Enhancements to U Category Help to Better Protect Crime Victims23 Jul 2014
The U nonimmigrant category provides immigration benefits to foreign nationals who have been the victims of certain serious crimes. These individuals may be able to obtain immigration benefits under the U nonimmigrant category by assisting U.S. law enforcement in its efforts to prosecute the perpetrator/s of said crime. On June 15, 2014, the U.S. Citizenship and Immigration Services (USCIS) released an interim policy memorandum to provide guidance on changes made to the program in March 2013. The USCIS will take public comments on the interim memo until August 8, 2014, but it is effective immediately.
Background on the U Program
The U category was created as part of the Victims of Trafficking and Violence Prevention Act of 2000, but was not implemented until 2008. More than 89,600 foreign nationals have received U status since that time. Each year, 10,000 U visas are available to help victims of certain categories of crimes who have suffered substantial mental and/or physical abuse and are willing to help law enforcement agencies investigate the crimes. More information on this nonimmigrant category is available in the MurthyDotCom NewsBrief, DOL to Certify U Visa Application (02.Apr.2010).
U Program Changes Effective Immediately
On March 7, 2013, President Obama signed legislation to re-authorize the Violence Against Women’s Act (VAWA). This bill included some changes to the U program, which expanded the categories of crimes covered, and provided additional “age out” protections for dependents.
Victims of Certain Types of Crimes Eligible for U Status
The law regarding the U category does not contain a list of specific state or federal laws that, if violated, would qualify someone to seek U status. Instead, the law provides that victims of more than 20 different types of crimes, such as rape, domestic violence, involuntary servitude, and abduction, or any similar activity in violation of criminal laws, can qualify. The 2013 VAWA reauthorization added two additional types of crimes to the list: stalking and fraud in foreign labor contracting.
Age-Out Protections for Children of Victims
The U program allows certain family members of the crime victim to obtain derivative (dependent) benefits. The qualification as a derivative depends, in part, upon whether the principal applicant is over 21 years of age. This creates unique complexities with respect to the issue of aging out. Additionally, with the annual quota of U visas being used quickly each year, and a growing backlog of pending cases, aging-out became an even greater concern. The USCIS addressed this risk through an interim policy memorandum released on October 24, 2012, entitled Age-Out Protection for Derivative U Nonimmigrant Status Holders: Pending Petitions, Initial Approvals, and Extensions of Status. Unfortunately, this USCIS guidance did not help those individuals who turned 21 while the U sponsor’s petition remained pending.
VAWA’s Greater Protections and Retroactivity
The VAWA reauthorization added specific age-out protections to derivatives while the petition is pending. As of March 7, 2013, when the principal petitioner for U status properly files a petition, the age of the qualifying family members is established as of the petition filing date. As long as a U visa derivative applicant child remains unmarried, that child will be considered under 21 years of age and remain eligible for U status while the principal’s petition remains pending. Further, this change in VAWA is retroactive, so derivate petitions that would otherwise have been disqualified because the primary applicant turned 21, potentially now, may be approved for U status.
Public Charge Exemptions for U Applicants
The U category ultimately allows eligible individuals to apply for permanent resident (“green card”) status. However, some of these applicants faced yet another hurdle due to having received public benefits. As explained in this interim memo, the VAWA reauthorization amended the U category so that, unlike most other green card applicants, the “public charge” ground of inadmissibility does not apply to any foreign national who is petitioning for or has been granted primary or derivative U nonimmigrant status.
The U category is an important program designed to help an extremely vulnerable group, while simultaneously helping law enforcement pursue bad actors. The Murthy Law Firm will continue to track changes to the U program and provide updates for the benefit of MurthyDotCom readers as new information becomes available.
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