Victims of Crime
The United States allows people who have well-founded fear of persecution to seek asylum or refugee status that will allow them to obtain permanent residency (green card). However, to qualify the applicant need to belong to one or more of the 5 categories of people who have well-founded fear of persecution because of his or her:
- Race,
- Nationality,
- Religion,
- Membership of a particular social group or because he or she is identified with a particular social group,
- Political opinion that will subject him or her to persecution.
Also, the law requires that an applicant must apply within 1 year of arriving in the U.S. otherwise; applicant must show either extraordinary circumstances or changed circumstances in his or her home country.
Once an application is filed, an interview is scheduled with the local asylum office. At the interview the interviewer may approve you for asylee status or refer your case to the Immigration Court for a determination of eligibility in deportation (removal) proceedings. Once you have been approved and in Asylee status for at least one year, you are eligible to apply for lawful permanent residency.
T and U visa Regulations Provide Green Cards to Some Victims, Witnesses and Criminal Defendants
There is frequently an intersection between immigration law and criminal law. In December 2008, United States Citizenship and Immigration Services (“USCIS”) issued new regulations allowing “T” and “U” non-immigrants to adjust their status and become lawful permanent residents of the United States.
Situations in which T or U Status May Help Crime Victims
T non-immigrant status was established by Congress to furnish protection to victims of severe forms of human trafficking who are less than 15 years of age and would suffer extreme hardship if removed from the U.S., or are 15 years of age or older and have complied with a reasonable request for assistance in the investigation or prosecution of such acts.
U non-immigrant status was created to help victims of specified crimes who have suffered substantial physical or mental abuse because of the crime and are willing to assist law enforcement in investigation or prosecution of the crime. Qualifying crimes include domestic violence, sexual assault, abusive sexual contact, and felonious assault, witness tampering, rape to name a few.
Situations in which T or U Status May Help Criminal Defendants and Witnesses
If a criminal defendant has been involved in a serious assault, but has also been victim of the crime, then U non-immigrant status may be available if the client is willing to assist law enforcement in its investigation or prosecution of the crime.
If a criminal defendant has been charged with participation in a drug transaction, but has also suffered physical or mental abuse arising from the transaction, then the client may be entitled to classification as a U non-immigrant, provided that the client will assist law enforcement in the matter.
In the case of sexual abuse of a child by a parent, to which the other parent was a witness, U non-immigrant status may be available to the witness-parent if that parent can and will assist law enforcement in the investigation or prosecution of the crime, and the witness-parent has suffered mental abuse from the crime.
Although the circumstances under which T non-immigrant status may apply will ordinarily be more restricted, a situation might arise, for example, in which a client participated in a human-trafficking scheme but was also victimized in the transaction. In such a situation, the client might be entitled to T status if s/he assists in the investigation or prosecution of the crime, or even if s/he does not assist law enforcement, provided that s/he is less than 15 years of age.
Opportunities for Negotiation
The T and U statuses provided by immigration law open the door to possible negotiations between prosecutors, defense counsel and others. Immigration law recognizes the potential value of a qualifying person to law enforcement in the investigation or prosecution of the specified crimes, and, therefore, all legal counsel involved should consider this value as well. A major benefit in negotiation would be that the client, victim or witness may be able to adjust his or her immigration status to remain in this country permanently.
