On March 24, 2008, Immigration and Customs Enforcement (ICE) submitted Secure Communities as part of the FY09/10 DHS Budget, and President George W. Bush signed the bill on September 30, 2008. Secure Communities has resulted in unprecedented entanglement of the state and local criminal justice systems with federal immigration enforcement. When state or local law enforcement agencies arrest someone and fingerprint them, those fingerprints are often sent to an FBI database. Under Secure Communities, the FBI database communicates with ICE’s immigration database and if these checks reveal immigration questions, ICE can take enforcement actions.
ICE has reported implementing Secure Communities in over 1,400 jurisdictions in 43 states and one U.S. territory since 2008. ICE plans to expand this program to all jails and prisons in the country in 2013.
The 287(g) program is another ICE program that has significantly increased the entanglement between local law enforcement and immigration enforcement. This program differs from Secure Communities in that it requires training of local enforcement officers by ICE officials. As part of the 1996 Illegal Immigration Reform and Immigration Responsibility Act, 287(g) enables the deputy director of ICE to enter into agreements with local law enforcement agencies allowing them to perform immigration law enforcement actions.
This policy undermines public safety, encourages racial profiling, and has a detrimental impact on victims of domestic violence. By blurring the line between community police and immigration officers, Secure Communities and laws like it place survivors of domestic violence and sexual assault at risk of:
- Dual arrests (arresting both people)
- Perpetrators calling the police with unfounded allegations to expose someone to ICE
- Victims who must drive without a license run the risk of getting arrested because their abusive spouse with legal status may refuse to legalize the victim’s status
- Local law enforcement mistakenly submitting a victim’s fingerprints because they think they are supposed to or because a language barrier prevents them from correctly assessing the situation
- Intimidating other immigrant victims in the community from contacting police and seeking help, thereby allowing abusers to threaten their victims with threats of deportation
ICE Memorandum on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (click to read the memo)
Because of the many concerns with the program’s implementation and the adverse effect on immigrant victims and witnesses, on June 17, 2011 ICE issued a prosecutorial discretion memo with new guidance for ICE officers. The memo explained that the priority should be prosecuting criminal offenders and they should be careful not to start immigration proceedings on anyone known to be a victim or a witness to a crime. This memo, however, is not self-implementing. It is a good starting point to begin discussions with local law enforcement and ICE officials to ensure that your community puts in place policies and protocols to protect immigrant victims.
Best Practices in Secure Communities
The District of Columbia, Santa Clara County in California, and Cook County in Illinois are examples of jurisdictions that have put in place promising practices and protocols in the implementation of Secure Communities in order to better protect immigrant victims of domestic violence, sexual assault, and stalking.
It is important to know about the rights of individuals with limited English proficiency (LEP) and individuals with undocumented immigration status in order to advocate on their behalf and ensure that they have full access to all services available to survivors of domestic violence and sexual assault. To that end the National Latino Network has compiled a list of resources for those who wish to learn more about these issues.
Title VI of the 1964 Civil Rights Act: recipients of Federal financial assistance are not allowed to discriminate based on race, color, or national origin.
Executive Order 13166: Protection against national origin discrimination includes persons with limited English proficiency (LEP).
Facts sheet: The Office for Civil Rights of the U.S. Dept of Health and Human Services developed a fact sheet explaining the position by the U.S. Attorney General that certain services necessary for the protection of life and safety are exempt from the immigration restrictions imposed by the welfare reform law.
Statement from the U.S. Department of Housing and Urban Development: clarified that transitional housing for up to 2 years should be available to immigrant victims of domestic violence regardless of immigration status and explaining the need for compliance with this law.
Frequently Asked Questions Regarding Survivors with LEP: Casa de Esperanza compiled a list of answers to frequently asked questions in response to numerous requests for information on the rights of access to services for LEP individuals,
In addition, Casa de Esperanza is currently participating in a study with the National Domestic Violence Hotline to track the need for LEP services and explore the challenges and barriers faced by victims with limited English proficiency to access services. The data is being analyzed and will shed light on the need to enhance access to services for LEP and immigrant survivors and the detrimental effects that barriers to access have on victims of domestic and sexual violence.
Overview of U visa
What is the U visa?
The U visa was created with bipartisan support under the reauthorization of the Violence Against Women Act (VAWA) in 2000i in order to protect immigrant victims of certain serious crimes and encourage them to report these crimes and assist in the investigation and prosecution, regardless of their immigration status.
Who can apply for a U visa?
Victims of qualifying crimes can apply for a U visa if they are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or are likely to be helpful in the investigation or prosecution of criminal activity. In order to apply for a U visa, certification is required from a law enforcement or investigative agency attesting to the victim’s helpfulness in the investigation or prosecution of a qualifying crime.
What are the benefits of a U visa?
The U visa provides eligible victims with nonimmigrant status for a four year period in order to temporarily remain in the United States. A U-visa recipient is also eligible for work authorization. If certain conditions are met, a U visa recipient may be eligible to adjust their status to lawful permanent resident (“green card”) after three years. Additionally, certain immediate family members of U visa recipients may also be eligible to live and work in the United States as derivative U visa recipients based on their relationship with the principal recipient.
Which crimes are designated as qualifying crimes for the purpose of applying for a U visa?
|Incest||Trafficking||Unlawful Criminal Restraint|
|Abusive Sexual Contact||False Imprisonment||Being Held Hostage|
|Prostitution||Murder||Obstruction of Justice|
|Sexual Exploitation||Felonious Assault||Peonage|
|Female Genital Mutilation||Witness Tampering||Perjury|
|Involuntary Servitude||Slave Trade||Other Related Crimesii|
What are the Eligibility Requirements to Apply for the U visa?
An individual may be eligible for a U visa if she/he:
- is the victim of a qualifying crime designated above;
- has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;
- has information about the criminal activity. (If under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on the individual’s behalf);
- was helpful, is being helpful, or is likely to be helpful to law enforcement in the investigation or prosecution of the crime. (If under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on behalf of the individual;
- obtains the required law enforcement certification (Form I-918B) attesting to their helpfulness in the investigation or prosecution of a crime;
- is the victim of a crime that occurred in the United States or violated U.S. laws; and
- is admissible to the United States.(If not admissible, an individual may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant)
To apply for the U visa does the victim need to be related to the perpetrator and is the immigration status of the perpetrator relevant?
No. In order to be eligible for a U visa the victim does not need to be related to the perpetrator of the crime, and the perpetrator does not need to have lawful immigration status. (Note: This is different than the VAWA Self-Petition which is limited to immigrant victims who are married to an abusive spouse who must be a U.S. Citizen or Lawful Permanent Resident).
If the victim is a child, can the immigrant parent apply for a U visa as the principal applicant?
Parents of a child victim may play an important role in detecting and reporting crimes, providing information, and assisting law enforcement in the investigation or prosecution of a qualifying crime committed against their child. As a result, an immigrant parent can apply to be recognized as an “indirect victim” if the principal victim is a child under 21 years of age and is incompetent or incapacitated to provide assistance to law enforcement in the investigation or prosecution of the crime committed against the child. Likewise, a parent can apply as an “indirect victim” if the child is deceased due to murder or manslaughter. The immigration status of the victim child is not relevant in determining eligibility of the parent.
What agencies can sign the law enforcement certification (Form I-918B)?
A federal, state, or local law enforcement agency, prosecutor, judge, or other authority that has the responsibility for the investigation or prosecution of a qualifying crime or criminal activity is eligible to sign Form I-918B. This includes agencies with criminal investigative jurisdiction in their respective areas of expertise including, but not limited to, Child and Adult Protective Services, the Equal Employment Opportunity Commission, and Federal and State Departments of Laboriii.
The person who can provide certification must be the head of the certifying agency, or any person in a supervisory role that has been specifically designated by the head of the certifying agency, or a federal, state or local judge.
By signing a certification, the law enforcement agency attests that the information is true and correct to the best of the certifying official’s knowledge. The law enforcement certification essentially states to USCIS that:
- the petitioner was a victim of a qualifying crime;
- the petitioner has specific knowledge and details of the crime; and
- the petitioner has been, is being, or is likely to be helpful to law enforcement in the detection, investigation, or prosecution of the qualifying crime.
When can the law enforcement certification be issued?
The certification can be issued prior to completing the investigation, even at the very early stages of the investigation into the criminal activity. It can also be issued during the investigation or after the investigation has terminated. A current investigation, the filing of charges, a prosecution, or conviction is not required to sign the law enforcement certification. (For example, when a warrant is issued for the perpetrator but no arrest can be made due to the perpetrator fleeing the jurisdiction). There is no cut-off date for issuing a certification and no statute of limitations for being able to apply for a U visa. However, the law enforcement certification (Form I- 918, Supplement B) must be certified within the 6 months immediately before the filing of the U visa application.
If a victim obtains a law-enforcement certification, does that mean he/she will automatically receive a U visa?
An individual cannot apply for a U visa without the requisite law enforcement certification (Form I-918B). However, submission of that form does not mean they will automatically receive a U visa since they also need to meet the other eligibility requirements and undergo a thorough background check.
Who determines if the victim suffered “substantial physical or mental abuse”?
USCIS will make the determination as to whether the victim has met the “substantial physical or mental abuse” requirement on a case-by-case basis during its adjudication of the U visa petition based on the totality of the evidence submitted. Certifying law enforcement agencies do not make this determination. However, certifying agencies may, at their discretion, provide any additional information the agency considers relevant regarding injuries or abuse on Form I-918B.
How does a victim of a qualifying crime apply for a U visa?
The application (USCIS Form I-918, Petition for U Nonimmigrant Status) and all relevant documentation is submitted to the Department of Homeland Security (DHS), United States Citizenship and Immigration Service (USCIS), where it is adjudicated by a specially trained VAWA unit based at the Vermont Service Center.
Which immediate family members of a victim may be eligible for U visa derivative status?
When a victim is applying for a U visa, he or she may also apply for admission of immediate family members. In the case of a victim who is 21 years old or older, his or her spouse and unmarried children (under the age of 21) will be eligible for derivative status. In the case of a victim under the age of 21, the victim’s parents, unmarried siblings (under the age of 18), spouse, and children will be eligible for derivative status. The perpetrator of the criminal activity cannot obtain derivative status as a qualifying family member.
Does the U visa applicant/recipient have an ongoing obligation to be helpful in the investigation or prosecution of the crime?
The victim cannot unreasonably refuse to continue cooperating with law enforcement; otherwise the law enforcement agency can notify USCIS and withdraw its certification. Also, to be eligible for lawful permanent residence, the victim has an ongoing responsibility to provide assistance to the investigation or prosecution when reasonably requested.
How many U visas can be granted each year and what happens if the annual cap is reached?
There is an annual of cap of 10,000 U visas for qualified applicants (not counting derivative family members within that cap). If the U visa cap is reached in any fiscal year, any subsequent qualified applicants will be placed on a wait list. USCIS grants deferred action or parole to U visa applicants on the wait list and their qualifying family members (derivatives) until U visas become available at the start of the next fiscal year. USCIS may authorize employment for these wait-listed applicants and qualifying family members.
Additional Resources for More Information
- Immigration Relief for Victims of Abuse and Domestic Violence: Practitioner’s Guide to Serving Non-Citizens, July 2012 by Penn State Law’s Center for Immigrants’ Rights. Can be downloaded here.
- Resources on the legal rights of immigrant victims of domestic violence, sexual assault, trafficking, and other crimes, are available at the web library of Legal Momentum’s Immigrant Women Program here.
- National Immigrant Justice Center, Pro Bono Manuals on U Visas and VAWA Self-Petitions available here.
- ASISTA – clearinghouse of information and technical assistance provider for advocates and attorneys to assist immigrant victims – www.asistahelp.org
- National Immigrant Women Advocacy Project – www.niwap.org
iKnown as the Victims of Trafficking and Violence Prevention Act (VTVPA), Pub. L. No. 106-386, 114 Stat. 1464-1548 (2000).
iiIncludes any similar activity where the elements of the crime are substantially similar. Also includes attempt, conspiracy, or solicitation to commit any of the crimes listed above, and other related crimes. INA § 101(a)(15)(U)(i)(IV); 8 C.F.R. § 214.14(b)(4).
iiiDepartment of Homeland Security (2011). “U Visa Law Enforcement Certification Resource Guide”, p.3.
For a downloadable document of all of this information, please click here
- Joint Statement on Arrest and Detention by ICE (Feb. 23, 2017)
- Q&A for Advocates and Attorneys Serving Immigrant Survivors of Gender-based Violence (Nov. 29, 2016)
- Immigration Options for Victims of Crimes
- How Comprehensive Immigration Reform Affects Immigrant Survivors
- How Comprehensive Immigration Reform Affects Immigrant Survivors of Violence - Talking Points on the Final Senate Bill and the Road Ahead in the House (July 25, 2013)
- Priority Principles to Address Violence Against Women in Comprehensive Immigration Reform (August 2013)
- The "SAFE" Act Would Make Immigrant Survivors of Domestic Violence Less Safe
- How Comprehensive Immigration Reform Affects Immigrant Survivors of Violence - Talking Points on the Final Senate Bill and the Road Ahead in the House (July 25, 2013)