Created in 2000 through the Victims of Trafficking and Violence Protection Act (TVPA), the U visa was designed to shield victims of certain qualifying crimes from deportation in exchange for their cooperation with law enforcement. Yet many victims have found the U visa impossible to secure.
Three major issues plague the U visa program. First, there are no standard rules for police about what qualifies as “cooperation,” and there are credible reports of police refusing to certify the assistance of victims who clearly should qualify. That is unfair to the victims in question and undermines the confidence that underlies the visa’s crime-fighting purpose. Second, even without efficient certification from law enforcement, the backlog of U visa applications has grown so much that at the current pace, it would take over 17 years to process them all. And third, U.S. Citizenship and Immigration Services (USCIS) has failed to safeguard against fraudulent claims.
Creating national guidelines to govern when law enforcement agencies must certify U visa petitions, hiring additional U visa adjudicators, recapturing unused visas, and increasing the annual cap on the number of visas are all necessary to ensure the program will continue offering protections to crime victims and increasing public safety.
One major problem with the U visa program is the inconsistent criteria that certifying agencies —local, state, or federal law enforcement — use to confirm that a crime victim “has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity upon which his or her petition is based.” That means the same crime and level of cooperation may lead one jurisdiction to certify a U visa petition, while another may decline. Additionally concerning are reports that have surfaced of law enforcement agencies declining to certify clear-cut cooperation or implementing additional rules that make receiving a certification harder than originally intended by Congress.
Another problem with the current U visa program is the enormous visa backlog. The TVPA only authorizes 10,000 visas annually. This cap has been reached every year since fiscal year 2011, and the visa backlog as of the end of FY 2021 stands over 170,000, growing on average by over 16,000 applications annually between FY 2011 and FY 2021. Using these numbers, if no new U visa petitions were filed, it would take over 17 years to completely clear the backlog.
Source: USCIS, Number of Form I-918, Petition for U Nonimmigrant Status filings, 2009-21
Given that a majority of these victims are undocumented immigrants, any delay in the processing of their U visa requests can result in continued precarity. A 2019 Immigration and Customs Enforcement memo explaining that U visa petitioners could now be deported before their cases were fully resolved only adds to this uncertainty. This means that the individuals who had crucial information needed by law enforcement officials were not allowed to provide the maximum level of assistance they otherwise could have. Deporting in some cases the only witness to a crime is detrimental to law enforcement’s goal of ensuring the safety of the communities they serve.
In June 2021, USCIS released a new “U Nonimmigrant Status Bona Fide Determination Process” to address inefficiencies in processing U visa applications and what benefits applicants can receive while waiting for their U visa. While this is a positive start by the Biden administration to assist victims, it does not solve the core problems plaguing the U visa program, namely the visa backlog, inconsistency in certifying cooperation, and cases of fraud.
One way to reduce the backlog is to hire additional staff to process the increasing number of U visa applications. The American Immigration Lawyers Association (AILA) recommends hiring 60-80 additional U visa adjudicators and examining whether the 80,000 visas that were not distributed between FY 2001 and FY 2009 due to administrative error could be recaptured and distributed as Congress intended. Similarly, my Niskanen colleagues have proposed recapturing unused visas from other immigration programs to make up for the enormous delays and caps on the U program.
While these two recommendations are vital steps to reduce the visa backlog, without any congressional action to increase the yearly visa cap, applicants will continue to spend years in legal limbo before finding out if they can remain in the U.S. permanently. Congress has attempted to increase the cap in the past, but these efforts eventually stalled in the face of Republican opposition.
Another area of focus is the U visa certification process. While all victims are required to receive positive attestation from a certifying agency to apply for a U visa, these same agencies are not required to actually provide it. USCIS has released multiple resource guides on the U visa program and guidelines on what constitutes cooperation. However, the final decision still resides with the law enforcement agency. Providing a codified and enforceable standard threshold of cooperation – through modifying the TVPA – that certifying agencies must certify once victims reach it would be a first step to providing the protection victims actually need and for which the program was designed.
A final area to address is the need to strengthen anti-fraud measures to ensure all applications are correctly processed. A 2022 Department of Homeland Security Office of Inspector General report found the U visa program did not have proper measures in place to prevent fraudulent U visa applications from being processed and approved. After an audit of approved applications, 10 were found to have either forged or altered law enforcement credentials. Though the instance of fraud is exceptionally low, strengthening anti-fraud measures will help ensure that only legitimate victims are able to access U visas.
The U visa was created to incentivize victim cooperation with law enforcement in exchange for protection from immigration enforcement. However, problems with the program’s performance have led to unwanted outcomes, such as extremely long backlogs and inconsistent criteria for defining cooperation. Without the necessary reforms to address these problems, not only will the U visa not fulfill the promise of immigration protection for cooperating witnesses, but it will betray the main reason that it was created in the first place, increasing public safety. If victims are not guaranteed that cooperation is coupled with immigration protection, the incentive to assist in future police investigations vanishes, thereby defeating the U visa’s goal of helping to keep our communities safe.