, while you will not find “strangulation” listed below, it may still be a qualifying crime if it falls into the category “domestic violence.” Another common example are workplace violations, which may fall into several different categories. To find more information on workplace violations, see below.

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Are workplace violations, such as wage theft, qualifying crimes
for U visa purposes?

Immigrants are often vulnerable at workplace because employers may try to take advantage of their immigration status and deny them their legal rights as employees. There are many ways in which such abuse may occur and several ways the criminal activity may fit the “qualifying crime” requirement for a U visa. The same applies to the crime of wage theft, which may fit into different categories depending on the context of your case. A wage claim before the labor commissioner can be the basis of your U visa application if you or your lawyer can argue that it falls within at least one of the qualifying crime categories. This is especially true if your employer refused to pay you because of your immigrant status. In this case, the labor commissioner can certify a Form I-918 Supplement B.

Below you will find examples of workplace violations. Nevertheless, an experienced lawyer will be helpful in analyzing your case to fit the proper crime category.

Possible crime categories:
  • Blackmail,
    e.g. if your employer threatens to reveal your immigration status unless you give up wage and employee benefits
  • False imprisonment,
    e.g. if your employer prevents you from leaving by locking the doors or by threatening you to call immigration if you leave
  • Felonious assault,
    e.g. if your employer uses physical force against you
  • Fraud in foreign labor contracting,
    e.g. if you were recruited abroad by your employer who intentionally made false promises about the nature of employment. For instance, a domestic household employee may be given poor living conditions, unbearable work environments, and forced to perform duties outside of his agreed contract.
  • Involuntary servitude,
    e.g. if you continue to work only because your employer threatened to harm you, confiscated your passport or similar
  • Obstruction of justice,
    e.g. if your employer destroyed or falsified important documents like the records on how many hours you worked
  • Peonage,
    e.g. if your employer forces you to work to pay off a debt
  • Perjury,
    e.g. if your employer lies to a court of law or instructs you to lie
  • Rape, sexual assault, sexual exploitation, abusive sexual contact,
    e.g. if your employer, co-workers, or clients force sexual contact on you
  • Trafficking,
    e.g. if your employer recruited and transported you to do forced labor
  • Witness tampering,
    e.g. if your employer threatens you to not give testimony

 

Does a crime that did not happen in the U.S. qualify as the basis of a U visa?

In rare cases, U.S. federal laws are applicable even outside U.S. territory. For example, a U.S. citizen can be prosecuted upon return or extradition to the U.S. for sex crimes committed in a foreign country. The victims in the foreign country can bring a claim for a U visa. A lawyer can help you to determine whether your case is one of these rare cases, which would mean that you would be considered the victim of a qualifying crime.

 

Does a crime that was not “completed” qualify for U visa purposes?

Even if someone only tried to harm you but was prevented from doing so, he or she still made the “attempt” which is enough to qualify as a crime and is included in the list above. Therefore, you are still considered a victim of a qualifying crime.

 

Does a crime that happened long ago for which the investigation is already closed qualify for U visa purposes?

It does not matter when the crime has occurred or whether the investigation is still ongoing or already closed. Even if the crime was committed before the U visa category was created, you can still be considered the victim of a qualifying crime.

 

Does a crime qualify for U visa purposes if the person responsible for the crime is unknown or was never arrested or convicted?

Whether the person responsible for the act was identified, arrested by the police, appeared in court, or was convicted of the crime is not relevant to you as a victim. You are considered the victim of a qualifying crime regardless of whether the person responsible was brought to justice or not.

 

canstockphoto2318981HARMED | Is the abuse I suffered considered “substantial” to obtain a U visa?

Suffering from a crime in any way is distressful. However, to be eligible for a U visa, as a victim of a qualifying crime, you must also have suffered substantially, physically or mentally, because of the crime. Whether the abuse you suffered is “substantial” is determined by USCIS taking different factors into account, some of which you will find below.

  • What kind of abuse did you suffer from, how long, and how severe was it?

    • Were you in pain?
    • Were you sad, anxious, or depressed?
    • Did you see a doctor or a therapist?
    • Did you have to take medicine?
  • Did you permanently suffer from the abuse?

    • Are you still in pain?
    • Did it leave you handicapped or change how you look?
  • Did the abuse make a preexisting condition you had worse?

If the crime you suffered leads you to answer ‘yes’ to the above questions, then your harm may be substantial.

 

Helpful | How can I help law enforcement bring the perpetrator of the crime to justice?

Because there each case is different, there are many different ways to help law enforcement to identify, arrest, and convict the person responsible for the crime. Some examples of helping law enforcement are:

  • Calling 911
  • Meeting the police at the crime scene to tell the officers what happened
  • Letting the police collect evidence (taking pictures, …)
  • Identifying the suspect from a line-up
  • Answering questions of the police or the prosecution
  • Testify against the person responsible for the crime in court

It is important to keep in mind that you may have been helpful even if the person responsible could not be identified, caught, or prosecuted by law enforcement.

 

Helpful | How can I prove I was helpful to the investigation and prosecution?

USCIS requires proof of your helpfulness in the criminal investigation or prosecution. For this purpose, a federal, state, or local authority must certify your helpfulness in their investigation or prosecution in the past, now, or in the future. If this is the case, you will receive a signature by an official on your Form I-918 Supplement B, which is part of your application for a U visa. There are many authorities which may be able to provide the certification for you:

  • Police investigators
  • Federal Bureau of Investigation (FBI)
  • S. Marshals Service
  • Sheriff’s offices
  • Victim advocates (in the criminal justice system)
  • Prosecutors, i.e. the District Attorney’s Office or the City Attorney’s Office
  • Judges

In addition to these common law enforcement officials, there are more agencies that may be able to provide certification in your case. Here are some more examples of qualifying federal or state agencies to help you think outside the box:

… crimes involving children:

  • Child Protective Services (CPS), also called:
  • Department of Children and Families (DCF)
  • Department of Children and Family Services (DCFS)
  • Department Social Services (DSS)

… crimes involving labor law:

  • Equal Employment Opportunity Commission (EEOC)
  • Department of Labor (DOL)
  • National Labor Relations Board (NLRB)
  • Labor Commissioner (or similar agency) of your state or city
  • Department of Labor / Employment of your state

 

ADMISSIBLE | Reasons I could be inadmissible to the United States for U visa purposes

To protect the public interest, the Department of Homeland Security (DHS) reserves several reasons to refuse admission to immigrants coming to the U.S. However, even if one or more reasons of inadmissibility apply to you, you may still have an opportunity to apply for a U visa. For U visa applications, DHS can grant an inadmissibility waiver for inadmissibility issues (except very serious offenses such as acts of terrorism, genocide, and/or torture). Below you will find a short list of common reasons why you might be inadmissible to the U.S. You can find the complete list of possible reasons of inadmissibility that require you to request an inadmissibility waiver on Form I-192, which will be explained in more detail below.

Common possible reasons for inadmissibility:

  • you have violated immigration laws such as entering illegally, overstaying in the U.S., entering illegally after being deported, etc. This may be true if you are currently living in the U.S. unlawfully.
  • you have a communicable disease
  • you are determined to be a drug abuser or addict
  • you have a criminal record of multiple convictions
  • you have a criminal record for crimes of moral turpitude
  • you have trafficked in drugs
  • you have trafficked in persons
  • you have been involved in money laundering
  • you have been or plan to be involved in espionage or terrorism
  • you are likely to be a public charge
  • you have voted unlawfully

 

ADMISSIBLE | How do I apply for a U visa inadmissibility waiver?

To request an inadmissibility waiver, you must file the request form, Form I-192, with your U visa application. You will be asked which inadmissibility issues you wish to have waived. If there are several inadmissibility issues, you can list them together on the same form. Unless the only reason for your request is one instance of being unlawfully present, you should provide a statement in your U visa application that explains your situation and why the waiver should be granted. If possible, you should also include supporting documentation with your statement. If you are not sure which reasons of inadmissibility apply to you, a lawyer can help you to fill out your waiver request Form I-192 properly.

The fee for filing the waiver request Form I-192 is currently $585. However, you can file another form, Form I-912, to have this fee waived for you if one or more of the reasons you will find below apply to you:

  • You, your spouse, or your children receive a public benefit (e.g. food stamps or Medicare)
  • You have a low household income (e.g. because you are currently in detention)
  • You have another reason you cannot pay (e.g. because you were fired and lost your income because you were detained)

 

ADMISSIBLE | How does DHS decide whether to grant an inadmissibility waiver?

To decide whether or not to grant you an inadmissibility waiver, DHS will examine your case and consider whether it is in the “public interest” to waive your inadmissibility and grant you a U visa. For this purpose, DHS will balance the arguments in favor of waiving your inadmissibility (e.g. you help bring a criminal to justice) and the arguments against it (e.g. you have committed serious and dangerous crimes). If you are concerned that there are serious arguments against waiving your inadmissibility, for example, because you have multiple crimes on your record, a lawyer can help you to build a convincing case why the arguments for you still outweigh the arguments against you.

 

Legal Disclaimer: Nothing in this website should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation.

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