U Nonimmigrant Visa

The Helen Tarokic Law staff guides our clients through the process of submitting the appropriate forms, facts, and documentary evidence to prove these eligibility factors. The outline below is only for general information purposes; survivors should contact Helen Tarokic Law for a full consultation into their unique situation to determine if they are eligible. 

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

1. The survivor was the victim of a qualifying criminal activity,
2. The survivor suffered substantial physical or mental abuse as a result of having been the victim of criminal activity, 
3. The survivor has information about the criminal activity
4. The survivor 
5. and assists or is willing to assist law enforcement in the investigation and/or prosecution of the crime, and
6. The crime occurred in the United States or violated US laws.

Admissibility: The survivor must also show that they are 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 this additional petition depends on the survivor’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.” However, if what happened to you does not sound exactly like one of these, that does not mean you have no options. The legal team will evaluate the facts of the crime against you to determine which Qualifying Crime best fits your situation even if it does not exactly match one what we describe here. For example, even though armed robbery is not one of the listed crimes, it may still be possible for you to apply for a U-1 visa if you were held at gunpoint.

The “Qualifying Crimes” are listed in the statutes and can be thought of in these general categories: (1) violent crimes, (2) domestic violence and sexual crimes, and (3) 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.

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 text messages from the person who was stalking me anymore?

Our legal team understands 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 for you, 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. Inform your legal team of what you do and do not have so that we can prepare the best approach for your case. An important part of the U Visa application is the Victim Statement, where the survivor is able to tell their entire story. USCIS will consider the entire statement, even if there is no proof outside of that honest account. The screening and intake process at Helen Tarokic Law is thoroughly developed and designed to help the survivor tell their story.

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 all of our clients is to be honest. If you were too scared to tell us something in a call at first, contact us again to tell us that you now have more to say. If you said something incorrectly, let us know so we can fix it. Information that you share with our law office is kept confidential, and USCIS also has special confidentiality protections for this 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, currently it can take just a couple of years to receive their T Visa and work permit and 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 will carefully screen the survivor of a crime and offer all the remedies and options available, along with our recommendations of what will be most likely to quickly 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. 

Please note that the legal team will 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.

To apply for a U visa, the victim must show that they have 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 victim will also have to obtain a signed I-918B Certification from a law enforcement or prosecutorial agency, where that agency confirms that the victim was cooperative and helpful.  (See below for more information, in the section “Requirement of Certification Agency Signature”)

Usually, the victim of the crime will call the police after they are hurt, or someone will call on their behalf if they cannot get to the phone themselves. This is how the victim’s cooperation usually begins. The victim will usually interact with a law enforcement agency (such as police, sheriff, etc.) or a prosecutorial agency or court official (such as the District Attorney’s office, a judge, in any court proceeding). 

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 primary victim must show that they 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. The legal team will ask our clients to provide all records of any medical treatment you have received due to your injuries (if any). You may also need to receive mental health (therapy) treatment if you have not done so recently. Our team will also work with our clients to develop a victim statement that explains their physical and/or mental injuries.

One way to show that you have been injured by the crime against you is to attend therapy to deal with the continuing emotional trauma caused by the crime. Even if the crime happened many years ago, you 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 you process these emotions and manage the effects that the crime may still be having on our life. 

If you would like to work with our law firm, we usually require at least 12 sessions of therapy as part of the terms of our representation. 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 our clients work better with our team and cooperate to provide the information we need for their case.

A U-1 applicant (the primary applicant) can 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 – a U-4 application for the Parent (if the U-1 petitioner is unmarried and under 21) and a U-5 application for an Unmarried Sibling under 18 (if the U-1 petitioner is under 21). 

Please discuss with the legal team which family members you would like to apply for to learn about your 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 T or U 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 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. The legal team would explore alternative immigration options for the principal applicant’s spouse.

One of the main drawbacks of the U Visa is the processing of these applications is extremely delayed at USCIS. 

The regulations state that only 10,000 U Visas may be issued every year, and that any applications 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, it has taken 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 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 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 is also granted Deferred Action, which is an agreement not to deport someone while they wait for the final decision in their case. Removal orders can also often 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, we are still seeing delays in U Visa applicants and their beneficiaries getting their work permits. The attorneys can 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 screens all our clients to see if they would be eligible instead to file a T Visa, as the processing times for T visa applications are currently much shorter and make a faster path to residency.

We understand how difficult it is to wait for something like this, but we remain committed to answering your questions throughout the entire process.

When a U Visa Applicant receives their Bona Fide Determination:

• Four year work permit
• Deferred Action – protection from deportation until the case is approved

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

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

The status can be extended beyond four years in some cases. An attorney can also discuss with you your options for getting any removal orders closed after your 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 could later 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 to permanent residency. 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 will 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 offers a consultation on adjustment options upon approval of the survivor’s U visa application. This consultation is crucial, as there are certain exceptions to the rules and special considerations.

Even under the Trump administration, a person who was denied a U Visa 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 means that if a U Visa is denied, the applicant can still 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 your 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 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 case wasn’t 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 will want to review your old immigration files and will likely offer you a release form to allow us to get those filings from your previous attorney. Additionally, our team will still want you to go through a new intake and screening process with our trained staff, where we will do a “fresh” U Visa screen to make sure we have the necessary information to give you a legal opinion.

There are some situations in which a family member of the victim may 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. 

This 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 applies 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 apply as the indirect victim, if they cooperated with the investigation and they meet all the other U visa requirements. The indirect victim should be prepared to show injury or trauma to the child, as well as to themselves as the caretaker of the child.

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” can help fulfill the cooperation requirement. 

If the primary victim is “incapacitated or incompetent,” the parent, guardian, or “next friend” can help fulfill the cooperation requirement.