Articles

Another Side of Immigration Law

In NLLSA on June 12, 2011 by NLLSA South Atlantic Regional Director

Visa

Few people, especially ordinary American citizens, are aware of certain immigration laws. The media does not celebrate them either, since they are individual human dramas sometimes stranger than fiction. In any event, U visas provide (initially) discrete, yet powerful long-term immigration relief to foreign citizens who have been victimized by certain serious crimes. These victims must have suffered substantial mental or physical abuse as a result of the following crimes: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury.

The eleven-year history of the U visa is helpful to understand its purpose and function.  In October 2000, Congress created the Victims of Trafficking and Violence Prevention Act (VTVPA). 7 years later, the U.S. Citizenship & Immigration Service (USCIS) published final Regulations on U Visas, which became effective October 17, 2007. The Congressional intent behind these visas reveals a dual purpose. First, this was a humane addition to the Immigration and Nationality Act (INA), by allowing foreign victims to apply for immigration relief. Second, U visas are a law enforcement tool because the victim’s cooperation is guaranteed, lest they risk revocation of their status. As such, the U visa is a powerful investigative law enforcement resource, as well as an effective immigration vehicle for the victims both short and long-term. After three years, the victims may become lawful permanent residents (green card holders or LPRs), and eventually they may naturalize (become US citizens or USCs) if they prove good moral character and satisfy other procedural and substantive requirements. However, this is not as simple as it sounds, for there are various obstacles, such as law enforcement officers’ refusal to sign a certificate attesting the crime because of ignorance, laziness or racism, or because the victim misunderstands information (or does not speak English) or has residual loyalty to their abuser, thus becoming their own worst enemy in the process.

The U is a non-immigrant visa that allows foreign citizens (especially those who have entered the US illegally, los “sin papeles” or those who entered-without-inspection—EWI’s) to self-petition for a visa when they have fallen victim to certain crimes (mentioned above). The victim must cooperate with law enforcement in the investigation or prosecution of the perpetrator(s) (hence U for “uniform”). A conviction is not necessary, but an investigation is the minimum requirement, in connection to the victim’s assistance. The agency or authority leading the investigation or prosecution against the perpetrators must produce a “law enforcement certification,” which is a USCIS document necessary to file the application for a U visa. If the victim refuses to cooperate at any point, law enforcement may take notice and withdraw their certificate, effectively revoking the victim’s visa.

A big problem with the U visas is that the victims often lack education and awareness to identify a crime for what it is. For instance, instead of “rape” or “violación”, a woman might say she had to have “relaciones sexuales” (sexual relations), which is definitely not the same thing as being violated or sexually assaulted (as my name is Juan and not José). When that victim writes a sworn declaration or files a police report, she must call a spade a spade, and rape for what it is. A translator, the judge, or the abuser/defendant’s lawyers would go to town if the victim employed such inaccurate vocabulary (sexual relations rather than rape), and the victim would end in the same place as she began: alone, helpless, and probably deported. Even though nobody likes to admit they have been raped, naturally, the ignorant and simple-minded who have been duped into falling prey to their victimizers and abusers must understand the conditio sine qua non of their immigration process is: reasonable cooperation with law enforcement in investigating the perpetrators or prosecuting them. However, some victims not only use imprecise language, they do not even realize where it is they have been staying or held captive. Actual dates, physical addresses, and full names are needed to file police reports, but frequently victims ignore these crucial facts (due to trauma, naiveté, a coping mechanism, or any other reason). In addition, Latin American women often think that their duty is to please and serve their man (see machismo), even if this implies taking forcible penetration (any imaginable) and submitting to an abuser who has not showered in days, to name a few examples. These are a few cultural phenomena that get in the way of the woman identifying the crime for what it is (non-consensual sex = rape) in her mind and in the way of vocalizing the crime for the record while assisting the cops. Along with the help of counselors and social workers, immigration attorneys must assist their clients (the victims) in understanding the dirty deeds that scarred them like putting a puzzle together in preparation for the visa application—the end relief for the client. Congress has capped these visas at 10,000 per year and many people (and attorneys) demand them.

T visas (T for “trafficking”) are an analog, without the law enforcement certificate requirement. Victims of human trafficking are eligible for these other non-immigrant visas, which have easier and more immediate immigration benefits than Us. T visa beneficiaries will also be able to stay in the US as residents after a few years, with the eventual option of naturalizing. A social worker I have been helping this summer recently stated to me that human trafficking is the largest underground illegal business at the moment. The market of T victims is larger than pornography and than gambling.

Another permutation of these immigration laws is the Violence Against Women Act (VAWA). Foreign immediate relatives (mostly children and wives) of LPRs or USCs may self-petition for this type of immigration relief. When the LPR or USC abuses his kids or wife, the victims would be eligible for VAWA benefits. A final mention is the lottery-based immigration system and refugee/asylee provisions of the INA are worth noting as other powerful immigration methods, albeit under different procedures and benefits.

Food for thought for those interested in immigration law, politics, and general culture.

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2 Responses to “Another Side of Immigration Law”

  1. Thank you for sharing useful information. Green card lottery is one of the fastest way to get green card to usa.

  2. The information provided on immigration law was very useful.It is always good to know that their are blogs so dedicated to providing information that is seriously concerned with the reader’s needs.Thanks for sharing your insights with us through your blog.

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