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Immigration Options for Victims of Crimes

ISLAW SLIDE 1NOTICE: The information contained on this page site is intended to educate the general public and is not intended to provide legal advice. To ensure proper handling of your individual situation, please contact I.S. Law Firm.

Overview

Unfortunately, sometimes immigrants become victims of various crimes. The United States government has acknowledged that immigrants can be particularly vulnerable to crimes including human trafficking, domestic violence and child abuse, due to language barrier, separation from family and friends, lack of understanding of U.S. laws, fear of deportation or law enforcement, and cultural differences.

Many immigrants are fearful of admitting that they have been a victim of a crime in part because they believe they will be removed (deported) from the United States if they report the crime. U.S. law provides several protections for legal and undocumented immigrants who have been victims of a crime. There are specific protections for victims of domestic violence, victims of certain crimes, and victims of human trafficking.

The most common types of relief for immigrant victims of crimes are T non-immigrant status, U non-immigrant status, and relief under Violence Against Women Act (VAWA).

T Nonimmigrant Status

In October 2000, Congress created the T nonimmigrant status by passing the Victims of Trafficking and Violence Protection Act (VTVPA). The legislation strengthens the ability of law enforcement agencies to investigate and prosecute human trafficking, and also offer protection to victims.

Trafficking in persons – also known as “human trafficking” – is a form of modern-day slavery. Traffickers prey on many types of people, often including individuals who are poor, unemployed, underemployed, or who lack the safety and protection of strong social networks. Victims are often lured under the false pretenses of good jobs and better lives, and then forced to work under brutal and inhumane conditions. Many believe that human trafficking is a problem that only occurs in other countries – but human trafficking also happens in the United States.

The T nonimmigrant status (or T visa) provides immigration protection to victims of severe forms of trafficking in persons who assist law enforcement in the investigation and prosecution of human trafficking cases.

T Nonimmigrant Eligibility

To be eligible for T status, you are not required to be in legal immigration status. Even if you are undocumented, you may be eligible for a T visa if you:

• Are or were a victim of trafficking, as defined by law;
• Are in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking;
• Comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (or you are under the age of 18, or you are unable to cooperate due to physical or psychological trauma resulting from trafficking);
• Demonstrate that you would suffer extreme hardship involving unusual and severe harm if you were removed from the United States;
• Are admissible to the United States. (If not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant.)

Applying for T Nonimmigrant Status

To apply for T status, you need to submit:

• Form I-914, Application for T Nonimmigrant Status;
• Three passport size photographs;
• A personal statement explaining how you were a victim of trafficking (on the Form I-914);
• Evidence to show you the meet eligibility requirements.

Applicants are also strongly encouraged to submit Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, to show law enforcement agency support. Form I-914, Supplement B serves as primary evidence that you are a victim of trafficking and that you have complied with reasonable requests from law enforcement.

Filing for Qualifying Family Members

Certain qualifying family members are eligible for a derivative T status.

If you are under 21 years of age, you may apply on behalf of your spouse, children, parents and unmarried siblings under age 18.

If you are 21 years of age or older, you may apply on behalf of your spouse and children.

To apply for a qualified family member, you must file a Form I-914, Supplement A, Application for Immediate Family Member of T-1 Recipient, at the same time as your application or at a later time.

Filing for Green-Card after T Status

The T status also allows victims to remain in the United States and assist federal authorities in the investigation and prosecution of human trafficking cases. Those who have been granted T nonimmigrant status may file for a green card (permanent residence) after meeting certain requirements.

To apply for a green card as a T-1 nonimmigrant (principal), you must meet the following conditions:

• You have been physically present in the United States for:
– A continuous period of at least 3 years since the first date of admission as a T-1 nonimmigrant;
– A continuous period during the investigation or prosecution of acts of trafficking, and the Attorney General has determined the investigation or prosecution is complete, whichever period of time is less.
• You have been a person of good moral character since first being admitted as a T-1 nonimmigrant and until the decision on your green-card application, Form I-485 (Application to Adjust Status);
• You have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking since first being admitted as a T-1 nonimmigrant and until a decision on your Form I-485;
• You would suffer extreme hardship involving unusual and severe harm upon removal from the United States;
• You are admissible to the United States as a permanent resident.

You can apply for a green card AFTER you have held T nonimmigrant status for three years. If you file before meeting the three year status requirement your application will be denied, unless you have submitted a certification from the Attorney General that the investigation or prosecution is complete.

To obtain a green card, you must file Form I-485, Application to Register Permanent Residence or Adjust Status.

Information for Family Members of T Status Holders

If you are a family member who was granted derivative T nonimmigrant status, you are eligible to apply for a green card if:

• You are the family member of a T-1 principal applicant;
• You are in lawful T-2, T-3, T-4, or T-5 derivative nonimmigrant status;
• The T-1 principal applicant’s Form I-485 application is currently pending, or is being filed at the same time as your I-485 application;
• The T-1 principal meets the eligibility requirements for adjustment of status (green card);
• You are admissible to the United States as a permanent resident.

After you have been a green-card holder for 5 years, you can apply for U.S. citizenship.

U Nonimmigrant Status

Congress created the U nonimmigrant status with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. The legislation also helps law enforcement agencies to better serve victims of crimes.

Although U non-immigrant status is often referred to us “U non-immigrant visa”, technically, when you are granted U status while you are in the United States, you are only given a status, not a visa. Therefore, if you leave the United States while in U status, you will need to obtain a U visa from a U.S. Consulate abroad in order to be able to return to the United States.

U Nonimmigrant Eligibility

You may be eligible for a U nonimmigrant status if:

• You are the victim of qualifying criminal activity;
• You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;
• You have information about the criminal activity; (If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or “next friend” – an individual who acts on your behalf because you do not have the legal capacity to act on your own behalf – may possess the information about the crime on your behalf.)
• You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime; (If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.)
• The crime occurred in the United States or violated U.S. laws;
• You are admissible to the United States. (If you are not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant. The unique feature of U Nonimmigrant Status is that it provides an opportunity to waive, with some restrictions, almost all common grounds of inadmissibility. For example, entry without inspection, receipt of public benefits, “alien” smuggling, and some other violations may be waived if it is determined that the alien’s presence in the United States is in national or public interest. Some criminal grounds of inadmissibility may be waived if the applicant shows rehabilitation. Even violent or dangerous criminal history may be waived if applicant can show “exceptional circumstances”. The only grounds of inadmissibility that can never be waived for U status are involvement in Nazi persecution, Genocide, Torture, or Extrajudicial Execution.)

Qualifying Criminal Activities

Victims of the following crimes may be eligible for U status:

Abduction
Abusive Sexual Content
Blackmail
Domestic Violence
Extortion
False Imprisonment
Female Genital Mutilation
Felonious Assault
Hostage
Incest
Involuntary Servitude
Kidnapping
Manslaughter
Murder
Obstruction of Justice
Peonage
Perjury
Prostitution
Rape
Sexual Assault
Sexual Exploitation
Slave Trade
Torture
Trafficking
Witness Tampering
Unlawful Criminal Restraint
Other Related Crimes

Applying for U Nonimmigrant Status

To apply for a U nonimmigrant status, you need to submit:

• Form I-918, Petition for U Nonimmigrant Status;
• Form I-918, Supplement B, U Nonimmigrant Status Certification, on which a law enforcement official confirms that you were or will likely be helpful in the prosecution of the case;
• A personal statement describing the criminal activity of which you were a victim;
• Evidence to establish each eligibility requirement.

Filing for Qualifying Family Members

Certain qualifying family members are eligible for a derivative U visa.

If you are under 21 years of age, you may petition on behalf of your spouse, children, parents and unmarried siblings under age 18.

If you are 21 years of age or older, you may apply on behalf of your spouse and children.

To petition for a qualified family member, you must file a Form I-918, Supplement A, Petition for Immediate Family Member of U-1 Recipient, at the same time as your application or at a later time.

Filing for Green-Card after U Status

Those who have been granted U nonimmigrant status may file for a green card (permanent residence) using Form I-485, Application to Register Permanent Residence or Adjust Status, after meeting certain requirements.

To apply for a green card as a U nonimmigrant, you must meet the following conditions:

• You have been physically present in the United States for a continuous period of at least 3 years since the first date of admission as a U nonimmigrant and continue to hold that status at the time of application for adjustment of status;
• You have not unreasonably refused to provide assistance in the criminal investigation or prosecution;
• You are not inadmissible under section 212(a)(3)(E) of the Immigration Nationality Act (participation in Nazi Persecution, Genocide, Torture, or Extrajudicial Killings);
• You establish your presence in the United States is justified on humanitarian grounds, to ensure family unity or is in the public interest.

To obtain a green card, you must file Form I-485, Application to Register Permanent Residence or Adjust Status. You also must concurrently file a Report of Medical Examination and Vaccination Record, Form I-693.

After you have been a green-card holder for 5 years, you can apply for U.S. citizenship.

Information for Family Members of U Status Holders

If you are a family member of a U nonimmigrant, you may be eligible to apply for a green card.

If you are a family member with derivative U nonimmigrant status, you may apply for a green card at the same time with your principal U status holder family member. To apply for a green card, qualifying family members with a derivative U visa must file Form I-485, Application to Register Permanent Residence or Adjust Status.

If you are a spouse, child, or parent (but not a sibling) of a U Status holder, but you have never held derivative U Nonimmigrant Status, you may be eligible to receive a green-card based on your relationship to the principal U-1 nonimmigrant who is applying for a green card if:

• You were never admitted to the United States in U nonimmigrant status;
• Either you or the U-1 principal applicant would suffer extreme hardship if you are not allowed to remain in or be admitted to the United States.

If you are a qualifying family member of a U status holder who never held derivative U non-immigrant status, and you live outside of the United States, you can visit a U.S. Embassy or consulate to obtain their immigrant visas. You cannot file Form I-485 if you are outside the United States.

If you are a qualifying family member of a U status holder who never held derivative U non-immigrant status, and you live in the United States, then the U-1 status holder must file an immigrant petition on Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant, at the same time or after the U-1 status holder files his or her Form I-485. If Form I-929 is approved on your behalf, you can file Form I-485 to apply for a green card.

Principal U status holders cannot file a Form I-485 on behalf of the family member concurrently with the I-929. USCIS must approve the principal’s Form I-485 prior to the approval of Form I-929 for the family member. If the principal’s Form I-485 is denied, Form I-929 for the family member will automatically be denied.

Violence Against Women Act (VAWA)

The Immigration and Nationality Act (INA) includes provisions to assist foreign nationals who have been victims of domestic abuse. These provisions, initially enacted by Congress with the Immigration Act of 1990 and the Violence Against Women Act (VAWA) of 1994, afford benefits to abused foreign nationals and allow them to self-petition for lawful permanent resident status (green-card) independently of their U.S. citizen or green-card holder relatives who originally sponsored them. Congress reauthorized VAWA with the Battered Immigrant Women Protection Act of 2000, which also created the U visa for foreign national victims of a range of crimes – including domestic abuse – who assisted law enforcement. A second reauthorization in 2005 added protections and expanded eligibility for abused foreign nationals.

Recognizing that immigrant victims of domestic violence may remain in an abusive relationship because their immigration status is often tied to their abuser, the U.S. Congress has addressed this problem by establishing VAWA immigration relief program, which removes control from the abuser by allowing the victim to submit his or her own application (Form I-360) that is filed without the abuser’s knowledge or consent.

VAWA Eligibility

The following victims of domestic violence may file for immigration relief under VAWA:

• The abused spouse of a U.S. Citizen or Legal Permanent Resident (child may be included as a derivative beneficiary);
• The abused child of a U.S. Citizen or Legal Permanent Resident (the spouse of a U.S. Citizen or Legal Permanent Resident, whose child has been abused, may file a self-petition based on the abuse of the child. In this case, the parent files based on abuse of the child, but both parent and child benefit);
• The abused parent of a U.S. Citizen.

In order to be eligible for immigration relief under VAWA a victim must:

• Have in the present or past a qualifying relationship to the abuser (for abused spouses, marriage must be in good faith);
• Be subjected to battery or extreme cruelty by the abuser;
• Reside in the present or past with the abuser;
• Possess good moral character.

Application and Benefits under VAWA

Benefits of immigration relief under VAWA include:

• Ability to self-petition (no need for sponsor);
• Changes to the abuser’s immigration status after filing a self-petition will not adversely affect victim’s self-petition;
• After the approval, the victim can be placed in deferred action to prevent removal from the U.S.;
• After the approval, the victim can work in the U.S.;
• Remarriage of the VAWA self-petitioner after approval of the self-petition is not a ground for revocation of the approved self-petition;
• Ability to adjust status to lawful permanent resident: immediate relatives of U.S. Citizens (spouses, children, and parents) can file for adjustment at the same time they file their VAWA self-petition; preference category individuals (spouses and children of Legal Permanent Residents) can file for adjustment when their visa priority number becomes available.

If you receive a green-card based on your VAWA self-petition, you can apply for U.S. citizenship after you have been a green-card holder for 5 years.

VAWA Approval for Abused Spouse of US Citizen

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