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NPZ Immigration Law Blog

Thursday, September 26, 2013

U Nonimmigrant Status (U Visa) Victims of Criminal Activity, Part - II

This is the continuation of a series of articles on U nonimmigrant visas which can be granted to individuals and their families who may fall victim to many types of crime in the U.s., such as rape, murder, manslaughter, domestic violence, sexual assault, human trafficking, etc.

Q: Can a Foreign National Petition for U Nonimmigrant Status From Outside the United States?

A: Yes. USCIS has determined that the legal framework for U nonimmigrant status permits foreign national victims of criminal activity to petition for such status either inside or outside the United States.

If not admissible to enter the United States as a foreign national, an applicant for a U visa must obtain a waiver of inadmissibility through submission of a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant. This waiver is adjudicated by the Vermont Service Center of USCIS on a discretionary basis, allowing the petitioner to continue with the U nonimmigrant visa process.

Q: Is There a Cap on The Number of U Nonimmigrant Status Grants?

A: Yes. USCIS may grant no more than 10,000 U-1 nonimmigrant visas in any given fiscal year (October 1 through September 30). This does not apply to derivative family members such as spouses, children or other qualifying family members who are accompanying or following to join the principal foreign national victim.

If the cap is reached in any fiscal year before all petitions are adjudicated, USCIS will create a waiting list that will provide a mechanism by which victims cooperating with law enforcement agencies can stabilize their immigration status. Further, U nonimmigrant visa petitioners assigned to the waiting list will be given deferred action or parole while they are on the waiting list. This means they will be eligible to apply for employment authorization or travel until their petitions can be adjudicated after the start of the following fiscal year.

Q: Can Family Members of the Petitioner Receive U Nonimmigrant Status?

A: Family members who accompany the petitioner can, under certain circumstances obtain a U nonimmigrant derivative visa. The U nonimmigrant visa principal must petition on behalf of qualifying family members.

If the principle of petitioner is...

Then...

Under 21 years of age

They may petition on behalf of spouse, children, parents and unmarried siblings under age 18.

21 years of age or older

They may petition on behalf of spouse and children

 

The principal petitioner needs to file a Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient, on behalf of their qualifying family members.

Q: Can an Individual Who Has Held U Nonimmigrant Status Eventually Apply for a Green Card (Permanent Residence)?

A: Yes.

The individual must have been physically present in the United for a continuous period of at least three years since the date of admission as a U nonimmigrant,

The individual must not have unreasonably refused to provide assistance to law enforcement since receiving a U nonimmigrant visa.

The certifying agency must determine that the individual's continued presence in the country is justified on humanitarian grounds to ensure continuation of a cohesive family, or is otherwise in the national or public interest.

Q: Can Qualifying Family Members Apply for Permanent Residence (a Green Card)?

A: Yes. There are two ways family members of a U nonimmigrant visa holder can apply for a green card. First, family members who hold a derivative U nonimmigrant visa themselves may be eligible for a green card. Second, certain family members who have never held a derivative U nonimmigrant visa may be eligible for a green card.

Q: What are the Eligibility Requirements for Qualifying Family Members Who Have Never Held U Nonimmigrant Status to be Granted Permanent Resident Status?

A: The law allows USCIS to extend these benefits to spouses, children, and parents based upon their relationship to the principal U ("U-1") nonimmigrant if:
• The qualifying family member was never admitted to the United States in U nonimmigrant status, and

• It is established that either the family member or the U-1 principal applicant would suffer extreme hardship if the qualifying family member is not allowed to remain in or be admitted to the United States.

Q: What are the Procedures for Qualifying Family Members to Apply for Permanent Residency?

A: Family members with derivative U nonimmigrant visas may apply for green cards if the U-1 has met the eligibility requirements for permanent residence and the U-1's application for adjustment of status was approved, is currently pending, or is filed at the same time.

To apply for a green card, qualifying family members with a derivative U nonimmigrant status must file a Form I-485, Application to Register Permanent Residence or Adjust Status. For detailed instructions and requirements about filing for a green card please refer to special instructions on Form I-485, Supplement E.

To apply for permanent residence for family members who have never held a derivative U nonimmigrant visa, the U-1 status holder must file an immigrant petition on Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant, concurrently or subsequent to filing their Form I-485, Application for Adjustment of Status. If the Form I-929 is approved, qualifying family members in the United States may file a Form I-485. Qualifying family members outside the United States may visit a U.S. embassy or consulate to obtain their immigrant visas.


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