U and T Visas Presented by: Detective Tish Edmonds, City of Richmond Police Department— Family Violence Unit Susheela Varky, Esq., Staff Attorney, Virginia Poverty Law Center Lakshmi Challa, Esq., Challa Law Offices

A few immigration basics History and Purpose of the U and T visas Basic Elements of the U and T visa applications The U visa – for victims of violent crimes such as domestic violence, rape, and sexual assault The T visa – for survivors of human trafficking, including sex trafficking and labor trafficking Law Enforcement: what should be in your case files Forms to be familiar with Agenda 2

What agencies make up Immigration? Department of Homeland Security US Citizenship & Immigration Service (USCIS) US Immigration & Customs Enforcement (USICE) US Customs & Border Patrol (USCBP) Department of Justice Executive Office for Immigration Review (EOIR) Board of Immigration Appeals (BIA) Federal Circuit Courts of Appeals 3

Immigration Basics: Immigrants v. Nonimmigrants 4 Immigrants:  Lawful Permanent Residents (LPRs) may permanently reside in the US and legally work in the US  Common ways to obtain permanent residency: Family-sponsored immigrants Employment-based immigrants Diversity Immigrants Refugees and Asylees

Immigration Basics (continued) 5 Nonimmigrants  Nonimmigrant status = temporary period of time.  Because they are restricted to the activity consistent with their nonimmigrant category, the most significant issue is whether the person may lawfully work in the US.  Obtained at a US Consulate abroad or within the US by asking the USCIS for a “change of status” from one nonimmigrant category to another.

Immigration Basics (continued) 6 Nonimmigrant Status Categories (e.g.)  Temporary Visitors (B-2 visa)  Academic Students (F-1 visa)  Temporary Workers (H-1B visa)  Fiancée/Fiancé of U.S. Citizen (K-1 visa)

Helping Immigrant Victims of Certain Types of Crime 7 The U Visa

Background/Policy Congress created the U Visa in an effort to strengthen the ability of law enforcement agencies to detect, investigate and prosecute crimes against immigrants. –Recognition of importance of victim & witness cooperation –Recognition that immigration status affects likelihood of cooperation Created as part of the Victims of Trafficking and Violence Prevention Act of 2000 –Regulations not issued until September 16, 2007 (seven years later!) –USCIS has ended U nonimmigrant interim relief for individuals who were previously granted interim relief but who did not file a Petition for U Nonimmigrant Status (Form I-918) or did not have a Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A) filed on their behalf by December 31,

Immigration Benefits of the U Visa Persons granted U visa status can remain in the United States in lawful U visa status for a period of up to 4 years, with possible extensions in certain cases. After three years, U visa holders may apply for lawful permanent residence. U visa holders can petition for derivatives –For applicants under 21: victim’s spouse, children, parents and unmarried siblings < 18 years –For applicants 21 or older: victim’s spouse, children U visa holders automatically qualify for employment authorization. –Derivatives must file I-765 after the U Visa is approved to obtain employment authorization. 9

Elements of the U Visa The applicant has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity The applicant possesses information concerning that qualifying criminal activity The applicant has been helpful, is being helpful, or is likely to be helpful to law enforcement official in the investigation or prosecution The criminal activity described violated the laws of the United States or occurred in the United States. 10

“Certain Criminal Activity” Must be a victim of criminal activity designated in INA § 101(a)(15)(U). Defined as one or more of the following or any similar activity in violation of Federal, State, or local criminal law: Rape Being held hostage Torture Peonage Trafficking Involuntary servitude Incest Slave trade Domestic violence Kidnapping Sexual assault Abduction Abusive sexual contact Unlawful criminal restraint Prostitution False imprisonment Sexual exploitation Blackmail Female genital mutilation Extortion 11

“Certain Criminal Activity” Continued... Manslaughter Murder Felonious assault Witness tampering Obstruction of justice Perjury Attempt, conspiracy or solicitation to commit any of the above.

Defining a Victim Direct victim Suffered direct and proximate harm as a result of the commission of a criminal act named in the statute Bystanders who suffer unusually direct injury Indirect victim Certain family members if the direct victim is deceased due to murder or manslaughter, or is incapacitated or incompetent and where the family is the spouse and children under 21, and if the direct victim was under 21, his or her siblings under 18 and parents as well as spouse and children. (Parents of sexually abused children qualify as indirect victims, even if the child is a U.S. Citizen). 13

Substantial Physical or Mental Abuse The victim must demonstrate that he or she suffered substantial physical or mental abuse Physical or mental abuse means physical injury or harm to the victim, or harm to/impairment of the victim’s emotional or psychological soundness. Factors to be considered include, but are not limited to: –The nature of the injury inflicted or suffered –The severity of the perpetrator’s conduct 14

Substantial Physical or Mental Abuse Factors, continued... -The severity of the harm suffered -The duration of the infliction of the harm -The extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, and -Any aggravation of a victim’s preexisting conditions No single factor is required. It’s a case-by-case determination. A series of acts may be sufficient to constitute substantial physical or mental abuse, even where no single act meets the standard.

Helpfulness Obligation to cooperate with the authorities: If the victim is16 years old or older, he/she will need to demonstrate that he or she cooperated or was willing to cooperate with law enforcement. If the victim is under the age of 16 at the time of the criminal activity, or is incapacitated or incompetent, he/she will not have to prove his or her cooperation; a parent, guardian, or “next friend” can fulfill the cooperation requirement. U Visa is available to those who are “helpful” to law enforcement regardless of whether the investigation or prosecution results in a conviction. 16

Helpfulness Applicant should obtain certification (I-918, Supp. B) signed by a law enforcement agency or official with responsibility for the investigation or prosecution of the criminal activity confirming that the applicant complied with reasonable requests for assistance. Certifying official can withdraw certification. DHS can contact the certifying official Additional evidence of helpfulness can include trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits of other witnesses or officials.

Forms to Apply for U Nonimmigrant Status Applicants must file: Form I-918, Petition for U Nonimmigrant Status Form I-918, Supplement B certification of helpfulness from a certifying agency that demonstrates the petitioner "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution of the criminal activity. There is no fee associated with these forms. USCIS has decided to waive the petition fee, reflecting the humanitarian purposes of the law.

Law Enforcement Certification Form (I-918, Supp B) can be signed by: –“Traditional law enforcement agencies” such as police or prosecutors –Judges –Other agencies that have criminal investigative jurisdiction in their respective areas of expertise, such as Child Protective Services, Equal Employment Opportunity Commission, or Department of Labor. Must be signed by either the head of the agency or an individual specifically designated by the head of the agency. Expires six months after date of signature. Law Enforcement Certification 19

Evidence that applicant is a victim of qualifying criminal activity: “Any Credible Evidence Standard” Evidence –Police report –Arrest warrant –Court disposition –Trial transcript –News article –Protective Order, if applicable –Affidavits –Crime as described in state or federal code 20

Evidence Evidence that applicant has suffered substantial physical or mental abuse: -Medical Records -Photographs of visible injuries supported by affidavits -Protection orders -Police reports -Supporting letters, affidavits or declarations from counselors, therapists, shelter workers, counselors, social workers, victim witness advocates, clergy -Affidavits from witnesses, acquaintances or family members who have personal knowledge of the facts regarding the criminal activity - Any credible evidence standard

Recent Developments Whether undocumented parents of U.S. Citizen children could benefit from U visa protection had previously been unclear under the regulations. The August 20, 2009 USCIS Vermont Service Center response to Stakeholders Meeting Questions clarifies that “parents of sexually abused children qualify as indirect victims, even if the child is a USC [U.S. Citizen]. It falls under the incompetent/incapacitated victim.” The I-918B should reflect the parent/indirect victim as the victim on the form. The confusion has been in cases where the I-918B indicated the U.S. Citizen child as the direct victim.

Recent Developments U Visa Cap Exhausted for the First Time in the Program’s History U Visa program provides 10,000 visas to noncitizens in each fiscal year. This number does not include persons eligible for U visa derivatives status – e.g. spouses, children or parents of applicants. In July 2010, the 10,000 visa cap was exhausted for the first time. This milestone demonstrates the U visa’s efficacy for law enforcement. Another 10,000 visas became available in October, when the 2011 fiscal year began. Prior to October, USCIS could grant interim legal status to approved cases where a visa was not yet available.

Recent Developments Update to What Qualifies as a "Certifying Agency" On March 15, 2010, the Department of Labor (DOL) began exercising its authority to certify U visa applications. Certifying agencies can be Federal, State or local law enforcement agencies, prosecutors, judges or other authority that investigates or prosecutes criminal activity. Other agencies such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor also qualify as certifying agencies since they have criminal investigative jurisdiction within their respective areas of expertise.

Helping Victims of Trafficking 25 The T Visa:

As a response, it enacted the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), which, among other things, allows such people to apply for 3-year temporary visas that lead to permanent resident status. In 2006, Congress modified 8 CFR (p) to now have the T-visa to be for 4 years.Victims of Trafficking and Violence Protection Act of 2000permanent resident A victim of a severe form of trafficking; Physically present in the U.S. on account of the trafficking; Complied with any reasonable request for assistance in the investigation and prosecution of acts of trafficking; and Would suffer extreme hardship involving unusual and severe harm upon removal. History/Elements of the T Visa 26

Severe Form of Trafficking Sex trafficking –a person is induced to perform a commercial sex act by force, fraud, or coercion; or –a person under the age of 18 is induced to perform a commercial sex act; Labor/services trafficking (1) recruitment, harboring, transportation, provision, or obtaining of a person for labor or services (2) through the use of force, fraud, or coercion (3) for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery 27

Applicant must be present in the U.S. Presence must be on account of the trafficking Presence must be continuous (or exit/reentry must also be related to trafficking) No clear chance to leave –If applicant escaped traffickers before law enforcement involvement, s/he must show that s/he did not have a clear chance to leave the U.S. Physically Present 28

Assisted Law Enforcement Primary evidence: –I-914B, Law Enforcement Certification (DOJ, FBI, ICE, etc.) –Continuous Presence (temporary form of relief requested by law enforcement that allows victim to remain in US to testify against trafficker) Secondary evidence: –Letters or other correspondence detailing efforts to obtain I- 914B or client’s cooperation with federal law enforcement; –I-914B signed by local law enforcement; –Letters from local enforcement If applicant is under 18, s/he is exempt from this requirement Success of investigation and/or prosecution does not effect eligibility 29

Factors: Age, circumstances; Need for, and access to, physical and mental health care; Access to U.S. courts to redress acts of trafficking; Access to support services or lack of services in home country; Likelihood of revictimization in home country and authorities’ ability to protect; Likelihood that culture/social practices would penalize victim of trafficking; Likelihood that trafficker or associates would retaliate; or Risk to safety caused by civil unrest or armed conflict. Notes: Hardship should not be based on economic harm/ opportunity. VSC has not yet denied a T-visa based on failure to show extreme hardship (ILRC, 2006). Extreme Hardship 30

Lawful T status for four years for principal applicant Employment Authorization for 4 years –Derivatives must file I-765 after the T Visa is approved to obtain EAD. Can petition for derivatives (I-914 Supplement A) –For applicants under 21: victim’s spouse, children, parents and unmarried siblings < 18 years –For applicants 21 or older: victim’s spouse, children Can apply to adjust status to LPR after three years or close of investigation Eligible for same public benefits as a refugee: –Survivors over 18 require certification from the Office of Refugee Resettlement; –Survivors under 18 are immediately eligible for benefits. Benefits of the T Visa 31