Immigrants are frequently the target of criminal activity. Particularly undocumented immigrants who are seen as vulnerable because of their fear to seek help from law enforcement agencies that may effectuate their deportation. In recognition of this, and in an effort to encourage these victims to come forward, Congress enacted certain immigration options for those who have been victimized, or are being victimized.

U Visas

A “U Visa” is an option for victims of certain qualifying crimes in the United States who have been, are being, or are likely to be helpful to the investigation and/or prosecution of the crime. The individual must be able to evidence that, as a result of the criminal activity, he or she suffered substantial mental or physical abuse. If applying for a visa under this category, the applicant must also be admissible to the United States, which may require filing a waiver for any possible grounds of inadmissibility (such as an unlawful entry).

If approved, the applicant receives U nonimmigrant status, with work authorization, for a period of four (4) years. After 3 years of continuous physical presence in the United States with U nonimmigrant status, the U nonimmigrant may apply to adjust status to a Lawful Permanent Resident.

If 21 years of age or older, the primary “U visa” applicant may petition for his or her spouse and children (unmarried and under 21 years of age) to receive U nonimmigrant status. If the “U visa” applicant is under 21 years of age, the applicant may petition for his or her spouse, children (unmarried and under 21 years of age), parents, and unmarried siblings under the age of 18, to receive U nonimmigrant status.

Because only 10,000 primary applications can be approved per year, there is a significant waitlist. In an effort to fairly manage this waitlist, persons who are waiting for an approval may receive a Bona Fide Determination (BFD) letter while the case is ongoing. The significance of this letter is that it allows the applicant to remain in the United States without accruing any unlawful presence, and it allows the applicant to apply for an employment authorization card.

T Visas

A “T Visa” is an option for victims of severe forms of sex or labor trafficking who are physically present in the United States (or American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry) and who have complied with any reasonable requests for assistance with law enforcement in the investigation and/or prosecution of the trafficking. The individual must be able to evidence that he or she would suffer extreme hardship if removed from the United States. If applying for a visa under this category, the applicant must also be admissible to the United States, which may require filing a waiver for any possible grounds of inadmissibility (such as an unlawful entry).

If approved, the applicant receives T nonimmigrant status, with work authorization, for a period of four (4) years. After 3 years of continuous physical presence in the United States with T nonimmigrant status, the T nonimmigrant may apply to adjust status to a Lawful Permanent Resident (it may also be possible to apply earlier if the applicant was continuously present during the trafficking investigation or prosecution if it is now deemed complete).

If 21 years of age or older, the primary “T visa” applicant may petition for his or her spouse and children (unmarried and under 21 years of age) to receive T nonimmigrant status. If the “T visa” applicant is under 21 years of age, the applicant may petition for his or her spouse, children (unmarried and under 21 years of age), parents, and unmarried siblings under the age of 18, to receive T nonimmigrant status.

Only 5,000 primary applications can be approved per year, but, unlike the “U Visa” category, the maximum annual cap has never been reached (as of 2021).

Trafficking victims may also qualify for “Continued Presence” (CP), even if they have not yet submitted an application for a “T Visa”. Once a trafficking victim has been identified, it becomes possible to qualify for CP, which allows the individual applicant to temporarily remain lawfully in the United States, and with a work permit, while the trafficking investigation and/or prosecution is ongoing.

VAWA

Under VAWA (the Violence Against Women Act of 1994), the abused family members of U.S. Citizens (USC) and Lawful Permanent Residents (LPR) may seek to self-petition for immigrant classification to permanently reside in the United States, without the knowledge or assistance of the U.S. Citizen or LPR abuser. If the abuser is a U.S. Citizen, the abused spouse, children (unmarried and under 21 years of age), or parents of that U.S. Citizen (if the Citizen is 21 years of age or older) may self-petition. If the abuser is a Lawful Permanent Resident, the abused spouse or children (unmarried and under 21 years of age) of that LPR may self-petition.

The self-petitioning applicant must establish a qualifying relationship, eligibility for the immigrant classification sought, that he or she was subjected to battery or extreme cruelty by the USC or LPR family member, that he or she does or did reside with the abusive USC or LPR family member, and that he or she is a person of good moral character. If the relationship is a spousal relationship then it is also necessary to prove that the marriage was entered into in good faith (and not for the purpose of circumventing immigration laws).

Self-petitioning applicants must also be admissible to the United States. That said, there are certain inadmissibility grounds that do not apply to VAWA cases, such as the public charge ground. Additionally, exceptions or waivers may be granted that take into consideration the abuse suffered by the applicant. For example, inadmissibility for unlawful presence in the United States may fall into an exception if there is a connection between the unlawful presence and the abuse suffered.

VAWA applicants may reside in the United States or outside of the United States at the time of the application. If outside of the United States, the applicants will undergo consular processing for an immigrant visa. If inside the United States, the applicants will apply for adjustment of status to a Lawful Permanent Resident. Even if the applicant entered the United States without inspection, admission, or parole, he or she is eligible to file for adjustment of status. The timing of the applications for an immigrant visa or adjustment of status will depend on the family-based category and whether it is one that is considered an “Immediate Relative” category or one that is a “Preference” category.

If the self-petitioning applicant is the spouse or child of the abuser, the applicant may petition for his or her children (unmarried and under 21 years of age) to receive derivative immigrant status.

Other

In addition to the T Visa, U Visa, and VAWA, there may also be options for abused spouses of certain nonimmigrants (A, E-3, G, or H status). For more information, visit the USCIS webpage.