Supporting Our Clients in the Interim by Rescreening for Relief: U Visas for the Principal Petitioner

An attorney joins a legal service organization and receives their case list, with most of the clients having pending applications for legal relief and waiting to present their case at the Asylum Office, to have a hearing before an immigration judge, or to adjust status when a visa becomes available for them. The attorney decides to meet each of their clients for the first time to get to know them and their respective cases and to “check in” with the client.

The attorney meets with Marta, an 18-year-old who entered the United States as an unaccompanied child when she was 15 years old. Marta has an approved I-360 petition for Special Immigrant Juvenile Status (SIJS), received a grant of deferred action from the United States Citizenship and Immigration Services (USCIS) in spring 2022, and has approved work authorization based on her deferred action status. Marta is waiting for a visa to become available so that she can adjust status to lawful permanent residency—the goal of the SIJS process. Marta works full-time, is unmarried, and lives with her mother, aunt, and cousins—all of whom do not have legal status. Marta considers herself very close with her family and wishes that they could obtain legal status.

Marta meets with her new attorney and explains that she has not talked to an attorney working on her case since she received deferred action and her work permit one year earlier. The attorney asks Marta some questions about the pending case to understand the underlying facts but does not dive into all of the details since they have already reviewed the file, and it is not needed at this time. The attorney also asks Marta about her life and things that have happened (address changes, employment status, and significant life events) since Marta last met with an attorney. For example, the attorney asks Marta about any changes in criminal history and family (whether Marta has had any children, gotten married, any family members have gained legal status in the United States, etc.).

Marta discloses that four months ago, she and her family had to move and change her address after an individual used a gun and aimed fire at Marta and her family multiple times through a front window. Marta explains that she and her family filed a police report immediately with the local police and that the police department has interviewed Marta multiple times since the incident. The police are still investigating the incident. Marta has called the detective working on the case for updates and tells the attorney that she is willing to help the police in any way she can. The incident scared Marta, and though she has since moved to a new house, Marta is unable to sleep, experiences severe anxiety any time she is in her home, and is depressed. Whether she is in her home or in public spaces, Marta cannot walk beside windows without feeling panic. Marta expresses that she wants to go to counseling for her anxiety and depression caused by the incident because her anxiety is affecting her life including the ability to work, socialize, and carry out day-to-day activities. Marta has become withdrawn and feels mentally overwhelmed due to the shooting, and she asks the attorney if there is anything that the attorney can do to help her with this incident or if this incident will affect her pending immigration case.

In addition to filing the necessary change of address form with USCIS showing Marta’s new place of residence, the attorney thinks that Marta may be eligible for another form of relief, U nonimmigrant status (otherwise known as the “U visa”).

What is a U visa?

• U nonimmigrant status is a form of humanitarian relief available to victims of certain crimes, created by U.S. Congress with the passage of the Victims of Trafficking and Violence Protection Act in 2000. Generally, to be eligible for a U visa, the crime victim must have suffered physical or mental abuse, and the crime victim must also be helpful or willing to cooperate with law enforcement in investigating or prosecuting the crime.
• The final goal of the U visa process is for U visa recipients—those who have been granted U nonimmigrant status—to eventually apply for lawful permanent residency status.
• The legal authority for U nonimmigrant status is housed in the INA § 101(a)(15)(U) and the federal regulations at 8 C.F.R. § 214.14. Additionally, Volume 3, Part C of the USCIS Policy Manual contains USCIS’s immigration policies relating to U visas. USCIS also provides helpful information on their website.

While this blog post provides an overview of U visas, we recommend that you read the relevant law, policy, and consult secondary resources to learn more.

• When a practitioner is trying to assess whether their client is potentially eligible for a U visa, it is important to remember the U visa eligibility requirements and ask questions to evaluate eligibility. Tailor questions to things you may already know about your client or their case.
• Explain to your client why you are asking these questions, and let them know that you are assessing the situation for their case.
• As you screen a client for U visa eligibility, consider asking:
  • how they are doing generally since they last met with an attorney
  • whether any significant events have happened in the client’s life (e.g., employment, education, marriage, children, move, who they are living with, etc.)
  • how their sponsor or relatives in the residence are doing
  • if the client has had any interactions with law enforcement or police since they last met with an attorney (e.g., changes to criminal history, any interaction with law enforcement, arrests, talked to police, victim of a crime, reporting incident to police, etc.)
  • if the client is feeling safe or secure and reassure the client you are there to help
• It is important to remember that a client may not be willing to disclose a traumatic event to you, even if these questions are being asked and even if you are genuinely asking about the client’s wellbeing. Reiterate your purpose, why you are asking questions, and provide some context to the conversation, knowing that your client likely is not familiar with different forms of immigration legal relief. Also, make an effort to make your client feel at ease as the conversation continues.

Based on the facts presented in the hypothetical, Marta may be eligible for a U visa—as Marta was a victim of an attempted shooting, she has experienced mental and emotional suffering due to the shooting, and Marta conveyed to the attorney that she wants to help the police investigate the shooting.

What are “next steps” for the attorney after rescreening Marta for legal relief?

• The attorney should research the eligibility requirements in the statute and see if, based on the facts, Marta is eligible for a U visa. Some questions the attorney should ask in researching may be:
  • • Is Marta a victim of a qualifying crime?
      • The full list of qualifying crimes—located in INA § 101(a)(15)(U)(iii) and 8 C.F.R. § 214.14(a)(9)—is extensive, and we recommend that you read the full list of qualifying criminal activities on USCIS’s website. A non-exhaustive list of qualifying crimes includes domestic violence, extortion, kidnapping, involuntary servitude, felonious assault, manslaughter, murder, peonage, prostitution, sexual assault, and trafficking.
    • Is the attempted shooting a qualifying crime, as listed in the statute?
      • Something the attorney may want to pay attention to is that the list of qualifying crimes for the U visa includes attempt, conspiracy, or solicitation to commit any of the listed crimes. This means that even an attempt of one of the listed crimes would be a qualifying crime for U visa eligibility purposes.
    • If it is a qualifying crime, did the attempted shooting take place in the United States, or does the attempted shooting violate U.S. law?
    • Is Marta suffering from physical and/or emotional suffering resulting from the crime?
    • Is Marta willing to cooperate in the investigation or prosecution of the crime? Is Marta cooperating or helping law enforcement now, or has she done that in the past? In what ways has Marta demonstrated her helpfulness or cooperativeness with law enforcement in investigating this crime? Is Marta admissible to the United States? If she is inadmissible, can her inadmissibility be waived?

• After evaluating Marta’s eligibility, the attorney should research the process for petitioning for the U visa in order to accurately convey and explain that process to Marta. Some questions the attorney should ask herself in researching the U visa process itself may be:
  • What documents are required to petition for the U visa?
  • Can the police department investigating the shooting complete the U certification? If so, does this agency have a specific procedure for completing U certifications?
  • Consider your options for who to ask to sign the U certification. Ask local practitioners regarding recent experiences and strategies to get the certification signed.
  • What other documents may be helpful to supplement a U visa petition? Can the attorney and Marta obtain the police reports from the shooting?
  • What documents—aside from the personal statement—would be helpful to document Marta’s mental state resulting from the shooting?
    • • • Consider whether there are hospital or medical records demonstrating any physical injuries resulting from the crime.
        • Consider obtaining a psychological or mental health evaluation demonstrating any mental or emotional injuries resulting from the crime.
        • Statements from relatives or close friends may also help support the affect of the crime on Marta.
  • Does the attorney need to include a I-192 waiver of inadmissibility with the U visa petition?
  • Would the U visa process affect Marta’s pending form of legal relief, SIJS? And if yes, how so?

• The attorney should then schedule a follow-up meeting with Marta to explain U visa eligibility and what that means for Marta’s case.

• When the attorney meets with Marta to discuss the potential of the U visa, what types of issues should the meeting cover?
  • Marta’s attorney should inform Marta of this eligibility, discussing the crime and her resulting mental suffering and aligning these facts with the U visa eligibility requirements.
  • The attorney should explain the U visa process to Marta in its entirety, including explaining the process of obtaining the U certification and the process of adjudication.
  • The attorney and Marta should make a plan to obtain the U Certification, Form I-918, Supplement B.
  • This is a good opportunity to discuss potential evidence to support the U visa, including a personal statement from Marta about the shooting and how it has affected her as a victim.
  • The attorney should explain the ways in which the U visa would affect and not affect Marta’s pending immigration relief, SIJS.
  • The attorney should explain the pros and cons of applying for a U visa. For example, it may be notable or a “pro” for Marta to know that she could potentially petition for some of her family members through the U visa process, some of whom she cannot petition for through SIJS. If Marta petitions for a U visa, she can add her mother as a derivative to her U visa petition—which Marta is unable to do with SIJS.
  • With the information then presented to Marta, the attorney should ask Marta to decide whether she wants to proceed with the U visa process. Even if the attorney thinks that it would be in Marta’s best interest to petition for the U visa, the choice is still Marta’s. The attorney should give Marta time and space to process the information and ask Marta to let the attorney know when she has made a decision.

• If Marta decides to pursue the U visa, then the attorney should consult her organization’s practice and see if there is a policy in place for amending the retainer or representation agreement. Can the attorney modify the original agreement between Marta and the organization that explains the SIJS representation, or does the attorney need to draw up a new agreement? Keeping track of additional forms of relief and how that affects representation is crucial for legal service providers.

With the information given to Marta, Marta decides to pursue the U visa—hopeful that an additional form of legal relief will strengthen her path to meet her goal of staying in the United States permanently and due to the benefit of being able to add her mother as a derivative to the petition. The attorney and Marta now begin work together on building Marta’s case for a U visa.