S, T, and U Visas

U-VISAS:

The U visa is available to non-citizen victims of certain criminal activity, including human trafficking, who help government officials in investigating or prosecuting such criminal activity. The express purpose of the U Visa 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.”

Like the T-visa, the U-Visa results in permission to work and live in the U.S. for four years, as well as the ability to obtain U visa status for certain “derivative” family members. Also like the T-visa, the U-visa provides eligibility for permanent resident status after three years. However, the eligibility requirements for the U are different from the T, and there is a wider range of qualifying crimes. An experienced immigration attorney should help the survivor assess which form of relief is best.

A U-visa applicant must demonstrate that (1) she or he has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity (defined below); (2) she or he possesses information concerning the relevant criminal activity (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien possesses this information); (3) That she or he (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to Federal, State, or local authorities which are investigating or prosecuting the relevant criminal activity, and (4) the relevant criminal activity violated the laws of the United States or occurred in the United States or the territories and possessions of the United States.

“Qualifying” criminal activity includes one or more of the following, or any similar activity, in violation of Federal, State, or local criminal law: rape; torture; [human] 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.

In the case of a U-visa petitioner who is 21 years of age or older, his or her spouse and children under the age of 21 may qualify for derivative status. If the crime victim/petitioner is under 21 years of age, the petitioner’s spouse, children, parents, and unmarried siblings under the age of 18 (at the time of application) may qualify for U non-immigrant status as “derivatives.”

Congress created both “T” and “U” visas to encourage the victims of certain serious crimes to cooperate with law enforcement officials who are prosecuting criminal offenders. Only certain types of crimes will qualify the victim for a T or U visa; but both T and U visas include the qualifying crime of human trafficking.

T-VISAS:

Who is eligible to apply for a T visa? Human trafficking under U.S. law is defined based on the 2000 U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons. The elements of the crime fall into three categories:

Process: recruitment, transportation, transferring, harboring, or receiving of a person;
Ways and Means: threat, coercion, abduction, fraud, deceit, deception, or abuse of power; and
Goal: prostitution, pornography, violence and sexual exploitation, forced labor, involuntary servitude, debt bondage, or slavery.

Adult victims of human trafficking must prove that the crime involved at least one element from each of the above three. Child victims of human trafficking need only show an element from the Process and Goal categories.

For example, an adult woman who was promised a job as a nanny and U.S. “working papers” if she came to the United States, and upon arrival had her passport taken away, and was forced to take care of children for very little money, would qualify as a victim of human trafficking. She was recruited and received into the U.S. by fraud, deception, and abuse of power, with the goal of forced labor and involuntary servitude.

A child who was brought to the U.S. by a parent to participate in taking sexually explicit photographs would also qualify. He or she was transported to the U.S. for the goal of child pornography.

In order to qualify for a T visa, the applicant must be present in the U.S. as a result of human trafficking. To be eligible for a T visa, the applicant must have traveled to the United States because he or she was recruited, forced, abducted, or deceived by the perpetrator of human trafficking, and would not be present in the U.S., but for the actions of that person. The applicant for a T visa is not required to demonstrate that he or she “knew” that he or she would be subjected to prostitution or slavery (or any other goal of human trafficking) upon his or her arrival in the USA. For example, if the alien came to the United States for one reason, and later discovered that the real goal was to exploit him or her for cheap or unpaid labor, the alien would be in the U.S. as a result of human trafficking.

Applicants for T visas must not refuse a reasonable request to cooperate with law enforcement officials who are investigating and prosecuting the human trafficking crime. Certain T visa applicants are not required to cooperate with law enforcement. This group includes those under the age of 18 and anyone who is unable to cooperate due to physical or psychological trauma.

T visa applicants are strongly encouraged to obtain a declaration from a law enforcement officer as primary evidence that they have been victims of human trafficking. The declaration will be submitted with their application. Further, T visa applicants will need to show that their removal from the U.S. would cause “extreme hardship involving unusual and extreme harm.” Finally, by law, each year, only 5,000 T visas may be issued .

S VISAS:

In 1990, the United States Congress passed the Immigration Act of 1990, which created the immigrant investor visa, also known as the EB-5 visa. This allowed more foreigners to stay in the U.S., but only if they had intentions to invest in the country. Under the Immigration Act of 1990, immigrant investors could stay in the US for two years under certain conditions, after which they could apply for a green card.

It is relatively easy to apply for an investor visa. You will qualify for an EB-5 visa if:

(1) You have legally obtained $1,000,000 and invested it in a business; and promoted employment in your area, by employing at least ten individuals; OR
(2) You have legally obtained $500,000 and invested it in a business in a rural area, or a Targeted Employment Area, and hired at least ten individuals; OR
(3) You have invested in a USCIS Regional Center. A USCIS Regional Center is an economic unit that promotes investment in key cities and towns that need improvements in regional productivity, employment rate, and domestic capital investment.

Now, you may think that a million dollars is a lot of money, and that creating ten jobs is too much. But there are actually good reasons why these are requirements. The main reason is that the U.S. government acknowledges that immigrants who invest in the U.S. do create jobs, which, of course, help the U.S. economy.

Do not worry, though, if you are not successful in your investment. You only need to establish or own a business, make half a million or a million dollar investment, and hire ten full-time workers. You also do not have to be a manager, a supervisor, or any officer that is directly involved with the business. You could run a business while having a part-time job. You could also run your existing business in your home country while owning a business in the U.S.

Qualified immigrants, who have invested in the U.S., and helped promote employment, do not automatically get permanent residency. Instead, they are given conditional permanent residence status for two years. When the two years are almost over, the USCIS will review the EB-5 visa requirements, such as the amount of investment and the number of full-time employees. If the investor has not fulfilled the requirements, his or her residency status will be revoked. But if the investor has fulfilled all the necessary requirements, he or she will then be able to apply to have the condition removed. If that application is approved, the investor will obtain permanent residence status.