criminal activity

 

U status is a non-immigrant visa classification that may lead to permanent resident status. U status is intended for the victims of enumerated crimes who are helpful, or willing to be helpful, to law enforcement. The applicant must be in possession of information about the criminal activity of which he or she has been a victim. The criminal activity must have been in violation of U.S. law or have occurred in the United States or a territory or possession. The applicant must have suffered substantial physical or mental abuse as a result of having been the victim of the qualifying activity. Based on the statutory provisions, as well as the regulation, U status is a generous immigration classification that will apply to, and benefit, many individuals.

 

An application for U status is filed by the victim himself or by his or her attorney whereas an application for S status is filed by law enforcement. The criteria are as follows:

 

  • The applicant has suffered substantial physical or mental abuse as a result of having been a victim of specified criminal activity;
  • The applicant/victim (or if the victim is a child under the age of 16, the parent, guardian, or “next friend” of the victim) possesses information concerning specified criminal activity;
  • The applicant/victim has been, is being, or is likely to be helpful to a federal or state law enforcement official, prosecutor, or judge in investigating or prosecuting the criminal activity; and
  • The criminal activity violated the laws of the United States or its territories or possessions.

 

“Criminal activity” Defined

 

An applicant for U status must be the victim of a criminal act or similar activity in violation of either state or federal law, involving rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

 

The Regulation

 

According to the regulation (8 CFR §214.14(b)), there are four qualifying criteria for U status:

 

1. The applicant must have suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. The regulation specifically defines “victim.” A victim may be a direct victim of crime, or an indirect victim. An indirect victim is a qualifying family member (e.g., spouse or child) of the direct victim who is now deceased on account of the crime (murder or manslaughter). An indirect victim may also arise where the crimes are witness tampering, obstruction of justice, and perjury, which are not crimes against a person.

 

Substantial physical or mental abuse means injury or harm to the victim’s physical person, or harm to or impairment of the emotional or psychological soundness of the victim. The issue of harm will be determined on a case-by-case basis by a special unit at the Vermont Service Center where the applications are filed. USCIS will look to such factors as the nature of the injury inflicted or suffered; the severity of the perpetrator’s conduct; the severity of the harm suffered; the duration of the infliction of harm; and the extent of permanent injuries or serious harm to appearance, health, and/or physical or mental soundness.

 

Note that an individual who is culpable for the actual criminal activity that is being investigated is excluded from being classified as a “victim” and may not receive U status. This exclusion does not apply if the victim/applicant has a criminal record separate and apart from the criminal activity being investigated (that forms the basis for the U application: the “qualifying activity”).

 

2. The applicant must be in possession of information about the criminal activity of which he or she has been a victim. According to the regulation, “information” relates to knowledge of details and specific facts that will assist law enforcement in prosecuting the criminal activity. The information must be regarding the crime of which the applicant is a victim. The regulations do not require that the witness/applicant be a victim of the specific crime or crimes charged (i.e., the actual counts), but rather, is involved in the overall investigation of the larger offense activity.

 

3. The applicant must be helping law enforcement by providing information and cooperation. A reasonable request may not be refused. The Law Enforcement Agency must certify that the applicant has information and is being helpful to the investigation and prosecution of crime. The certification must be signed within the six-month period of time preceding the filing of the application. The requirement of a signed certification is a distinctive issue when comparing the U to T status; T status allows for secondary evidence where the applicant does not have a signed certification.

 

4. The final requirement is that the qualifying criminal activity be in violation of the laws of the United States or occur within the United States or its territories or possessions. The regulations do not require that the criminal investigation result in actual prosecution in a court of law; nor do the regulations require a successful prosecution. The criminal activity must be similar to an enumerated crime (as listed in the statute) but need not be precisely one of the enumerated crimes.

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