Immigration continues to be a relevant yet sensitive topic of discussion. Some of the most concerning immigration issues may be the ones that are more complex and not well understood by lawmakers, law enforcement, or the public. This complexity increases opportunities for abuse of an important immigration process, which then creates a significant vulnerability that is not fully appreciated until it is too late.
The U nonimmigrant status (U visa) application process presents a hidden threat that may not be properly analyzed and addressed until well after a critical event. At that point, questions will arise about the warning signs that were not addressed long before the terrorist attack or high-profile criminal act.
U Visa Application Process
According to U.S. Citizenship and Immigration Services (CIS), the U visa is reserved for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. As a result of the passage of the Victims of Trafficking and Violence Protection Act in October 2000, the U visa was created 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 protecting victims of crimes. Some of these victims have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. According to CIS, the legislation also helps law enforcement agencies to better serve victims of crimes.
The CIS website states that an alien may be eligible for a U visa if:
- He or she is the victim of qualifying criminal activity;
- He or she has suffered substantial physical or mental abuse as a result of being a victim of criminal activity;
- He or she has information about the criminal activity (If under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on his/her behalf);
- He or she was helpful, is helpful, or is likely to be helpful to law enforcement in the investigation or prosecution of the crime (If under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on his/her behalf);
- The crime occurred in the United States or violated U.S. laws; or
- He or she is admissible to the United States (if not admissible, he/she may apply for a waiver).
The U visa is valid for four years, with extension eligibility if another immigration adjustment or status is not granted during that time. The approved applicant is eligible to apply for a lawful permanent resident card (green card) after three years – a pathway to citizenship.
A limit of 10,000 U visas per year is set for principal petitioners, but there is no cap for their family members deriving status from the applicant. When the annual cap is reached, CIS creates a waiting list pending a final decision. Applicants and family members on the waiting list are granted deferred action or parole and are eligible for work authorization, which permits them to remain in the United States until their petition can be reviewed by CIS.
U Visa Statistics & Congressional Interest
According to Department of Homeland Security (DHS) statistics, 60,710 U visa applications were received and 17,937 were approved in fiscal year 2016, with a backlog of 150,561 to be adjudicated by CIS. CIS statistics show that 35,044 petitions were received in fiscal year 2016. Out of those U visa petitions, 10,046 were approved, 1,843 were denied, and 23,155 were pending review. The total number of U visa petitions pending review from fiscal years 2009 to 2016 is 86,980.
From those 35,044 victim requests in fiscal year 2016, an additional 25,666 family members also applied for the status along with the victim of criminal activity applicants – 7,891 family members were approved and 1,318 were denied by CIS. The total number of family member U visa petitions pending review from fiscal years 2009 to 2016 is 63,624.
In December 2016, Senate and House Judiciary Committee Chairmen identified significant fraud within the U visa program through falsified applications and disregard of congressional limits for the program. According to congressional findings, recent cases have highlighted how the program is being exploited through falsified police reports and bribes to secure U visas, allowing foreign nationals to avoid deportation. Whistleblowers report that illicit activity to secure U visas is common.
The oversight of this little known program has reportedly been insufficient, permitting its extensive improper utilization and extended delay of deportation for many well beyond the legal limits and eligibility for the program. As a result, the program could be leveraged not only by criminal aliens, but those who wish to do even greater harm.
Document Verification & Fraud
Beyond the good intentions of the U visa program, investigative reporting and research have identified broad and widespread abuses of the U visa process, with fraud and abuse perpetuated by incorrect or inconsistent information provided to or possessed by law enforcement and prosecutors. With no statute of limitations for the reported crime or victimization, it is even more difficult for the certifying officials to determine helpfulness or the actual role of the aliens for alleged crimes that are decades old.
Even though DHS has issued U visa reference resources, the application process may not be well understood by the thousands of law enforcement agencies, prosecuting attorneys, and nongovernmental organizations requested to assist with the applications. Checks and balances are needed between CIS and the certifying officials and agencies, including confirmation of the number of petitions submitted and received each year from the agency. Without them, CIS could process applications with fraudulent information and counterfeit signatures without the certifying official knowing of the submitted false petitions.
In addition to the challenges encountered by the law enforcement agencies and prosecuting attorneys, CIS may not be able to verify all the authorizing officials and their signatures on thousands of petitions with so many agencies involved in the process across the country. It is often difficult when dealing with one large organization over time with policy, authority, position, and official changes to ensure that the submissions are true and factual. Due to this situation, there is ample room for fraud with the limited CIS verification resources.
Beyond the challenges of those wishing to support this well-intentioned program, many document and benefit fraud investigations have verified attorneys and public officials abusing the U visa process. For example, an attorney and a police officer were reportedly indicted in 2016 along with others for submitting fraudulent documents to CIS to obtain U visas for other co-defendants during a marriage fraud scheme. Similar violations may be more prevalent than reported.
The U visa process has reportedly been utilized to release aliens from immigration detention prior to scheduled deportation due to questionable claims, documents, and/or incidents. Information indicates that certain groups, notaries, and attorneys have utilized this process with successful results and profits. The lack of formal and consistent nationwide training and guidance provided to state and local law enforcement, prosecutors, courts, and nongovernmental organizations create confusion and opportunities for error and abuse.
Aliens smuggled into the United States could also utilize the process. For example, an alien smuggled into the United States is held at a load house pending release to their family or friends. The alien does not wish to pay for the smuggling venture or an unexpected fee increase, so he contacts a family member for assistance. The family member contacts law enforcement to report that his family member is being held against his will by the smugglers. When located and rescued by law enforcement, the alien could be offered a U visa as a victim of hostage taking or other crimes, since smuggling is not a qualifying U visa crime. This scenario provides a free or reduced smuggling fee and a solid immigration status to remain in the United States.
Another possible scenario involves two illegal aliens involved in an unsuccessful illegal narcotic transaction. For example, a drug buyer and/or seller injured after a robbery or assault of each other during the illegal transaction could be eligible for a U visa as victims of assault and other crimes or as witnesses against each other; they could even apply from jail. This scenario has reportedly occurred and benefited illegal aliens involved in criminal violations. Such victims could be eligible for the benefit if not fully vetted by the different agencies and parties involved in the review and submission process.
Domestic violence is one of the primary crimes utilized in many U visa claims. However, John Sampson, a retired U.S. Immigration and Customs Enforcement (ICE), provided written testimony to the Senate Committee on the Judiciary describing immigration fraud as having reached an “epidemic” level. Such fraud includes using U visas to expedite lawful permanent resident (green card) status during alleged marriage fraud schemes and alleged domestic violence situations.
Retired ICE Special Agent in Charge Claude Arnold identified the enormous value of the Violence Against Women Act of 1993 and U visa process in getting the abused much needed protection, but sees the challenges of the program. In 2011, Arnold stressed that, “Visa fraud is a serious crime. Not only does it undermine the integrity of our legal immigration process and penalize those who abide by the law, it also poses a significant security vulnerability.”
Need for Expanded Oversight
The examples listed above are just a few specific abuses of the U visa program. More examples and concerns such as CIS reportedly not sharing fraudulent petitions and information with ICE due to the alleged victim status of the applicant or when a petition is formally rejected by CIS. With significant confusion and misunderstanding of the process, it is easy to exploit a valuable program that is free to applicants.
Beyond the confusion experienced by state and local agencies and nongovernmental organizations when entering and executing the process, U.S. Customs and Border Protection, ICE, and CIS do not always have common visibility of the process and applicants. DHS internal rules and regulations do not always promote and enhance cooperation and collaboration within the department. There is a serious need for expanded awareness, training, coordination, and collaboration between DHS agencies in conjunction with state and local agencies and nongovernmental organizations.
It is critical for Congress and DHS to ensure that this essential and valuable program is properly monitored and managed and not a conduit for nefarious uses – such as retrieving vital members from detention or deportation and returning them to their assignments, whether criminal or terrorism in nature.
As so aptly stated by President Theodore Roosevelt in his 1913 autobiography, “Americans learn only from catastrophe and not from experience.” It would be wise to understand and address this hidden vulnerability before it becomes the topic of numerous congressional hearings and the 24-hour news cycle, which could threaten or overly restrict the U visa program. Actions can be taken before a catastrophe through enhanced attention, comprehensive training, and robust oversight. The time is now to fix the problems.
Robert C. Hutchinson
Robert C. Hutchinson was a former police chief and deputy special agent in charge with the U.S. Department of Homeland Security (DHS), Homeland Security Investigations in Miami, Florida. He retired in 2016 after more than 28 years as a special agent with DHS and the legacy U.S. Customs Service. He was previously the deputy director of the agency’s national emergency preparedness division and assistant director for its national firearms and tactical training division. His numerous writings and presentations often address the critical need for cooperation, coordination, and collaboration between public health, emergency management, and law enforcement, especially in the area of pandemic preparedness. He received his graduate degrees at the University of Delaware in public administration and Naval Postgraduate School in homeland security studies. He is a long-time contributor to Domestic Preparedness and serves on the Advisory Board.