U and T Visas

Presented by:

Detective Tish Edmonds, City of Richmond Police Department—Family Violence Unit

Susheela Varky, Esq., Staff Attorney, Virginia Poverty Law Center

Lakshmi Challa, Esq., Challa Law Offices

• A few immigration basics

• History and Purpose of the U and T visas

• Basic Elements of the U and T visa applications

• The U visa – for victims of violent crimes such as domestic violence, rape, and sexual assault

• The T visa – for survivors of human trafficking, including sex trafficking and labor trafficking

• Law Enforcement: what should be in your case files

• Forms to be familiar with

Agenda

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What agencies make up Immigration?

Department of Homeland Security US Citizenship &

Immigration Service (USCIS)

US Immigration & Customs Enforcement (USICE)

US Customs & Border Patrol (USCBP)

Department of Justice

Executive Office for Immigration Review (EOIR)

Board of Immigration Appeals (BIA)

Federal Circuit Courts of Appeals

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Immigration Basics: Immigrants v. Nonimmigrants

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Immigrants:

Lawful Permanent Residents (LPRs) may permanently reside in the US and legally work in the US

Common ways to obtain permanent residency: Family-sponsored immigrants Employment-based immigrants Diversity Immigrants Refugees and Asylees

Immigration Basics (continued)

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Nonimmigrants

Nonimmigrant status = temporary period of time.

Because they are restricted to the activity consistent with their nonimmigrant category, the most significant issue is whether the person may lawfully work in the US.

Obtained at a US Consulate abroad or within the US by asking the USCIS for a “change of status” from one nonimmigrant category to another.

Immigration Basics (continued)

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Nonimmigrant Status Categories (e.g.)

Temporary Visitors (B-2 visa)

Academic Students (F-1 visa)

Temporary Workers (H-1B visa)

Fiancée/Fiancé of U.S. Citizen (K-1 visa)

Helping Immigrant Victims of Certain Types of Crime

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The U Visa

Background/Policy

• Congress created the U Visa in an effort to strengthen the ability of law enforcement agencies to detect, investigate and prosecute crimes against immigrants. – Recognition of importance of victim & witness cooperation – Recognition that immigration status affects likelihood of

cooperation

• Created as part of the Victims of Trafficking and Violence Prevention Act of 2000– Regulations not issued until September 16, 2007 (seven

years later!)– USCIS has ended U nonimmigrant interim relief for

individuals who were previously granted interim relief but who did not file a Petition for U Nonimmigrant Status (Form I-918) or did not have a Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A) filed on their behalf by December 31, 2009.

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Immigration Benefits of the U Visa• Persons granted U visa status can remain in the United

States in lawful U visa status for a period of up to 4 years, with possible extensions in certain cases.

• After three years, U visa holders may apply for lawful permanent residence.

• U visa holders can petition for derivatives– For applicants under 21: victim’s spouse, children,

parents and unmarried siblings < 18 years– For applicants 21 or older: victim’s spouse, children

• U visa holders automatically qualify for employment authorization. – Derivatives must file I-765 after the U Visa is

approved to obtain employment authorization.

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Elements of the U Visa

• The applicant has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity

• The applicant possesses information concerning that qualifying criminal activity

• The applicant has been helpful, is being helpful, or is likely to be helpful to law enforcement official in the investigation or prosecution

• The criminal activity described violated the laws of the United States or occurred in the United States.

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“Certain Criminal Activity”

Must be a victim of criminal activity designated in INA § 101(a)(15)(U). Defined as one or more of the following or any similar activity in violation of Federal, State, or local criminal law:

• Rape • Being held hostage

• Torture • Peonage• Trafficking • Involuntary

servitude• Incest • Slave trade • Domestic violence • Kidnapping• Sexual assault • Abduction• Abusive sexual contact • Unlawful criminal

restraint• Prostitution • False imprisonment• Sexual exploitation • Blackmail• Female genital mutilation • Extortion11

“Certain Criminal Activity”

Continued . . .

• Manslaughter• Murder• Felonious assault• Witness tampering• Obstruction of justice• Perjury• Attempt, conspiracy or solicitation to commit any of the above.

Defining a Victim

Direct victim• Suffered direct and proximate harm as a result of

the commission of a criminal act named in the statute

• Bystanders who suffer unusually direct injury

Indirect victim• Certain family members if the direct victim is

deceased due to murder or manslaughter, or is incapacitated or incompetent and where the family is the spouse and children under 21, and if the direct victim was under 21, his or her siblings under 18 and parents as well as spouse and children.

• (Parents of sexually abused children qualify as indirect victims, even if the child is a U.S. Citizen).

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Substantial Physical or Mental Abuse

• The victim must demonstrate that he or she suffered substantial physical or mental abuse

• Physical or mental abuse means physical injury or harm to the victim, or harm to/impairment of the victim’s emotional or psychological soundness.

• Factors to be considered include, but are not limited to: – The nature of the injury inflicted or suffered– The severity of the perpetrator’s conduct

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Substantial Physical or Mental Abuse

Factors, continued . . .

- The severity of the harm suffered- The duration of the infliction of the harm- The extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, and - Any aggravation of a victim’s preexisting conditions

No single factor is required. It’s a case-by-case determination.

A series of acts may be sufficient to constitute substantial physical or mental abuse, even where no single act meets the standard.

HelpfulnessObligation to cooperate with the authorities:

• If the victim is16 years old or older, he/she will need to demonstrate that he or she cooperated or was willing to cooperate with law enforcement.

• If the victim is under the age of 16 at the time of the criminal activity, or is incapacitated or incompetent, he/she will not have to prove his or her cooperation; a parent, guardian, or “next friend” can fulfill the cooperation requirement.

• U Visa is available to those who are “helpful” to law enforcement regardless of whether the investigation or prosecution results in a conviction.

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Helpfulness

Applicant should obtain certification (I-918, Supp. B) signed by a law enforcement agency or official with responsibility for the investigation or prosecution of the criminal activity confirming that the applicant complied with reasonable requests for assistance.

Certifying official can withdraw certification.

DHS can contact the certifying official

Additional evidence of helpfulness can include trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits of other witnesses or officials.

Forms to Apply for U Nonimmigrant Status

Applicants must file:Form I-918, Petition for U Nonimmigrant StatusForm I-918, Supplement B certification of

helpfulness from a certifying agency that demonstrates the petitioner "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution of the criminal activity.

There is no fee associated with these forms. USCIS has decided to waive the petition fee, reflecting the humanitarian purposes of the law.

• Law Enforcement Certification Form (I-918, Supp B) can be signed by:– “Traditional law enforcement agencies” such as police or

prosecutors– Judges– Other agencies that have criminal investigative

jurisdiction in their respective areas of expertise, such as Child Protective Services, Equal Employment Opportunity Commission, or Department of Labor.

• Must be signed by either the head of the agency or an individual specifically designated by the head of the agency.

• Expires six months after date of signature.

Law Enforcement Certification

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• Evidence that applicant is a victim of qualifying criminal activity:

• “Any Credible Evidence Standard”

Evidence

– Police report– Arrest warrant– Court disposition– Trial transcript– News article– Protective Order, if applicable– Affidavits– Crime as described in state or federal code

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EvidenceEvidence that applicant has sufferedsubstantial physical or mental abuse:

- Medical Records- Photographs of visible injuries supported by affidavits- Protection orders- Police reports- Supporting letters, affidavits or declarations from counselors, therapists, shelter workers, counselors, social workers, victim witness advocates, clergy- Affidavits from witnesses, acquaintances or family members who have personal knowledge of the facts regarding the criminal activity

- Any credible evidence standard

Recent Developments

Whether undocumented parents of U.S. Citizen children could benefit from U visa protection had previously been unclear under the regulations.

The August 20, 2009 USCIS Vermont Service Center response to Stakeholders Meeting Questions clarifies that “parents of sexually abused children qualify as indirect victims, even if the child is a USC [U.S. Citizen]. It falls under the incompetent/incapacitated victim.”

The I-918B should reflect the parent/indirect victim as the victim on the form.

The confusion has been in cases where the I-918B indicated the U.S. Citizen child as the direct victim.

Recent Developments

U Visa Cap Exhausted for the First Time in the Program’s History U Visa program provides 10,000 visas to noncitizens in each

fiscal year. This number does not include persons eligible for U visa derivatives status – e.g. spouses, children or parents of applicants.

In July 2010, the 10,000 visa cap was exhausted for the first time.

This milestone demonstrates the U visa’s efficacy for law enforcement.

Another 10,000 visas became available in October, when the 2011 fiscal year began.

Prior to October, USCIS could grant interim legal status to approved cases where a visa was not yet available.

Recent Developments

Update to What Qualifies as a "Certifying Agency"

On March 15, 2010, the Department of Labor (DOL) began exercising its authority to certify U visa applications.

Certifying agencies can be Federal, State or local law enforcement agencies, prosecutors, judges or other authority that investigates or prosecutes criminal activity.

Other agencies such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor also qualify as certifying agencies since they have criminal investigative jurisdiction within their respective areas of expertise.

Helping Victims of Trafficking

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The T Visa:

• As a response, it enacted the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), which, among other things, allows such people to apply for 3-year temporary visas that lead to permanent resident status. In 2006, Congress modified 8 CFR 214.11(p) to now have the T-visa to be for 4 years.

• A victim of a severe form of trafficking;

• Physically present in the U.S. on account of the trafficking;

• Complied with any reasonable request for assistance in the investigation and prosecution of acts of trafficking; and

• Would suffer extreme hardship involving unusual and severe harm upon removal.

History/Elements of the T Visa

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Severe Form of Trafficking

Sex trafficking– a person is induced to perform a commercial sex act by force, fraud, or coercion; or– a person under the age of 18 is induced to perform a commercial sex act;

Labor/services trafficking(1) recruitment, harboring, transportation, provision, or obtaining of a person for labor or services(2) through the use of force, fraud, or coercion(3) for the purpose of subjection to involuntary

servitude, peonage, debt bondage, or slavery

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• Applicant must be present in the U.S.

• Presence must be on account of the trafficking

• Presence must be continuous (or exit/reentry must also be related to trafficking)

• No clear chance to leave– If applicant escaped traffickers before law

enforcement involvement, s/he must show that s/he did not have a clear chance to leave the U.S.

Physically Present

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Assisted Law Enforcement

• Primary evidence: – I-914B, Law Enforcement Certification (DOJ, FBI, ICE, etc.)– Continuous Presence (temporary form of relief requested by

law enforcement that allows victim to remain in US to testify against trafficker)

• Secondary evidence: – Letters or other correspondence detailing efforts to

obtain I-914B or client’s cooperation with federal law enforcement;

– I-914B signed by local law enforcement;– Letters from local enforcement

• If applicant is under 18, s/he is exempt from this requirement

• Success of investigation and/or prosecution does not effect eligibility

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Factors:• Age, circumstances;• Need for, and access to, physical and mental health care;• Access to U.S. courts to redress acts of trafficking;• Access to support services or lack of services in home

country;• Likelihood of revictimization in home country and authorities’

ability to protect;• Likelihood that culture/social practices would penalize victim

of trafficking;• Likelihood that trafficker or associates would retaliate; or• Risk to safety caused by civil unrest or armed conflict.

Notes:• Hardship should not be based on economic harm/

opportunity.• VSC has not yet denied a T-visa based on failure to show

extreme hardship (ILRC, 2006).

Extreme Hardship

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• Lawful T status for four years for principal applicant

• Employment Authorization for 4 years– Derivatives must file I-765 after the T Visa is approved to

obtain EAD.

• Can petition for derivatives (I-914 Supplement A)– For applicants under 21: victim’s spouse, children,

parents and unmarried siblings < 18 years– For applicants 21 or older: victim’s spouse, children

• Can apply to adjust status to LPR after three years or close of investigation

• Eligible for same public benefits as a refugee:– Survivors over 18 require certification from the Office of

Refugee Resettlement;– Survivors under 18 are immediately eligible for benefits.

Benefits of the T Visa

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