TOOL KIT FOR LAW ENFORCEMENT USE OF THE U-VISA

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1 TOOL KIT FOR LAW ENFORCEMENT USE OF THE U-VISA Developed by Sameera Hafiz, Leslye Orloff, and Kavitha Sreeharsha of Legal Momentum and Rodolfo Estrada of the Vera Institute of Justice (last updated August 2011) th Street NW, Suite 300, Washington, DC T: Broadway, 12 th Floor, New York, NY T: This project was supported by Grant No DG-BX-K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the United States Department of Justice.

2 Acknowledgments This toolkit would not have been possible without the input and collaboration of the following law enforcement agencies: Alexandria (VA) Police Department Appleton (WI) Police Department Austin (TX) Police Department Boise (ID) Police Department City of La Crosse (WI) Police Department Lexington County (SC) Sheriff s Department Metropolitan Nashville (TN) Police Department Metropolitan (DC) Police Department Multnomah County (OR) Sheriff s Office Salem (MA) Police Department San Francisco (CA) Police Department Storm Lake (IA) Police Department Travis County (TX) Sheriff s Office We thank them for their support and feedback on this tool kit. The information in this tool kit does not necessarily reflect the policies or opinions of these agencies. Questions and comments regarding this tool kit may be directed to: [email protected].

3 TOOL KIT FOR LAW ENFORCEMENT USE OF THE U-VISA TABLE OF CONTENTS U-visa Certification: Introduction... 4 U-visa Quick Reference Guide for Law Enforcement Instructions for I-918, Supplement B, U Nonimmigrant Status Certification and I-918, Supplement B, U Nonimmigrant Status Certification Redacted I-918, Supplement B, U Nonimmigrant Status Certification Sample Designee Letter Sample U-visa Certification Officer s Duties Sample Victim Outreach Flyer Sample U-visa Certification Protocol List of U-visa News Articles (Full text of two recent articles included) Statutory and Regulatory Background on the U-Visa s Purpose and Helpfulness Requirement U-visa Application Process Flowchart Frequently Asked Questions and Answers th Street NW, Suite 300, Washington, DC T: Broadway, 12 th Floor, New York, NY T: This project was supported by Grant No DG-BX-K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the United States Department of Justice. 3

4 U-VISA CERTIFICATION: INTRODUCTION (Last Updated August 2011) By providing U-visa certifications, law enforcement officials add to their arsenal of crimefighting tools because victims feel safer coming forward to report crimes. Prosecutors who provide certifications also reinforce the sense of safety within immigrant communities. This document provides an overview of the U-visa and a detailed section on the U-visa certification requirement. This detailed section discusses who qualifies for a U-visa, which criminal activities are covered by the U-visa, the application process, and identifies some key information that will assist law enforcement and prosecutors in their role as certifiers. Overview of the U-visa When Congress created the U-visa in the Violence Against Women Act (VAWA) under the Victims of Trafficking and Violence Prevention Act of 2000 its intent was (1) to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, human trafficking, and other crimes; and (2) to offer protection to victims of such crimes. 1 Lawmakers recognized that a victim s cooperation, assistance, and safety are essential to the effective detection, investigation, and prosecution of crimes. 2 Victims who fear deportation, however, are unlikely to come forward to cooperate and assist in investigative efforts. Thus, Congress provided a specific avenue through which immigrant crime victims who cooperate with law enforcement can obtain lawful immigration status and protection against deportation. Who is eligible for a U-visa? To be eligible for a U-visa, immigrant victims must meet four statutory requirements and they must include a certification from a certifying official or agency that they have been, are being, or are likely to be helpful in the detection, investigation, or prosecution of a qualifying criminal activity. 3 The law requires that a person who is eligible for a U-visa must (1) have suffered substantial physical or mental abuse as a result of having been a victim of a listed criminal activity; (2) possess information concerning such criminal activity; (3) have been helpful, be helpful, or be likely to be helpful in the investigation or prosecution of a crime; and 1 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status, 72 Fed. Reg. 53, ,015 (Sept. 17, 2007) (citing Battered Immigrant Women Protection Act (BIWPA) 1513(a)(2)(A)). 2 Congress created the U-visa because it was important for U.S. humanitarian interests to enhance safety of crime victims and encourage them to cooperate with the justice system. BIWPA 1513(a)(2)(A). 3 INA 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U) (outlines four statutory requirements for U-visa eligibility and contains non-exhaustive list of qualifying criminal activities. Congress used the term criminal activity rather than crime to provide victims access to U-visa protection as early as possible after the crime occurred or was reported..); INA 214(p)(1), 8 U.S.C. 1184(p)(1) (details certification requirement). 4

5 (4) have been the victim of a criminal activity that occurred in the United States or violated the laws of the United States. 4 Who can provide the required U-visa certification? The U-visa statute states that federal, state, or local law enforcement officials or prosecutors are qualified to provide certifications for victims filing U-visa applications. 5 Law enforcement officials and prosecutors qualify because their roles place them in direct contact with immigrant victims of crime. Law enforcement officials are the first responders to immigrant victims of crime. Police departments, sheriffs offices, marshals, and other law enforcement officials have firsthand knowledge of a victim s helpfulness in reporting the crime and participating in any subsequent investigations. Law enforcement officials, therefore, are well positioned to provide U-visa certifications and verify a victim s helpfulness in the detection or investigation of qualifying criminal activity. When a qualifying criminal activity is prosecuted, prosecutors work closely with both law enforcement and victims. The prosecutors might need the victim to testify in court, or otherwise help during the prosecution, which might include the sentencing phase. During the prosecution of a qualifying criminal activity where there is an immigrant victim, the prosecutors are well positioned to verify a victim s eligibility for a U-visa certification and to provide the certification. Determining eligibility is important because the U-visa certification must affirm the immigrant victim s past, present, or future helpfulness in the detection, investigation, or prosecution of certain qualifying criminal activity. 6 Prosecutors or law enforcement officials who sign certifications do not confer any immigration status upon the victim, but rather enable the victim to meet one of the eligibility requirements in the victim s application to U.S. Citizenship and Immigration Services of the Department of Homeland Security (DHS). 7 Only DHS has the discretion to grant or deny U-visa status to the victim. 4 INA 101(a) (15) (U); 8 U.S.C. 1101(a) (15) (U). If the petitioner is under 16 years of age, incapacitated, or incompetent, s/he is not required to personally possess information regarding the qualifying criminal activity. In these cases, an exception permits a parent, guardian, or next friend of the minor, incapacitated, or incompetent petitioner to provide information and assist in the investigation or prosecution. See INA 101(a)(15)(U)(i), 8 U.S.C. 1101(a)(15)(U)(i). 5 INA 214(p)(1), 8 U.S.C. 1184(p)(1). 6 Id. 7 See Form I-918, Supplement B, Instructions (08/31/07), at page 3 (United States Customs and Immigration Services will consider the totality of the circumstances in determining whether someone is eligible for the U-visa). 5

6 I. INTRODUCTION The U-visa Certification Requirement In creating the U-visa, Congress recognized that it is virtually impossible for officials who work in law enforcement, justice systems, or with other government enforcement agencies to punish and hold accountable perpetrators of crimes against noncitizens if the abusers and other criminals can avoid prosecution because their victims risk being deported. Congress also recognized that victims often do not come forward to seek law enforcement assistance because they fear detention and/or deportation. The U-visa encourages immigrant victims to report criminal activity by protecting them against deportation. It also enhances their access to safety and support needed to overcome physical and emotional injuries caused by criminal activity. The U-visa can make communities safer by holding perpetrators accountable for criminal activity that might otherwise go undetected. The U-visa application process requires an immigrant crime victim to obtain a certification by an approved certifying official who verifies the type of criminal activity perpetrated against the applicant and attests to the fact that the victim has been, is being, or is likely to be helpful in the detection, investigation, or prosecution of that criminal activity. 8 To increase victims access to certifications, Congress explicitly included federal, state, and local law enforcement officials and prosecutors in the list of U-visa certifiers. 9 This document outlines the significance of the role that certifiers play. II. WHAT DOES THE U-VISA DO? As described above, in 2000 Congress created a specific avenue for immigrant crime victims to obtain temporary lawful immigration status. This was done by amending sections of the Immigration and Nationality Act to create the U-visa. 10 If approved for a U-visa, an applicant will receive legal status for up to four years. This status will permit the crime victim to live and work in the United States for the duration of the U-visa. At the end of the third year, the U-visa recipient may be eligible to apply to adjust his or her status to lawful permanent residence (commonly known as a green card ). Receiving a U-visa does not directly or necessarily grant lawful permanent residency. Lawful permanent residency will be granted only to U-visa recipients who can provide evidence that they have not unreasonably refused to provide assistance in the criminal investigation or prosecution and that their continuous presence in the country is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest. 8 INA 214(p) (1), 8 U.S.C. 1184(p) (1); 72 Fed. Reg. 53,014, 53,020 (Sept. 17, 2007). 9 8 U.S.C. 1101(a)(15)(U)(I) (2006); 72 Fed. Reg. 53,014, 53,023-53,024 (Sept. 17, 2007). 10 See INA 101(a)(15)(U), 8 U.S.C (a)(15)(u). 6

7 III. WHICH CRIMINAL ACTIVITIES DOES THE U-VISA COVER? A non-exclusive list of qualifying criminal activities is provided in the statute. 11 The list includes 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, solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state, or local criminal law. The list also includes attempts or conspiracy to commit any of the listed activities. Congress intentionally chose the term criminal activity in the statutory language to accomplish two goals: to be broadly inclusive of any similar activity and to focus on the victim s actions in coming to state or federal government officials with information about criminal activity. This language is meant to take into account the wide variety of state criminal statutes in which the terminology used to describe the criminal activity may not be identical to that found on the statutory list, although the nature and elements of both criminal activities are comparable. 12 For example, the statute lists domestic violence as a U-visa qualifying crime. However, most state statutes do not specify domestic violence as a crime, but instead list crimes that constitute domestic violence, such as harassment, assault, battery, criminal threats, menacing, criminal trespass, burglary, malicious mischief, reckless endangerment, stalking, child abuse, elder abuse, or malicious property damage. 13 Even though these crimes are not specifically enumerated in the U-visa, they are incorporated within the qualifying crime of domestic violence for U-visa purposes. In cases when crime perpetrators are charged with unrelated crimes, U-visa certifications are still appropriate and explicitly encouraged by the United States Department of Homeland Security. 14 An illustrative example is provided in the U-visa regulations: if a government agent is investigating federal embezzlement charges and learns that the offender is abusing his wife, the wife may be eligible for a U-visa as a victim of domestic violence, even if her husband is charged only with the non-qualifying federal embezzlement crimes. 15 IV. DOES U-VISA STATUS REQUIRE THE INITIATION OF A LAW ENFORCEMENT INVESTIGATION OR A SUCCESSFUL PROSECUTION? 11 INA 101(a)(15)(U)(iii), 8 U.S.C (a)(15)(u)(iii); 72 Fed. Reg. 53,014, 53,018 (Sept. 17, 2007) (explaining that the list is non-exclusive) Fed. Reg. 53,014, 53,018 (Sept. 17, 2007). 13 See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801, (1993). 14 See 72 Fed. Reg. 53,014, 53,018 (Sept. 17, 2007). 15 Id. 7

8 No. Congress explicitly crafted the U-visa immigration protections for victims so as not to interfere with the discretion that investigators and prosecutors have to investigate and choose whether to prosecute criminal activity in any particular case. Congress also recognized that for many crimes, particularly those that can be serial in nature (e.g., rape), a victim could come forward, provide evidence, and only much later after a number of victims have come forward can police build a criminal case against the perpetrator. The U-visa was designed to provide protection for immigrant victims, to encourage them to come forward and provide evidence and information about criminal activity committed against them. If an immigrant crime victim has offered or is willing to offer assistance to law enforcement officials or prosecutors regarding such activity, the outcome of the case (or whether authorities ever proceed with the case) is not relevant to a victim s U-visa eligibility. In addition, investigation or prosecution of some criminal activity is impossible because the perpetrator cannot be located, has diplomatic immunity, or has been deported. U-visa status can therefore be granted even when police decline to investigate or prosecutors decline to charge perpetrators, when charges are later dropped, or when prosecutors are unable to secure convictions. 16 V. THE APPLICATION PROCESS The United States Citizenship and Immigration Services (USCIS) of DHS has sole jurisdiction over adjudication of petitions for U-visa status. A person seeking U-visa status must submit, by mail, Form I -918, Petition for U Nonimmigrant Status and include with it Form I-918 Supplement B, U Nonimmigrant Status Certification, along with supporting documents required to prove the four requirements for U-visa eligibility. A copy of Form I-918, Supplement B, with instructions is included in the tool kit on page 14. Form I-918, Supplement B must be signed by a qualifying certifier, such as a law enforcement official. 17 The applicant sends the completed petition and supporting materials to the Victims and Trafficking Unit of USCIS, located in Vermont. This specialized unit is trained to adjudicate cases involving crime victims and is the only adjudication unit within DHS that can grant U-visa status. By preparing and signing Form I-918, Supplement B, a certifier is not conferring legal immigration status upon a noncitizen applicant or making a determination of the applicant s eligibility for a U-visa. The certification is a mandatory part of the evidence the victim must Fed. Reg. 53,014, 53,020 (Sept. 17, 2007). ( This rule does not require that the prosecution actually occur, since the statute only requires an alien victim to be helpful in the investigation or the prosecution of the criminal activity. See INA sections 101(a)(15)(U)(i)(III) & 214(p)(1), 8 U.S.C. 1101(a)15(u)(i)(III) and 1184(p)(1).). 17 The implementing regulations of the U-visa require that the law enforcement official that is the certifying official be the head of the certifying agency, or any supervisor specifically designated by the head of the certifying agency to issue U-visa certifications. See 8 CFR (a)(3) & (c)(2)(i). 8

9 submit to USCIS to prove eligibility to receive a U-visa. In addition to the certification, the applicant must meet the other eligibility criteria, such as demonstrating that he or she suffered substantial mental or physical abuse as a result of having been a victim of the qualifying criminal activity. To be granted a U-visa, victims are also required to prove that they are eligible for admission to the United States. DHS may grant a discretionary waiver and approve a U-visa for immigrant victims who cannot prove admissibility. In making this determination DHS will consider the totality of the victim s case and circumstances. VI. LAW ENFORCEMENT OFFICIALS AND PROSECUTORS AS U-VISA CERTIFIERS A U-visa applicant must obtain a certification from a police chief, a sheriff, a prosecutor, designated law enforcement official, judge, or other federal or state authority that is detecting, investigating, or prosecuting any of the criminal activities listed in the U-visa statute or regulations. 18 Congress specifically listed federal, state, and local law enforcement officials and prosecutors as U-visa certifiers in the statute. 19 As first responders, police departments, sheriffs offices, and marshals regularly encounter victims whose allegations of criminal victimization they believe to be credible. During the process of detecting criminal activity, taking police reports, obtaining warrants, and engaging in crime investigations, officers routinely determine whether they believe the criminal activity occurred and whether a person has been a victim of such activity. 20 When the crime victim is or may be a noncitizen, the agency, under the federal U-visa statute, is authorized to issue a U-visa certification. Based upon the law enforcement officer s contact with the immigrant victim during detection or investigation of criminal activity, the officer is well positioned to certify an immigrant victim s helpfulness or willingness to be helpful. Although the manner in which prosecutions are initiated vary by jurisdiction, prosecutors encounter persons who have been victims of criminal activity. These encounters occur in the process of making charging decisions or when police, magistrates, commissioners or even the victim s own perpetrator, have brought criminal charges. When the crime victim is or may be a non-citizen, DHS has authorized prosecutors to issue U-visa certifications. Prosecutors can complete U-visa certification for victims of crimes listed in the statute. This authority to certify exists whether or not the prosecutor ultimately pursues prosecution of the perpetrator for the crime listed in the U-visa statute.. If a prosecution witness becomes a victim of criminal activity listed in the U-visa, prosecutors can sign certifications in cases of victims who are assisting in prosecutions that are not included on the U-visa list (e.g. drug or gang offenses). Prosecutors and victim witness personnel in prosecutor s offices are in a good position to both identify U-visa eligible crime victims and assess the immigrant victim s helpfulness or 18 INA 214(p)(1), 8 U.S.C. 1184(p)(1); 72 Fed. Reg. 53,014, 53,019 (Sept. 17, 2007). 19 INA. 101(a)(15)(U)(i)(III), 8 U.S.C. 1101(a)(15)(U)(i)(III); I.N.A. 214(p)(1), 8 U.S.C. 1184(p)(1). 20 It is important to note that U-visa certification can and should occur as early as possible after taking a police report or interviewing a credible crime victim. See72 Fed. Reg. 53,014, 53,019 (Sept. 17, 2007). Certification need not wait until the case reaches a probable cause determination. However, for cases in which probable cause has been found, noncitizen victims should receive U-visa certifications. 9

10 willingness to be helpful. This helpfulness can include past assistance to the police in reporting the case and cooperating in the investigation, current helpfulness to the prosecution or willingness to be helpful in providing information to prosecutors and potentially testifying as a witness. The DHS regulations envision that the U-visa certification process fits within routine activities of law enforcement. The U-visa certification can be completed at the same time officers are completing their police reports and can then be reviewed and approved by supervisors who are also signing off on the police reports. The U-visa regulations allow the head of the certifying agency to grant any supervisory person(s) the authority to issue U-visa certifications. 21 The regulations contemplate granting certification authority to multiple supervisory personnel. DHS encourages law enforcement agencies to develop internal policies and procedures to respond to requests for U-visa certifications. To facilitate the authorization of personnel to sign U-visa certification forms, a sample Designee Letter is included in the tool kit on page 23. Certifying agencies may also develop internal policies and procedures to inform victims where and with whom to file requests for certifications; to provide certifying officials with the relevant and necessary information needed for supervisors to sign U-visa certifications; and to implement practices that result in certifications being issued. A sample U-visa certification policy is included in the tool kit on page 30. Evaluating Helpfulness Law enforcement officials may complete U-visa certifications once they are able to assess a victim s helpfulness. An investigation need not be complete prior to signing a certification. The certification signed by a certifying official demonstrates that the applicant has been helpful, is being helpful, or is likely to be helpful in the detection, investigation, or prosecution of the qualifying criminal activity. 22 The helpfulness requirement was written using several verb tenses, recognizing that an applicant may apply for status at different stages of an investigation or prosecution. 23 Congress intended to allow an individual to petition for status at virtually any stage of the investigation or prosecution. 24 Likewise, the definition of investigation or prosecution in the statute is interpreted broadly. 25 Some examples of helpful actions include, but are not limited to, calling 911 to report the crime, providing a statement to the police, filing a police report, or seeking a protection order. A victim who received certification and was granted a U-visa has an ongoing obligation to provide assistance. 26 Law enforcement officials may notify USCIS directly for cases in which 21 See 8 CFR (a)(3) & (c)(2)(i) U.S.C. 1184(p)(1) Fed. Reg. 53,014, 53,019 (Sept. 17, 2007). 24 Id. 25 Id. at 53,020; 8 C.F.R (a) (5). 26 Id. 10

11 victims are no longer helpful. However, such notification is appropriate only when the victim s lack of cooperation is not reasonable. Congress understood that witness tampering and threats from perpetrators may eventually deter the cooperation of crime victims who initially come forward and report crimes. The following are a few common examples of when a victim s lack of ongoing cooperation is not unreasonable: 1) when perpetrators, through coercion and threats, make the victim unavailable for trial or 2) when a victim reasonably fears for her safety or her children s safety or 3) the victim fears retaliation from her perpetrator if she testifies at trial. Police and prosecutors working with domestic violence and sexual assault victims understand that perpetrators can be held accountable through evidence based prosecutions even when victims do not testify at in criminal trials. Receiving a U-visa approved by DHS and protection from deportation can bolster the victim s courage to cooperate despite these fears and concerns. Based on the understanding that victim s level and ability to cooperate may fluctuate over time, the law requires that for U-visa victims to attain lawful permanent residency, they must provide DHS proof of cooperation or they must prove to DHS that their did not unreasonably refuse to cooperate in the investigation or prosecution of criminal activity. VII. APPLICATIONS FOR LAWFUL PERMANENT RESIDENCY BY U-VISA RECIPIENTS U-visa status is issued for a period of up to four years. 27 A U-visa holder can live and work legally in the United States and file petitions with USCIS to provide immigration status for family members. 28 Upon certification by a qualifying official, U-visa status can be extended. 29 After three years of continuous presence in the United States, a U-visa holder is eligible to apply for lawful permanent residency. 30 Not all U-visa holders will qualify for lawful permanent residency. To qualify, U-visa holders must provide evidence that they have not unreasonably refused to provide assistance in the criminal investigation or prosecution and that their continuous presence in the country is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest. 27 See INA 214(p) (6), 8 U.S.C. 1184(p) (6) C.F.R (g) (2008). 33 See INA 214(p)(6), 8 USC 1184(p)(6); 8 CFR 214.4(g)(2008). 30 See INA 245(m), 8 U.S.C. 1255(m). 11

12 U-VISA QUICK REFERENCE GUIDE FOR LAW ENFORCEMENT Purpose of the U-visa Benefits of the U-visa Who is eligible for a U-visa? U-visa Qualifying Criminal Activity Status of Crime Perpetrator The U-visa facilitates the reporting and prosecution of crimes enumerated in the U- visa statute, which includes domestic violence, sexual assault, and human trafficking, where the victims are immigrants. The U-visa strengthens law enforcement s ability to detect, investigate, and prosecute crime. For immigrant victims of crime, this visa offers legal immigration status, work authorization, and protection from deportation. Also, the visa improves the victim s ability to withstand threats and intimidation from perpetrators. Prosecutions then benefit from the resulting increase in the quality and quantity of evidence and testimony available to prosecutors. To be eligible for a U-visa, o an individual must have suffered substantial physical or mental abuse as a result of having been a victim of one or more qualifying criminal activities; o the individual must possess information concerning the criminal activity; o the individual must be helpful, have been helpful, or be likely to be helpful to a federal, state, or local official in the detection, investigation, or prosecution of the criminal activity; and o the criminal activity must have occurred in the United States or its territories and possessions or violated U.S. laws. U-visa qualifying criminal activity includes, but is not limited to: 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, solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state, or local criminal law. The term any similar activity accounts for the wide variety of state and federal criminal laws that may have names different from the criminal activity listed in the statute but are comparable in nature and elements to the enumerated criminal activity. A victim may qualify for a U-visa certification regardless of whether there is any familial relationship between the victim and the perpetrator. The perpetrator may have any immigration or citizenship status such as U.S. citizen, legal permanent resident, diplomat, work-visa holder, or undocumented immigrant. 12

13 Certification Requirements Assessing the Helpfulness of the U-visa Applicant A certifying official must complete U.S. Citizenship and Immigration Services (USCIS) Form I-918, Supplement B. A certifying official is the head of a law enforcement agency, prosecutor s office or a person(s) with supervisory responsibility designated by the head of the agency or office to provide certifications. State and federal judges, labor law enforcement agencies, adult and child protective services agencies can also sign certifications. Here are some important things to note about the certification: o The certification is necessary to establish eligibility for the U-visa, but by itself does not grant immigration status to the victim. To obtain a U-visa, a victim must meet certain eligibility requirements, in addition to obtaining a U-visa certification. USCIS has sole authority to grant or deny a U-visa. o The certification should provide specific details about the nature of the crime being detected, investigated, or prosecuted, and describe the petitioner s helpfulness in the case. o U-visa certification does not require that law enforcement investigate the criminal activity beyond reporting of the crime or that prosecutors try a case or obtain a conviction. The certification attests only to the U-visa petitioner s willingness to be helpful or past or present helpfulness in detection, investigation, prosecution, or investigation efforts. If a U-visa petitioner filed a police report and is willing to assist or has assisted or cooperated with detection, investigation, or prosecution of criminal activity, a certification may be provided even when the initial investigation efforts do not lead to further investigation and/or do not result in a prosecution or a conviction. Congress intended to allow victims to obtain U-visa certifications at very early stages of crime detection during investigations into criminal activity. Law enforcement officials may issue a certification at any time after detecting a qualifying criminal activity if the officer believes criminal activity occurred and identifies a person as a victim of criminal activity. The investigation need not be complete prior to issuing a certification. To be eligible for lawful permanent residence, the victim has an ongoing responsibility to provide assistance when reasonably requested, as the statute specifies. 13

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23 SAMPLE DESIGNEE LETTER [LAW ENFORCEMENT AGENCY or PROSECUTOR S OFFICE LETTERHEAD] [DATE] Victims and Trafficking Unit Vermont Service Center Vermont Service Center U.S. Citizenship and Immigration Services 75 Lower Welden Street St. Albans, VT Dear Sir or Madam: I am the [Chief of Police/ Sheriff/Prosecutor s Office] of City [or County], State. In this capacity, I am the head of the [Police Department /Sheriff s Office/Prosecutor s Office] of [County, State], which office is responsible for investigating [or prosecuting] crimes committed in [County, State], which is a certifying agency, as such term is defined at 8 C.F.R (a)(2). Pursuant to 8 C.F.R (a)(3) and 8 C.F.R (c)(2)(i), I hereby specifically designate Person A, Person B, and Person C, all of whom have supervisory responsibilities, to sign I-918 Supplement B, U Nonimmigrant Status Certification forms on my Department s behalf. This specific designation shall remain in force until revoked in writing. Sincerely, [Name] [Title] [County, State] 23

24 U-VISA CERTIFICATION OFFICER S DUTIES 1 GENERAL PURPOSE In addition to performing duties listed under [reference job description that covers officer], the U-visa certification officer(s) will perform a variety of tasks associated with the U-visa certification process, including evaluating U-visa certification requests, and completing and signing I-918 Supplement B forms (certification forms). SUPERVISION EXERCISED U-visa certification officer is in a supervisory position and is designated by the head of the agency. ESSENTIAL DUTIES AND RESPONSIBILITIES Serves as liaison between police department and agency personnel seeking U-visa certification Reviews and signs I-918 Supplement B certification forms prepared by agency personnel Completes and signs I-918 Supplement B certification forms Assists the police department in developing programs and practices that will enhance community-outreach activities related to the U-visa and noncitizen crime victims Oversees programs to educate the public about police department s U-visa certification function and purposes Meets and acts as a liaison with community groups Liaises with other local government agencies on U-visa issues as assigned Supports patrol officers at crime, fire, and accident scenes with U-visa information, materials, and outreach activities 1 This model duties document was created by Legal Momentum and the Vera Institute of Justice, two not-for-profit organizations that provide national technical assistance to law enforcement agencies on the U-visa certification process. 24

25 Completes monthly reports of activities detailing the number of U-visa certification requests and grants PERIPHERAL DUTIES Serves on various law enforcement and other committees as assigned Performs related U-visa work as assigned DESIRED MINIMUM QUALIFICATIONS Education and Experience: (A) Same as for [job description] Preferred Knowledge, Skills, and Abilities: (A) Knowledge and experience working with immigrant and noncitizen crime victims, including those eligible for immigration benefits related to the Violence Against Women Act (VAWA) (e.g., VAWA self-petitions, T-visas, and U-visas) (B) Knowledge of U-visa statute and regulations, the U-visa certification process, and other victim-based forms of immigration relief available to immigrant crime victims (e.g., VAWA selfpetitions and T-visas). (C) Knowledge and command (reading, writing, and speaking) of one or more foreign languages prevalent in the community (D) Experience in community policing (E) Familiarity with agency s limited English proficient policies and procedures (e.g., how to access telephonic interpreters and how to work with bilingual personnel); and ADDITIONAL DESIRED QUALIFICATIONS [for agency to complete] th Street NW, Suite 300, Washington, DC T: This project was supported by Grant No DG-BX-K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the author and do not represent the official position or policies of the United States Department of Justice. 25

26 SPECIAL REQUIREMENTS [for agency to complete] th Street NW, Suite 300, Washington, DC T: This project was supported by Grant No DG-BX-K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the author and do not represent the official position or policies of the United States Department of Justice. 26

27 TOOLS AND EQUIPMENT USED Personal computer, including word processing and specialized software; phone, typewriter, calculator, fax machine, copy machine; police car, police radio, pager, first aid equipment, vehicle lock-out tools, camera, outreach materials (pamphlets, palm cards) with information for noncitizen crime victims SELECTION GUIDELINES Written application by existing officer; rating of education and experience; oral interview; additional related tests may be required. The duties listed above are intended only as illustrations of the various types of work that may be performed. The omission of specific statements of duties does not exclude those duties from the position if the work is similar and related to a logical assignment for the position. 27

28 SAMPLE OUTREACH FLYER WERE YOU THE VICTIM OF A CRIME? If you or a close family member were the victim of a crime, you may be able to get a temporary visa, the U-visa, that can protect you from being deported if you are willing to help police and prosecutors investigate and prosecute that crime. You may be eligible for a U-visa if you or your family member were the victim of one of these crimes: rape, torture, trafficking, domestic violence, sexual assault, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, blackmail, extortion, murder, or any similar activity that violates the law Were you a victim of one of the crimes listed above? Was a close family member of yours a victim of a crime listed above? Were you or a close family member the victim of a similar crime? If your answer is YES, you should call [Name] at X Police Department to make a police report. You and your family member may be able to apply for a U-visa. The U-visa is a temporary visa for victims who make a report to the police. The U-visa protects you from being deported for four years. It provides legal immigration status if you are a crime victim and allows you to work legally. You may be able to apply for a U-visa if you helped or will help police and prosecutors investigate or prosecute a crime. If you have an emergency, call 911 right away. The X Police Department [ X Prosecutor s Office] wants to help victims of crime who report crime. This helps us protect the public safety. To learn more about the X Police Department s [Prosecution s Office U-visa program, contact at. 28

29 FUE VICTIMA DE UN CRIMEN? Si usted -o un familiar cercano- fue víctima de un crimen, puede calificar para obtener una visa temporal, la visa-u, que le proteja de la deportación, si ayuda a la policía a o la procuraduría investigar y juzgar dicho crimen. Para calificar para una visa-u, si usted o un miembro de su familia fue víctima de cualquiera de estos crímenes: violación, tortura, tráfico de personas, violencia doméstica, asalto sexual, prostitución, explotación sexual, mutilación sexual femenina, toma de rehenes, servidumbre involuntaria, trata de esclavos, secuestro, rapto, chantaje, extorsión, homicidio o cualquier actividad similar violatoria de la ley. Fue usted víctima de alguno de los crímenes mencionados anteriormente? Fue un familiar cercano suyo, víctima de alguno de los crímenes mencionados anteriormente? Fue usted, o un familiar cercano, víctima de un crimen similar? Si su respuesta es Sí, llame a [nombre]del Departamento de Policía o Procuraduría X [nombre del departamento] para reportar el crimen a la policía. Usted y su familiar pueden calificar para recibir una visa-u. La visa-u es una visa temporal para víctimas que reportan su crimen a la policía. La visa-u le protege de la deportación durante cuatro años. La visa-u le da status legal de inmigración si usted ha sido víctima de un crimen y le permite trabajar legalmente. Si usted ayudó o va a ayudar a la policía y la procuraduría a investigar o juzgar un crimen. Para emergencias llame al 911 inmediatamente. El Departamento de Policía o Procuraduría X quiere ayudar a las víctimas que reportan estos crímenes. Esto nos ayuda a garantizar la seguridad pública. Para más información sobre el programa de la visa-u del Departamento de Policía o Procuraduría X llame a al teléfono. 29

30 POLICE DEPARTMENT GENERAL ORDERS, POLICIES, AND PROCEDURES Enforcement Operations Specialized Situations and Services Police Department GENERAL ORDER Date of Issue Page Number Subject: CERTIFICATION OF U VISA NON-IMMIGRANT STATUS (FORM I-918, SUPPLEMENT B) CALEA STANDARDS BY AUTHORITY OF I. PURPOSE The purpose of this General Order is to establish guidelines and procedures for officers who receive requests for a U-Visa Certification (Form I-918, Supplement B). This General Order also specifies the certifying officer who will sign Form I-918, Supplement B. II. POLICY A. It is the policy of this police department that any person(s) in a supervisory role and specifically any supervisor in the domestic violence unit, sexual assault unit, and/or investigatory units, is designated to issue U-Visa Certification on behalf of the chief of police by completing Form I-918, Supplement B. B. It is also the policy of this police department to assist immigrant crime victims with their U-visa applications if they cooperate with agency officials. III. DEFINITIONS A. Qualifying criminal activity is defined by statute to be activity involving one or more of the following or any similar activity in violation of federal, state, or local criminal law. The statute also includes the attempt, conspiracy, or solicitation to commit any of the crimes listed below: 30

31 Abduction Incest Rape Abusive sexual contact Involuntary servitude Sexual assault Blackmail Kidnapping Sexual exploitation Domestic violence Manslaughter Slave trade Extortion Murder Torture False imprisonment Obstruction of justice Trafficking Felonious assault Peonage Perjury Unlawful criminal restraint Female genital mutilation Witness tampering Being held hostage Prostitution Other related crimes B. Any Similar Activity refers to other criminal activity when the similarities are substantial and the nature and elements of the criminal activity are comparable. C. The U-visa is the common name for the U nonimmigrant status. IV. PROCEDURE Before completing a Form I-918, Supplement B (a request for a U-visa certification), the certifying official shall have verified the following: A. The noncitizen was or is 1. a victim of a criminal activity (listed in Part III-A above) that took place in the United States or its territories or occurred outside the United States but violates U.S. extraterritorial law; or 2. the spouse or under-21-year-old child of a victim who is deceased because of murder or manslaughter, or who is incompetent or incapacitated; or 3. the parents and unmarried under-18-year-old siblings of an under-21-year-old victim who is deceased because of murder or manslaughter, or who is incompetent or incapacitated. B. The noncitizen has been, is being, or is likely to be helpful to the investigation. This department s policy describes the victim as being helpful when s/he 1. possesses information about a qualifying criminal activity; and 2. demonstrates cooperation during the detection or investigation of that criminal activity, even if the investigation is not completed. C. When a certification is based on a prior investigation or a criminal case that has been closed or suspended, or when a statute of limitations has passed, the certification shall be completed after the above verification has been conducted. D. No request for certification will be accepted unless it is made on the proper U.S. Citizenship and Immigration Services form (Form I-918, Supplement B) and has been completed by the referring legal entity (such as a private attorney, nonprofit organization, or victim). 31

32 E. The request for certification shall be completed within 14 days from the time it was presented to this department. F. All requests for Form I-918, Supplement B certifications presented to this department shall be forwarded to the designated certifying officials. G. The certifying official may contact the VAWA Unit of the U.S. Citizenship and Immigration Services to report the U-visa applicant s failure to continue cooperating with the department only when the failure to cooperate is considered unreasonable. To determine whether failure to cooperate is unreasonable, officials should review and consider the victim s history of abuse and victimization, and any threats the victim has experienced or is experiencing. V. ADDITIONAL CONSIDERATIONS Department policy authorizes its members to distribute to any crime victim who may be a noncitizen an informational flyer describing immigration relief and services available to immigrant crime victims. 32

33 U-VISA NEWS ARTICLES The links to the following news articles are provided as references that may assist law enforcement better understand their role as U-visa certifiers. 1. Ivie, Stacey and Nanasi, Natalie. The U Visa: An Effective Resource for Law Enforcement. FBI Law Enforcement Bulletin (2009). Available at: pdfs/october2009.pdf/at_download/file Detective Stacey Ivie from the Alexandria (VA) Police Department discusses the advantages of the U-visa for law enforcement and answers several frequently asked questions posed by her peers about the U-visa. (See page 34 of Toolkit) 2. Sprecher, Megan and McGrath, Michael. City of Cleveland takes important steps to ensure citizen safety: We all should follow its lead. Cleveland.com (2010). Available at: Ed.pdf This article chronicles the City of Cleveland s efforts to expand the use of the U-visa, including working with the Cleveland Police Department to issue a U-visa protocol. 3. Toral, Almudena. Visas Out of Hell: Women Need to Know They Exist. WeNews.org (2010). Available at: This article highlights the story of Graciela Beines, a crime victim, and how the assistance she received from police, advocates, and others led to a U-visa. The article also links to a video of Ms. Beines describing her experiences. 4. Ulloa, Jazmine. U Visa provides temporary legal status for victims of violent crime. The Brownsville Herald (2010). Available at: night-wall.html. In this article, the author details the history of the U-visa, including the administrative barriers that have led to the U-visa being an underused tool for law enforcement th Street NW, Suite 300, Washington, DC T: This project was supported by Grant No DG-BX-K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the author and do not represent the official position or policies of the United States Department of Justice. 33

34 Federal Bureau of Investigation - FBI Law Enforcement Bulletin mhtml:file://c:\documents and Settings\psaintfort\Local Settings\Temp\39\Temporary Dir... Page 1 of 5 8/30/2011 Contact Us Your Local FBI Office Overseas Offices Submit a Crime Tip Report Internet Crime More Contacts Feature The U Visa An Effective Resource for Law Enforcement By Stacey IVIE, M.Ed., and Natalie Nanasi, J.D. Learn About Us Quick Facts What We Investigate Natl. Security Branch Information Technology Fingerprints & Training Laboratory Services Reports & Publications History More About Us Get Our News Press Room Updates News Feeds Be Crime Smart Wanted by the FBI More Protections Use Our Resources For Law Enforcement For Communities For Researchers More Services Visit Our Kids' Page Apply for a Job Law enforcement personnel strive for strong connections with all citizens. In pursuit of this goal, striking an appropriate balance one that punishes wrongdoers while protecting victims can present a challenge. One way that officers not only can foster better relationships with immigrant communities but also increase offender accountability, promote public safety, and help ensure that crimes translate into convictions is to promote awareness of the U visa, which provides important immigration benefits to cooperating crime victims. The authors believe that the fear of deportation has created a class of silent victims and undermined officers attempts at community-oriented policing among immigrant populations. They opine that the U visa helps improve relations with these communities, increase the reporting of criminal activity, enable provision of services to victims, and enhance the prosecution of violent perpetrators. Also, the authors feel that officers may have misconceptions about the U visa and not recognize its effectiveness as a tool. They hope that this article will help clarify the intent, purpose, and benefits of the U visa to the law enforcement community. DESCRIPTION OF THE U VISA Congress created the U visa available to immigrant victims of a wide range of serious crimes as part of the Victims of Trafficking and Violence Protection Act of 2000, recognizing that many of these individuals, with temporary or no legal status, fear that assisting law enforcement could lead to deportation. 1 By providing noncitizen victims a means of stabilizing their legal status, the U visa encourages them to report the crimes. It helps to curtail criminal activity, protect the innocent, and encourage victims to fully participate in proceedings that will aid in bringing perpetrators to justice. 2 The U visa also can promote contact with law enforcement officers within isolated communities, which provides valuable assistance to individuals at heightened risk of victimization. The U visa provides an avenue to legal status for immigrant crime victims who 1) have suffered substantial physical or mental abuse as a result of victimization; 2) possess information regarding the activity; and 3) offer a source of help in the investigation or prosecution. 3 The incident in question 34

35 Federal Bureau of Investigation - FBI Law Enforcement Bulletin mhtml:file://c:\documents and Settings\psaintfort\Local Settings\Temp\39\Temporary Dir... Page 2 of 5 8/30/2011 must have violated U.S. law or occurred within the nation s borders (including Indian country and military installations) or one of its territories or possessions. The qualifying criminal activities covered by the U visa include a long list of serious offenses or the attempt, conspiracy, or solicitation to commit any of them. Unlike other protections available to battered immigrants (such as those provided under the Violence Against Women Act), eligibility for a U visa does not depend on a marriage between the victim and abuser or the legal status of the perpetrator. 4 To obtain a U visa, victims must demonstrate to the U.S. Citizenship and Immigration Services (USCIS) their willingness to cooperate in a qualifying investigation or prosecution by law enforcement entities, such as federal, state, or local police agencies; prosecutors; judges; or any other appropriate authority. This definition includes organizations with criminal investigative jurisdiction in their respective areas of expertise (e.g., Child Protective Services, the Equal Employment Opportunity Commission, and the Department of Labor). 5 BENEFITS FOR VICTIMS Approved U-visa petitioners receive temporary legal status and work authorization, which allows these victims to support themselves and rebuild their lives in safety while assisting law enforcement. 6 After 3 years, they may gain eligibility for lawful permanent resident status (i.e., a Green Card). Such benefits make the U visa an effective tool for bringing victims, particularly those of domestic violence who may depend on the perpetrator for legal status or economic support, out of the shadows. Research shows that immigrant battered women want the violence to stop, but culture, lack of support and immigration status limit their ability to deal with the violence and make them particularly vulnerable to failure in their attempts to escape a battering relationship. 7 Often, these victims find it difficult to break free as social isolation, exacerbated by lack of social contacts, geographic isolation, and limited mastery of English or cultural alienation interferes with detection and accountability, makes it easier for the batterer to ignore social sanctions, promotes increased marital dependence, and increases intrafamilial exclusivity and intensity. 8 The prospect of a U visa may eliminate the person s fear of calling the police for help, and, once connected to legal and social service systems (e.g., victim-witness advocates, battered-women s shelters, health- and child-care programs), some of the pressures that discourage victims of domestic violence to leave a relationship may be alleviated, allowing them to ultimately break the cycle of abuse. Moreover, financial concerns pose significant barriers that prevent victims of crimes, such as domestic violence, from leaving and attaining economic self-sufficiency. Because battered immigrant women are not eligible for many work opportunities and public benefits, they and their children must choose between remaining in a violent situation or facing starvation and poverty. The U visa, therefore, can afford noncitizen victims of domestic violence the same opportunities as survivors with U.S. citizenship and allow them to obtain the resources crucial in helping them escape from abusive situations. 9 Detective Ivie serves with the Alexandria, Virginia, Police Department. Ms. Nanasi is an attorney with the Tahirih Justice Center in Falls Church, Virginia. ADVANTAGES FOR LAW ENFORCEMENT Cooperative Victims With immigrant victims no longer afraid to cooperate with the police, the subsequent increase in reporting will ensure the identification and apprehension of more violent criminals. Additionally, victim participation in the investigation or prosecution of cases increases the likelihood of convictions. The resulting accountability of offenders can lead to defendant rehabilitation, which, in turn, ultimately may increase the number of productive members of society, reduce crime rates, and promote public safety for all members of a community. Use of the U visa also may cause a decline in recidivism, or the repetition of certain crimes, thus decreasing the frustration of officers and the loss of financial assistance and other services needed 35

36 Federal Bureau of Investigation - FBI Law Enforcement Bulletin mhtml:file://c:\documents and Settings\psaintfort\Local Settings\Temp\39\Temporary Dir... Page 3 of 5 8/30/2011 by victims. These issues prove particularly prominent in domestic violence cases. Statistics show that on average, women leave and return to an abusive relationship five times before permanently leaving. 10 Those five incidents may have involved law enforcement responding to the scene and spending numerous hours on a case, thereby decreasing officers availability to other crime victims. Perhaps, the prosecutor spent time and financial resources to create an evidence-based prosecution with a limited chance of conviction. In such instances, the U visa can increase the likelihood of victim cooperation, thereby eliminating these wasted hours. Moreover, recidivism rates logically will decrease when public service resources are provided to undocumented victims of certain pattern crimes. The ability to earn an income and receive financial assistance may drastically change the outlook of victims who had no prospect for life modification prior to the availability of the U visa, allowing them to leave a violent relationship. Last, use of the U visa also can eliminate the current conflict faced by officers who respond to domestic violence scenes. Like many other states, the commonwealth of Virginia mandates public assistance for victims of domestic abuse. The Virginia Code requires that the officer provide the allegedly abused person, both orally and in writing, information regarding the legal and community resources available. 11 However, this directive conflicts with the prohibition against immigrant victims receiving public benefits, creating a confusing situation for first responders. Putting noncitizen victims of domestic violence on the path to legal status can resolve this inconsistency. Offenses Covered by the U Visa To obtain a U visa, the immigrant must be the victim of one or more qualifying crimes; the attempt, conspiracy, or solicitation to commit any of the acts; or any similar activity in violation of federal, state, or local criminal law. Rape Trafficking Domestic violence Abusive sexual contact Sexual exploitation Being held hostage Involuntary servitude Kidnapping Unlawful criminal restraint Blackmail Manslaughter Felonious assault Obstruction of justice Torture Incest Sexual assault Prostitution Female genital mutilation Peonage Slave trade Abduction False imprisonment Extortion Murder Witness tampering Perjury 8 U.S.C. 1101(a)(15)(U)(iii) Community-Oriented Policing Community-oriented policing promotes and supports organizational strategies to address the causes and reduce the fear of crime and social disorder through problem-solving tactics and policecommunity partnerships. 12 In short, this law enforcement model is based on the principle that only the partnership of police and citizens can successfully address the problem of crime in communities. The U.S. Department of Justice promotes community-oriented policing as a highly effective problemsolving model. Fear of deportation breaks down the ties that bind the police and the community, and, without a joint venture involving both participants and the trust that must exist between the two parties, communityoriented policing will not work. Use of the U visa can address this fear, giving victims more confidence about calling the police and increasing trust between community members and those sworn to protect and serve. FREQUENTLYASKED QUESTIONS Although the U visa can provide substantial benefits to both victims and officers, the authors recognize that valid questions and concerns exist that may limit its acceptance and effectiveness in the law enforcement community. The answers to some frequently asked questions can help address 36

37 Federal Bureau of Investigation - FBI Law Enforcement Bulletin mhtml:file://c:\documents and Settings\psaintfort\Local Settings\Temp\39\Temporary Dir... Page 4 of 5 8/30/2011 these issues. What role do law enforcement agencies have in the application process? Agencies only complete the 3-page Form I-918 Supplement B, U Nonimmigrant Status Certification (i.e., the law enforcement certification form ), which simply requires the department s information; the details of the crime; and the victim s personal data, knowledge of the incident, and helpfulness to the investigation or prosecution. Signing the form does not indicate sponsorship of the immigrant. Although the form bears significant weight because it demonstrates that the individual has met several of the eligibility criteria, the USCIS decides whether to grant the U visa only after evaluating the totality of the circumstances. However, a U visa will not be issued without a signed law enforcement certification. Who can sign the law enforcement certification form? Heads of certifying agencies or any supervisory employee they appoint (i.e., a designated certifier) can sign the form. A designated certifier should know the certification requirements thoroughly and be readily identifiable and accessible to immigrant crime victims; this simplifies the process for applicants, serves as a quality control measure, and prevents abuse of the U visa. What if the victim stops cooperating? Certifying departments may notify USCIS if victims do not meet their ongoing responsibility to cooperate with law enforcement officers. However, agencies should recognize when a victim may have suffered abuse-related trauma (e.g., post-traumatic stress disorder or other debilitating emotional or physical condition) or legitimately fear retaliation from perpetrators; in such situations, agencies should be mindful of withdrawing or refusing certification. Departments also should remember that issuance of a U visa does not require any case outcomes or milestones; a victim must only be helpful. 13 Last, USCIS assumes an ongoing need for the applicant s assistance ; if authorities no longer need help, the victims have fulfilled their obligation to law enforcement. 14 Is there a quid pro quo? No. The U visa is not given in exchange for filing a police report or for testimony at trial. Are some eligible victims criminals due to their illegal presence in the United States? The Immigration and Nationality Act (INA) determines an individual s legal status. In enacting the Victims of Trafficking and Violence Prevention Act and creating the U visa, Congress modified the INA. The federal government weighed all of the interests involved and ultimately created a legal status for cooperating crime victims, regardless of their means of entry into the country, based on the determination that the purpose of the U nonimmigrant classification is to strengthen the ability of law enforcement agencies to investigate and prosecute such crimes as domestic violence, sexual assault, and trafficking in persons, while offering protection to alien crime victims in keeping with the humanitarian interests of the United States. 15 Will U visas increase the filing of false police reports? To combat false reporting, law enforcement officials should conduct a thorough investigation of any alleged crime to determine its authenticity. Concerning a false allegation, not only should officers not sign the U-visa certification form but they should initiate a criminal charge for the filing of a false police report. However, no evidence indicates that an agency s use of the U visa will lead to the filing of false claims. The U visa covers crimes that are serious, predominantly violent, difficult to fabricate, and that carry dire legal consequences for the perpetrator. Additionally, immigrants hesitant to contact authorities regarding a real crime because of their fear of deportation probably would not do so to report a false one. Moreover, U-visa regulations protect against its abuse in this way. First, they specifically exclude a person culpable for the qualifying criminal activity from U-visa eligibility. 16 Further, if applicants cannot demonstrate a true crime s occurrence, their suffering from the incident, or their cooperation with law enforcement, they cannot obtain a U visa. Do law enforcement agencies have to sign U-visa certification forms? The federal government does not mandate that law enforcement agencies implement a U-visa certification process. It only serves as a resource designed to augment the effectiveness of a criminal investigation or prosecution. However, departments that decline participation may prevent the identification and punishment of violent perpetrators. Moreover, refusing to certify a qualifying victim not only undermines the purpose of the federal law but decreases an agency s ability to combat crime, apprehend perpetrators, foster relationships within immigrant communities, and provide crucial assistance to victims of violent crime. CONCLUSION The fear of deportation can cause immigrant communities to cut themselves off from police and not offer information about criminal activity, even when victimized. Consequently, predators remain on 37

38 Federal Bureau of Investigation - FBI Law Enforcement Bulletin mhtml:file://c:\documents and Settings\psaintfort\Local Settings\Temp\39\Temporary Dir... Page 5 of 5 8/30/2011 the street, emboldened because they know they can strike with a degree of impunity. As a result, societies face increased crime, including serious offenses, and the perpetrators victimize and endanger everyone, not just illegal immigrants. 17 The U visa can alleviate the concerns of immigrant communities, open lines of communication, and enhance public safety for all. It then helps law enforcement officers fulfill their ultimate goal of ensuring the well-being of those they serve. Endnotes 1 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status, Background and Legislative Authority, retrieved from See also The U visa is available to individuals with temporary immigration status (e.g., student, employmentbased, and tourist visas or Temporary Protected Status), as well as undocumented persons with no legal status. 4 Because of their experience and expertise, the authors use examples of domestic violence and other crimes against women throughout the article. However, the U visa is available to both men and women and serves as a useful tool against a wide range of violent crimes. 5 8 C.F.R (a)(2) (defining a certifying agency for U-visa purposes). 6 Pursuant to 8 U.S.C. 1184(p)(2), the maximum number of issued U visas may not exceed 10,000 per fiscal year. 7 M.A. Dutton and G.A. Hass, The Use of Expert Testimony Concerning Battering and Its Effects on Immigrant Women ; retrieved from DocServer/wwwappendixcesperttestimonyconcerningbattering.pdf?docID= Joyce Nielson, Russell Endo, and Barbara Ellington, Social Isolation and Wife Abuse: A Research Report, in Intimate Violence: Interdisciplinary Perspectives, ed. Emilio C. Viano (Bristol, PA: Taylor and Francis, 1992); and Bruce Rounsaville, Theories in Marital Violence: Evidence from a Study of Battered Women, Victimology: An International Journal 11 (1978): National Immigration Law Center Fact Sheet on the Women Immigrants Safe Harbor Act; retrieved from immspbs/cdev/wish/wish_2-pgr_ pdf VA Criminal Procedure Code U.S. Department of Justice, Office of Community Oriented Policing Services, What Is Community Policing? retrieved from See also David Allender, Community Policing: Exploring the Philosophy, FBI Law Enforcement Bulletin, March 2004, 18-22; Clyde Cronkhite, Fostering Community Partnerships That Prevent Crime and Promote Quality of Life, FBI Law Enforcement Bulletin, May 2005, 7-10; John Ellison, Community Policing: Implementation Issues, FBI Law Enforcement Bulletin, April 2006, 12-16; and Carl Peed, The Community Policing Umbrella, FBI Law Enforcement Bulletin, November 2008, U visa regulations broadly define the concept of helpfulness, to include victims who have been helpful in the past, are currently being helpful, or are likely to be helpful in the future. 8 CFR (b)(3) C.F.R (a)(2). 15 U Visa Regulations, Document Summary, 8 C.F.R C.F.R (a)(14)(iii). 17 David Harris, Avoidable Disaster: Police Enforcing U.S. Immigration Law ; retrieved from October 2009 FBI Law Enforcement Bulletin Accessibility erulemaking Freedom of Information Act/Privacy Legal Notices Legal Policies and Disclaimers Links Privacy Policy USA.gov White House FBI.gov is an official site of the U.S. Federal Government, U.S. Department of Justice. 38

39 San Francisco U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimizati... Page 3 of 9 8/30/2011 The pizza delivery guy glanced at the order for his late-night run. Trouble. In 1995, supreme pizzas were the priciest pies on the menu at Geneva Pizza, a mom-and-pop shop in the Excelsior, and this customer wanted two. Plus, the delivery was for an address near the projects in Visitacion Valley, where $30.05 wasn't pocket change. Mardoqueu Silva was 21 then, a Brazilian student both model-handsome and choirboy-polite. Illegally overstaying his tourist visa for four years and counting, he took the jobs he could get without papers. So he headed out for the delivery that would change his life. Silva followed his boss' instructions. Parking in the street and calling to say he'd arrived, he rolled the window down a few inches and told the twentysomething black man who approached in a 49ers jacket and white pants to pay him up front. The man stuffed bills into his hand, and Silva turned to grab the pizzas in the passenger seat. A.45 handgun was pressed into Silva's temple. His hair stood on end. "Give me all the motherfucking money and your wallet and get the hell out of the car." 39

40 San Francisco U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimizati... Page 4 of 9 8/30/2011 Silva got out, his hands behind his head. He told his assailant that his wallet was in the car, and to take anything you want, just don't shoot. More thugs rushed up and searched his car, snatching his cellphone, and yes, the two pizzas. In less than a minute, it was over. Silva sped back to the pizzeria and quit on the spot. His boss called the cops. Police officers drove him back to the block of the delivery, where they had several men lying handcuffed on the sidewalk. The police shone a light on them; Silva identified the man in the 49ers jersey, but didn't recognize the rest. The hold-up haunted him. Silva hates to admit it, but his heart would race when a black man any black man sat near him on BART for years afterward. Yet life as an illegal immigrant continued. He married another undocumented Brazilian. He moved out to Tracy. He became a hairdresser, mumbling "Mmhmm" as the clients in his chair complained about illegals this, illegals that. One day in 2009, Silva was reading the Bible when Romans 13:1 struck him like a lightning bolt: "Let everyone be subject to the governing authorities." He strode into the Oakland office of immigration attorney Robert Lewis and declared he wanted to do something most immigrants would call utterly are-you-kidding-me crazy: He wanted to turn in himself and his wife to immigration authorities. Lewis was taken aback. "I've never heard that in my entire life," Silva recalls him saying. "I said, 'Let's leave it in God's hands. We'll say we are here illegally and we'll let the court decide.'" Lewis suggested they explore their options first. He lobbed a long line of questions at Silva, including this one: Had he ever been a crime victim? "Actually," Silva answered,"i have." The attorney said he would see whether Silva was eligible for a U-1 visa, designed for victims of crime who'd cooperated with law enforcement. In 2009, this was a new program, and Lewis didn't know if it would work. But Silva was willing to try. The U.S. immigration system has long offered asylum to those who face persecution abroad. But in reauthorizing the Violence Against Women Act of 2000, Congress created a new visa that responded to the violence immigrants face. Domestic violence or sexual assault? Apply here. Robbery or attempted murder? Step right up. "We have a sick sense of humor here in our office," says Fernanda Bustamante, an attorney on Lewis' team who handled Silva's case. "Like, maybe we should just go tell them to get a job as a pizza deliveryman or walk around Fruitvale with a bunch of money in their hand of course, that's just totally kidding." The U visa was intended to improve immigrants' unwillingness to call law enforcement. San Francisco police officers don't inquire about the immigration status of people who report crime, yet the fear persists. Mug a day laborer or beat your wife, the thinking goes what are the victims going to do? Call 911, so they can be among the more than 300,000 people deported annually? The bad guys go unchecked, police are in the dark about entire swathes of a city, and public safety suffers. Distrust of the authorities only worsened with the recent national rollout of Secure Communities, a federal program that checks the fingerprints of local arrestees against a national database to identify illegal immigrants. The Department of Homeland Security finally issued regulations to issue U visas in 2007, and started approving them in significant numbers in In the Bay Area, attorneys, nonprofits, ethnic media, and the applicants themselves are spreading the word that the worst thing that happens to you in the United States may turn out to be the best. To date, 18,654 crime victims, most of whom were in the country illegally, have received the special visas. 40

41 San Francisco U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimizati... Page 5 of 9 8/30/2011 Alongside the enthusiasm comes criticism from those who wonder why people who broke the law to be here should be granted legal status for doing what most citizens would do anyway. "How many Americans are victims of violent crime and don't get squat when the trial is over?" says Richard McCain, who was tried and acquitted for domestic violence against his Mexican-born partner. "What does the illegal immigrant get? A chance to live here as an American." Some say it's unfair to those people who wait abroad for years for visas that would allow them to immigrate legally. Defense attorneys say some applicants are defrauding the system by taking cases to court they otherwise wouldn't in the hope of getting a visa. "Getting status in the United States is such a big deal that it really can create an incentive, sometimes just to exaggerate, and sometimes to flat out fabricate," says Stephanie Wargo, a San Francisco public defender who handled a sexual assault case in which the complaining witness was applying for a U visa. "I don't know the solution, but it is a problem." Earlier this month, SFPD Inspector Tony Flores walked among tables of California homicide inspectors in a Hilton Hotel ballroom. In a well-tailored black suit and lavender shirt with his gray hair gelled into a peak, he looked every bit the role of a charismatic salesman, selling the middle-aged male cops with beer guts and shaved heads on the idea that the U visa will buoy law enforcement in their jurisdictions. "I'm trying to change your beliefs," Flores told them. "Some of you feel this person is in the U.S. illegally, why would I help them? Bottom line: If they're a victim in the United States, they're a victim in the United States." While the federal government issues U visas, local law enforcement plays an indispensable role. Police officers must certify the application, confirming that the person was a victim of one of the eligible crimes or has knowledge of the crime; and "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution. In San Francisco, the District Attorney's office approves U visa applications if charges are filed in court. The office has signed 290 since it started keeping track in Yet Flores signs off on cases in which the suspect was never caught or prosecuted neither of which is required to get the visa. Last year, he certified roughly 150. These days, he receives three to four new applications a day. To keep up, he says, he often has to research them "on my own dime" after his workday investigating domestic violence. When Flores asked the audience members for questions, they seemed skeptical. Will I get in trouble if they commit a crime after I sign off on the application? "There's no way to stop that, but we can say it's not us [giving them the visa], it's Homeland Security," he answered. What about false reports? Flores admitted that he, too, was skeptical at first. "I was like, 'I'm gonna see a bunch of people making false reports to stay in the country.' I'm not seeing that at all." Presentation done, Flores walked out into the lobby and said, "That was a tough room." Since local law enforcement certifies U visas completely at its discretion there is no federal mandate the visas have become a Rorschach test for a city's attitude toward illegal immigrants. The San Francisco Police Department abruptly stopped signing the applications in 2008, around the time the city got national blowback for its policy of shielding illegal juvenile drug dealers from U.S. Immigration and Customs Enforcement. After much lobbying by local immigrants' rights advocates, then-chief Heather Fong restarted the process, and Flores became the U visa czar. Last month, acting Chief Jeffrey Godown issued a department memo noting that all officers responding to crime scenes should tell immigrant victims that they may be eligible. (Not that everyone got the memo: "Never heard of it before," says Capt. Greg Corrales at Mission Station.) 41

42 San Francisco U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimizati... Page 6 of 9 8/30/2011 But police in other parts of the country won't sign at all. Many are like the Solano County District Attorney's office, which usually will certify only pending cases, arguing that there's no incentive to keep victims in the U.S. if there is no trial for them to testify in. Agencies can refuse to sign for any reason. Vallejo Police Lt. Ken Weaver says he rejected a petition last month of a woman whose teenage son had slapped her after she told him to get off the computer. "I just read that and I went, 'Are you kidding me?'" he recalls. "I was like, 'That's not the spirit of what this was intended for.'" Once the application arrives at a United States Citizenship and Immigration Services (USCIS) processing center in Vermont, adjudicators evaluate it and determine whether the victim has shown he or she has suffered substantial harm, either physical or mental, from the crime. Victims can submit medical records and letters from therapists as evidence. If the application is approved, the person receives a work permit and temporary residency status for four years. After the third year, if the person can prove he or she has continued to be helpful in the criminal investigation, she can apply to become a permanent resident. "It's the humane policy in the immigration system," says self-professed "U-vangelist" Susan Bowyer, directing attorney at the Immigration Center for Women and Children in San Francisco. "You want to have a tangible way of showing [immigrants] you can call the police without fear." But critics say the system is too generous. "It's not necessary to say, well, since you came forward to do the right thing, that therefore you're automatically entitled to a visa to remain in the United States for the rest of your life," says Ira Mehlman, spokesman for the Federation for American Immigration Reform, a nonprofit that advocates halting illegal immigration. Jessica Vaughan, the director of policy studies at the Center for Immigration Studies, a conservative think tank, especially faults the fact that victims can apply for the U visa even after they've been ordered deported: "It's their last-ditch Hail Mary pass to avoid being sent home." The visa's inclusiveness doesn't stop at deportees: Victims can get legal status for their spouses and children, even those living in another country. Victims under 21 can sponsor their parents and unmarried siblings under 18. In cases of murder or manslaughter, spouses and children can apply as "indirect victims," even if they didn't witness the crime. Since 2009, USCIS has issued 18,654 and rejected 5,639 U visas a 77 percent approval rate. Congress capped the number available annually at 10,000, though that does not include the 14,122 family members of victims who have also received the visas. All in all, U visas represent a blip in the vast visa system, which churns out more than a million green cards a year. But among immigrants, word about the U visa is traveling fast. Adolfo Lopez heard about the U visa from a friend he met on 24th Street in the Mission, who passed him the number for his caseworker at the East Bay Sanctuary Covenant. Lopez, an affable 23-year old Guatemalan, called the Berkeley-based immigrant advocacy organization that same day. Lopez says he's had a bad time since crossing into the United States six years ago. A group of teens stole his cellphone in Glen Park. While loading recyclables into his pickup truck last year his under-the-table job since construction work got slow a man robbed him at knifepoint. In 2006, he filed a police report after several men shot at him in the Bayview while he was sitting in his truck before beating and robbing him. In a couple of months, Lopez should learn whether he gets a U visa because of the shooting. "Good thing they didn't kill me, or I wouldn't be here to talk about it," he says on a recent morning, sitting in his truck on Newhall Street, across from the site of the crime. Further south on Third Street, there's a yellow house with a new owner: Rosa Aguilar. In 2003, her husband, Jesus Martinez, walked into the 500 Club, the iconic Mission bar with a twinkling martini glass sign beckoning outside. According to court filings, the bartender put Martinez into a choke hold on the sidewalk until he suffocated. (The bartender later committed suicide; Martinez's mother and Aguilar won a $1 million settlement from the bar in 2006.) 42

43 San Francisco U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimizati... Page 7 of 9 8/30/2011 About two years after the incident, a relative told Aguilar how Catholic Charities had helped him get a marriage visa. Aguilar met with caseworkers at the nonprofit, which does low-cost legal work for immigrants of all faiths, who helped her put together her application. A few years later, she received her U status. Life has changed: Aguilar was able to take out a loan to buy her house. She now earns $15 an hour as a hotel housekeeper, and tells her co-workers about the requirements for the visa every chance she gets. "I feel free. I feel safe. I feel life totally changed," she says. Since the U visa program began, a cottage industry of Bay Area nonprofits has sprung up to process applications, charging up to $1,000 a person. Catholic Charities is one of the largest. The visas have become 50 percent of its caseload, with 800 cases to date. Each Monday, caseworkers give legal advice to a clinic of about 20 immigrants, half of whom come to find out whether they're eligible. In one recent clinic, Francisco Gonzalez talked to the group in his rapid, Cuban-imbued Spanish. "The U visa is an excellent immigration benefit... The U visa will forgive someone who has a previous deportation order, who has left and entered the country illegally obstacles that in any other type of immigration case cannot be overcome." (People convicted of more violent crimes will be approved only in extraordinary circumstances.) Despite this apparent good news, the meeting's tone was somber. Gonzalez was firm and unsentimental; he reiterated that "I'm not promising anything." He looked over the restraining orders several women pushed across the table toward him and told them they'd need to return with police reports. He identified three viable cases: a Salvadoran mechanic who'd been beaten by youngsters in the Mission; a Mexican produce deliveryman who'd been stabbed 10 years ago on Bayshore; and a teenage girl who had come with her mother, sister, and Child Protective Services caseworker. Gonzalez told them of another problem: With 400 pending U visa cases at Catholic Charities and only three employees processing them, they'd be the first on a wait list. The delay didn't seem to bother the deliveryman. His solemn face broke into a smile as he contemplated becoming a legal resident after 17 years: "It means everything to me." The mechanic showed a reporter how his nose is askew after it was broken in the assault, and wiggled his false front teeth to show that his real ones got knocked out. Add that evidence to the police report in his hand, and it would be hard to doubt he's telling the truth. Yet as more U visa applicants testify in court, defense attorneys are trying to persuade juries that they cannot be trusted. Richard McCain says he and his Mexican boyfriend, Manuel Valencia, were planning "one last weekend of fun" before getting sober. Instead, it ended in a meth-infused three-way gone wrong, McCain in jail, and Valencia on the path to getting a U visa. Their case illustrates a new battleground for the U visa: the courtroom. Defense attorneys across the country, and especially in San Francisco, are using pending applications to persuade jurors that witnesses have a motivation to exaggerate charges or push forward with cases they might otherwise abandon. After all, to certify an application, the District Attorney's office must determine that a crime occurred and the person was "helpful" to the prosecution. The District Attorney's Victim Services Division head Maria Bee says she defines "helpful" on a case-by-case basis by the supposed victim either helping prosecutors outside of the courtroom, or testifying at trial. The federal government doesn't require that the suspect actually be convicted of the charge to issue the visa. Still, Public Defender Megan Burns says the District Attorney's office uses the visa as a tool. "I think it's just a reality that when the government has a witness that isn't here legally in the United States, and they want their assistance in a criminal case, [a discussion of the U visa] is something that comes up," she says. As for the witnesses, "They're motivated more by the immigration benefit they can receive than the actual truth of what really transpired." 43

44 San Francisco U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimizati... Page 8 of 9 8/30/2011 McCain and Valencia had been together for two years and had never had any physical altercations. Yet one night in early March 2009 when both had shot meth, they ended up arguing on a SOMA sidewalk. Valencia, a building manager, testified he swung a bag full of keys at McCain, who then punched him in the mouth. A parking meter attendant witnessed the fight and called cops, who arrested McCain for domestic violence. Valencia took out a restraining order against McCain after the incident, but McCain says his boyfriend relented and allowed him to stay overnight several times over the next three weeks. "We were spending time together and trying to reconcile," he says. Then, suddenly, Valencia told McCain he never wanted to see him again. McCain didn't find out until months later what he believes is the reason for his sudden rejection. Assistant District Attorney Brian Bringardner revealed in an to McCain's public defender a month before the trial in the summer of 2009 that Valencia "has been told about the option of getting a U visa. I don't know if he has actually applied for one." During the trial, McCain's public defender argued that Valencia had hit McCain first, and Valencia was pushing forward with the charges only because he wanted a U visa. The jury apparently bought it, acquitting McCain of the misdemeanor domestic violence charge. Still, the DA's office signed off on Valencia's application, Bee says, adding, "We have no control over what the jury is going to do." "I was absolutely dumbfounded to find out there was such an opportunity" for illegal immigrants, McCain says. "I'm not sure I wouldn't have done the same thing, being in his position. You tried [to become legal] for so long, and it's like a carrot in front of your face." McCain has since moved to Colorado and is no longer in contact with Valencia. That trial is one of many in San Francisco courts where the U visa has come up. In another 2009 trial, Olegaria B., a Mexican immigrant, accused a Yemeni taxi driver of forcing her to give him a hand job on the way to a New Year's party, public defender Stephanie Wargo says. The friend who hosted the party testified that Olegaria had joked about the incident at the time. But a few days later, she returned to the host's house and asked her to write an affidavit stating she had seen the taxi driver drop her off. The woman, who'd hadn't seen the cab, refused. Olegaria then asked her friend's teenage daughter to write a statement, but she also refused. Wargo argued to the jury that Olegaria was fabricating the charges of sexual assault to get a visa, which could allow her to bring a child in Mexico to the United States. "I would say the [visa] was the icing on the cake in our case, because she had so many credibility problems," Wargo says. The jury hung, and the district attorney didn't refile charges. Still, Bee says she signed the U visa certification. The Ninth Circuit District Court ruled in the 2004 U.S. v. Blanco decision that "special immigration treatment... was highly relevant impeachment material," meaning evidence that can discredit a witness. Yet U visa advocates argue that information about victims seeking the visa is protected under the Violence Against Women Act. They say allowing information about the visa into court hurts legitimate victims by casting doubt on their testimonies especially in sexual assault cases, where a trial often comes down to whether a jury believes the man or the woman. "I think they're just waving a flag around that will cause reasonable doubt," says immigration attorney Bowyer. "Honestly, most clients call the police before they've ever heard about the U visa." If witnesses' pending visas are used against them in court, "we go back to where we were before Congress created the U visa," says Leslye Orloff, an attorney and vice president of Legal Momentum, a Washington, D.C.-based legal defense organization for women, who helped legislators craft the law. She says that means perpetrators may go unpunished: "If defense attorneys make that decision [to mention the U visa in court], there may be more legislation needed to cut off their ability to do that." It's hard to tell whether U visa fraud is truly common, or whether defense attorneys are merely doing a good job of making it seem so. If victims commit perjury or file false police reports, they are 44

45 San Francisco U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimizati... Page 9 of 9 8/30/2011 susceptible to prosecution and deportation. Plus, some advocates warn applicants they are exposing themselves on their applications by alerting the government that they're in the country illegally. That seems to be unfounded paranoia. USCIS spokeswoman Sharon Rummery says the agency doesn't tell immigration enforcement officers about the applicants it rejects. Attorneys concede that, so far, USCIS has kept its word. Clients whose cases are rejected merely return to living under the radar. Nothing gained, nothing lost. Mardoqueu Silva never found out whether the man who held a pistol to his head 16 years ago went to jail. But two years ago, his immigration attorney told him to find out whether the police still had a record of the incident. After a three-hour search, a police record room staffer set the official report before him: the 1995 armed robbery of a Geneva Pizza deliveryman in Visitacion Valley. Silva's attorney mailed his U visa application in September Six months later, Silva got a call. The thug had done Silva the biggest favor of his life. He and his wife were in. He considers it a godsend: "I couldn't believe something so good could come out of something so bad." Last year, USCIS reached the 10,000 cap on U visas for the first time. It looks like the agency is on target to meet it again in the 2011 fiscal year, having received 3,331 applications in the first quarter. Anti-immigration groups say that's a lot of work permits in a time that the United States doesn't have enough employment for its citizens. "With unemployment rates the way they are, I think it's hard to justify bringing more workers in for jobs that Americans otherwise would be doing," says Gretchen Pfaff of the Santa Barbara based Californians for Population Stabilization. "You have to consider the chain migration that comes with that. They can bring in their immediate family, and all those people are now in America needing those jobs." Many advocates express concern that the woeful economy and anti-immigrant zeitgeist will cause lawmakers to more closely scrutinize the program. "We do worry, because we do believe the U visa has opened a lot of doors for people, and given some nice benefits to people who wholly deserve it," says Christopher Martinez of Catholic Charities. "But there's going to be forces out there that say this is too generous." Meanwhile, Robert Uy, a staff attorney at Asian Pacific Islander Legal Outreach in San Francisco, thinks the visa's law-and-order goal will save it. "Even the most conservative people tend to want people who are committing crimes to be put behind bars," he says. Silva would likely win over many conservative critics. He attributes his visa to an intervention of God through the U.S. government. He talks about his and his wife's new legal status with the zeal of a convert: "We can now be all that we can be." He got his driver's license. He plans to travel back to Brazil for the first time in 20 years to see his family. Earlier this month, a Seventh-Day Adventist church in Jacksonville, Fla., offered Silva a position as assistant pastor. He had dreamed about attending theology school for years, but didn't have the immigration papers to do it in good conscience. He accepted. Now he'll have a church full of congregants, many of them immigrants, to whom he can preach the gospel be it of a forgiving God, or a forgiving visa. 45

46 U-VISA STATUTORY AND REGULATORY BACKGROUND: PURPOSE AND HELPFULNESS REQUIREMENT The following excerpts from the Victims of Trafficking and Violence Prevention Act of 2000 and its implementing regulations summarize the statutory and regulatory background on the U- visa s purpose and its helpfulness requirement. Statutory Authority: Purpose of the U-visa The purpose is to create a new nonimmigrant visa classification that will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. This visa will encourage law enforcement officials to better serve immigrant crime victims and to prosecute crimes committed against aliens. Creating a new nonimmigrant visa classification will facilitate the reporting of crimes to law enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status. 1 Statutory Authority: Helpfulness [T]he alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity 2 Regulatory Authority: Helpfulness USCIS [United States Citizenship and Immigration Services] interprets helpful to mean assisting law enforcement authorities in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim. 3 The requirement was written with several verb tenses, recognizing that an alien may apply for U nonimmigrant status at different stages of the investigation or prosecution. By allowing an individual to petition for U nonimmigrant status upon a showing that he or she may be helpful at some point in the future, USCIS believes that Congress intended for individuals to be eligible for U nonimmigrant status at the very early stages of the investigation. This suggests an ongoing responsibility to cooperate with the certifying official while in U nonimmigrant status. If the alien victim only reports the crime and is unwilling to provide information concerning the criminal activity to allow an investigation to move forward, or refuses to continue to provide 1 Victims of Trafficking and Violence Prevention Act of 2000 (VTVPA) Pub L Victims of Trafficking and Violence Prevention Act of 2000 (VTVPA) Pub L , codified at 8 U.S.C. 1101(a)(15)(U)(i)(III). 3 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket USCIS , page 21 (Sept. 17, 2007). 46

47 assistance to an investigation, the purpose of BIWPA [Battered Immigrant Women Protection Act] is not furthered. 4 In addition, in order to qualify for permanent residence status on the basis of U nonimmigrant classification, the alien must not have unreasonably refused to provide assistance in the criminal investigation or prosecution. This requirement further suggests an ongoing responsibility to cooperate with the certifying official while in U nonimmigrant status. 5 The rule provides that the determination of whether an alien s refusal to provide assistance was unreasonable will be based on all available affirmative evidence and take into account the totality of the circumstances and such factors as general law enforcement, prosecutorial, and judicial practices; the kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; the nature of the request to the alien for assistance; the nature of the victimization; the applicable guidelines for victim and witness assistance; and the specific circumstances of the applicant, including fear, severe trauma (either mental or physical), and the age and maturity of the applicant. 6 Alien victims may not have legal status and, therefore may be reluctant to help in the investigation or prosecution of criminal activity for fear of removal from the United States. 7 Although there are no specific data on alien crime victims, statistics maintained by DOJ [Department of Justice] have shown that aliens, especially those aliens without legal status, are often reluctant to help in the investigation or prosecution of crimes. U visas are intended to help overcome this reluctance and aid law enforcement accordingly. 8 4 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket USCIS , page 21 (Sept. 17, 2007). 5 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket USCIS , page 21 (Sept. 17, 2007). 6 Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status; Interim Rule. DHS Docket USCIS page 25 (December 8, 2008) Fed. Reg , (2007) Fed. Reg , (2008). 47

48 U-visa Application Victim Flow Chart Criminal activity occurs. IF: The victim has been helpful, is being helpful, or is likely to be helpful to law enforcement OR The victim is under 16 years of age and victim s parent, guardian, or next friend has been helpful, is being helpful, or is likely to be helpful to law enforcement OR The victim is 21 years of age or older and is deceased due to the criminal activity or incapacitated or incompetent; the spouse and/or children under 21 of the victim have been helpful, are being helpful, or are likely to be helpful to law enforcement OR The victim is under 21 years of age and is deceased due to the criminal activity or incapacitated or incompetent; the victim s spouse, children, parents, or unmarried siblings under 18 have been helpful, are being helpful, or are likely to be helpful to law enforcement THEN Victim (or legal representative) seeks I-918B, Law Enforcement Certification. (If victim is not working with a service provider, law enforcement officers can refer victims at this point.) Victim submits U-visa application to the Victims and Trafficking Unit of USCIS showing that the victim meets each of the U-visa eligibility requirements. The application includes*: U-visa application form: Form I-918 Law Enforcement Certification: Form I-918, Supplement B Documents related to victim s identification Victim s signed statement describing the facts of the victimization Any information related to victim s criminal history, including arrests Any information related to victim s immigration history, including prior deportation Any information related to victim s health problems, use of public benefits, participation in activities that may pose national security concerns, and moral turpitude Any information related to the victim s substantial physical or mental abuse suffered Other documentation such as police reports, medical records, letters of support from service providers. Eligible family members can also apply. * Other administrative documentation is also required. More information is available at Law Enforcement provides victims with: 1. I-918 Law Enforcement Certification signed in blue ink and completed by a. the head of the certifying agency; OR b. a person in a supervisory role specifically designated by the head of the agency to sign certifications 2. Any supporting documentation such as reports and findings; and 3. In the case of 1b, a letter from the head of the agency designating another person to sign the certification (designee letter). Within about 6 months, victim receives decision on U-visa application. If approved, victim receives work permit. If applications for family members are approved and they are abroad, consular processing begins. Within about 1 month, victim receives notice from USCIS confirming filing of U-visa application. After three years, U-visa holders (victims) apply for lawful permanent residence ( green card ). The application includes: Adjustment of Status Application: Form I-485 Any information related to the victim s continuous presence in the U.S. since obtaining U-visa status Any information indicating that USCIS should exercise its discretion to grant lawful permanent residence Any information indicating that the U-visa holder has not unreasonably refused to cooperate with an ongoing investigation or prosecution Eligible family members can also apply. Prepared by the National Immigrant Victims Access to Justice Partnership (2010). This project was supported by Grant No DG-BX-K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the author and do not represent the official position or policies of the United States Department of Justice. 48

49 U-VISA CERTIFICATION AND LAW ENFORCEMENT: FREQUENTLY ASKED QUESTIONS 1 BACKGROUND What is the purpose of the U-visa? In keeping with humanitarian interests of the United States, 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 The law sought to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while, at the same time, offer protection to victims of such crimes. The law aimed to help law enforcement agencies to better serve victims of crimes. How do law enforcement agencies benefit from the U-visa? As a crime-fighting tool, the U-visa reinforces an agency s commitment to victim safety, protection, and recovery from trauma. Victims who do not have immigration status will be more likely to report crimes and cooperate in the perpetrator s prosecution if they have no reason to fear that doing so could cause them to be deported. Likewise, immigrant victims with U-visas will be less susceptible to and less likely to succumb to the perpetrator s intimidation. The community will be safer as a result. Law enforcement agencies that use the U-visa in conjunction with other community policing measures also signify their commitment to protecting all victims from crime. ABOUT THE CERTIFICATION What is the U-visa certification? The U-visa certification is one section of the Department of Homeland Security (DHS) Petition for U Nonimmigrant Status (Form I-918 Supplement B). Immigrant crime victims submit this form to the United States Citizenship and Immigration Services (USCIS) of DHS. 3 The certification is a sworn statement that says an individual is a victim of a qualified criminal activity and has been, is being, or is likely to be helpful in the detection, investigation, or prosecution of that criminal activity. 4 1 This document was modeled after the Questions and Answers about U Visas document, created by the International Institute of the Bay Area. Legal Momentum and the Vera Institute of Justice wish to acknowledge Susan Bowyer. 2 Victims of Trafficking and Violence Prevention Act of 2000, Pub. L (a) (OCT. 28, 2000). 3 USCIS is the agency within DHS responsible for adjudicating applications for immigration benefits, work authorization, and naturalization. Two other branches of DHS are responsible for immigration enforcement activities: Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). 4 INA 101(a)(15)(U)(i)(III); 8 U.S.C. 1101(a)(15)(U)(i)(III) (2000). 49

50 What is a U-visa qualifying criminal activity? A U-visa qualifying criminal activity involves a violation of federal, state, or local criminal law (or any similar activity), and specifically includes rape; torture; 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. 5 Although not all-inclusive, this list of qualifying criminal activity represents the many types of behavior that can constitute domestic violence, sexual abuse, trafficking, or are crimes that often target vulnerable immigrants as victims. 6 What constitutes helpfulness? Helpfulness refers to the victim s willingness to assist law enforcement in detecting, investigating, or prosecuting criminal activity. An act of helpfulness can be as basic as a victim reporting a crime to the police. It may also include participating in other aspects of the investigation or prosecution, such as identifying a perpetrator, appearing at court hearings, testifying, or completing victim-impact statements. Once a victim has been helpful, the individual has a continuing responsibility to assist officials and is required to provide reasonable ongoing cooperation in order to apply for lawful permanent residence. 7 To prevent further harm to victims, an exception to the ongoing cooperation requirement exists when victims can demonstrate that their inability or refusal to cooperate is not unreasonable. In some cases it may be unsafe for a victim to fully cooperate with law enforcement. Such situations include trauma or threats of retaliation. 8 If a victim has been helpful in detection or investigation of criminal activity, law enforcement can complete a U-visa certification even if the victim later found it too difficult to continue cooperating. Why is the law enforcement certification so important to immigrant victims? The U-visa affords undocumented victims temporary legal immigration status. Without this, victims may be afraid to seek assistance from law enforcement when they are victimized by a spouse, family member, employer, or even a stranger because they fear deportation. Undocumented victims fearing deportation may risk criminal exploitation and ongoing victimization rather than coming forward to report crimes. In addition to providing protection 5 INA 101(a)(15)(U)(iii); 8 U.S.C. 1101(a)(15)(U)(iii) (2000). 6 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at page 7 (2007). 7 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at page 85 (2007). 8 USCIS will consider in deciding reasonableness of non-cooperation general law enforcement, prosecutorial, and judicial practices; the kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; the nature of the request to the alien for assistance; the nature of the victimization; the applicable guidelines for victim and witness assistance; and the specific circumstances of the applicant, including fear, severe trauma (either mental or physical), and the age and maturity of the applicant. 8 C.F.R (a)(5); 73 Fed. Reg , 75547, (Dec. 12, 2008). 50

51 against deportation, the U-visa also provides a victim with employment authorization, which would enable the victim to lawfully be employed and establish economic independence and long-term safety. Who can sign a U-visa certification? In order to approve a U-visa petition, USCIS requires a U-visa certification. Any agency that investigates or prosecutes criminal activity may sign a certification. 9 USCIS includes in this category judges, federal and local law enforcement agencies and prosecutors, Child Protective Services, the Equal Employment Opportunity Commission, Department of Labor, and other agencies that meet these guidelines. 10 Within law enforcement agencies, only an individual in a supervisory role specifically designated by the head of the agency may sign the certification. 11 Every law enforcement officer with a supervisory role may be designated as a U- visa certification signatory. An agency head may designate any number of law enforcement officers to sign these certifications. Is a law enforcement agency required to sign the certifications? No. Law enforcement agencies are not required to sign the certifications. However, Congress enacted the U-visa protections with the expectation that law enforcement participate in the process because they are in the best role to assess the helpfulness of a victim. 12 A victim cannot obtain a U-visa without a signed certification. 13 WHEN DECIDING WHETHER TO CERTIFY Can a law enforcement officer or prosecutor certify an application for a victim of a crime that happened long ago? Yes. There is no applicable statute of limitations for submitting a U-visa petition. Moreover, it is likely that law enforcement will be asked to sign certifications for individuals who were victimized many years ago because although the U-visa status was created in January 2001 as part of the enactment of the Victims of Trafficking and Violence Prevention Act of 2000, 14 the USCIS did not promulgate regulations until September As a result, many individuals who were crime victims and likely eligible for U-visas were unable to apply for the status between 2000 and INA 214(p)(1), 8 U.S.C. 1184(p)(1) (2000). 10 INA 214(p)(1), 8 U.S.C. 1184(p)(1) (2000); New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at page 23 (2007). 11 I.N.A. 214(p)(1), 8 U.S.C. 1184(p)(1) (2000). 12 Victims of Trafficking and Violence Prevention Act of 2000, Pub. L (a)(2)(B) (OCT. 28, 2000). 13 INA 214(p)(1); 8 U.S.C (p)(1). 14 Victims of Trafficking and Violence Prevention Act of 2000, Pub. L (OCT. 28, 2000). 15 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS (2007). 51

52 Can a law enforcement officer sign a certification if the crime is not one of the criminal activities listed in the statute? Yes. The law lists general categories of criminal activities. It is not an exhaustive list of specific criminal violations or criminal activities that may be a qualifying crime for the visa. 16 The certifying officer must state that the individual is a victim of a qualifying crime then provide a description. 17 Can a law enforcement officer or prosecutor sign a certification if the victim is not needed in the course of the investigation or prosecution? Yes. Congress determined that the certification process does not hinge on whether or not a victim is actively involved in the investigation or prosecution. Can a law enforcement officer or prosecutor sign a certification if the prosecutors decide(d) not to prosecute the perpetrator? Yes. Congress determined that a victim should be eligible for the U-visa regardless of whether the perpetrator is prosecuted. Prosecutors have the discretion to decide when to move forward with a prosecution and many times, prosecutors decide to not prosecute when there is not enough evidence to support the case. Can a law enforcement officer or prosecutor sign a certification if the perpetrator is not convicted? Yes. Ultimately, obtaining a conviction depends on many factors. Regardless of how the case is adjudicated, there may be a victim. The U-visa supports victims sharing critical information with law enforcement and support law enforcement assistance to victims. Even in situations where the alleged perpetrator is not convicted, there is great utility to law enforcement to work with victims in ensuring public safety. Can a law enforcement officer or prosecutor sign a certification if the individual seeking a U- visa does not appear to be a victim of a qualifying criminal activity? No. If the law enforcement officer or prosecutor believes that the individual seeking a U-visa is not a victim of a qualifying criminal activity, the officer should not sign the certification. There is an exception for indirect victims (see below). In addition, law enforcement should remember that victimization (particularly with sexual assault and human trafficking) can be extremely traumatic and emotionally confusing. Moreover, some perpetrators fuel immigrant victims mistrust and fear of law enforcement by analogizing U.S. law enforcement to law enforcement in their home countries, which may be abusive, corrupt, and unreliable. All of these factors 16 For varying reasons, the perpetrator may not be charged or prosecuted for the qualifying criminal activity, but instead, for the non-qualifying criminal activity. For example, in the course of investigating Federal embezzlement and fraud charges, the investigators discover that the perpetrator is also abusing his wife and children, but because there are no applicable Federal domestic violence laws, he is charged only with non-qualifying Federal embezzlement and fraud crimes. New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at page 18 (2007). 17 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at page 38 (2007). 52

53 may lead to a victim not immediately coming forward or disclosing all relevant information to a law enforcement official. Can a law enforcement officer or prosecutor sign a certification if the victim s testimony conflicts with earlier statements or is deemed to be harmful to the case? Maybe. This depends on why the testimony conflicts with earlier statements. If the conflict is due to language barriers or a defensible motive, law enforcement is permitted to sign a certification. In the case of language barriers, the use of unqualified interpreters (e.g., bilingual children) can create lead to something being lost in translation. In cases of particularly traumatic crimes, it may take many meetings before a victim is able to provide complete or fully accurate information, even if the victim aims to be helpful. Can a law enforcement officer or prosecutor sign a certification if there is evidence that the victim is also a perpetrator of a crime? Yes. Certification can be granted when an officer or prosecutor believes that the immigrant has been the victim of criminal activity, even if the victim has been identified, investigated, or prosecuted in connection with a crime. Congress anticipated this problem and specifically allowed USCIS the discretion on a case-by-case basis to grant waivers of U-visa victims previous criminal convictions when it is in the public or national interest. 18 USCIS must screen the criminal background of every U-visa applicant and the agency will investigate every arrest. If a U-visa applicant is found to be the perpetrator of the crime (e.g., someone identified as a trafficking victim is actually the trafficker), USCIS will not grant a U-visa to the applicant. Many immigrant crime victims have been controlled in such a way that they end up being arrested because the perpetrator was able to direct law enforcement communications with the victim, poor interpretation or translation services, or they feared disclosing the truth about the abuse to law enforcement. Despite federal and state policies to the contrary, some domestic violence incidents result in the arrest of both the perpetrator and the victim. Such arrests fail to acknowledge an overall power and control dynamic that exists in abusive relationships. 19 Can a law enforcement officer or prosecutor sign a certification if there are concerns about the victim s credibility? Yes. The law enforcement certifier is responsible for ensuring that the information on the certification is true and complete. The law enforcement certifier is not required to check the validity of anything else on the U-visa application. USCIS will adjudicate any issues of credibility beyond the certification, including statements in the application that suggest issues of credibility. USCIS employs rigorous standards to check the credibility of every applicant. Are there times when someone might be an indirect victim and still seek certification? 18 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status, 72 Fed. Reg. 53, ,015 (Sept. 17, 2007) 19 See Family Violence: A Model State Code sec. 205A(2) The National Council for Juvenile and Family Court Judges (1994) for an outline of considerations in dual arrest cases. Many states have adopted policies that encourage arrest of the predominant aggressor in domestic violence cases. 53

54 Yes. Indirect victims are eligible to apply for U-visas in cases when the direct victim is deceased as a result of the crime (e.g., murder or manslaughter), incompetent, incapacitated, or under the age of Indirect victims can include spouses, children under 21 years of age, and parents of the direct victim. If the direct victim is or was under 21 years of age, the parents and any unmarried siblings who are under 18 years of age are eligible to apply. 21 Parents of U.S. citizens can be considered indirect victims. By extending the victim definition to include certain family members of deceased, incapacitated, or incompetent victims, family members are encouraged to fully participate in the investigation or prosecution and may provide valuable information that would otherwise not be available. 22 What if a crime victim does not have an immigration attorney, practitioner, or advocate but the law enforcement officer wants to sign a certification? Unrepresented individuals may apply for a U-visa. Law enforcement officers and prosecutors may sign certifications for victims who have not yet secured legal representation. 23 U-visa certifiers should recommend that victims have representation before applying because immigration law is complicated. They should also refer crime victims to agencies in the community with experience in assisting immigrant victims. These agencies can provide victimspecific social services and also assist the victims in finding an immigration lawyer. Law enforcement officers should not provide any legal advice to the crime victims. If a law enforcement officer signs the certification, does the victim automatically get lawful immigration status? No. The certification is only one part of the U-visa petition and there are many other requirements that must be satisfied. USCIS will review the individual s application in its entirety and decide if the applicant should be granted a U-visa. 24 Can the certification be considered a benefit for the victim in the course of a prosecution of the perpetrator? No. The U-visa certification is not a benefit. The certification only serves to confirm a victim s helpfulness to law enforcement in detecting, investigating, and prosecuting a crime. This is one of many requirements for a U-visa. Congress designed the U-visa process to facilitate criminal prosecutions of crimes committed against non-citizens. To ensure that the U-visa would not be considered a benefit offered by the prosecution to the victim, Congress gave DHS the sole authority to grant U-visas. Additionally, the U-visa was created as a temporary visa, conferring 20 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at pages (2007); 72 Fed. Reg , (Sept. 17, 2007). 21 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at pages (2007); 72 Fed. Reg , (Sept. 17, 2007). 22 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at pages (2007); 72 Fed. Reg , (Sept. 17, 2007). 23 If an officer signs a certification before the victim has located counsel, the officer may need to reissue the certification at a future date to certify additional or different crimes or if the certification expires due to delays in the victim attaining legal representation. Note: victims are not required to have attorneys to apply for the U-visa. 24 New Classification for Victims of Criminal Activity; Eligibility for U Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS at page 39 (2007); 72 Fed. Reg (Sept. 17, 2007). 54

55 no permanent legal immigration status to the victim. Any application for lawful permanent residency for U-visa holders requires a separate application and fulfillment of a completely different set of requirements that are not related to the criminal prosecution. OTHER LAW ENFORCEMENT CONCERNS If a law enforcement agency has an ICE (Immigrations and Customs Enforcement) ACCESS partnership agreement (such as 287(g), Secure Communities, or the Criminal Alien Program [CAP]), is a victim still eligible to receive a U-visa certification? Yes. ICE ACCESS guidelines do not prohibit law enforcement agencies from signing U-visa certifications. What if a particular jurisdiction has a policy not to protect people who are without lawful immigration status? Congress created the U-visa to: strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. This visa will encourage law enforcement officials to better serve immigrant crime victims and to prosecute crimes committed against aliens. 25 Law enforcement jurisdictions that in practice refuse to sign U-visa certifications or that adopt a uniform policy against signing U-visa certifications should consider the ramifications for immigrant victims and the safety and trust of law enforcement within the entire community. Law enforcement is responsible for keeping communities safe. Excluding a significant and vulnerable part of the population from this protection may hurt the entire community. Once a certification is signed, what are the ongoing obligations for a law enforcement officer? If a victim later appears to not be a victim or is no longer being helpful, the certifying officer is required to contact the USCIS Vermont Service Center VAWA Unit to report any such changes. Regarding helpfulness, such notification is appropriate only when the victim s lack of cooperation is not reasonable. A victim may choose not to continue to provide information or testimony for a number of explanations that are within reason, including the crime perpetrator s coercing the victim not to testify or threatening the victim or family members with further harm or other retaliation if s/he continues cooperating. The U-visa regulations use a totality of circumstances test to assess whether a U-visa holder unreasonably refused to provide assistance. 26 Some factors to consider in ascertaining whether the victim s lack of cooperation is reasonable are the amount of time that has passed since the victimization, the 25 Victims of Trafficking and Violence Prevention Act of 2000, Pub. L (a) (OCT. 28, 2000) CFR (a)(5) (2009) 55

56 level of trauma experienced by the victim, the availability of victim services and resources for the victim, and the victim s financial stability. 27 What if the victim is arrested after the certification is signed? USCIS will investigate the arrest of every person with a pending application. Certifying officers have no duty to track the criminal history of every victim receiving a U-visa certification. U-visa applicants with criminal convictions must disclose these convictions and apply for a waiver related to criminal convictions as part of the U-visa application process. USCIS has the discretion to grant waivers if it is in the national or public interest to do so. After the U-visa is granted, USCIS will once again review an individual s criminal history when the U-visa holder applies for lawful permanent residence. 28 In some jurisdictions, the U-visa holder who is arrested will be brought to the attention of U.S. Immigration and Customs Enforcement. Even for individuals granted lawful permanent status, a criminal conviction can have negative immigration consequences. This process is closely monitored by the Department of Homeland Security. What if the victim is in immigration removal proceedings or immigration detention? An immigrant in removal (deportation) proceedings and/or detention may still be eligible for a U-visa. These circumstances should have no impact on whether a law enforcement officer signs the certification. Immigration enforcement actions are civil in nature and are subject to administrative prosecutorial discretion. Law enforcement officers should encourage immigrants facing deportation to obtain legal advice from an experienced immigration attorney. CONTACTS FOR ADDITIONAL GUIDANCE If a law enforcement agency or prosecutor has questions about a particular case, who can provide guidance? For questions about U-visa certification: Lynn A. Boudreau Assistant Center Director Victims and Trafficking Unit Vermont Service Center U.S. Citizenship and Immigration Services [email protected] or Scott Whelan Office of Policy and Strategy U.S. Citizenship and Immigration Services (202) For law enforcement officers or prosecutors seeking technical support or consultation, please contact Legal Momentum at (202) or to receive technical support from staff attorneys and law enforcement officer consultants Fed. Reg , (Dec. 12, 2008). 28 U-visa holders who apply for lawful permanent residence must also meet several other requirements and do not automatically receive permanent immigrant status in the United States. INA 245(m). 56