You asked me for an analysis of where, and how, immigration authorities permit or encourage law enforcement certifications of helpfulness in criminal cases that are closed and therefore cannot facilitate a current investigation or prosecution. The concern by officials charged with solving individual crimes regarding the use of the U Visa law in closed cases is understandable. I believe that the requirement in the U Visa’s implementing regulations (8 CFR 214.14) that the head of an agency should determine helpfulness in certifying the Supplement B of Form I-918 reflects Congress’s recognition that it is the chief’s unique responsibility to consider impacts beyond facilitation of particular investigations.
Extensive authority for the use of U Visas in closed cases appears in the Immigration and Nationality Act U Nonimmigrant status provision itself (INA §101(a)(15)(U)), the Findings and Purpose Section (§1513) of the Battered Immigrant Women Protection Act, U.S. Citizenship and Immigration Service Memoranda, and statements by USCIS officials. I will first list the citations and then discuss the Congressional intent and broader public policy underlying them.
Statute: INA §101(a)(15)(U) provides for U Nonimmigrant Status for an immigrant crime victim who has been, will be, or is likely to be helpful in the investigation or prosecution of the crime against him or her. The law necessarily contemplates past cases in which the victim had been helpful, and cases in which an investigation did not lead to prosecution.
Interim Regulations: specify, “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.” http://edocket.access.gpo.gov/2007/E7-19085.htm
Implementing Memoranda. An October 3, 2003 memorandum from USCIS specifies, “The fact that the criminal activity occurred a number of years prior to the current request or that the case in which the applicant is the victim is closed is not a determinative factor at this stage. The statute contemplates that a person may be eligible for U nonimmigrant status as a result of having been a victim of a crime that occurred at some point in the past Centralization of Interim Relief for U Nonimmigrant Status Applicants ( PDF) William R. Yates /s/ Janis Sposato HQOPS Docket # USCIS-2008-005 . http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2003/ucntrl100803.pdf
Guidance by USCIS.
· “Law enforcement certifications on Supplement B are indeed appropriate and acceptable, even years after a case has been closed, as long as the victim cooperated with law enforcement and met the other requirements for certification" (USCIS U Visa Adjudicator in email to victim advocate)
· “not the victim’s fault” that abuser deported before being charged, and therefore the victim can meet “helpfulness” standard for having made himself available to law enforcement officials.. (USCIS trainer, August 2008 USCIS training for law enforcement officials,
Congressional Intent.
Even as
- Workforce development, including
- Temporary and permanent visas for skilled workers
- Agricultural worker visas
- other one-time provisions, like the Bracero program
- Unification of family members
- Humanitarian considerations, including
- refugee and asylum provisions
- T visas for victims of trafficking
- Violence Against Women Act applications for abused spouses of US citizens and permanent residents
- U visas for victims of serious crimes
- Public policy goals, including
- international policy (e.g. special provisions for Cuban or Russian immigrants or different standards for processing refugees from countries with pro- or anti-U.S. government institutions)
- diversity of the immigrant population, including the diversity visa and immigrant visa caps for certain countries that send high numbers of immigrants.
- addressing unintended consequences of other provisions, including
- abuse of power given to US citizen and permanent residents over their spouses’ immigration status as an instrument of abuse;
- impunity enjoyed by traffickers, domestic violence abusers and other criminals because their victims are isolated from law enforcement and other institutions.
The most urgent unintended consequences are the result of immigration policies that, since 1996, have led to a large population of undocumented immigrants. Starting in 1996, paths to legal immigration were drastically reduced by strict new provisions in 1994 and 1996. As the chart below indicates, waiting lists for the 256,000 immigrant visas available to family members of US citizens and permanent residents nationwide have grown substantially.
Family Member waiting period from petition to immigration application
Wait lists in months, February, 1996
China India
1 0 0 10 120 0
2A 42 42 48 48 42
2B 66 66 66 66 66
Wait lists in months, May 2010
China India
1 67 67 209 189 67
2A 57 57 61 57 57
2B 98 98 216 150 98
1= adult children of US
2A=spouse + minor children of permanent resident
2B=adult children of permanent resident
Even after a multi-year wait, immigrants in the
Development of an enormous, uniquely isolated and vulnerable population that criminals can prey on with impunity was the unintended consequence of immigration policies intended to deter undocumented immigration. When police officials and victim advocates raised the problem with Congress, it did not act broadly to bring undocumented immigrants “out of the shadows,” as advocated by leaders as diverse as George W. Bush and Edward M. Kennedy. Instead, Congress created the U Visa to mitigate the worst unintended consequences: harm to victims and victims’ fear of reporting crime to police.
The law that created the U Visa, the Battered Immigrant Women Protection Act of 2000, section 1513, was passed unanimously in the Senate and with only one “no” vote in the House. It specifies the law’s humanitarian and public policy purposes.
Humanitarian Purpose. The Findings and Purpose section states that the U nonimmigrant visa will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute crimes committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the
http://www.endabuse.org/userfiles/file/ImmigrantWomen/Victims%20of%20Trafficking%20and%20Violence%20Protection%20Act%20of%202000.pdf (That temporary status may be converted to permanent status if doing so is justified on humanitarian grounds, for family unity, or is otherwise in the public interest).
Public Policy Goals. The Act creates 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 described in INA section 101(a)(15)(U).”
The public policy interest has been well described by law enforcement officials who note that low crime reporting by immigrants who fear detection is a gift to perpetrators that frustrates individual investigations and police/community cooperation generally.
- The Police Chiefs Guide to Immigration Issues observes, “One of the central benchmarks of a well-commanded police department is establishing good relationships with the local communities, including those composed of immigrants. Working with these communities is critical in preventing and investigating crimes. Working with these communities is critical in preventing and investigating crimes.” http://www.theiacp.org/Portals/0/pdfs/Publications/PoliceChiefsGuidetoImmigration.pdf
- Chief Chris Magnus of the Richmond Police Department noted in a recent training that while it is generally hard to win the trust of isolated immigrants, the U Visa makes it easy. Chief Magnus determined at that training to expand the Richmond Police Department’s U Visa certification policy as much as most other Bay Area police departments, including certifying helpfulness in cases that are closed, with the understanding that the U Visa will only make an impact in a fearful community if it is used broadly.
- The Oakland Police Department’s report on U Visas to the Oakland City Council states, “The Department's history of working to provide Certifications of Assistance to U Visa applicants has already helped gamer trust among the immigrant and non-U.S. resident community by showing that the Department helps crime victims regardless of their immigration status. This improved the relationship between the Department and the community is invaluable in fighting crime, and increases public safety throughout the City…. It is also expected to strengthen the ties between the immigrant community and the police, overcoming the traditional suspicion and distrust of police that immigrants often bring from abroad. Staff expects that as the popularity and accessibility of he U Visa increases, so will the detection and reporting of criminal activity,”
Although you didn’t specifically address this concern, I’m taking the opportunity to let you know that most police departments have found it valuable to learn that the department itself does not award the U Visa. It plays a small, but essential part in the process. However, as it does with every immigration application, the Department of Homeland Security adjudicates the entire U visa application, which includes a thorough background check, a showing of substantial abuse, and a showing that it is in the public interest to admit the victim to the U.S. as a U Nonimmigrant.
