Carlos Batara – Immigration Lawyer header image

Are U Visas No Longer Safe For Immigrant Victims Of Crime?

– Posted in: Deportation And Detention
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A little knowledge can be a dangerous thing.

Especially when it comes to immigration law.

And programs like the U Visa.

U Visa Relief For Immigrant Victims Of Crime Alive And Well . . . Almost

Armed with generalized information provided by sales pitches, buttressed with promises of employment authorization, many immigrants are magnetically drawn to promises of green card heaven.

Of course, gathering advice before moving ahead with one’s immigration case is a good thing.  But such snippets often provide incomplete disclosure regarding the complexity of the program under discussion.

Countless lawyer commercials on radio and television suffer from the same deficiency.

And when marketing pitches are spoken in the immigrant’s native tongue, it gives many immigrants a sense of false confidence.

The end result?

Immigrants are left holding a carelessly assembled bag of incomprehensible details, and vulnerable to taking actions which are not in their best interests.

The suggestions, potentially beneficial for some listeners, leads others down the wrong path . . .

. . . Into the arms of less-than-scrupulous notarios, immigration assistants, and lawyers who prey on the lack of sophistication of many clients.

Like Graciela.

She came into my office a few weeks ago to discuss applying for a U visa. She had heard about them through an attorney’s commercial on a Spanish-speaking radio station.

She called a few lawyers and visited them. Each told her that she would qualify for a U visa.

As I listened to her story, I disagreed with such an optimistic assessment.

Both her level of involvement in helping the local sheriff’s department and the abuse she incurred were minimal.

She kept insisting that the others had given her a contrary opinion.

I repeated that I was not challenging whether she technically qualified to apply.  Rather, I was not as positive about her chances of success.

I asked her if the attorney she heard on the radio or any of the others she consulted with had discussed the Trump Administration’s views toward U visa applicants.

They had not.

Then I inquired if anyone had told her about the sequence of steps from government agency certification to U visa grant to permanent residence.

Again, she responded they had not.

Based on her sparse information, I asked her why she seemed so firmly set on going forward.

As I expected, it was the promise of work authorization.

So I asked if she had been told that she would be in the U visa line several years before she would finally receive a grant of work authorization.

Once again, she had not.

She left my office undecided.

I could not help but consider how the allurement for Graciela’s business was cloaked in employment authorization carrots similar to those used by asylum experts in the 90s and as DACA bait less than 10 years ago.

As I have noted not once, but hundreds of times, fake experts often dangle work permits  to entice immigrants to pay for services better left untouched.

Temporary programs with no immediate path to permanent residency should always be approached with great caution.

A Short Overview Of The U Visa Program

I recall when the U Visa Program was initially launched.

I doubted the program’s ability to succeed. I did not think many undocumented immigrants would be willing to act as quasi-informants and embrace the notion of actively assisting law enforcement agencies in combating certain forms of crime.

Although it was created as a special immigration program promoted on humanitarian and abuse protection policies, I was skeptical about widespread cooperation.

In short, a U visa petition requires certification that the victim, generally an immigrant without documents to live legally in the U.S., has been helpful to law enforcement – and that step, alone, seemed to signify the program’s uphill struggle for acceptance.

What Is A U Visa?

U visas are available for victims of certain qualifying crimes who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities investigate or prosecute those crimes.

Congress created the program to strengthen the law enforcement community’s ability to investigate and prosecute cases of domestic violence, sexual assault, human trafficking, and other crimes, while also offering protection to victims.

Immigrants can qualify for U visas if they meet four requirements:

  • They were victims of certain crimes in the United States
  • They suffered substantial mental or physical abuse as a result of the criminal activity
  • They helped law enforcement authorities investigate or prosecute those crimes
  • The law enforcement agency certified the victim helped them investigate or prosecute the criminal acts

Additionally, if the victim has been living in the U.S. without permission, he or she needs to apply for a waiver.  (Most immigrants who contact my offices about U visa eligibility fit into this category.)

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Early Program Doubts About The Participation Of Immigrant Victims

During my first U visa cases, most law enforcement officers were not keen on the idea of working with immigrants, whom were also law breakers in their eyes.

Obtaining law enforcement certification, even after a client had closely worked with local officers, was like pulling teeth.

Since request for waivers are decided on humanitarian, family unity, or public interest considerations, I felt a high rate of U visa applications, much less U visa approvals, was probably out of the question.

Given these early interactions, I was surprised by the USCIS findings outlined in a 2015/2016 government press release.

In that report, USCIS reported that more than 117,000 victims and their families had received U visas since the progam began in 2009.

The numbers seemed a little exaggerated.  After all, regulations cap the annual total to 10,000.  This means starting with the 10,001 grant, the waiting list for the next fiscal year begins.

From 2009 to 2016 is seven years.  This means only 70,000 persons could have been received U visas by that point in time.  (A difference of 47,000.)

Reading the fine print, USCIS stated it would continue to review pending petitions.

When eligible petitioners cannot be granted a U visa due to the cap, they receive a letter notifying them that they are on a waiting list to receive one when they became available again.

In addition, grantees must meet eligibility requirements at the time the U visa is eventually issued.

Updated 2019 U Visa Statistics

Since those early days, U visa applications have continued to exceed my expectations.

In 2017, USCIS received a record high 62,990 U Visa applications.

The total dropped to 58,991 in 2018.

Early 2019 statistics show another decrease, to 49,508 applications.

In large part, the numbers have dropped due to fear of the current administration’s hostile attitude towards immigrants.

Because the number of U visas granted each year is capped at 10,000, the backlog grows each year.

Currently, there are 239,000 pending U visas that have already been approved.

This means, at 10,000 visas per year, it will take 24 years for the current group of approved recipients to receive the actual grant.

During the waiting period, there is no protection against being deported and no right to employment authorization.

Further, because the backlog is so huge, it is now taking USCIS more than four years to process new applications.

The Significance Of U Visa Statistics

Time has proven my assumptions about participation wrong.

That’s good news.

Nonetheless, I wonder how many immigrants, who assisted law enforcement agencies and been granted U visas, have been placed on a track to permanent residency.

After all, legalization is the end goal for all immigrants.

It would be beneficial, as a green card lawyer, to know what, if any, numerical variance exists between the total of immigrants granted U visa certification from law enforcement agencies, U visa status, and U visa grants of permanent residence.

  • Does the number shrink from stage to stage?
  • How great is the shrinkage at each stage?
  • What percentage of total U visa applicants, including those denied, eventually become green card recipients?
  • And what percentage have been placed in removal proceedings at immigration court?

Unfortunately, the U.S. Citizenship and Immigration Services report has not provided such comprehensive figures.

These are crucial statistics.

For instance, in my Riverside immigration law practice, the information would either reassure me about the long-term safety against deportation provided to applicants or provide a sense of caution regarding engaging in yet another stop-gap temporary  immigration measure.

Is the short-term benefit, in other words, worth the long-term risk for immigrants?

To be sure, it is good that as the U visa program is currently structured, after an immigrant has been present in the U.S. continuously for three years after the date of admission as a U Visa recipient, applying for adjustment of status to lawful status is possible.

However, this outcome is not automatic.

U visa adjustment is still a discretionary benefit.  The burden is on the immigrant to show a favorable exercise of discretion is warranted to grant permanent residency.

Presumably, most immigrants who have been fortunate to turn a bad situation into a opportunity for permanent residence won’t squander the opportunity with foolish actions while still in temporary visa status.

If that is true, I’d say the U visa program is very much alive and doing well.

Alas, that’s not the end of the U visa story.

A Real And Present Danger: Why Caution Is Warranted When Seeking U Visa Relief

In June 2018, the Trump administration instructed USCIS officers to place individuals who were denied U visa benefits in deportation proceedings.

Soon afterwards, stories began to surface about victims of abuse and other crimes taken into ICE custody after they contacted local law enforcement agencies.

The effect of the new policy?

Applying for a U visa became a potential pathway to removal.

Stated another way, the war against immigrants was prioritized over the war against crime.

Nearly overnight, the concept of U visa protection against deportation became an appalling non sequitur.

To amplify this message, immigration judges were instructed not to grant continuances in court to allow immigrants time to pursue requests for U visas. Expeditious deportation became the preferred order of the day.

A recent decision, Matter of Mayen, codified this approach.

In January 2019, after having been convicted of attempted possession of a controlled substance, Mayen was put in deportation proceedings.

At his hearing in March 2019, he informed the court that he was planning to file a U visa petition. He sought a continuance to obtain the law enforcement certification proving that he had been helpful to the investigation or prosecution of a criminal incident for a U visa application.  The case was continued to April 2019.

At the April hearing, Mayen notified the court that his U visa petition had been filed with USCIS. The judge set an Individual Hearing for the following month.

In the May proceeding, the judge refused to continue the case pending the decision on his U visa petition any longer. Mayen was ordered deported from the United States.

Mayen appealed.

While his appeal was under review, he received a letter in September from USCIS stating that he had established his eligibility for U status.

The notice also said his petition could not be granted at the present time because the statutory cap of 10,000 visas for the year had been reached.  Until new visas become available, the agency letter noted, his petition would not be formally granted.

Based on this letter, he asked the Board to send the case back to the immigration court.

On January 22, 2020, the BIA denied his appeal.

Emphasizing that given the uncertainty when a visa would become usable, the Board highlighted that Mayen had not shown the continuance would be granted for a “reasonable period of time.”

Moreover, the Board added, when a visa became accessible, he could pursue his U visa from abroad.

More Cracks In The U Visa Process

Just last week, the Washington Post reported the Trump administration has quietly rolled out a new policy for applications filed under select categories of visas.

U visa applications are on this list.

The policy?

USCIS will not accept applications that leave any fields blank. There must be a response to all questions posed in the government forms, even if the response is simply “none”, “unknown”, or “N/A”.

The article pointed out how a U visa application had been rejected due to the new policy, exposing the applicant’s son to possible deportation consequences.

There are some situations where immigrants may be able to resubmit their applications with the missing information provided.  In others, individuals can lose their eligibility due to the delay caused by missing information.

In the case cited by the Post, the applicant had left the area for her son’s middle name blank because he did not have a middle name, and she did not answer the question regarding his prior spouses because he had never been married.

Due to the delay, her son turned 21 before the revised application was filed. He aged-out of green card eligibility as a child.

As a result, he now fears being sent to immigration court to face removal charges.

What Is The Future Of Protection For Immigrant Victims Of Crime?

Over the past decade, the U visa has become an important program for immigrants who have been victims of crime and in need of a pathway to legalization.

Regrettably, the limitation of 10,000 visas per year has undermined the program’s effectiveness.

Coupled with the current administration’s stern focus on eliminating discretionary-based routes to permanent residence spells disaster.

Until remedied, the risk of deportation means immigrants need to proceed with caution.

As part of this vigilant approach, second-guessing those who peddle U visas is essential to protect unwitting immigrants.  Otherwise, applicants seeking protection as victims of one crime could become victims of a second offense, the provision of incomplete advice not in their best interests.  .

But even immigrants with strong U visa claims should think long and hard before taking the step to apply.

After all, given the current legal circumstances surrounding U visa applications, prudence dictates that it’s better to be safe than sorry.

By Carlos Batara, Immigration Law, Policy, And Politics

 

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