Crime and Trafficking Victims May Adjust Status

The United States Citizenship and Immigration Services (USCIS) published its interim final rule on December 12, 2008 allowing non-immigrants holding T and U visas to adjust status to become lawful permanent residents in the U.S. This implementing rule will take effect 30 days after publication.

The “T” visa is for victims of a severe form of human trafficking. The “U” visa is for victims of certain crimes who have suffered mental or physical abuse because of the crime and who are willing to assist government officials in the investigation of the criminal activity.

The “T” and “U” nonimmigrant classifications were created under the “Victims of Trafficking and Violence Protection Act of 2000”. This law was intended to enable law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of persons and other crimes while at the same time offer protection to victims of such crimes. Due to the complexity of this law and the ramifications of its application, it took close to eight years to issue its implementing regulations, particularly in regards to its adjustment of status provisions.

Adjustment of status is a process that allows the eligible applicant to apply for a greencard in the U.S. without having to leave the country to get an immigrant visa. This is initiated by filing the I-485 form with the USCIS having jurisdiction of the case.

The requirements for adjustment of status under the T and U visa categories are different from other visa categories.

To be eligible for adjustment of status, the T or U visa holder must have been lawfully admitted to the U.S. They must continue to hold such status and must show at least three (3) years of continuous physical presence in the U.S. Continuous presence may be proved through documentations such as employment records, rent receipts, utility bills, installment payments, college transcripts, etc.

The T visa holder may also prove physical presence for a continuous period during the investigation or prosecution of acts of trafficking. He/she also needs a certification from the Attorney General that the investigation or prosecution is complete. In addition, he/she is also required to show good moral character and continued compliance with reasonable request for assistance in the investigation and prosecution of human trafficking or prove extreme hardship if removed from the U.S.

The U visa holder, on the other hand, is required to show that he/she has not unreasonably refused to provide assistance in the criminal investigation or prosecution.

Another benefit of the new rule is that qualifying family members may also apply for adjustment of status as derivative beneficiaries provided that the principal T and U visa holders are eligible for adjustment of status.

Qualifying family members include the spouse, children and parents (if the petitioner is under 21) of the principal.

A qualifying family member who has never held U status may be granted derivative benefits if it is established that either the family member or the U-1 applicant can prove extreme hardship as a result of his/her not being allowed to remain or be admitted to the U.S.

Before a family member can apply for a green card, the U non-immigrant holder must first file an I-929 petition for the family member. This can be done at the same time or after the filing of his/her own application for adjustment of status. Once approved, the family member may then file the Form I-485 adjustment of status application. Unlike standard I-485 applications, biometrics fee is not required. The filing fee may be waived if applicants can show financial hardship.

Adjustment of status for T visa holders is limited to 5,000 annually. There is no numerical limit to qualifying family members of the principal T status holder. There is also no numerical cap on adjustment of status for those in the U category.