What Are the Qualifications for U Visa Approval in Arizona?
U Visas convey four years of nonimmigrant status to the principal applicant and provide a direct path to adjustment of status for the principal and qualifying family members. Once USCIS determines the U Visa application is valid on its face, it will issue an Employment Authorization Document (EAD) to the principal and certain family members in six months. An EAD is issued automatically without having to file Form I-765 as an “incident” to U-Visa status while the holder’s Form I-485 Application to Adjust Status is pending. The holder may also apply for a Travel Document (Form I-131) while waiting to become a legal permanent resident (LPR).
This article provides a step-by-step analysis of establishing U-Visa eligibility for qualifying crimes and derivative status available for family members. If you were the victim of a crime in the U.S., helped in the investigation and prosecution of the crime, and experienced physical or mental anguish from the ordeal, you may be eligible. Contact the Arizona U-Visa nonimmigrant status lawyers of Diamondback Legal for help.
U Visa Form I-918 for Principal Petitioners and Qualifying Family Members
Before applying on Form I-918, Petition for U Nonimmigrant Status, principal applicants who were victims of crime must first have police sign Form I-918, Supplement B, U Nonimmigrant Status Certification. All law enforcement agencies should have a dedicated U Visa department to certify a veritable crime by signing Supplement B. This form also certifies that the principal applicant was helpful to investigating or prosecuting the crime. The principal’s age matters when it comes to family members who can derive U-Visa status:
- Principal petitioners over 21 may apply for only their:
- Spouse (U-2) and
- Unmarried children under 21 (U-3)
- Principals under 21 may apply for the above and:
- Parents U-4)
- Unmarried siblings under 18 (U-5)
As long as the qualifying relationship existed at the time the principal filed the U-Visa application, the noncitizen can file for qualifying family members pending approval of her own U-Visa petition or after it has been approved. Thus, while Supplement B certification is best accomplished as soon as possible, Supplement A for qualifying family members can wait. And unlike the principal, family members need not have suffered trauma from a crime or helped law enforcement investigate the crime. They can still derive U Visa nonimmigrant status and have the possibility of achieving LPR status through it.
U-Visa Qualifying Criminal Activities
USCIS and the Department of Homeland Security (DHS) only award U-Visas for qualifying crimes. The agencies want to provide an incentive to report crime, even if the whistleblower lacks immigration status. However, not all crimes are equal. Some examples of qualifying crimes include:
- Sexual abuse
- Domestic violence
- Extortion, blackmail
- Fraud in labor contracts
- Manslaughter, murder
- Rape, prostitution
- Perjury, peonage
- Stalking, trafficking
- Witness tampering
- Felonious assault
Even if noncitizens are victims of non-qualifying crimes, U-Visas contemplate “similar activity,” attempt, conspiracy, and solicitation. As such, an experienced Arizona U Visa nonimmigrant status law firm can point out similarities and instruct principal applicants how and where to seek certification. Applicants and family members need only show a violation of U.S. laws but can apply for U-Visa status outside the U.S. through consular processing at the nearest U.S. embassy.
Establishing U Visa Nonimmigrant Eligibility in Arizona
In addition to being the victim of qualifying criminal activity, U-Visa applicants must also have:
- Information about the crime
- Suffered physical or mental abuse
- Helped law enforcement investigate or prosecute
- Likelihood of aiding in detection, conviction, or sentencing
- Applied for a waiver if inadmissible to enter the U.S.
- Evidence to establish eligibility for humanitarian benefits
Congress specifically intended to give U Visas by passing the Victims of Trafficking and Violence Protection Act and the Battered Immigrant Women’s Protection Act.
Law Enforcement Officials Must Sign Certification
U-Visa petitions submitted without first filing Form I-918 Supplement B will be denied. Thus, principal applicants must go themselves to the relevant agency and get this form signed. If more than one law enforcement agency is involved, any can be the “certifying” agency. Other authorities who can sign U-Visa certifications include:
- Federal, state, or local police
- Prosecutors and judges
- Child Protective Services
- Equal Employment Commission
- U.S. Department of Labor
Any agency head or supervisor can sign Supplement B or contact USCIS with questions. The certifying agency must complete most parts of Supplement B and return the form to the petitioner, not USCIS. Petitioners should then include Supplement B in their U-Visa application. Law enforcement only requests cooperation but does not require that the crime result in an actual conviction for purposes of certification or determining U-Visa eligibility.
U-Visa Cap and WaitList
The 10,000 U-Visa cap does not apply to qualifying family members deriving status from the principal applicant. USCIS maintains a waiting list of recipients and will inform them on a first-come-first-serve basis in the fiscal year in which the U Visa becomes available.
While waiting, eligible principals enjoy the following rights:
- Deferred action (stops removal)
- Advance parole or travel if necessary
- Ability to apply for work authorization
Because of the wait, principal applicants should not wait for the EAD automatically issued an incident to U-Visa status. Instead, principals and family members should use Form I-765 to apply for EADs. In some cases, USCIS may hold off on issuing EADs until after the underlying U-Visa petition is approved. But in most others, USCIS will issue EADs after finding the initial application “bona fide” and that the principal and derivatives meet other discretionary standards.
Extending U-Visa Status in Arizona
Principal applicants must ensure their qualifying family members remain in derivative U-Visa status while applying for adjustment of status (Form I-485) because once they get green cards, their family members can no longer derive U-Visa status. U nonimmigrant status may also be extended in limited circumstances due to:
- Law enforcement request
- Exceptional circumstances
- Delays in consular processing
- Pending I-485 application
Qualifying family members can still become LPRs after the principal receives her green card if she files Form I-929 on their behalf. This is known as a Petition for Qualifying Family Members of a U-1 Nonimmigrant who has never held derivative U-Visa status.
Principal U-Visa Applicant’s Green Card Eligibility
Principal (U-1) applicants in nonimmigrant status should use Form I-485 Application to Register Permanent Residence to apply for a green card. To be eligible, the applicant must demonstrate valid U-1 status at the time of filing and meet the following criteria:
- At least three years of continuous physical presence in the U.S.
- Continuous physical presence until USCIS decides on adjustment
- U.S. presence is justified on a humanitarian basis, for family unity, or for public interest
- Merit a favorable exercise of discretion considering factors that include:
- Favorable-family ties in the U.S., hardship, length of residence
- Adverse participation in Nazi persecution, genocide, or torture
Documentary evidence showing extensive family ties and extreme hardship family members would face upon the principal’s removal are also helping to support the application. In addition to Form I-485, applicants with U-1 status should also include:
- Form I-797 Approval of Form I-918 Petition for U nonimmigrant status
- Copies of passport pages or travel documents valid while in U-1 status
- Evidence of any dates of departure from U.S. and places of return
- Law enforcement certification of required absences over 90 days
- Affidavit attesting to continuous physical presence (not absent for over 180 days)
- Proof of lawful admission as U-1 nonimmigrant and continued U-1 status
- Evidence of compliance with police’s reasonable requests for assistance
- Copy of government-issued photo identification and two passport photos
- Copy of birth certificate in country of origin or explanation why unavailable
- Form I-94 Arrival/Departure Record or Customs and Border Patrol stamp if needed
- Form I-693 Report of Medical Examination and Vaccination Record
- Certified police and court records showing criminal charges, arrests, convictions
The U-1 principal must submit Form I-485 with the applicable filing fee or request a fee waiver. The packet should be sent to USCIS by FedEx or USPS-certified mail with a return receipt.
Adjustment of Status for Derivative U-Visa Family
Spouses (U-2), children (U-3), parents (U-4), and siblings (U-5) may be eligible to adjust their status as derivative U nonimmigrant family members by filing Form I-485 with many of the same documents required for the principal including proof of:
- Physical presence at time of filing
- Lawful admission in U-2 to U-5 status before U-1 adjusted status
- Form I-797 Approval of Form I-918 Supplement A for Qualifying Family of U-1
- Passport pages or travel documents valid during derivative U visa status
- Duration and places of return for each departure
- Affidavit attesting to continuous physical presence
- Warrant favorable discretion on humanitarian, family, or public interest grounds
- Two passport photos, birth certificate, and government-issued photo identification
Family members who never held derivative U nonimmigrant status may nevertheless submit Form I-929 Petition for Qualifying Family of U-1 Nonimmigrant to apply for a green card within the U.S. or consular process abroad.
Contact U Nonimmigrant Visa Status Attorneys in Arizona Today
If you have been the victim of crime, suffered emotional anguish because of witnessing a crime, or helped law enforcement investigate, find out how to obtain a U Visa for yourself and your qualifying family by calling (602) 584-8938 or contact us online. Diamondback Legal offers free consultations and confidential case evaluations in Phoenix, Tempe, and Fort Worth, AZ.
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