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U.S. Citizenship and Immigration Services has published an interim final rule on a new type of visa called the "U" visa. The rule will grant status to victims of serious crimes who will assist law enforcement officials in investigating or prosecuting the criminal activity. The visa, which has an annual cap of 10,000, is set aside for victims of crimes who 1) have suffered mental or physical abuse because of the crime, 2) who have information regarding the activity, and 3) are willing to assist government officials in the investigation/prosecution of the criminal activities.
Period of Validity:
The U-visa authorizes the holder to remain in the United States for up to four years.
Eligibility Requirements:
(1) the individual must have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity;
(2) he/she has information concerning that criminal activity;
(3) he/she has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime; and
(4) the criminal activity must have violated the laws of the United States or occurred in the U.S.
Covered Crimes:
There is no exclusive list of all the crimes covered but they can generally fall under these categories: domestic violence, sexual abuse, trafficking, and crimes that target at immigrants. Many Federal, State or municipal crimes are covered including murder, rape, torture, sexual exploitation, extortion, witness tampering, obstruction of justice, false imprisonment, etc.
How to Apply:
File a Petition for U Nonimmigrant Status (Form I-918) with the Vermont Service Center (which has been designated as the centralized location to receive all U Nonimmigrant petitions.)
Victim must also obtain provide a certification of helpfulness from a certifying agency - a U Nonimmigrant Status Certification (Form I-918, Supplement B) from a federal, state, or local law enforcement official that demonstrates the petitioner "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution of the criminal activity. Such a certification must be signed by the head of the agency or a supervisor designated with the authority to issue certifications on behalf of the agency must sign the certification.
What is the difference between the "T" visa and "U" visa.
The T visa requires an alien’s physical presence in the United States as a condition of eligibility. But U visa allows a victim to apply from inside or outside of the U.S.
Family Members:
The alien victim must petition on behalf of qualifying family members. If the principal is less than 21 years of age, qualifying family members include the principal’s spouse, children, unmarried siblings under 18, and parents. If the principal is 21 or older, qualifying members include the spouse and children of the principal. The family members must also be admissible to the U.S. to be eligible. Principal may use the I-918, part A to petition the family members. The 10K cap does not apply to family members.
Application for Permanent Residence:
A U visa holder who has been physically present in the U.S. for a continuous period of at least three years may apply for a green card. However, the agency must determine that the individual’s continued presence in the U.S. is justified on humanitarian grounds to ensure continuation of a cohesive family, or is otherwise in the best interest of the public.
Eligibility Requirements :
To be eligible for a T-visa, a non-citizen trafficking victim must demonstrate that he or she:
•Is or has been a victim of a severe form in trafficking;
•Is physically present in the United States, American Samoa, or the Mariana Islands or at a port of entry on account of trafficking;
•Has complied with any reasonable request for assistance in investigating or prosecuting trafficking (if 18 or older), and;
•would suffer extreme hardship involving unusual and severe harm upon removal.
Victim of a Severe Form of Trafficking
Human trafficking is still a relatively misunderstood term. Victims are unlikely to self-identify both because they may be unfamiliar with the terminology and because they may not understand that human trafficking is a criminal act in the United States. Therefore advocates and attorneys working for victims are likely candidates to make a primary assessment that a victim is a trafficking victim. As such, advocates can determine if their clients are victims of severe forms of trafficking as defined under the law by examining the victimization in three parts:
1. Process—Was the victim recruited or harbored or moved or obtained?
Physical movement or control of an individual
Persons can qualify even if they initiated contact with a broker
The entry may be under a lawful visa
2. Means—Was the victim forced or defrauded or coerced into the labor or sexual acts?
A recruiter or agent promised different work conditions than actually existed
The victim or her family members were threatened if he or she did not participate
The victim was abducted
3. End—Was he or she victimized for the purpose of involuntary servitude or debt bondage or slavery or for commercial sex?
The victim was physically prevented from escaping the labor or commercial sex situation. Methods of force include locks, surveillance cameras, confiscating identification documents and other means.
In addition to completing a T-visa form, the victim should describe her experience as a trafficking victim, the harm she suffered and her testimony about each of the elements of proof required for a T-visa in her affidavit. An advocate should work with the victim to write her affidavit and gather other secondary evidence to corroborate the three prongs of proof she must show to meet definitions of being a victim of a severe form of trafficking. Victims who have been granted continued presence may submit proof of the DHS grant of continued presence to satisfy this requirement. T-visa applicants can also satisfy this requirement by filing a federal law enforcement agency (LEA) certification (Supplement B of forms I-918) when they file their T-visa application. Proof of continued presence or law enforcement certification is primary evidence that the applicant is a victim of a severe form of trafficking. Victims who did not receive continued presence or LEA certificates must prove that they are victims of a severe form of trafficking through providing credible secondary evidence including the victim’s affidavit. This must include an explanation of why there is no primary evidence available. The TVPA regulations provide a non-exhaustive list of secondary evidence that include:
Trial transcripts
Court documents
Police reports
News articles
Affidavits of witnesses
Victims often are under such duress during their trafficking experience that they experience severe post-traumatic stress disorder or other psychological trauma. Furthermore, victims have been instructed by their trafficker not to trust anyone and it may be difficult for an advocate to immediately elicit the information needed to determine whether a person is a trafficking victim. Advocates should be prepared to be patient and expect to develop trust slowly over time.
Physically Present On Account of Trafficking
A victim must demonstrate physical presence in the United States on account of the trafficking. An applicant must prove that he or she:
Is being subjected to trafficking now
Was recently liberated from such trafficking, or
Is here because of past trafficking and his or her continued presence in the United States is directly related to the original trafficking incident.
For victims who escape their trafficking without federal law enforcement assistance, they must demonstrate that they did not have a clear chance to leave the United States in the time between escaping their traffickers and being in contact with a law enforcement agency (LEA).
When the applicant’s trafficking experience did not recently occur, proving physical presence also requires a demonstration that the applicant did not have an opportunity to depart by including proof of “trauma, injury, lack of resources, or travel documents that have been seized by the traffickers.” The T-visa application Form I-914 poses questions such as “what have you been doing since you were separated from the traffickers?” and “Why were you unable to leave the United States after you were separated from the traffickers?” to help applicants respond to this requirement. Though regulations do not differentiate between primary and secondary evidence, possible evidence includes explanation around trauma, financial resources, lack of travel documents connected to the incident of trafficking.
Complied with Reasonable Requests for Assistance with Investigations and Prosecutions
Each T-visa applicant must also demonstrate that he or she has complied with any reasonable request for assistance by law enforcement with the investigation or prosecution of the trafficking act.
The Law Enforcement Agency (LEA) endorsement provides the only primary evidence of the applicant’s reasonable compliance with a request. The LEA endorsement is not a mandatory part of the T-visa application but will most easily satisfy the requirement that the victim had complied requests for cooperation. If the applicant does not provide an LEA endorsement, secondary evidence may include an affidavit outlining a good faith attempt to obtain an endorsement or other witness statements. The regulations require an applicant to have contact with an LEA regarding the acts of severe forms of trafficking in persons to be eligible for the T-visa. If DHS believes an applicant has not complied with a reasonable request and an LEA endorsement is furnished as part of the T-visa application, then DHS must contact the LEA in an attempt to resolve the matter.
There are several possible scenarios in which a victim may not be able to provide an LEA certification including but not limited to the following:
The LEA has not responded to a victim’s report of a trafficking incident
The LEA has not been able to complete interviews needed for them to determine that the victim is a trafficking victim
The LEA has a policy not to provide certifications or has a timeline for providing certifications
Many trafficking victims still qualify but are unable to provide LEA certifications to support their T-visa applications. This should not deter people from applying although in such cases, it is important to document the report to LEA, any ongoing communication with the LEA regarding the victim, and any other documentation that supports this requirement.
Compliance with law enforcement and reasonableness:
Applicants also may show that requests were not reasonable. The reasonableness of the request depends on the totality of the circumstances. This compliance assessment examines general law enforcement and prosecutorial practices, the nature of the victimization, and the specific circumstances of the victim, including fear, severe traumatization (both mental and physical) and the age and maturity of young victims.
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