In 2000, Congress created the U Visa to be used as a tool for law enforcement. The U Visa can be issued to a noncitizen who is not a lawful permanent resident (green card holder). A noncitizen may be able to apply for the U Visa if he or she: 1) fell victim to a “qualifying” crime; 2) suffered substantial physical or mental harm as a result of the crime; 3) has or had information about the crime; 4) is helping or has helped law enforcement agencies in the investigation or prosecution of the crime; and 5) the crime violated U.S. law or occurred in the U.S. or its territories and possessions.
The immigration law identifies the following crimes as “qualifying” for purposes of the U Visa: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; 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; fraud in foreign labor contracting. The law also allows for crimes “similar” to those listed above, as well as the attempt, solicitation, or conspiracy to commit any of the above-listed or similar crimes.
The rationale behind the creation of the U Visa is the hope that a noncitizen residing in the U.S., whether he or she holds valid immigration status, will report criminal activity to law enforcement agencies and cooperate with law enforcement agencies who investigate criminal activity. A law enforcement agency, prosecutor, or judge must confirm that a U Visa applicant assisted in the investigation or prosecution of the crime. Obtaining this certification from a law enforcement agency is the initial step in the U Visa petition process.
A noncitizen may be eligible to apply for a U Visa even if he or she is ineligible for other immigration benefits or if he or she is in removal (deportation) proceedings or has been previously ordered removed. In conjunction with the U Visa petition, a noncitizen may also apply for a discretionary waiver of inadmissibility.
Proving that a noncitizen suffered substantial harm and persuading the U.S. Citizenship and Immigration Services that the crime was “qualifying” can be challenging. Given the evidence required to demonstrate eligibility for the U Visa, and the evidence required to demonstrate the merit of an accompanying waiver application, it is important that a potential U Visa applicant consult with competent immigration counsel.