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SUBSCRIBE The leading Copyright |
[Federal Register: September 17, 2007 (Volume 72, Number 179)]
[Rules and Regulations]
[Page 53013-53042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se07-13]
[[Page 53013]]
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Part IV
Department of Homeland Security
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8 CFR Parts 103, 212, et al.
New Classification for Victims of Criminal Activity; Eligibility for
``U'' Nonimmigrant Status; Interim Rule
[[Page 53014]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 212, 214, 248, 274a and 299
[CIS No. 2170-05; DHS Docket No. USCIS-2006-0069]
RIN 1615-AA67
New Classification for Victims of Criminal Activity; Eligibility
for ``U'' Nonimmigrant Status
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends Department of Homeland Security
regulations to establish the requirements and procedures for aliens
seeking U nonimmigrant status. The U nonimmigrant classification is
available to alien victims of certain criminal activity who assist
government officials in investigating or prosecuting such criminal
activity. The purpose of the U nonimmigrant classification is to
strengthen the ability of law enforcement agencies to investigate and
prosecute such crimes as domestic violence, sexual assault, and
trafficking in persons, while offering protection to alien crime
victims in keeping with the humanitarian interests of the United
States.
This interim rule outlines the eligibility and application
requirements for the U nonimmigrant classification and the benefits and
limitations relating to those granted U nonimmigrant status. This
interim rule also amends existing regulations to include U
nonimmigrants among the nonimmigrant status holders able to seek a
waiver of documentary requirements to gain admission to the United
States, and to permit nonimmigrants to change status to that of a U
nonimmigrant where applicable. This rule also establishes a filing fee
for U nonimmigrant petitions.
Aliens who have been granted interim relief from USCIS are
encouraged to file for U nonimmigrant status within 180 days of the
effective date of this interim rule. USCIS will no longer issue interim
relief upon the effective date of this rule; however, if the alien has
properly filed a petition for U nonimmigrant status, but USCIS has not
yet adjudicated that petition, interim relief will be extended until
USCIS completes its adjudication of the petition.
DATES: Effective date. This rule is effective October 17, 2007.
Comment date. Written comments must be submitted on or before
November 16, 2007.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2006-0069 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To
ensure proper handling, please reference DHS Docket No. USCIS-2006-0069
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Regulatory Management Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529. Contact Telephone Number (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Laura Dawkins, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 111
Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone:
(202) 272-8350.
SUPPLEMENTARY INFORMATION: This supplemental information section is
organized as follows:
I. Public Participation
II. Background and Legislative Authority
III. Analysis of Requirements and Procedures Under This Interim Rule
A. Eligibility Requirements for U Nonimmigrant Status
1. Victims of Qualifying Criminal Activity Who Have Suffered
Physical or Mental Abuse
2. Possession of Information Concerning the Qualifying Criminal
Activity
3. Helping Law Enforcement in the Investigation or Prosecution
of Criminal Activity
4. Criminal Activity That Violated U.S. Law or Occurred in the
United States
B. Application Process
1. Filing the Petition to Request U Nonimmigrant Status
2. Initial Evidence
3. Derivative Family Members
4. Designations
C. Adjudication and Post-Adjudication
1. Credible Evidence
2. Prohibitions on Disclosure of Information
3. Annual Numerical Limitation on Grants of U Nonimmigrant
Status
4. Decision on Petitions
5. Benefits for U Nonimmigrants
6. Travel Outside the United States
7. Revocation of U Nonimmigrant Status
8. Removal Proceedings
D. Filing and Biometric Services Fees
IV. Regulatory Requirements
A. Administrative Procedure Act
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 12866 (Regulatory Planning and Review)
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Paperwork Reduction Act
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim rule. U.S. Citizenship and Immigration Services (USCIS) also
invites comments that relate to the economic, environmental, or
federalism effects that might result from this interim rule. Comments
that will provide the most assistance to USCIS in developing these
procedures will reference a specific portion of the interim rule,
explain the reason for any recommended change, and include data,
information, or authority that support such recommended change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2006-0069. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received go to http://www.regulations.gov. Submitted comments
may also be inspected at the Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.
II. Background and Legislative Authority
Congress created the U nonimmigrant classification in the Battered
Immigrant Women Protection Act of 2000 (BIWPA). See Victims of
Trafficking and Violence Protection Act of 2000, div. B, Violence
Against Women Act of 2000, tit. V, Battered Immigrant Women Protection
Act of 2000, Pub. L. 106-386, sec. 1513, 114 Stat. 1464, 1533-37
(2000), amended by Violence Against Women and Department of Justice
Reauthorization Act of 2005 (VAWA 2005), tit. VIII, Pub. L. 109-162,
119 Stat. 2960 (2006), amended by Violence Against Women and Department
of Justice Reauthorization Act--Technical Corrections, Pub. L. 109-271,
120 Stat. 750 (2006). Alien victims may not have legal status and,
therefore may be reluctant to help in the investigation or prosecution
of criminal activity for fear of removal from the United States. In
[[Page 53015]]
passing this legislation, Congress intended to strengthen the ability
of law enforcement agencies to investigate and prosecute cases of
domestic violence, sexual assault, trafficking of aliens and other
crimes while offering protection to victims of such crimes. See BIWPA,
sec. 1513(a)(2)(A). Congress also sought to encourage law enforcement
officials to better serve immigrant crime victims. Id.
The U nonimmigrant classification was established under section
1513(b) of the BIWPA. Notwithstanding the title of the legislation, the
U nonimmigrant classification is available to qualified victims of
crimes, without regard to gender. The U nonimmigrant classification
provides temporary immigration benefits to certain victims of criminal
activity who: (1) Have suffered substantial mental or physical abuse as
a result of having been a victim of criminal activity; (2) have
information regarding the criminal activity; and (3) assist government
officials in the investigation and prosecution of such criminal
activity. USCIS can only grant U nonimmigrants status to 10,000
principal aliens in each fiscal year. See INA sec. 214(p)(2), 8 U.S.C.
1184 (p)(2). (Note: this number does not include persons eligible for U
nonimmigrant derivative status--e.g. spouses, children, or parents of
applicants--as discussed in Section III. C. of this rule below).
Aliens granted U nonimmigrant status can remain in the United
States for a period of up to four years, with possible extensions upon
certification of need by certain government officials. INA sec.
214(p)(6), 8 U.S.C. 1184(p)(6). Section 1513(f) of the BIWPA provides
DHS with discretion to convert the temporary U nonimmigrant status to
permanent resident status if (1) the alien has been physically present
in the United States for a continuous period of at least three years
since the date of admission as a U nonimmigrant; and (2) DHS determines
that the ``alien's continued presence in the United States is justified
on humanitarian grounds, to ensure the family unity, or is otherwise in
the public interest.''
To qualify for the U nonimmigrant classification:
The alien must have suffered substantial physical or
mental abuse as a result of having been a victim of qualifying criminal
activity;
The alien must be in possession of information about the
criminal activity of which he or she has been a victim;
The alien must be of assistance to a Federal, State, or
local law enforcement official or prosecutor, a Federal or State judge,
the Department of Homeland Security (DHS), or other Federal, State, or
local authority investigating or prosecuting criminal activity; and
The criminal activity must have violated U.S. law or
occurred in the United States (including Indian country and military
installations) or the territories and possessions of the United States.
INA sec. 101(a)(15)(U)(i), 8 U.S.C. 1101(a)(15)(U)(i). Qualifying
criminal activity is defined by statute to be ``activity involving one
or more of the following or any similar activity in violation of
Federal, State, or local criminal law: 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; or attempt, conspiracy, or
solicitation to commit any of the above mentioned crimes[.]''
Id.,(iii). The list of qualifying crimes represents the myriad types of
behavior that can constitute domestic violence, sexual abuse, or
trafficking, or are crimes of which vulnerable immigrants are often
targeted as victims.
U nonimmigrant status can also extend to certain family members of
the alien victim. If the alien victim is under 21 years of age, the
victim's spouse, children, unmarried siblings under 18 years of age,
and the victim's parents may qualify for U nonimmigrant status. INA
sec. 101(a)(15)(U)(ii)(I), 8 U.S.C. 1101(a)(15)(U)(ii)(I). If the alien
victim is 21 years of age or older, his or her spouse and children may
also qualify for U nonimmigrant status. INA sec. 101(a)(15)(U)(ii)(II),
8 U.S.C. 1101(a)(15)(U)(ii)(II).
Aliens applying for U nonimmigrant status must provide a
certification from a Federal, State or Local law enforcement official
demonstrating that the applicant ``has been helpful, is being helpful,
or is likely to be helpful'' in the investigation or prosecution of the
qualifying criminal activity. INA sec. 214(o), 8 U.S.C. 1184(o). The
BIWPA further directs DHS to provide aliens who are eligible for U
nonimmigrant status with referrals to nongovernmental organizations
(NGOs) to advise the aliens regarding their options in the United
States. Id. Further, USCIS is required to provide U nonimmigrants with
employment authorization. Id.
Section 1513(e) of the BIWPA amended section 212(d) of the INA, 8
U.S.C. 1182(d), to provide for a waiver of inadmissibility if the
Secretary of Homeland Security determines that such a waiver is in the
public or national interest.\1\ Finally, the BIWPA added a new
paragraph (1)(E) to 8 U.S.C. 1367(a) to prohibit adverse determinations
of admissibility or deportability and disclosure of information
pertaining to an alien seeking U nonimmigrant status, except in certain
circumstances. BIWPA sec. 1513(d) (amending section 384(a) of the
Illegal Immigration and Immigrant Reform Act (IIRIRA), div. C of the
Omnibus Appropriations Act of 1996, Pub. L. 104-208, 110 Stat. 3009
(1996)).
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\1\ Unless waived, a ground of inadmissibility can preclude an
alien from receiving nonimmigrant status. 8 CFR 214.1(a)(3). Section
212(a) of the INA, 8 U.S.C. 1182(a), contains a list of the grounds
of inadmissibility.
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Following passage of the BIWPA in October 2000, USCIS implemented
procedures to ensure that those aliens who appeared to be eligible for
U nonimmigrant status under the BIWPA would not be removed from the
United States until they had an opportunity to apply for such status.
See e.g., Memorandum from Michael D. Cronin, Acting Executive Associate
Commissioner, Office of Field Operations, Immigration and
Naturalization Service (Aug. 30, 2001); Memorandum from William R.
Yates, Associate Director of Operations, USCIS, Centralization of
Interim Relief for U Nonimmigrant Status Applicants (Oct. 8, 2003)
(http://www.uscis.gov/graphics/services/tempbenefits/antitraf.htm);
Memorandum from William R. Yates, Associate Director of Operations,
USCIS, Assessment of Deferred Action in Requests for Interim Relief
from U Nonimmigrant Status Eligible Aliens in Removal Proceedings (May
6, 2004) (http://www.uscis.gov/graphics/services/tempbenefits/
antitraf.htm).\2\ Alien victims who may be eligible for U nonimmigrant
status were given the opportunity to ask USCIS for interim relief
pending the promulgation of implementing regulations. Family members
seeking to derive immigration benefits from such aliens were accorded
the same treatment. Interim relief provides alien victims with parole,
stays of removal, or assessed deferred action, as well as an
opportunity to apply for employment authorization.\3\
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\2\ Copies of these documents are accessible on the public
docket for this rulemaking at www.regulations.gov, Docket Number
USCIS-2006-0069.
\3\ Parole is permission given by DHS that allows an alien to
physically enter the United States temporarily for urgent
humanitarian reasons or significant public benefit; the entry is not
deemed to be an admission to the United States. INA 212(d)(5)(A), 8
U.S.C. 1182(d)(5)(A); 8 CFR 212.5. A stay of deportation or removal
is an administrative decision to stop temporarily the deportation or
removal of an alien who has been ordered deported or removed from
the United States. See 8 CFR 241.6; 8 CFR 1241.6. Deferred action is
an exercise of prosecutorial discretion that defers the removal of
the alien based on the alien's case being made a lower priority for
removal. Immigration and Customs Enforcement, Department of Homeland
Security, Detention and Deportation Officer's Field Manual, ch. 20.8
(2005). Deferred action does not confer any immigration status upon
an alien.
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[[Page 53016]]
III. Analysis of Requirements and Procedures Under This Interim Rule
To implement the BIWPA and its creation of the U nonimmigrant
classification, this interim rule outlines the eligibility and
application requirements for the U nonimmigrant classification and the
benefits and limitations relating to those granted U nonimmigrant
status. Specifically, this interim rule provides definitions of
relevant terms contained in the BIWPA and establishes procedures and
standards for adjudicating petitions for U nonimmigrant status. It also
describes the filing procedures and adjudication standards for
applications for the waiver of inadmissibility created by the BIWPA
that is available to those seeking U nonimmigrant status. New 8 CFR
212.17. The rule amends 8 CFR 212.1 to include U nonimmigrant status
recipients among the nonimmigrant status holders able to seek a waiver
of documentary requirements to gain admission to the United States.
This rule also amends 8 CFR 248.2 to permit nonimmigrants to change
status to that of a U nonimmigrant; 8 CFR 274a.12(a) to add U
nonimmigrant status recipients to the list of aliens authorized to
accept employment; 8 CFR 274a.13(a) to require an application to be
filed for certain U nonimmigrants seeking evidence of employment
authorization; 8 CFR 299.1 to prescribe the petition form for U
nonimmigrant status; and 8 CFR 103.7 to prescribe the filing fee for U
nonimmigrant petitions.
As discussed below, USCIS encourages petitioners and accompanying
or following to join family members who have been granted interim
relief to file Form I-918 within 180 days of the effective date of this
rule. After the effective date of this rule, the interim relief process
will no longer be in effect, and USCIS will not consider initial
requests for interim relief. After the 180-day time period, USCIS will
reevaluate previous grants of deferred action, parole, and stays of
removal and terminate such interim relief for those aliens who fail to
file Form I-918 within the 180-day time period. However, if the alien
has properly filed a Form I-918, but USCIS has not yet adjudicated that
petition, interim relief will be extended until USCIS completes its
adjudication of Form I-918.
A. Eligibility Requirements for U Nonimmigrant Status
There are four statutory eligibility requirements for U
nonimmigrant status, the alien (1) Has suffered physical or mental
abuse as a result of having been a victim of certain criminal activity;
(2) possesses information concerning such criminal activity; (3) has
been helpful, is being helpful or is likely to be helpful in the
investigation or prosecution of the crime; and (4) the criminal
activity violated the laws of the United States or occurred in the
United States. This section of the Supplementary Information describes
each statutory eligibility requirement for U nonimmigrant status and
this rule's implementation of each requirement.
1. Victims of Qualifying Criminal Activity Who Have Suffered Physical
or Mental Abuse
The first eligibility requirement for U nonimmigrant status is that
the alien must have suffered substantial physical or mental abuse as a
result of having been a victim of qualifying criminal activity. INA
sec. 101(a)(15)(U)(i)(I), 8 U.S.C. 1101(a)(15)(U)(i)(I). This interim
rule defines the following terms that relate to this eligibility
requirement: Victims of qualifying criminal activity, physical or
mental abuse, and qualifying crime or qualifying criminal activity. New
8 CFR 214.14(a). These definitions are discussed below.
a. Victims of Qualifying Criminal Activity
The meaning of ``victim of qualifying criminal activity'' is
provided by new 8 CFR 214.14(a)(14). Within this definition, the rule
provides for indirect victims of the criminal activities in the case of
deceased victims of murder and manslaughter and victims of violent
criminal activity who are incapacitated or incompetent. See new 8 CFR
214.14(a)(14)(i). The definition also clarifies how victims of witness
tampering, obstruction of justice, and perjury can constitute victims
of qualifying criminal activity. See new 8 CFR 214.14(a)(14)(ii). This
interim rule also excludes alien victims who are themselves culpable of
criminal activity from the definition of victim, subject to certain
exceptions. See 8 CFR 214.14(a)(14)(iii).
(i) Direct Victims
This rule generally defines ``victim of qualifying criminal
activity'' as an alien who is directly and proximately harmed by
qualifying criminal activity. 8 CFR 214.14(a)(14). To formulate the
general definition, USCIS drew from established definitions of
``victim.'' Federal statutory provisions consistently define ``victim''
as one who has suffered direct harm or who is directly and proximately
harmed as a result of the commission of a crime. See e.g., 42 U.S.C.
10603(c) (relating to terrorism); 18 U.S.C. 3663(a)(2) (relating to
restitution); 18 U.S.C. 3771(e) (relating to crime victim rights); Fed.
R. Crim. P. 32(a)(2) (defining victim for sentencing purposes); see
also United States v. Terry, 142 F.3d 702, 710-11 (4th Cir. 1998)
(reviewing the possible definitions of ``victim''). The Department of
Justice's (DOJ's) Attorney General Guidelines for Victim and Witness
Assistance (AG Guidelines) adopts a similar definition of the term
``victim.'' See Attorney General Guidelines for Victim and Witness
Assistance at 9 (May 2005) (http://www.ojp.usdoj.gov/ovc/publications/
welcome.html). The AG Guidelines serve to guide federal investigative,
prosecutorial, and correctional agencies in the treatment of crime
victims and, therefore, were viewed by USCIS as an informative resource
in the development of this rule's definition of victim.\4\
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\4\ The AG Guidelines, and some of the aforementioned statutes,
also include pecuniary crimes within the scope of qualifying
activities. The BIWPA, however, limits the qualification
requirements to aliens who suffer substantial physical or mental
abuse and did not expressly reference pecuniary crimes. Therefore,
pecuniary crimes are not included as qualifying criminal activities
for U nonimmigrant status. In addition, the AG Guidelines include
business entities in the definition of ``victim.'' USCIS, however,
only grants non-immigrant status to individuals, not to business
entities and therefore limits the definition of ``victim'' under
this rule to persons.
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The AG Guidelines also state that individuals whose injuries arise
only indirectly from an offense are not generally entitled to rights or
services as victims. AG Guidelines at 10. The AG Guidelines, however,
provide DOJ personnel discretion to treat as victims bystanders who
suffer unusually direct injuries as victims. USCIS does not anticipate
approving a significant number of applications from bystanders, but
will exercise its discretion on a case-by-case basis to treat
bystanders as victims where that bystander suffers an unusually direct
injury as a result of a qualifying crime. An example of an unusually
direct injury suffered by a bystander would be a pregnant
[[Page 53017]]
bystander who witnesses a violent crime and becomes so frightened or
distraught at what occurs that she suffers a miscarriage.
(ii) Indirect Victims
USCIS believes that the U nonimmigrant classification contemplates
encompassing certain indirect victims in addition to direct victims.
This is because the list of qualifying criminal activity at section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), includes
the crimes of murder and manslaughter, the direct targets of which are
deceased. The list also includes witness tampering, obstruction of
justice, and perjury, which are not crimes against a person. Therefore,
this rule extends the definition of victim beyond the direct victim of
qualifying criminal activity in certain circumstances. See new 8 CFR
214.14(a)(14)(i) & (ii).
The AG Guidelines also cover those persons who are not direct
victims of a crime where the direct victim is deceased as a result of
the qualifying crime (e.g. murder or manslaughter), incompetent or
incapacitated, or under the age of 18. AG Guidelines, at 9. In these
situations, the direct victim is not available or sufficiently able to
help in an investigation or prosecution of the criminal activity. Id.
The AG Guidelines list such indirect victims to be a spouse, legal
guardian, parent, child, sibling, another family member, or another
person designated by the court. Id. Under the AG Guidelines, however,
only the first available person on the list is eligible to be
considered a victim. Id. For instance, the parent of a murder victim is
only considered a victim if his or her child is unmarried. The spouse,
as the first person on the list, would be deemed the victim.
Drawing from the AG Guidelines in conjunction with the U
classification statutory provision describing qualifying family members
(section 101(a)(15)(U)(ii) of the INA, 8 U.S.C. 1101(a)(15)(U)(ii)),
this rule extends the victim definition to the following list of
indirect victims in the case of murder, manslaughter, or incompetent or
incapacitated victims: Spouses; children under 21 years of age; \5\
and, if the direct victim is or was under 21 years of age, parents and
unmarried siblings under 18 years of age. See new 8 CFR
214.14(a)(14)(i). This rule does not extend the victim definition
beyond these family members since the U nonimmigrant classification
does not apply to other individuals. Unlike the AG Guidelines, the rule
does not restrict the victim definition only to the first available
person on the list of indirect victims. USCIS has determined that such
a restrictive definition of victim would not adequately serve the
purpose behind the U nonimmigrant classification. Family members of
murder, manslaughter, incompetent, or incapacitated victims frequently
have valuable information regarding the criminal activity that would
not otherwise be available to law enforcement officials because the
direct victim is deceased, incapacitated, or incompetent. By extending
the victim definition to include certain family members of deceased,
incapacitated, or incompetent victims, the rule encourages these family
members to fully participate in the investigation or prosecution.
Extending immigration benefits only to the first available person on
the AG Guidelines list could separate families and lead to anomalous
results. For example, in the case of a mother who is murdered and
leaves behind her husband and young children, extending benefits only
to the husband, as the first person on the list, could leave minor
children without U nonimmigrant status protection.
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\5\ Qualifying children also must be unmarried. See INA sec.
101(b), 8 U.S.C. 1101(b).
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USCIS notes, however, that while family members on the list of
indirect victims under this rule may apply for U nonimmigrant status in
their own right as principal petitioners, there is no requirement that
they do so. For example, in the scenario described above of a mother
who is murdered and leaves behind a husband and minor children, the
husband and minor children could each apply as principal petitioners.
In the alternative, the husband could file as a principal petitioner
and the children could be included as family members on his petition,
as will be discussed later in this Supplementary Information. Likewise,
the children potentially could be principal petitioners and their
father (the husband of the deceased), could be included as a family
member on one of the children's petitions. Family members who are
recognized as indirect victims and, therefore, eligible to apply for U
nonimmigrant status as principal petitioners must meet all of the
eligibility requirements that the direct victim would have had to meet
in order to be accorded U nonimmigrant status.
In the case of witness tampering, obstruction of justice, or
perjury, the interpretive challenge for USCIS was to determine whom the
BIWPA was meant to protect, given that these criminal activities are
not targeted against a person. USCIS looked to the purpose of the
BIWPA--to encourage cooperation with criminal investigations and
protect vulnerable victims (BIWPA sec. 1502)--and to the federal
definitions of the term ``victim.'' As discussed above, in order to be
classified as a victim under Federal law, an individual must suffer
direct and proximate harm. Therefore, USCIS considered which categories
of people would suffer direct and proximate harm from witness
tampering, obstruction of justice, and perjury. USCIS identified one
such category as individuals who are harmed when a perpetrator commits
one of the three crimes in order to avoid or frustrate the efforts of
law enforcement authorities. USCIS identified another such category as
individuals who are harmed when the perpetrator uses the legal system
to exploit or impose control over them.
Accordingly, this rule provides that a victim of witness tampering,
obstruction of justice, or perjury is an alien who has been directly
and proximately harmed by the perpetrator of one of these three crimes,
where there are reasonable grounds to conclude that the perpetrator
principally committed the offense as a means: (1) To avoid or frustrate
efforts to investigate, arrest, prosecute, or otherwise bring him or
her to justice for other criminal activity; or (2) to further his or
her abuse or exploitation of or undue control over the alien through
manipulation of the legal system. New 8 CFR 214.14(a)(14)(ii). In
developing this definition, USCIS considered whether or not the
criminal activity of witness tampering, obstruction of justice, or
perjury must have been committed in relation to one of the other
qualifying crimes listed in the statute. However, the text of section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), listing
qualifying criminal activity explicitly states that the criminal
activity must involve ``one or more'' of the 27 categories of crimes
listed. USCIS reads the phrase ``one or more'' to mean that each of the
crimes listed thereafter may qualify independently. Therefore, this
rule does not require such a nexus.
(iii) Culpability of the Victim
This rule excludes a person who is culpable for the qualifying
criminal activity being investigated or prosecuted from being deemed a
victim. See new 8 CFR 214.14(a)(14)(iii). Although the statutory
provision at section 101(a)(15)(U)(i) of the INA, 8 U.S.C.
1101(a)(15)(U)(i), describing who qualifies as a U nonimmigrant neither
explicitly covers nor explicitly excludes culpable persons, USCIS
believes that this exclusion is warranted.
[[Page 53018]]
This exclusion does not apply to an alien who committed a crime
other than the one under investigation or prosecution, even if the
crimes are related. For instance, an alien who agrees to be smuggled
into the United States, but is then held in involuntary servitude may
still be deemed to be a victim of involuntary servitude even though he
or she also may be culpable in the smuggling crime and for illegally
entering the United States. USCIS has concluded that, while it is
reasonable to exclude culpable individuals from being defined as a
victim, it is not reasonable to exclude individuals simply based on any
criminal activity in which they may have at one time engaged. USCIS
notes that this approach of distinguishing between those who are
culpable for the qualifying crime and those who are culpable for other
crimes is supported by the AG Guidelines. See AG Guidelines, at 10.
b. Physical or Mental Abuse
This rule defines physical or mental abuse to mean injury or harm
to the victim's physical person, or harm to or impairment of the
emotional or psychological soundness of the victim. New 8 CFR
214.14(a)(8). In considering how to define the term physical or mental
abuse, USCIS examined existing regulations that use similar terms. In
particular, USCIS looked to regulations promulgated following the
enactment of VAWA 1994 that allow battered spouses and children of U.S.
citizens and lawful permanent residents to seek immigration status. See
8 CFR 204.2(c), 216.5(e)(3). These regulations use the terms
``battery'' and ``extreme cruelty'' to refer to any act or threatened
act of violence that results in physical or mental injury. See 8 CFR
204.2(c)(2)(vi); 8 CFR 216.5(e)(3)(i). Battery and extreme cruelty are
terms that the regulations use interchangeably with the term ``abuse.''
See 8 CFR 204.2(c)(1)(vi); (2)(iv); 216.5(e)(3)(i); and
216.5(e)(3)(iii).
The term, ``physical or mental abuse,'' encompasses a wide range of
physical or mental harm. Section 101(a)(15)(U)(i)(I) of the INA, 8
U.S.C. 1101(a)(15)(U)(i)(I), which establishes this as a requirement,
qualifies ``physical or mental abuse'' with the term, ``substantial.''
The statutory provision does not make clear, however, whether the
standard of ``substantial'' physical or mental abuse is intended to
address the severity of the injury suffered by the victim, or the
severity of the abuse inflicted by the perpetrator. USCIS has concluded
that it is reasonable to consider both. Rather than define what
constitutes abuse that is ``substantial,'' however, USCIS believes that
a better approach would be to make case-by-case determinations, using
factors as guidelines.
This rule lists a number of factors USCIS will consider when
determining whether the physical or mental abuse at issue qualifies as
substantial. New 8 CFR 214.14(b)(1). These factors are: The nature of
the injury inflicted or suffered; the severity of the perpetrator's
conduct; the severity of the harm suffered; the duration of the
infliction of the harm; and the extent to which there is permanent or
serious harm to the appearance, health, or physical or mental soundness
of the victim. Through these factors, USCIS will be able to evaluate
the kind and degree of harm suffered by the individual applicant based
upon that applicant's individual experience. No single factor is a
prerequisite to establish that the abuse suffered was substantial.
Also, the existence of one or more of the factors does not
automatically create a presumption that the abuse suffered was
substantial.
USCIS recognizes the possibility that some victims will have a pre-
existing physical or mental injury or condition at the time of the
abuse. In evaluating whether the harm is substantial, this rule
requires USCIS to consider the extent to which any pre-existing
conditions were aggravated. Id. Some abuse may involve a series of acts
or occur repeatedly over a period of time. USCIS will consider the
abuse in its totality to determine whether the abuse is substantial. A
series of acts taken together may be considered to constitute
substantial physical or mental abuse even where no single act alone
rises to that level. Id.
c. Qualifying Criminal Activity
The statutory list of qualifying criminal activity in section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), is not a
list of specific statutory violations, but instead a list of general
categories of criminal activity. It is also a non-exclusive list. Any
similar activity to the activities listed may be a qualifying criminal
activity. This interim rule adopts the statutory list of criminal
activity and further defines what constitutes ``any similar activity.''
See new 8 CFR 214.14(a)(9). The rule provides that for a criminal
activity to be deemed similar to one specified on the statutory list,
the similarities must be substantial. USCIS bases this definition on
the fact that the statutory list of criminal activity is not composed
of specific statutory violations. Instead, the criminal activity listed
is stated in broad terms. The rule's definition of ``any similar
activity'' takes into account the wide variety of state criminal
statutes in which criminal activity may be named differently than
criminal activity found on the statutory list, while the nature and
elements of both criminal activities are comparable. In addition,
qualifying criminal activity may occur during the commission of non-
qualifying criminal activity. For varying reasons, the perpetrator may
not be charged or prosecuted for the qualifying criminal activity, but
instead, for the non-qualifying criminal activity. For example, in the
course of investigating Federal embezzlement and fraud charges, the
investigators discover that the perpetrator is also abusing his wife
and children, but because there are no applicable Federal domestic
violence laws, he is charged only with non-qualifying Federal
embezzlement and fraud crimes.
2. Possession of Information Concerning the Qualifying Criminal
Activity
In passing the BIWPA, Congress wanted to encourage aliens who are
victims of criminal activity to report the criminal activity to law
enforcement and fully participate in the investigation and prosecution
of the perpetrators of such criminal activity. BIWPA sec.
1513(a)(1)(B). The second eligibility requirement for U nonimmigrant
status is that the alien must possess information about the qualifying
criminal activity of which he or she is a victim. INA sec.
101(a)(15)(U)(i)(II), 8 U.S.C. 1101(a)(15)(U)(i)(II). This rule adopts
this statutory requirement at new 8 CFR 214.14(b)(2). Possessing
information about a crime of which the alien is not a direct or
indirect victim would not satisfy this requirement and, therefore, is
not included in the rule.
USCIS will consider an alien victim to possess information
concerning qualifying criminal activity of which he or she was a victim
if he or she has knowledge of the details (i.e., specific facts)
concerning the criminal activity that would assist in the investigation
or prosecution of the criminal activity. See new 8 CFR 214.14(b)(2).
The findings that Congress expressed in sections 1513(a)(1) and (2) of
the BIWPA make clear that the intent behind the creation of U
nonimmigrant status was to facilitate the investigation and prosecution
of criminal activity of which immigrants are targets while providing
protection for victims of such criminal activity. USCIS believes that,
to give effect to congressional intent, the information that the alien
must possess must be related to the crime of which he or she is a
victim. If not, the stated purpose of the statute is thwarted.
Possession of information concerning
[[Page 53019]]
the criminal activity necessarily means that the alien must have
knowledge of it.
When the alien victim is under 16 years of age, the statute does
not require him or her to possess information regarding the qualifying
criminal activity. Rather, the parent, guardian, or next friend of the
alien victim may possess that information if the alien victim does not.
INA sec. 101(a)(15)(U)(i)(II), 8 U.S.C. 1101(a)(15)(U)(i)(II). This
rule reiterates this exception at new 8 CFR 214.14(b)(2). This
provision specifies that the age of the alien victim on the day on
which an act constituting an element of the qualifying criminal
activity first occurred is the applicable age to consider for purposes
of establishing whether the exception is triggered. The purpose of the
exception is to allow for alternative mechanisms for possessing
information when a child is at an age where he or she may be too young
to adequately understand and relay traumatic and sensitive information.
As such, USCIS believes that the date on which the qualifying criminal
activity began is the appropriate date for triggering this exception.
The rule also permits a parent, guardian, or next friend to provide
information when the alien victim is incapacitated or incompetent. New
8 CFR 214.14(b)(2). Permitting certain family members or guardians to
act in lieu of incapacitated or incompetent victims is supported by the
AG Guidelines, at 9.
This rule also defines the term ``next friend.'' New 8 CFR
214.14(a)(7). An individual will qualify as a next friend under this
rule if he or she appears in a lawsuit to act for the benefit of an
alien who is under the age of 16 or who is incapacitated or
incompetent. See Whitmore v. Arkansas, 495 U.S. 149, 163-4 (1990)
(describing next friend as someone dedicated to the best interests of
the individual who cannot appear on his or her own behalf because of
inaccessibility, mental incompetence, or other disability). The next
friend is not a party to the legal proceeding and is not appointed as a
guardian.
3. Helping Law Enforcement in the Investigation or Prosecution of
Criminal Activity
The third eligibility requirement for U nonimmigrant status is that
the alien victim of qualifying criminal activity (or, in the case of an
alien child under the age of 16, the parent, guardian, or next friend
of the alien) has been, is being, or is likely to be helpful to a
government official or authority in the investigation or prosecution of
the qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(III), 8
U.S.C. 1101(a)(15)(U)(i)(III). This requirement is set forth in new 8
CFR 214.14(b)(3), which further provides that the alien victim cannot
refuse or fail to provide reasonably requested information and
assistance in order to remain eligible for U nonimmigrant status. The
rule also provides for alien victims who are incompetent or
incapacitated. Additionally, this rule provides that the official or
authority receiving the assistance be a ``certifying agency,'' as
defined in new 8 CFR 214.14(a)(2).
a. Helpfulness
USCIS interprets ``helpful'' to mean assisting law enforcement
authorities in the investigation or prosecution of the qualifying
criminal activity of which he or she is a victim. USCIS is excluding
from eligibility those alien victims who, after initiating cooperation,
refuse to provide continuing assistance when reasonably requested. New
8 CFR 214.14(b)(3). USCIS believes that the statute imposes an ongoing
responsibility on the alien victim to provide assistance, assuming
there is an ongoing need for the applicant's assistance. USCIS bases
this interpretation on the plain text of the statutory provision that
sets forth this requirement. See INA sec. 101(a)(15)(U)(i)(III), 8
U.S.C. 1101(a)(15)(U)(i)(III). The requirement was written with several
verb tenses, recognizing that an alien may apply for U nonimmigrant
status at different stages of the investigation or prosecution. By
allowing an individual to petition for U nonimmigrant status upon a
showing that he or she may be helpful at some point in the future,
USCIS believes that Congress intended for individuals to be eligible
for U nonimmigrant status at the very early stages of an investigation.
This suggests an ongoing responsibility to cooperate with the
certifying official while in U nonimmigrant status. If the alien victim
only reports the crime and is unwilling to provide information
concerning the criminal activity to allow an investigation to move
forward, or refuses to continue to provide assistance to an
investigation or prosecution, the purpose of the BIWPA is not
furthered. See BIWPA sec. 1513(a)(2).
In addition, in order to qualify for permanent resident status on
the basis of the U nonimmigrant classification, the alien must not have
unreasonably refused to provide assistance in a criminal investigation
or prosecution. INA sec. 245(m)(1), 8 U.S.C. 1255(m)(1). This
requirement further suggests an ongoing responsibility to cooperate
with the certifying official while in U nonimmigrant status.
An exception to the helpfulness requirement applies to alien
victims who are under 16 years of age. Such alien victims can satisfy
the helpfulness requirement if their parent, guardian, or next friend
provides the required assistance. INA sec. 101(a)(15)(U)(i)(III), 8
U.S.C. 1101(a)(15)(U)(III). This exception is the same exception
applicable to the previous requirement that the alien victim possess
information regarding the criminal activity. See new 8 CFR
214.14(b)(2). This rule reiterates the exception with respect to the
helpfulness requirement at new 8 CFR 214.14(b)(3). The provision
specifies that the age of the victim on the day on which an act
constituting an element of the qualifying criminal activity first
occurred is the applicable age to consider for purposes of establishing
whether the exception is triggered. New 8 CFR 214.14(b)(3). It also
extends the exception to individuals who are incapacitated or
incompetent and allows a parent, guardian, or next friend to be helpful
in those instances. Id.
b. Certifying Agency
This rule requires that the assistance in the investigation or
prosecution of qualifying criminal activity be provided to a
``certifying agency.'' As discussed later in this Supplementary
Information, an alien victim must include a certification from such
agency in support of his or her request for U nonimmigrant status. INA
sec. 214(p)(1), 8 U.S.C. 1184(p)(1).
A ``certifying agency'' is one of the government officials and
entities identified in the statute that is investigating or prosecuting
qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(III), 8 U.S.C.
1101(a)(15)(U)(i)(III). The rule defines a ``certifying agency'' as a
Federal, State, or local law enforcement agency, prosecutor, judge, or
other authority, that has responsibility for the investigation or
prosecution of the qualifying criminal activities designated in the
BIWPA. New 8 CFR 214.14(a)(2). This includes traditional law
enforcement branches within the criminal justice system. However, USCIS
also recognizes that other agencies, such as child protective services,
the Equal Employment Opportunity Commission, and the Department of
Labor, have criminal investigative jurisdiction in their respective
areas of expertise. The rule specifies these agencies. See id.
[[Page 53020]]
The rule provides that the term ``investigation or prosecution,''
used in the statute and throughout the rule, includes the detection or
investigation of a qualifying crime or criminal activity, as well as
the prosecution, conviction, or sentencing of the perpetrator of such
crime or criminal activity. New 8 CFR 214.14(a)(5). Referring to the AG
Guidelines, USCIS is defining the term to include the detection of
qualifying criminal activity because the detection of criminal activity
is within the scope of a law enforcement officer's investigative
duties. AG Guidelines, at 22-23. Also referring to the AG Guidelines,
USCIS is defining the term to include the conviction and sentencing of
the perpetrator because these extend from the prosecution. Id. at 26-
27. Moreover, such inclusion is necessary to give effect to section
214(p)(1) of the INA, 8 U.S.C. 1184(p)(1), which permits judges to sign
certifications on behalf of U nonimmigrant status applications. INA
sec. 214(p)(1), 8 U.S.C. 1184(p)(1). Judges neither investigate crimes
nor prosecute perpetrators. Therefore, USCIS believes that the term
``investigation or prosecution'' should be interpreted broadly as in
the AG Guidelines.
4. Criminal Activity That Violated U.S. Law or Occurred in the United
States
The fourth requirement for U nonimmigrant classification is that
the qualifying criminal activity violated the laws of the United States
or occurred in the United States (including in Indian country and
military installations) or the territories and possessions of the
United States. INA 101(a)(15)(U)(i)(IV), 8 U.S.C.
1101(a)(15)(U)(i)(IV). This requirement is adopted in new 8 CFR
214.14(b)(4).
The term United States is defined in section 101(a)(38) of the INA,
8 U.S.C. 1101(a)(38), to mean the continental United States, Alaska,
Hawaii, Puerto Rico, Guam, and the U.S. Virgin Islands. The BIWPA does
not define the term ``Indian country,'' but for purposes of this rule,
USCIS is adopting the definition contained in 18 U.S.C. 1151. Under
this rule, ``Indian country'' means all land within the limits of any
Indian reservation under the jurisdiction of the United States, all
dependent Indian communities within the borders of the United States,
and all Indian allotments. New 8 CFR 214.14(a)(4). Although 18 U.S.C.
1151 is a criminal jurisdiction statute, tribal and federal courts have
applied this statutory definition to both criminal and civil matters.
See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208
n.5 (1996).
Similarly, the term ``military installation'' is not defined in the
BIWPA. This rule defines that term as meaning any facility, base, camp,
post, encampment, station, yard, center, port, aircraft, vehicle, or
vessel under the jurisdiction of the Department of Defense, or any
location under military control, including any leased facility. New 8
CFR 214.14(a)(6). To develop this definition, USCIS looked to other
statutory definitions of the term. See, e.g., 10 U.S.C. 2687(e)
(defining the term in the context of base closures and realignments);
10 U.S.C. 2801(c)(2) (relating to military construction). A review of
the federal case law reveals that this is a nebulous concept with no
absolute definition. United States v. Buske, 2 M.J. 465, 467 (A.C.M.R.
1975). In order to realize the purpose of the U nonimmigrant
classification, to facilitate criminal investigations and prosecutions,
USCIS interpreted the term broadly to encompass a wide range of
military locations.
New 8 CFR 212.14(a)(11) defines the term ``territories and
possessions of the United States'' to mean American Samoa, Swains
Island, Bajo Nuevo (the Petrel Islands), Baker Island, Howland Island,
Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa
Island, Northern Mariana Islands, Palmyra Atoll, Serranilla Bank, and
Wake Atoll. This definition is based on current information that the
Department of Interior provided to USCIS. Although Guam, Puerto Rico,
and the U.S. Virgin Islands are also considered territories or
possessions of the United States, USCIS has not included them in this
regulatory definition because they are already incorporated into the
INA definition of United States. See INA sec. 101(a)(38), 8 U.S.C.
1101(a)(38).
Section 101(a)(15)(U)(i)(IV) of the INA, 8 U.S.C.
1101(a)(15)(U)(i)(IV), requires that the criminal activity either
violated the laws of the United States or occurred in the United
States. USCIS does not believe that this distinction is based on which
laws are violated--U.S. laws or foreign laws--because elsewhere in the
statute, qualifying criminal activity is defined as criminal activity
that is ``in violation of Federal, State, or local criminal law.'' See
INA sec. 101(a)(15)(U)(iii), 8 U.S.C. 1101(a)(15)(U)(iii). Instead,
USCIS believes that the distinction refers to where the violation
occurred, whether inside or outside the United States. Accordingly,
USCIS interprets the phrase, ``occurred in the United States,'' to mean
qualifying criminal activity that occurred in the United States that is
in violation of U.S. law. USCIS interprets the phrase, ``violated the
laws of the United States,'' as referring to criminal activity that
occurred outside the United States that is in violation of U.S. law.
This rule provides that criminal activity that has occurred outside
of the United States, but that fits within a type of criminal activity
listed in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C.
1101(a)(15)(U)(iii), will constitute a qualifying criminal activity if
it violates a federal statute that specifically provides for
extraterritorial jurisdiction. See new 8 CFR 214.14(b)(4). Such
criminal activity will have ``violated the laws of the United States.''
Congress has enacted a variety of statutes governing criminal activity
occurring outside the territorial limits of the United States. These
statutes establish extraterritorial and federal, criminal jurisdiction.
Statutes establishing extraterritorial jurisdiction generally require
some nexus between the criminal activity and U.S. interests. For
example, pursuant to 18 U.S.C. 2423(c), the United States has
jurisdiction to investigate and prosecute cases involving U.S. citizens
or nationals who engage in illicit sexual conduct outside the United
States, such as sexually abusing a minor. See also 18 U.S.C. 32
(destruction of an aircraft); 15 U.S.C. 1 (extraterritorial application
of the Sherman Act governing antitrust laws).
This rule does not require that the prosecution actually occur,
since the statute only requires an alien victim to be helpful in the
investigation or the prosecution of the criminal activity. See INA
sections 101(a)(15)(U)(i)(III) & 214(p)(1), 8 U.S.C.
1101(a)15(u)(i)(III) and 1184(p)(1). Prosecution may be impossible due
to a number of factors, such as an inability to extradite the
defendant.
B. Application Process
By statute, the petition for U nonimmigrant status must be filed by
the alien victim and contain a certification of helpfulness from a
certifying agency. See INA sec. 214(p)(1), 8 U.S.C. 1184(p)(1). Based
upon these statutory requirements, this rule designates the form that
petitioners must use to request U nonimmigrant status and describes the
evidence that must accompany the form, including the certification of
helpfulness. The rule also sets forth filing requirements and
procedures. This section of the Supplementary Information discusses
these requirements, as well as eligibility and filing requirements for
those qualifying family members of the alien victim who also are
seeking U nonimmigrant status.
[[Page 53021]]
1. Filing the Petition To Request U Nonimmigrant Status
This interim rule designates Form I-918, ``Petition for U
Nonimmigrant Status,'' as the form an alien victim must use to request
U nonimmigrant status. See New 8 CFR 214.14(c)(1), This provision also
requires petitioners to follow the instructions to Form I-918 for
proper completion and accompany Form I-918 with initial evidence and
the correct fee(s).\6\ Form I-918 requests information regarding the
applicant's eligibility for U nonimmigrant status and admissibility to
the United States. Jurisdiction over all petitions for U nonimmigrant
status rests with USCIS. The instructions to Form I-918 specify where
petitioners must file (by mail) their application package. At present,
USCIS has centralized the adjudication process for Forms I-918 at its
Vermont Service Center. This centralization will allow adjudicators to
develop expertise in handling U nonimmigrant petitions and provide for
uniformity in the adjudication of these petitions.
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\6\ A fee waiver is available for the Form I-918 filing fee. Fee
waivers are governed by 8 CFR 103.7(c).
---------------------------------------------------------------------------
The rule addresses several special considerations that may affect
certain petitioners seeking to file Form I-918: Filing petitions from
outside the United States; the effect of a petition on interim relief;
petitioners subject to grounds of inadmissibility; petitioners in
removal proceedings or subject to a final order of exclusion,
deportation, or removal; changing nonimmigrant classifications; and the
effect of a petition on other immigration benefits. These
considerations are discussed below.
a. Alien Victims of Qualifying Criminal Activity Filing Form I-918 From
Outside the United States
This interim rule does not require petitioners to file Form I-918
from within the United States. USCIS has determined that the statutory
framework for U nonimmigrant status permits alien victims of qualifying
criminal activity to apply for U nonimmigrant status classification
from either inside or outside the United States. For example, the
statute does not require petitioners to be physically present in the
United States to qualify for U nonimmigrant status. By contrast, other
nonimmigrant classifications, such as the T nonimmigrant classification
(INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T)), explicitly require
an alien's physical presence in the United States as a condition of
eligibility. Moreover, under section 101(a)(15)(U)(i)(IV) of the INA, 8
U.S.C. 1101(a)(15)(U)(i)(IV), qualifying criminal activity may occur
outside the territorial jurisdiction of the United States under certain
circumstances. USCIS recognizes that for qualifying criminal activity
that occurred outside the United States, the investigation may take
place either outside or inside the United States. The alien victim may
be needed in the United States to assist the certifying agency in its
investigation or subsequent prosecution of the criminal activity.
Allowing alien victims to submit petitions from outside the United
States provides the certifying agency with the necessary flexibility to
further the investigation or prosecution.
To apply from outside the United States, petitioners must submit a
complete application package for U nonimmigrant status to the USCIS
location specified in the form instructions.
b. Petitioners With Interim Relief From Removal
This rule does not impose a deadline for submission of U
nonimmigrant status petitions. However, USCIS encourages petitioners
and accompanying or following to join family members who were granted
interim relief to file Form I-918 within 180 days of the effective date
of this rule. After the effective date of this rule, the interim relief
process will no longer be in effect, and USCIS will not consider
initial requests for interim relief. After the 180-day time period
following the effective date of the rule, USCIS will reevaluate
previous grants of deferred action, parole, and stays of removal and
terminate such interim relief for those aliens who fail to file Form I-
918 within the 180-day time period. However, if the alien has properly
filed a Form I-918, but USCIS has not yet adjudicated that petition,
interim relief will be extended until USCIS completes its adjudication
of Form I-918. USCIS believes that 180 days provides an interim relief
recipient a sufficient period of time within which to file and perfect
a U nonimmigrant petition, taking into account the time it may take for
individuals to learn of this rule and put together a complete package
requesting U nonimmigrant status.
c. Petitioners Who Are Inadmissible
To be eligible for U nonimmigrant status, the alien requesting
status must be admissible to the United States. 8 CFR 214.1(a)(3)(i);
see also INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1). Therefore, those who
are inadmissible to the United States, or who become inadmissible for
conduct that occurs while their petition for U nonimmigrant status is
pending, will not be eligible for U nonimmigrant status unless the
ground of inadmissibility is waived by USCIS. See INA sec. 212(a), 8
U.S.C. 1182(a) (grounds of inadmissibility). USCIS has general
authority to waive many grounds of inadmissibility for nonimmigrants
and may prescribe conditions on their temporary admission to the United
States. See INA sec. 212(d)(3)(B), 8 U.S.C. 1182(d)(3)(B).
In addition, the BIWPA created a waiver specific to U nonimmigrant
status. Under this waiver, the Secretary of Homeland Security has the
discretion to waive any ground of inadmissibility with respect to
applicants for U nonimmigrant status, except the ground applicable to
participants in Nazi persecutions, genocide, acts of torture, or
extrajudicial killings. INA sec. 212(d)(14), 8 U.S.C. 1182(d)(14).
However, the Secretary of Homeland Security first must determine that
such a waiver would be in the public or national interest. Id.
It is important to note that the determination that a waiver would
be in the public or national interest and the decision to grant a
waiver are made at the discretion of the Secretary. In the immigrant
context, the Board of Immigration Appeals has held that, in assessing
whether an applicant has met the burden that a waiver is warranted in
the exercise of discretion, the adjudicator must balance adverse
factors evidencing inadmissibility as a lawful permanent resident with
the social and humane considerations presented to determine if the
grant of the waiver appears to be in the best interests of the United
States. Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). More
recently, in the context of a case involving a waiver of a criminal
ground of inadmissibility under section 209(c) of the Act, the Attorney
General determined that favorable discretion should not be exercised
for waivers under section 212(h) of the Act involving violent or
dangerous crimes, except in extraordinary circumstances. Matter of
Jean, 23 I&N Dec. 373 (A.G. 2002).
In view of these considerations, this rule provides a general rule
that DHS will only exercise favorable discretion in U nonimmigrant
status cases in which a waiver for violent or dangerous crimes or the
security and related grounds under section 212(a)(3) of the Act is
requested, in extraordinary circumstances. Moreover, depending on the
nature and severity of the underlying offense/s to be waived, the
Secretary retains the discretion to determine that the mere existence
of
[[Page 53022]]
extraordinary circumstances is insufficient.
Additionally, this rule provides that the Secretary will not
exercise discretion under section 212(d)(3) of the Act, 8 U.S.C.
1182(d)(3), to waive the ground of inadmissibility under section
212(a)(3)(E) applicable to participants in Nazi persecutions, genocide,
acts of torture, or extrajudicial killings. New 8 CFR 212.17(b).
Because Congress determined not to make a waiver available for this
ground of inadmissibility in the waiver provision created for U
nonimmigrant applicants at section 212(d)(14) of the Act, DHS has
determined that it would not be logical to allow these applicants to be
eligible for a waiver of this ground of inadmissibility under section
212(d)(3) of the Act.
To apply for a waiver of inadmissibility, a petitioner must file
Form I-192, ``Application for Advance Permission to Enter as
Nonimmigrant,'' with USCIS. New 8 CFR 212.17(a); new 8 CFR
214.14(c)(2)(iv). USCIS will evaluate the application to determine
whether it is in the public or national interest to exercise discretion
to waive the applicable ground(s) of inadmissibility. New 8 CFR
212.17(b)(1). As with inadmissibility waiver applications for other
nonimmigrant classifications, there is no appeal of a decision to deny
Form I-192. New 212.17(b)(2); see also 8 CFR 212.4(a)(1). This rule
also provides that an applicant whose waiver application is denied is
not prevented from re-filing a request for a waiver. New 8 CFR
212.17(b)(2). This is to allow those petitioners whose Forms I-918 and
concurrently filed Forms I-192 are denied an opportunity to have a
subsequently filed Form I-192 considered in the context of other
immigration benefits.
USCIS has determined that implicit in its discretionary authority
to grant a waiver is the authority to determine the conditions under
which a waiver is granted, including revocation of previously granted
waiver. Therefore, this interim rule establishes USCIS' authority to
revoke its approval of a waiver of inadmissibility that was previously
granted. The decision to revoke a waiver is not appealable. New 8 CFR
212.17(c).
d. Petitioners Who Are in Removal, Deportation, or Exclusion
Proceedings or Who Are Subject to a Final Order of Removal,
Deportation, or Exclusion
Aliens who are in removal proceedings under section 240 of the INA,
8 U.S.C. 1229a, or in deportation or exclusion proceedings under former
sections 242 and 236 of the INA, 8 U.S.C. 1252, 1226 (as in effect
before April 1, 1997), or who are the subject of a final order of
removal, deportation, or exclusion, may be eligible for U nonimmigrant
status.\7\ Because jurisdiction over U nonimmigrant petitions rests
solely with USCIS, aliens who are in removal proceedings or who are
subject to a final removal order nevertheless must file their petition
for U nonimmigrant status directly with USCIS. Filing a petition for U
nonimmigrant status will not affect the proceedings or the order.
However, in instances in which the U nonimmigrant status petitioner or
a derivative family member of the petitioner listed on the Form I-918
is in removal, deportation, or exclusion proceedings before the
Immigration Court or has a matter pending before the Board of
Immigration Appeals (Board),\8\ this rule provides that the alien may
seek the agreement of DHS' Bureau of Immigration and Customs
Enforcement (ICE) \9\ to file a joint motion to terminate the
proceedings without prejudice while a petition for U nonimmigrant
status is being adjudicated by USCIS.\10\ New 8 CFR 214.14(c)(1)(i) and
(f)(2)(i). The joint motion to terminate must be filed with the
Immigration Court or the Board, whichever has jurisdiction. Id. The
agreement to pursue termination of the pending proceedings lies within
the sole prosecutorial discretion of ICE. DHS is including a specific
provision on motions to terminate in this rule to identify a mechanism
that conserves prosecutorial resources with respect to a class of
aliens who are providing assistance in investigating and prosecuting
criminal activity.
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\7\ An order of deportation is an order issued prior to April 1,
1997, in deportation proceedings, to an alien physically present in
the United States requiring the alien to leave the United States.
See INA sec. 242B, 8 U.S.C. 1252b (1996) repealed by IIRIRA, Pub. L.
104-208, div. C., sec. 308(b)(6), 110 Stat. 3009, 3615 (effective
April 1, 1997). An order of exclusion is an order issued prior to
April 1, 1997, in exclusion proceedings, that refuses the admission
to the United States of an alien who is physically outside the
United States (or who is treated as being so). See generally INA
sec. 236, 8 U.S.C. 1226 (1996) (amended by IIRIRA sec. 303(a), 110
Stat. at 3585). Since April 1, 1997, there has been one unified
removal process for persons formerly subject to deportation and
exclusion proceedings; this process may result in the issuance of a
removal order by either DHS or an immigration judge. INA sec.
240(a)(3), 8 U.S.C. 1229a(a)(3) (added by IIRIRA sections 304(a)(3)
& 309(d)(2), 110 Stat. at 3587-3589, 3627). During proceedings, DHS
or an immigration judge makes a determination regarding whether an
alien is removable from the United States. INA sec. 240(c)(1), 8
U.S.C. 1229a(c)(1). If such a determination is made, a removal order
is issued ordering the alien to leave the United States. INA sec.
240(c)(5), 8 U.S.C. 1229a(c)(5). The alien must leave the United
States on his or her own, or will be returned to his or her country
of origin (or in some cases to a third country that agrees to accept
that person) by the United States. See INA sections 240B & 241, 8
U.S.C. 1229c & 1231.
\8\ The Immigration Court and Board of Immigration Appeals are
within the Department of Justice's Executive Office for Immigration
Review. See 8 CFR 1003.0(a).
\9\ ICE counsel are authorized to represent DHS in Immigration
Court and before the Board. See 6 U.S.C. 252(c); DHS Delegation No.
7030.2, para. 2(C).
\10\ While this rule specifically addresses joint motions to
terminate, it does not preclude the parties from requesting a
continuance of the proceeding.
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This rule further provides that if proceedings are terminated, and
USCIS subsequently denies the petition for U nonimmigrant status, DHS
may file a new Notice to Appear \11\ to place the individual into
proceedings again. New 8 CFR 214.14(c)(5)(ii) and (f)(6)(iii).
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\11\ Removal proceedings are initiated when an alien is provided
notice of proceedings through the service of a Notice to Appear. The
contents of the Notice to Appear are prescribed in section 239(a)(1)
of the Act.
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With respect to petitioners who are the subject of an
administrative final order, this rule provides that they are not
precluded from filing a petition for U nonimmigrant status directly
with USCIS. New 8 CFR 214.14(c)(1)(ii) and (f)(2)(ii). However, the
filing of a petition for U nonimmigrant status has no effect on ICE's
authority to execute a final order. Therefore, those aliens subject to
a final order of removal, deportation, or exclusion who are physically
present in the United States should apply separately for a
discretionary stay of removal if they wish to remain in the United
States while their petition is pending with USCIS. To do so, such
aliens must file Form I-246, ``Application for Stay of Removal,'' as
provided in 8 CFR 241.6(a) and 8 CFR 1241.6(a). For those petitioners
who are subject to a final order of removal and are detained in ICE's
custody while USCIS adjudicates their petition, rules of detention
still apply. Under the post-order detention rules, an alien who has
been subject to post-order detention for more than six months (dating
from the beginning of the removal period as described in INA Sec.
241(a)(1)) may request release from detention. See 8 CFR 241.13. If,
after six months of post-order detention, the alien can provide ``good
reason to believe there is no significant likelihood of removal * * *
in the reasonably foreseeable future,'' the alien, with certain
exceptions, will be released on an order of supervision. 8 CFR
241.13(a); see Zadvydas v. Davis, 533 U.S. 678, 701 (2001); Clark v.
Martinez, 543 U.S. 371, 386 (2005). However, under this rule, the time
during which a stay of removal is in effect will extend
[[Page 53023]]
the period of detention reasonably necessary to bring about the
petitioner's eventual removal. New 8 CFR 214.14(c)(1)(ii) and
(f)(2)(ii). As the petitioner has, of his or her own choosing,
requested that his or her removal be stayed, the reasonably necessary
period for removal justifiably is extended. ICE will have a full and
fair period to effect removal if USCIS denies the petition. See 8 CFR
241.4.
If USCIS grants the petition for U nonimmigrant status, an order of
exclusion, deportation, or removal issued by the Secretary will be
canceled by operation of law as of the date of the grant. New 8 CFR
214.14(c)(5)(i) & (f)(6). However, if USCIS subsequently revokes
approval of the petition, DHS may place the petitioner in removal
proceedings. In cases where an order of exclusion, deportation, or
removal was issued by an immigration judge or the Board, the alien may
seek cancellation of such order by filing, with the immigration judge
or the Board, a motion to reopen and terminate removal proceedings. ICE
counsel may agree, as a matter of discretion, to join such a motion to
overcome any applicable time and numerical limitations of 8 CFR 1003.2
and 1003.23. Id.
e. Aliens Seeking Change of Nonimmigrant Classification
Aliens who currently are in a nonimmigrant status may seek to
change their classification to the U nonimmigrant classification.
Section 248 of the INA, 8 U.S.C. 1258, and implementing regulations at
8 CFR 248 govern change of nonimmigrant classification. These
provisions permit nonimmigrants to change status to another
nonimmigrant classification, unless they fall within certain
nonimmigrant classifications. INA sec. 248(a)(1)-(4), 8 U.S.C.
1258(a)(1)-(4); 8 CFR 248.2. For example, aliens classified under
sections 101(a)(15)(C), (D), (K), or (S) of the INA, 8 U.S.C.
1101(a)(15)(C), (D), (K), or (S), as well as certain aliens classified
under section 101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J), may
not change nonimmigrant status. VAWA 2005 amended section 248 of the
INA, 8 U.S.C. 1258, so that even aliens within the excepted
classifications may seek a change of nonimmigrant status if the status
sought is U nonimmigrant status. INA sec. 248(b), 8 U.S.C. 1258(b).
This rule adopts this statutory amendment in revised 8 CFR 248.2(b) and
makes structural modifications to 8 CFR 248.2 to accommodate the
revisions. The rule also clarifies that the procedures for applying for
U nonimmigrant status, even when changing nonimmigrant status, are
contained in new 8 CFR 214. Revised 8 CFR 248.1(a).
f. Aliens Seeking Other Immigration Benefits
Aliens seeking U nonimmigrant status are free to seek any other
immigration benefit or status for which they are eligible. INA sec.
214(p)(5), 8 U.S.C. 1184(p)(5). Therefore, nothing in this rule limits
a qualified petitioner from applying for U nonimmigrant status as well
as other immigration benefits, including immigrant status. However,
USCIS will only grant one nonimmigrant or immigrant status at a time.
Where multiple applications or petitions are filed and pending at the
same time, USCIS will grant the status for the application or petition
that is approved first. USCIS will deny any remaining petitions or
applications for status.
2. Initial Evidence
This rule requires petitioners filing Form I-918 to accompany the
petition with supporting documentation, or ``initial evidence,'' in
order for USCIS to consider the request for U nonimmigrant status
complete. New 8 CFR 214.14(c)(1). If all required initial evidence is
not submitted with the petition or does not demonstrate eligibility,
USCIS, in its discretion, may deny the application for lack of initial
evidence or for ineligibility, or request that the missing or
insufficient initial evidence be submitted within a specified period of
time as determined by USCIS. 8 CFR 103.2(b)(8)(ii). This rule provides
the following list of required initial evidence:
Form I-918, Supplement B, ``U Nonimmigrant Status
Certification,'' properly and timely executed;
Any additional evidence the petitioner wants USCIS to
consider to establish further that:
--The petitioner is a victim of qualifying activity;
--The petitioner has suffered substantial physical or mental abuse as a
result of having been a victim of qualifying criminal activity;
--The petitioner possesses information concerning the qualifying
criminal activity of which he or she was a victim;
--The petitioner has been, is being, or is likely to be helpful to a
certifying agency;
--The criminal activity is qualifying and occurred in the United
States, including in Indian country and military installations, or the
territories and possessions of the United States, or violated a U.S.
federal law that provides for extraterritorial jurisdiction to
prosecute the offense in a U.S. Federal court;
A statement by the petitioner describing the facts of the
victimization; and
If the petitioner is inadmissible, Form I-192,
``Application for Advance Permission to Enter as Non-Immigrant.''
New 8 CFR 214.14(c)(2).
a. U Nonimmigrant Status Certification
This rule designates Form I-918, Supplement B, ``U Nonimmigrant
Status Certification,'' as the form that petitioners must obtain from a
certifying official of a certifying agency. New 8 CFR 214.14(c)(2)(i).
Form I-918, Supplement B must be prepared by the certifying agency
conducting an investigation or prosecution of the qualifying criminal
activity in accordance with the instructions to the form, and must have
been signed by the certifying official within the six months
immediately preceding the submission of Form I-918. Id. USCIS is
setting a six-month requirement to seek a balance between encouraging
the filing of petitions and preventing the submission of stale
certifications. USCIS believes that this requirement provides
petitioners enough time to prepare the necessary paperwork for the
petition package, while also precluding the situation where petitioners
delay filing the package until some time after the certification is
signed, and they cease to be helpful to the certifying agency. If a
petitioner requested and received interim relief prior to the effective
date of this rule, USCIS will consider the evidence submitted to meet
the certification requirements for interim relief purposes in lieu of
Form I-918, Supplement B. New 8 CFR 214.14(c)(1).
This rule defines ``certifying official'' as the head of the
certifying agency or any person(s) in a supervisory role who has been
specifically designated by the head of the certifying agency to issue U
nonimmigrant status certifications on behalf of that agency, or a
Federal, State, or local judge. New 8 CFR 214.14(a)(3). USCIS believes
that this definition is reasonable and necessary to ensure the
reliability of certifications. It also should encourage certifying
agencies to develop internal policies and procedures so that
certifications are properly vetted.
Under this rule, the certifying official must affirm the following
in the certification: (1) That the person signing the certificate is
the head of the certifying agency or person(s) in a supervisory role
who has been specifically designated with the authority to issue U
nonimmigrant
[[Page 53024]]
status certifications on behalf of that agency, or a Federal, State, or
local judge; (2) that the agency is a Federal, State, or local law
enforcement agency, prosecutor, judge, or other authority that has
responsibility for the detection, investigation, prosecution,
conviction, or sentencing of qualifying criminal activity; (3) that the
petitioner has been a victim of qualifying criminal activity that the
certifying official's agency is investigating or prosecuting; (4) that
the petitioner possesses information concerning the qualifying criminal
activity of which he or she has been a victim; (5) that the petitioner
has been, is being, or is likely to be helpful to an investigation or
prosecution of that qualifying criminal activity; and (6) that the
qualifying criminal activity violated U.S. law, or occurred in the
United States, its territories and possessions, Indian country, or at
military installations abroad. New 8 CFR 214.14(c)(2)(i). The
certification also should provide relevant, specific details about the
nature of the crime being investigated or prosecuted and describe, in
detail, the petitioner's helpfulness to the case.
USCIS developed the requirements for Form I-918, Supplement B based
upon the eligibility requirements petitioners must meet and the
purposes for which the certification will be used. USCIS determined
that since the certifying agency is the primary point of contact
between the petitioner and the criminal justice system, the certifying
agency is in the best position to verify certain factual information.
In addition, USCIS does not believe that petitioners are in the best
position to know the specific violation of U.S. law the certifying
agency is investigating or prosecuting, or what specific statute
provides the certifying agency with the extraterritorial jurisdiction
to investigate or prosecute criminal activity that occurred outside the
United States. Therefore, USCIS determined that information regarding
the eligibility requirements should be addressed by the certifying
agency on Form I-918, Supplement B. USCIS will use Form I-918,
Supplement B in the course of adjudicating whether the eligibility
requirements have been met.
b. Additional Evidence To Satisfy the Eligibility Requirements
While USCIS will give a properly executed certification on Form I-
918, Supplement B, significant weight, USCIS will not consider such
certification to be conclusory evidence that the petitioner has met the
eligibility requirements. USCIS believes that it is in the best
position to determine whether a petitioner meets the eligibility
requirements as established and defined in this rule. In addition to
Form I-918, Supplement B, this interim rule permits the petitioner to
provide any additional evidence that is relevant and credible to help
demonstrate that the petitioner meets each of the eligibility
requirements. New 8 CFR 214.14(c)(2)(ii) and (iii). For petitioners
with interim relief, USCIS will consider evidence previously submitted
with the request for interim relief as part of the petition package.
Petitioners with interim relief may file additional evidence with Form
I-918 to supplement this previously submitted evidence. New 8 CFR
214.14(c)(1).
Evidence to further establish that the petitioner is a victim of
qualifying criminal activity may include: trial transcripts, court
documents, news articles, police reports, orders of protection, and
affidavits of other witnesses, such as medical personnel.
Evidence to further establish the nature of the abuse suffered may
include such documentation as reports and affidavits from police,
judges, other court officials, medical personnel, school officials,
clergy, social workers, and other social service agency personnel.
Petitioners who have obtained an order of protection against the
perpetrator or taken other legal steps to protect themselves against
the perpetrator should submit copies of the relating legal documents. A
combination of documents such as a photograph of the visibly injured
applicant supported by affidavits of individuals who have personal
knowledge of the facts regarding the criminal activity may be relevant
as well.
Evidence to further establish that the petitioner possesses
information about the qualifying criminal activity may include
documents establishing that he or she has knowledge of the details of
the criminal activity. Examples of relevant evidence include: reports
and affidavits from police, judges, and other court officials. In cases
where the petitioner is a child under the age of 16, or is
incapacitated or incompetent, this requirement can be satisfied by the
parent, guardian, or next friend submitting the necessary evidence on
behalf of the petitioner. Such person must provide evidence of his or
her qualifying relationship to the petitioner and evidence establishing
the age, incapacity, or incompetence of the petitioner. Examples of
such evidence include: birth certificates, court documents
demonstrating recognition of an individual as the petitioner's next
friend, medical records, or reports of licensed medical professionals
demonstrating the incapacity or incompetence of the applicant.
Evidence to further establish that the petitioner has provided the
necessary assistance in the investigation or prosecution of qualifying
criminal activity may include such documentation as: Trial transcripts,
court documents, police reports, news articles, copies of reimbursement
forms for travel to and from court, and affidavits of other witnesses
or officials. If USCIS has reason to believe that there is a question
about the petitioner's helpfulness to, or continuing cooperation with,
the investigation or prosecution, USCIS may contact the certifying
official for further explanation. In cases where the petitioner is a
child under the age of 16 or is incapacitated or incompetent, this
requirement can be satisfied by the parent, guardian, or next friend
submitting the necessary evidence on behalf of the petitioner. Such
person must provide evidence of their qualifying relationship to the
petitioner and evidence that the petitioner is a child under the age of
16, incapacitated, or incompetent. Evidence that was submitted to
satisfy the possession of information requirement will satisfy this
requirement and need not be submitted twice.
Examples of evidence to further establish that the criminal
activity is qualifying and violated U.S. law or occurred in the United
States include: A copy of the statutory provision(s) showing the
elements of the offense or factual information about the crime
demonstrating that it is similar to the list of qualifying criminal
activity contained in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C.
1101(a)(15)(U)(iii). If the criminal activity occurred outside the
United States, the additional evidence submitted may include a copy of
the statutory provision(s) providing for the extraterritorial
jurisdiction and documentation showing that the criminal activity
violated federal law and is prosecutable in a federal court.
c. Statement by the Petitioner
In support of Form I-918, this rule requires the petitioner to
submit a separate statement describing the facts of his or her
victimization. 8 CFR 214.14(c)(2)(iii). USCIS is requiring that the
petitioner submit a statement because USCIS believes that it is
important to learn about the facts of the victimization from the
petitioner in his or her own words. This statement should include the
following information: The nature of the criminal activity, when the
criminal activity occurred, who was responsible, the
[[Page 53025]]
events surrounding the criminal activity, how the criminal activity
came to be investigated or prosecuted, and what substantial physical
and/or mental abuse was suffered as a result of having been the victim
of the criminal activity. The statement also may include information
supporting any of the other eligibility requirements.
When the petitioner is under the age of 16, incapacitated, or
incompetent, a parent, guardian, or next friend must submit a statement
in lieu of the petitioner that contains as much information surrounding
the criminal activity and physical and/or mental abuse as possible.
d. Petitioners Who Are Inadmissible
As stated earlier in this Supplementary Information, this rule
requires petitioners seeking a waiver of inadmissibility to file Form
I-192, ``Application for Advance Permission to Enter as Nonimmigrant.''
New 8 CFR 212.17(a). USCIS has listed the Form I-192 in this rule as
initial evidence which must be filed concurrently with Form I-918,
along with a separate filing fee. New 8 CFR 214.14(c)(2)(iv). Form I-
192 is an established form to waive grounds of inadmissibility for
aliens seeking immigration benefits. See, e.g., 8 CFR 212.4 (general
authority for waivers in nonimmigrant cases); 8 CFR 212.16 (providing
for use of Form I-192 in T nonimmigrant status cases).
3. Derivative Family Members
Section 101(a)(15)(U)(ii) of the INA, 8 U.S.C. 1101(a)(15)(U)(ii),
permits certain family members accompanying or following to join the
alien victim to obtain U nonimmigrant status, regardless of whether or
not they are in the United States or overseas. USCIS refers to such
family members as derivatives, and the alien victim as the principal.
Which family members are considered ``qualifying'' depends on the age
of the principal. If the principal is under 21 years of age, qualifying
family members include the principal's spouse, children, unmarried
siblings under 18 years of age (on the filing date of the principal's
petition), and parents. INA sec. 101(a)(15)(U)(ii)(I), 8 U.S.C.
1101(a)(15)(U)(ii)(I). If the principal is 21 years of age or older,
qualifying family members include the spouse and children of the
principal. INA sec. 101(a)(15)(U)(ii)(II), 8 U.S.C.
1101(a)(15)(U)(ii)(II). This rule provides the eligibility requirements
and petition procedures for qualifying family members seeking
derivative status. See new 8 CFR 214.14(f).
a. Eligibility
New 8 CFR 214.14(f)(1) sets forth two eligibility requirements for
derivative U nonimmigrant status. First, the alien must be a qualifying
family member. New 8 CFR 214.14(f)(1)(i). Second, the alien must be
admissible to the United States. New 8 CFR 214.14(f)(1)(ii); see also
INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1); 8 CFR 214.1(a)(3)(i).
Generally, in order to be considered a qualifying family member,
the relationship between the principal petitioner and the family member
must exist at the time Form I-918 was filed. New 8 CFR 214.14(f)(4).
The relationship must continue to exist at the time the petition for
derivative status is adjudicated, and at the time of the qualifying
family member's subsequent admission to the United States. Id.
Otherwise, the family member would not meet section 101(a)(15)(U)(ii)
of the INA, 8 U.S.C. 1101(a)(15)(U)(ii), describing who qualifies as a
family member.
Note that parents are only considered qualifying family members if
the principal is under 21 years of age and a ``child.'' New 8 CFR
214.14(f)(1). Although the statutory language at section
101(a)(15)(U)(ii), 8 U.S.C. 1101(a)(15)(U)(ii), naming parents as
qualifying family members does not specify that the principal must be a
child under the age of 21 for the parents to qualify, USCIS believes
that this qualification is required by section 101(b)(2) of the INA, 8
U.S.C. 1101(b)(2). This provision defines the term, ``child,'' as an
unmarried person under 21 years of age. INA sections 101(b)(1), 8
U.S.C. 1101(b)(1).
A special rule applies to unmarried siblings under age 18 of
petitioners who are under 21 years of age. For such siblings, the
statute provides that the siblings' age on the date that Form I-918 is
filed is controlling. INA sec. 101(a)(15)(U)(ii)(I), 8 U.S.C.
1101(a)(15)(U)(ii)(I). Therefore, in new 8 CFR 214.14(f)(4)(ii), if the
principal petitioner was under 21 years of age, and requested U
nonimmigrant status for an unmarried sibling under the age of 18 at the
time Form I-918 was filed, USCIS will continue to consider such sibling
as a qualifying family member for purposes of U nonimmigrant status at
the time of adjudication even if circumstances change. This rule also
provides that children born to the principal petitioner after Form I-
918 has been filed will be eligible for derivative U nonimmigrant
status. New 8 CFR 214.14(f)(4)(i).
This rule excludes certain qualifying family members from
eligibility. Section 204(a)(1)(L) of the INA, 8 U.S.C. 1154(a)(1)(L),
prohibits an alien victim from petitioning for derivative U
nonimmigrant status on behalf of a qualifying family member who
committed battery or extreme cruelty or trafficking against the alien
victim which established his or her eligibility for U nonimmigrant
status. The rule incorporates this prohibition at new 8 CFR
214.14(f)(1). USCIS has interpreted the prohibition as applying to
qualifying family members who committed qualifying criminal activity in
a family violence or trafficking context. In making this determination,
USCIS considered the plain text of section 204(a)(1)(L) of the INA, 8
U.S.C. 1154(a)(1)(L), and found it to be unclear regarding its intended
application. In addition to trafficking, the statute lists battery and
extreme cruelty as disqualifying activity even though those terms are
not listed as qualifying criminal activity in section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), and are
not included in the standard of harm necessary to establish eligibility
for U nonimmigrant status. However, when the terms battery or extreme
cruelty are used in other contexts in the INA, they are used to refer
to harm occurring as a result of domestic violence or child abuse. See
INA sections 204(a)(1)(A) & (B), 216(c)(4)(C), 240A(b)(2), 8 U.S.C.
1154(a)(1)(A) & (B), 1186(c)(4)(C), 1229b. USCIS believes it is
reasonable to conclude that by using these terms, Congress intended to
prohibit approval of petitions for U nonimmigrant status where the
petition is based on qualifying criminal activity for which the
qualifying family member is responsible that occurred in a family
violence or trafficking context.
b. Filing Procedures
This rule requires that a principal petitioner for U nonimmigrant
status or a principal alien who has been granted U nonimmigrant status
must petition for derivative status on behalf of qualifying family
members by submitting a Form I-918, Supplement A, ``Petition for
Qualifying Family Member of U-1 Recipient,'' for each qualifying family
member. New 8 CFR 214.14(f)(2). Principal petitioners can file Form I-
918, Supplement A either at the same time or after filing his or her
Form I-918. Id. Principal aliens who have already received U
nonimmigrant status may file Form I-918, Supplement A at any time while
maintaining U nonimmigrant status. Id. This provides principals with
maximum flexibility to request derivative status for qualifying family
members.
[[Page 53026]]
This rule further requires that Form I-918, Supplement A must be
accompanied by supporting evidence (``initial evidence'') and the fees
required by the instructions to the form. Id. If the principal
petitioner files Form I-918, Supplement A while his or her Form I-918
is pending adjudication with USCIS, the principal petitioner must
accompany Form I-918, Supplement A with a copy of his or her Form I-
918. Id. If the principal already has been granted U nonimmigrant
status, then he or she must accompany Form I-918, Supplement A with a
copy of the Form I-94 he or she received when the Form I-918 was
approved. Id. This will be considered evidence of the principal's U
nonimmigrant status. Requiring evidence of the principal's pending
petition or status will enable USCIS to match up the derivative
petition with the principal's petition.
New 8 CFR 214.14(f)(3) sets forth the initial evidence that must
accompany each Form I-918, Supplement A: (1) Evidence of the family
member's qualifying relationship with the principal; and (2) if the
alien is inadmissible under section 212(a) of the INA, 8 U.S.C.
1182(a), Form I-192, with fee. Such initial evidence corresponds to the
two eligibility requirements for derivative U nonimmigrant status.
4. Designations
This rule amends 8 CFR 214.1(a)(1) to codify the derivative
subclassifications established by section 101(a)(15)(U) of the INA, 8
U.S.C. 1101(a)(15)(U). See new 8 CFR 214.1(a)(1)(ix). In addition, the
rule provides for the following designations for qualifying family
members of the principal applicant (U-1): Spouse (U-2), child (U-3),
the child's parents (U-4), and siblings (U-5). New 8 CFR 214.14(f)(1).
This rule likewise adds these designations to current 8 CFR
214.1(a)(2), to add to the list of designations assigned to all other
nonimmigrant classifications. These designations are a matter of
administrative convenience, providing a shorthand notation for
identifying the principal petitioner and each derivative based upon the
relationship to the principal.
C. Adjudication and Post-Adjudication
The statutory provisions establishing U nonimmigrant status contain
a number of parameters guiding the adjudication of U nonimmigrant
petitions. Specifically, in determining whether to grant U nonimmigrant
status, the statute requires that the adjudicator consider any credible
evidence relevant to the petition. See INA sec. 214(p)(4), 8 U.S.C.
1184(p)(4). In addition, the statute protects information relating to
applicants for U nonimmigrant status from disclosure. 8 U.S.C.
1367(a)(2). Moreover, the statute precludes adjudicators from making
adverse determinations on inadmissibility or deportability with respect
to petitions for U nonimmigrant status based on information provided by
the perpetrator of abuse and criminal activity. 8 U.S.C. 1367(a)(1)(E).
The number of grants of U nonimmigrant status that may be made in a
fiscal year is limited by an annual cap of 10,000. INA sec. 214(p)(2),
8 U.S.C. 1184(p)(2).
In this section of the Supplementary Information, these parameters
are discussed, as well as the steps that follow a decision to grant or
deny a petition for U nonimmigrant status.
1. Credible Evidence
This rule adopts the statutory requirement that any credible
evidence relevant to the petition must be considered in the
adjudication of petitions for U nonimmigrant status. New 8 CFR
214.14(c)(4) & (f)(5). As in the case of all other immigration
benefits, the burden of establishing eligibility for U nonimmigrant
status rests with the petitioner. Id. USCIS will consider all evidence
de novo and will not be bound by any of its prior determinations made
during the course of adjudicating an application for interim relief on
any essential element of U nonimmigrant status. Id. A grant of interim
relief means only that the alien presented prima facie evidence that he
or she was eligible for U nonimmigrant status and does not constitute a
binding determination that any given eligibility requirement had been
proven. In adjudicating Form I-918, USCIS will review all evidence
submitted in conjunction with the interim relief application along with
any additional evidence submitted by the petitioner in conjunction with
his or her Form I-918, including the certification, Form I-918,
Supplement B.
This rule also provides that USCIS may review documentation
submitted by the alien in conjunction with any other applications he or
she has made for immigration benefits in the past. Id. This will enable
USCIS to review the petition for U nonimmigrant status in the context
of the petitioner's past immigration history and verify that statements
made in his or her petition are consistent with information he or she
provided to USCIS in the past. In addition, this rule provides that
USCIS may investigate any aspect of the petition. Id. This means that
if, during its adjudication of Form I-918, USCIS has reason to believe
that there is a question about the petitioner's helpfulness to, or
continuing cooperation with, the investigation or prosecution, or any
other aspect of the petition, USCIS may contact the certifying official
for further explanation. USCIS then will be able to verify the veracity
of the contents of the petition and safeguard the integrity of the U
nonimmigrant status program.
2. Prohibitions on Disclosure of Information
Information concerning U nonimmigrant petitioners is protected
against disclosure in two ways. See 8 U.S.C. 1367. First, adverse
determinations of admissibility or deportability cannot be made based
on information obtained solely from the perpetrator of substantial
physical or mental abuse and the criminal activity. 8 U.S.C.
1367(a)(1)(E). Second, the disclosure of information relating to the
beneficiary of a pending or approved petition for U nonimmigrant status
is prohibited except in certain circumstances. 8 U.S.C. 1367(a)(2). The
statute allows information to be released to a sworn officer or
employee of DHS, the Department of Justice, the Department of State, or
a bureau or agency of either of those Departments, for legitimate
Department, bureau, or agency purposes. Id.
There are eight specific exemptions from the general nondisclosure
rule:
(1) At the discretion of the Secretary of Homeland Security or
Attorney General, officials may disclose information in the same manner
and circumstances as census information may be disclosed by the
Secretary of Commerce under 13 U.S.C. 8.
(2) At the discretion of the Secretary of Homeland Security or
Attorney General, officials may provide for the disclosure of
information to law enforcement officials to be used solely for a
legitimate law enforcement purpose.
(3) In connection with judicial review of a determination,
information may be disclosed in a manner that protects the
confidentiality of such information.
(4) Information may be disclosed if all the crime victims in the
case are adults, and they have waived the general restrictions on
disclosure of information provided by 8 U.S.C. 1367(a)(2).
(5) Information may be disclosed to Federal, State, and local
public and private agencies providing benefits, to be used solely to
make determinations of eligibility for benefits pursuant to 8 U.S.C.
1641(c).
(6) Information may be disclosed after a petition for U
nonimmigrant status has been finally denied.
[[Page 53027]]
(7) Information may be disclosed on closed cases to the chairmen
and ranking members of the Committee on the Judiciary of the Senate, or
the Committee on the Judiciary of the House of Representatives, for the
exercise of congressional oversight authority, provided the disclosure
is made in a manner that protects the confidentiality of the
information and omits personally identifying information (including
locational information about individuals).
(8) With prior written consent from the principal petitioner or
derivative family member, information may be disclosed to nonprofit,
nongovernmental victims' service providers for the sole purpose of
assisting the victim in obtaining victim services from programs with
expertise working with immigrant victims.
8 U.S.C. 1367(b). Appropriate disciplinary action must be taken and a
monetary penalty of up to $5,000 may be imposed on anyone who willfully
uses, publishes, or permits information to be disclosed in violation of
the nondisclosure provisions. 8 U.S.C. 1367(c). This rule incorporates
the prohibitions and restrictions on information relating to U
nonimmigrant petitions into new 8 CFR 214.14(e).
Within the bounds of the statutory prohibitions and restrictions
against disclosure of information relating to a U nonimmigrant
petitioner, USCIS may provide information taken from the petition about
any Federal, State or local crimes to investigative agencies that have
a reason to know based on a legitimate law enforcement purpose.
Possible agencies or bureaus to which information may be disclosed
include: The Federal Bureau of Investigation (FBI); the U.S. Attorney's
Office or the Civil Rights or Criminal Divisions of the Department of
Justice; or U.S. Immigration and Customs Enforcement (ICE). As part of
the adjudication process, USCIS also may contact the certifying agency
for the purpose of assessing whether the petitioner is, has been, or is
likely to be helpful to the investigation or prosecution of the
qualifying criminal activity. Because the certifying agency has
submitted a certification on behalf of the petitioner and, therefore,
has already been informed about the fact of the petition as well as the
facts upon which the petition is based, USCIS has determined that
contacting the certifying agency would not violate the statutory
prohibitions and restrictions against disclosure. USCIS recognizes the
sensitive nature of application information and takes seriously its
obligation to protect confidentiality. USCIS will make any disclosure
to an investigative agency in a manner that provides the maximum
confidentiality under the circumstances.
In addition to disclosures to investigative agencies, DHS may have
an obligation to provide portions of petitions for U nonimmigrant
status to federal prosecutors for disclosure to defendants in pending
criminal proceedings. This obligation stems from constitutional
requirements that pertain to the government's duty to disclose
information, including exculpatory evidence or impeachment material, to
defendants. See U.S. Const. amend. V & VI; Brady v. Maryland, 373 U.S.
83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972).
Accordingly, this rule incorporates this requirement at new 8 CFR
214.14(e)(1)(ix).
3. Annual Numerical Limitation on Grants of U Nonimmigrant Status
Before USCIS may grant U nonimmigrant status, it must consider the
statutory cap on the number of aliens who may receive a grant of status
each fiscal year. See INA sec. 214(p)(2), 8 U.S.C.1184(p)(2). No more
than 10,000 principal aliens may be granted U nonimmigrant status in a
given fiscal year (October 1 through September 30). INA sec.
214(p)(2)(A), 8 U.S.C. 1184(p)(2)(A). This numerical limitation does
not apply to spouses, children, parents, and unmarried siblings who are
accompanying or following to join the principal alien victim. INA sec.
214(p)(2)(B), 8 U.S.C. 1184(p)(2)(B).
USCIS anticipates that within the first few fiscal years after
publication of this regulation, it will receive petitions for U
nonimmigrant status from more than 10,000 principal aliens. USCIS is
cognizant of the fact that law enforcement agencies and prosecutors
need a stable mechanism through which to regularize the status of
victims and witnesses, but is equally cognizant of the fact that
Congress saw fit to limit the number of aliens who may be granted U
nonimmigrant status in any given fiscal year. USCIS has determined that
to balance the statutorily imposed numerical cap against the dual goals
of enhancing law enforcement's ability to investigate and prosecute
criminal activity and providing protection to alien victims of crime,
it will create a waiting list should the cap be reached in a given
fiscal year before all petitions are adjudicated. USCIS's goal is to
respect the intent of the numerical limitation imposed by Congress
while still allowing the legislation to achieve maximum efficacy. USCIS
believes that this rule's waiting list methodology will provide a
stable mechanism through which victims cooperating with law enforcement
agencies can regularize their immigration status.
Under this rule, once the numerical limit has been reached in a
particular fiscal year, all pending and subsequently submitted
petitions will continue to be reviewed in the normal process to
determine eligibility. See new 8 CFR 214.14(d)(2). USCIS will deny
petitions that are not approvable. Eligible petitioners who are not
granted U-1 nonimmigrant status due solely to the numerical limits will
be notified by USCIS that they have been placed on a waiting list. Id.
Each fiscal year, as new numbers for U-1 nonimmigrant status become
available, USCIS will grant U nonimmigrant status to petitioners on the
waiting list. Id. Petitioners on the waiting list will be given
priority based on the date the petition was properly filed. Id.
Petitioners on the waiting list must continue to meet the eligibility
requirements for U nonimmigrant status and be admissible at the time
status is granted. Id. After USCIS has granted U nonimmigrant status to
petitioners on the waiting list, USCIS will continue to grant
petitions, up to the annual limit, to new petitioners in the order in
which each petition was properly filed. Id.
This rule also provides that, USCIS will give petitioners on the
waiting list deferred action or parole until the start of the next
fiscal year. Id. Those petitioners will be eligible to apply for
employment authorization. Id. The rule further provides that
petitioners on the waiting list will not accrue unlawful presence under
section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B). New 8 CFR
214.14(d)(3). However, at its discretion, USCIS may remove a petitioner
from the waiting list and terminate deferred action or parole. Id. For
example, USCIS may terminate deferred action or parole if the
petitioner is convicted of a crime that renders him or her removable.
USCIS also may terminate deferred action or parole if it becomes aware
that a petitioner has failed to disclose a criminal conviction or has
misrepresented a material fact in his or her petition.
4. Decisions on Petitions
USCIS will issue decisions granting or denying U nonimmigrant
petitions in writing. New 8 CFR 214.14(c)(5) (principal petitioners);
new 8 CFR 214.14(f)(6) (derivative family members). If USCIS denies a
petition, it will also provide reasons for the denial in writing. New 8
CFR 214.14(c)(5)(ii); new 8 CFR 214.14(f)(6)(iii). In any case in which
USCIS denies a petition for U
[[Page 53028]]
nonimmigrant status, the petitioner may appeal to USCIS's
Administrative Appeals Office (AAO) under established procedures
outlined in 8 CFR 103.3. Id.
a. Granting U Nonimmigrant Status
If USCIS finds that the petitioner has satisfied the requirements
for U nonimmigrant status, it will grant U nonimmigrant status to the
petitioner and derivative family members, unless the annual numerical
limit applicable to principal petitioners has been reached. New 8 CFR
214.14(c)(5)(i); new 8 CFR 214.14(f)(6). If a number is available for
the principal petitioner, USCIS will send a notice of approval on Form
I-797, ``Notice of Action,'' to the principal petitioner or, if the
principal petitioner is overseas, to the Department of State for
forwarding to the appropriate U.S. Embassy or Consulate or to the
appropriate port of entry (visa exempt alien). New 8 CFR
214.14(c)(5)(i)(A) and (B). USCIS also will send to the principal
petitioner a notice of approval on Form I-797 for derivative family
members for whom USCIS has approved Form I-918, Supplement A. New 8 CFR
214.14(f)(6)(i) and (ii). If a number is not available, USCIS will
notify the petitioner that, in accordance with new 8 CFR 214.14(d)(2),
he or she has been placed on the waiting list, given deferred action or
parole, and may request employment authorization. USCIS will also grant
deferred action or parole to derivative family members with an
opportunity to request employment authorization. New 8 CFR
214.14(d)(2).
For those principal petitioners and derivative family members who
are within the United States, a Form I-94, ``Arrival-Departure
Record,'' indicating U nonimmigrant status will be attached to the
approval notice and will constitute evidence that the petitioner has
been granted U nonimmigrant status. New 8 CFR 214.14(c)(5)(i)(A); new 8
CFR 214.14(f)(6)(i). For those principal petitioners or qualifying
family members who are outside the United States, USCIS will follow the
standard procedures for issuing grants as applied to other nonimmigrant
categories. USCIS will forward the notice of approval to the Depart |
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