Tuesday, April 22, 2008

U nonimmigrant status, U visa interim rule, Victims of Trafficking and Violence Prevention Act (VTVPA)

September 5, 2007 - USCIS published an interim rule that grants temporary immigration benefits to certain victims of crimes who assist government officials in investigating or prosecuting the criminal activity.

U visa regulation.pdf (effective October 17, 2007)

The interim final rule establishes procedures for applicants seeking U nonimmigrant status and will take effect 30 days after publication in the Federal Register. The “U” classification was created by Congress in the Victims of Trafficking and Violence Protection Act and offers not only protection and temporary benefits to alien victims but also bolsters law enforcement capabilities to investigate and prosecute criminal activity.

Eligibility for the U nonimmigrant classification is set aside for victims of criminal activity who: suffered substantial mental or physical abuse because of the activity; has information regarding the activity; and is willing to assist government officials in the investigation of the crime. Additionally, the crime must have violated U.S. law or occurred in the United States (including its territories and possessions).

Individuals granted U nonimmigrant status may remain in the United States for up to four years, and may be accompanied by eligible family members (spouse, children, unmarried siblings under 18, and parents). Not only do eligible petitioners obtain legal status to remain in the country, but will also be provided referrals to nongovernmental organizations for assistance and additional resources, and automatic employment authorization. A total of 10,000 U-visas will be available each fiscal year; however, the congressionally mandated cap does not apply to eligible family members.

New forms have been developed for petitioners requesting status under this new classification, including Petition for U Nonimmigrant Status (Form I-918) and Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A).

The interim final rule will be available for public comment at www.regulations.gov until 60 days after publication in the Federal Register.
The U nonimmigrant status allows non-citizen victims of crime to stay in the United States and obtain employment authorization. It was created by the Victims of Trafficking and Violence Prevention Act (VTVPA), enacted in October 2000 and was amended by the Violence Against Women & Department of Justice Reauthorization Act of 2005 (VAWA 2005), enacted in January 2006. The U nonimmigrant status is intended to protect victims of serious crime who have gathered the courage to come forward, report the crime, and assist in its investigation and prosecution. It is available to non-citizens who suffer substantial physical or mental abuse resulting from a wide range of criminal activity, including domestic abuse.

U nonimmigrant status will be conferred upon eligible individuals in the form of a nonimmigrant visa called the U visa. There is an annual limit of 10,000 U visas per year.

After three years in U nonimmigrant status, the non-citizen may be able to adjust status to obtain lawful permanent residency (a green card). There are also provisions to grant derivative U nonimmigrant status and permanent resident status to certain spouses, children, siblings and parents of U visa holders.

1 Pub. L. 106-386, 114 Stat. 1464 (Oct. 28, 2000) [VTVPA].
2 Pub. L. 109-162, 119 Stat. 2960 (Jan. 5, 2006) [VAWA 2005].
3 INA §§ 101(a)(15)(U), 214(p), 245(m). 5 INA § 214(p)(2)(A)

There are four basic eligibility requirements for U visa interim relief:

• The immigrant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity;

• The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) possesses information concerning that criminal activity;

• The immigrant (or in the case of an immigrant child under the age of 16, the parent, guardian or next friend of the child) has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; and

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

Currently, there are three categories of individuals who may be barred from obtaining U interim relief. They are:

1) individuals with aggravated felonies,

2) individuals who are already in valid nonimmigrant status and

3) individuals who fall under one of the grounds of inadmissibility. Potential U interim relief applicants who are in removal proceedings are eligible for U interim relief but must overcome an extra set of hurdles.

USCIS: News Release: U-visa_05Sept07.pdf
U visa Regulation.pdf
U Visa Interim Regulations Fact Sheet and Guidance .pdf
Adjustment of status for VAWA self-petitioner who is present without inspection
Revisions to Adjudicator's Filed Manual Chapter 39 (AFM)
USCIS Processing update, Nonimmigrant victims of criminal activity, April 10, 2008(AFM)

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