Lawyers Manual - Unified Court System

328 Lori Cohen
employment authorization, either concurrently with the T visa application or any
time thereafter. During the period between receiving the T visa and adjusting
status to permanent resident, she must maintain continuous physical presence in
the United States and good moral character, and either show that she had
cooperated in any reasonable request for investigation of the trafficking or
demonstrate extreme hardship involving unusual and severe harm if removed
from the United States. 84 If the client meets these requirements, both she and her
derivative family members should receive lawful permanent residence.
U Visa 85
The U visa assists victims of certain crimes (and in some cases their parents)
who have suffered “substantial physical or mental abuse” from the criminal
activity, and who have stepped forward to cooperate with law enforcement
investigations or prosecutions. 86 Like the T visa, the U visa permits the inclusion
of certain qualified relatives. 87 Also like the T visa, the U visa classifies recipients
as “nonimmigrants,” but allows them to seek permanent resident status after three
years. The statute encompasses not only domestic violence, but many other crimes
such as sexual assault, felonious assault, unlawful criminal restraint, and torture. 88
Regulations have not yet been promulgated to implement and issue U visas,
although USCIS has issued a draft U visa application for comment. At present,
practitioners are obtaining interim relief by filing a cover letter that details the
grounds for the victim’s U visa eligibility, law enforcement certification, and a
sheet with basic identification data. 89 The law enforcement certification must
state that the alien victim “has been helpful, is being helpful, or is likely to be
helpful” in the investigation or prosecution of the qualifying criminal activity.
The certification may be signed by a federal, state or local law enforcement
official, or by a prosecutor, judge, or other authority investigating the criminal
activity. 90 There is no requirement that a defendant actually be convicted, or
even arrested, for a victim to qualify for U status.
Upon showing prima facie eligibility, the applicant will receive deferred
action status until the U visa regulations are issued. In the interim, victims may
submit an employment authorization application with their request for deferred
action, and, once granted, renew their work permit annually. Pursuant to a
January 2006 policy memorandum, USCIS will count the period that a victim
has deferred action status per a grant of interim relief towards the three years
required to apply for adjustment of status. 91 Like the T visa, most bars to
inadmissibility are waived, but without the T visa’s requirement that there be a
nexus between the ground of inadmissibility and the criminal activity. 92