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Shortcut to US Permanent Residency
Did you know that if you are an illegal immigrant in the US who was robbed at gun point 10-15 years ago, you may be eligible now for a legal stay visa and petition for permanent residency in 3 years?
It's absolutely true. The little known U nonimmigrant visa program was passed by US Congress in 2000. It has caught the eye of many illegal immigrants who are using it as a shortcut to gain legal residency in the US, and this in turn leads to charges of abuse from the critics.
In the following sections, we will discuss what is the U visa, what its intent was, how it is being used, how it may be abused, and what are my personal thoughts on it.
What Is the U Visa?
In 2000, US Congress received reports that many domestic abuse victims who are also illegal immigrants are afraid to report their abuse for the fear of being caught and deported. As a result, a section was added to the Victims of Trafficking and Violence Act of 2000 that created the T-Visa and later, the U-Visa. The T-Visa was intended for victims of human trafficking. It was designed to encourage the victims to testify against their traffickers. The U visa, or officially known as the U Nonimmigrant Status visa, is intended for victims of crimes who have suffered substantial mental or physical abuse because of the activity and who also are willing to assist law enforcement agencies or government officials in the investigation of that activity.
Congress has held the number of U-Visas to 10,000 per year. However, that does not include the family members of the victims that can also get the visa. As others have found this to be a shortcut to permanent residency, people are spending real money (up to $1000) at various immigration attorneys and workshops trying to get approved. The qualifications are relatively simple, and according to USCIS statistics, the approval rate, since 2009, was a whopping 77%. That's right, 77 out of 100 who apply for U visa gets it.
Robbery = Legal Residency
In 1995, Mardoqueu Silva, a Brazilian illegal immigrant (he overstayed his tourist visa) was making a living delivering some pizza in San Francisco when he was robbed at gunpoint. He helped identify one perp to the police, and didn't think of it again. He never found out if that guy even went to jail.
In 2009, an immigration attorney told Silva about the U visa. If the San Francisco Police Department still have a file on that incident, Silva can petition for having been a victim and was helpful to the police in the investigation. Silva requested a copy of the file, and the attorney sent in the application. In 2010, Silva, now married, is no longer an illegal resident of the United States. He and his wife are now legal U visa holders.
This is an absolutely true story. That thug had done Silva a great favor.
Law Enforcement Is Ambivalent
The U visa process requires local police to "certify" the case being real and the person being petitioned for visa is a victim, or has knowledge of the crime and "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution of the crime. It does not require actual arrest or conviction of the perpetrator. Thus, the definition of "helpful" is entirely left up to the local police or prosecutor.
Law enforcement agencies are ambivalent on the issue. The proponents argue that U visas are a proper incentive to get illegal immigrants to cooperate with the law. The opponents argue that people will abuse the U visa process by falsely reporting crimes that will never result in arrest or conviction.
Different police departments' attitude toward the U visa reflects the respective city councils' attitudes on illegal immigration. On one end of the spectrum, San Francisco, one of the most liberal cities regarding illegal immigrants, have the most liberal U visa policy of all. Former San Francisco PD chief Jeff Godown had issued a memo noting that all officers responding to crime scene should inform illegal immigrants on the scene that they may be eligible for the U visa.
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However, most police departments are much more selective in invoking the U visa, usually saving it only for pending cases.
Alleged Abuse of the system
There are several cases in San Francisco Bay Area alone where the accusers are suspected of making a completely bogus claim in order to qualify for a U visa or completely exaggerate a story for a U visa.
In a 2009 case, a Mexican immigrant named "O.B.", a female, accused a taxi driver of forcing her to give him a hand job on the way to a New Year's Eve party. The friend who hosted the party testified that OB had joked about the incident, but a few days later, she wanted the host to write a statement stating that the host had seen the taxi driver drop her off. The host refused as she witnessed no such thing. Prosecution went ahead with the case. The jury hung, and the district attorney did not refile the charges. However, OB was able to get her U visa certification that she was "helpful" to the prosecution.
Quite a few public defenders are outraged at the abuse as well. They claim that some applicants are defrauding the system by taking cases to court where the prosecution have no chance of winning a conviction, just so they can get a U visa. As a result, a valuable amount of manpower and money are wasted.
In another case in San Francisco, RM and MV were good friends for two years who went out to have fun. In 2009, they did some dope, they started arguing, and MV swung a bag of keys (and missed), then RM punched MV in the mouth. Police were summoned, and RM was arrested. For three weeks, RM and MV tried to reconcile, then suddenly MV told RM that he never wants to see RM again. At the trial, RM's public defender brought up the U visa issue, claiming that MV was the aggressor and only pressed charges because he can get the U visa out of it. The jury apparently bought it and acquitted RM, but MV still got his certification from SFPD for his U visa.
In a different county in the San Francisco Bay Area, a police lieutenant refused to certify a mother's case of "domestic violence". What happened? The mother told her teenage son to get off the computer. The teenage son slapped her. The police lieutenant was incredulous at the application... "Are you kidding me?" he told the SF Weekly, "That's not the spirit of what this was intended for."
Just How Big of a Problem Is It?
Some U visa proponents want Congress to pass laws that prevents the status of U visa from being even mentioned in court, as that can be used to discredit their witness, i.e., the victim, which would completely negate the existence of the U visa.
On the other hand, in a 2004 decision in the Ninth District Court ruled in US. vs. Blanco that preferential immigration treatment can be used to discredit a witness. In that case, a key DEA witness testimony against an alleged drug dealer was thrown out because the DEA witness/informant received a "special parole visa" from INS for his cooperation and this was not disclosed to the defense.
There currently is no statistic on how many of the U visa cases can be considered fraudulent. Technically speaking, if one files false testimony or police report, one can be subject to prosecution. On the other hand, USCIS was very careful in destroying all information related to rejected applicants. Clients whose cases were rejected simply go back underground and stay illegal.
This is a subject bearing further study.
Some Personal Thoughts
While I have no problem with illegal immigrants sticking around in order to serve as witnesses or such in trials, why should they get permanent residency out of it? It is as if we are saying sorry for giving them such a hard time.
A more proper solution to encourage illegal immigrants to testify is some sort of temporary immunity from ICE/USCIS. A permanent residency, to me, for doing the right thing, is just too much of a reward. Permanent residency in the US is such a big deal, people will try to "game" the system any way they can.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.