The U Visa. How Immigration Law Can Help Undocumented Crime Victims

Undocumented immigrants are one of the most vulnerable population groups in this country.  All too often these immigrants are exploited by unscrupulous employers and others, who use and abuse them, safe in the knowledge that they will not be reported.  But even where these crime victims were not deliberately targeted because of their immigration status, they may still be too afraid to come forward and report the crime, for fear that it may lead to their own deportation.  All too many rapes, assaults, thefts and other crimes that are traumatic to the victim and usually his or her family as well, go unreported and the perpetrators get off without any consequences.  It does not have to be this way.

The U non-immigrant status (or “U visa”) offers immigration protection for victims of qualifying crimes who are helpful to law enforcement in the detection, investigation, or prosecution of the criminal activity.  Provided that certain criteria are met, the undocumented crime victim will have the chance to apply for immediate non-immigrant status.  This status will allow them to live and work in the United States for up to 4 years, with a shot at Legal Residency (a “Green Card”) a few years down the road.  Receiving a U-visa does not directly or necessarily grant lawful permanent residency. Lawful permanent residency will be granted only to U-visa recipients who can provide evidence that they have not unreasonably refused to provide assistance in the criminal investigation or prosecution and that their continuous presence in the country is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.

But it is not only the undocumented crime victim who benefits from this opportunity.   Indeed, Law Enforcement Agencies across the United States have come to recognize the value of the U Visa, inasmuch as it encourages victims to report crimes and then cooperate in the prosecution of the perpetrators. By providing U-visa certifications, law enforcement officials add to their arsenal of crime-fighting tools because victims feel safer coming forward to report crimes. So who can get a U visa, and how to do so?

To be eligible for a U-visa, immigrant victims must meet four statutory requirements and they must include a certification from a certifying official or agency that they have been, are being, or are likely to be helpful in the detection, investigation, or prosecution of a qualifying criminal activity. The law requires that a person who is eligible for a U-visa must:

(1) have suffered substantial physical or mental abuse as a result of having been a victim of a
listed criminal activity;

(2) possess information concerning such criminal activity;

(3) have been helpful, be helpful, or be likely to be helpful in the investigation or prosecution of a crime; and

(4) have been the victim of a criminal activity that occurred in the United States or violated the
laws of the United States.

So which crimes qualify?

A “non-exclusive” list of qualifying criminal activities is provided in the statute. The list includes 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, perjury, solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state, or local criminal law. The list also
includes attempts or conspiracy to commit any of the listed activities.

Once it is determined that the undocumented immigrant has, in fact, been the victim of a qualifying crime, the next issue to consider is what he or she needs to do.  It is important to recognize that a U visa does NOT require the successful prosecution of the perpetrator.  Indeed, there need not ever be a prosecution or even the initiation of an investigation.  Congress explicitly crafted the U-visa immigration protections for victims so as not to interfere with the discretion that investigators and prosecutors have to investigate and choose whether to prosecute criminal activity in any particular case. If an immigrant crime victim has offered or is willing to offer assistance to law enforcement officials or prosecutors regarding such activity, the outcome of the case (or whether authorities ever proceed with the case) is not relevant to a victim’s U-visa eligibility. In addition, investigation or prosecution of some criminal activity is impossible because the perpetrator cannot be located, has diplomatic immunity, or has been deported. U-visa status can therefore be granted even when police decline to investigate or prosecutors decline to charge perpetrators, when charges are later dropped, or when prosecutors are unable to secure convictions.

However, the critical item that must be secured from Law Enforcement, is a certificate of cooperation. A U-visa applicant must obtain a certification from a police chief, a sheriff, a prosecutor, designated law enforcement official, judge, or other federal or state authority that is detecting, investigating, or prosecuting any of the criminal activities listed in the U-visa statute or regulations, that they have been helpful. This helpfulness can include past assistance to the police in reporting the case and cooperating in the investigation, current helpfulness to the prosecution or willingness to be helpful in providing information to prosecutors and potentially testifying as a witness.  Without this certification, the application for the U visa will be denied.  Some examples of helpful actions include, but are not limited to, calling 911 to report the crime, providing a statement to the police, filing a police report, or seeking a protection order.

It is important to recognize that obtaining a U visa is not always a simple matter.  An immigration attorney who has good relationships with Law Enforcement agents at both the state and federal level can often make all the difference.  Having an advocate on your side who is mindful of the bigger picture, including your immigration status can made all the difference.

So if you have recently been the victim of a crime and are concerned that reporting it may result in immigration difficulties or deportation proceedings being brought against you, contact Immigration Attorney, Karyn Schiller.  Call 914 358-1400 or Click here to make an appointment. Karyn Schiller is a skilled and professional attorney who has many years experience fighting for her clients.  Ms. Schiller brings compassion and dedication to the office, each and every day.  Call today and go from being the victim to the victor

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