What Is A U Visa?
Congress established the U visa in October 2000 to encourage victims and witnesses of crimes like domestic violence, sexual assault, and human trafficking to report those crimes without fear of reprisal, like deportation. It is a critical tool in assisting law enforcement and government officials in investigating and prosecuting criminals to keep our communities safe. While many law enforcement authorities have spoken about the U visa program’s value, critics continue to challenge it and–more troublingly–perpetuate misinformation and misconceptions about U visas.
Obtaining a U visa is not easy, as reports demonstrate how difficult it can be even when a victim is fully eligible and has complied with law enforcement. Moreover, a U visa can be especially challenging to obtain without the help of an experienced attorney. For example, a 2020 USCIS report stated approximately 94 percent of U visa filers applied either with legal representation or with a preparer — less than 3 percent of applicants filed by themselves.
The U visa application process begins with a petition. To submit a petition, an authorized agency or law enforcement official must certify that the alleged crime happened and that the victim cooperated with law enforcement in the criminal investigation. Only certain government officials and agencies can provide the required law enforcement certification, including judges, federal/state/local law enforcement, prosecutors, and other investigative authorities like Child Protective Services. After receiving a U visa petition, USCIS conducts an initial security screening of the applicant to ensure they are not a domestic security threat or an international threat.
To be eligible for a U visa, a petitioner must prove they suffered substantial physical or mental harm due to certain crimes. USCIS also screens for petitioners who have committed criminal acts in the past. To be eligible, a petitioner must not have committed any previous crimes or acts deeming the victim or special witness as “inadmissible” under INA Section 212. If a petitioner has anything on their record deeming them “inadmissible,” they must obtain a waiver to maintain eligibility, which is further reviewed and approved by USCIS.
The number of U visa petitions decreased between 2017 and 2020 but has increased over the last two years.
There is a growing backlog of approved petitions because USCIS is only law-authorized to provide 10,000 U visas a year. So once the annual cap is reached, approved petitions go on the waiting list.
Common misconceptions about U visas
The U visa is rooted in the Battered Immigrant Women Protection Act of 2000, passed partly because Congress acknowledged that victims lacking legal status in the U.S. might be reluctant to come forward to assist law enforcement. Nonetheless, a criticism of the U visa is that petitioners lack proper immigration documentation–which seems to willfully ignore that this lack of proper documentation is what motivated the program in the first place.
Individuals who commit crimes must be prosecuted, regardless of their victim’s immigration status. To do so effectively, victims and key witnesses must feel safe reporting these crimes. The U visa was created with this purpose in mind.
Another common misconception is that undocumented witnesses are motivated by the benefits of a U visa to provide false testimony against Americans in criminal proceedings. In fact, some news outlets have stated that courts in various states claim the citizenship benefits of the U visa are a motive for false testimony. While various appellate and state supreme courts have held that U visa benefits could create a motive in several cases, they did not rule that this actually happened.
Accordingly, some courts ordered a retrial because the lower courts did not allow a witness’s immigration status, including their U visa status, to be cross-examined during their testimony or submitted as evidence to the jury. In such cases, the courts said this was not a harmless error, and there should be a re-trial (State v Perez; State v Valle). But none of the cases showed a witness or victim was actually impeached because of their immigration status and related motivations. Other times, courts have ruled that the same error was harmless and denied a retrial (Romero-Perez v Commonwealth; State v Gonzales; State v Perez-Aquiera).
Another dubious claim about the problems with U visa is that law enforcement does not find the U visa program useful. Critics cite a 2022 audit of the Officer of the Inspector General (OIG) on the U visa, reporting that 61 percent of law enforcement officials surveyed believed the program did not significantly assist them in investigating and solving crimes. Fifty-four percent reportedly believed that petitioners abused the program.
The number of law enforcement officials interviewed to make this finding was profoundly small — of the 18,000 agencies eligible to respond, only 57 agencies did, and they were not representative of the breadth of agencies that can review U visa claims. The audit report also does not provide any testimony of these claims. Strong support from other law enforcement agencies suggests that the OIG report is not fully representative of those regularly handling U visa claims.
Another misconception about U visas is that ineligible people file petitions because they can obtain a work permit before their visa approval. In June 2021, USCIS allowed those with pending cases to request work authorization. Petitioners must first meet initial evidence requirements and have a certified law enforcement official complete certification before obtaining a work permit. USCIS reviews this information as part of the bonafide determination process and only then grants employment authorization.
Critics have also argued that local officers report encounters with individuals asking for U visa certification in alternate jurisdictions for older offenses and offenses not prosecutable under the system. This is not inherently indicative of a flaw in the U visa process. The fact that officers are catching this and screening for illegitimate or ineligible claims means the screening procedures are working.
The overwhelming majority of U visa petitions are approved, indicating that certified petitions are, on average, legitimate and eligible. Between 2016 and 2020, the approval rate for U visa applicants was 81.5 percent. The denial rate was 18.5 percent, with the reasons for denial estimated at the following percentages:
If, at any point, law enforcement deems a petitioner as unreasonably uncooperative, they may notify USCIS, which can revoke a petitioner’s application—the incentive for continued engagement and cooperation.
Misconceptions about U visas notwithstanding, the program can be improved to mitigate fraud risks. The 2022 audit of the program does point to the need for USCIS to improve internal procedures and for congressional action to reduce fraud. Out of 125 samples, the auditors reported four findings of forged signatures, three of which the applicants ultimately received a U visa for. In addition, they found three cases where an unauthorized law enforcement officer signed the certification. Of 83 samples selected, three were found to have been altered after they were signed by law enforcement and before they were submitted to USCIS. The sample sizes are small, but the findings point to an easy solution: Congress should mandate that law enforcement officials submit their certifications directly to USCIS. This would eliminate fraud risks of forged signatures, unauthorized signatures, and tampering with petitions.
As with any immigration program, there will be individuals who will attempt to defraud and exploit the system. Investigative bodies like U.S. Immigration and Customs Enforcement’s Homeland Security Investigations arm are well-equipped to catch such individual cases (as they did in Indiana, Mississippi, and South Carolina).
The U visa program is a critical tool for law enforcement to hold criminals accountable and protect vulnerable immigrants, including women who have suffered from domestic violence and children who are the victims of rape and abuse. However, misconceptions about U Visas should be corrected so that the program can continue to serve its intended purpose–making our American society safer and more just for those in need.