9 FAM 402.6
(U) Witnesses, Informants and Victims – S, T, and U Visas
(CT:VISA-1941; 03-06-2024)
(Office of Origin: CA/VO)
9 FAM 402.6-1 (U) Statutory and Regulatory Authorities
9 FAM 402.6-1(A) (U) Immigration and Nationality Act
(CT:VISA-324; 04-07-2017)
(U) INA 101(a)(15)(S) (8 U.S.C. 1101(a)(15)(S)); INA 101(a)(15)(T) (8 U.S.C. 1101(a)(15)(T)); INA 101(a)(15)(U) (8 U.S.C. 1101(a)(15)(U)); INA 212(d)(1) (8 U.S.C. 1182(d)(1)); INA 212(d)(13) (8 U.S.C. 1182(d)(13)); INA 212(d)(14) (8 U.S.C. 1182(d)(14));INA 214(k) (8 U.S.C. 1184(k)); INA 214(n) (8 U.S.C. 1184(n)); INA 214(o) (8 U.S.C. 1184(o)); INA 214(p) (8 U.S.C. 1184(p)); INA 245 (8 U.S.C. 1255).
9 FAM 402.6-1(B) (U) Code of Federal Regulations
(CT:VISA-324; 04-07-2017)
(U) 22 CFR 41.83; 22 CFR 41.84; 8 CFR 214.11; 8 CFR 214.14.
9 FAM 402.6-1(C) (U) United States Code
(CT:VISA-1; 11-18-2015)
(U) 22 U.S.C. 7102.
9 FAM 402.6-2 (U) Overview of Visas for Witnesses and Victims
(CT:VISA-1941; 03-06-2024)
a. (U) S Visas: S visas are for witnesses or informants supplying critical information relating to a criminal organization (S-5) or witnesses or informants supplying critical information relating to terrorism (S-6). See 9 FAM 402.6-4 below more information about S visas.
b. (U) T Visas: A T Visa allows a victim of human trafficking to remain in the United States to assist in the detection, investigation, or prosecution of acts of human trafficking. A victim must demonstrate that they have been a victim of a severe form of trafficking in persons; are physically present in the United States (including American Samoa, the Commonwealth of the Northern Mariana Islands or at a U.S. POE) on account of such trafficking; have complied with any reasonable request for assistance in a federal, state, or local investigation or prosecution into acts of trafficking or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime (except when the individual was under 18 years of age at the time of victimization or is unable to cooperate with a request due to physical or psychological trauma); would suffer extreme hardship involving unusual and severe harm upon removal from the United States; and are admissible to the United States or qualify for a waiver of any applicable grounds of inadmissibility. Since a noncitizen seeking T-1 nonimmigrant status must be present in the United States on account of human trafficking, you may not issue T-1 visas. You may, however, issue eligible family members T derivative visas. See 9 FAM 402.6-5 below for more information about T visas.
c. (U) U Visas: Victims of certain qualifying criminal activities that either occurred in the United States or violated U.S. laws may petition USCIS for U-1 nonimmigrant status. To establish eligibility, the petitioner must possess specific, credible, and reliable information concerning the qualifying criminal activity, and law enforcement authorities or other certifying officials must certify that the petitioner has been, is being, or is likely to be helpful in the detection, investigation, prosecution, conviction or sentencing of the qualifying criminal activity. In addition, the petitioner must establish that they have suffered substantial mental or physical abuse due to the qualifying criminal activity. The qualifying criminal activity must have occurred in the United States, including Indian country (see 8 CFR 214.14(a)(4)), U.S. military installations (see 8 CFR 214.14(a)(6)), U.S. territories or possessions (see 8 CFR 214.14(a)(11)), or violated a U.S. federal law that provides for extraterritorial jurisdiction. A petitioner must be eligible and must establish all the petition requirements to receive U-1 nonimmigrant status. USCIS approves U nonimmigrant petitions both for victims who are in the United States and for those abroad. There is a statutory cap of 10,000 victims who can be issued U-1 visas or otherwise provided U-1 nonimmigrant status each fiscal year. Individuals abroad who have approved U visa petitions, or who received U nonimmigrant status in the United States and have traveled abroad, are required to apply for a U visa overseas via consular processing. See 9 FAM 402.6-6 below for more information about U visas.
9 FAM 402.6-3 (U) Categories of s, t and U Visas
(CT:VISA-1828; 09-12-2023)
(U) 22 CFR 41.12 identifies the following S, T, and U visa classification symbols for witnesses, informants, and victims in accordance with INA 101(a)(15)(S), (T), and (U):
|
S5 |
Person Supplying Critical Information Relating to a Criminal Organization or Enterprise |
|
S6 |
Person Supplying Critical Information Relating to Terrorism |
|
S7 |
Qualified Family Member of S5 or S6 |
|
T1 |
Victim of a Severe Form of Trafficking in Persons |
|
T2 |
Spouse of T1 |
|
T3 |
Child of T1 |
|
T4 |
Parent of T1 Under 21 Years of Age or Parent of T1 (Any Age) Who Faces Present Danger of Retaliation |
|
T5 |
Unmarried Sibling under 18 Years of Age of a T1 Under 21 Years of Age; or Unmarried Sibling Under 18 Years of Age of a T1 (Any Age) Who Faces Present Danger of Retaliation |
|
T6 |
Adult or Minor Child of a Derivative Beneficiary of a T1 (Any Age) Who Faces Present Danger of Retaliation |
|
U1 |
Victim of Criminal Activity |
|
U2 |
Spouse of U1 |
|
U3 |
Child of U1 |
|
U4 |
Parent of U1 Under 21 Years of Age |
|
U5 |
Unmarried Sibling Under Age 18 of U1 Under 21 Years of Age |
9 FAM 402.6-4 (U) witnesses and Informants – S Visas
9 FAM 402.6-4(A) (U) Statutory and Regulatory Authorities
9 FAM 402.6-4(A)(1) (U) Immigration and Nationality Act
(CT:VISA-446; 09-19-2017)
(U) INA 101(a)(15)(S) (8 U.S.C. 101(a)(15)(S); INA 212(d)(1) (8 U.S.C. 1182(d)(1)); INA 214(k) (8 U.S.C. 1184(k)); INA 245 (8 U.S.C. 1255); INA 248 (8 U.S.C. 1258).
9 FAM 402.6-4(A)(2) (U) Code of Federal Regulations
(CT:VISA-324; 04-07-2017)
(U) 22 CFR 41.83.
9 FAM 402.6-4(B) (U) Background
(CT:VISA-1721; 03-03-2023)
a. (U) Classification Codes: “S-5”classification relates to INA 101(a)(15)(S)(i) and “S-6” relates to INA 101(a)(15)(S)(ii). “S-7” is used for qualifying family members of either S-5 or S-6 nonimmigrants.
b. (U) Numerical Limitation: INA 214(k) places an annual limitation on nonimmigrants who may be issued visas under INA 101(a)(15)(S)(i) and (ii) to 200 and 50 respectively.
9 FAM 402.6-4(C) (U) S-5 Classification Under INA 101(a)(15)(S)(i)
(CT:VISA-1840; 09-29-2023)
(U) An individual may be classified as an S-5 nonimmigrant, if the Director of USCIS determines, in the exercise of discretion, that the:
(1) (U) individual is in possession of critical reliable information concerning a criminal organization or enterprise;
(2) (U) individual is willing to supply, or has supplied, such information to a Federal or State law enforcement authority (LEA); and
(3) (U) individual's presence in the United States has been determined by the Attorney General to be essential to the success of an authorized criminal investigation or the successful prosecution of an individual involved in the criminal organization or enterprise. See 8 CFR 214.2(t)(1).
9 FAM 402.6-4(D) (U) S-6 Classification Under INA 101(a)(15)(S)(ii)
(CT:VISA-1840; 09-29-2023)
(U) An individual may be classified as an S-6 nonimmigrant, if the Secretary of State and the Director of USCIS jointly determine, in the exercise of discretion, that the:
(1) (U) individual possesses critical, reliable information concerning a terrorist organization, enterprise, or operation;
(2) (U) individual is willing to supply or has supplied such information to Federal law enforcement authorities;
(3) (U) individual will be or has been placed in danger because of providing such information; and
(4) (U) individual is eligible to receive a reward under 22 U.S.C. 2708(a). See 8 CFR 214.2(t)(2).
9 FAM 402.6-4(E) (U) S-7 Accompanying or Following- to-Join Dependents
(CT:VISA-1840; 09-29-2023)
a. (U) The accompanying or following-to-join spouse, married and unmarried sons and daughters, and the parents of an S-5 or S-6 applicant may be classified as S-7 if approved by USCIS and the Department.
b. (U) A nonimmigrant in the S-7 visa classification is subject to the same period of admission, limitations, and restrictions as the S-5 or S-6 and must be identified on Form I-854-A to qualify for S nonimmigrant classification. Family members not identified on Form I-854-A will not be eligible for S nonimmigrant classification. See 9 FAM 402.6-4(F) below and 8 CFR 214.2(t)(3).
9 FAM 402.6-4(F) (U) Determining Eligibility for S Nonimmigrant Classification
(CT:VISA-1941; 03-06-2024)
a. (U) An interested Federal or State LEA (which includes a Federal or state court or a United States Attorney's Office) must initiate the process for an S visa by having a Form I-854-A certified by the U.S. Attorney who has jurisdiction over the prosecution or investigation.
b. (U) The LEA must then receive certification of the Form I-854-A by the seat of government (headquarters) level if a Federal LEA or at the highest level of the State LEA.
c. (U) The LEA must then submit the Form I-854-A directly with the Assistant Attorney General, Criminal Division. If the Assistant Attorney General, Criminal Division recommends approval, the I-854-A application is submitted to USCIS for a decision.
d. (U) Most S visa applicants are already present in the United States. If USCIS approves the I-854-A, and the individual is outside the United States, the request for S NIV classification will then be presented to the Secretary of State.
e. (U) No request for S NIV classifications may be presented to the Secretary of State unless it has been approved and forwarded by USCIS.
f. (U) In lieu of an S visa, or in preparation for an S visa application within the United States, the LEA may prefer to request to parole a noncitizen into the United States on a case-by-case basis.
9 FAM 402.6-4(G) (U) Waiver for Applicant Ineligible Under 212(a)
(CT:VISA-1376; 09-22-2021)
(U) Upon certification by the Assistant Attorney General, Criminal Division, an applicant otherwise classifiable as a nonimmigrant under INA 101(a)(15)(S), who is found to be ineligible under INA 212(a) (other than paragraph (3)(E) pertaining to Nazi persecution, genocide, torture, or extrajudicial killings), may, if USCIS considers it to be in the national interest, be granted a waiver under INA 212(d)(1), after the Department of Justice Criminal Division certifies the application. See 8 CFR 214.2(t)(5)(i) and 8 CFR 212.4(j)(1).
9 FAM 402.6-4(H) (U) Conditions of Stay
(CT:VISA-1733; 03-14-2023)
a. (U) Length of Stay: The maximum period of admission in S visa status is three years. USCIS is not permitted to grant an extension of this period. Individuals with S nonimmigrant status have additional conditions for their admission as outlined in INA 214(k)(3) and 8 CFR 214.2(t)(7). During the applicant's status as an S nonimmigrant, the LEA has quarterly and annual reporting requirements to the Assistant Attorney General, Criminal Division.
b. (U) No Change of Status: An individual admitted to the United States under INA 101(a)(15)(S) is prohibited from changing status to another nonimmigrant classification as provided in INA 248(a)(1) and 8 CFR 248.2(a)(2), except for INA 101(a)(15)(U). 8 CFR 248.2(a) also outlines classes of individuals ineligible to change to S nonimmigrant status. With some exceptions, this generally includes individuals holding C, D, K and J nonimmigrant status as well as individuals admitted und the Visa Waiver Program. See 8 CFR 248.2(a)for a complete list of ineligible classes.
c. (U) Employment in the United States: An applicant classified under INA 101(a)(15)(S) may, once in the United States, apply for employment authorization by using Form I-765, Application for Employment Authorization. Form I-765 is not filed by the individual but by the Federal or state LEA or U.S. Attorney's Office on behalf of the individual. An individual in S status may not take employment before the grant of the employment authorization.
9 FAM 402.6-4(I) (U) Adjustment of Status
(CT:VISA-1508; 03-09-2022)
a. (U) INA 245.11(j) provides for adjustment of status of individuals admitted as S-5 or S-6 to LPR status only if the same LEA that sponsored the initial I-854-A application applies for the individual to adjust status to LPR and may only be filed by the Federal or state LEA or the United States Attorney's Office that originally requested S classification for the individual. S-7 derivatives also may adjust status if the S-5 or S-6 principal's adjustment application is granted. See INA 245(j)(2).
b. (U) The requesting LEA must certify Form I-854-B pertaining to adjustment of status and file with the Assistant Attorney General, Criminal Division, for review.
c. (U) After certification of Form I-854-B by the Assistant Attorney General, Criminal Division, the I-854-B is submitted to USCIS, and the noncitizen may then proceed to file Form I-485 to adjust to LPR status according to the process outlined in 8 CFR 1245.11(a).
9 FAM 402.6-5 (U) Victims of Trafficking in Persons – T Visas
9 FAM 402.6-5(E) (U) Derivatives of T Visa Holders
9 FAM 402.6-5(E)(1) (U) Your Responsibilities
(CT:VISA-1941; 03-06-2024)
a. (U) A victim who was over the age of 21 when they filed a T-1 application (i.e., principal applicant or T-1 nonimmigrant) may apply for the admission of a T-2 (spouse) and T-3 (child) if accompanying or following to join the principal.
b. (U) A victim who was under the age of 21 when they filed a T-1 application (i.e., principal applicant or T-1 nonimmigrant) may apply for the admission of derivative family members including T-2 (spouse), T-3 (child), T-4 (parent of a T-1), or T-5 (unmarried sibling under the age of 18) if accompanying or following to join such principal applicant.
c. (U) Irrespective of the principal applicant or T-1 nonimmigrant's age, any parent, or unmarried sibling under 18 years of age, or adult or minor child of a derivative beneficiary of a principal applicant or T-1 nonimmigrant may qualify as a derivative if USCIS has determined that the individual faces a present danger of retaliation due to the principal's escape from a severe form of trafficking or cooperation with law enforcement. If an applicant qualifies based on their relationship to the principal applicant’s derivative beneficiary, such as the principal applicant’s grandchild, stepchild or niece/nephew, this will be marked as T-6 on the USCIS Form I-914, Supplement A. See 9 FAM 402.6-3 above for appropriate classification symbols. The T-6 visa classification is unique because it expands eligibility to individuals who would not typically be eligible for derivative status. USCIS must have granted the T-6 derivative family member's parent T-2, T-3, T-4, or T-5 status as the principal's derivative beneficiary for the T-6 family member to be eligible for T-6 nonimmigrant status.
d. (U) To be eligible to receive T-2, T-3, T-4, T-5, or T-6 nonimmigrant status, it must be demonstrated that:
(1) (U) The T-1 principal is still in T-1 nonimmigrant status and has NOT adjusted status to that of an LPR (check PCQS). No derivative T visa may be issued if the T-1 nonimmigrant's status has been revoked, expired, or if the T-1 nonimmigrant has adjusted to an LPR. A principal applicant may apply for a derivative family member before receiving T-1 nonimmigrant status, but the family member cannot receive derivative status until the principal has been granted T-1 nonimmigrant status.
(2) (U) The person for whom T-2, T-3, T-4, T-5, or T-6 status is being sought is a derivative family member. A principal applicant who marries while their T-1 application is pending, may file Form I-914, Supplement A on behalf of their spouse, even if the relationship did not exist at the time of filing the Form I-914. USCIS will evaluate whether such marriage exists when the T-1 application is adjudicated and when the derivative application is adjudicated. Also, a principal applicant may file for a stepchild or stepparent if the qualifying relationship was established after the principal applicant filed the T-1 application, but before it is approved. Children born after the T-1 application is filed are eligible to accompany or follow to join the principal applicant.
(3) (U) The derivative family member is otherwise admissible to the United States.
(4) (U) The T-3 applicant is unmarried at the time the application for principal T-1 status is filed and adjudicated, when the application for derivative T-3 status is filed and adjudicated, and on the date the visa is issued. The child must be under age 21 when the principal applicant applied for T-1 status.
(5) (U) The T-5 applicant is unmarried when the application for principal T-1 status is filed and adjudicated, when the application for derivative T-5 status is filed and adjudicated, and on the date the visa is issued. The sibling must be under the age of 18 on the date the principal applicant applied for T-1 status.
e. (U) USCIS may grant T nonimmigrant status to 5,000 principal applicants per year. The annual numerical limitations do not apply to derivative visa applicants.
f. (U) A derivative T nonimmigrant visa cannot be issued unless the derivative is the beneficiary of an approved Form I-914, Supplement A. All applications for classification of a family member for derivative T nonimmigrant status must be filed by the principal with USCIS in the United States.
g. Unavailable
h. Unavailable
i. (U) It is not necessary for the T-1 principal applicant or T-1 nonimmigrant to be present at the visa interviews for derivative family members. Remember that T-1 principal applicants and nonimmigrants do not have visas that would allow them to freely depart from and return to the United States.
j. (U) Remember that T visa applicants do not need to demonstrate that they have a foreign residence which they have no intention of abandoning. You therefore cannot refuse a T visa applicant under INA 214(b) for failure to demonstrate ties to a foreign residence.
9 FAM 402.6-5(E)(2) (U) Length of T Status
(CT:VISA-1941; 03-06-2024)
(U) Derivative family members remain eligible for a visa only while the principal applicant is in T-1 status. T-1 nonimmigrant status is issued for 4 years, which can be extended in certain circumstances outlined in INA 214(o)(7). T-1 nonimmigrants may adjust status to LPR after three years of continuous physical presence in the United States as T-1 nonimmigrants if all eligibility requirements are met. T nonimmigrant status is automatically extended during the pendency of a timely-filed application to adjust status to LPR. If the T-1 does not apply to adjust status, or receive an extension of status, their T-1 status expires at the end of the validity period. In certain circumstances, T-1 nonimmigrants may file for early adjustment of status, if they provide evidence that they have been physically present in the United States for a continuous period during the investigation or prosecution of acts of trafficking and the Attorney General has determined that the investigation or prosecution is complete. See INA 245(l)(1)(a); 8 CFR 245.23(a)(3).
9 FAM 402.6-5(E)(3) (U) Visa Revocation
(CT:VISA-1840; 09-29-2023)
Unavailable
9 FAM 402.6-5(E)(4) (U) Age-Out Protection
(CT:VISA-1941; 03-06-2024)
(U) A T-4 or T-5 applicant remains eligible for derivative status if a T-1 under 21 years of age at the time of filing of the principal application, turns 21 before USCIS adjudicates the T-1 application. A T-5 applicant remains eligible for derivative status even if they turn 18 before USCIS adjudicates the T-1 application if the T-5 applicant remains unmarried. The T-5 applicant does not "age out" even after reaching age 18. If the T-1 principal is 21 years of age or older when the T-1 application is filed, a T-3 applicant (child) will remain eligible for derivative status if the T-3 applicant was under 21 years of age when the T-1 filed for nonimmigrant status. The T-3 applicant does not "age out" even upon reaching age 21.
9 FAM 402.6-5(E)(5) (U) Employment Authorization
(CT:VISA-1941; 03-06-2024)
(U) USCIS will issue T-1 nonimmigrants employment authorization documentation concurrently with the grant of status. T-2, T-3, T-4, T-5, and T-6 nonimmigrants may apply for employment authorization once in the United States by filing a Form I-765, Application for Employment Authorization. Employment authorization for derivatives, if granted, will be approved for duration of the derivative T nonimmigrant status.
9 FAM 402.6-5(E)(6) (U) Benefits and Services
(CT:VISA-1633; 09-29-2022)
(U) Trafficking victims over the age of 18 are eligible to receive benefits and services to the same extent as refugees. HHS provides certification to eligible adult trafficking victims, who may then receive services and benefits including housing and food assistance, health care, and English language training. Child victims of trafficking do not need to be certified to receive benefits or services. Instead, they will be issued a letter from the HHS Office of Refugee Resettlement (ORR) stating their eligibility for benefits and services.
9 FAM 402.6-5(F) (U) Issuing T Visas
9 FAM 402.6-5(F)(1) (U) Visa Section's Role
(CT:VISA-1941; 03-06-2024)
(U) When USCIS approves an application for an eligible family member who is outside the United States, USCIS will notify the principal T-1 nonimmigrant of such approval via Form I-797, Notice of Action. USCIS will send a copy of the approved Form I-914, Supplement A Application for Family Member of T-1 Recipient, to the Department’s Kentucky Consular Center (KCC), which will then make the form available electronically through the Petition Information Management Service (PIMS). T visa applications can be processed at any NIV-issuing post worldwide. Upon receipt of the approved Form I-914, Supplement A, the derivative will contact post to schedule an interview.
9 FAM 402.6-5(F)(2) (U) Public Charge Ineligibility Inapplicable
(CT:VISA-1721; 03-03-2023)
(U) The public charge ground of ineligibility (INA 212(a)(4)) does not apply to applicants for T nonimmigrant status.
9 FAM 402.6-5(F)(3) (U) Individuals Ineligible for T Nonimmigrant Status
(CT:VISA-1785; 06-14-2023)
(U) Public Law 106-386 also amended INA 214 by adding a new subsection which precludes an individual from receiving T nonimmigrant status if there is substantial reason to believe they have committed an act of a severe form of trafficking in persons.
9 FAM 402.6-5(F)(4) (U) Study Permitted
(CT:VISA-1941; 03-06-2024)
(U) Family members who are issued T visas and will study in the United States are not required to provide Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status – for Academic and Language Students or to apply for F-1 status.
9 FAM 402.6-5(F)(5) (U) Waiver of Grounds of Ineligibility
(CT:VISA-1941; 03-06-2024)
a. (U) If you discover any ineligibilities, you must enter the appropriate refusal code(s), regardless of whether USCIS subsequently waives them. If USCIS has not waived all ineligibilities via Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, you must inform the applicant if a waiver is available and refuse the application under INA 221(g), pending the waiver. Waived inadmissibility grounds are listed on Form I-192 approval notices. You may find the waiver validity dates on the last page of the I-192 in PIMS. If PIMS does not yet contain the scanned Form I-192, send an email to PIMS@state.gov.
b. Unavailable
c. (U) T visa applicants may be granted waivers of 212(a) ineligibilities under one of two waiver authorities: INA 212(d)(13) or INA 212(d)(3)(A)(ii).
d. (U) INA 212(d)(13): USCIS may approve a waiver of certain grounds of inadmissibility under the special waiver authority relating to T visa applicants provided for in INA 212(d)(13). See 8 CFR 212.16. The decision to grant a waiver under INA 212(d)(13) for T visa applicants is within the exclusive authority of the Secretary of Homeland Security. T visa applicants should therefore be advised that they may apply for a waiver directly with USCIS.
e. (U) INA 212(d)(3)(A)(ii): In addition to the INA 212(d)(13) general waiver for T visa applicants, INA 212(d)(3)(A)(ii) provides USCIS discretion to waive certain grounds of inadmissibility for nonimmigrants based on a general balancing of positive and negative discretionary factors.
f. (U) If a waiver is available, you should advise the applicant that they must file the Form I-192 application with USCIS and refer the applicant to the USCIS website. The authority to waive ineligibilities for T visa applicants rests solely with USCIS. While you cannot make a recommendation on the waiver, you may provide any derogatory information that you believe USCIS might find useful when processing waivers. Include all information in your case notes. You may also provide this information to the USCIS by email: LawEnforcement_UTVAWA.VSC@uscis.dhs.gov. USCIS considers all information it has available when making decisions on waivers, including serious criminal activity by T visa applicants that might create further victims if a waiver was granted.
g. (U) If no waiver is available, you must enter the appropriate refusal code(s) and return the case with an explanatory memo to USCIS, via KCC.
h. (U) Passport Waivers: A T visa may be placed in a Form DS-232, Unrecognized Passport or Waiver Cases, (see 9 FAM 403.9-6(B)) only in very rare circumstances. See 9 FAM 403.9-3(D). Passport waivers are most often sought for children whose biological parents are unavailable or unwilling to apply for a minor’s passport. You should collect guidance from local passport issuing authorities and family courts about procedures required of guardians or custodians to obtain passports for such children and provide this information to applicants who claim they cannot obtain passports.
9 FAM 402.6-5(F)(6) (U) Referring Approved T Application to USCIS for Reconsideration
(CT:VISA-1941; 03-06-2024)
a. Unavailable
b. Unavailable
9 FAM 402.6-5(F)(7) (U) Travel Outside the United States
(CT:VISA-1941; 03-06-2024)
a. (U) The filing of an application for T nonimmigrant status does not grant the applicant permission to travel outside the United States. Departures from the United States while an application for T nonimmigrant status is pending could impact the applicant’s ability to establish eligibility for T nonimmigrant status. Additionally, an applicant’s departure from the United States while the application for T nonimmigrant status is pending could impact the applicant’s ability to return to the United States unless the applicant has another status that allows for travel or has obtained an advance parole document.
b. (U) Individuals in the United States who were granted T nonimmigrant status by USCIS must file Form I-131, Application for Travel Document), to obtain an advance parole document before departing the United States to return to the United States in T nonimmigrant status.
c. (U) A T nonimmigrant who departs the United States and returns through means other than advance parole or admission at a designated port of entry with a T NIV does not resume T nonimmigrant status and may have to reapply for such status if certain requirements are not met. In order for a T-2, T-3, T-4, T-5, or T-6 nonimmigrant to depart the United States and return in T nonimmigrant status, the T nonimmigrant must either obtain advance parole or apply for and receive a T nonimmigrant visa from the Department of State and seek admission as a T nonimmigrant at a designated port of entry.
d. (U) T nonimmigrants also should keep in mind that if they accrued more than 180 days of unlawful presence before obtaining T nonimmigrant status, they may trigger the unlawful presence bar upon departing from the United States and be found ineligible upon their return to the United States. (There are exceptions to the unlawful presence bar. See INA 212(a)(9)(B)). If a person granted T nonimmigrant status is ineligible under INA 212(a)(9)(B) or INA 212(a)(9)(C), they may apply for a waiver by filing Form I-192 with USCIS. See 9 FAM 402.6-5(F)(5) above. USCIS will only accept and adjudicate a Form I-192 based on ineligibility due to unlawful presence if the person has left the United States and is now seeking to return. USCIS will not accept and adjudicate Form I-192 from a person who has not yet departed from the United States and therefore has not triggered INA 212(a)(9)(B) ineligibility.
e. (U) If a T derivative applies for a visa for readmission to the United States, and PCQS shows the T-1 principal is no longer in T-1 status because their status has expired or was terminated, no T derivative visa can be issued as there is no longer a T-1 principal.
9 FAM 402.6-6 (U) Victims of Criminal Activity – U Visas
9 FAM 402.6-6(A) (U) Statutory and Regulatory Authorities
9 FAM 402.6-6(A)(1) (U) Immigration and Nationality Act
(CT:VISA-1721; 03-03-2023)
(U) INA 101(a)(15)(U) (8 U.S.C. 101(a)(15)(U)); INA 212(d)(14) (8 U.S.C. 1182(d)(14)); INA 214(p) (8 U.S.C. 1184(p)); INA 245(m) (8 U.S.C. 1255(m)).
9 FAM 402.6-6(A)(2) (U) United States Code
(CT:VISA-324; 04-07-2017)
(U) 8 U.S.C. 1367.
9 FAM 402.6-6(A)(3) (U) Code of Federal Regulation
(CT:VISA-1721; 03-03-2023)
8 CFR 214.14; 8 CFR 212.17; 8 CFR 245.24
9 FAM 402.6-6(B) (U) Overview of U Visas
(CT:VISA-1941; 03-06-2024)
a. (U) The U nonimmigrant classification was created by Congress with the passage of the Victims of Trafficking and Violence Protection Act of 2000 to strengthen the ability of law enforcement agencies to investigate and prosecute certain qualifying crimes, while offering protection to crime victims in keeping with the humanitarian interests of the United States. These qualifying crimes include but are not limited to, domestic violence, sexual assault, and trafficking in persons, among others.
b. (U) The U nonimmigrant classification is available to victims of qualifying criminal activities, who have been, are being, or are likely to be helpful to Federal, State, or local certifying officials (including judges, prosecutors, law enforcement officials, or authorities with criminal investigative authority) in the detection, investigation, prosecution, conviction or sentencing of the qualifying criminal activities.
c. (U) USCIS can only grant U nonimmigrant status to 10,000 principal victims in each fiscal year. There is no numerical limit to the U qualifying family member categories.
d. (U) Special protections, described in the law at 8 U.S.C. 1367, apply to victims who may be eligible for or recipients of U nonimmigrant status benefits. These protections prohibit adverse actions against a victim based on information provided solely by a perpetrator and/or other prohibited sources. See 8.U.S.C. 1367(a)(1). 8 U.S.C. 1367(a)(2) prohibits DHS, DOJ, and the Department from disclosing any information outside of DHS, DOS, and DOJ that relates to petitioners for and recipients of U nonimmigrant status, including their qualifying family members, subject to certain exceptions at section 1367(b). The law was amended in 2013 to allow the Secretary of Homeland Security, the Secretary of State, and the Attorney General, in the discretion of either, to disclose information to national security officials to be used solely for national security purposes in a way that protects the confidentiality of such information. See 8 U.S.C. 1367(b)(8).
9 FAM 402.6-6(C) (U) Qualifications for U Nonimmigrant Classification
(CT:VISA-1941; 03-06-2024)
a. (U) To qualify for the U nonimmigrant classification:
(1) (U) The victim must have suffered substantial physical or mental abuse due to having been a victim of a qualifying criminal activity. USCIS determines whether the harm suffered rises to the level of “substantial abuse;"
(2) (U) The victim must possess specific, credible, and reliable information about the qualifying criminal activity of which they have been a victim. If the victim is under the age of 16 or is incompetent or incapacitated, a parent, guardian, or next friend may possess the information about the qualifying crime on the victim’s behalf;
(3) (U) The victim must have been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, prosecutor, judge, or other authority investigating or prosecuting the qualifying criminal activity. If the victim is under the age of 16 or is incompetent or incapacitated, a parent, guardian, or next friend may provide the required assistance on the victim's behalf; and
(4) (U) The qualifying criminal activity must have occurred in the United States (including Indian country and U.S. military installations), occurred in the territories or possessions of the United States, or have violated a U.S. Federal law that provides for extraterritorial jurisdiction to prosecute the offense in a U.S. federal court. For a list of territories or possessions of the United States see 8 CFR 214.14(a)(11).
b. (U) Qualifying criminal activity is defined by statute at INA 101(a)(15)(U)(iii) as an activity involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law:
· Rape;
· torture;
· trafficking;
· incest;
· domestic violence;
· sexual assault;
· abusive sexual contact;
· prostitution;
· sexual exploitation;
· stalking;
· 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;
· fraud in foreign labor contracting (as defined in 18 U.S.C. 1351); or
· attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes.
c. (U) 8 CFR 214.14(a)(9) provides that the term "any similar activity" refers to criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities.
d. (U) A person may be eligible as an indirect victim if the direct victim is deceased because of murder or manslaughter or is incompetent or incapacitated (including due to injury, trauma, or age), and therefore unable to assist law enforcement. Indirect victims must have a qualifying relationship to the direct victim. If the direct victim is age 21 years or older at the time the qualifying criminal activity was committed, their spouse and unmarried children under age of 21 may qualify. If the direct victim is under age 21 at the time the qualifying criminal activity was committed, the spouse, unmarried children under age 21, parents and unmarried siblings under 18 years of age may qualify. See 8 CFR 214.14(a)(14)(i).
e. (U) USCIS will consider a victim to possess information concerning qualifying criminal activity of which they were a victim if they had knowledge of the details (i.e., specific facts) concerning the criminal activity that would assist in the detection, investigation, or prosecution of the criminal activity. If a victim is under the age of 16 or is unable to provide information due to being incapacitated or incompetent, a parent, guardian, or next friend may possess the information about the crime on the victim’s behalf. See 8 CFR 214.14(a)(7); (b)(3).
f. (U) “Helpful” means assisting law enforcement agencies or other certifying authorities in the detection, investigation, or prosecution of the qualifying criminal activity of which they are a victim or the conviction or sentencing of the perpetrator of the qualifying criminal activity. "Investigation or prosecution" means the detection or investigation of a qualifying crime or criminal activity, as well as to the prosecution, conviction, or sentencing of the perpetrator of the qualifying crime or criminal activity. 8 CFR 214.14(a)(5). The statute imposes an ongoing responsibility on the victim to assist, assuming there is an ongoing need for the assistance. This requirement applies to victims while their petitions are pending and, if approved, while they are in U nonimmigrant status. If a victim is under the age of 16 or is unable to provide information due to being incapacitated or incompetent, a parent, guardian, or next friend may provide the required assistance.
g. (U) Victims of qualifying criminal activity and their qualifying family members may file a petition for U nonimmigrant status with USCIS from either inside or outside the United States.
9 FAM 402.6-6(D) (U) Filing the Petition to Request U Nonimmigrant Status
9 FAM 402.6-6(D)(1) (U) I-918 Petition
(CT:VISA-1941; 03-06-2024)
(U) Victims must file Form I-918, Petition for U Nonimmigrant Status, concurrently with Form I-918 Supplement B, U Nonimmigrant Status Certification, to request U nonimmigrant status. See 8 CFR 214.14(c)(1). The Form I-918 Supplement A, Petition for Qualifying Family Member of U-1 Recipient, may be filed concurrently with the initial Form I-918 submission or later (as long as the principal petitioner continues to hold U-1 status). For information about qualifying family members aging out, see 9 FAM 402.6-6(E)(3) below. The U-1 principal must submit a separate Form I-918 Supplement A for each qualifying family member. All Form I-918 petitions are submitted directly to USCIS, regardless of whether the U-1 principal or their qualifying family members are in the United States or abroad. You may not accept I-918 petitions overseas, even for immediate forwarding to USCIS. USCIS does not charge a filing fee for Form I-918 petitions or supplements.
9 FAM 402.6-6(D)(2) (U) Certification Required
(CT:VISA-1941; 03-06-2024)
(U) A victim petitioning for U nonimmigrant status must submit a certification to USCIS on Form I-918, Supplement B from a Federal, State, or local law enforcement official, prosecutor, judge, or other authority with the responsibility for the investigation, or prosecution of the qualifying criminal activity, demonstrating that the victim “has been helpful, is being helpful, or is likely to be helpful'' in the investigation or prosecution of the qualifying criminal activity. See INA 101(a)(15)(U)(i)(III), 8 U.S.C. 1101(a)(15)(U)(i)(III), and 8 CFR 214.14(a)(5). This certification is only provided to USCIS and is considered by USCIS before approving the U-1 petition. You may not review the approval decision made by USCIS as they are the sole adjudicator of U nonimmigrant status petitions.
9 FAM 402.6-6(D)(3) (U) Collection of Ink and Paper Fingerprints at Embassies and Consulates in Support of U Petitions and T Applications
(CT:VISA-1941; 03-06-2024)
a. (U) USCIS cannot adjudicate a U nonimmigrant status petition or a T nonimmigrant status application without first receiving the person's biometric information for an FBI criminal record check. All applicants seeking T and U nonimmigrant status who are overseas and between the ages of 14 and 79 receive a Notice of Action requesting fingerprints. T applicants and U petitioners outside of the United States must have their fingerprints taken at a DHS office overseas, a U.S. embassy or consulate, or a U.S. military installation.
b. (U) If there is DHS counter service at post, the petitioner or applicant should be directed to that office for service.
c. (U) At overseas posts with no DHS counter service, fingerprints must be taken with ink and card, using the FD-258 Fingerprint Card, in accordance with the instructions provided in 9 FAM 602.2-2(A)(2) paragraph b. You must not create a "dummy" case in the NIV system to transmit the fingerprints. The cashier must issue a no-fee receipt using ACRS code 98. There is no charge to the applicant for the ink and card service.
d. (U) Once the prints have been taken, you must place the card in an envelope, seal it, stamp it with a consular officer’s stamp across the seal of the envelope, sign across the seal of the envelope to prevent tampering, and mail it via registered unclassified pouch to the service center indicated in the Request for Evidence (RFE) presented by the applicant.
For the USCIS Vermont Service Center mail to:
U.S. Citizenship and Immigration Services
Vermont Service Center
ATTN: VAWA/T/U Division- Fingerprint Scanning
38 River Road
Essex Junction, VT 05479-0001
For the USCIS Nebraska Service Center mail to:
U.S. Citizenship and Immigration Services
Nebraska Service Center
850 S Street
Lincoln, NE 68508-1225
USCIS will then continue with adjudication of the petition or application.
e. (U) Overseas posts with no DHS counter service must provide instructions for T applicants and U petitioners needing an appointment for collection of biometrics via public web sites or appointment call centers. Biometrics are collected before petition adjudication and before the completion of a DS-160 application. You must not require visa applicants to pay any fees, or complete a DS-160, to schedule an appointment for biometrics collection. At this stage, you should only require visa applicants to present the USCIS Notice of Action and acceptable proof of identification. U-1 visa petitioners should be able to provide a passport as a proof of identification. Derivative T applicants and qualifying family members of U petitioners can present either a passport or birth certificate as proof of identification. If neither can be provided, contact your CA/VO/F analyst for further guidance.
9 FAM 402.6-6(D)(4) (U) USCIS has Sole Authority to Grant U Nonimmigrant Status
(CT:VISA-1941; 03-06-2024)
a. (U) While you may grant U visas to the petitioner outside of the United States, the authority to grant U nonimmigrant status rests solely with USCIS. A U-1 nonimmigrant visa cannot be issued unless USCIS has approved a Petition for U Nonimmigrant Status (Form I-918) for the visa applicant. USCIS approval of a U nonimmigrant status petition is prima facie evidence that the requirements for U visa classification, which are examined by USCIS during the petition process, have been met. However, an approved petition does not relieve the U visa applicant of the burden of establishing visa eligibility. You should attempt to confirm during the interview that the facts claimed in the petition regarding the identity and relationship of the principal petitioner and their qualifying family member are true. Remember that during the pendency of the case, USCIS interacts solely with the petition; the visa interview is the first point during the petition-based visa process where a USG representative has the opportunity to interact with a principal petitioner or a qualifying family member. Additionally, you benefit from cultural and local knowledge that adjudicators at USCIS may not possess, making it easier to spot misrepresentation in qualifications. See 9 FAM 402.6-6(F)(1) paragraph d below for more information.
b. (U) If USCIS finds that the petitioner has established all eligibility requirements for U nonimmigrant status and that any qualifying family members are eligible for derivative status, it will grant U nonimmigrant status to the petitioner and their qualifying family members who are in the United States, unless the annual numerical limit applicable to principal petitioners has been reached. See 8 CFR 214.14(c)(5)(i); 8 CFR 214.14(d); and 8 CFR 214.14(f)(6).
c. (U) Under its Bona Fide Determination (BFD) policy, USCIS grants employment authorization and deferred action to U visa petitioners, and their qualifying family members, living in the United States with pending bona fide petitions who merit a favorable exercise of discretion. Only petitioners and their qualifying family members living in the United States may receive employment authorization and deferred action through the BFD process. If a principal U visa petitioner does not receive a BFD employment authorization document, then the petitioner and their qualifying family members are reviewed for placement on the U waiting list. U visa petitioners and their qualifying family members outside the United States are also reviewed for placement on the U waiting list. If a principal U visa petitioner in the United States received a BFD employment authorization document, but their qualifying family members do not, then USCIS generally places their derivative petition with the principal petition back in line to await a final statutory cap adjudication. The U waiting list is for eligible U-1 petitioners who are not granted U-1 nonimmigrant status solely because of the 10,000 cap on U visas that are available for each fiscal year. If U nonimmigrant status is available for the principal petitioner, USCIS will send a notice of approval on Form I-797, Notice of Action, to the principal petitioner and qualifying family members for whom a petition has been filed. USCIS also sends copies of approved I-797 forms and I-918 petitions to the Kentucky Consular Center (KCC). KCC creates a record in the Petition Information Management Service (PIMS) and scans the documents into the system. Cases are not forwarded to posts. U visa cases can be processed at any NIV-issuing post worldwide. See 8 CFR 214.14(c)(5)(i)(A) and (B); 8 CFR 214.14(f)(6)(i) and (ii).
d. (U) For those principal petitioners and qualifying family members who are in the United States, a Form I-94, Arrival and Departure Record, indicating U nonimmigrant status will be attached to the approval notice and will constitute evidence that the petitioner has been granted U nonimmigrant status. See 8 CFR 214.14(c)(5)(i)(A) and 8 CFR 214.14(f)(6)(i).
9 FAM 402.6-6(E) (U) Admission of Qualifying Family Members
9 FAM 402.6-6(E)(1) (U) Qualifying Family Members
(CT:VISA-1721; 03-03-2023)
a. (U) If the victim is under 21 years of age, the victim's spouse, unmarried children under 21 years of age, unmarried siblings under 18 years of age, and the victim's parents may qualify for derivative U nonimmigrant status. See INA 101(a)(15)(U)(ii)(I).
b. (U) If the victim is 21 years of age or older, their spouse and unmarried children under 21 years of age may qualify for derivative U nonimmigrant status. See INA 101(a)(15)(U)(ii)(II).
c. (U) If the family member was the person who committed the crime against the victim, that family member is ineligible for derivative U nonimmigrant status. See 8 CFR 214.14(f)(1).
9 FAM 402.6-6(E)(2) (U) Classification of Family Members
(CT:VISA-1941; 03-06-2024)
a. (U) A victim who was over the age of 21 when they filed a U-1 petition (i.e., principal), who has petitioned for or has been granted U-1 nonimmigrant status may petition for the admission of a U-2 (spouse), or U-3 (unmarried child under 21), if accompanying or following to join the principal.
b. (U) A victim who was under the age of 21 when they filed a U-1 petition, who has petitioned for or been granted U-1 nonimmigrant status may petition for the admission of a U-4 (parent) or U-5 (unmarried sibling under the age of 18), if accompanying or following to join the principal.
c. (U) To be eligible for U-2, U-3, U-4, or U-5 nonimmigrant status, it must be demonstrated that:
(1) (U) The principal is still in U-1 nonimmigrant status or, if the principal has adjusted status and become an LPR (check PCQS), the qualifying family member had, before the U-1's adjustment of status to LPR, previously been accorded derivative U nonimmigrant status. No derivative U visa may be issued if the U-1 principal’s status terminated or expired.
(2) (U) The person for whom U-2, U-3, U-4, or U-5 status is being sought is a qualifying family member (as defined in 8 CFR 214.14(a)(10));
(3) (U) The qualifying family member is otherwise admissible to the United States; and
(4) (U) The U-3 derivative child petitioner or the U-5 derivative sibling petitioner is unmarried when the visa is issued.
d. (U) A U-2, U-3, U-4, or U-5 visa can only be issued if USCIS has approved a Petition for Qualifying Family Member of U-1 Recipient (Form I-918 Supplement A).
(U) 9 FAM 402.6-6(E)(3) (U) Age-out Protection
(CT:VISA-1941; 03-06-2024)
a. (U) The Victims of Trafficking and Violence Protection Act (VTVPA) amended the INA at INA 214(p) to provide, that a derivative child who attained the age of 21 while the principal petitioner's U-1 case was still pending received age-out protection, allowing the derivative child to maintain their status. Also, parents or siblings of a person who attains the age of 21 while their U-1 petition is pending maintain their derivative status.
b. (U) Derivatives who retain visa eligibility beyond their 18th or 21st birthday must remain unmarried to be eligible for this visa. If the beneficiary marries before the visa is issued, they will no longer be eligible for U nonimmigrant status.
9 FAM 402.6-6(E)(4) (U) Parental Consent for Minors
(CT:VISA-324; 04-07-2017)
(U) You should not require the U-1 principal to appear at the derivative child’s interview. You may approve a U visa for a child without evidence of consent by a non-appearing parent. You may consider the fact that the child has been issued a passport as evidence of consent from the non-appearing parent. If you feel that consent is warranted, you may consider a letter of consent from a non-appearing parent as evidence of consent. You are not required to verify custody by the petitioning parent and should not require such documentation for visa issuance. However, if consent from a parent is in doubt, contact CA/VO/F for guidance.
9 FAM 402.6-6(F) (U) Processing U Visa Petitioners Overseas
9 FAM 402.6-6(F)(1) (U) General Procedures for U Visas
(CT:VISA-1941; 03-06-2024)
a. (U) Although U visas provide a path to obtaining LPR status, they are still processed as petition-based NIVs. Petitioners must apply for a visa using the DS-160, selecting the “U” visa classification, and must be able to schedule interview appointments in accordance with the instructions listed on the public website of the embassy or consulate where they will interview.
b. Unavailable
(1) Unavailable
(2) (U) You must confirm that the claimed relationships exist. A principal petitioner who marries while their U-1 petition is pending, may file Form I-918, Supplement A on behalf of their spouse, even if the relationship did not exist at the time of filing the U-1 petition. USCIS will evaluate whether such marriage exists when the U-1 and U-2 petitions are adjudicated. Also, a principal petitioner may file for a stepchild or stepparent if the qualifying relationship was established after the principal petitioner filed the U-1 petition, but before it is approved. Children born after the U-1 petition is filed are eligible to accompany or follow to join the principal petitioner.
(3) (U) Unless the petitioner is the U-1 principal, confirm through PCQS that the principal petitioner is still in U-1 nonimmigrant status. You may not approve a U NIV for a qualifying family member after the U-1 nonimmigrant adjusts to LPR status unless the qualifying family member has previously held derivative U nonimmigrant status in the United States. See 9 FAM 402.6-6(H) below.
(4) (U) All ineligibilities have been waived. See 9 FAM 402.6-6(F)(2) below.
c. (U) Remember that U visa petitioners do not need to demonstrate that they have a foreign residence which they have no intention of abandoning. You therefore cannot refuse a U visa petitioner under INA 214(b) for failure to demonstrate ties to a foreign residence.
d. Unavailable
e. (U) However, you must not re-adjudicate a U nonimmigrant petition approved by USCIS or attempt to determine whether the criminal activity involved constitutes to qualifying criminal activity for Form I-918 petition approval. If USCIS has approved the I-918 petition, you may not require petitioners to provide the I-918 Supplement B and supporting evidence submitted to USCIS (these materials are also unavailable in PIMS). Previous immigration violations and criminal convictions on the part of the U-1 principal are only relevant if the principal is applying for the U-1 visa overseas, or if you have evidence that USCIS was unaware of the immigration violations or criminal convictions when they approved the I-918 petition. You must not delay issuance of derivative U visas to qualifying family members by requiring proof that USCIS waived the principal’s ineligibilities before petition approval when the U-1 principal’s status was already granted in the United States and is not being applied for overseas.
f. (U) You also must not interview the petitioner or qualifying family members about the specific details of the criminal activity, the principal’s victimhood, or the principal’s helpfulness and cooperation with law enforcement, which formed the basis of the principal’s qualification for U nonimmigrant status. Likewise, a family member’s unawareness and unfamiliarity with the qualifying criminal activity of which the principal was a victim cannot form the basis of a recommendation to revoke. You must not disclose details about the principal’s victimhood to qualifying family members because they may not know about the crime and such awareness may jeopardize the victim’s safety. For example, victims of rape in some cultures are shunned and blamed by their spouse. Thus, the victim may have intentionally not disclosed the crime to their spouse.
g. Unavailable
9 FAM 402.6-6(F)(2) (U) Waiver of Grounds of Ineligibility
(CT:VISA-1941; 03-06-2024)
a. (U) If you discover any ineligibilities, you must enter the appropriate refusal code(s), regardless of whether USCIS waives them. If USCIS has not waived all ineligibilities via Form I-192, you must inform the petitioner if a waiver is available and refuse the application under INA 221(g), pending the waiver. Waived inadmissibility grounds are listed on Form I-192 approval notices. You may find the waiver validity dates on the last page of the I-192 in PIMS. If PIMS does not yet contain the scanned Form I-192, send an email to PIMS@state.gov.
b. Unavailable
c. (U) Under the Battered Immigrant Women Protection Act of 2000 (BIWPA), the Secretary of Homeland Security has the discretion to waive any ground of ineligibility with respect to U nonimmigrant petitioners and their qualifying family members, except the ground applicable to participants in Nazi persecutions, genocide, acts of torture, or extrajudicial killings. See INA 212(d)(14). However, the Secretary of Homeland Security first must determine that such a waiver would be in the public or national interest. In addition, U petitioners may also be eligible to seek a waiver of inadmissibility under INA 212(d)(3)(A).
d. (U) DHS maintains that it has sole jurisdiction over waivers of inadmissibility for U petitioners and their qualifying family members. However, the Fourth, Seventh, and Eleventh Circuits have determined that INA 212(d)(3) permits immigration judges to waive the inadmissibility of petitioners for U nonimmigrant status. See e.g., 744 F.3d 1022 (7th Cir. 2014). Meanwhile, the Board of Immigration Appeals (BIA), as well as the Third and Ninth Circuits, have concluded that the authority for Immigration Judges to grant a waiver of inadmissibility only applies to noncitizens who are “seeking admission”, and not to those who have already lawfully entered the United States.
e. (U) If a waiver is available, you should advise the petitioner that they must file Form I-192 with USCIS and refer the petitioner to the USCIS website. The authority to waive ineligibilities for U visa petitioners rests solely with USCIS. While you cannot make a recommendation on the waiver, you may provide any derogatory information that you believe USCIS might find useful when processing waivers. Include all information in your case notes. You may also provide this information to USCIS by email: LawEnforcement_UTVAWA.VSC@uscis.dhs.gov. USCIS considers all information it has available when making decisions on waivers, including serious criminal activity by U petitioners that might create further victims if a waiver was granted.
f. (U) If no waiver is available, you must enter the appropriate refusal code(s) and return the case with an explanatory memo to USCIS, via KCC.
g. (U) Exempt from Public Charge: U visa applicants are exempt from INA 212(a)(4).
h. (U) Passport Waivers: A U visa may be placed in a Form DS-232, Unrecognized Passport or Waiver Cases, (see 9 FAM 403.9-6(B)) only in very rare circumstances. See 9 FAM 403.9-3(D). Passport waivers are most often sought for children whose biological parents are unavailable or unwilling to apply for a minor’s passport. You should collect guidance from local passport issuing authorities and family courts about procedures required of guardians or custodians to obtain passports for such children and provide this information to applicants who claim they cannot obtain passports.
9 FAM 402.6-6(G) (U) Validity, Fees, and Reciprocity
(CT:VISA-1941; 03-06-2024)
a. (U) U visa applicants are required to pay the MRV fee, as prescribed in the current Schedule of Fees, and any applicable reciprocity fees. You do not have authority to waive any fee established in the Schedule of Fees except to the extent that the Schedule itself authorizes the waiver. All exemptions are noted in the Schedule. There are no exceptions to those exemptions. Requests for MRV fee waivers, including requests from members of Congress or other government agencies, must be politely declined if the waiver is not clearly authorized by the Schedule of Fees.
b. (U) U visas must be issued for multiple entries, with an expiration date corresponding to the Reciprocity Table or the petition validity, as listed in PIMS, or the Form I-797, Notice of Action; whichever is less.
9 FAM 402.6-6(H) (U) Travel Outside the United States
(CT:VISA-1941; 03-06-2024)
a. (U) Individuals who were granted U nonimmigrant status in the United States by USCIS are not required to obtain advance parole before traveling outside of the United States. They must, however, obtain a U NIV to return to the United States.
b. (U) They also should keep in mind that if they accrued more than 180 days of unlawful presence before obtaining U nonimmigrant status, they may trigger the unlawful presence bar upon departing from the United States and be found ineligible upon their return to the United States. (There are exceptions to the unlawful presence bar. See INA 212(a)(9)(B)). If a person accorded U nonimmigrant status is ineligible under INA 212(a)(9)(B) or INA 212(a)(9)(C), they may apply for a waiver by filing Form I-192 with USCIS. See 9 FAM 402.6-6(F)(2) above. USCIS will only accept and adjudicate a Form I-192 based on ineligibility due to unlawful presence if the person has left the United States and is now seeking to return. USCIS will not accept and adjudicate Form I-192 from a person who has not yet departed from the United States and therefore has not triggered INA 212(a)(9)(B) ineligibility.
c. (U) If a U qualifying members applies for a visa for readmission to the United States, and PCQS shows the U-1 principal is no longer in U-1 status because their status has expired or was terminated, no U qualifying member visa can be issued as there is no longer a U-1 principal.
d. (U) You may issue a U visa to a qualifying family member even after the U-1 principal has adjusted status and become an LPR only if the U qualifying member was previously granted derivative U nonimmigrant status in the United States, and departs the United States to re-apply for a U visa. You may not, however, approve a first-time U visa application from a qualifying family member after the U-1 principal adjusts to LPR status.
9 FAM 402.6-6(I) (U) Maximum Stay in U Nonimmigrant Status
(CT:VISA-1941; 03-06-2024)
a. (U) INA 214(p)(6) limits the authorized period of U nonimmigrant status to not more than four years but provides for extensions in limited circumstances. See 8 CFR 214.14(g) and INA 214(p)(6).
b. (U) USCIS will admit a qualifying family member for an initial period that does not exceed the expiration date of the U-1 principal's initial period of admission. However, because the derivative U nonimmigrant must have three years of continuous physical presence in the United States and be in U nonimmigrant status when filing for adjustment of status under INA 245(m), they may request an extension of this status to accrue the requisite continuous physical presence in U nonimmigrant status to qualify for adjustment of status. USCIS may approve an extension of status for the derivative U nonimmigrant beyond the date of expiration of the U-1 nonimmigrant's status if processing of the derivative applicant's visa application was delayed and, without an extension, the qualifying family member would be unable to meet the three-year requirement under 245(m).
9 FAM 402.6-6(J) (U) Nonimmigrant Status to Legal Permanent Resident Status
(CT:VISA-1633; 09-29-2022)
(U) Section 1513(f) of the BIWPA, INA 245(m) provides DHS with discretion to adjust the temporary U nonimmigrant status to LPR status if:
(1) (U) The person is not ineligible under INA 212(a)(3)(E);
(2) (U) The person has not unreasonably refused to assist a law enforcement agency investigating or prosecuting the qualifying criminal activity;
(3) (U) The person has been physically present in the United States for a continuous period of at least three years since the date of admission as a U nonimmigrant; and
(4) (U) DHS determines that the “[noncitizen's] continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.”
9 FAM 402.6-6(K) (U) Form I-929, or “SU” Immigrant Visas
(CT:VISA-1941; 03-06-2024)
a. (U) You may not approve a U NIV for a derivative after the U-1 principal adjusts to LPR status unless the qualifying family member has previously held derivative U nonimmigrant status in the United States. See 9 FAM 402.6-6(H). Instead, you must refuse the case under INA 214(b) (however, do not give the applicant a standard 214(b) refusal letter. You may provide the INA 214(b) refusal letter for applicants who fail to qualify for reasons other than failure to show ties available in 9 FAM 403.10-3(A)(3)(b)). You must add appropriate case notes, but you do not need to send any documentation back to USCIS.
b. (U) If a U-1 principal wishes to file for follow-to-join derivatives who have never held U nonimmigrant status in the United States after adjusting to LPR status, they must file a Form I-929, Petition for Qualifying Family Member of U-1 Nonimmigrant. USCIS adjudicates the I-929 petitions and forwards them to the National Visa Center (NVC) for processing. The U-1 petitioner must demonstrate that 1) they became an LPR or have a pending Form I-485, Application to Register Permanent Residence or Adjust Status based on their status as a U-1 nonimmigrant, 2) the qualifying family member is eligible for immigrant classification based upon their relationship to the U-1 petitioner, 3) the U-1 petitioner can establish that they or the qualifying family member will suffer extreme hardship if not allowed to remain in or enter the United States, and 4) the U-1 petitioner can establish that discretion should be exercised in favor of the qualifying family member. 8 CFR 245.24(h)(1).
c. (U) After the SU beneficiaries become documentarily qualified, pay all appropriate IV fees, and schedule a visa interview, NVC will forward their petitions to IV units for processing. The SU category is not numerically limited, so there is no wait time associated with it. If approved, these relatives will follow to join their LPR relative immediately.
d. (U) SU petitioner interviews should be scheduled like other IV cases. You may not perform any SU visa processing using NIV software, as this creates inaccurate workload statistics and hinders case tracking in CCD.
e. (U) Unlike U-3 cases, there is no age-out protection for SU-3 (child) follow-to-joins. SU-3 beneficiaries must have their visa issued – and must enter the United States – before their 21st birthday. You must process SU-3 cases as quickly as possible when they are close to aging out.
f. (U) If an SU-3 ages out, you must refuse the case under INA 221(g) and add appropriate case notes. You do not need to send any documentation back to USCIS.
g. (U) All other IV requirements (medical, police certificate, etc.) must be met, except for the Form I-864, Affidavit of Support. INA 212(a)(4)(C) and (D) do not apply to these cases. Therefore, you must not require Form I-864 or Form I-864-W.
h. (U) An applicant for an SU visa does not have to show they are admissible under the grounds listed in INA 212(a), but cannot be inadmissible under INA 212(a)(3)(E). By approving the I-929, USCIS has made the determination that the petitioner has shown that the grant of the visa is necessary to avoid extreme hardship. See 8 CFR 245.24(h)(1)(v).
i. (U) If you obtain information that was not evaluated by USCIS when it adjudicated and approved Form I-929, you may choose to investigate further and contact the CA/VO/F Analyst with the S-T-U visas portfolio for additional guidance. You should not, however, suspend processing of the current petition without clear direction from CA/VO/F or L/CA.
9 FAM 402.6-6(L) (U) Revocation of U Nonimmigrant Status
(CT:VISA-1941; 03-06-2024)
Unavailable