These documents can be extremely helpful for crime victims who aren’t legal U.S. residents or U.S. citizens, but they can also be tricky. Here’s how Harris County handles them.
While Alicia (not her real name) attempted to remove her 18-month-old son from her ex-boyfriend’s truck, he grabbed her by the arm and pulled her in to the vehicle. While holding Alicia down, he began to drive, stabbing her in the chest, arms, head, and legs in the process. Then he contacted his brother-in-law, who wanted nothing to do with the incident, and advised him to take Alicia to the hospital. He gave the child to his brother-in-law and drove Alicia to another location, dragged her out of the vehicle through the passenger side door, and left her for dead on the pavement.
A passerby called 911, and Alicia was transported to a hospital, where she underwent surgery for puncture wounds to her lung and heart valve and received stitches for 46 stab wounds. She was cooperative with law enforcement, but once the case was filed with the Harris County District Attorney’s Office she decided to return to her home country, Mexico, for family support.
As her ex-boyfriend’s jury trial approached, two issues became central to the case. First, how would we bring Alicia back to Houston to testify? And second, how could we help and support her once she returned? After discussing the options, one of our investigators assisted in Alicia’s return to Houston by submitting a request for Significant Public Benefit Parole (SPBP, sometimes called just “parole”). Parole may be used to bring an alien witness, defendant, or cooperating source into the United States for up to a year. (It must be noted that SPBP will be granted only for the minimum period of time required to accomplish the purpose of the request.1) Parole does not constitute a formal admission to the United States and confers only temporary authorization to be in the U.S. without having been admitted.2
Additionally, I contacted an attorney at a local immigration law center to provide Alicia with a clear understanding of what services were available to her and how those services would help her. Specifically, we gave her a direct link to legal aid so she could apply for a U-visa, which gives a crime victim legal immigration status for up to four years, permitting the person to live and work in the U.S. so she can participate in the criminal trial against her abuser.
The day that Alicia sat in my office after her return was a powerful indicator of just how valuable the U-visa can be as a tool for assisting crime victims. Our office was able to certify the form that needed to go with her application for the U-visa, so she was available to testify against her ex-boyfriend at trial. Alicia’s presence and her testimony brought justice quickly against her abuser: He pleaded guilty to 20 years in the Texas Department of Criminal Justice for the aggravated assault of a family member.
Three years later, I was talking about another case to the immigration attorney who was instrumental in assisting Alicia, and I asked about her. I learned she was approaching the adjustment of status, which would allow her to become a legal permanent resident of the United States. I cannot think of any better outcome for a young woman who was determined to excel against seemingly insurmountable odds.
What is a U-visa?
The U-visa was established under the Trafficking Victims Protection Act of 2000 (TVPA),3 and was subsequently reauthorized in 2003, 2005, and 2008 (Trafficking Victims Protection Reauthorization Act, or TVPRA).4 It was created as a humanitarian relief to help a vulnerable population and encourage reporting of crime, and it is intended to increase trust in rather than fear of law enforcement agencies. It provides legal immigration status for up to four years; at the end of the third year, the U-visa recipient may be able to apply to adjust her status to legal permanent residence (that is, get a “green card”). Another possible benefit is the ability to retain nonimmigrant status for family members.
There are many steps in applying for a U-visa, and a certification from local law enforcement (the form is called the I-918, Supplement B) is a mandatory piece of evidence that the immigrant is responsible for submitting with the application. The signature of a designated certifying official confirms to the United States Citizenship and Immigration Services (USCIS) that:
• the victim suffered substantial physical or mental abuse as a result of having been a victim of one or more qualifying criminal activities;
• the victim possesses information concerning the criminal activities;
• the victim was helpful, has been helpful, or is likely to be helpful to a federal, state, or local investigation or prosecution of the criminal activity; and
• the criminal activity violated the federal or state laws of the U.S. or been perpetrated in the U.S. or its territories and possessions.
When completing the I-918, Supplement B, qualifying criminal activity is another area that is reviewed by the certifying official. 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, or attempt, conspiracy, or solicitation to commit any of the above.
Certified immigrant victims cooperative at any stage of a past or present investigation or prosecution may be eligible for a U-visa, provided they meet all requirements. The certifying agency provides this information to USCIS, and the ultimate decision to grant the U-visa rests with USCIS.
In 2008, I was designated as the certifying official for our office. At the time very few people were aware of the U-visa, and many did not know how to submit a request for a certification of the I-918, Supplement B. (Supplement A, by the way, is the petition for a qualifying family member of the U-visa applicant.) Even if they did know, submitting a request for a certification was difficult because there was no clearly defined process or guidelines. This was an issue in Harris County in 2008, and as word about the U-visa spread through immigrant communities, the number of certification requests grew rapidly. Our office needed a policy to guide us in fielding these requests, and I share our procedure in the hope that it might help others across Texas.
How Harris County does it
We implemented specific guidelines for reviewing U-visa requests. Over a few years’ time, we decided to review pending cases and disposed cases not more than three years post-disposition,5 which immediately decreased the backlog of requests by facilitating quicker review time and responses to the immigration attorneys representing the applicants. This decision also improved communication with legal aid agencies and private attorneys and gave them better direction on how to submit requests to our office.
In Harris County, people seeking a U-visa contact our office regularly. In 2013 our office received 157 requests for a U-visa certification; of those, 69 were signed, 45 were denied, 29 certifications remain pending, and 14 were requests for re-certifications. We had far more requests the year before (338 in 2012); this reduction between 2012 and 2013 can be attributed to a policy implemented in 2013 (see Endnote No. 5).
Requests come from various places: 1) community legal aid agencies, private attorneys, or pro bono attorneys working to help crime victims, 2) crime victims already working with our office on a case, 3) an assistant district attorney who refers a crime victim to the Victim Witness Division, or 4) on occasion, someone will walk into the Victim Witness Division with a U-visa certification request after being referred by an outside agency. In each scenario, the initial consideration of the request is the same. The individual’s request must be connected to a legal aid agency that works in immigration law. If not, they are referred to one of the several legal aid agencies within the community. This results in the victim receiving the best possible assistance when addressing her immigration status and allows our office to work directly with staff attorneys or private attorneys know-ledgeable in immigration law. In fact, the district attorney’s office will accept a request for certification only when an immigration attorney submits it.
Once a qualifying certification request is received, it goes to a U-visa coordinator for review. In our office there is one coordinator, Debra Schield, assigned to review all requests. (I do the final certification.) The review involves the following:
• If the criminal case is pending, an email will be sent to the prosecutor handling the case asking if the certification can be signed. Signing is based on, as mentioned earlier, verifying the victim has been, is being, or is likely to be helpful in the prosecution of the case. If the prosecutor says the U-visa can be signed, the coordinator will complete the I-918, Supplement B form and forward it to the certifying official for signature. If the prosecutor says the U-visa cannot be signed, the coordinator will complete a response letter, including why the certification was denied, and forward it to the certifying official to sign.
• If the case is disposed and falls within office policy (that is, it is within three years post-disposition), the coordinator will request the case file and review it to determine if the victim was helpful during the prosecution. If the prosecutor who handled the case is available, he will be contacted for input. (During this particular review, it is important to recognize that a guilty plea does not mean the victim was helpful.) If the victim was helpful, the coordinator will complete the I-918, Supplement B form and forward it to the certifying official. If the certification is denied, the coordinator will complete a response letter, including why the certification was denied, and forward it to the certifying official to sign. Once a certification is provided and returned to the attorney representing the victim, our office does not receive notice from USCIS regarding the status of the applicant’s application. However, there are instances when USCIS will call to verify the victim’s continued helpfulness and current status of the criminal case.
There are several reasons a denial letter may be sent:
• The case is still under investigation by the law enforcement agency. Our office will review only those cases that are being or have been prosecuted. If the case is still with law enforcement, we send victims requesting a U-visa to that law enforcement agency.
• The request has been submitted to our office by mistake and should be sent to another agency in another county.
• The victim was not helpful during the prosecution of the case.
• The case is more than three years post-disposition. This response occurred more often before the office implemented a policy. In short, there simply was not enough information available on older cases to determine the victim’s helpfulness.
• The case was no-billed. In this instance the victim will be referred back to the law enforcement agency. If the victim was cooperative through the investigation, the agency can sign the I-918 Supplement B, certifying that she was cooperative, so she can submit the U-visa application to USCIS.
Three years after receiving U-visa status, recipients may file for a green card (adjustment of status/permanent residence) if they meet certain requirements, including:
• They have been physically present in the United States for a continuous period of at least three years while in U nonimmigrant status, and
• They have not unreasonably refused to provide assistance to law enforcement since they received their U-visa.
When the victim applies for adjustment of status, the district attorney’s office will receive a re-certification request. The same guidelines as the initial submission apply and, if applicable, our office will indicate that the victim’s assistance is no longer needed when completing the I-918, Supplement B.
In a county as large as Harris, the influx of requests can be overwhelming, but establishing guidelines has greatly streamlined the review process. It is also important to note that signing a U-visa certification does not grant lawful status or make a determination of the applicant’s eligibility for a U-visa. An approved certification request is given significant weight, but USCIS will not consider it conclusive evidence that the applicant has met all of the eligibility requirements.6 USCIS will look at the totality of the circumstances surrounding the application in determining whether the petitioner will be granted the U-visa.7
The United States Citizen and Immigration Services make available a fact sheet, which we’ve put on the TDCAA website for viewing. Just look for this story in this issue of the journal. And if you have any questions, please feel free to call me at 713/755-6655 or email me at [email protected]
1 Immigration & Nationality Act (INA), §212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A).
2 Tool Kit for Prosecutors (2011), retrieved from www.ice.gov.
3 Pub. L. No. 106-386, 114 Stat. 1464 (2000). The U-visa was incorporated in the section of TVPA known as the Battered Women Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1518 (2000).
4 Pub. L. No. 108-193, 117 Stat. 2875 (2000), Pub. L. No. 109-164, 119 Stat. 3558 (2006), Pub. L. No. 110-457, 122 Stat. 5004 (2008); Immigration & Nationality Act (INA) §101(a)(15)(U).
5 In 2008 when I moved into the director position, we accepted U-visa requests for all cases, pending or disposed. In 2012 we shifted to accepting requests only for pending cases, and the following year we included cases up to three years post-disposition.
6 72 Fed. Reg. 53014 at 53,024. 24.
7 See Form I-918, Supplement B, Instructions (01/15/13) at 3.