T Visas And U Visas: Nonimmigrant Visas
Our immigration attorneys in Minneapolis help clients nationwide with the application process for nonimmigrant visas, like T visas and U visas.
What Is A T Visa?
In October 2000, Congress created the “T” nonimmigrant visa by passing the Victims of Trafficking and Violence Protection Act (VTVPA). This law was passed to combat trafficking in persons in the sex trade and forced labor trades and to reauthorize certain federal programs to prevent violence against immigrant women and children.
To be eligible for T nonimmigrant status, the applicant must demonstrate that he or she has been the victim of severe trafficking, that he or she is present in the United States or a port of entry such as an airport as a result of human trafficking, that he or she would suffer extreme hardship if forced to leave the United States, and that the applicant has cooperated – or is cooperating – with law enforcement in the investigation and/or prosecution of human trafficking.
The T visa is granted for a period of three years. The individual may seek to adjust status to that of a permanent resident upon establishing certain requirements.
Can Family Members Of The Victim Benefit From The T Visa?
Qualified derivative family members of the T applicant include spouses, unmarried children under 21 years of age, and (if the victim is under 18) parents and unmarried siblings under age 18.
Please contact Wilson Law Group to consult with one of our experienced and skilled attorneys regarding your particular situation.
Victims Of Crimes & Violence – U Visas
The U-visa is a nonimmigrant visa for certain victims of qualifying crimes in the U.S. In order to receive a U-visa, an applicant needs to generally prove that he or she:
- Was a victim of a qualifying crime in the United States;
- Suffered substantial abuse from the crime;
- Has credible knowledge of the details about the criminal activity; and,
- Was helpful, is being helpful, or will likely be helpful to a certifying agency in the investigation or prosecution of the criminal activity.
The applicant must also show that they were helpful, continues to be helpful, or will likely be helpful in the future to a certifying agency in the investigation or prosecution of the criminal activity.
How Many U Visas Are There?
USCIS only issues 10,000 U visas per fiscal year to individuals who qualify. Each year, the U visa number cap is being reached more quickly. For the 2014 fiscal year, the cap was reached in December 2013, which was only two months after the fiscal year began.
What Happens After The Maximum 10,000 Visas Has Been Reached?
The rules on this issue have recently changed for the better as of December 2013. Now, once the U visa cap has been reached, USCIS will continue reviewing pending applications and place those cases that USCIS has determined are otherwise eligible for U visa status on a wait list. For those individuals on the waitlist, USCIS sends out notice of eligibility for deferred action, which enables the applicant to apply for and receive work authorization until the U visa petition is granted.
USCIS will then continue issuing U visas in the next fiscal year when an additional 10,000 visas become available.
What Types Of Crimes Qualify For A U Visa?
The immigration regulations list a variety of crimes that may qualify for a U visa, although these examples are not exclusive. The types of crimes include: abduction, blackmail, domestic violence, extortion, false imprisonment, felonious assault, female genital mutilation, fraud in foreign labor contracting, hostage, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual contact (abusive), sexual exploitation, slave trade, stalking, torture, trafficking, unlawful criminal restraint, witness tampering, or attempt, conspiracy to commit one of these crimes.
What Does It Mean To Have Suffered ‘Substantial Abuse’?
The immigration regulations define “substantial abuse” to mean physical or mental injury or harm to the victim’s physical person, or harm to or impairment of the emotional or psychological soundness of the victim. The immigration official can also consider aggravation of a victim’s preexisting conditions, such as depression or prior injury.
An applicant must prove his or her substantial abuse through evidence in the U visa application, which can include medical records, orders for protection obtained, etc.
U Visa Certification
The U visa application must also contain a Form I-918 Supplement B (“U Visa Certification”) signed by a certifying official within 6 months of filing the U visa application with USCIS. A certifying official can be the head or designated official of a federal, state, or local law enforcement agency (police), prosecutor or other authority involved in the investigation or prosecution of the criminal activity.
The decision whether to sign a U Visa Certification is entirely discretionary by the certifying official; there is no requirement that he or she sign a certification.
U Visas: The Evidentiary Burden Of Proof And Avoiding The Request For Evidence
To be eligible for a U visa, a person must have been the victim of a certain crime, have aided law enforcement in the investigation and/or prosecution of the crime, and have suffered significant harm as a result of the crime. However, establishing eligibility and providing enough evidentiary support for a favorable adjudication of a U visa application are two different hurdles to climb.
In recent years, USCIS processing times for U visa applications has been upwards of 60 months, or five years. While USCIS has announced promising changes in policies that would result in shorter periods of stagnancy, the U Visa process remains lengthy. On top of the five-year waiting period, there remains the possibility of even longer processing times if USCIS issues a Request for Evidence. While not an indicator of a weak application, a Request for Evidence may delay the processing times even longer. Accounting for the time that it takes the applicant to gather the additional evidence and for USCIS to further review their application with this additional evidence, applicants could find themselves waiting another year before a decision is reached on their application.
Unlike many factors leading to the long processing times of U visa applications, avoiding a Request for Evidence is a factor that can be within the applicant’s control. A Request for Evidence, or RFE, is a notice from USCIS asking the applicant to provide more information on a particular part of their application. USCIS may issue an RFE regarding any part of an application, including the eligibility requirements described above. To avoid unexpected and added wait times for U visa applications, consider gathering the following documents in preparation of your initial U visa submission:
Remain accessible to the police regarding the incident by providing your contact information and answering any phone calls from the officers.
Keep all documents that you receive from the police or court officials regarding the incident.
If you did not receive medical care or were not transported to a hospital after the incident, consider making an appointment with your doctor for a general exam. He or she may be able to document any lasting injuries to you, either physically or mentally, from the crime.
Keep all documents that you receive from the doctor.
Request copies of your own medical records. If you are working with an attorney, you may be able to request that the doctor release your medical records to your attorney.
If you have an online health portal through your doctor’s office, log in and save all records pertaining to your visit.
If you were prescribed any medications to aid in your recovery from the incident, keep all prescription records.
If you have any previous medical conditions, consider whether these conditions have been exacerbated by the incident. These conditions include
post-traumatic stress disorder (PTSD), anxiety, or depression.
If you suffered emotional harm from the incident, consider making an appointment with a psychologist or therapist.
Keep a log of all appointments you have attended in order to recover from the incident.
Ask any witnesses to the crime to write a statement describing what they know about the incident.
Can a principal U Visa applicant apply for a family member?
Yes. A principal U-1 applicant can apply for a qualifying family member. If the principal applicant is 21 years-old or older, he or she can apply for a spouse or child within the meaning of the immigration laws. If the principal applicant is under 21, s/he may apply for a spouse, child, parent, or sibling under 18. A U-1 principal cannot apply for a grandchild.
Can An Applicant Qualify For A U Visa If They Were Not A Direct Victim?
In certain circumstances, yes. Certain family members may apply for U visa status as an “indirect victim” if the direct victim is deceased, incompetent, or incapacitated (e.g. due to age) among other things. Relatives who may qualify as “indirect victims” include the direct victim’s spouse, the direct victim’s unmarried children under 21 years old, and if the direct victim is under 21 years old, his/her parents and unmarried siblings under age 18. A U visa derivative is different than an indirect victim.
If Your Child Is About To Turn 21, Are They Still Eligible For A U Visa As A Derivative?
Yes, as long the U visa application is filed before the child turns 21 years-old and the child is unmarried. The Trafficking Victims Protection Reauthorization Act 2013 provided certain age-out protection for U derivatives. One of the protections was to allow children who turn 21 after filing the U visa application to still receive derivative U visa status for the full four years, assuming the child is otherwise eligible. This is important because it means that the child will be eligible to apply for permanent residence in the U.S. once s/he fulfills the necessary three years of physical presence in the United States and is otherwise eligible.
What Do I Receive If My U Visa Is Granted?
If USCIS approves the U visa application, the applicant receives U nonimmigrant status in the United States. This is not the same thing as permanent residency. Upon approval of a U visa application, USCIS will issue notices of approval indicating the validity date of the individual’s status along with a work authorization card.
Bona Fide Determination Process for Qualifying Family Members of U Nonimmigrant Victims of Qualifying Crimes – Provides that USCIS will review and determine if a qualifying family member’s petition for U nonimmigrant status is bona fide, and if already filed, adjudicate their Form I-765 once the principal petitioner receives a BFD, even if the principal petitioner has not filed Form I-765.
Submit Form I-765, Application for Employment Authorization, at the same time you submit your Form I-918 or Form I-918A.
This will enable USCIS to consider your case more efficiently under the bona fide determination process. Please note that there is no fee for an initial bona fide determination Employment Authorization Document (EAD).
If you have a pending Form I-918 or Form I-918A and have not already submitted Form I-765, Application for Employment Authorization, please submit Form I-765 now to the appropriate address.
Note: We will not determine whether a qualifying family member’s petition is bona fide until after the principal petitioner receives a bona fide determination
When Is A U Visa Recipient Eligible To Apply For Permanent Residency In The U.S.?
A U visa holder may apply for adjustment of status (permanent residency) in the U.S. if he or she (1) continues to hold U visa status at the time of filing for residency, (2) has been continuously physically present in the United States for three years, (3) is not inadmissible under certain provisions, (4) has not unreasonably refused to provide assistance regarding the criminal activity that led to U status, and (5) demonstrates presence in the US is justified on humanitarian grounds or is in the public interest. An application for permanent residency is discretionary.
Consult With An Immigration Attorney For Free
Our firm offers free consultations. If you think you may be eligible for a nonimmigrant visa like a T visa or a U visa or if you would like to pursue an adjustment of status, please reach out. You can schedule your appointment by calling 612-430-8022 or by sending us an email through our website.