Noncitizens who have themselves been the targeted victims of crimes and are assisting law enforcement are not the only ones who qualify to apply for U nonimmigrant status (a U visa) in order to remain in the U.S. lawfully. As described in more detail below, the Department of Homeland Security (DHS) defines a victim for U visa purposes as either a "direct" victim or an "indirect victim."
You may apply for a U visa as a direct victim if you suffered direct or so-called "proximate" harm as the victim of a qualifying criminal activity. (For more information this requirement, see U Visas for Crime Victims Assisting Law Enforcement: Who Is Eligible).
Proximate harm is not clearly defined within U.S. immigration law. However, it is broadly understood to mean that the actions of the perpetrator were a significant factor in causing harm to the victim. Regardless of whether you are a direct or indirect victim, you must have suffered substantial physical or mental harm as a result of the crime. U.S. Citizenship and Immigration Services (USCIS) decides what qualifies as "substantial" harm on a case-by-case basis.
A good example of a direct victim would be if you were battered by your spouse and suffered physical and emotional harm as a result. You would be considered a direct victim of domestic violence, which is a qualifying criminal activity for U visa purposes. Even under this simple definition of "direct victim," the person need not necessarily have been physically harmed. Attempts, conspiracy, or solicitation to commit a crime qualify as criminal activities for U visa purposes.
So, for example, a noncitizen woman could be considered the "victim" of an attempted kidnapping if a man tried to force her into his truck and she suffered serious emotional trauma as a result, but escaped without being physically harmed. She could apply for a U Visa as a direct victim because she was the victim of an attempted kidnapping and suffered harm.
USCIS may also grant U status to bystanders as direct victims if they suffered unusually severe harm as a result of having witnessed the criminal activity.
However, such bystander cases can be difficult to win without strong evidence of substantial harm. The example most often used is that of a woman who suffers a miscarriage as a result of witnessing a qualifying criminal activity.
Certain family members can apply for U visas as indirect victims when the primary victim died due to murder or manslaughter or was rendered incompetent or incapacitated and therefore cannot help the authorities with the criminal investigation.
Indirect victims still need to establish that they meet the other eligibility requirements for U status, meaning that they have been helpful, are being helpful, or will be helpful in the investigation of the crime; they suffered substantial harm as a result of the crime; and they are admissible to the U.S. or qualify for a waiver of inadmissibility.
USCIS considers the age of the victim at the time of the crime to determine who is eligible as an indirect victim. For crime victims who are age 21 or older, their spouse, as well as their children under 21 years of age, may be considered indirect victims. For victims under age 21, their parents and unmarried siblings under 18 can be considered indirect victims.
In order to understand who qualifies as an indirect victim, examples can be helpful.
Let's say that a noncitizen woman's son was murdered when he was 20 years old. The mother was traumatized by losing him, and suffered substantial emotional harm as a result. She also helped the police investigation by providing information about her son and the events that happened on the day of the murder. In this example, the mother would qualify as an indirect victim because she was the parent of a deceased victim under 21, she suffered harm as a result of the crime, and she helped in the investigation. She may still qualify even if a few years have passed since the murder, because USCIS looks at the age of the victim when the murder took place, and in this example he was 20 (provided that she can show that she continues to be helpful to law enforcement in the investigation; past helpfulness alone will likely not qualify for a U visa).
USCIS ordinarily considers minors to be "incapacitated," and therefore their family members often qualify as indirect victims.
For example, let's say an undocumented man's four-year-old daughter is born in the United States. She becomes the victim of child molestation by a caretaker. As soon as the man realized she was being abused, he reported the incident to the police, and assisted with the investigation. He suffered serious emotional harm because of what the daughter went through, especially because he was also the victim of abuse as a child. Because the daughter was born in the U.S., she does not need to apply for immigration relief. The father therefore could not be a derivative on her U status application. However, he may qualify for U status as an indirect victim, because his daughter is incapacitated due to her young age, he helped with the investigation, and he suffered harm as a result of the crime.
Remember that for both the above examples of indirect victims, the noncitizen would also have to establish that they meet the other requirements for eligibility for U status or a U visa, in particular that the person is admissible to the U.S. or qualifies for a waiver of inadmissibility.
Given that U visas are complicated to apply for, and involve a lot of procedural steps and argument regarding unique circumstances, you could make your life easier by hiring an experienced immigration attorney to handle your case. The attorney can analyze the facts and spot any potential problems, prepare the paperwork, and monitor the progress toward approval.
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