NOI 4: Why Do Immigrant Victims of Violent Crime Have to Wait 4+ Years to Receive a Visa?

The U Visa was designed to give protection against deportation to immigrants who have been the victim of a crime and who help law enforcement. Unfortunately, it’s not working out that way for many U Visa applicants.

Jacob Tingen: Hello and welcome to episode four of Nation of Immigrants. I’m going to be talking today about the U visa, which is one of my favorite visas for a lot of different reasons. We’ll get into that, and why it’s so cool. But what’s interesting is, is that it’s specifically designed to make American communities safer here in the United States. And it provides some good incentives for immigrants who want to report crimes, and cooperate with local law enforcement, but despite all the rhetoric and claims that we’re trying to fight crime and make America safer, lack of support for immigrants and immigrant communities, and lack of support in this area in particular with U visas is actually making our country less safe. So that’s what we’re going to be talking about today. Get ready, Nation of Immigrants.

Speaker 2: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Speaker 2: A podcast about US immigration law, with your host Jacob Tingen.

Jacob Tingen: All right, thank you for listening. So I know I started out by saying that the U visa is one of my favorite visas, and it’s just fascinating. It’s really kind of an interesting visa. The idea is that we want to help immigrants who report crime, and who work with local law enforcement. So part of the motivation behind this visa, it was originally related to victims of domestic violence who didn’t have lawful status, who were afraid that if they reported being a victim of domestic violence, well, in that interaction with law enforcement, maybe they would get deported. And so there was this concern there. But then kind of growing out of that national conversation, and eventually there’s the VAWA program of course, for people who have been victims of domestic violence, who are married to a US citizen or lawful permanent resident.

Jacob Tingen: But the U visa applies to people who have been victims of any crime by anyone regardless of the familial relationship. Domestic violence is on the list for people who qualify for a U visa, if they’ve been a victim of domestic violence. That’s on the list of qualifying criminal activity. Most of the crimes that qualify someone, if they’re the victim of particularly violent crimes, are on the list of qualifying crimes. Felonious assault, kidnapping, murder. Of course if you’re dead, you can’t apply for U visa, but that applies to like near bystanders, or familiar relationships. So if my immigrant son is murdered and I’m the mom or dad, I might be able to apply for a U visa when I cooperate with police.

Jacob Tingen: So the idea is is that immigrants might be afraid to report to police that they’ve been the victim of a crime. Because reasonably they believe, “Well hold on. What if somebody asks about my lawful status, then what happens? And I don’t want get in legal hot water and in trouble with immigration.” And so the U visa is intended to counteract this trend that an immigrant would not report a crime for fear of deportation. And the idea is this, if I report the crime, and I help law enforcement, I’m willing to identify the people who did this. I’m willing to participate and go into our courts and testify. If I’m willing to provide all the help I can to law enforcement and really contribute to society, well then society is willing to help me by giving me legal status. Okay?

Jacob Tingen: The U visa is a temporary visa. It’s only valid for a period of about four years. Once someone has lived in the United States on a U visa for a continuous period of three years, they can then apply for permanent residency, and then after residency for five years, they can apply for citizenship. So it is a path to citizenship. We haven’t yet talked about immigrant versus nonimmigrant visas, but because a U visa is temporary in nature, it is technically a nonimmigrant visa. But of course if you’ve lived in the US for four years, you’ve been cooperating with and helping law enforcement, the idea is that you’ve developed a life here and that in the absence of negative factors, we’re going to let you stay, we’re going to let you apply for permanent residence.

Jacob Tingen: Now again, the whole point here is that we’re not going to… We’re we’re protecting or shielding immigrants from deportation because they’re helping us out and our communities. And so what is interesting is in the current environment that many immigrants express having a lot of fear, they aren’t coming forward the way that they used to. People are more afraid of coming forward because they feel understandably so. That questions about their lawful status might come up, and that that might be detrimental to just their overall wellbeing here in the US.

Jacob Tingen: But then additionally, even when people do pursue a U visa in terms of relief from removal in the past, we talked last time about prosecutorial discretion in the past, government attorneys and removal proceedings or deportation proceedings would be willing to close or terminate or administratively close or basically continue out the hearings for people with a pending U visa, because the idea was, well they’re helping out our communities, we’re going to let this draw out and see how the U visa winds up, and then if it gets approved then of course we’re not going to deport them.

Jacob Tingen: The point of the U visa is to protect people from deportation. So we’re not going to deport people who’ve applied for U visa, and who are helping law enforcement. Unfortunately that’s not the case. So because of shifting priorities in the administration, and the Trump administration, we talked about this last time, but now everyone is a priority for deportation. So even when I have a client that has a strong U visa case, like say we have someone that was assaulted and then helped police identify their attacker and then testified. Let’s say that I have that strong U visa case, but then ICE attempts to deport this person and they find themselves in removal proceedings, the government attorneys aren’t willing to move to terminate that case or continue that case, the position of the government in my experience has been, they’ll just say, “Well this person can get a U visa from outside the country, so why don’t they wait outside the country?”

Jacob Tingen: Now we’re going to talk in a minute about why that’s absurd, but let’s talk about, the first reason that’s absurd, which is the whole point of the U visa to begin with was to protect people from deportation, from this very concern. And so it basically undermines the purpose of the U visa to deport people who have a pending U visa. All right. So we’ll get to that in a bit. All right, so we’ve talked a little bit about the purposes. It came out of this idea that we should protect victims of domestic violence and that they shouldn’t be afraid to come forward.

Jacob Tingen: Let’s talk about processing times for U visa. How long does it take to get a U visa? Well, putting together the evidence, let’s talk about how long that takes, but then we’re going to focus on the government processing time. So putting together the evidence isn’t that lengthy of a process. Again, these are people who’ve helped law enforcement. And so typically we contact the law enforcement agency, but anyone from a police officer, to a detective, to an attorney, a prosecuting attorney, or even a judge, could sign the immigration forms necessary for a client to apply for the U visa. But typically we reach out to the police department, and because the person has cooperated in the investigation, the police department responds.

Jacob Tingen: Here locally, different jurisdictions cooperate in different ways. Some people that designate and assign one person to respond to our requests. There are other police stations and agencies, we send the request out and then it comes back in. And there’s not a specified formula. But what’s interesting is that this form called the Supplement B, there’s no requirement that the police fill it out. The police don’t have to fill out this form. But it is a required part of someone’s U visa application.

Jacob Tingen: So if the police say, “well, we’re just not going to fill out this form.” There’s no way that I could make them do it. And yet I think police and law enforcement understand this principle underlying the U visa is that we want to encourage our immigrant communities to report crimes so that our communities can be safer overall. And so police generally respond to these, and because our clients and other immigrants are helping them out, they get it. They understand that this is good for everyone. So that’s the first step in a U visa claim. Once we get the Supplement B back, we assemble other evidence related to how helpful the immigrant has been, how much suffering they’ve endured as a result of being the victim of a crime, and typically that ranges from physical suffering, injuries. I’ve had people who’ve literally been shot and stabbed, ranging to people who had a scuffle and identified an attacker who fled, but who then has PTSD and difficulty dealing with the trauma of the events that they went through.

Jacob Tingen: And so that’s kind of the gamut of what we see when people are the victims of a crime, and they have to document their suffering. It’s one of the requirements of the U visa, and they have to get the Supplement B. So we put this evidence together. One of the other fascinating and wonderful things about the U visa is that for minor immigrants, they can include in their U visa petition, parents and siblings. And then for adults they can… And they can include children and spouses. So this is one of those U visas that really… One of those visas that really brings families together. And it overcomes a lot of immigration, I guess, snags and tangles.

Jacob Tingen: Like I said this podcast isn’t to get into the legal weeds, but it overcomes a lot of grounds of inadmissibility. So it’s a good way to help immigrants get legal status here in the US. Okay. So it takes a couple of months to get that initial paperwork together, to document the injuries, document the trauma, and get that Supplement B back from a law enforcement agency. Then once we send that packet out, it takes currently, and I just checked before recording this, 52 to 53 months to have a U visa approved. Why? That is the question we’re going to talk about. Why does it take so long to have the U visa approved?

Jacob Tingen: Well, one of the issues is that we put a Visa limit on most visas that are issued. And so the U visa is no exception to that rule. There are only about 10,000 U visas issued each year. Okay? And this is because Congress knew in their infinite wisdom that no more than 10,000 immigrants would ever be the victim of a crime in any given year. That is the, I guess reasoning behind limiting the number of U visas that our government issues. But you can see already that if the purpose and intent behind the U visa is to protect immigrants from deportation, that’s silly to put any number on the number of U visas we issue per year.

Jacob Tingen: It’s a little absurd because, it again any backlog would undermine the intent. Right? If I’m waiting five years for my U visa to come through, well then I’m not effectively protected from deportation and I have no incentive to report and help law enforcement. And so I have no incentive to help make America a safe place. I was going to say make America great again, but I have no incentive to participate in making America safer, which is the point of the U visa. So again, 10,000 are issued per year. Well, more than 10,000 people are applying per year. Okay.

Jacob Tingen: And the other reason that it takes so long is USC is just simply backlogged. There are so many applications in all facets of our immigration system. There’s so much work to be done, and not enough people to do that work and not enough visa numbers for all the people who want to come to our country. And so some say, “Well, the answer is…” You know, we hear frequently, “The answer is to restrict immigration further. We’re letting in too many people.” But in particular when it comes to the U visa those arguments fall apart.

Jacob Tingen: Again, why would we limit the number of people who we protect, who work with our law enforcement agencies, and make us safe? It doesn’t make any sense. U visas… People who apply for U visas deserve protection in our country under our system of laws, and we should help make sure that they get it because they’re making our country safer. All right. Here’s the kicker though, for me when it comes to U visa determinations. U visas are adjudicated, which means people make decisions on the applications at the Vermont Service Center.

Jacob Tingen: Another visa that’s adjudicated at the Vermont Service Center, athlete visas. Now I’m going to let you guess how long you think it takes for an athlete visa to work its way through. But before I tell you, I’m going to tell you it’s a lot less than 52 months. Athlete visas work their way through in about two weeks. So to me that’s morally unsettling. It’s a little upsetting. Of course, domestic violence victims don’t have lobbying groups that can help their visas be adjudicated a lot more quickly, or who can lobby and say, “Hey, this is taking too long.” And what’s interesting is that with the U visa, even though the visa can’t be granted for some time, the government can make an application by application determination and say, “Hey, well you qualify. So in the meantime I’m going to give you deferred action.”

Jacob Tingen: They frequently do this about two and a half, maybe three years into the process. We typically get a letter for our clients that says, “Hey, we recognize you qualify for the U visa, we’re going to go ahead and let you work here in the US while you wait for a number.” You know? But you’re in line, so congratulations. Why does that even take two and a half to three years? I can tell you if it takes two weeks to approve an athlete visa, it shouldn’t take frankly any longer, or at least not much longer to approve a visa for someone who is helping make our country safe.

Jacob Tingen: Who is participating already with law enforcement. Who presumably been vetted by a law enforcement agency before they even issue a Supplement B. And so why does it take so long? The only reason that I can come up with is that they don’t have lobbying money like professional athletes do for their visas. And there might be other reasons that are related. But the U visa is such a good visa. It helps people and it helps our country. It’s just sad that it takes so long. So that’s kind of the question today. Why does it take so long for us as a people, to help immigrants who help us? That’s it for Nation of Immigrants today. Again, subscribe on iTunes, follow me on YouTube and Facebook, and we’ll be posting more of these in the future.

Speaker 2: Thank you for listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

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