U Nonimmigrant Visa

The outline below is only for general information purposes. If this sounds like something you or your family have experienced, please contact Helen Tarokic Law for a full consultation.

The survivor of a crime may be eligible for a U nonimmigrant visa if:

• The survivor was the victim of a qualifying criminal activity,
• The survivor suffered substantial physical or mental abuse as a result of having been the victim of criminal activity,
• The survivor has information about the criminal activity
• The survivor was helpful, is helpful, or is willing to be helpful to law enforcement in the investigation and/or prosecution of the crime, and
• The crime occurred in the United States or violated US laws.

Admissibility: The application must also show that the victim is admissible to the United States, OR that they qualify for a waiver using Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. The need for an I-192 Waiver petition depends on the victim’s immigration and criminal offense history. It must also be submitted for any beneficiaries who are inadmissible.

Only certain crimes make a victim eligible to apply for a U-1 Nonimmigrant Visa – these are called “Qualifying Crimes.”

The “Qualifying Crimes” can be thought of in these general categories:

• violent crimes
• domestic violence and sexual crimes
• justice system offenses

The full list of Qualifying Crimes is as follows:

• Abduction
• Abusive sexual content
• 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 and other related crimes
• Attempt, solicitation, or conspiracy to commit any of the above also qualifies.

However, if what happened to the victim does not sound exactly like one of these, that does not mean they have no options. A qualified attorney or legal team may be able to review the facts of the crime to determine if one of the Qualifying Crimes can match what happened to the victim.  For example, even though “Armed Robbery” is not one of the listed Qualifying Crimes, it may still be possible to qualify for a U-1 visa if the victim was held at gunpoint at home or at work.

What if the person who hurt me was never arrested? What if there are no witnesses and no one else knows what happened to me? What if I do not have pictures to show bruises from domestic violence beatings? What if there is no security camera footage? What if I do not have any saved text messages from the person who was stalking me anymore?

We understand that part of why it is so hard for a survivor of crime to speak out and seek help is that they might not be able to tell their full story, or that the evidence of the crime against them is not all easy to find. In other cases, it may have been several years since the crime happened. Even if this is true, it may still be possible to pursue a U Visa.

These evidentiary problems do not mean that a survivor cannot file for a U Visa.  Survivors should inform a legal team of what evidence is or is not available so the attorney can advise on what is possible.

An important part of the U Visa application is the Victim Statement, where the survivor is able to tell their developed and designed to help the survivor tell their story. USCIS should consider the entire statement, even if there is no proof outside of that honest account.

We understand that the trauma suffered by a survivor of crime may impact their memory in such a way that they do not remember names, dates, or small details of what happened to them. We know that we may be the first people who have ever heard the full story.

The most important thing we ask of people working with our office on their immigration options is to be honest, even if something prevented them from being honest in the past. Even if fear prevented someone from telling the truth in the past, it is important to tell the legal team and attorney the truth now. If someone said something incorrectly in the past, it is important to tell the legal team/attorney the correct information now to see if it can be corrected in future applications.

Information that potential clients and clients share with our law office is kept confidential, and USCIS also has special confidentiality protections for U Visas, T Visas, and other types of humanitarian visas.

This depends on both the legal and factual issues of the survivor’s case. If a person is eligible for a T Visa, it would most likely be the better option due to the long delay in USCIS’ processing time for U Visa cases. A U Visa applicant can expect to wait many years or even more than a decade before they receive their U Visa, followed by at least 3 more years of waiting to be eligible to apply for a Green Card.

However, with the faster T Visa processing time, it can take a much shorter period of time (currently about two years, in summer 2024) to receive their T Visa and work permit. They may then become eligible to apply for a Green Card either within the same year their T is approved, or within 3 years of obtaining T status.

Our office can screen the survivor of a crime and to determine what options may be available, and what might be most likely to stabilize the survivor and their family.

The short answer for a U Visa is that yes, the victim must have helped law enforcement or the courts, or be willing to do so even if the police or courts do not interact with the victim very much. The U Visa applicant must also get a signed Certification from law enforcement about their cooperation or willingness to cooperate.

There are some special circumstances related to minor victims of crimes and how they are able to cooperate with law enforcement, or victims who cannot cooperate because of some disability or extreme injury. These issues should be brought up in a conversation with an attorney or legal team.

A legal team may also screen a victim for a T visa, which has different requirements for reporting a crime and does not require a Certification signature. If the person is eligible for a T visa, it may be a better option than a U Visa.

The U Visa application must show that the victim has information about the criminal activity and that they assisted, or were willing to assist, law enforcement in the investigation and/or prosecution of the crime.

The application must also include a signed I-918B Certification from a law enforcement or prosecutorial agency, where that agency confirms that the victim was cooperative or helpful.  (See below for more information, in the section “Requirement of Certification Agency Signature”)

The victim’s cooperation usually begins when they call 911 after they are hurt, or someone else calls on their behalf if they cannot get to the phone. The victim may be interacting with different law enforcement agencies or offices (such as police or sheriff) or a prosecutorial agency or court official (such as the District Attorney’s office, a judge, in any court proceeding). The victim may cooperate in one or many different locations – the scene of the crime, at the police station, in the Court, or even just by phone or text.

This requirement extends throughout the entire application process, adjudication timeline, and, if approved, for the four years holding the U Visa. The applicant must remain willing and available to provide more information to any police officer, district attorney, court, or any other agency that has authority over the crime.

To apply for a U-1 visa, the application must show that the victim suffered substantial physical or mental abuse or injury as a result of the criminal activity.

Proving this element involves showing the extent of the physical and mental (emotional) trauma the U-1 victim suffered because of this crime. An attorney or legal team may ask the potential applicant to provide records of any medical treatment they have received, including therapy.

The victim may also need to start receiving mental health (therapy) treatment if they have not done so recently, even after working with an attorney to begin an application. The Victim Statement that is part of an application can also be used to explain a person’s physical and/or mental injuries.

One way to show that a victim has been injured by a crime is to attend therapy to deal with the continuing emotional trauma caused by the crime. Even if the crime happened many years ago, the person may still be suffering from the effects.

For example:

• Flashbacks
• Nightmares, trouble sleeping,
• Feeling fearful again when a place, a sound, a person, or anything reminds of the crime
• Getting emotional easily (angry or sad) even when something unrelated is happening

Therapy can help a person process these emotions and manage the effects that the crime may still be having on our life.

Our law firm usually requires, as part of our contract and the terms of our representation, that the primary applicant attend, a certain number of therapy sessions. There are several reasons – Primarily, we care about our clients’ emotional well-being – we want you to have less worries and happier days! We also find that attending therapy also helps people work better with our team and cooperate to provide the information we need for their case. It may also be an important part of the legal argument of a humanitarian visa application.

A U-1 applicant (the primary applicant) may be able to apply for their spouse as a beneficiary (U-2) and their unmarried children under 21 (U-3).

The couple should be legally married (as opposed to just living together), or they can get married during the application process before the U-1 visa is filed if they wish to file the U-2 at the same time. It is also possible to add a beneficiary spouse (U-2) if the marriage happens after the primary (U-1) petition is filed, as long as the marriage takes place before USCIS decides on the U-1 application.

Parent and sibling petitions are also possible in some cases where the U-1 is under 21 years old– a U-4 application for the Parent and a U-5 application for an Unmarried Sibling under 18).

An applicant should discuss with a qualified attorney which family members they may like to include, to learn about the options.

Change in the law – after-acquired spouses: In 2020, the Ninth Circuit Court of Appeals heard the case of Medina Tovar vs. Zuchowski, 982 F.3d 631 (9th Cir. 2020). The Court found inappropriate the USCIS requirement that a U Visa applicant had to be married at the time of filing their application in order to include their spouse as a derivative applicant (as compared to marrying after the application had been filed).

USCIS then changed their rules to allow T and U Visa applicants to include “after acquired spouses,” creating a window of time where a marital relationship can still be added into the T or U application.

If a U-1 or T-1 applicant gets married while their case is still pending with USCIS, they can file a U-2 or T-2 application to include their spouse on that pending application.

Please note that a spouse who marries the principal U-1 or T-1 applicant after the T-1 or U-1 application has already been approved cannot be added onto the application as a T-2 or U-2 spouse. An attorney or legal team may be able to look for alternative immigration options for that spouse.

• That the primary victim (U-1 applicant) was the actual (or indirect) victim of the crime, and
• That the crime was one of the Qualifying Crimes under the U Visa regulations, and
• That the victim (or another designated person) had information about the crime and was cooperative with the authorities (in some cases, an attempt to report or cooperate may be enough).

This is not something that the applicant must (or even should) do themselves before speaking to an attorney. Usually, the attorney would want to prepare the Certification Form as part of the application process to make sure the information on the Form is accurate and fits the overall case strategy.

Getting the signed U Visa Certification from local law enforcement can be a time-consuming and unpredictable process. Much of this uncertainty comes from the fact that certifying agencies have their own rules and timelines on what they will and will not certify.

The Certification signature also puts a timeline on the case because the signature (as of July 2024) certification expires six months after the signature date. It is sometimes – but not always – possible to ask the law enforcement agency to re-sign the certification to extend the deadline. However, it is best practice to complete the U Visa filing within those six months. We encourage people working with us to cooperate in filing before the expiration by providing all the information and documents we ask for in a timely fashion.

Please note that the attorney and legal team may also screen the client for a T Visa, which has different requirements for reporting a crime and does not require a Certification signature. If the client is eligible for a T visa, it may be a better option than a U Visa.

The U Certification Form I-918B is essentially confirmation from a law enforcement agency (police, sheriff, or anyone with the authority to investigate the crime) or a prosecutorial agency (usually the District Attorney’s office) that the victim was available and willing to cooperate in the investigation or prosecution of the crime.

The victim should usually cooperate as much as reasonably possible. Law enforcement agencies are supposed to be trained on interacting with victims and asking for cooperation in a “trauma-informed” way. However, a Certification agency could reject a U Certification request if they asked the victim to cooperate and the victim did not do so.

However, according to the U Visa regulations, Certification does NOT always require any of the following:

• Law enforcement contacted and followed up with the victim, interviewed them, or told them to come to the station.,
• The alleged offender was arrested,
• Law enforcement did a full investigation,
• The District Attorney charged someone for the crime,
• There was a trial in court, or
• There was a full trial and the offender was convicted of the crime.

Moreover, even if the matter did not rise to a trial, the District Attorney for the county where the crime occurred may still be able to sign the Certification Form.

According to the U Visa regulations, even a small action that shows that the victim was available and willing to cooperate may be enough for a certification signature – even if the matter does not progress beyond the day of the crime (e.g. no arrest, no court hearing, etc).

For example, this may be enough to signify cooperation:

• The victim called 911 to report the crime (even if there was no arrest, no arrest report, or no incident report made),
• The victim allowed the police to enter their home or workplace where the crime occurred, or,
• The victim gave their contact information to the police officers who responded to the scene of the crime, even if no one followed up with that victim.

Despite the broad recommendations that encourage agencies to take a victim-centric approach, it certainly true that certification agencies can set their own policies and guidelines for what they will and will not certify.

It is best for a victim to get assistance from an attorney and *not* to submit Form I-918B on their own. An attorney’s advice and advocacy can be helpful to understand how to best request a certification for the Qualifying Crime and receive a U Visa Certification.

(Please note that timelines change regularly for many reasons, including USCIS policies and procedures that are beyond our control. This section is based on our general experience and observations on immigration law and policy. It will not be possible to have an exact estimate on how long it will take to get an answer to any application, and an attorney can never promise that an application will be approved.)

One of the main drawbacks of the U Visa is the processing and decision-making on these applications at USCIS is extremely delayed.

The regulations state that only 10,000 U Visas may be issued every year, and that any U-1 applications approved past this number are to be placed on a waiting list. Once an applicant is on the waiting list, they are given a work permit and deferred action (an agreement not to pursue deportation) until their U Visa application is fully reviewed.

In the past, immigration attorneys have seen that it can take four to six years to get onto the waitlist. This is due in part to the large number of U Visa applications filed every year, causing a backlog into the hundreds of thousands of applications.

In June 2021, recognizing that this extreme delay was blocking people from earning their livelihood, USCIS under President Biden’s administration enacted a new Bona Fide Determination process.

The Bona Fide Determination process is supposed to help applicants get temporary work authorization faster. In this process, USCIS says it will perform a shortened initial review of all U Visa applications filed on the following factors:

• The principal petitioner properly filed Form I-918,
• The principal petitioner included a properly completed law enforcement certification (Form I-918B U Nonimmigrant Status Certification),
• The principal petitioner included a personal statement describing the facts of the victimization, and
• USCIS has received the results of the principal petitioner’s background and security checks based on biometrics

If the application is “bona fide” as described above, USCIS says that it will send the Applicant a four-year work permit that can be continuously renewed while they wait for the final decision on their U Visa application.  The applicant should also be granted Deferred Action, which is an agreement not to deport someone while they wait for the final decision in their case. Removal orders may also be closed after someone is granted a U Visa and a Waiver of Inadmissibility.

For applicants who have already filed their U Visa applications and category (c)(14) work permit applications timely and correctly, no further action is typically needed to receive bona fide determination review. USCIS is supposed to automatically review all previously filed applications and grant the (c)(14) work permit if bona fide determination is approved.

Despite this BFD process, immigration attorneys are still seeing long delays in U Visa applicants and their beneficiaries getting their work permits. An attorney may be able to advise on whether one or more of these tools would be appropriate to speed up the process:

• File a Mandamus lawsuit in federal court, which asks the court to force USCIS to review and make a decision on this application more quickly;
• Ask USCIS for Expedited Review because of some significant concerns, such as severe medical conditions;
• Request action from a Congressional Liaison, based on the fact that Congress has power over agencies such as USCIS and the Department of Homeland security.

For U Visa applicants with a spouse or other family member outside the US waiting on a pending U Visa case, litigation may help obtain a parole (travel permit) document for the family member to reunite in the US more quickly.

Because of the delay in the U Visa review process, the legal team at Helen Tarokic Law PLLC may screen potential applications to see if they would be eligible to file a T Visa instead of a U Visa, as the processing times for T visa applications are currently much shorter and make a faster path to residency.

When a U Visa Applicant receives their Bona Fide Determination, they should get:

• A four-year work permit, and
• Deferred Action – protection from deportation until the case is approved.

When a person has approved U Visa status, they should get:

• Four-year temporary lawful status,
• A four-year work permit, and
• Some public benefits, which vary by state.

The status may be able to be extended beyond four years, in some cases. An attorney may also be able to discuss options for getting any removal orders closed after a U Visa application is approved, if the removal order or proceedings were not already resolved.

A U Visa holder may be eligible to apply for Lawful Permanent Residency (Green Card) after three years in qualifying U Visa status. The person may later be able to Naturalize to become a US Citizen, if they meet those eligibility requirements.

Generally, the initial validity period of the U Visa will be four years. However, an applicant may extend this period, in certain cases.

There is a path from U Visa status (as a primary or derivative family member) to permanent residency, if an applicant meets the other requirements of that status.

The “Adjustment of Status” process allows a U Visa holder to apply for permanent residence three years after they were granted U status. The applicant must show all of the requirements for adjustment to Lawful Permanent Resident status, including good moral character and physical presence within the United States.

Beneficiaries may also have the option to Adjust Status to Lawful Permanent Resident if they meet these same eligibility requirements.

The legal team at Helen Tarokic Law may offer a consultation on adjustment options upon approval of the survivor’s U Visa application. This consultation can be crucial, as there are certain exceptions to the rules and special considerations.

Even under the Trump Administration (2017-2021), a person who was denied a U Visa, immigration attorneys observed that these people would not be placed into removal proceedings if they continued to appeal. The Biden Administration later ended the rule that a person would be placed into deportation just because their case was denied.

This usually means that if a U Visa is denied, the applicant may sue or appeal to try and win their case, but it does not mean they MUST do so in order to avoid removal. There is no rule saying a person will be deported if their U Visa is denied.

Discussing fear of deportation, the costs of the U Visa case, and the great benefits to applying for a U Visa are a few reasons why talking to a qualified lawyer is so important.

Please consult with us! Some of the bad denials under the Trump administration (2017-2021) have been reversed on appeal. Our law office has collaborated on lawsuits to revoke denials and reopen cases to get them approved. Every case is unique, but if you were a victim and your perhaps was not filed properly or needs to be appealed because the government made a wrong decision, we would like to give you a second opinion.

When you contact us to book a consultation, we would want to review your old immigration files (by filing a records request and/or with a signed release form to allow us to get those filings from your previous attorney). Additionally, our team may want you to go through a new intake and screening process with our trained staff, where we may do a “fresh” U Visa or T Visa screen to make sure we have all the necessary information.

There are some limited situations in which a family member of the victim may be eligible to file as a U-1 (the primary applicant), even though the qualifying crime happened to a loved one (the “direct victim”) and not the applicant themselves.

These are very special cases, and a full consultation will be needed to understand exactly what is possible.

This method is often used when the direct victim is a US Citizen, has some other stable immigration status, or does not choose to apply for a U-1 visa for some other reason. The family member applying as an indirect victim may be able to apply as the primary U-1 applicant instead of a beneficiary.

The family member would be called an “indirect victim” and could apply as a U-1 for a U Visa if they meet the requirements below:

• The applicant has a “qualifying family relationship to the direct victim”
  • If the direct victim was 21 or older when the crime occurred, their spouse and unmarried children under 21 may qualify as indirect victims,

• • If the direct victim was under 21 when the crime occurred, their spouse, unmarried children under age 21, parents, and unmarried siblings under age 18 may qualify as an indirect victim.

• The direct victim cannot assist law enforcement or prosecution because they are:
  • Dead, due to murder or manslaughter, or
  • “Incompetent or incapacitated” (including for reasons of injury, trauma, or age)

• The indirect victim meets all the other eligibility requirements for a U Visa, as reviewed above (including injury or trauma, cooperation with law enforcement, and admissibility).

Example: This eligibility sometimes occurs where the direct victim of the crime is a child (whether or not that child is a US citizen).

USCIS may take into consideration that the child could not meaningfully cooperate with an investigation or court proceeding on their own. In this case, the parent or guardian may qualify as the indirect victim, if they cooperated with the investigation and they meet all the other U Visa requirements. The application for the indirect victim may also need to show injury or trauma to the child, as well as to themselves as the child’s caretaker.

Parents, Guardians, and “Next Friends” can help with the Cooperation Requirement

One of the requirements of U Visa eligibility is that the victim has information about the criminal activity, and they have shared that information (or are willing to do so) with law enforcement and/or the prosecuting authority.

Sometimes, however, a victim will not be able to cooperate due to circumstances beyond their control, such as age, disability, or an incapacitating injury caused by the crime.

In this situation, the “next friend,” parent, or guardian is ONLY helping the primary victim with the cooperation requirement. They are not themselves applying for the immigration benefit.

In this case, a “next friend” can provide information on behalf of the victim to help the victim fulfill the requirement of being helpful to the investigation or prosecution of the crime.

• A “next friend” is defined as “a person who appears in a lawsuit to act for the benefit of a [noncitizen] under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity.”
• The “next friend” is not part of the legal proceeding themselves and is not appointed as a guardian of the victim. 8 CFR 214.14(a)(7)

If the primary victim of the crime was not 16 years old on the date the crime occurred, the parent, guardian, or “next friend” may be able to help fulfill the cooperation requirement.

If the primary victim is “incapacitated or incompetent,” the parent, guardian, or “next friend” may be able to fulfill the cooperation requirement.