Criminal Defense of Immigrants

(A)  Who Can Apply.  The U visa is available to immigrants who have suffered “substantial physical or mental abuse as a result of having been a victim” of one of the following forms of criminal activity that occurred in the United States: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage holding, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy or solicitation to commit one of these offenses.[226] 

The “U” visa applicant also must show that s/he possesses information about the criminal activity, and that s/he has been, is being, or is likely to be helpful to federal, state or local authorities investigating or prosecuting the criminal activity.[227]  If the victim is a child under the age of 16, then the parent, guardian or next friend of the child victim may possess the information and indicate the willingness to be helpful.  Further, the applicant must obtain certification from a federal, state or local official or a qualifying DHS officer to this effect.[228]  The U.S. Attorney’s Office cannot force the DHS to grant such a visa.[229]

In persuading the DHS to grant such a visa, it may be useful to refer to the findings that Congress made in support of the visa.[230]  An August 30, 2001 INS memorandum provides basic information, and the memo should be brought to the attention of prosecutors and DHS officials who are unaware of its contents.[231]  The memorandum emphasizes that pending a final regulation, “aliens who are identified as possible victims in the above categories should not be removed from the United States until they have had the opportunity to avail themselves of the provisions of the VTPA.”[232]  Possible victims should be provided with employment authorization.[233]

The National Immigration Law Project of the National Lawyers Guild is serving as a clearinghouse for information concerning the visa.  Advocates should consult the website for updated information before submitting applications by going to http://nationalimmigrationproject.org.

[226] INA § 101(a)(15)(U), 8 U.S.C. § 1101(a)(15)(U).

[227] INA § 101(a)(15)(U)(i)(III), 8 U.S.C. § 1101(a)(15)(U)(i)(III).

[228] INA § 214(o), 8 U.S.C. § 1184(o).

[229] Assistant United States Attorneys lack the authority to bind immigration authorities unless the immigration authorities give their written assent and otherwise comply with 28 C.F.R. § 0.197.

[230] Title VII of the VAWA 2000, § 1513, created the U visa. 

[231] “Victims of Trafficking and Violence Protection Act of 2000 (VTPA) Policy Memorandum #2 –  “T” and “U” Nonimmigrant Visas,” Memorandum from Michael D. Cronin, Acting Executive Associate Commission, Office of Programs, INS, August 30, 2001. A copy is available from the National Immigration Project website (http://www.nationalimmigrationproject.org) and was reprinted in 78 Interpreter Releases 1751-2, Appendix II (Nov. 12, 2001).

[232] Memorandum, page 2 (emphasis in original). 

[233] Ibid., page 4.