T AND U VISAS Detail
“T” and “U” visas are created by Congress to encourage the victims of certain serious crimes to cooperate with the law enforcement officials who prosecute criminal offenders. Not all types of crime qualifies the victim for either T or U visa; but both these visas include the qualifying crime of human trafficking.
The United States Citizenship and Immigration Services (USCIS) helps protect victims of human trafficking and other crimes through the U and T visa, serving as immigration relief. Anyone is susceptible to falling prey to these offenses– and it is by these immigration reliefs that the U.S. aims to help alleviate these crimes.
The Congress created the “T” nonimmigrant status through the Victims of Trafficking and Violence Protection Act, aiming to strengthen the ability of law enforcement agencies to investigate and prosecute human trafficking, as well as to protect its victims.
What is Human Trafficking?
As defined under the U.S. law, Human Trafficking is defined based on the 2000 U.N. Protocol to Prevent, Suppress, and Punish trafficking in Persons. Elements of this crime fall into three categories:
- Process: recruitment, transportation, transferring, harboring, or receiving of a person.
- Ways and Means: threat, coercion, abduction, fraud, deceit, deception, or abuse of power.
- Goal: prostitution, pornography, violence and sexual exploitation, forced labor, involuntary servitude, debt bondage, or slavery
For adults to qualify as victims of human trafficking, they must prove that the crime to which they have been subjected to involved at least one element from the categories while child victims need only show an element from the Process and Goal categories.
For instance, an adult woman who was promised a legitimate job in the U.S. as a nanny, and upon arriving was subject to involuntary servitude as her passport has been taken away and is not paid for work done, is a form of human trafficking. This is because it may be deemed that she was recruited and received in the U.S. by fraud, deception, and abuse of power with the goal of submitting her into involuntary servitude.
A child brought into the U.S. to participate in taking pornographic photographs also qualifies. He/she was brought to the U.S. for child pornography.
Who qualifies for a T Visa?
To qualify for a T visa, the applicant must be present in the U.S. as a result of human trafficking. In this regard, T visa differs from U visa as the latter may have visited the U.S. for vacation, leisure, or any other purpose; and then have been subject to human trafficking or other qualifying crimes.
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)
- 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
In most cases, those qualified for a T visa were brought to the U.S. because the latter have been recruited, forced, abducted, or deceived by the trafficker and would not have been present in the U.S. if it were not for the action of trafficker.
It is not necessary that the victim “knew” that he or she would be subject to slavery or prostitution, or any other form of human trafficking, upon arrival to the U.S. In some cases, the victim was brought to the U.S. in the pretext of a legitimate job or activity; and later on discovers that he or she was subject to any form of human trafficking.
Applicants for T visas must not refuse a reasonable request to cooperate with law enforcers in the investigation and prosecution of the crime of human trafficking. There are exceptions though to this cooperation requirement:
- If the victim is a minor child or under the age of 18; or
- If the victim is unable to cooperate due to physical or psychological trauma.
T visa applicants are strongly encouraged to obtain a declaration from a law enforcement officer as primary evidence that they are victims of human trafficking crime along with their application. While technically not a part of the requirements, this can increase your chances of successfully obtaining a T visa. The victim’s willingness and cooperation with the law enforcers, government agencies, and other prosecuting officials is a good way to be favorably considered by the USCIS.
In addition to this, T visa applicants may likewise need not provide documentation of physical or mental abuse; though it will be helpful to do so establish a more convincing case. However, T visa applicants may have to show that their removal from the U.S, would cause “extreme hardship involving unusual and extreme harm.”. While the latter is difficult to prove, the following evidence may prove that the victim would suffer if forced to leave the U.S. because:
- The victim has medical needs (due to the trafficking crime or for other reasons) that cannot be met in his or her home country because of a lack of medical or psychological services
- The victim’s country’s government will not protect him/her from further harm or prosecute the trafficking offenders
- The victime would be stigmatized in his/her home country as a result of being a trafficking victim, or
because of any other factors particular to the case of the victim.
Applying for T Nonimmigrant Status
To apply for a T visa, the victim must 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 for T Nonimmigrant status are 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 the applicant is a victim of trafficking and that he/she have complied with reasonable requests from law enforcement.
Filing for Qualifying Family Members
Certain qualifying family members are eligible for a derivative T visa.
- If the victim is under 21 years of age, he/she may apply on the behalf of his/her spouse, children, parents, and unmarried brothers or sisters under 18 years of age.
- If the victim is over 21 years of age, he/she may apply on behalf of his/her spouse and children only.
To apply for a family member, the victim must file a Form I-914, Supplement A, Application for Immediate Family Member of T-1 Recipient, at the same time as the application of the victim or at a later time.
Green Card for a Victim of Trafficking
Among the privileges granted to T Visa holders include immigration protection that allows them to remain in the United States and assist law enforcers in the investigation and prosecution of human trafficking cases. Those who have been granted this visa may also apply for a green card, or permanent residence status as eligible.
Eligibility Criteria for a Green Card
To apply for a green card as a T-1 nonimmigrant (principal), the victim must meet the following conditions:
- Physical presence 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.
- Must have been a person of good moral character since first being admitted as a T-1 nonimmigrant and until the decision on your Form I-485
- Must 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
- Must be suffering extreme hardship involving unusual and severe harm upon removal from the United States
- Must be admissible to the United States as a permanent resident.
T Visa holders may apply for a green card after holding a T nonimmigrant status for three years. Filing before meeting the three year status requirement subjects the application for a green card to denial; unless having submitted a certification from the Attorney General that the investigation or prosecution is complete.
To obtain a green card, the victim must file file Form I-485, Application to Register Permanent Residence or Adjust Status.
Derivative Family Members
Family members who were granted derivative T nonimmigrant status are eligible to apply for a green card if:
- He/she is a family member of a T-1 principal applicant
- He/she is 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 (a green card)
- He/she is admissible to the United States as a permanent resident
Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act, including the Battered Immigrant Women’s Protection Act in October 2000.
The U Visa or U nonimmigrant status is reserved for victims of certain crimes, suffering mental or physical abuse, and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. This immigration relief is intended to fortify the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while protecting the victims of these crimes.
U visa applicants are required to prove that they suffered “substantial physical or mental abuse” as a result of the qualifying crime.
U Nonimmigrant Eligibility
The following are the eligibility requirements for applicants for U Visa:
- The applicant is a victim of qualifying criminal activity.
Usually, the victim in a U visa case must have been the victim of serious crime that took place in the United States. In some cases though, the crime might have violet U.S. laws overseas; such as in the case of human trafficking or kidnapping.
Examples of qualifying crimes are:
- Violent crimes: murder, manslaughter, vehicular homicide, robbery, felonious assault (what qualifies as felonious assault can differ, but usually involves the use of a deadly weapon, and can include statutory rape and other offenses), stalking, and domestic violence.
- Enslavement crimes: criminal restraint, kidnapping, abduction, being held hostage, forced labor, slavery, human trafficking, indentured or debt servitude, and false imprisonment.
- Sexual crimes: rape, incest, sexual trafficking, sexual assault and abusive sexual contact, prostitution, sexual exploitation, and female genital mutilation.
- Obstruction of justice crimes: perjury, witness tampering, withholding evidence.
- Fraud in foreign labor contracting: a later addition to the statute, made in 2014.
The crime need not be “completed” for it to qualify; a solicitation, attempt, or conspiracy to commit any of the qualifying crimes is sufficient.
- The applicant have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
The applicant must prove that he/she suffered “substantial” physical injury or mental anguish as a result of the criminal activity to which he/she was a victim of. Medical records and affidavits to support the claim of the applicant must be submitted to the USCIS along with the application for U Visa. The USCIS will determine whether the injury was “substantial”, considering the severity of the injury, the duration of the abuse, and probability that it may cause the victim a lasting or permanent harm.
A personal statement detailing the physical or mental harm sustained, along with medical records or statements from the treating physicians, psychologies; affidavits from social workers and/or photographs of the sustained physical injuries should be submitted as well.
- The applicant have information about the criminal activity. If under the are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on the behalf of the applicant.
- The applicant was helpful, is helpful, or is likely to be helpful to law enforcement in the investigation or prosecution of the crime. If 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 the behalf of the applicant.
The applicant must be helpful to provide information for the purpose of law enforcement. One of the reasons for the U visa is that many U.S. immigrants are hesitant to provide information pertinent to a crime due to language barriers, cultural differences, or fear of deportation. These impediments make immigrants easy “targets”.
A Certificate of Helpfulness issued by a law enforcement official may bolster the application for a U visa. Applicant may obtain this certificate with his/her willingness to provide information, or actually providing information that could lead to the identification, arrest, and conviction of a serious criminal.
- The crime occurred in the United States or violated U.S. laws.
- The applicant is admissible to the United States; if not admissible, the applicant may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.
Applying for U Nonimmigrant Status (U Visa)
To apply (petition) for a U nonimmigrant status, the applicant must submit:
- Form I-918, Petition for U Nonimmigrant Status
- Form I-918, Supplement B, U Nonimmigrant Status Certification. The Form I-918, Supplement B, must be signed by and authorized official of the certifying law enforcement agency and the official must confirm that the applicant were helpful, and currently being helpful, or will likely be helpful in the investigation or prosecution of the case.
- If any inadmissibility issues are present, the applicant must file a Form I-192, Application for Advance Permission to Enter as Nonimmigrant, to request a waiver of the inadmissibility;
- A personal statement describing the criminal activity of which the applicant was a victim; and;
- Evidence to establish each eligibility requirement – visit our Forms section, specifically the Humanitarian Benefits Based Forms.
A victim may also apply for U nonimmigrant status if the latter is outside the United States. To do this, the applicant must:
- File all the necessary forms for U nonimmigrant status with the Vermont Service Center.
- Follow all instructions that are sent from the Vermont Service Center, which will include having your fingerprints taken at the nearest U.S. Embassy or Consulate.
- If the petition is approved, the applicant must consular process to enter the United States, which will include an interview with a consular officer at the nearest U.S. Embassy or Consulate.
Filing for Family Members
Certain qualifying family members are eligible for a derivative U visa based on their relationship with the victim or the principal, filing for the U visa. The principal petitioner must have their petition for a U visa approved before their family members can be eligible for their own derivative U visa.
Certain family members qualify for a derivative visa for the U visa holder, including the following:
- unmarried children under age 21
- parents (if principal petitioner is under age 21), and
- unmarried siblings under 18 years old (if principal petitioner is under age 21).
The principal petitioner must submit Form I-918, Supplement A, Petition for Qualifying Family Member of U Visa Recipient along with his/her own petition or after the U visa is approved. Any derivative relatives that is included must also be “admissible” to the U.S, unless applying for a waiver, and have good moral character.
U Visa Extensions
A U nonimmigrant status is granted, it is valid for four years which may be extended in certain, limited circumstance which include:
- Need based on a request from law enforcement,
- Need based on exceptional circumstances,
- Need due to delays in consular processing, or
- Automatic extension upon the filing and pendency of an application for adjustment, or application for a Green Card.
Applying for a Green Card
A U nonimmigrant may be eligible to apply for a Green Card or adjustment of status/permanent residence if he/she meets certain requirements, including:
- The applicant have been physically present in the United States for a continuous period of at least three years while in U nonimmigrant status, and
- The applicant have not unreasonably refused to provide assistance to law enforcement since you received your U visa.
Important to Note: Any qualifying family member who does not have a derivative U visa when the principal U nonimmigrant receives a Green Card is no longer eligible for a derivative U visa, but may still be eligible to apply for lawful permanent residence.
If the family member deriving status based on the U nonimmigrant status holder has met the eligibility requirements for a Green Card, the family member/s may apply for lawful permanent residence by filing their own Form I-485, Application to Register Permanent Residence or Adjust Status, and following the instructions on the Form I-485, Supplement E.
Even if the family members never had U nonimmigrant status or a U visa, they may still be eligible for a Green Card.
- First, the U nonimmigrant status holder must file a Form I-929, Petition for Qualifying Family Member of U-1 Nonimmigrant, for each eligible family member.
- The U nonimmigrant status holder may file the Form I-929 at the same time or after you file your Form I-485.
If the Form I-929 for the family member/s is approved:
- Family members in the United States may file the Form I-485 to apply for a Green Card.
- Family members outside the United States must first visit a U.S. embassy or consulate to obtain their immigrant visa.
Important to Note: All Form I-929 applications are sent to the USCIS Vermont Service Center.
There is a filing fee for the Form I-929. If you are unable to pay the fee, you may request a fee waiver by also filing a Form I-912, or by submitting a separate written request for a fee waiver.
You Need an Immigration Attorney for your U and T Visa
Regardless of the type of visa you apply for, you will need to submit ample– if not meaning, plenty– of evidence to prove your eligibility. Even more so with a U and T Visa.
With this, you need to seek the help of a legal expert who is experienced in immigration laws.
At The Gambacorta Law Office, we assist clients on matters concerning immigration laws– and we have been doing so for years. With immigration laws being our forte, you can be sure to have best U and T visa assistance as you need it.
We study each case carefully, giving our clients individualized visa assistance. We help clients every step of the way– from their initial filing of the application to the preparation of the needed documents and documentation. Our goal is to provide client with efficient and effective visa assistance.
Get in touch with us to know more about how we can help you with your U and T visa applications today!