Which Crimes Qualify a Victim for a U Visa?

The U visa is available to a victim of a qualifying crime who suffered substantial physical or mental abuse because of it, has information about it, and has been helpful, is being helpful or is likely to be helpful to the agency investigating or prosecuting it. Congress listed the qualifying crimes in the statute, and the list is longer than most people expect. But the list is rarely where cases fail. Petitions are denied far more often on the harm and helpfulness elements, or because the law enforcement certification was never obtained. This post walks through the U visa qualifying crimes and the three other requirements that travel with them.

The statutory list of U visa qualifying crimes

INA 101(a)(15)(U)(iii) lists the following criminal activity: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, stalking, 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, and fraud in foreign labor contracting. The statute also covers any similar activity that violates federal, state or local criminal law, and attempt, conspiracy or solicitation to commit any of these crimes.

Three points about the list matter in practice. The state’s label for the offense does not have to match a word on the list; what matters is whether the elements of the crime are substantially similar to one of the listed categories, so a state charge of aggravated battery can qualify as felonious assault. The crime must have occurred in the United States, including its territories, or must have violated U.S. law. And the crime does not have to end in an arrest, a charge or a conviction. A police report and an investigation that went nowhere can still support a petition if the certifying agency confirms the victim’s helpfulness.

Our U visa, T visa and VAWA practice starts every intake by matching the facts to the list and to the state statute, because that pairing is what the certifying agency will be asked to confirm on Form I-918, Supplement B.

The other three requirements

Being a victim of a listed crime is one of four elements. The petitioner must also have suffered substantial physical or mental abuse as a result of the crime. The petitioner must possess information about the crime, meaning knowledge of the facts that could help an investigation or prosecution. And the petitioner must have been helpful, be helpful or be likely to be helpful to a federal, state or local law enforcement agency, prosecutor, judge or other authority investigating or prosecuting the crime. Helpfulness is an ongoing duty; a victim who unreasonably refuses to assist after filing can lose the benefit, including at the green card stage.

Separately, the petitioner must be admissible to the United States or obtain a waiver. Most U visa petitioners need one, and we discuss it below.

Who counts as a victim

The direct victim is the person against whom the crime was committed. The regulations also recognize indirect victims when the direct victim was murdered or is incompetent or incapacitated: the victim’s spouse and children under 21 may petition, and if the direct victim was under 21, so may the victim’s parents and unmarried siblings under 18. When a living direct victim is under 16 or cannot participate because of disability, a parent, guardian or next friend may provide the information and the helpfulness on the victim’s behalf, and that parent can be included as a derivative if the child is under 21. These rules let a mother whose young child was abused handle the cooperation and obtain status through the child’s petition. Where the abuser is a citizen or resident spouse, the mother may also have her own VAWA self-petition, and the two are often filed together.

What substantial physical or mental abuse means

USCIS looks at the nature of the injury, its severity, its duration and whether it is likely to be permanent, and it considers the aggravation of a pre-existing condition. No single factor is required, and a series of acts can be considered together even if no one act was severe on its own. Medical and counseling records carry weight, but the victim’s own declaration describing sleep, fear, work, relationships and daily functioning before and after the crime is usually the most important document. Declarations from family members, employers and advocates who saw the change fill in what records do not.

Inadmissibility and the Form I-192 waiver

Many U visa petitioners entered without inspection, overstayed, worked without authorization or have a criminal record. The statute lets USCIS waive nearly every ground of inadmissibility for a U petitioner if it is in the public or national interest, with the exception of the ground for participants in Nazi persecution, genocide, torture or extrajudicial killing. The request is made on Form I-192 and filed with the petition. The waiver is discretionary, so a petitioner with serious criminal history should expect USCIS to weigh the harm suffered against the record, and should disclose everything with certified court dispositions.

After you qualify: the cap and the wait

Congress limits principal U visas to 10,000 per fiscal year, and demand has exceeded that number for many years. USCIS places approvable petitions on a waiting list and, as of this writing, runs a bona fide determination process under which a petitioner whose petition, certification and personal statement are complete and whose biometrics have cleared may receive deferred action and work authorization while the case waits. Spouses and children, and for petitioners under 21, parents and unmarried siblings under 18, are included on Supplement A. After three years in U status, the petitioner may apply for a green card under INA 245(m). A petitioner in removal proceedings files the same petition with USCIS and asks the immigration judge for a continuance, which our removal defense team coordinates. The certification itself has its own rules, covered in our post on Form I-918 Supplement B.

If you were the victim of a crime in the United States and cooperated with the police, you may already meet most of the U visa requirements. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our U visa and humanitarian protection page or schedule a consultation.