EXPLAINER U VISA: GUIDANCE FOR LOCAL LAW ENFORCEMENT AND INVESTIGATIVE BODIES

Transcription

1 Updated April 2018 U VISA: GUIDANCE FOR LOCAL LAW ENFORCEMENT AND INVESTIGATIVE BODIES by Kendra Sena * EXPLAINER Introduction Immigrants, especially women and children, can be particularly vulnerable to serious crimes like human trafficking, domestic violence, sexual assault, and wage theft. 1 Those without lawful status may be reluctant to report crimes to law enforcement or to assist in the investigation or prosecution of crimes for a variety of reasons, including fear of deportation. 2 To support law enforcement in the prosecution of crimes committed against immigrants, and to facilitate the reporting of those crimes, Congress created the U Visa. 3 A U Visa is a temporary visa for victims of certain crimes who have been helpful in the investigation or prosecution of the crime. The purpose of the U Visa is to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute certain serious crimes and to protect victims. 4 State and local law enforcement and investigative bodies, such as police, sheriffs, protective service agencies, prosecutors, as well as state and local judges, can help a person apply for a U Visa by certifying that the person was a victim of a crime and is, has been, or is willing to be helpful in the investigation or prosecution of a crime. Such certification is necessary but not sufficient to obtain a U Visa; the Department of Homeland Security (DHS), through U.S. Citizenship & Immigration Services (USCIS), makes the final determination whether to issue a U Visa to an applicant. The U Visa is an important tool for local governments to build trust with immigrant crime victims and communities and to strengthen enforcement efforts against those who target immigrants. This explainer gives an overview of the U Visa and the role of state and local government officials in the U Visa process. I. What is a U Visa? A U Visa is a form of relief that the federal government can grant to victims of certain crimes who have been helpful or are likely to be helpful in the detection, investigation, or prosecution of criminal activity. A U Visa allows a person to remain in the U.S. for up to four years and gives them access to certain benefits, including the right to work. The U Visa does not confer permanent immigration status; only after several years, and if certain conditions are met, may the person apply for Lawful Permanent Resident (LPR) status (i.e., a green card ), which may provide a pathway to citizenship. II. What role do state and local government officials play? State and local enforcement and investigative bodies have a limited but critical role in the U Visa process. To apply for a U Visa, a person 1 GOVERNMENT LAW CENTER AT ALBANY LAW SCHOOL

2 must submit, among other things, a certification that they have been the victim of a crime and have been helpful in the investigation or prosecution of a crime. A state or local enforcement or investigative body may certify as much by completing a certification form. The U Visa certification is a required form that the applicant must include in the U Visa application. But the certification alone is not determinative of U Visa eligibility, and does not itself confer any status or benefit on the applicant. Nor does it speak to the character of the applicant, their eligibility for a visa, or express an opinion as to whether a U Visa should be granted. Instead, the certification serves a limited and targeted purpose: to verify that the person applying for the visa has been a victim and that they have been, are being, or are likely to be helpful in the detection, investigation, prosecution, conviction, or sentencing of criminal activity. 5 USCIS, the federal agency charged with reviewing visa applications, makes the final decision regarding U Visa eligibility and issuance. [B]y signing a U visa certification, the certifying agency, official, or judge is not sponsoring or endorsing the victim for a U visa, and the completed certification does not guarantee that USCIS will approve the U visa petition. USCIS considers the U visa certification as only one part of the evidence in support of the U visa petition. USCIS determines the victim s credibility and whether to approve the petition based on the totality of the evidence and circumstances of each case. -- Department of Homeland Security, U and T Visa Law Enforcement Resource Guide, Last updated Jan. 8, 2016 A person cannot apply for a U Visa without a certification from an enforcement or investigative body. Thus, while the role of state and local government in the U Visa process is limited, the role is crucial. The decision whether to sign a certification is that of the certifying body. It is therefore important that local governments establish policies and procedures regarding U Visa certification. III. Process for certifying a U Visa To be eligible for a U Visa, an applicant must submit Form I-918, Supplement B, completed by a certifying agency. The form and its instructions are available on the USCIS website at The form must be signed by an official from a certifying agency, and verifies that the applicant was the victim of a qualifying crime, and has been helpful or is likely to be helpful in the investigation or prosecution of criminal activity. Certifying agencies include state and local bodies responsible for the investigation, prosecution, conviction, or sentencing of the criminal activity, and include (but are not limited to): Federal, state, and local law enforcement agencies; Federal, state, and local prosecutors offices; Federal, state, and local judges; Federal, state, and local family protective services; Federal and state Departments of Labor; Other investigative agencies. 6 The official providing the certification must be: The head of the certifying agency; An official in a supervisory role who has been specifically designated 7 by the head of the certifying agency to issue U Visa certifications on behalf of that agency; or A federal, state, or local judge. 8 2 GOVERNMENT LAW CENTER AT ALBANY LAW SCHOOL

3 Qualifying crime or qualifying criminal activity includes one or more of the following in violation of Federal, State or local criminal law of the United States: Abduction Blackmail Extortion Felonious assault Fraud in foreign labor contracting Incest Kidnapping Murder Peonage Prostitution Sexual assault Slave trade Torture Unlawful criminal restraint Abusive sexual contact Domestic violence False imprisonment Female genital mutilation Hostage-taking Involuntary servitude Manslaughter Obstruction of justice Perjury Rape Sexual exploitation Stalking Trafficking Witness tampering Qualifying crimes also include "any similar activity," meaning criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities. Also included is an attempt, conspiracy, or solicitation to commit any of the above and other related crimes. 9 Helpfulness standard. Helpfulness means the victim possesses information that was, is, or is likely to assist law enforcement or an investigative body in the investigation or prosecution of a crime of which they are the victim. A current investigation, the filing of charges, a prosecution or conviction are not required in order for a victim of a crime to have been helpful. Reporting a crime, even where arrest or prosecution is impossible when the perpetrator has fled, for example is still helpful. In the case of a victim of a crime who is under the age of 16 when the crime first occurs, a parent, guardian or next friend of the child may provide the required assistance. 10 A next friend is a person who appears in a lawsuit to act for the benefit of an immigrant who is a child, or is incapacitated or incompetent, or who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. 11 The next friend is not a party to the legal proceeding and is not appointed as a guardian. 12 USCIS review. In addition to the certification form, a person seeking a U Visa must submit an application form (I-918, Petition for U Nonimmigrant Status ) and considerable supporting materials. The applicant must show that they have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime, and that they are admissible to the United States. Note that the BEST PRACTICES 1. Establish a formal policy regarding U Visas for your local government, enforcement body, court, or agency. Train first responders, officers, and other personnel on U Visa eligibility and the process for certifying a U Visa application. 2. Conduct outreach to immigrant communities and their advocates explaining the U Visa and the agency s role in certifying U Visa applications. 3. Ensure fairness by implementing a review process for U Visa certification requests. 3 GOVERNMENT LAW CENTER AT ALBANY LAW SCHOOL

4 certifying agency does not have to certify that the victim suffered substantial abuse, nor that they are admissible; the certification form speaks only to the fact that the applicant has been a victim of a qualifying crime and that they are willing to be helpful in the investigation or prosecution of the crime. As part of its review of the U Visa application, USCIS conducts a thorough background investigation, Federal Bureau of Investigation (FBI) fingerprint and name checks, and a review of the applicant s criminal history, immigration history, and other background information. 13 USCIS may request additional information from the applicant or certifying agency if questions arise. 14 The number of U Visas that can be awarded in any year is limited by statute to 10, Once that cap is reached, applicants are put on a waiting list. 16 An analysis of recent adjudications puts the current wait time at over two years for review and placement on the waiting list. 17 Conclusion The U Visa is an important tool for local governments to strengthen enforcement efforts against criminals who target immigrants. A strong policy favoring U Visa certifications in appropriate cases communicates to immigrant communities a commitment to protecting victims of crime. Police departments, sheriffs departments, prosecutors, protective service agencies, and state and local judges play a vital role in building trust with immigrant communities in order to increase public safety and the effectiveness of the justice system. RESOURCES The Department of Homeland Security (DHS) has issued a Resource Guide for Federal, State, Local, Tribal, and Territorial Law Enforcement, that includes a helpful FAQ, available at: For an excellent guide for local law enforcement and prosecutors, including a model policy and sample outreach materials, see: /pubs/uvisatoolkit-police-proscutors/ A useful step-by-step guide for family court judges and other judges in NY can be found at: wpcontent/uploads/sites/2/2017/04/uvisacertificationguidance.pdf For a compelling case study of one police department s experience with U Visas, see: ocs/subject_to_debate/debate2017/ debate_2017_junaug.pdf For more information about state and local governments role in immigration law, visit our website: albanylaw.edu/glc/immigration 4 GOVERNMENT LAW CENTER AT ALBANY LAW SCHOOL

5 ENDNOTES * Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School. 1 The Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No , 114 Stat (2000) (codified as amended in various sections of the U.S.C.) [hereinafter VTVPA]. 2 DEP T OF HOMELAND SEC., U and T Visa Law Enforcement Resource Guide, (last updated Jan. 8, 2016), Resource%20Guide_ pdf [hereinafter DHS Resource Guide]. 3 See VTVPA at VTVPA at 1533 ( The purpose of this section is to create a new nonimmigrant visa classification that will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. ). 5 8 U.S.C. 1184(a)(15)(U). 6 8 C.F.R (a)(2). 7 In the case of a designated official, USCIS recommends including a letter signed by the agency head that reflects that person with a particular rank or title within the agency has been designated a signing official. See DHS Resource Guide. 8 8 C.F.R (a)(3)(i-ii). 9 8 U.S.C. (a)(15)(u)(iii) C.F.R (b)(2) C.F.R (a)(7). 12 Id. 13 DHS Resource Guide. 14 Id U.S.C. 1184(p)(2). Certain immediate family members of U Visa recipients may also be eligible for a derivative U Visa. See 8 U.S.C. 1101(a)(15)(U)(ii) C.F.R (d)(2). 17 Sarah Bronstein, Changes to U Visa processing in Fiscal Year 2017, Catholic Legal Immigration Network, Inc. (CLINIC), 5 GOVERNMENT LAW CENTER AT ALBANY LAW SCHOOL