The ABC

In 2002, Congress passed the Victims of Trafficking and Violence Protection Act (VTVPA). The VTVPA created a special nonimmigrant classification designated as the U visa for victims of specific crimes. This article addresses the requirements and issues for potential U visa applicants.

Although the VTVPA created the U visa five years ago, the actual visa will not be available until the Department of Homeland Security promulgates regulations for issuance for the U visa. In the meantime, "U visa interim relief" allows for deferred action and work authorization. This means that those persons who wish to apply may submit applications for the U visa to the USCIS Vermont Service Center (USCIS VSC). The USCIS should defer action on the alien's current presence in the United States subject to interim review by the USCIS.

Still, controversy over the five-year delay in issuing regulations has arisen in federal courts. A coalition of civil rights organizational plaintiffs and nine individual immigrant plaintiffs filed suit against the Department of Homeland Security (DHS) Secretary Michael Chertoff challenging the USCIS failure to adjudicate U visa applications and issue U visas to eligible immigrant applicants. Despite multiple written requests by the individual plaintiffs, who were victims of crimes listed in the VTVPA and who assisted law enforcement officials in the investigation and the prosecution of the offenders, the Defendants have not responded by providing the requested relief which includes providing the regulations and issuing the U visas. In addition to the relief stated in the suit and in the ignored requests, Plaintiffs' class counsel recommends that new applications should be accompanied by cover letters that state the applicant is prima facie eligible for a U visa and that the applicant requests prompt regulations for the issuance of the U visa with guidelines, the issuance of a U visa while requesting "deferred action" only if the USCIS refuses to issue the U visa.

In response to the lawsuit against Secretary Chertoff, Congresswoman Sheila Jackson Lee (D-TX), who recently proposed major immigration reform legislation to Congress, publicly expressed her shock that the DHS has failed to promulgate regulations for the U visa which took only a couple of months for Congress to debate and implement. The U visa reflects public policy concerns upheld by Congress to provide humanitarian relief to victims of certain crimes and to bring dangerous criminals to justice.

For more information on this lawsuit, please visit the Center for Human Rights and Constitutional Law (CHRCL) website for immigrants' rights at http://www.vocesunidas.org

Currently, the interim relief U visa is available to those who meet all four basic requirements as follows:

1. Aliens who can show substantial suffering as the result of physical or mental abuse as

3. Aliens who have been, or is being, or will be helpful or is likely to be helpful to

4. The criminal activity described violated the laws of the US and occurred in the US or

in territories of the US . Criminal activity in violation of Federal, State, or local

criminal law includes rape; torture; trafficking; incest; domestic violence; sexual

assault; abusive sexual contact; being held hostage, female genital mutilation; sexual

exploitation; prostitution; peonage; unlawful criminal restraint; abduction; kidnapping;

manslaughter; murder; felonious assault; witness tampering; obstruction of justice

Although no particular form is required for the U visa application, each application will require certain documentation depending on the nature of the case. Application cover letters should clearly state the applicant's basis for requesting the U visa and explain why each submitted document is relevant. The application should include a declaration by the applicant describing the abuse or criminal activity suffered by the applicant relevant to the U visa eligibility. The applicant must give all personal information such as personal identification, copies of passports, birth certificates (translated) and I-94 documents for all persons applying for both the U visa and the derivative U visa.

What forms of evidence are required by the USCIS VSC for determination of the U visa application?

The application must include law enforcement certification which can be obtained during the investigation or prosecution of the criminal activity. The certification must come from a Federal, State, or local law enforcement official, prosecutor, judge investigating or prosecuting the criminal activity. Since no official certification form exists, a letter or other form created by the applicant’s representative will be sufficient, but must be signed by the law enforcement official within the past six months and must include the following statements by the certifying official:

· Verification that the person is useful or likely to be useful in the investigation or the prosecution of the criminal activity.

In cases involving substantial physical and/or mental abuse, the applicant include a personal declaration describing the abuse, photos documenting the abuse, medical reports, declarations by witnesses, law enforcement officials or medical officials, or any other evidence that documents the stated abuses suffered by the applicant.

Due to prior inconsistencies in the determination of the U Visa, the USCIS Vermont Service Center (USCIS VSC) is the designated "clearing house" for U visa applications. For more information on the USCIS VSC, please visit http://uscis.gov/graphics/fieldoffices/stalbans/aboutus.htm#anchor1618781.

Even though the U visa is not an immigrant status, the alien who has received deferred action may apply for work authorization by filing Form I-765, Application for Employment Authorization. Such authorization is subject to yearly review.

What is the duration of interim relief U status once eligibility for deferred action is found?

VSC officers will conduct interim reviews of the deferred action cases to determine if there has been any change in the circumstances of the case. Upon these reviews, VSC officers will determine whether the interim relief U status should be continued or terminated.

Interim relief U status can be terminated for changes of circumstances in the case so that it no longer warrants deferred action. Furthermore, interim relief U status can be terminated for conduct or a condition that was not disclosed prior to issuance of interim relief.

Determinations of termination of the interim relief U Status cannot be appealed. Termination cancels the deferred action and revokes related work authorization.

Can aliens in removal proceedings and with final removal orders apply for the U visa?

The VSC does not have jurisdiction to assess deferred action for individuals who in removal proceedings or who have final orders of removal.

To avoid extreme hardship, the VTVPA allows interim relief U status for applicants' spouses, children and parents of those U visa applicants under the age of 16. Applicants for the derivative status must provide certification from a government official that an investigation or prosecution would be harmed without the assistance of the derivative applicant. Those family members eligible for interim relief U status who are present in the United States must also demonstrate extreme hardship if removed.

[1] The fact that the criminal activity occurred years prior to the current request, or that the case in which the applicant was victim is currently closed, are not determinative factors in determination at this stage. See ”Centralization of Interim Relief for U Nonimmigrants Status Applicants” By William Yates, Associate Director of the USCIS dated October 8, 2003 .