[Blogger’s note; Probably the most gratifying element of practicing immigration law is watching clients flourish. Obtaining immigration benefits, especially lawful permanent residency, often unleashes a wave of innovation and creativity. Less often, it produces a humanitarian “pay it forward” moment. This is the story of today’s guest blogger, Protima Pandey. Many years ago, I represented a technology company that asked me to help Protima’s husband obtain an H-1B visa and a green card, and obtain H-4 dependent visa status and lawful permanent residence for her as well. Unbeknownst to me, she had chosen law as a career, and with the work permit that pending green card status afforded, she began a stint as a lawyer in private practice. Soon after obtaining residency, she followed her dream and became a public interest immigration lawyer. Today, she is a Staff Attorney with Bay Area Legal Aid, helping the impoverished, abused and desperate obtain redress and immigration benefits. Protima is helping “pay it forward” by telling us the story of “Tanya” and “Rose,” whose names are changed to honor their privacy. Protima’s is only one of example of how the forthcoming final rule on H-4 spousal employment authorization will benefit America. I am pleased to report, moreover, that Protima is very happy in her work; you could be happy too.]
Out of the Shadows — U Nonimmigrant Visa Status:
Creating Safer Communities and Bringing Justice for All
When Tanya found out that her daughter Rose was being sexually assaulted by her father, Mauricio, Tanya’s world collapsed. All these years Tanya looked at Rose’s mood swings, flashes of anger and refusal to go to school as behavior typical of pre-teen and adolescent girls. But after Rose revealed what her father was doing to her for 7 years in a row, Tanya went numb. Even more distressing was the fact that her father told Rose categorically and continuously that she would be punished if she ever told anyone about what was happening.
On the day that Tanya learned of this, she called Mauricio at work and told him to come home immediately. She then gathered her other two children, and gently prodded them about their life with their father. Relieved not to hear them repeat the stories that Rose told her, Tanya waited for Mauricio to return. He never came. Instead, she received a call from a relative overseas that Mauricio had returned home saying Tanya was unfaithful and that he left her.
Why is this story relevant on a blog that talks about immigrants and the law? Because this is a story of a family that lived “under the shadow,” to quote President Obama, for years, trying to make a life in America. Because this is the story of a family that had a deep, dark and dirty secret, one which included believing that the laws in this country do not apply to those who are undocumented. Because this is a story of a family that the United States of America decided should not be allowed to suffer in silence while they were being victimized by a crime punishable under the laws of this country.
U nonimmigrant status (popularly known as the U visa) was created by the Victims of Trafficking and Violence Prevention Act, enacted in October 2000. The law addresses the plight of aliens who have been exploited, victimized, and abused, but do not have legal status in the U.S., and therefore may be reluctant for fear of removal to help in the investigation or prosecution of criminal activity. The existence of U status provides law enforcement officials a means to help support the legalization of immigration status of undocumented crime victims who assist during investigations or prosecutions of criminal activity. U status provides temporary immigration benefits to certain victims of crimes who assist law enforcement officials in investigating and prosecuting those crimes.
In passing this legislation, Congress intended to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of persons, and other criminal activity of which undocumented people are victims, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. The maximum number of U status applications that can be approved in any one year is 10,000 for principal petitioners.
Tanya’s story is one of several thousands of victims and families who live in silence and suffer indignities that are crimes in the U.S. all because they feel their lives are not counted the same way as are documented people’s lives. By December 2013, USCIS has granted close to 50,000 U visas to victims of qualifying crimes such as Tanya. The most important aspect of this relief is that the goal of the visa is to permit those who qualify to live temporarily in the U.S. with U status.
However, the reality in the lives of the Tanyas in our country is that they often do not know that such relief exists or that they could qualify for this relief. Victims rarely reach out to law enforcement because they fear that their status somehow makes them ineligible for help — a common misunderstanding among undocumented. A report released in 2013 cited by the website Think Progress stated that among the Latinos surveyed (4,000 according to this report), Seventy per cent of the undocumented surveyed said they would not call the police to report being a victim of crime or a witness to a crime. Anecdotal evidence from colleagues and my own clients confirms this practice. If the crime victim speaks a language other than English, there is added fear that s/he will not get help if they dial 911. It is therefore important for law enforcement and community-based agencies alike to create mechanisms for outreach, assistance and referrals for crime victims who could qualify for these protections.
Tanya called the police to report the crimes that Rose had suffered. Especially since Tanya knew Mauricio had run away, she knew that at this time she had to take a step forward to protect not just Rose, but all her children. The police referred her to Bay Area Legal Aid for legal assistance, where I am a staff attorney. Tanya was low income (below 125% Federal Poverty Guidelines) and qualified for free legal assistance as a victim of crime.
Among other requirements, an applicant for U status, apart from being a victim of an eligible crime and cooperating in the investigation of that crime, s/he must ask a law enforcement agency or official to complete a certification form confirming that the applicant “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the criminal activity.” The issuance of this certification is a critical step that has to be completed before the applicant can file for relief under this special category of non-immigrant status. USCIS offers a guide to practitioners and certifying agencies which contains valuable guidance on the process of obtaining certification. According to the guide the certifying agency can be:
- Federal, State and local law
- enforcement agencies;
- prosecutor’s offices;
- family protective services;
- Equal Employment Opportunity commission;
- Federal and State Department of Labor; and
- Other investigative agencies.
Community-based agencies can liaise with local agencies that investigate, prosecute qualifying crimes to determine if there is a certification process available. Some agencies, such as the California Dept. of Fair Employment and Housing post their certification process, while others require attorneys or petitioners to inquire with of staff regarding certification procedures.
Another aspect of this form of relief is that a petitioner who qualifies for a U visa can also petition for derivative family members. For petitioners who are 21 and older, this means minor children and/or non-abusive spouses. For petitioners who are 21 or younger this means minor children, a non-abusive spouse, siblings under the age of 18, and parents.
We obtained certification for Tanya as a victim of a qualifying crime because it was her care, love and encouragement that allowed Rose to report the heinous crimes she had been suffering and because as a parent of a victim, Tanya is considered an indirect victim of the crime. Tanya helped law enforcement track Mauricio down in his home country and extradite him. Because Tanya was able to obtain certification as a victim of a qualifying crime, our office filed for U status relief for her, and her children were included on the application as derivative family members.
Since our office represents victims with several different legal issues, Tanya asked us to assist her in obtaining a divorce and sole custody of all her children. Working with local law enforcement, we were able to serve the summons and complaint for divorce on Mauricio and obtain a divorce decree with sole legal and sole physical custody of the children awarded to Tanya. We also informed Tanya that her family could qualify for healthcare so that her family could get assistance with therapy and rehabilitation for their trauma.
Once Tanya and her children were granted status, they were all issued Employment Authorization Documents (EADs), a benefit conferred by the regulations that govern this type of relief. Because Mauricio no longer lived with the family and could not support them because he had been deported shortly after sentencing, Tanya carried all the burden of financially supporting her children. With the EAD card, she found stable employment, was able to enroll her oldest child in community college for apprenticeship (she feared he would not be able to do much after high school since she worried that colleges might require “papers” that document the immigration status of applicants before admissions) and has encouraged her two younger children to work hard in school so they can have a future for themselves.
Tanya’s story won’t end here. The visa she and her family have is good for four years. After three years of living in the U.S. and maintaining their U status, Tanya and her children can qualify to adjust their status to that of a lawful permanent residents (LPR). A holder of U status like Tanya will have to file for adjustment showing that s/he has remained in the U.S. and has not unreasonably refused to cooperate with law enforcement in the investigation of the qualifying crime that made her/him eligible for this relief in the first place. The application to adjust status must contain documentation proving continuous presence.
In the case of Tanya, it could be in the form of tax returns for the three qualifying years, school records to show the children maintained residency and any other documents with her name and address like pay stubs, utility bills and other mail. Tanya and her children must show USCIS that approval is warranted by requesting exercise of favorable discretion on humanitarian grounds, including the need to keep the family together. Any additional information, like the therapy that Tanya, Rose and the other children in the family are receiving to recover from the trauma they suffered because of this crime, any long standing community relationships that the family has built which serves as their support system and any activities that demonstrates participation in their local community as part of daily life like church or voluntary service are all relevant pieces of evidence that will help USCIS grant LPR status to Tanya and her children.
With the law in place for undocumented crime victims to receive relief, the key issue remains outreach and assistance to the families and beneficiaries of this relief. Community-based agencies and legal aid agencies work in tandem with law enforcement and domestic violence services agencies to connect those who qualify for this help with those of us who can help them. In Tanya’s case the pieces fell together for her to free her child from the years of victimization. However, there remain many barriers that prevent other families and individuals from being helped.
One major barrier is the lack of adequate legal assistance to reach all those who qualify for help. The Legal Services Corporation in its 2012 Pro Bono Task force report found that almost 50% of the population that needs legal assistance is unable to get help because the current legal services agencies lack resources to assist all who qualify.
Studies show that the service provided to victims of crime contributes to public safety enhancement helps children and families and allows for victims of crime to receive protections under the law. The availability of legal services for victims has likewise been shown to significantly reduce the likelihood that an individual woman is battered. Moreover, statistics from the Board of Immigration Appeals show that about 41% of litigants lack legal representation.
If you are an individual who can give to low income, unserved communities, if you speak a language other than English, if you are a lawyer who has spare time to help (Bay Area Legal Aid always welcomes pro bono volunteers), if you are looking for a resolution to make as you enter the New Year, this is your chance to consider a worthy cause, a deserving population and a satisfying deed. As a career legal aid lawyer, I am an advocate at heart, so I am reaching out to ask for help for families who are silently suffering, who can get help and who can turn around their life. The happiest moments of my job are when clients show appreciation for our work, show us results like a job or a school admission because they were able to break free from the cycle of oppression or violence or when they say their last resort, us, turned out to be the one they should have come to in the first place.
 It was later amended by the Violence Against Women Act, 2005, the Trafficking Victims Protection Reauthorization Act, 2008 and the Violence Against Women Act, 2013.
 See generally: http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status . Also see, Bay Area Legal Aid: Immigration Relief for Victims of Domestic Violence, Sexual Assault and Other Serious Crimes: U Visa, VAWA & I-751 Waivers MANUAL (January 2011). Page 10-11.
 See Generally Sally Konoshita, et all, The U visa: Obtaining Status for Immigrant victims of crime, Immigration Legal Resource Center, 4th Ed., 2014, 1-1.
 There are many qualifying crimes covered by this relief, this post uses sexual assault as an example to illustrate the benefit. See for example http://www.sfweekly.com/sanfrancisco/u-visa-illegal-immigrants-become-legal-residents-via-crime-victimization/Content?oid=2180863
 http://thinkprogress.org/immigration/2013/05/08/1980161/study-fearing-deportation-latinos-dont-report-crimes/ See also http://newamericamedia.org/2014/05/nashville-immigrants-too-scared-to-call-the-police.php
 Find out more about Bay Area Legal Aid as well as how to volunteer as a pro bono attorney or donate to our work at www.baylegal.org. Assistance and information are also available from the Office of the USCIS Ombudsman. The Ombudsman, Maria Odom, serves as Chair of the Department of Homeland Security’s Blue Campaign, a unified effort to combat human trafficking. In collaboration with law enforcement, government, and non-governmental partners, the Blue Campaign works to educate the public about how traffickers operate, where help is available to victims, and the importance of a victim-centered approach to combating human trafficking.
 See Generally INA § 101(a)(15)(U); INA § 214(p) and regulations found at 8 CFR §§ 212.17, 214.14 . See also In re Petitioner (name redacted), No. EAC 09 080 50515, 2010 WL 4088659 (Administrative Appeals Unit, March 3, 2010) for specifics on evidence of the direct and immediate harm that the petitioner has suffered as a result of the qualifying crime.
 The certification must be obtained on the I-918B form that the practitioner or petitioner must complete and send to the certifying agency. It is always best practice to approach the agency and determine their preferences for issuing a certification, including what additional documentation they might require to be able to certify favorably. Keep in mind however that you should only disclose information that your client has issued a release for, in order to ensure you are not violating any attorney-client privilege.
 INA § 101 (a)(15)(U)(ii).
 Tanya and her children entered the U.S. without inspection and therefore had to submit an additional request to the USCIS to seek relief and pardon for having entered without papers using the form I-192. Being low income, USCIS approved the family for a fee waiver of any filing fee associated with this waiver; there is no fee for the U visa application or fingerprinting.
 8 C.F.R. § 274a.12 (a)(19-20). The principle applicant does not have to submit a separate request for the employment authorization but the derivatives can submit I-765 for this concurrently with their U derivative petitions.
 8 CFR § 245.24
 8 CFR § 245.24 (10)
 See also 8 CFR § 245.24 (11) which contains information on how to address adverse factors, if any, that may prevent favorable discretion, including pleading extreme hardship and exceptional circumstances.