Aggravated Felonies

(A)  Requirements.   In 1994, Congress created a nonimmigrant “S” Visa for informants and witnesses in criminal and terrorist investigations and prosecutions.[339]  This legislation grants an “S-5” nonimmigrant visa[340] to a person who:

(1)        possesses critical reliable information concerning a criminal organization or enterprise,

(2)        is willing to or has supplied it to federal or state law enforcement officials or the court, and

(3)        as to whom the Attorney General determines his or her presence is essential to the success of an authorized criminal investigation or prosecution.

A noncitizen witness in counter-terrorism matters may receive protection if the noncitizen “is in danger or has been placed in danger as a result of providing such information . . . .”[341]  A maximum of 100 visas is authorized per year.  The same general requirements authorize the government to grant up to 25 “S-6” visas per year to informants and witnesses for investigations into terrorist organizations.  These visas can be granted to spouses, married and unmarried sons and daughters, and parents accompanying or following to join the immigrant who receives the “S-5” or “S-6” visa.  

These immigrants may be authorized to adjust status to lawful permanent residence after satisfaction of certain conditions.  The law enforcement agency, rather than the immigrant, must apply for the visa.[342]  A form I-854 application may be filed by a federal or state law enforcement authority, which includes a federal or state court or a U.S. Attorney’s Office.

[339] INA § 101(a)(13)(S), 8 U.S.C. § 1101(a)(13)(S), created in 1994 by Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796.

[340] The original legislation designated these two visas “S-1” and “S-2,” respectively, but the previous use of these designations required that these visas be redesignated “S-5” and “S-6,” respectively.  See INS Commentary to implementing regulations, 60 Fed. Reg. 44,260 (Aug. 25, 1995); 8 C.F.R. § 214.1(a)(2), as amended, 60 Fed. Reg. 44,266 (Aug. 25, 1995).

[341] 8 C.F.R. § 212.2(s)(2).

[342] Khan v. INS, 88 Fed.Appx. 889 (6th Cir. Feb. 24, 2004) (case remanded to immigration court to allow noncitizen to submit evidence that Office of Inspector General promised him “S” visa to induce cooperation in investigation of corrupt immigration officials; noncitizen should be allowed, subject to evidentiary rules, to submit evidence of promises or representations made by OIG officials).