[Federal Register: September 17, 2007 (Volume 72, Number 179)]
[Rules and Regulations]
[Page 53013-53042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se07-13]
[[Page 53013]]
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Part IV
Department of Homeland Security
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8 CFR Parts 103, 212, et al.
New Classification for Victims of Criminal Activity; Eligibility for
``U'' Nonimmigrant Status; Interim Rule
[[Page 53014]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 212, 214, 248, 274a and 299
[CIS No. 2170-05; DHS Docket No. USCIS-2006-0069]
RIN 1615-AA67
New Classification for Victims of Criminal Activity; Eligibility
for ``U'' Nonimmigrant Status
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends Department of Homeland Security
regulations to establish the requirements and procedures for aliens
seeking U nonimmigrant status. The U nonimmigrant classification is
available to alien victims of certain criminal activity who assist
government officials in investigating or prosecuting such criminal
activity. The purpose of the U nonimmigrant classification is to
strengthen the ability of law enforcement agencies to investigate and
prosecute such crimes as domestic violence, sexual assault, and
trafficking in persons, while offering protection to alien crime
victims in keeping with the humanitarian interests of the United
States.
This interim rule outlines the eligibility and application
requirements for the U nonimmigrant classification and the benefits and
limitations relating to those granted U nonimmigrant status. This
interim rule also amends existing regulations to include U
nonimmigrants among the nonimmigrant status holders able to seek a
waiver of documentary requirements to gain admission to the United
States, and to permit nonimmigrants to change status to that of a U
nonimmigrant where applicable. This rule also establishes a filing fee
for U nonimmigrant petitions.
Aliens who have been granted interim relief from USCIS are
encouraged to file for U nonimmigrant status within 180 days of the
effective date of this interim rule. USCIS will no longer issue interim
relief upon the effective date of this rule; however, if the alien has
properly filed a petition for U nonimmigrant status, but USCIS has not
yet adjudicated that petition, interim relief will be extended until
USCIS completes its adjudication of the petition.
DATES: Effective date. This rule is effective October 17, 2007.
Comment date. Written comments must be submitted on or before
November 16, 2007.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2006-0069 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Chief, Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To
ensure proper handling, please reference DHS Docket No. USCIS-2006-0069
on your correspondence. This mailing address may also be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Regulatory Management Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529. Contact Telephone Number (202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Laura Dawkins, U.S. Citizenship and
Immigration Services, Department of Homeland Security, 111
Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone:
(202) 272-8350.
SUPPLEMENTARY INFORMATION: This supplemental information section is
organized as follows:
I. Public Participation
II. Background and Legislative Authority
III. Analysis of Requirements and Procedures Under This Interim Rule
A. Eligibility Requirements for U Nonimmigrant Status
1. Victims of Qualifying Criminal Activity Who Have Suffered
Physical or Mental Abuse
2. Possession of Information Concerning the Qualifying Criminal
Activity
3. Helping Law Enforcement in the Investigation or Prosecution
of Criminal Activity
4. Criminal Activity That Violated U.S. Law or Occurred in the
United States
B. Application Process
1. Filing the Petition to Request U Nonimmigrant Status
2. Initial Evidence
3. Derivative Family Members
4. Designations
C. Adjudication and Post-Adjudication
1. Credible Evidence
2. Prohibitions on Disclosure of Information
3. Annual Numerical Limitation on Grants of U Nonimmigrant
Status
4. Decision on Petitions
5. Benefits for U Nonimmigrants
6. Travel Outside the United States
7. Revocation of U Nonimmigrant Status
8. Removal Proceedings
D. Filing and Biometric Services Fees
IV. Regulatory Requirements
A. Administrative Procedure Act
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Regulatory Enforcement Fairness Act of 1996
E. Executive Order 12866 (Regulatory Planning and Review)
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Paperwork Reduction Act
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim rule. U.S. Citizenship and Immigration Services (USCIS) also
invites comments that relate to the economic, environmental, or
federalism effects that might result from this interim rule. Comments
that will provide the most assistance to USCIS in developing these
procedures will reference a specific portion of the interim rule,
explain the reason for any recommended change, and include data,
information, or authority that support such recommended change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2006-0069. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received go to http://www.regulations.gov. Submitted comments
may also be inspected at the Regulatory Management Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.
II. Background and Legislative Authority
Congress created the U nonimmigrant classification in the Battered
Immigrant Women Protection Act of 2000 (BIWPA). See Victims of
Trafficking and Violence Protection Act of 2000, div. B, Violence
Against Women Act of 2000, tit. V, Battered Immigrant Women Protection
Act of 2000, Pub. L. 106-386, sec. 1513, 114 Stat. 1464, 1533-37
(2000), amended by Violence Against Women and Department of Justice
Reauthorization Act of 2005 (VAWA 2005), tit. VIII, Pub. L. 109-162,
119 Stat. 2960 (2006), amended by Violence Against Women and Department
of Justice Reauthorization Act--Technical Corrections, Pub. L. 109-271,
120 Stat. 750 (2006). Alien victims may not have legal status and,
therefore may be reluctant to help in the investigation or prosecution
of criminal activity for fear of removal from the United States. In
[[Page 53015]]
passing this legislation, Congress intended 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 offering protection to victims of such crimes. See BIWPA,
sec. 1513(a)(2)(A). Congress also sought to encourage law enforcement
officials to better serve immigrant crime victims. Id.
The U nonimmigrant classification was established under section
1513(b) of the BIWPA. Notwithstanding the title of the legislation, the
U nonimmigrant classification is available to qualified victims of
crimes, without regard to gender. The U nonimmigrant classification
provides temporary immigration benefits to certain victims of criminal
activity who: (1) Have suffered substantial mental or physical abuse as
a result of having been a victim of criminal activity; (2) have
information regarding the criminal activity; and (3) assist government
officials in the investigation and prosecution of such criminal
activity. USCIS can only grant U nonimmigrants status to 10,000
principal aliens in each fiscal year. See INA sec. 214(p)(2), 8 U.S.C.
1184 (p)(2). (Note: this number does not include persons eligible for U
nonimmigrant derivative status--e.g. spouses, children, or parents of
applicants--as discussed in Section III. C. of this rule below).
Aliens granted U nonimmigrant status can remain in the United
States for a period of up to four years, with possible extensions upon
certification of need by certain government officials. INA sec.
214(p)(6), 8 U.S.C. 1184(p)(6). Section 1513(f) of the BIWPA provides
DHS with discretion to convert the temporary U nonimmigrant status to
permanent resident status if (1) the alien 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 (2) DHS determines
that the ``alien's continued presence in the United States is justified
on humanitarian grounds, to ensure the family unity, or is otherwise in
the public interest.''
To qualify for the U nonimmigrant classification:
The alien must have suffered substantial physical or
mental abuse as a result of having been a victim of qualifying criminal
activity;
The alien must be in possession of information about the
criminal activity of which he or she has been a victim;
The alien must be of assistance to a Federal, State, or
local law enforcement official or prosecutor, a Federal or State judge,
the Department of Homeland Security (DHS), or other Federal, State, or
local authority investigating or prosecuting criminal activity; and
The criminal activity must have violated U.S. law or
occurred in the United States (including Indian country and military
installations) or the territories and possessions of the United States.
INA sec. 101(a)(15)(U)(i), 8 U.S.C. 1101(a)(15)(U)(i). Qualifying
criminal activity is defined by statute to be ``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; 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; or attempt, conspiracy, or
solicitation to commit any of the above mentioned crimes[.]''
Id.,(iii). The list of qualifying crimes represents the myriad types of
behavior that can constitute domestic violence, sexual abuse, or
trafficking, or are crimes of which vulnerable immigrants are often
targeted as victims.
U nonimmigrant status can also extend to certain family members of
the alien victim. If the alien victim is under 21 years of age, the
victim's spouse, children, unmarried siblings under 18 years of age,
and the victim's parents may qualify for U nonimmigrant status. INA
sec. 101(a)(15)(U)(ii)(I), 8 U.S.C. 1101(a)(15)(U)(ii)(I). If the alien
victim is 21 years of age or older, his or her spouse and children may
also qualify for U nonimmigrant status. INA sec. 101(a)(15)(U)(ii)(II),
8 U.S.C. 1101(a)(15)(U)(ii)(II).
Aliens applying for U nonimmigrant status must provide a
certification from a Federal, State or Local law enforcement official
demonstrating that the applicant ``has been helpful, is being helpful,
or is likely to be helpful'' in the investigation or prosecution of the
qualifying criminal activity. INA sec. 214(o), 8 U.S.C. 1184(o). The
BIWPA further directs DHS to provide aliens who are eligible for U
nonimmigrant status with referrals to nongovernmental organizations
(NGOs) to advise the aliens regarding their options in the United
States. Id. Further, USCIS is required to provide U nonimmigrants with
employment authorization. Id.
Section 1513(e) of the BIWPA amended section 212(d) of the INA, 8
U.S.C. 1182(d), to provide for a waiver of inadmissibility if the
Secretary of Homeland Security determines that such a waiver is in the
public or national interest.\1\ Finally, the BIWPA added a new
paragraph (1)(E) to 8 U.S.C. 1367(a) to prohibit adverse determinations
of admissibility or deportability and disclosure of information
pertaining to an alien seeking U nonimmigrant status, except in certain
circumstances. BIWPA sec. 1513(d) (amending section 384(a) of the
Illegal Immigration and Immigrant Reform Act (IIRIRA), div. C of the
Omnibus Appropriations Act of 1996, Pub. L. 104-208, 110 Stat. 3009
(1996)).
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\1\ Unless waived, a ground of inadmissibility can preclude an
alien from receiving nonimmigrant status. 8 CFR 214.1(a)(3). Section
212(a) of the INA, 8 U.S.C. 1182(a), contains a list of the grounds
of inadmissibility.
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Following passage of the BIWPA in October 2000, USCIS implemented
procedures to ensure that those aliens who appeared to be eligible for
U nonimmigrant status under the BIWPA would not be removed from the
United States until they had an opportunity to apply for such status.
See e.g., Memorandum from Michael D. Cronin, Acting Executive Associate
Commissioner, Office of Field Operations, Immigration and
Naturalization Service (Aug. 30, 2001); Memorandum from William R.
Yates, Associate Director of Operations, USCIS, Centralization of
Interim Relief for U Nonimmigrant Status Applicants (Oct. 8, 2003)
(http://www.uscis.gov/graphics/services/tempbenefits/antitraf.htm);
Memorandum from William R. Yates, Associate Director of Operations,
USCIS, Assessment of Deferred Action in Requests for Interim Relief
from U Nonimmigrant Status Eligible Aliens in Removal Proceedings (May
6, 2004) (http://www.uscis.gov/graphics/services/tempbenefits/antitraf.htm
).\2\ Alien victims who may be eligible for U nonimmigrant
status were given the opportunity to ask USCIS for interim relief
pending the promulgation of implementing regulations. Family members
seeking to derive immigration benefits from such aliens were accorded
the same treatment. Interim relief provides alien victims with parole,
stays of removal, or assessed deferred action, as well as an
opportunity to apply for employment authorization.\3\
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\2\ Copies of these documents are accessible on the public
docket for this rulemaking at http://www.regulations.gov, Docket Number
USCIS-2006-0069.
\3\ Parole is permission given by DHS that allows an alien to
physically enter the United States temporarily for urgent
humanitarian reasons or significant public benefit; the entry is not
deemed to be an admission to the United States. INA 212(d)(5)(A), 8
U.S.C. 1182(d)(5)(A); 8 CFR 212.5. A stay of deportation or removal
is an administrative decision to stop temporarily the deportation or
removal of an alien who has been ordered deported or removed from
the United States. See 8 CFR 241.6; 8 CFR 1241.6. Deferred action is
an exercise of prosecutorial discretion that defers the removal of
the alien based on the alien's case being made a lower priority for
removal. Immigration and Customs Enforcement, Department of Homeland
Security, Detention and Deportation Officer's Field Manual, ch. 20.8
(2005). Deferred action does not confer any immigration status upon
an alien.
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[[Page 53016]]
III. Analysis of Requirements and Procedures Under This Interim Rule
To implement the BIWPA and its creation of the U nonimmigrant
classification, this interim rule outlines the eligibility and
application requirements for the U nonimmigrant classification and the
benefits and limitations relating to those granted U nonimmigrant
status. Specifically, this interim rule provides definitions of
relevant terms contained in the BIWPA and establishes procedures and
standards for adjudicating petitions for U nonimmigrant status. It also
describes the filing procedures and adjudication standards for
applications for the waiver of inadmissibility created by the BIWPA
that is available to those seeking U nonimmigrant status. New 8 CFR
212.17. The rule amends 8 CFR 212.1 to include U nonimmigrant status
recipients among the nonimmigrant status holders able to seek a waiver
of documentary requirements to gain admission to the United States.
This rule also amends 8 CFR 248.2 to permit nonimmigrants to change
status to that of a U nonimmigrant; 8 CFR 274a.12(a) to add U
nonimmigrant status recipients to the list of aliens authorized to
accept employment; 8 CFR 274a.13(a) to require an application to be
filed for certain U nonimmigrants seeking evidence of employment
authorization; 8 CFR 299.1 to prescribe the petition form for U
nonimmigrant status; and 8 CFR 103.7 to prescribe the filing fee for U
nonimmigrant petitions.
As discussed below, USCIS encourages petitioners and accompanying
or following to join family members who have been granted interim
relief to file Form I-918 within 180 days of the effective date of this
rule. After the effective date of this rule, the interim relief process
will no longer be in effect, and USCIS will not consider initial
requests for interim relief. After the 180-day time period, USCIS will
reevaluate previous grants of deferred action, parole, and stays of
removal and terminate such interim relief for those aliens who fail to
file Form I-918 within the 180-day time period. However, if the alien
has properly filed a Form I-918, but USCIS has not yet adjudicated that
petition, interim relief will be extended until USCIS completes its
adjudication of Form I-918.
A. Eligibility Requirements for U Nonimmigrant Status
There are four statutory eligibility requirements for U
nonimmigrant status, the alien (1) Has suffered physical or mental
abuse as a result of having been a victim of certain criminal activity;
(2) possesses information concerning such criminal activity; (3) has
been helpful, is being helpful or is likely to be helpful in the
investigation or prosecution of the crime; and (4) the criminal
activity violated the laws of the United States or occurred in the
United States. This section of the Supplementary Information describes
each statutory eligibility requirement for U nonimmigrant status and
this rule's implementation of each requirement.
1. Victims of Qualifying Criminal Activity Who Have Suffered Physical
or Mental Abuse
The first eligibility requirement for U nonimmigrant status is that
the alien must have suffered substantial physical or mental abuse as a
result of having been a victim of qualifying criminal activity. INA
sec. 101(a)(15)(U)(i)(I), 8 U.S.C. 1101(a)(15)(U)(i)(I). This interim
rule defines the following terms that relate to this eligibility
requirement: Victims of qualifying criminal activity, physical or
mental abuse, and qualifying crime or qualifying criminal activity. New
8 CFR 214.14(a). These definitions are discussed below.
a. Victims of Qualifying Criminal Activity
The meaning of ``victim of qualifying criminal activity'' is
provided by new 8 CFR 214.14(a)(14). Within this definition, the rule
provides for indirect victims of the criminal activities in the case of
deceased victims of murder and manslaughter and victims of violent
criminal activity who are incapacitated or incompetent. See new 8 CFR
214.14(a)(14)(i). The definition also clarifies how victims of witness
tampering, obstruction of justice, and perjury can constitute victims
of qualifying criminal activity. See new 8 CFR 214.14(a)(14)(ii). This
interim rule also excludes alien victims who are themselves culpable of
criminal activity from the definition of victim, subject to certain
exceptions. See 8 CFR 214.14(a)(14)(iii).
(i) Direct Victims
This rule generally defines ``victim of qualifying criminal
activity'' as an alien who is directly and proximately harmed by
qualifying criminal activity. 8 CFR 214.14(a)(14). To formulate the
general definition, USCIS drew from established definitions of
``victim.'' Federal statutory provisions consistently define ``victim''
as one who has suffered direct harm or who is directly and proximately
harmed as a result of the commission of a crime. See e.g., 42 U.S.C.
10603(c) (relating to terrorism); 18 U.S.C. 3663(a)(2) (relating to
restitution); 18 U.S.C. 3771(e) (relating to crime victim rights); Fed.
R. Crim. P. 32(a)(2) (defining victim for sentencing purposes); see
also United States v. Terry, 142 F.3d 702, 710-11 (4th Cir. 1998)
(reviewing the possible definitions of ``victim''). The Department of
Justice's (DOJ's) Attorney General Guidelines for Victim and Witness
Assistance (AG Guidelines) adopts a similar definition of the term
``victim.'' See Attorney General Guidelines for Victim and Witness
Assistance at 9 (May 2005) (http://www.ojp.usdoj.gov/ovc/publications/welcome.html
). The AG Guidelines serve to guide federal investigative,
prosecutorial, and correctional agencies in the treatment of crime
victims and, therefore, were viewed by USCIS as an informative resource
in the development of this rule's definition of victim.\4\
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\4\ The AG Guidelines, and some of the aforementioned statutes,
also include pecuniary crimes within the scope of qualifying
activities. The BIWPA, however, limits the qualification
requirements to aliens who suffer substantial physical or mental
abuse and did not expressly reference pecuniary crimes. Therefore,
pecuniary crimes are not included as qualifying criminal activities
for U nonimmigrant status. In addition, the AG Guidelines include
business entities in the definition of ``victim.'' USCIS, however,
only grants non-immigrant status to individuals, not to business
entities and therefore limits the definition of ``victim'' under
this rule to persons.
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The AG Guidelines also state that individuals whose injuries arise
only indirectly from an offense are not generally entitled to rights or
services as victims. AG Guidelines at 10. The AG Guidelines, however,
provide DOJ personnel discretion to treat as victims bystanders who
suffer unusually direct injuries as victims. USCIS does not anticipate
approving a significant number of applications from bystanders, but
will exercise its discretion on a case-by-case basis to treat
bystanders as victims where that bystander suffers an unusually direct
injury as a result of a qualifying crime. An example of an unusually
direct injury suffered by a bystander would be a pregnant
[[Page 53017]]
bystander who witnesses a violent crime and becomes so frightened or
distraught at what occurs that she suffers a miscarriage.
(ii) Indirect Victims
USCIS believes that the U nonimmigrant classification contemplates
encompassing certain indirect victims in addition to direct victims.
This is because the list of qualifying criminal activity at section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), includes
the crimes of murder and manslaughter, the direct targets of which are
deceased. The list also includes witness tampering, obstruction of
justice, and perjury, which are not crimes against a person. Therefore,
this rule extends the definition of victim beyond the direct victim of
qualifying criminal activity in certain circumstances. See new 8 CFR
214.14(a)(14)(i) & (ii).
The AG Guidelines also cover those persons who are not direct
victims of a crime where the direct victim is deceased as a result of
the qualifying crime (e.g. murder or manslaughter), incompetent or
incapacitated, or under the age of 18. AG Guidelines, at 9. In these
situations, the direct victim is not available or sufficiently able to
help in an investigation or prosecution of the criminal activity. Id.
The AG Guidelines list such indirect victims to be a spouse, legal
guardian, parent, child, sibling, another family member, or another
person designated by the court. Id. Under the AG Guidelines, however,
only the first available person on the list is eligible to be
considered a victim. Id. For instance, the parent of a murder victim is
only considered a victim if his or her child is unmarried. The spouse,
as the first person on the list, would be deemed the victim.
Drawing from the AG Guidelines in conjunction with the U
classification statutory provision describing qualifying family members
(section 101(a)(15)(U)(ii) of the INA, 8 U.S.C. 1101(a)(15)(U)(ii)),
this rule extends the victim definition to the following list of
indirect victims in the case of murder, manslaughter, or incompetent or
incapacitated victims: Spouses; children under 21 years of age; \5\
and, if the direct victim is or was under 21 years of age, parents and
unmarried siblings under 18 years of age. See new 8 CFR
214.14(a)(14)(i). This rule does not extend the victim definition
beyond these family members since the U nonimmigrant classification
does not apply to other individuals. Unlike the AG Guidelines, the rule
does not restrict the victim definition only to the first available
person on the list of indirect victims. USCIS has determined that such
a restrictive definition of victim would not adequately serve the
purpose behind the U nonimmigrant classification. Family members of
murder, manslaughter, incompetent, or incapacitated victims frequently
have valuable information regarding the criminal activity that would
not otherwise be available to law enforcement officials because the
direct victim is deceased, incapacitated, or incompetent. By extending
the victim definition to include certain family members of deceased,
incapacitated, or incompetent victims, the rule encourages these family
members to fully participate in the investigation or prosecution.
Extending immigration benefits only to the first available person on
the AG Guidelines list could separate families and lead to anomalous
results. For example, in the case of a mother who is murdered and
leaves behind her husband and young children, extending benefits only
to the husband, as the first person on the list, could leave minor
children without U nonimmigrant status protection.
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\5\ Qualifying children also must be unmarried. See INA sec.
101(b), 8 U.S.C. 1101(b).
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USCIS notes, however, that while family members on the list of
indirect victims under this rule may apply for U nonimmigrant status in
their own right as principal petitioners, there is no requirement that
they do so. For example, in the scenario described above of a mother
who is murdered and leaves behind a husband and minor children, the
husband and minor children could each apply as principal petitioners.
In the alternative, the husband could file as a principal petitioner
and the children could be included as family members on his petition,
as will be discussed later in this Supplementary Information. Likewise,
the children potentially could be principal petitioners and their
father (the husband of the deceased), could be included as a family
member on one of the children's petitions. Family members who are
recognized as indirect victims and, therefore, eligible to apply for U
nonimmigrant status as principal petitioners must meet all of the
eligibility requirements that the direct victim would have had to meet
in order to be accorded U nonimmigrant status.
In the case of witness tampering, obstruction of justice, or
perjury, the interpretive challenge for USCIS was to determine whom the
BIWPA was meant to protect, given that these criminal activities are
not targeted against a person. USCIS looked to the purpose of the
BIWPA--to encourage cooperation with criminal investigations and
protect vulnerable victims (BIWPA sec. 1502)--and to the federal
definitions of the term ``victim.'' As discussed above, in order to be
classified as a victim under Federal law, an individual must suffer
direct and proximate harm. Therefore, USCIS considered which categories
of people would suffer direct and proximate harm from witness
tampering, obstruction of justice, and perjury. USCIS identified one
such category as individuals who are harmed when a perpetrator commits
one of the three crimes in order to avoid or frustrate the efforts of
law enforcement authorities. USCIS identified another such category as
individuals who are harmed when the perpetrator uses the legal system
to exploit or impose control over them.
Accordingly, this rule provides that a victim of witness tampering,
obstruction of justice, or perjury is an alien who has been directly
and proximately harmed by the perpetrator of one of these three crimes,
where there are reasonable grounds to conclude that the perpetrator
principally committed the offense as a means: (1) To avoid or frustrate
efforts to investigate, arrest, prosecute, or otherwise bring him or
her to justice for other criminal activity; or (2) to further his or
her abuse or exploitation of or undue control over the alien through
manipulation of the legal system. New 8 CFR 214.14(a)(14)(ii). In
developing this definition, USCIS considered whether or not the
criminal activity of witness tampering, obstruction of justice, or
perjury must have been committed in relation to one of the other
qualifying crimes listed in the statute. However, the text of section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), listing
qualifying criminal activity explicitly states that the criminal
activity must involve ``one or more'' of the 27 categories of crimes
listed. USCIS reads the phrase ``one or more'' to mean that each of the
crimes listed thereafter may qualify independently. Therefore, this
rule does not require such a nexus.
(iii) Culpability of the Victim
This rule excludes a person who is culpable for the qualifying
criminal activity being investigated or prosecuted from being deemed a
victim. See new 8 CFR 214.14(a)(14)(iii). Although the statutory
provision at section 101(a)(15)(U)(i) of the INA, 8 U.S.C.
1101(a)(15)(U)(i), describing who qualifies as a U nonimmigrant neither
explicitly covers nor explicitly excludes culpable persons, USCIS
believes that this exclusion is warranted.
[[Page 53018]]
This exclusion does not apply to an alien who committed a crime
other than the one under investigation or prosecution, even if the
crimes are related. For instance, an alien who agrees to be smuggled
into the United States, but is then held in involuntary servitude may
still be deemed to be a victim of involuntary servitude even though he
or she also may be culpable in the smuggling crime and for illegally
entering the United States. USCIS has concluded that, while it is
reasonable to exclude culpable individuals from being defined as a
victim, it is not reasonable to exclude individuals simply based on any
criminal activity in which they may have at one time engaged. USCIS
notes that this approach of distinguishing between those who are
culpable for the qualifying crime and those who are culpable for other
crimes is supported by the AG Guidelines. See AG Guidelines, at 10.
b. Physical or Mental Abuse
This rule defines physical or mental abuse to mean injury or harm
to the victim's physical person, or harm to or impairment of the
emotional or psychological soundness of the victim. New 8 CFR
214.14(a)(8). In considering how to define the term physical or mental
abuse, USCIS examined existing regulations that use similar terms. In
particular, USCIS looked to regulations promulgated following the
enactment of VAWA 1994 that allow battered spouses and children of U.S.
citizens and lawful permanent residents to seek immigration status. See
8 CFR 204.2(c), 216.5(e)(3). These regulations use the terms
``battery'' and ``extreme cruelty'' to refer to any act or threatened
act of violence that results in physical or mental injury. See 8 CFR
204.2(c)(2)(vi); 8 CFR 216.5(e)(3)(i). Battery and extreme cruelty are
terms that the regulations use interchangeably with the term ``abuse.''
See 8 CFR 204.2(c)(1)(vi); (2)(iv); 216.5(e)(3)(i); and
216.5(e)(3)(iii).
The term, ``physical or mental abuse,'' encompasses a wide range of
physical or mental harm. Section 101(a)(15)(U)(i)(I) of the INA, 8
U.S.C. 1101(a)(15)(U)(i)(I), which establishes this as a requirement,
qualifies ``physical or mental abuse'' with the term, ``substantial.''
The statutory provision does not make clear, however, whether the
standard of ``substantial'' physical or mental abuse is intended to
address the severity of the injury suffered by the victim, or the
severity of the abuse inflicted by the perpetrator. USCIS has concluded
that it is reasonable to consider both. Rather than define what
constitutes abuse that is ``substantial,'' however, USCIS believes that
a better approach would be to make case-by-case determinations, using
factors as guidelines.
This rule lists a number of factors USCIS will consider when
determining whether the physical or mental abuse at issue qualifies as
substantial. New 8 CFR 214.14(b)(1). These factors are: The nature of
the injury inflicted or suffered; the severity of the perpetrator's
conduct; the severity of the harm suffered; the duration of the
infliction of the harm; and the extent to which there is permanent or
serious harm to the appearance, health, or physical or mental soundness
of the victim. Through these factors, USCIS will be able to evaluate
the kind and degree of harm suffered by the individual applicant based
upon that applicant's individual experience. No single factor is a
prerequisite to establish that the abuse suffered was substantial.
Also, the existence of one or more of the factors does not
automatically create a presumption that the abuse suffered was
substantial.
USCIS recognizes the possibility that some victims will have a pre-
existing physical or mental injury or condition at the time of the
abuse. In evaluating whether the harm is substantial, this rule
requires USCIS to consider the extent to which any pre-existing
conditions were aggravated. Id. Some abuse may involve a series of acts
or occur repeatedly over a period of time. USCIS will consider the
abuse in its totality to determine whether the abuse is substantial. A
series of acts taken together may be considered to constitute
substantial physical or mental abuse even where no single act alone
rises to that level. Id.
c. Qualifying Criminal Activity
The statutory list of qualifying criminal activity in section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), is not a
list of specific statutory violations, but instead a list of general
categories of criminal activity. It is also a non-exclusive list. Any
similar activity to the activities listed may be a qualifying criminal
activity. This interim rule adopts the statutory list of criminal
activity and further defines what constitutes ``any similar activity.''
See new 8 CFR 214.14(a)(9). The rule provides that for a criminal
activity to be deemed similar to one specified on the statutory list,
the similarities must be substantial. USCIS bases this definition on
the fact that the statutory list of criminal activity is not composed
of specific statutory violations. Instead, the criminal activity listed
is stated in broad terms. The rule's definition of ``any similar
activity'' takes into account the wide variety of state criminal
statutes in which criminal activity may be named differently than
criminal activity found on the statutory list, while the nature and
elements of both criminal activities are comparable. In addition,
qualifying criminal activity may occur during the commission of non-
qualifying criminal activity. For varying reasons, the perpetrator may
not be charged or prosecuted for the qualifying criminal activity, but
instead, for the non-qualifying criminal activity. For example, in the
course of investigating Federal embezzlement and fraud charges, the
investigators discover that the perpetrator is also abusing his wife
and children, but because there are no applicable Federal domestic
violence laws, he is charged only with non-qualifying Federal
embezzlement and fraud crimes.
2. Possession of Information Concerning the Qualifying Criminal
Activity
In passing the BIWPA, Congress wanted to encourage aliens who are
victims of criminal activity to report the criminal activity to law
enforcement and fully participate in the investigation and prosecution
of the perpetrators of such criminal activity. BIWPA sec.
1513(a)(1)(B). The second eligibility requirement for U nonimmigrant
status is that the alien must possess information about the qualifying
criminal activity of which he or she is a victim. INA sec.
101(a)(15)(U)(i)(II), 8 U.S.C. 1101(a)(15)(U)(i)(II). This rule adopts
this statutory requirement at new 8 CFR 214.14(b)(2). Possessing
information about a crime of which the alien is not a direct or
indirect victim would not satisfy this requirement and, therefore, is
not included in the rule.
USCIS will consider an alien victim to possess information
concerning qualifying criminal activity of which he or she was a victim
if he or she has knowledge of the details (i.e., specific facts)
concerning the criminal activity that would assist in the investigation
or prosecution of the criminal activity. See new 8 CFR 214.14(b)(2).
The findings that Congress expressed in sections 1513(a)(1) and (2) of
the BIWPA make clear that the intent behind the creation of U
nonimmigrant status was to facilitate the investigation and prosecution
of criminal activity of which immigrants are targets while providing
protection for victims of such criminal activity. USCIS believes that,
to give effect to congressional intent, the information that the alien
must possess must be related to the crime of which he or she is a
victim. If not, the stated purpose of the statute is thwarted.
Possession of information concerning
[[Page 53019]]
the criminal activity necessarily means that the alien must have
knowledge of it.
When the alien victim is under 16 years of age, the statute does
not require him or her to possess information regarding the qualifying
criminal activity. Rather, the parent, guardian, or next friend of the
alien victim may possess that information if the alien victim does not.
INA sec. 101(a)(15)(U)(i)(II), 8 U.S.C. 1101(a)(15)(U)(i)(II). This
rule reiterates this exception at new 8 CFR 214.14(b)(2). This
provision specifies that the age of the alien victim on the day on
which an act constituting an element of the qualifying criminal
activity first occurred is the applicable age to consider for purposes
of establishing whether the exception is triggered. The purpose of the
exception is to allow for alternative mechanisms for possessing
information when a child is at an age where he or she may be too young
to adequately understand and relay traumatic and sensitive information.
As such, USCIS believes that the date on which the qualifying criminal
activity began is the appropriate date for triggering this exception.
The rule also permits a parent, guardian, or next friend to provide
information when the alien victim is incapacitated or incompetent. New
8 CFR 214.14(b)(2). Permitting certain family members or guardians to
act in lieu of incapacitated or incompetent victims is supported by the
AG Guidelines, at 9.
This rule also defines the term ``next friend.'' New 8 CFR
214.14(a)(7). An individual will qualify as a next friend under this
rule if he or she appears in a lawsuit to act for the benefit of an
alien who is under the age of 16 or who is incapacitated or
incompetent. See Whitmore v. Arkansas, 495 U.S. 149, 163-4 (1990)
(describing next friend as someone dedicated to the best interests of
the individual who cannot appear on his or her own behalf because of
inaccessibility, mental incompetence, or other disability). The next
friend is not a party to the legal proceeding and is not appointed as a
guardian.
3. Helping Law Enforcement in the Investigation or Prosecution of
Criminal Activity
The third eligibility requirement for U nonimmigrant status is that
the alien victim of qualifying criminal activity (or, in the case of an
alien child under the age of 16, the parent, guardian, or next friend
of the alien) has been, is being, or is likely to be helpful to a
government official or authority in the investigation or prosecution of
the qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(III), 8
U.S.C. 1101(a)(15)(U)(i)(III). This requirement is set forth in new 8
CFR 214.14(b)(3), which further provides that the alien victim cannot
refuse or fail to provide reasonably requested information and
assistance in order to remain eligible for U nonimmigrant status. The
rule also provides for alien victims who are incompetent or
incapacitated. Additionally, this rule provides that the official or
authority receiving the assistance be a ``certifying agency,'' as
defined in new 8 CFR 214.14(a)(2).
a. Helpfulness
USCIS interprets ``helpful'' to mean assisting law enforcement
authorities in the investigation or prosecution of the qualifying
criminal activity of which he or she is a victim. USCIS is excluding
from eligibility those alien victims who, after initiating cooperation,
refuse to provide continuing assistance when reasonably requested. New
8 CFR 214.14(b)(3). USCIS believes that the statute imposes an ongoing
responsibility on the alien victim to provide assistance, assuming
there is an ongoing need for the applicant's assistance. USCIS bases
this interpretation on the plain text of the statutory provision that
sets forth this requirement. See INA sec. 101(a)(15)(U)(i)(III), 8
U.S.C. 1101(a)(15)(U)(i)(III). The requirement was written with several
verb tenses, recognizing that an alien may apply for U nonimmigrant
status at different stages of the investigation or prosecution. By
allowing an individual to petition for U nonimmigrant status upon a
showing that he or she may be helpful at some point in the future,
USCIS believes that Congress intended for individuals to be eligible
for U nonimmigrant status at the very early stages of an investigation.
This suggests an ongoing responsibility to cooperate with the
certifying official while in U nonimmigrant status. If the alien victim
only reports the crime and is unwilling to provide information
concerning the criminal activity to allow an investigation to move
forward, or refuses to continue to provide assistance to an
investigation or prosecution, the purpose of the BIWPA is not
furthered. See BIWPA sec. 1513(a)(2).
In addition, in order to qualify for permanent resident status on
the basis of the U nonimmigrant classification, the alien must not have
unreasonably refused to provide assistance in a criminal investigation
or prosecution. INA sec. 245(m)(1), 8 U.S.C. 1255(m)(1). This
requirement further suggests an ongoing responsibility to cooperate
with the certifying official while in U nonimmigrant status.
An exception to the helpfulness requirement applies to alien
victims who are under 16 years of age. Such alien victims can satisfy
the helpfulness requirement if their parent, guardian, or next friend
provides the required assistance. INA sec. 101(a)(15)(U)(i)(III), 8
U.S.C. 1101(a)(15)(U)(III). This exception is the same exception
applicable to the previous requirement that the alien victim possess
information regarding the criminal activity. See new 8 CFR
214.14(b)(2). This rule reiterates the exception with respect to the
helpfulness requirement at new 8 CFR 214.14(b)(3). The provision
specifies that the age of the victim on the day on which an act
constituting an element of the qualifying criminal activity first
occurred is the applicable age to consider for purposes of establishing
whether the exception is triggered. New 8 CFR 214.14(b)(3). It also
extends the exception to individuals who are incapacitated or
incompetent and allows a parent, guardian, or next friend to be helpful
in those instances. Id.
b. Certifying Agency
This rule requires that the assistance in the investigation or
prosecution of qualifying criminal activity be provided to a
``certifying agency.'' As discussed later in this Supplementary
Information, an alien victim must include a certification from such
agency in support of his or her request for U nonimmigrant status. INA
sec. 214(p)(1), 8 U.S.C. 1184(p)(1).
A ``certifying agency'' is one of the government officials and
entities identified in the statute that is investigating or prosecuting
qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(III), 8 U.S.C.
1101(a)(15)(U)(i)(III). The rule defines a ``certifying agency'' as a
Federal, State, or local law enforcement agency, prosecutor, judge, or
other authority, that has responsibility for the investigation or
prosecution of the qualifying criminal activities designated in the
BIWPA. New 8 CFR 214.14(a)(2). This includes traditional law
enforcement branches within the criminal justice system. However, USCIS
also recognizes that other agencies, such as child protective services,
the Equal Employment Opportunity Commission, and the Department of
Labor, have criminal investigative jurisdiction in their respective
areas of expertise. The rule specifies these agencies. See id.
[[Page 53020]]
The rule provides that the term ``investigation or prosecution,''
used in the statute and throughout the rule, includes the detection or
investigation of a qualifying crime or criminal activity, as well as
the prosecution, conviction, or sentencing of the perpetrator of such
crime or criminal activity. New 8 CFR 214.14(a)(5). Referring to the AG
Guidelines, USCIS is defining the term to include the detection of
qualifying criminal activity because the detection of criminal activity
is within the scope of a law enforcement officer's investigative
duties. AG Guidelines, at 22-23. Also referring to the AG Guidelines,
USCIS is defining the term to include the conviction and sentencing of
the perpetrator because these extend from the prosecution. Id. at 26-
27. Moreover, such inclusion is necessary to give effect to section
214(p)(1) of the INA, 8 U.S.C. 1184(p)(1), which permits judges to sign
certifications on behalf of U nonimmigrant status applications. INA
sec. 214(p)(1), 8 U.S.C. 1184(p)(1). Judges neither investigate crimes
nor prosecute perpetrators. Therefore, USCIS believes that the term
``investigation or prosecution'' should be interpreted broadly as in
the AG Guidelines.
4. Criminal Activity That Violated U.S. Law or Occurred in the United
States
The fourth requirement for U nonimmigrant classification is that
the qualifying criminal activity violated the laws of the United States
or occurred in the United States (including in Indian country and
military installations) or the territories and possessions of the
United States. INA 101(a)(15)(U)(i)(IV), 8 U.S.C.
1101(a)(15)(U)(i)(IV). This requirement is adopted in new 8 CFR
214.14(b)(4).
The term United States is defined in section 101(a)(38) of the INA,
8 U.S.C. 1101(a)(38), to mean the continental United States, Alaska,
Hawaii, Puerto Rico, Guam, and the U.S. Virgin Islands. The BIWPA does
not define the term ``Indian country,'' but for purposes of this rule,
USCIS is adopting the definition contained in 18 U.S.C. 1151. Under
this rule, ``Indian country'' means all land within the limits of any
Indian reservation under the jurisdiction of the United States, all
dependent Indian communities within the borders of the United States,
and all Indian allotments. New 8 CFR 214.14(a)(4). Although 18 U.S.C.
1151 is a criminal jurisdiction statute, tribal and federal courts have
applied this statutory definition to both criminal and civil matters.
See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208
n.5 (1996).
Similarly, the term ``military installation'' is not defined in the
BIWPA. This rule defines that term as meaning any facility, base, camp,
post, encampment, station, yard, center, port, aircraft, vehicle, or
vessel under the jurisdiction of the Department of Defense, or any
location under military control, including any leased facility. New 8
CFR 214.14(a)(6). To develop this definition, USCIS looked to other
statutory definitions of the term. See, e.g., 10 U.S.C. 2687(e)
(defining the term in the context of base closures and realignments);
10 U.S.C. 2801(c)(2) (relating to military construction). A review of
the federal case law reveals that this is a nebulous concept with no
absolute definition. United States v. Buske, 2 M.J. 465, 467 (A.C.M.R.
1975). In order to realize the purpose of the U nonimmigrant
classification, to facilitate criminal investigations and prosecutions,
USCIS interpreted the term broadly to encompass a wide range of
military locations.
New 8 CFR 212.14(a)(11) defines the term ``territories and
possessions of the United States'' to mean American Samoa, Swains
Island, Bajo Nuevo (the Petrel Islands), Baker Island, Howland Island,
Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa
Island, Northern Mariana Islands, Palmyra Atoll, Serranilla Bank, and
Wake Atoll. This definition is based on current information that the
Department of Interior provided to USCIS. Although Guam, Puerto Rico,
and the U.S. Virgin Islands are also considered territories or
possessions of the United States, USCIS has not included them in this
regulatory definition because they are already incorporated into the
INA definition of United States. See INA sec. 101(a)(38), 8 U.S.C.
1101(a)(38).
Section 101(a)(15)(U)(i)(IV) of the INA, 8 U.S.C.
1101(a)(15)(U)(i)(IV), requires that the criminal activity either
violated the laws of the United States or occurred in the United
States. USCIS does not believe that this distinction is based on which
laws are violated--U.S. laws or foreign laws--because elsewhere in the
statute, qualifying criminal activity is defined as criminal activity
that is ``in violation of Federal, State, or local criminal law.'' See
INA sec. 101(a)(15)(U)(iii), 8 U.S.C. 1101(a)(15)(U)(iii). Instead,
USCIS believes that the distinction refers to where the violation
occurred, whether inside or outside the United States. Accordingly,
USCIS interprets the phrase, ``occurred in the United States,'' to mean
qualifying criminal activity that occurred in the United States that is
in violation of U.S. law. USCIS interprets the phrase, ``violated the
laws of the United States,'' as referring to criminal activity that
occurred outside the United States that is in violation of U.S. law.
This rule provides that criminal activity that has occurred outside
of the United States, but that fits within a type of criminal activity
listed in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C.
1101(a)(15)(U)(iii), will constitute a qualifying criminal activity if
it violates a federal statute that specifically provides for
extraterritorial jurisdiction. See new 8 CFR 214.14(b)(4). Such
criminal activity will have ``violated the laws of the United States.''
Congress has enacted a variety of statutes governing criminal activity
occurring outside the territorial limits of the United States. These
statutes establish extraterritorial and federal, criminal jurisdiction.
Statutes establishing extraterritorial jurisdiction generally require
some nexus between the criminal activity and U.S. interests. For
example, pursuant to 18 U.S.C. 2423(c), the United States has
jurisdiction to investigate and prosecute cases involving U.S. citizens
or nationals who engage in illicit sexual conduct outside the United
States, such as sexually abusing a minor. See also 18 U.S.C. 32
(destruction of an aircraft); 15 U.S.C. 1 (extraterritorial application
of the Sherman Act governing antitrust laws).
This rule does not require that the prosecution actually occur,
since the statute only requires an alien victim to be helpful in the
investigation or the prosecution of the criminal activity. See INA
sections 101(a)(15)(U)(i)(III) & 214(p)(1), 8 U.S.C.
1101(a)15(u)(i)(III) and 1184(p)(1). Prosecution may be impossible due
to a number of factors, such as an inability to extradite the
defendant.
B. Application Process
By statute, the petition for U nonimmigrant status must be filed by
the alien victim and contain a certification of helpfulness from a
certifying agency. See INA sec. 214(p)(1), 8 U.S.C. 1184(p)(1). Based
upon these statutory requirements, this rule designates the form that
petitioners must use to request U nonimmigrant status and describes the
evidence that must accompany the form, including the certification of
helpfulness. The rule also sets forth filing requirements and
procedures. This section of the Supplementary Information discusses
these requirements, as well as eligibility and filing requirements for
those qualifying family members of the alien victim who also are
seeking U nonimmigrant status.
[[Page 53021]]
1. Filing the Petition To Request U Nonimmigrant Status
This interim rule designates Form I-918, ``Petition for U
Nonimmigrant Status,'' as the form an alien victim must use to request
U nonimmigrant status. See New 8 CFR 214.14(c)(1), This provision also
requires petitioners to follow the instructions to Form I-918 for
proper completion and accompany Form I-918 with initial evidence and
the correct fee(s).\6\ Form I-918 requests information regarding the
applicant's eligibility for U nonimmigrant status and admissibility to
the United States. Jurisdiction over all petitions for U nonimmigrant
status rests with USCIS. The instructions to Form I-918 specify where
petitioners must file (by mail) their application package. At present,
USCIS has centralized the adjudication process for Forms I-918 at its
Vermont Service Center. This centralization will allow adjudicators to
develop expertise in handling U nonimmigrant petitions and provide for
uniformity in the adjudication of these petitions.
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\6\ A fee waiver is available for the Form I-918 filing fee. Fee
waivers are governed by 8 CFR 103.7(c).
---------------------------------------------------------------------------
The rule addresses several special considerations that may affect
certain petitioners seeking to file Form I-918: Filing petitions from
outside the United States; the effect of a petition on interim relief;
petitioners subject to grounds of inadmissibility; petitioners in
removal proceedings or subject to a final order of exclusion,
deportation, or removal; changing nonimmigrant classifications; and the
effect of a petition on other immigration benefits. These
considerations are discussed below.
a. Alien Victims of Qualifying Criminal Activity Filing Form I-918 From
Outside the United States
This interim rule does not require petitioners to file Form I-918
from within the United States. USCIS has determined that the statutory
framework for U nonimmigrant status permits alien victims of qualifying
criminal activity to apply for U nonimmigrant status classification
from either inside or outside the United States. For example, the
statute does not require petitioners to be physically present in the
United States to qualify for U nonimmigrant status. By contrast, other
nonimmigrant classifications, such as the T nonimmigrant classification
(INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T)), explicitly require
an alien's physical presence in the United States as a condition of
eligibility. Moreover, under section 101(a)(15)(U)(i)(IV) of the INA, 8
U.S.C. 1101(a)(15)(U)(i)(IV), qualifying criminal activity may occur
outside the territorial jurisdiction of the United States under certain
circumstances. USCIS recognizes that for qualifying criminal activity
that occurred outside the United States, the investigation may take
place either outside or inside the United States. The alien victim may
be needed in the United States to assist the certifying agency in its
investigation or subsequent prosecution of the criminal activity.
Allowing alien victims to submit petitions from outside the United
States provides the certifying agency with the necessary flexibility to
further the investigation or prosecution.
To apply from outside the United States, petitioners must submit a
complete application package for U nonimmigrant status to the USCIS
location specified in the form instructions.
b. Petitioners With Interim Relief From Removal
This rule does not impose a deadline for submission of U
nonimmigrant status petitions. However, USCIS encourages petitioners
and accompanying or following to join family members who were granted
interim relief to file Form I-918 within 180 days of the effective date
of this rule. After the effective date of this rule, the interim relief
process will no longer be in effect, and USCIS will not consider
initial requests for interim relief. After the 180-day time period
following the effective date of the rule, USCIS will reevaluate
previous grants of deferred action, parole, and stays of removal and
terminate such interim relief for those aliens who fail to file Form I-
918 within the 180-day time period. However, if the alien has properly
filed a Form I-918, but USCIS has not yet adjudicated that petition,
interim relief will be extended until USCIS completes its adjudication
of Form I-918. USCIS believes that 180 days provides an interim relief
recipient a sufficient period of time within which to file and perfect
a U nonimmigrant petition, taking into account the time it may take for
individuals to learn of this rule and put together a complete package
requesting U nonimmigrant status.
c. Petitioners Who Are Inadmissible
To be eligible for U nonimmigrant status, the alien requesting
status must be admissible to the United States. 8 CFR 214.1(a)(3)(i);
see also INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1). Therefore, those who
are inadmissible to the United States, or who become inadmissible for
conduct that occurs while their petition for U nonimmigrant status is
pending, will not be eligible for U nonimmigrant status unless the
ground of inadmissibility is waived by USCIS. See INA sec. 212(a), 8
U.S.C. 1182(a) (grounds of inadmissibility). USCIS has general
authority to waive many grounds of inadmissibility for nonimmigrants
and may prescribe conditions on their temporary admission to the United
States. See INA sec. 212(d)(3)(B), 8 U.S.C. 1182(d)(3)(B).
In addition, the BIWPA created a waiver specific to U nonimmigrant
status. Under this waiver, the Secretary of Homeland Security has the
discretion to waive any ground of inadmissibility with respect to
applicants for U nonimmigrant status, except the ground applicable to
participants in Nazi persecutions, genocide, acts of torture, or
extrajudicial killings. INA sec. 212(d)(14), 8 U.S.C. 1182(d)(14).
However, the Secretary of Homeland Security first must determine that
such a waiver would be in the public or national interest. Id.
It is important to note that the determination that a waiver would
be in the public or national interest and the decision to grant a
waiver are made at the discretion of the Secretary. In the immigrant
context, the Board of Immigration Appeals has held that, in assessing
whether an applicant has met the burden that a waiver is warranted in
the exercise of discretion, the adjudicator must balance adverse
factors evidencing inadmissibility as a lawful permanent resident with
the social and humane considerations presented to determine if the
grant of the waiver appears to be in the best interests of the United
States. Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). More
recently, in the context of a case involving a waiver of a criminal
ground of inadmissibility under section 209(c) of the Act, the Attorney
General determined that favorable discretion should not be exercised
for waivers under section 212(h) of the Act involving violent or
dangerous crimes, except in extraordinary circumstances. Matter of
Jean, 23 I&N Dec. 373 (A.G. 2002).
In view of these considerations, this rule provides a general rule
that DHS will only exercise favorable discretion in U nonimmigrant
status cases in which a waiver for violent or dangerous crimes or the
security and related grounds under section 212(a)(3) of the Act is
requested, in extraordinary circumstances. Moreover, depending on the
nature and severity of the underlying offense/s to be waived, the
Secretary retains the discretion to determine that the mere existence
of
[[Page 53022]]
extraordinary circumstances is insufficient.
Additionally, this rule provides that the Secretary will not
exercise discretion under section 212(d)(3) of the Act, 8 U.S.C.
1182(d)(3), to waive the ground of inadmissibility under section
212(a)(3)(E) applicable to participants in Nazi persecutions, genocide,
acts of torture, or extrajudicial killings. New 8 CFR 212.17(b).
Because Congress determined not to make a waiver available for this
ground of inadmissibility in the waiver provision created for U
nonimmigrant applicants at section 212(d)(14) of the Act, DHS has
determined that it would not be logical to allow these applicants to be
eligible for a waiver of this ground of inadmissibility under section
212(d)(3) of the Act.
To apply for a waiver of inadmissibility, a petitioner must file
Form I-192, ``Application for Advance Permission to Enter as
Nonimmigrant,'' with USCIS. New 8 CFR 212.17(a); new 8 CFR
214.14(c)(2)(iv). USCIS will evaluate the application to determine
whether it is in the public or national interest to exercise discretion
to waive the applicable ground(s) of inadmissibility. New 8 CFR
212.17(b)(1). As with inadmissibility waiver applications for other
nonimmigrant classifications, there is no appeal of a decision to deny
Form I-192. New 212.17(b)(2); see also 8 CFR 212.4(a)(1). This rule
also provides that an applicant whose waiver application is denied is
not prevented from re-filing a request for a waiver. New 8 CFR
212.17(b)(2). This is to allow those petitioners whose Forms I-918 and
concurrently filed Forms I-192 are denied an opportunity to have a
subsequently filed Form I-192 considered in the context of other
immigration benefits.
USCIS has determined that implicit in its discretionary authority
to grant a waiver is the authority to determine the conditions under
which a waiver is granted, including revocation of previously granted
waiver. Therefore, this interim rule establishes USCIS' authority to
revoke its approval of a waiver of inadmissibility that was previously
granted. The decision to revoke a waiver is not appealable. New 8 CFR
212.17(c).
d. Petitioners Who Are in Removal, Deportation, or Exclusion
Proceedings or Who Are Subject to a Final Order of Removal,
Deportation, or Exclusion
Aliens who are in removal proceedings under section 240 of the INA,
8 U.S.C. 1229a, or in deportation or exclusion proceedings under former
sections 242 and 236 of the INA, 8 U.S.C. 1252, 1226 (as in effect
before April 1, 1997), or who are the subject of a final order of
removal, deportation, or exclusion, may be eligible for U nonimmigrant
status.\7\ Because jurisdiction over U nonimmigrant petitions rests
solely with USCIS, aliens who are in removal proceedings or who are
subject to a final removal order nevertheless must file their petition
for U nonimmigrant status directly with USCIS. Filing a petition for U
nonimmigrant status will not affect the proceedings or the order.
However, in instances in which the U nonimmigrant status petitioner or
a derivative family member of the petitioner listed on the Form I-918
is in removal, deportation, or exclusion proceedings before the
Immigration Court or has a matter pending before the Board of
Immigration Appeals (Board),\8\ this rule provides that the alien may
seek the agreement of DHS' Bureau of Immigration and Customs
Enforcement (ICE) \9\ to file a joint motion to terminate the
proceedings without prejudice while a petition for U nonimmigrant
status is being adjudicated by USCIS.\10\ New 8 CFR 214.14(c)(1)(i) and
(f)(2)(i). The joint motion to terminate must be filed with the
Immigration Court or the Board, whichever has jurisdiction. Id. The
agreement to pursue termination of the pending proceedings lies within
the sole prosecutorial discretion of ICE. DHS is including a specific
provision on motions to terminate in this rule to identify a mechanism
that conserves prosecutorial resources with respect to a class of
aliens who are providing assistance in investigating and prosecuting
criminal activity.
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\7\ An order of deportation is an order issued prior to April 1,
1997, in deportation proceedings, to an alien physically present in
the United States requiring the alien to leave the United States.
See INA sec. 242B, 8 U.S.C. 1252b (1996) repealed by IIRIRA, Pub. L.
104-208, div. C., sec. 308(b)(6), 110 Stat. 3009, 3615 (effective
April 1, 1997). An order of exclusion is an order issued prior to
April 1, 1997, in exclusion proceedings, that refuses the admission
to the United States of an alien who is physically outside the
United States (or who is treated as being so). See generally INA
sec. 236, 8 U.S.C. 1226 (1996) (amended by IIRIRA sec. 303(a), 110
Stat. at 3585). Since April 1, 1997, there has been one unified
removal process for persons formerly subject to deportation and
exclusion proceedings; this process may result in the issuance of a
removal order by either DHS or an immigration judge. INA sec.
240(a)(3), 8 U.S.C. 1229a(a)(3) (added by IIRIRA sections 304(a)(3)
& 309(d)(2), 110 Stat. at 3587-3589, 3627). During proceedings, DHS
or an immigration judge makes a determination regarding whether an
alien is removable from the United States. INA sec. 240(c)(1), 8
U.S.C. 1229a(c)(1). If such a determination is made, a removal order
is issued ordering the alien to leave the United States. INA sec.
240(c)(5), 8 U.S.C. 1229a(c)(5). The alien must leave the United
States on his or her own, or will be returned to his or her country
of origin (or in some cases to a third country that agrees to accept
that person) by the United States. See INA sections 240B & 241, 8
U.S.C. 1229c & 1231.
\8\ The Immigration Court and Board of Immigration Appeals are
within the Department of Justice's Executive Office for Immigration
Review. See 8 CFR 1003.0(a).
\9\ ICE counsel are authorized to represent DHS in Immigration
Court and before the Board. See 6 U.S.C. 252(c); DHS Delegation No.
7030.2, para. 2(C).
\10\ While this rule specifically addresses joint motions to
terminate, it does not preclude the parties from requesting a
continuance of the proceeding.
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This rule further provides that if proceedings are terminated, and
USCIS subsequently denies the petition for U nonimmigrant status, DHS
may file a new Notice to Appear \11\ to place the individual into
proceedings again. New 8 CFR 214.14(c)(5)(ii) and (f)(6)(iii).
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\11\ Removal proceedings are initiated when an alien is provided
notice of proceedings through the service of a Notice to Appear. The
contents of the Notice to Appear are prescribed in section 239(a)(1)
of the Act.
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With respect to petitioners who are the subject of an
administrative final order, this rule provides that they are not
precluded from filing a petition for U nonimmigrant status directly
with USCIS. New 8 CFR 214.14(c)(1)(ii) and (f)(2)(ii). However, the
filing of a petition for U nonimmigrant status has no effect on ICE's
authority to execute a final order. Therefore, those aliens subject to
a final order of removal, deportation, or exclusion who are physically
present in the United States should apply separately for a
discretionary stay of removal if they wish to remain in the United
States while their petition is pending with USCIS. To do so, such
aliens must file Form I-246, ``Application for Stay of Removal,'' as
provided in 8 CFR 241.6(a) and 8 CFR 1241.6(a). For those petitioners
who are subject to a final order of removal and are detained in ICE's
custody while USCIS adjudicates their petition, rules of detention
still apply. Under the post-order detention rules, an alien who has
been subject to post-order detention for more than six months (dating
from the beginning of the removal period as described in INA Sec.
241(a)(1)) may request release from detention. See 8 CFR 241.13. If,
after six months of post-order detention, the alien can provide ``good
reason to believe there is no significant likelihood of removal * * *
in the reasonably foreseeable future,'' the alien, with certain
exceptions, will be released on an order of supervision. 8 CFR
241.13(a); see Zadvydas v. Davis, 533 U.S. 678, 701 (2001); Clark v.
Martinez, 543 U.S. 371, 386 (2005). However, under this rule, the time
during which a stay of removal is in effect will extend
[[Page 53023]]
the period of detention reasonably necessary to bring about the
petitioner's eventual removal. New 8 CFR 214.14(c)(1)(ii) and
(f)(2)(ii). As the petitioner has, of his or her own choosing,
requested that his or her removal be stayed, the reasonably necessary
period for removal justifiably is extended. ICE will have a full and
fair period to effect removal if USCIS denies the petition. See 8 CFR
241.4.
If USCIS grants the petition for U nonimmigrant status, an order of
exclusion, deportation, or removal issued by the Secretary will be
canceled by operation of law as of the date of the grant. New 8 CFR
214.14(c)(5)(i) & (f)(6). However, if USCIS subsequently revokes
approval of the petition, DHS may place the petitioner in removal
proceedings. In cases where an order of exclusion, deportation, or
removal was issued by an immigration judge or the Board, the alien may
seek cancellation of such order by filing, with the immigration judge
or the Board, a motion to reopen and terminate removal proceedings. ICE
counsel may agree, as a matter of discretion, to join such a motion to
overcome any applicable time and numerical limitations of 8 CFR 1003.2
and 1003.23. Id.
e. Aliens Seeking Change of Nonimmigrant Classification
Aliens who currently are in a nonimmigrant status may seek to
change their classification to the U nonimmigrant classification.
Section 248 of the INA, 8 U.S.C. 1258, and implementing regulations at
8 CFR 248 govern change of nonimmigrant classification. These
provisions permit nonimmigrants to change status to another
nonimmigrant classification, unless they fall within certain
nonimmigrant classifications. INA sec. 248(a)(1)-(4), 8 U.S.C.
1258(a)(1)-(4); 8 CFR 248.2. For example, aliens classified under
sections 101(a)(15)(C), (D), (K), or (S) of the INA, 8 U.S.C.
1101(a)(15)(C), (D), (K), or (S), as well as certain aliens classified
under section 101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J), may
not change nonimmigrant status. VAWA 2005 amended section 248 of the
INA, 8 U.S.C. 1258, so that even aliens within the excepted
classifications may seek a change of nonimmigrant status if the status
sought is U nonimmigrant status. INA sec. 248(b), 8 U.S.C. 1258(b).
This rule adopts this statutory amendment in revised 8 CFR 248.2(b) and
makes structural modifications to 8 CFR 248.2 to accommodate the
revisions. The rule also clarifies that the procedures for applying for
U nonimmigrant status, even when changing nonimmigrant status, are
contained in new 8 CFR 214. Revised 8 CFR 248.1(a).
f. Aliens Seeking Other Immigration Benefits
Aliens seeking U nonimmigrant status are free to seek any other
immigration benefit or status for which they are eligible. INA sec.
214(p)(5), 8 U.S.C. 1184(p)(5). Therefore, nothing in this rule limits
a qualified petitioner from applying for U nonimmigrant status as well
as other immigration benefits, including immigrant status. However,
USCIS will only grant one nonimmigrant or immigrant status at a time.
Where multiple applications or petitions are filed and pending at the
same time, USCIS will grant the status for the application or petition
that is approved first. USCIS will deny any remaining petitions or
applications for status.
2. Initial Evidence
This rule requires petitioners filing Form I-918 to accompany the
petition with supporting documentation, or ``initial evidence,'' in
order for USCIS to consider the request for U nonimmigrant status
complete. New 8 CFR 214.14(c)(1). If all required initial evidence is
not submitted with the petition or does not demonstrate eligibility,
USCIS, in its discretion, may deny the application for lack of initial
evidence or for ineligibility, or request that the missing or
insufficient initial evidence be submitted within a specified period of
time as determined by USCIS. 8 CFR 103.2(b)(8)(ii). This rule provides
the following list of required initial evidence:
Form I-918, Supplement B, ``U Nonimmigrant Status
Certification,'' properly and timely executed;
Any additional evidence the petitioner wants USCIS to
consider to establish further that:
--The petitioner is a victim of qualifying activity;
--The petitioner has suffered substantial physical or mental abuse as a
result of having been a victim of qualifying criminal activity;
--The petitioner possesses information concerning the qualifying
criminal activity of which he or she was a victim;
--The petitioner has been, is being, or is likely to be helpful to a
certifying agency;
--The criminal activity is qualifying and occurred in the United
States, including in Indian country and military installations, or the
territories and possessions of the United States, or violated a U.S.
federal law that provides for extraterritorial jurisdiction to
prosecute the offense in a U.S. Federal court;
A statement by the petitioner describing the facts of the
victimization; and
If the petitioner is inadmissible, Form I-192,
``Application for Advance Permission to Enter as Non-Immigrant.''
New 8 CFR 214.14(c)(2).
a. U Nonimmigrant Status Certification
This rule designates Form I-918, Supplement B, ``U Nonimmigrant
Status Certification,'' as the form that petitioners must obtain from a
certifying official of a certifying agency. New 8 CFR 214.14(c)(2)(i).
Form I-918, Supplement B must be prepared by the certifying agency
conducting an investigation or prosecution of the qualifying criminal
activity in accordance with the instructions to the form, and must have
been signed by the certifying official within the six months
immediately preceding the submission of Form I-918. Id. USCIS is
setting a six-month requirement to seek a balance between encouraging
the filing of petitions and preventing the submission of stale
certifications. USCIS believes that this requirement provides
petitioners enough time to prepare the necessary paperwork for the
petition package, while also precluding the situation where petitioners
delay filing the package until some time after the certification is
signed, and they cease to be helpful to the certifying agency. If a
petitioner requested and received interim relief prior to the effective
date of this rule, USCIS will consider the evidence submitted to meet
the certification requirements for interim relief purposes in lieu of
Form I-918, Supplement B. New 8 CFR 214.14(c)(1).
This rule defines ``certifying official'' as the head of the
certifying agency or any person(s) in a supervisory role who has been
specifically designated by the head of the certifying agency to issue U
nonimmigrant status certifications on behalf of that agency, or a
Federal, State, or local judge. New 8 CFR 214.14(a)(3). USCIS believes
that this definition is reasonable and necessary to ensure the
reliability of certifications. It also should encourage certifying
agencies to develop internal policies and procedures so that
certifications are properly vetted.
Under this rule, the certifying official must affirm the following
in the certification: (1) That the person signing the certificate is
the head of the certifying agency or person(s) in a supervisory role
who has been specifically designated with the authority to issue U
nonimmigrant
[[Page 53024]]
status certifications on behalf of that agency, or a Federal, State, or
local judge; (2) that the agency is a Federal, State, or local law
enforcement agency, prosecutor, judge, or other authority that has
responsibility for the detection, investigation, prosecution,
conviction, or sentencing of qualifying criminal activity; (3) that the
petitioner has been a victim of qualifying criminal activity that the
certifying official's agency is investigating or prosecuting; (4) that
the petitioner possesses information concerning the qualifying criminal
activity of which he or she has been a victim; (5) that the petitioner
has been, is being, or is likely to be helpful to an investigation or
prosecution of that qualifying criminal activity; and (6) that the
qualifying criminal activity violated U.S. law, or occurred in the
United States, its territories and possessions, Indian country, or at
military installations abroad. New 8 CFR 214.14(c)(2)(i). The
certification also should provide relevant, specific details about the
nature of the crime being investigated or prosecuted and describe, in
detail, the petitioner's helpfulness to the case.
USCIS developed the requirements for Form I-918, Supplement B based
upon the eligibility requirements petitioners must meet and the
purposes for which the certification will be used. USCIS determined
that since the certifying agency is the primary point of contact
between the petitioner and the criminal justice system, the certifying
agency is in the best position to verify certain factual information.
In addition, USCIS does not believe that petitioners are in the best
position to know the specific violation of U.S. law the certifying
agency is investigating or prosecuting, or what specific statute
provides the certifying agency with the extraterritorial jurisdiction
to investigate or prosecute criminal activity that occurred outside the
United States. Therefore, USCIS determined that information regarding
the eligibility requirements should be addressed by the certifying
agency on Form I-918, Supplement B. USCIS will use Form I-918,
Supplement B in the course of adjudicating whether the eligibility
requirements have been met.
b. Additional Evidence To Satisfy the Eligibility Requirements
While USCIS will give a properly executed certification on Form I-
918, Supplement B, significant weight, USCIS will not consider such
certification to be conclusory evidence that the petitioner has met the
eligibility requirements. USCIS believes that it is in the best
position to determine whether a petitioner meets the eligibility
requirements as established and defined in this rule. In addition to
Form I-918, Supplement B, this interim rule permits the petitioner to
provide any additional evidence that is relevant and credible to help
demonstrate that the petitioner meets each of the eligibility
requirements. New 8 CFR 214.14(c)(2)(ii) and (iii). For petitioners
with interim relief, USCIS will consider evidence previously submitted
with the request for interim relief as part of the petition package.
Petitioners with interim relief may file additional evidence with Form
I-918 to supplement this previously submitted evidence. New 8 CFR
214.14(c)(1).
Evidence to further establish that the petitioner is a victim of
qualifying criminal activity may include: trial transcripts, court
documents, news articles, police reports, orders of protection, and
affidavits of other witnesses, such as medical personnel.
Evidence to further establish the nature of the abuse suffered may
include such documentation as reports and affidavits from police,
judges, other court officials, medical personnel, school officials,
clergy, social workers, and other social service agency personnel.
Petitioners who have obtained an order of protection against the
perpetrator or taken other legal steps to protect themselves against
the perpetrator should submit copies of the relating legal documents. A
combination of documents such as a photograph of the visibly injured
applicant supported by affidavits of individuals who have personal
knowledge of the facts regarding the criminal activity may be relevant
as well.
Evidence to further establish that the petitioner possesses
information about the qualifying criminal activity may include
documents establishing that he or she has knowledge of the details of
the criminal activity. Examples of relevant evidence include: reports
and affidavits from police, judges, and other court officials. In cases
where the petitioner is a child under the age of 16, or is
incapacitated or incompetent, this requirement can be satisfied by the
parent, guardian, or next friend submitting the necessary evidence on
behalf of the petitioner. Such person must provide evidence of his or
her qualifying relationship to the petitioner and evidence establishing
the age, incapacity, or incompetence of the petitioner. Examples of
such evidence include: birth certificates, court documents
demonstrating recognition of an individual as the petitioner's next
friend, medical records, or reports of licensed medical professionals
demonstrating the incapacity or incompetence of the applicant.
Evidence to further establish that the petitioner has provided the
necessary assistance in the investigation or prosecution of qualifying
criminal activity may include such documentation as: Trial transcripts,
court documents, police reports, news articles, copies of reimbursement
forms for travel to and from court, and affidavits of other witnesses
or officials. If USCIS has reason to believe that there is a question
about the petitioner's helpfulness to, or continuing cooperation with,
the investigation or prosecution, USCIS may contact the certifying
official for further explanation. In cases where the petitioner is a
child under the age of 16 or is incapacitated or incompetent, this
requirement can be satisfied by the parent, guardian, or next friend
submitting the necessary evidence on behalf of the petitioner. Such
person must provide evidence of their qualifying relationship to the
petitioner and evidence that the petitioner is a child under the age of
16, incapacitated, or incompetent. Evidence that was submitted to
satisfy the possession of information requirement will satisfy this
requirement and need not be submitted twice.
Examples of evidence to further establish that the criminal
activity is qualifying and violated U.S. law or occurred in the United
States include: A copy of the statutory provision(s) showing the
elements of the offense or factual information about the crime
demonstrating that it is similar to the list of qualifying criminal
activity contained in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C.
1101(a)(15)(U)(iii). If the criminal activity occurred outside the
United States, the additional evidence submitted may include a copy of
the statutory provision(s) providing for the extraterritorial
jurisdiction and documentation showing that the criminal activity
violated federal law and is prosecutable in a federal court.
c. Statement by the Petitioner
In support of Form I-918, this rule requires the petitioner to
submit a separate statement describing the facts of his or her
victimization. 8 CFR 214.14(c)(2)(iii). USCIS is requiring that the
petitioner submit a statement because USCIS believes that it is
important to learn about the facts of the victimization from the
petitioner in his or her own words. This statement should include the
following information: The nature of the criminal activity, when the
criminal activity occurred, who was responsible, the
[[Page 53025]]
events surrounding the criminal activity, how the criminal activity
came to be investigated or prosecuted, and what substantial physical
and/or mental abuse was suffered as a result of having been the victim
of the criminal activity. The statement also may include information
supporting any of the other eligibility requirements.
When the petitioner is under the age of 16, incapacitated, or
incompetent, a parent, guardian, or next friend must submit a statement
in lieu of the petitioner that contains as much information surrounding
the criminal activity and physical and/or mental abuse as possible.
d. Petitioners Who Are Inadmissible
As stated earlier in this Supplementary Information, this rule
requires petitioners seeking a waiver of inadmissibility to file Form
I-192, ``Application for Advance Permission to Enter as Nonimmigrant.''
New 8 CFR 212.17(a). USCIS has listed the Form I-192 in this rule as
initial evidence which must be filed concurrently with Form I-918,
along with a separate filing fee. New 8 CFR 214.14(c)(2)(iv). Form I-
192 is an established form to waive grounds of inadmissibility for
aliens seeking immigration benefits. See, e.g., 8 CFR 212.4 (general
authority for waivers in nonimmigrant cases); 8 CFR 212.16 (providing
for use of Form I-192 in T nonimmigrant status cases).
3. Derivative Family Members
Section 101(a)(15)(U)(ii) of the INA, 8 U.S.C. 1101(a)(15)(U)(ii),
permits certain family members accompanying or following to join the
alien victim to obtain U nonimmigrant status, regardless of whether or
not they are in the United States or overseas. USCIS refers to such
family members as derivatives, and the alien victim as the principal.
Which family members are considered ``qualifying'' depends on the age
of the principal. If the principal is under 21 years of age, qualifying
family members include the principal's spouse, children, unmarried
siblings under 18 years of age (on the filing date of the principal's
petition), and parents. INA sec. 101(a)(15)(U)(ii)(I), 8 U.S.C.
1101(a)(15)(U)(ii)(I). If the principal is 21 years of age or older,
qualifying family members include the spouse and children of the
principal. INA sec. 101(a)(15)(U)(ii)(II), 8 U.S.C.
1101(a)(15)(U)(ii)(II). This rule provides the eligibility requirements
and petition procedures for qualifying family members seeking
derivative status. See new 8 CFR 214.14(f).
a. Eligibility
New 8 CFR 214.14(f)(1) sets forth two eligibility requirements for
derivative U nonimmigrant status. First, the alien must be a qualifying
family member. New 8 CFR 214.14(f)(1)(i). Second, the alien must be
admissible to the United States. New 8 CFR 214.14(f)(1)(ii); see also
INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1); 8 CFR 214.1(a)(3)(i).
Generally, in order to be considered a qualifying family member,
the relationship between the principal petitioner and the family member
must exist at the time Form I-918 was filed. New 8 CFR 214.14(f)(4).
The relationship must continue to exist at the time the petition for
derivative status is adjudicated, and at the time of the qualifying
family member's subsequent admission to the United States. Id.
Otherwise, the family member would not meet section 101(a)(15)(U)(ii)
of the INA, 8 U.S.C. 1101(a)(15)(U)(ii), describing who qualifies as a
family member.
Note that parents are only considered qualifying family members if
the principal is under 21 years of age and a ``child.'' New 8 CFR
214.14(f)(1). Although the statutory language at section
101(a)(15)(U)(ii), 8 U.S.C. 1101(a)(15)(U)(ii), naming parents as
qualifying family members does not specify that the principal must be a
child under the age of 21 for the parents to qualify, USCIS believes
that this qualification is required by section 101(b)(2) of the INA, 8
U.S.C. 1101(b)(2). This provision defines the term, ``child,'' as an
unmarried person under 21 years of age. INA sections 101(b)(1), 8
U.S.C. 1101(b)(1).
A special rule applies to unmarried siblings under age 18 of
petitioners who are under 21 years of age. For such siblings, the
statute provides that the siblings' age on the date that Form I-918 is
filed is controlling. INA sec. 101(a)(15)(U)(ii)(I), 8 U.S.C.
1101(a)(15)(U)(ii)(I). Therefore, in new 8 CFR 214.14(f)(4)(ii), if the
principal petitioner was under 21 years of age, and requested U
nonimmigrant status for an unmarried sibling under the age of 18 at the
time Form I-918 was filed, USCIS will continue to consider such sibling
as a qualifying family member for purposes of U nonimmigrant status at
the time of adjudication even if circumstances change. This rule also
provides that children born to the principal petitioner after Form I-
918 has been filed will be eligible for derivative U nonimmigrant
status. New 8 CFR 214.14(f)(4)(i).
This rule excludes certain qualifying family members from
eligibility. Section 204(a)(1)(L) of the INA, 8 U.S.C. 1154(a)(1)(L),
prohibits an alien victim from petitioning for derivative U
nonimmigrant status on behalf of a qualifying family member who
committed battery or extreme cruelty or trafficking against the alien
victim which established his or her eligibility for U nonimmigrant
status. The rule incorporates this prohibition at new 8 CFR
214.14(f)(1). USCIS has interpreted the prohibition as applying to
qualifying family members who committed qualifying criminal activity in
a family violence or trafficking context. In making this determination,
USCIS considered the plain text of section 204(a)(1)(L) of the INA, 8
U.S.C. 1154(a)(1)(L), and found it to be unclear regarding its intended
application. In addition to trafficking, the statute lists battery and
extreme cruelty as disqualifying activity even though those terms are
not listed as qualifying criminal activity in section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), and are
not included in the standard of harm necessary to establish eligibility
for U nonimmigrant status. However, when the terms battery or extreme
cruelty are used in other contexts in the INA, they are used to refer
to harm occurring as a result of domestic violence or child abuse. See
INA sections 204(a)(1)(A) & (B), 216(c)(4)(C), 240A(b)(2), 8 U.S.C.
1154(a)(1)(A) & (B), 1186(c)(4)(C), 1229b. USCIS believes it is
reasonable to conclude that by using these terms, Congress intended to
prohibit approval of petitions for U nonimmigrant status where the
petition is based on qualifying criminal activity for which the
qualifying family member is responsible that occurred in a family
violence or trafficking context.
b. Filing Procedures
This rule requires that a principal petitioner for U nonimmigrant
status or a principal alien who has been granted U nonimmigrant status
must petition for derivative status on behalf of qualifying family
members by submitting a Form I-918, Supplement A, ``Petition for
Qualifying Family Member of U-1 Recipient,'' for each qualifying family
member. New 8 CFR 214.14(f)(2). Principal petitioners can file Form I-
918, Supplement A either at the same time or after filing his or her
Form I-918. Id. Principal aliens who have already received U
nonimmigrant status may file Form I-918, Supplement A at any time while
maintaining U nonimmigrant status. Id. This provides principals with
maximum flexibility to request derivative status for qualifying family
members.
[[Page 53026]]
This rule further requires that Form I-918, Supplement A must be
accompanied by supporting evidence (``initial evidence'') and the fees
required by the instructions to the form. Id. If the principal
petitioner files Form I-918, Supplement A while his or her Form I-918
is pending adjudication with USCIS, the principal petitioner must
accompany Form I-918, Supplement A with a copy of his or her Form I-
918. Id. If the principal already has been granted U nonimmigrant
status, then he or she must accompany Form I-918, Supplement A with a
copy of the Form I-94 he or she received when the Form I-918 was
approved. Id. This will be considered evidence of the principal's U
nonimmigrant status. Requiring evidence of the principal's pending
petition or status will enable USCIS to match up the derivative
petition with the principal's petition.
New 8 CFR 214.14(f)(3) sets forth the initial evidence that must
accompany each Form I-918, Supplement A: (1) Evidence of the family
member's qualifying relationship with the principal; and (2) if the
alien is inadmissible under section 212(a) of the INA, 8 U.S.C.
1182(a), Form I-192, with fee. Such initial evidence corresponds to the
two eligibility requirements for derivative U nonimmigrant status.
4. Designations
This rule amends 8 CFR 214.1(a)(1) to codify the derivative
subclassifications established by section 101(a)(15)(U) of the INA, 8
U.S.C. 1101(a)(15)(U). See new 8 CFR 214.1(a)(1)(ix). In addition, the
rule provides for the following designations for qualifying family
members of the principal applicant (U-1): Spouse (U-2), child (U-3),
the child's parents (U-4), and siblings (U-5). New 8 CFR 214.14(f)(1).
This rule likewise adds these designations to current 8 CFR
214.1(a)(2), to add to the list of designations assigned to all other
nonimmigrant classifications. These designations are a matter of
administrative convenience, providing a shorthand notation for
identifying the principal petitioner and each derivative based upon the
relationship to the principal.
C. Adjudication and Post-Adjudication
The statutory provisions establishing U nonimmigrant status contain
a number of parameters guiding the adjudication of U nonimmigrant
petitions. Specifically, in determining whether to grant U nonimmigrant
status, the statute requires that the adjudicator consider any credible
evidence relevant to the petition. See INA sec. 214(p)(4), 8 U.S.C.
1184(p)(4). In addition, the statute protects information relating to
applicants for U nonimmigrant status from disclosure. 8 U.S.C.
1367(a)(2). Moreover, the statute precludes adjudicators from making
adverse determinations on inadmissibility or deportability with respect
to petitions for U nonimmigrant status based on information provided by
the perpetrator of abuse and criminal activity. 8 U.S.C. 1367(a)(1)(E).
The number of grants of U nonimmigrant status that may be made in a
fiscal year is limited by an annual cap of 10,000. INA sec. 214(p)(2),
8 U.S.C. 1184(p)(2).
In this section of the Supplementary Information, these parameters
are discussed, as well as the steps that follow a decision to grant or
deny a petition for U nonimmigrant status.
1. Credible Evidence
This rule adopts the statutory requirement that any credible
evidence relevant to the petition must be considered in the
adjudication of petitions for U nonimmigrant status. New 8 CFR
214.14(c)(4) & (f)(5). As in the case of all other immigration
benefits, the burden of establishing eligibility for U nonimmigrant
status rests with the petitioner. Id. USCIS will consider all evidence
de novo and will not be bound by any of its prior determinations made
during the course of adjudicating an application for interim relief on
any essential element of U nonimmigrant status. Id. A grant of interim
relief means only that the alien presented prima facie evidence that he
or she was eligible for U nonimmigrant status and does not constitute a
binding determination that any given eligibility requirement had been
proven. In adjudicating Form I-918, USCIS will review all evidence
submitted in conjunction with the interim relief application along with
any additional evidence submitted by the petitioner in conjunction with
his or her Form I-918, including the certification, Form I-918,
Supplement B.
This rule also provides that USCIS may review documentation
submitted by the alien in conjunction with any other applications he or
she has made for immigration benefits in the past. Id. This will enable
USCIS to review the petition for U nonimmigrant status in the context
of the petitioner's past immigration history and verify that statements
made in his or her petition are consistent with information he or she
provided to USCIS in the past. In addition, this rule provides that
USCIS may investigate any aspect of the petition. Id. This means that
if, during its adjudication of Form I-918, USCIS has reason to believe
that there is a question about the petitioner's helpfulness to, or
continuing cooperation with, the investigation or prosecution, or any
other aspect of the petition, USCIS may contact the certifying official
for further explanation. USCIS then will be able to verify the veracity
of the contents of the petition and safeguard the integrity of the U
nonimmigrant status program.
2. Prohibitions on Disclosure of Information
Information concerning U nonimmigrant petitioners is protected
against disclosure in two ways. See 8 U.S.C. 1367. First, adverse
determinations of admissibility or deportability cannot be made based
on information obtained solely from the perpetrator of substantial
physical or mental abuse and the criminal activity. 8 U.S.C.
1367(a)(1)(E). Second, the disclosure of information relating to the
beneficiary of a pending or approved petition for U nonimmigrant status
is prohibited except in certain circumstances. 8 U.S.C. 1367(a)(2). The
statute allows information to be released to a sworn officer or
employee of DHS, the Department of Justice, the Department of State, or
a bureau or agency of either of those Departments, for legitimate
Department, bureau, or agency purposes. Id.
There are eight specific exemptions from the general nondisclosure
rule:
(1) At the discretion of the Secretary of Homeland Security or
Attorney General, officials may disclose information in the same manner
and circumstances as census information may be disclosed by the
Secretary of Commerce under 13 U.S.C. 8.
(2) At the discretion of the Secretary of Homeland Security or
Attorney General, officials may provide for the disclosure of
information to law enforcement officials to be used solely for a
legitimate law enforcement purpose.
(3) In connection with judicial review of a determination,
information may be disclosed in a manner that protects the
confidentiality of such information.
(4) Information may be disclosed if all the crime victims in the
case are adults, and they have waived the general restrictions on
disclosure of information provided by 8 U.S.C. 1367(a)(2).
(5) Information may be disclosed to Federal, State, and local
public and private agencies providing benefits, to be used solely to
make determinations of eligibility for benefits pursuant to 8 U.S.C.
1641(c).
(6) Information may be disclosed after a petition for U
nonimmigrant status has been finally denied.
[[Page 53027]]
(7) Information may be disclosed on closed cases to the chairmen
and ranking members of the Committee on the Judiciary of the Senate, or
the Committee on the Judiciary of the House of Representatives, for the
exercise of congressional oversight authority, provided the disclosure
is made in a manner that protects the confidentiality of the
information and omits personally identifying information (including
locational information about individuals).
(8) With prior written consent from the principal petitioner or
derivative family member, information may be disclosed to nonprofit,
nongovernmental victims' service providers for the sole purpose of
assisting the victim in obtaining victim services from programs with
expertise working with immigrant victims.
8 U.S.C. 1367(b). Appropriate disciplinary action must be taken and a
monetary penalty of up to $5,000 may be imposed on anyone who willfully
uses, publishes, or permits information to be disclosed in violation of
the nondisclosure provisions. 8 U.S.C. 1367(c). This rule incorporates
the prohibitions and restrictions on information relating to U
nonimmigrant petitions into new 8 CFR 214.14(e).
Within the bounds of the statutory prohibitions and restrictions
against disclosure of information relating to a U nonimmigrant
petitioner, USCIS may provide information taken from the petition about
any Federal, State or local crimes to investigative agencies that have
a reason to know based on a legitimate law enforcement purpose.
Possible agencies or bureaus to which information may be disclosed
include: The Federal Bureau of Investigation (FBI); the U.S. Attorney's
Office or the Civil Rights or Criminal Divisions of the Department of
Justice; or U.S. Immigration and Customs Enforcement (ICE). As part of
the adjudication process, USCIS also may contact the certifying agency
for the purpose of assessing whether the petitioner is, has been, or is
likely to be helpful to the investigation or prosecution of the
qualifying criminal activity. Because the certifying agency has
submitted a certification on behalf of the petitioner and, therefore,
has already been informed about the fact of the petition as well as the
facts upon which the petition is based, USCIS has determined that
contacting the certifying agency would not violate the statutory
prohibitions and restrictions against disclosure. USCIS recognizes the
sensitive nature of application information and takes seriously its
obligation to protect confidentiality. USCIS will make any disclosure
to an investigative agency in a manner that provides the maximum
confidentiality under the circumstances.
In addition to disclosures to investigative agencies, DHS may have
an obligation to provide portions of petitions for U nonimmigrant
status to federal prosecutors for disclosure to defendants in pending
criminal proceedings. This obligation stems from constitutional
requirements that pertain to the government's duty to disclose
information, including exculpatory evidence or impeachment material, to
defendants. See U.S. Const. amend. V & VI; Brady v. Maryland, 373 U.S.
83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972).
Accordingly, this rule incorporates this requirement at new 8 CFR
214.14(e)(1)(ix).
3. Annual Numerical Limitation on Grants of U Nonimmigrant Status
Before USCIS may grant U nonimmigrant status, it must consider the
statutory cap on the number of aliens who may receive a grant of status
each fiscal year. See INA sec. 214(p)(2), 8 U.S.C.1184(p)(2). No more
than 10,000 principal aliens may be granted U nonimmigrant status in a
given fiscal year (October 1 through September 30). INA sec.
214(p)(2)(A), 8 U.S.C. 1184(p)(2)(A). This numerical limitation does
not apply to spouses, children, parents, and unmarried siblings who are
accompanying or following to join the principal alien victim. INA sec.
214(p)(2)(B), 8 U.S.C. 1184(p)(2)(B).
USCIS anticipates that within the first few fiscal years after
publication of this regulation, it will receive petitions for U
nonimmigrant status from more than 10,000 principal aliens. USCIS is
cognizant of the fact that law enforcement agencies and prosecutors
need a stable mechanism through which to regularize the status of
victims and witnesses, but is equally cognizant of the fact that
Congress saw fit to limit the number of aliens who may be granted U
nonimmigrant status in any given fiscal year. USCIS has determined that
to balance the statutorily imposed numerical cap against the dual goals
of enhancing law enforcement's ability to investigate and prosecute
criminal activity and providing protection to alien victims of crime,
it will create a waiting list should the cap be reached in a given
fiscal year before all petitions are adjudicated. USCIS's goal is to
respect the intent of the numerical limitation imposed by Congress
while still allowing the legislation to achieve maximum efficacy. USCIS
believes that this rule's waiting list methodology will provide a
stable mechanism through which victims cooperating with law enforcement
agencies can regularize their immigration status.
Under this rule, once the numerical limit has been reached in a
particular fiscal year, all pending and subsequently submitted
petitions will continue to be reviewed in the normal process to
determine eligibility. See new 8 CFR 214.14(d)(2). USCIS will deny
petitions that are not approvable. Eligible petitioners who are not
granted U-1 nonimmigrant status due solely to the numerical limits will
be notified by USCIS that they have been placed on a waiting list. Id.
Each fiscal year, as new numbers for U-1 nonimmigrant status become
available, USCIS will grant U nonimmigrant status to petitioners on the
waiting list. Id. Petitioners on the waiting list will be given
priority based on the date the petition was properly filed. Id.
Petitioners on the waiting list must continue to meet the eligibility
requirements for U nonimmigrant status and be admissible at the time
status is granted. Id. After USCIS has granted U nonimmigrant status to
petitioners on the waiting list, USCIS will continue to grant
petitions, up to the annual limit, to new petitioners in the order in
which each petition was properly filed. Id.
This rule also provides that, USCIS will give petitioners on the
waiting list deferred action or parole until the start of the next
fiscal year. Id. Those petitioners will be eligible to apply for
employment authorization. Id. The rule further provides that
petitioners on the waiting list will not accrue unlawful presence under
section 212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B). New 8 CFR
214.14(d)(3). However, at its discretion, USCIS may remove a petitioner
from the waiting list and terminate deferred action or parole. Id. For
example, USCIS may terminate deferred action or parole if the
petitioner is convicted of a crime that renders him or her removable.
USCIS also may terminate deferred action or parole if it becomes aware
that a petitioner has failed to disclose a criminal conviction or has
misrepresented a material fact in his or her petition.
4. Decisions on Petitions
USCIS will issue decisions granting or denying U nonimmigrant
petitions in writing. New 8 CFR 214.14(c)(5) (principal petitioners);
new 8 CFR 214.14(f)(6) (derivative family members). If USCIS denies a
petition, it will also provide reasons for the denial in writing. New 8
CFR 214.14(c)(5)(ii); new 8 CFR 214.14(f)(6)(iii). In any case in which
USCIS denies a petition for U
[[Page 53028]]
nonimmigrant status, the petitioner may appeal to USCIS's
Administrative Appeals Office (AAO) under established procedures
outlined in 8 CFR 103.3. Id.
a. Granting U Nonimmigrant Status
If USCIS finds that the petitioner has satisfied the requirements
for U nonimmigrant status, it will grant U nonimmigrant status to the
petitioner and derivative family members, unless the annual numerical
limit applicable to principal petitioners has been reached. New 8 CFR
214.14(c)(5)(i); new 8 CFR 214.14(f)(6). If a number is available for
the principal petitioner, USCIS will send a notice of approval on Form
I-797, ``Notice of Action,'' to the principal petitioner or, if the
principal petitioner is overseas, to the Department of State for
forwarding to the appropriate U.S. Embassy or Consulate or to the
appropriate port of entry (visa exempt alien). New 8 CFR
214.14(c)(5)(i)(A) and (B). USCIS also will send to the principal
petitioner a notice of approval on Form I-797 for derivative family
members for whom USCIS has approved Form I-918, Supplement A. New 8 CFR
214.14(f)(6)(i) and (ii). If a number is not available, USCIS will
notify the petitioner that, in accordance with new 8 CFR 214.14(d)(2),
he or she has been placed on the waiting list, given deferred action or
parole, and may request employment authorization. USCIS will also grant
deferred action or parole to derivative family members with an
opportunity to request employment authorization. New 8 CFR
214.14(d)(2).
For those principal petitioners and derivative family members who
are within the United States, a Form I-94, ``Arrival-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. New 8 CFR 214.14(c)(5)(i)(A); new 8
CFR 214.14(f)(6)(i). For those principal petitioners or qualifying
family members who are outside the United States, USCIS will follow the
standard procedures for issuing grants as applied to other nonimmigrant
categories. USCIS will forward the notice of approval to the Department
of State for delivery to the U.S. Embassy or Consulate designated on
the petition, which should be the U.S. Embassy or Consulate having
jurisdiction over the area in which the alien is located, or to the
appropriate port of entry for a visa exempt alien. New 8 CFR
214.14(c)(5)(i)(B); new 8 CFR 214.14(f)(6)(ii).\12\ The principal
petitioner and any derivative family members should file for a U
nonimmigrant visa with the designated U.S. Embassy or Consulate or port
of entry. If granted, the visa can be used to travel to the United
States for admission as a U nonimmigrant.
---------------------------------------------------------------------------
\12\ A visa exempt alien is an alien for whom a valid, unexpired
passport is not required for admission to the United States. INA
sec. 212(d)(4)(B), 8 U.S.C. 1182(d)(4)(B); 8 CFR 212.1(i).
---------------------------------------------------------------------------
This rule provides that principal petitioners and derivative family
members who were granted interim relief and whose petition for U
nonimmigrant status is approved will be accorded U nonimmigrant status
as of the date that the request for U interim relief was approved. New
8 CFR 214.14(c)(6); new 8 CFR 214.14(f)(6)(i). USCIS has determined
that according status as of the date that interim relief was approved
is appropriate so that the time a petitioner spent with interim relief
will count towards the three years of continuous physical presence in U
nonimmigrant status required before the petitioner may adjust status to
that of a lawful permanent resident under section 245(m) of the INA, 8
U.S.C. 1255(m). Memorandum from Michael Aytes, Acting Associate
Director, Domestic Operations, USCIS, Applications for U Nonimmigrant
Status (Jan. 6, 2006). In fact, the House Report for VAWA 2005
indicates that members of Congress expect this result. See H.R. Rep.
No. 109-233, at 114 (2005); see also 151 Cong. Rec. E2605, E2608
(statement of Representative John Conyers). Therefore, under this rule,
recipients of U nonimmigrant status will be eligible to submit an
application to adjust status three years after the date that interim
relief was accorded, rather than having to wait until three years after
the date on which USCIS approves their petition for U nonimmigrant
status.
b. Duration of U Nonimmigrant Status
Section 214(p)(6) of the INA, 8 U.S.C. 1184(p)(6), provides that
the duration of U nonimmigrant status cannot exceed four years.
Extensions are permitted upon certification from a certifying agency
that the alien's presence in the United States is required to assist in
the investigation or prosecution of qualifying criminal activity. This
rule incorporates this provision in new 8 CFR 214.14(g).
New 8 CFR 214.14(g)(1) provides that U nonimmigrant status for both
principals (U-1) and derivative family members (U-2, U-3, U-4, and U-5)
may be approved for a period not to exceed an aggregate of four years.
Because derivative status is based on the principal's status,
derivative status initially will be approved for a period that does not
exceed the period initially approved for the principal. New 8 CFR
214.14(g)(1). Just as with all other nonimmigrant classifications, the
U nonimmigrant's Form I-94 issued to evidence status will indicate the
approved period of stay. For petitioners who were previously accorded
interim relief, USCIS necessarily will indicate on Form I-94 an
approved period of stay that is less than four years. Therefore, for
example, USCIS will issue a petitioner, who was accorded interim relief
two years ago, a Form I-94 reflecting an approved period of stay for up
to another two years upon the grant of U nonimmigrant status.
This rule further provides that U nonimmigrants can apply for an
extension of status in two circumstances. A U nonimmigrant may apply
for an extension of status where his or her status was granted for an
approved period of stay of less than four years in the aggregate. New 8
CFR 214.14(g)(2)(i). This may be the case, for example, where a U
nonimmigrant is outside the United States and experiences delays in
consular processing. Because the petition for U nonimmigrant status is
granted for a specified four-year period, which runs from the date of
approval by USCIS, delays in entering the United States would mean that
the alien would not be admitted to the United States in U nonimmigrant
status until after a portion of the four-year period stated in the
approved petition has already run.
The rule specifically addresses the situation where an overseas
derivative family member receives an approved period of stay that
expires on the same date as the principal's, but that is less than four
years because the derivative was unable to enter the United States in a
timely fashion due to delays in consular processing. Under this rule,
such derivative may apply for an extension of status even though the
principal cannot since the principal's period of stay was already
approved for a four-year period. New 8 CFR 214.14(g)(2)(i).
Necessarily, an approved period of stay based upon such extension of
status application will exceed the date on which the principal's
approved period of stay expired. The reason for this provision is so
that the derivative is able to attain at least three years in U
nonimmigrant status. Such period of time in U nonimmigrant status is
necessary before the alien may apply to adjust status to that of a
lawful permanent resident pursuant to section
[[Page 53029]]
245(m) of the INA, 8 U.S.C. 1255(m). To permit extensions of status for
derivatives in this rule, USCIS considered the text of section
214(p)(6) of the INA, 8 U.S.C. 1184(p)(6). This statutory provision
applies the four-year limit for U nonimmigrant status to all U
nonimmigrants equally, and not just to principal petitioners. In
addition, it does not include a requirement that the derivative's
period of stay run concurrently with the principal's period of stay.
To apply for an extension of U nonimmigrant status under new 8 CFR
214.14(g)(2)(i), this rule provides that the U nonimmigrant must file
Form I-539, ``Application to Extend/Change Nonimmigrant Status,'' in
accordance with the instructions to the form. USCIS requires this
application of most nonimmigrants seeking to extend or change their
nonimmigrant status. USCIS cannot grant an extension to exceed an
aggregate period of four years in U nonimmigrant status. Id.
If the aggregate period of four years in U nonimmigrant status has
been reached, a U nonimmigrant nevertheless may apply for an extension
of status beyond such period if the certifying official attests that
the alien's presence in the United States continues to be necessary to
assist in the investigation or prosecution of the qualifying criminal
activity. New 8 CFR 214.14(g)(2)(ii). Therefore, in order to obtain an
extension of U nonimmigrant status on this basis, the U nonimmigrant
must file Form I-539 in accordance with the instructions to the form
and a newly executed Form I-918, Supplement B. Id.
5. Benefits for U Nonimmigrants
Section 214(p)(3) of the INA, 8 U.S.C. 1184(p)(3), directs the
Secretary of Homeland Security to provide those granted U nonimmigrant
status certain benefits along with their status. The Secretary of
Homeland Security and other government officials, where appropriate,
must provide U nonimmigrants referrals to nongovernmental organizations
which can advise such nonimmigrants of their options while in the
United States and the resources available to them. INA sec.
214(p)(3)(A), 8 U.S.C. 1184(p)(3)(A). In addition, the Secretary of
Homeland Security must provide employment authorization to U
nonimmigrants. INA sec. 214(p)(3)(B), 8 U.S.C. 1184(p)(3)(B). This rule
implements these requirements in new 8 CFR 214.14(c)(5), (c)(7),
(f)(6), and (f)(7), 8 CFR 274a.12(a)(19) and (20), and 8 CFR
274a.13(a).
a. Referrals to Nongovernmental Organizations
New 8 CFR 214.14(c)(5) and (f)(6) adopt the requirement in section
214(p)(3)(A), 8 U.S.C. 1184(p)(3)(A), that, where appropriate, USCIS
provide U nonimmigrants referrals to nongovernmental organizations.
USCIS has determined that it is appropriate to provide such referrals
to all U nonimmigrants, including principals and derivatives alike,
because, as crime victims or family members of crime victims, they may
be in need of additional assistance and information. Accordingly, new 8
CFR 214.14(c)(5) and (f)(6) require USCIS to include in the notice
approving the U nonimmigrant petition a list of nongovernmental
organizations. The nongovernmental organizations that will be included
on the list are those that can provide information and advice regarding
the U nonimmigrant's options while in the United States, including
information regarding options for long-term immigration relief. Such
organizations can also provide the principal with necessary resource
tools.
b. Employment Authorization
This rule provides for automatic employment authorization upon a
grant of U nonimmigrant status, implementing the requirement at section
214(p)(3)(B) of the INA, 8 U.S.C. 1184(p)(3)(B), that the Secretary of
Homeland Security confer employment authorization on aliens granted U
nonimmigrant status. Under new 8 CFR 214.14(c)(7) and 8 CFR
214.14(f)(7), principal aliens and derivative family members granted U
nonimmigrant status are employment authorized incident to their U
nonimmigrant status. This is also reflected in new 8 CFR 274a.12(a)(19)
and (20), where the rule adds these two new categories of aliens to the
existing list of aliens who are employment authorized incident to
status. Automatically conferring employment authorization obviates the
need for the ministerial step of affirmatively granting employment
authorization during the adjudication of each petition.
c. Evidence of Employment Authorization
In addition to conferring employment authorization automatically on
U nonimmigrants, this rule also provides for the issuance of evidence
of employment authorization, an Employment Authorization Document
(EAD). To do so, this rule amends 8 CFR 274a.12(a) and 274a.13(a),
which govern employment authorization documentation for all classes of
aliens. This rule also includes more specific provisions regarding
employment authorization documentation for U nonimmigrants in new 8 CFR
214.14(c)(7) and 214.14(f)(7).
The EAD can serve as evidence of both employment authorization and
identity. 8 CFR 274a.2(b)(1)(v)(A)(4). Aliens seeking new employment or
maintaining current employment can present their EAD to employers
verifying employment authorization and identity pursuant to the
requirements of section 274A(b) of the INA, 8 U.S.C. 1324a(b), and 8
CFR 274a.2.
For principal aliens seeking their first EAD based upon U
nonimmigrant status, USCIS will use the information contained in Form
I-918 to automatically generate an EAD, such that a separate request
for an EAD is not necessary. See new 8 CFR 214.14(c)(7). USCIS has
designed the Form I-918 so that it serves the dual purpose of
requesting U nonimmigrant status and employment authorization to
streamline the application process. Therefore, principal aliens will
not have to file additional paperwork to obtain an initial EAD.
For principal aliens applying for U nonimmigrant status from
outside the United States, this rule provides that the initial EAD will
not be produced until the alien has been admitted to the United States
in U-1 nonimmigrant status. Id. To receive an EAD, the alien must make
a request to USCIS for an EAD accompanied by a copy of his or her Form
I-94, ``Arrival-Departure Record,'' proving the alien's admission to
the United States in U-1 nonimmigrant status. Id. No forms or filing
fees are required. Id. Form I-94 should be submitted to the office
having jurisdiction over petitions for U nonimmigrant status as
indicated on the instructions to Form I-918.
Derivative family members seeking an EAD must make their EAD
request on a form separate from Form I-918, Supplement A requesting U
nonimmigrant status. To request an EAD, derivative family members must
file Form I-765, ``Application for Employment Authorization,'' with the
appropriate filing fee (or a request for a fee waiver) stated in the
instructions to the form. New 8 CFR 214.14(f)(7); revised 8 CFR
274a.13(a). USCIS could not design Form I-918, Supplement A to serve as
a dual purpose form for derivative family members because the form is
filed by the principal alien on behalf of, rather than directly by,
derivative family members.
For derivative family members who are within the United States,
Form I-
[[Page 53030]]
765 may be filed concurrently with Form I-918, Supplement A, or it may
be filed at a later time. New 8 CFR 214.14(f)(7). For derivative family
members who are outside the United States, Form I-765 must be filed
with the office having jurisdiction over petitions for U nonimmigrant
status, as specified in the instructions to the Form I-765, after their
admission to the United States in U nonimmigrant status. Id. They
should include a copy of their approval notice for U nonimmigrant
classification, a copy of their passport, and a copy of their Form I-
94. This supporting documentation is necessary to verify identity and
confirm the alien's physical presence in the United States and U
nonimmigrant status.
Whether automatically generated or generated based on Form I-765,
USCIS will issue the initial EAD on Forms I-766 or I-688B, valid for no
longer than the approved period of stay in U nonimmigrant status. U
nonimmigrants whose EADs will expire earlier may request a renewal EAD.
Renewal requests must be made on Form I-765 in accordance with form
instructions and with the appropriate fee or request for a fee waiver.
This rule also makes conforming amendments to 8 CFR parts 274a.12
and 274a.13. New 8 CFR 274a.12(a)(19) provides that principal
nonimmigrants in U-1 status are employment authorized incident to
status and do not need to apply to USCIS for a document evidencing this
employment authorization. New 8 CFR 274a.12(a)(20) and revised 8 CFR
274a.13(a) provide that derivative family members in U-2, U-3, U-4, and
U-5 nonimmigrant status are employment authorized incident to status,
but must apply to USCIS for employment authorization documentation.
This rule also makes technical corrections to 8 CFR parts 274a.12
and 274a.13(a) to eliminate certain errors. The corrections clarify:
(1) That asylees described in 8 CFR 274a.12(a)(5) and T nonimmigrants
described in 8 CFR 274a.12(a)(16) do not need to apply to USCIS in
order to receive a document evidencing their employment authorization
incident to status; and (2) that aliens granted Family Unity benefits
under the LIFE Act described in 8 CFR 274a.12(a)(14) and V
nonimmigrants described in 8 CFR 274a.12(a)(15) must apply to USCIS in
order to receive a document evidencing such employment authorization.
This rule also reserves 8 CFR 274a.12(a)(17) and (18) for future use.
6. Travel Outside the United States
Aliens with U nonimmigrant status may travel outside the United
States. However, in order to return to the United States, such aliens
must obtain a U nonimmigrant visa for re-entry to the United States
unless they are visa exempt. 8 CFR 212.1. They also should keep in mind
that if they accrued more than 180 days of ``unlawful presence'' prior
to obtaining U nonimmigrant status, they may be found inadmissible upon
their return to the United States. See INA sec. 212(a)(9)(B), 8 U.S.C.
1182(a)(9)(B). Any alien other than a lawful permanent resident who was
unlawfully present in the United States between 180 days and one year
and departs the United States is barred from readmission to the United
States for three years from the date of departure. INA sec.
212(a)(9)(B)(i)(I), 8 U.S.C. 1182(a)(9)(B)(i)(I). If the alien was
unlawfully present for more than one year, he or she is barred from
seeking readmission for a period of 10 years from the date of
departure. INA sec. 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II).
An alien is deemed to be unlawfully present in the United States if he
or she remains in the United States after the expiration of an
authorized period of stay or is present in the United States without
being admitted or paroled. INA sec. 212(a)(9)(B)(ii), 8 U.S.C.
1182(a)(9)(B)(ii). U nonimmigrant aliens subject to the unlawful
presence ground of inadmissibility may request a waiver of
inadmissibility on Form I-192, as discussed earlier in this
Supplementary Information, prior to or upon their return to the United
States.
For nonimmigrants seeking admission to the United States, a valid,
unexpired passport is required in addition to a valid visa, unless an
exemption applies. See INA sec. 212(a)(7)(B), 8 U.S.C. 1182(a)(7)(B); 8
CFR 212.1. In unforeseen emergency situations, these requirements may
be waived for certain categories of nonimmigrants. INA sec.
212(d)(4)(A), 8 U.S.C. 1182(d)(4)(A); 8 CFR 212.1(g). This rule extends
eligibility to apply for this waiver to U nonimmigrants and petitioners
for U nonimmigrant status. USCIS believes that such an extension is
necessary because U nonimmigrants or petitioners for U nonimmigrant
status, as crime victims, may be faced with threats to their lives or
safety which may make them unable to timely obtain a visa or passport.
Accordingly, this rule amends 8 CFR 212.1(g) to add U-1, U-2, U-3,
U-4, and U-5 nonimmigrants and those seeking such status to the list of
nonimmigrants who may seek a waiver of the visa and passport
requirements for unforeseen emergencies. See revised 8 CFR 212.1(g).
This waiver may apply to a U nonimmigrant who needs to travel outside
the United States but, due to an unforeseen emergency, is unable to
obtain a passport from his or her country of citizenship or nationality
or a visa from a U.S. Embassy or Consulate in order to re-enter the
United States. This waiver also may apply to a petitioner for U
nonimmigrant status who is outside the United States, but who needs to
enter the United States due to an unforeseen emergency after Form I-918
is adjudicated but before he or she has received a visa from a U.S.
embassy or consular office or obtained a passport from his or her
country of citizenship or nationality. For example, USCIS anticipates
that this waiver could be needed where government officials from the
alien victim's home country are implicated in the criminal activity,
and, as a result, the petitioner is unable to obtain a passport or
safely travel to the U.S. Embassy or Consulate to obtain a visa. A
waiver may also be needed where the perpetrator is not in custody, has
made threats against the petitioner, and the petitioner needs to enter
the United States immediately to ensure his or her safety.
As under the current regulatory provision, this rule maintains that
all eligible nonimmigrants must request a waiver on Form I-193,
``Application for Waiver of Passport and/or Visa.'' Revised 8 CFR
212.1(g). New 8 CFR 212.1(p) authorizes the director of the office
having jurisdiction over the adjudication of Form I-918 to adjudicate
the waiver application.
This rule makes a technical correction to current 8 CFR 212.1(g) by
deleting the reference to ``Deputy Commissioner.'' This position no
longer exists after DHS took over the functions of the former
Immigration and Naturalization Service in March of 2003. See 6 U.S.C.
291(a).
7. Revocation of U Nonimmigrant Status
This rule establishes USCIS's authority to revoke its approval of
Form I-918 and Form I-918, Supplement A, and any waivers of
inadmissibility that were granted in conjunction with the petition. New
8 CFR 214.14(h). Revocation authority flows from section 214(a)(1) of
the INA, 8 U.S.C. 1184(a)(1). This provision authorizes the Secretary
of Homeland Security to prescribe, by regulation, the time and
conditions of admission of any nonimmigrant. Implicit in this authority
is the authority to prescribe the conditions under which nonimmigrant
status may be revoked. Revocation of an approved U
[[Page 53031]]
nonimmigrant status petition necessarily results in the termination of
U nonimmigrant status. New 8 CFR 214.14(h)(4).
The rule establishes two forms of revocation: Automatic and by
notice. Automatic revocation applies where a principal alien with an
approved U nonimmigrant petition who applied from outside the United
States notifies USCIS that he or she will not use the approved petition
to enter the United States. New 8 CFR 214.14(h)(1).
Revocation by notice is at the discretion of USCIS. See new 8 CFR
214.14(h)(2). This rule establishes the following bases for revocations
by notice: (1) Where the certifying official withdraws the U
nonimmigrant status certification upon which the principal U
nonimmigrant's petition was based or disavows the contents of the
certification in writing; (2) where approval of the petition was in
error; (3) where there was fraud in the petition; (4) where a
derivative's relationship to the principal has terminated; and (5)
where the principal's approved petition for U-1 nonimmigrant status is
revoked. Id. USCIS has determined that revocation of a petition by
notice in cases where the certification is withdrawn is appropriate
because when that occurs, the principal no longer meets the
requirements for U nonimmigrant status as described by section
101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U), and therefore, is no
longer maintaining status. A nonimmigrant who fails to maintain
nonimmigrant status is removable from the United States under section
237(a)(1)(C)(i) of the INA, 8 U.S.C. 1227(a)(1)(C)(i). USCIS has
determined that revocation of a petition by notice in cases of fraud or
error is appropriate because both bases indicate that the petitioner
may have obtained a benefit for which he or she was not eligible. USCIS
has also determined that revocation of a derivative petition where the
relationship to the principal has terminated or where the principal's
U-1 nonimmigrant status has been revoked is appropriate because, as a
general matter, a derivative's status is dependent upon the principal's
status. This rule classifies these bases for revocation as
discretionary rather than automatic because USCIS recognizes that there
may be instances in which revocation of the derivative petition is not
warranted. For example, revocation of the derivative petition may not
be warranted where the derivative is providing valuable assistance to
the certifying agency in the investigation or prosecution of criminal
activity. Providing such assistance is an eligibility requirement for U
nonimmigrants, including derivatives, seeking to adjust status to that
of a lawful permanent resident. See INA sec. 245(m), 8 U.S.C. 1255(m).
At new 8 CFR 214.14(h)(2)(ii), this rule provides that the notice
of intent to revoke must be in writing and contain a statement of the
grounds for the revocation. This provision also states that the alien
may submit evidence in rebuttal within 30 days of the date of the
notice, which is the standard amount of time given for rebutting a
notice of intent to revoke. See, e.g., 8 CFR 214.2(h)(11)(iii)(B); 8
CFR 214.11(s)(2). The rule mandates that USCIS must consider all
relevant evidence presented in deciding whether to revoke the approval
of the petition. The rule provides that just as with the initial
adjudication of Form I-918, the determination of what is relevant
evidence and the weight to be given to that evidence will be within the
sole discretion of USCIS. If USCIS revokes approval of a petition and
thereby terminates U nonimmigrant status, USCIS will provide the alien
with a written notice of revocation that explains the specific reasons
for the revocation. New 8 CFR 214.14(h)(2)(ii).
For revocations by notice, this rule permits appeals to USCIS's
AAO. New 8 CFR 214.14(h)(3). The rule requires appeals to be submitted
within 30 days of the date of the notice of revocation. USCIS believes
this is a reasonable amount of time for the petitioner to appeal the
decision and is in keeping with the desire to promote administrative
efficiency and finality in adjudications. In addition, a timeframe of
30 days to file an appeal is a standard period for filing an appeal.
See, e.g., 8 CFR 103.3(a)(2)(i); 8 CFR 214.2(h)(12)(ii). Appeals are
not permitted for automatic revocations. New 8 CFR 214.14(h)(3). Once
the certifying agency has withdrawn the certification, the alien ceases
to be statutorily eligible for U nonimmigrant status, and there is no
basis for an appeal.
Once USCIS revokes a principal alien's approved petition for U
nonimmigrant status, USCIS will also deny any pending U nonimmigrant
petitions for qualifying family members. New 8 CFR 214.14(h)(4).
Without an approved petition for U nonimmigrant status for the
principal, there is no statutory basis for granting U-2, U-3, U-4, or
U-5 derivative status.
This rule provides that revocation of a previously approved
petition will have no effect on the annual cap. New 8 CFR 214.14(h)(4).
Therefore, once a U nonimmigrant status is granted to a principal
alien, the number will be deemed to have been used and cannot be used
again. In developing this rule, USCIS considered providing for re-use
of the number. However, USCIS determined that not only would it be
infeasible to track such numbers, USCIS does not believe it has the
statutory authority to recapture the numbers after the end of each
fiscal year.
8. Removal Proceedings
This rule provides for another means for terminating U nonimmigrant
status. New 8 CFR 214.14(i) states that USCIS may exercise its existing
authority to institute removal proceedings under section 239 of the
INA, 8 U.S.C. 1229, for conduct committed after admission, for conduct
or a condition that was not disclosed to USCIS prior to the granting of
U nonimmigrant status, for misrepresentations of material facts in the
Form I-918, Form I-918, Supplement A, or supporting documentation, or
after revocation of U nonimmigrant status. Each of these circumstances
may give rise to a ground of removability under section 237(a) of the
INA, 8 U.S.C. 1227(a).
D. Filing and Biometric Services Fees
USCIS has determined that no fee will be charged for filing Form I-
918 or for derivative U nonimmigrant status for qualifying family
members. See 72 FR 29851, at 29865. Petitioners must, however, submit
the established fee for biometric services for each person ages 14
through 79 inclusive with each U nonimmigrant status petition. New 8
CFR 214.14(c)(2)(iv). USCIS recognizes that many petitioners for U
nonimmigrant status may be unable to pay the biometric services fee.
Petitioners who are financially unable to pay the biometric services
fee may submit an application for a fee waiver, as outlined in 8 CFR
103.7(c). The granting of a fee waiver will be at the sole discretion
of USCIS. See 72 FR 29851, at 29865. Further guidance on fee waivers
can be found on USCIS's Web site at http://www.uscis.gov/graphics/formsfee/forms/index.htm
.
This program involves the personal well-being of a few applicants
and petitioners, and the decision to waive the petition fee reflects
the humanitarian purposes of the authorizing statutes. This blanket fee
exemption is because it is consistent with the legislative intent to
assist persons in these circumstances. Also, anecdotal evidence
indicates that applicants under these programs are generally deserving
of a fee waiver. Thus, USCIS determined that these programs would
likely result in such a
[[Page 53032]]
high number of waiver requests that adjudication of those requests
would overtake the adjudication of the benefit requests themselves.
IV. Regulatory Requirements
A. Administrative Procedure Act
USCIS has determined that delaying this rule to allow public
comment would be impracticable and contrary to the public interest;
thus, this rule is being published as an interim final rule and is
effective 30 days after publication. Nonetheless, USCIS invites
comments and will address comments in the final rule.
USCIS finds a compelling public need for rapid implementation of
this rule justifying the exception allowed by the Administrative
Procedure Act (APA) to the requirements for soliciting public comment
before a rule shall take effect. 5 U.S.C. 553(b)(3)(B). This exception
should be used by agencies in cases, such as this, where delay could
result in serious harm. See, Jifry v. Fed. Aviation Admin., 370 F.3d
1174 (D.C. Cir. 2004) (finding the exception excuses notice and comment
where delay could result in serious harm). Congress created the new U
classification to curtail criminal activity, protect victims of crimes
committed against them in the United States, and encourage victims to
fully participate in the investigation of the crimes and the
prosecution of the perpetrators. See BIWPA sec. 1513(a)(2). Many
immigrant crime victims fear coming forward to assist law enforcement
until this rule is effective. Thus, continued delay of this rule
further exposes victims of these crimes to danger, and leaves their
legal status in an indeterminate state. Moreover, the delay prevents
law enforcement agencies from receiving the benefits of the BIWPA and
continues to expose the U.S. to security risks and other effects of
human trafficking. Therefore, delay in the implementation of these
regulations would be contrary to the public interest.
Further, USCIS finds that the good cause exception is warranted by
the statutorily imposed deadline and the complicated nature of this
rule. Agencies may bypass public comment when a statutorily imposed
deadline is combined with a complicated statutory or regulatory scheme
and there is either evidence that the agency has been diligent in its
efforts to comply with the statutory deadline or a compelling need for
rapid implementation of the regulation. See Methodist Hosp. of
Sacramento v. Shalala, 38 F.3d 1225 (D.C. Cir. 1994) (5 month statutory
deadline and complex regulatory framework constituted good cause for
exception); Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984)
(agency's good cause argument was justifiable ``in light of extremely
limited timeframe given by Congress in relation to amount of work
required to produce rule.''). Section 828 of the Violence Against Women
and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162,
January 5, 2006) requires DHS to publish regulations required by that
Act within 180 days after enactment (i.e., July 4, 2006).
Unfortunately, the statutory and regulatory framework of U.S.
immigration laws is exceedingly complex. See Zadvydas v. Davis, 533
U.S. 678 (2001). Plus, these regulations have required input and
coordination with law enforcement agencies affected by this rule to
balance its humanitarian goals and law enforcement interests.
Accordingly, DHS finds that good cause exists under 5 U.S.C. 553(b)
to make this interim rule effective 30 days following publication in
the Federal Register, before closure of the 60-day public comment
period. DHS nevertheless invites written comments on this interim rule,
and will consider any timely comments in preparing a final rule.
DHS notes that in compliance with the Paperwork Reduction Act,
USCIS published notices in the Federal Register requesting public
comment on Form I-918, ``Petition for U Nonimmigrant Status,''
Supplement A, ``Petition for Qualifying Family Member of U-1
Recipient,'' and Supplement B, ``U Nonimmigrant Status Certification.''
See 70 FR 72460 (Dec. 5, 2005) (60-day notice); 71 FR 32117 (June 2,
2006) (30-day notice). The instructions to these forms include
descriptions of the eligibility and evidentiary requirements for
obtaining U nonimmigrant status. USCIS received 55 comments in response
to the 60-day notice. The comments addressed the comprehension,
readability, and burden estimate of the form, as well as the substance
of the form instructions. The substantive comments primarily focused on
seven general areas: (1) Changes required by intervening legislation;
(2) the certification process; (3) instructions for interim relief
recipients; (4) filing deadlines; (5) fees; (6) the admissibility
requirement; and (7) the evidence standard. In response to these
comments, USCIS revised the forms for the 30-day notice and
incorporated the comments, as appropriate, into this interim rule.
USCIS received no comments in response to the 30-day notice.
To review the forms, a summary of the public comments, and USCIS'
response to the comments, contact the Regulatory Management Division,
U.S. Citizenship and Immigration Services, Department of Homeland
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC
20529, rfs.regs@dhs.gov (e-mail).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996
(SBRFA), requires an agency to prepare and make available to the public
a regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small governmental jurisdictions). RFA analysis is not required when a
rule is exempt from notice and comment rulemaking under 5 U.S.C.
553(b). USCIS has determined that this rule is exempt from notice and
comment rulemaking pursuant to 5 U.S.C. 553(b)(B). Further, this
regulation directly regulates individuals, not small entities as that
term is defined under the RFA. Therefore, an RFA analysis is not
required for this rule.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in one year, and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
E. Executive Order 12866 (Regulatory Planning and Review)
This rule is considered by USCIS to be a significant regulatory
action under Executive Order 12866, section 3(f), Regulatory Planning
and Review. Accordingly, this regulation has been submitted to the
Office of Management and Budget for review.
[[Page 53033]]
This rule establishes the requirements and procedures for aliens
seeking nonimmigrant status under the U classification. The U
nonimmigrant classification is available to alien victims of certain
criminal activity who assist government officials in investigating or
prosecuting that criminal activity, and provides temporary immigration
benefits (nonimmigrant status and employment authorization),
potentially leading to permanent resident status. This rule requires
and establishes an application process for U nonimmigrant status and
employment authorization, designating Form I-918 as the form that
petitioners must use to request U nonimmigrant status. This rule also
imposes petition requirements and processing fees.
1. Costs to Petitioners
USCIS estimates the total annual cost of this interim rule to be
$6,182,000. This cost includes the biometric services fee that the
petitioner must pay to USCIS, the opportunity cost of time needed to
submit the required forms, the opportunity cost of time required for a
visit to an Application Support Center, and the cost of traveling to an
Application Support Center. Below, these costs are described in more
detail.
This rule requires any individual seeking U nonimmigrant status to
pay the prescribed biometric services fee. This fee is currently $80
per person. See 72 FR 29851.
USCIS estimates that it will receive 12,000 Forms I-918 and 24,000
Forms I-918, Supplement A each fiscal year. Therefore, USCIS estimates
that this rule will cost petitioners $960,000 (12,000 x $80 biometric
services charge) in fees for Forms I-918, and $1,920,000 (24,000 x $80
biometric services charge) in fees for Forms I-918, Supplement A. The
total cost of this rule to petitioners will be $2,880,000 in biometric
services fees each fiscal year.
Additionally, USCIS estimates that each Form I-918 petitioner will
spend 5 hours complying with this rule. USCIS estimates that each
petitioner will spend 75 minutes reading the Form I-918 instructions.
It will take 75 minutes to complete the form and 150 minutes to
assemble and submit the form, for a total of 300 minutes of each
petitioner's time. USCIS estimates that petitioners also submitting
Form I-918, Supplement A will spend 1 hour and 30 minutes complying
with this rule. USCIS estimates that each petitioner will spend 30
minutes reading the instructions to Form I-918, Supplement A, 30
minutes to complete the form, and 30 minutes to assemble and submit the
form.
Petitioners and qualifying family members will also be required to
travel to the nearest USCIS Application Support Center (ASC) to provide
biometrics information. While travel times and distances will vary,
USCIS estimates the average round-trip to an ASC will be 20 miles, and
that the average time for that trip will be an hour. It will take an
average of one hour for a petitioner or qualifying family member to
wait for service, and to have his or her biometrics collected. Total
time for each individual to comply with this requirement is two hours.
As previously discussed, USCIS expects to receive a total of 36,000
forms (12,000 Forms I-918 and 24,000 Forms I-918, Supplement A)
annually. However, USCIS does not know how many of these forms will be
filed by adults on behalf of children. Consequently, it is difficult
for USCIS to estimate the opportunity cost of time for the 36,000
petitioners and qualifying family members with precision. For the
purpose of this economic analysis, USCIS will assume that all
petitioners and qualifying family members are adults and use an
opportunity cost of time based on national wage rates. Specifically,
USCIS is using the mean national hourly wage rate from the Bureau of
Labor Statistics (BLS) for 2003 as a proxy for the opportunity cost of
an individual's time. BLS estimates for ``All Occupations'' the mean
hourly wage was $17.75 in 2003. Using this BLS wage data, USCIS
estimates the total cost for petitioner time spent is $1,491,000
(12,000 persons x 7.0 hours x $17.75) for Form I-918 petitioners, and
$1,491,000 (24,000 persons x 3.5 hours x $17.75) for Form I-918,
Supplement A petitioners and qualifying family members.
Additionally, there is the cost of travel. USCIS anticipates that
most petitioners will drive privately-owned vehicles to the ASCs. The
General Services Administration (GSA) establishes a reimbursement rate
that is used when privately owned vehicles are used by federal
employees while on official travel. We consider this GSA reimbursement
rate to be a reasonable proxy for the cost of driving to an ASC. This
reimbursement rate fluctuates over time; however, as of January 1,
2006, GSA calculates the cost of operating a privately-owned vehicle as
44.5 cents a mile. Therefore, USCIS calculates the transportation costs
as $320,400 (36,000 persons x 44.5 cents per mile x 20 miles).
In summary, USCIS estimates the total cost of the program would be
$2,880,000 in biometric services fees, $2,982,000 million in time and
$320,400 in transportation costs. The total cost of compliance to this
rule each fiscal year by 36,000 persons is $6,182,000 ($2,880,000 +
$2,982,000 million + $320,400).
2. Treatment of Petitions That Exceed the Statutory Cap
The number of petitions for U-1 nonimmigrant status that USCIS may
grant is limited to 10,000 in any fiscal year (October 1 through
September 30). INA sec. 214(p)(2), 8 U.S.C. 1184(p)(2). USCIS
anticipates receiving 12,000 petitions each fiscal year. Therefore, the
potential exists that the number of approvable petitions per fiscal
year will exceed the numerical limit (i.e., cap). USCIS has identified
the following four alternatives, the first being chosen for this rule:
1. USCIS would adjudicate petitions on a first in, first out basis.
Petitions received after the limit has been reached would be reviewed
to determine whether or not they are approvable but for the numerical
cap. Approvable petitions that are reviewed after the numerical cap has
been reached would be placed on a waiting list and written notice would
be sent to the petitioner. Priority on the waiting list would be based
upon the date on which the petition is filed. USCIS would provide
petitioners on the waiting list with interim relief until the start of
the next fiscal year in the form of deferred action, parole, or a stay
of removal. At the beginning of the next fiscal year, petitions on the
waiting list would be granted first. Advantages to this alternative
include: assisting law enforcement agencies by allowing the alien
victim to remain in the United States to assist in the investigation or
prosecution of criminal activity while waiting for new numbers to
become available; improving customer service by allowing victims to
remain in the United States, giving them an opportunity to access
victims services to which they may be entitled; and providing
employment authorization to alien victims so they will have a lawful
means through which to support themselves and their families.
Disadvantages include additional administrative and case management
costs to USCIS due to the need to maintain a waiting list during the
fiscal year and to adjudicate interim relief. In addition, those
applying for U nonimmigrant status from outside the United States may
be disadvantaged because they will not be able to enter the United
States while waiting for a new number to become available.
2. USCIS would adjudicate petitions on a first in, first out basis,
establishing
[[Page 53034]]
a waiting list for petitions that are pending or received after the
numerical cap has been reached. Priority on the waiting list would be
based upon the date on which the petition was filed. USCIS would not
provide interim relief to petitioners whose petitions are placed on the
waiting list. This means that petitioners who are not in status would
be accruing unlawful presence and would be removable. At the beginning
of the next fiscal year, petitions on the waiting list would be
adjudicated first. The primary advantage of this alternative is that it
eliminates the need for petitioners to file a new petition each year
and keeps petitions in process. Disadvantages of this alternative
include: little assurance that the alien victim will not be removed
from the United States; law enforcement has no assurance that the alien
victim will be present in the United States to assist in the
investigation or prosecution of criminal activity; without permission
to remain in the U.S., the alien victim may be deprived of victims
services to which they may be entitled. This approach would also result
in additional administrative and case management costs by creating the
need to maintain a waiting list during the fiscal year and could create
a perpetual waiting list/backlog.
3. USCIS would adjudicate petitions on a first in, first out basis.
However, new filings would be reviewed to identify particularly
compelling cases for adjudication. New filings would be rejected once
the numerical cap is reached. No official waiting list would be
established; however, interim relief until the start of the next fiscal
year would be provided for some compelling cases. If a case was not
particularly compelling, the filing would be denied or rejected. The
advantage to this approach is that it would provide a mechanism to
ensure that certain alien victims needed for the investigation or
prosecution of criminal activity would be able to remain in the United
States. Disadvantages include: difficulty in establishing balanced
standards regarding who will receive interim relief; depriving alien
victims not given interim relief of victims' services to which they may
be entitled; and depriving law enforcement of assistance of victims not
given interim relief. An additional disadvantage would be that
petitioners would have to pay the filing fee in order for USCIS to
review the petition to determine whether it was particularly compelling
and merited interim relief. A large percentage of the petitions would
likely be denied or rejected which would result in financial losses to
the petitioners.
4. USCIS would adjudicate petitions on a first in, first out basis.
However, new filings would be rejected once the numerical cap is
reached. No waiting list would be established, nor would interim relief
be granted. Advantages to this approach include no additional
administrative or case management costs since it would allow rejection
once the cap is reached, and equal treatment for those applying from
outside the United States. Disadvantages include: depriving law
enforcement of cooperating alien victims for those whose petitions are
rejected; depriving rejected petitioners access to victims services to
which they may be entitled; disadvantaging those who are unable to file
early in the fiscal year; and potentially impeding case processing
efficiency by causing adjudication to occur in waves (i.e., busy during
the beginning of the fiscal year and then slow once the cap is
reached).
USCIS chose the first alternative for this rule because USCIS believes
that it best meets the goals of the BIWPA by both ensuring the
protection of alien victims and minimizing the risk of disruptions to
criminal investigations and prosecutions.
USCIS solicits comments on these alternatives, as well as other
proposals for managing the numerical limitation on grants of U
nonimmigrant status.
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Family Assessment
I have reviewed this regulation and have determined that it may
affect family well-being as that term is defined in section 654 of the
Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A.
Accordingly, I have assessed this action in accordance with the
criteria specified by section 654(c)(1). This regulation will enhance
family well-being by encouraging vulnerable individuals who have been
victims of certain criminal activity, or in some cases, whose family
members have been victims of certain criminal activity, to report the
criminal activity, and by providing critical assistance and benefits.
Additionally, this regulation allows qualifying family members to
obtain U nonimmigrant status once the principal petitioner has received
status.
I. Paperwork Reduction Act
This rule establishes application requirements and procedures for
aliens to receive U nonimmigrant status, defined in section
101(a)(15)(U) of the INA, 8 U.S.C. 1101(a)(15)(U). Some of the
information collection requirements contained in this rule have been
cleared by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act. Clearance numbers for these
collections are contained in 8 CFR 299.5, Display Control Numbers, and
are noted herein. Form I-192, ``Application for Advance Permission to
Enter as Nonimmigrant,'' OMB Control Number 1615-0017; Form I-193,
``Application for Waiver of Passport and/or Visa,'' OMB Control Number
1653-0004; Form I-539, ``Application to Extend/Change Nonimmigrant
Status,'' OMB Control Number 1615-0003; Form I-765, ``Application for
Employment Authorization,'' OMB Control Number 1615-0040.
In addition, this rule requires that an alien submit a completed
Form I-918, ``Petition for U Nonimmigrant Status,'' and supporting
documentation to apply for U nonimmigrant status. This Form I-918 and
supporting documentation is considered a new information collection
under the Paperwork Reduction Act. OMB has approved this new
information collection in accordance with the Paperwork Reduction Act
of 1995 and assigned it OMB Control Number 1615-0104.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Forms, Freedom of information, Privacy,
Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
[[Page 53035]]
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students, victims.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356;
31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2335 (6 U.S.C. 1 et
seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8
CFR part 2.
0
2. Section 103.7(b)(1) is amended by adding, in proper alpha/numeric
sequence, a new ``Form I-918'' and ``Form I-918, Supplement A'' to read
as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
Form I-918. For filing a petition to classify an alien as a
nonimmigrant under section 101(a)(15)(U)(i) of the Act, 8 U.S.C.
1101(a)(15)(U)(i)--$270. For filing a petition to classify an alien as
a nonimmigrant under section 101(a)(15)(U)(ii) of the Act, 8 U.S.C.
1101(a)(15)(U)(ii), on Form I-918, Supplement A concurrently with Form
I-918--$120 per family member, up to a maximum amount of $540.
Form I-918, Supplement A. For filing a petition to classify an
alien as a nonimmigrant under section 101(a)(15)(U)(ii) separately from
Form I-918--$120.
* * * * *
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSABLE ALIENS; PAROLE
0
3. The authority citation for part 212 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227.
0
4. Section 212.1 is amended by revising paragraph (g) and adding a new
paragraph (p) to read as follows:
Sec. 212.1 Documentary requirements for nonimmigrants.
* * * * *
(g) Unforeseen emergency. A nonimmigrant seeking admission to the
United States must present an unexpired visa and passport valid for the
amount of time set forth in section 212(a)(7)(B) of the Act, 8 U.S.C.
1182(a)(7), or a valid biometric border crossing card, issued by the
DOS on Form DSP-150, at the time of application for admission, unless
the nonimmigrant satisfies the requirements described in one or more of
the paragraphs (a) through (f) or (i), (o), or (p) of this section.
Upon a nonimmigrant's application on Form I-193, ``Application for
Waiver of Passport and/or Visa,'' a district director may, in the
exercise of his or her discretion, on a case-by-case basis, waive the
documentary requirements, if satisfied that the nonimmigrant cannot
present the required documents because of an unforeseen emergency. The
district director may at any time revoke a waiver previously authorized
pursuant to this paragraph and notify the nonimmigrant in writing to
that effect.
* * * * *
(p) Alien in U-1 through U-5 classification. Individuals seeking U-
1 through U-5 nonimmigrant status may avail themselves of the
provisions of paragraph (g) of this section, except that the authority
to waive documentary requirements resides with the director of the
USCIS office having jurisdiction over the adjudication of Form I-918,
``Petition for U Nonimmigrant Status.''
0
5. Section 212.17 is added, to read as follows:
Sec. 212.17 Applications for the exercise of discretion relating to U
nonimmigrant status.
(a) Filing the waiver application. An alien applying for a waiver
of inadmissibility under section 212(d)(3)(B) or (d)(14) of the Act
(waivers of inadmissibility), 8 U.S.C. 1182(d)(3)(B) or (d)(14), in
connection with a petition for U nonimmigrant status being filed
pursuant to 8 CFR 214.14, must submit Form I-192, ``Application for
Advance Permission to Enter as Non-Immigrant,'' in accordance with the
form instructions, along with Form I-918, ``Petition for U Nonimmigrant
Status,'' or Form I-918, Supplement A, ``Petition for Qualifying Family
Member of U-1 Recipient.'' An alien in U nonimmigrant status who is
seeking a waiver of section 212(a)(9)(B) of the Act, 8 U.S.C.
1182(a)(9)(B) (unlawful presence ground of inadmissibility triggered by
departure from the United States), must file Form I-192 prior to his or
her application for re-entry to the United States in accordance with
the form instructions.
(b) Treatment of waiver application. (1) USCIS, in its discretion,
may grant Form I-192 based on section 212(d)(14) of the Act, 8 U.S.C.
1182(d)(14), if it determines that it is in the public or national
interest to exercise discretion to waive the applicable ground(s) of
inadmissibility. USCIS may not waive a ground of inadmissibility based
upon section 212(a)(3)(E) of the Act, 8 U.S.C. 1182(a)(3)(E). USCIS, in
its discretion, may grant Form I-192 based on section 212(d)(3) of the
Act, 8 U.S.C. 1182(d)(3), except where the ground of inadmissibility
arises under sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii),
(3)(C), or (3)(E) of the Act, 8 U.S.C. 1182(a)(3)(A)(i)(I), (3)(A)(ii),
(3)(A)(iii), (3)(C), or (3)(E).
(2) In the case of applicants inadmissible on criminal or related
grounds, in exercising its discretion USCIS will consider the number
and severity of the offenses of which the applicant has been convicted.
In cases involving violent or dangerous crimes or inadmissibility based
on the security and related grounds in section 212(a)(3) of the Act,
USCIS will only exercise favorable discretion in extraordinary
circumstances.
(3) There is no appeal of a decision to deny a waiver. However,
nothing in this paragraph is intended to prevent an applicant from re-
filing a request for a waiver of ground of inadmissibility in
appropriate cases.
(c) Revocation. The Secretary of Homeland Security, at any time,
may revoke a waiver previously authorized under section 212(d) of the
Act, 8 U.S.C. 118(d). Under no circumstances will the alien or any
party acting on his or her behalf have a right to appeal from a
decision to revoke a waiver.
PART 214--NONIMMIGRANT CLASSES
0
6. The authority citation for part 214 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-
[[Page 53036]]
1305 and 1372; section 643, Pub. L. 104-208, 110 Stat. 3009-708;
Pub. L. 106-386, 114 Stat. 1477-1480; section 141 of the Compacts of
Free Association with the Federated States of Micronesia and the
Republic of the Marshall Islands, and with the Government of Palau,
48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2.
0
7. Section 214.1 is amended by:
0
a. Adding a new paragraph (a)(1)(ix); and by
0
b. Adding classification designations in proper numeric/alphabetical
sequence in the table in paragraph (a)(2).
The additions read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
(a) * * *
(1) * * *
(ix) Section 101(a)(15)(U)(ii) is divided into (U)(ii), (U)(iii),
(U)(iv), and (U)(v) for the spouse, child, parent, and siblings,
respectively, of a nonimmigrant classified under section
101(a)(15)(U)(i); and
(2) * * *
------------------------------------------------------------------------
Section Designation
------------------------------------------------------------------------
101(a)(15)(U)(i).......................... U-1.
101(a)(15)(U)(ii)......................... U-2, U-3, U-4, U-5.
------------------------------------------------------------------------
* * * * *
0
8. A new Sec. 214.14 is added to read as follows:
Sec. 214.14 Alien victims of certain qualifying criminal activity.
(a) Definitions. As used in this section, the term:
(1) BIWPA means Battered Immigrant Women Protection Act of 2000 of
the Victims of Trafficking and Violence Protection Act of 2000, div. B,
Violence Against Women Act of 2000, tit. V, Pub. L. 106-386, 114 Stat.
1464, (2000), amended by Violence Against Women and Department of
Justice Reauthorization Act of 2005, tit. VIII, Pub. L. 109-162, 119
Stat. 2960 (2006), amended by Violence Against Women and Department of
Justice Reauthorization Act--Technical Corrections, Pub. L. 109-271,
120 Stat. 750 (2006).
(2) Certifying agency means a Federal, State, or local law
enforcement agency, prosecutor, judge, or other authority, that has
responsibility for the investigation or prosecution of a qualifying
crime or criminal activity. This definition includes agencies that have
criminal investigative jurisdiction in their respective areas of
expertise, including, but not limited to, child protective services,
the Equal Employment Opportunity Commission, and the Department of
Labor.
(3) Certifying official means:
(i) The head of the certifying agency, or any person(s) in a
supervisory role who has been specifically designated by the head of
the certifying agency to issue U nonimmigrant status certifications on
behalf of that agency; or
(ii) A Federal, State, or local judge.
(4) Indian Country is defined as:
(i) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation;
(ii) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a state;
and
(iii) All Indian allotments, the Indian titles to which have not
been extinguished, including rights-of-way running through such
allotments.
(5) Investigation or prosecution refers to 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.
(6) Military Installation means any facility, base, camp, post,
encampment, station, yard, center, port, aircraft, vehicle, or vessel
under the jurisdiction of the Department of Defense, including any
leased facility, or any other location under military control.
(7) Next friend means a person who appears in a lawsuit to act for
the benefit of an alien under the age of 16 or incapacitated or
incompetent, who has suffered substantial physical or mental abuse as a
result of being a victim of qualifying criminal activity. The next
friend is not a party to the legal proceeding and is not appointed as a
guardian.
(8) Physical or mental abuse means injury or harm to the victim's
physical person, or harm to or impairment of the emotional or
psychological soundness of the victim.
(9) Qualifying crime or qualifying criminal activity includes one
or more of the following or any similar activities in violation of
Federal, State or local criminal law of the United States: Rape;
torture; trafficking; incest; domestic violence; sexual assault;
abusive sexual contact; prostitution; sexual exploitation; 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; or
attempt, conspiracy, or solicitation to commit any of the above
mentioned crimes. 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.
(10) Qualifying family member means, in the case of an alien victim
21 years of age or older who is eligible for U nonimmigrant status as
described in section 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(U),
the spouse or child(ren) of such alien; and, in the case of an alien
victim under the age of 21 who is eligible for U nonimmigrant status as
described in section 101(a)(15)(U) of the Act, qualifying family member
means the spouse, child(ren), parents, or unmarried siblings under the
age of 18 of such an alien.
(11) Territories and Possessions of the United States means
American Samoa, Swains Island, Bajo Nuevo (the Petrel Islands), Baker
Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef,
Midway Atoll, Navassa Island, Northern Mariana Islands, Palmyra Atoll,
Serranilla Bank, and Wake Atoll.
(12) U nonimmigrant status certification means Form I-918,
Supplement B, ``U Nonimmigrant Status Certification,'' which confirms
that the petitioner has been helpful, is being helpful, or is likely to
be helpful in the investigation or prosecution of the qualifying
criminal activity of which he or she is a victim.
(13) U interim relief refers to the interim benefits that were
provided by USCIS to petitioners for U nonimmigrant status, who
requested such benefits and who were deemed prima facie eligible for U
nonimmigrant status prior to the publication of the implementing
regulations.
(14) Victim of qualifying criminal activity generally means an
alien who has suffered direct and proximate harm as a result of the
commission of qualifying criminal activity.
(i) The alien spouse, children under 21 years of age and, if the
direct victim is under 21 years of age, parents and unmarried siblings
under 18 years of age, will be considered victims of qualifying
criminal activity where the direct victim is deceased due to murder or
manslaughter, or is incompetent or incapacitated, and therefore unable
to provide information concerning the criminal activity or be helpful
in the investigation or prosecution of the criminal activity. For
purposes of determining eligibility under this definition, USCIS will
consider the age
[[Page 53037]]
of the victim at the time the qualifying criminal activity occurred.
(ii) A petitioner may be considered a victim of witness tampering,
obstruction of justice, or perjury, including any attempt,
solicitation, or conspiracy to commit one or more of those offenses,
if:
(A) The petitioner has been directly and proximately harmed by the
perpetrator of the witness tampering, obstruction of justice, or
perjury; and
(B) There are reasonable grounds to conclude that the perpetrator
committed the witness tampering, obstruction of justice, or perjury
offense, at least in principal part, as a means:
(1) To avoid or frustrate efforts to investigate, arrest,
prosecute, or otherwise bring to justice the perpetrator for other
criminal activity; or
(2) To further the perpetrator's abuse or exploitation of or undue
control over the petitioner through manipulation of the legal system.
(iii) A person who is culpable for the qualifying criminal activity
being investigated or prosecuted is excluded from being recognized as a
victim of qualifying criminal activity.
(b) Eligibility. An alien is eligible for U-1 nonimmigrant status
if he or she demonstrates all of the following in accordance with
paragraph (c) of this section:
(1) The alien has suffered substantial physical or mental abuse as
a result of having been a victim of qualifying criminal activity.
Whether abuse is substantial is based on a number of factors, including
but not limited to: The nature of the injury inflicted or suffered; the
severity of the perpetrator's conduct; the severity of the harm
suffered; the duration of the infliction of the harm; and the extent to
which there is permanent or serious harm to the appearance, health, or
physical or mental soundness of the victim, including aggravation of
pre-existing conditions. No single factor is a prerequisite to
establish that the abuse suffered was substantial. Also, the existence
of one or more of the factors automatically does not create a
presumption that the abuse suffered was substantial. A series of acts
taken together may be considered to constitute substantial physical or
mental abuse even where no single act alone rises to that level;
(2) The alien possesses credible and reliable information
establishing that he or she has knowledge of the details concerning the
qualifying criminal activity upon which his or her petition is based.
The alien must possess specific facts regarding the criminal activity
leading a certifying official to determine that the petitioner has, is,
or is likely to provide assistance to the investigation or prosecution
of the qualifying criminal activity. In the event that the alien has
not yet reached 16 years of age on the date on which an act
constituting an element of the qualifying criminal activity first
occurred, a parent, guardian or next friend of the alien may possess
the information regarding a qualifying crime. In addition, if the alien
is incapacitated or incompetent, a parent, guardian, or next friend may
possess the information regarding the qualifying crime;
(3) The alien has been helpful, is being helpful, or is likely to
be helpful to a certifying agency in the investigation or prosecution
of the qualifying criminal activity upon which his or her petition is
based, and since the initiation of cooperation, has not refused or
failed to provide information and assistance reasonably requested. In
the event that the alien has not yet reached 16 years of age on the
date on which an act constituting an element of the qualifying criminal
activity first occurred, a parent, guardian or next friend of the alien
may provide the required assistance. In addition, if the petitioner is
incapacitated or incompetent and, therefore, unable to be helpful in
the investigation or prosecution of the qualifying criminal activity, a
parent, guardian, or next friend may provide the required assistance;
and
(4) The qualifying criminal activity occurred in the United States
(including Indian country and U.S. military installations) or in the
territories or possessions of the United States, or violated a U.S.
federal law that provides for extraterritorial jurisdiction to
prosecute the offense in a U.S. federal court.
(c) Application procedures for U nonimmigrant status--(1) Filing a
petition. USCIS has sole jurisdiction over all petitions for U
nonimmigrant status. An alien seeking U-1 nonimmigrant status must
submit, by mail, Form I-918, ``Petition for U Nonimmigrant Status,''
applicable fees (or request for a fee waiver as provided in 8 CFR
103.7(c)), and initial evidence to USCIS in accordance with this
paragraph and the instructions to Form I-918. A petitioner who received
interim relief is not required to submit initial evidence with Form I-
918 if he or she wishes to rely on the law enforcement certification
and other evidence that was submitted with the request for interim
relief.
(i) Petitioners in pending immigration proceedings. An alien who is
in removal proceedings under section 240 of the Act, 8 U.S.C. 1229a, or
in exclusion or deportation proceedings initiated under former sections
236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to
April 1, 1997), and who would like to apply for U nonimmigrant status
must file a Form I-918 directly with USCIS. U.S. Immigration and
Customs Enforcement (ICE) counsel may agree, as a matter of discretion,
to file, at the request of the alien petitioner, a joint motion to
terminate proceedings without prejudice with the immigration judge or
Board of Immigration Appeals, whichever is appropriate, while a
petition for U nonimmigrant status is being adjudicated by USCIS.
(ii) Petitioners with final orders of removal, deportation, or
exclusion. An alien who is the subject of a final order of removal,
deportation, or exclusion is not precluded from filing a petition for
U-1 nonimmigrant status directly with USCIS. The filing of a petition
for U-1 nonimmigrant status has no effect on ICE's authority to execute
a final order, although the alien may file a request for a stay of
removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is
in detention pending execution of the final order, the time during
which a stay is in effect will extend the period of detention (under
the standards of 8 CFR 241.4) reasonably necessary to bring about the
petitioner's removal.
(2) Initial evidence. Form I-918 must include the following initial
evidence:
(i) Form I-918, Supplement B, ``U Nonimmigrant Status
Certification,'' signed by a certifying official within the six months
immediately preceding the filing of Form I-918. The certification must
state that: the person signing the certificate is the head of the
certifying agency, or any person(s) in a supervisory role who has been
specifically designated by the head of the certifying agency to issue U
nonimmigrant status certifications on behalf of that agency, or is a
Federal, State, or local judge; the agency is a Federal, State, or
local law enforcement agency, or prosecutor, judge or other authority,
that has responsibility for the detection, investigation, prosecution,
conviction, or sentencing of qualifying criminal activity; the
applicant has been a victim of qualifying criminal activity that the
certifying official's agency is investigating or prosecuting; the
petitioner possesses information concerning the qualifying criminal
activity of which he or she has been a victim; the petitioner has been,
is being, or is likely to be helpful to an investigation or prosecution
of that qualifying criminal activity; and the qualifying criminal
activity violated
[[Page 53038]]
U.S. law, or occurred in the United States, its territories, its
possessions, Indian country, or at military installations abroad.
(ii) Any additional evidence that the petitioner wants USCIS to
consider to establish that: the petitioner is a victim of qualifying
criminal activity; the petitioner has suffered substantial physical or
mental abuse as a result of being a victim of qualifying criminal
activity; the petitioner (or, in the case of a child under the age of
16 or petitioner who is incompetent or incapacitated, a parent,
guardian or next friend of the petitioner) possesses information
establishing that he or she has knowledge of the details concerning the
qualifying criminal activity of which he or she was a victim and upon
which his or her application is based; the petitioner (or, in the case
of a child under the age of 16 or petitioner who is incompetent or
incapacitated, a parent, guardian or next friend of the petitioner) has
been helpful, is being helpful, or is likely to be helpful to a
Federal, State, or local law enforcement agency, prosecutor, or
authority, or Federal or State judge, investigating or prosecuting the
criminal activity of which the petitioner is a victim; or the criminal
activity is qualifying and occurred in the United States (including
Indian country and U.S. military installations) or in the territories
or possessions of the United States, or violates a U.S. federal law
that provides for extraterritorial jurisdiction to prosecute the
offense in a U.S. federal court;
(iii) A signed statement by the petitioner describing the facts of
the victimization. The statement also may include information
supporting any of the eligibility requirements set out in paragraph (b)
of this section. When the petitioner is under the age of 16,
incapacitated, or incompetent, a parent, guardian, or next friend may
submit a statement on behalf of the petitioner; and
(iv) If the petitioner is inadmissible, Form I-192, ``Application
for Advance Permission to Enter as Non-Immigrant,'' in accordance with
8 CFR 212.17.
(3) Biometric capture. All petitioners for U-1 nonimmigrant status
must submit to biometric capture and pay a biometric capture fee. USCIS
will notify the petitioner of the proper time and location to appear
for biometric capture after the petitioner files Form I-918.
(4) Evidentiary standards and burden of proof. The burden shall be
on the petitioner to demonstrate eligibility for U-1 nonimmigrant
status. The petitioner may submit any credible evidence relating to his
or her Form I-918 for consideration by USCIS. USCIS shall conduct a de
novo review of all evidence submitted in connection with Form I-918 and
may investigate any aspect of the petition. Evidence previously
submitted for this or other immigration benefit or relief may be used
by USCIS in evaluating the eligibility of a petitioner for U-1
nonimmigrant status. However, USCIS will not be bound by its previous
factual determinations. USCIS will determine, in its sole discretion,
the evidentiary value of previously or concurrently submitted evidence,
including Form I-918, Supplement B, ``U Nonimmigrant Status
Certification.''
(5) Decision. After completing its de novo review of the petition
and evidence, USCIS will issue a written decision approving or denying
Form I-918 and notify the petitioner of this decision. USCIS will
include in a decision approving Form I-918 a list of nongovernmental
organizations to which the petitioner can refer regarding his or her
options while in the United States and available resources.
(i) Approval of Form I-918, generally. If USCIS determines that the
petitioner has met the requirements for U-1 nonimmigrant status, USCIS
will approve Form I-918. For a petitioner who is within the United
States, USCIS also will concurrently grant U-1 nonimmigrant status,
subject to the annual limitation as provided in paragraph (d) of this
section. For a petitioner who is subject to an order of exclusion,
deportation, or removal issued by the Secretary, the order will be
deemed canceled by operation of law as of the date of USCIS' approval
of Form I-918. A petitioner who is subject to an order of exclusion,
deportation, or removal issued by an immigration judge or the Board may
seek cancellation of such order by filing, with the immigration judge
or the Board, a motion to reopen and terminate removal proceedings. ICE
counsel may agree, as a matter of discretion, to join such a motion to
overcome any applicable time and numerical limitations of 8 CFR 1003.2
and 1003.23.
(A) Notice of Approval of Form I-918 for U-1 petitioners within the
United States. After USCIS approves Form I-918 for an alien who filed
his or her petition from within the United States, USCIS will notify
the alien of such approval on Form I-797, ``Notice of Action,'' and
include Form I-94, ``Arrival-Departure Record,'' indicating U-1
nonimmigrant status.
(B) Notice of Approval of Form I-918 for U-1 petitioners outside
the United States. After USCIS approves Form I-918 for an alien who
filed his or her petition from outside the United States, USCIS will
notify the alien of such approval on Form I-797, ``Notice of Action,''
and will forward notice to the Department of State for delivery to the
U.S. Embassy or Consulate having jurisdiction over the area in which
the alien is located, or, for a visa exempt alien, to the appropriate
port of entry.
(ii) Denial of Form I-918. USCIS will provide written notification
to the petitioner of the reasons for the denial. The petitioner may
appeal a denial of Form I-918 to the Administrative Appeals Office
(AAO) in accordance with the provisions of 8 CFR 103.3. For petitioners
who appeal a denial of their Form I-918 to the AAO, the denial will not
be deemed administratively final until the AAO issues a decision
affirming the denial. Upon USCIS' final denial of a petition for a
petitioner who was in removal proceedings that were terminated pursuant
to 8 CFR 214.14(c)(1)(i), DHS may file a new Notice to Appear (see
section 239 of the Act, 8 U.S.C. 1229) to place the individual in
proceedings again. For petitioners who are subject to an order of
removal, deportation, or exclusion and whose order has been stayed,
USCIS' denial of the petition will result in the stay being lifted
automatically as of the date the denial becomes administratively final.
(6) Petitioners granted U interim relief. Petitioners who were
granted U interim relief as defined in paragraph (a)(13) of this
section and whose Form I-918 is approved will be accorded U-1
nonimmigrant status as of the date that a request for U interim relief
was initially approved.
(7) Employment authorization. An alien granted U-1 nonimmigrant
status is employment authorized incident to status. USCIS automatically
will issue an initial Employment Authorization Document (EAD) to such
aliens who are in the United States. For principal aliens who applied
from outside the United States, the initial EAD will not be issued
until the petitioner has been admitted to the United States in U
nonimmigrant status. After admission, the alien may receive an initial
EAD, upon request and submission of a copy of his or her Form I-94,
``Arrival-Departure Record,'' to the USCIS office having jurisdiction
over the adjudication of petitions for U nonimmigrant status. No
additional fee is required. An alien granted U-1 nonimmigrant status
seeking to renew his or her expiring EAD or replace an EAD that was
lost, stolen, or destroyed, must file Form I-765 in accordance with the
instructions to the form.
(d) Annual cap on U-1 nonimmigrant status--(1) General. In
accordance with
[[Page 53039]]
section 214(p)(2) of the Act, 8 U.S.C. 1184(p)(2), the total number of
aliens who may be issued a U-1 nonimmigrant visa or granted U-1
nonimmigrant status may not exceed 10,000 in any fiscal year.
(2) Waiting list. All eligible petitioners who, due solely to the
cap, are not granted U-1 nonimmigrant status must be placed on a
waiting list and receive written notice of such placement. Priority on
the waiting list will be determined by the date the petition was filed
with the oldest petitions receiving the highest priority. In the next
fiscal year, USCIS will issue a number to each petition on the waiting
list, in the order of highest priority, providing the petitioner
remains admissible and eligible for U nonimmigrant status. After U-1
nonimmigrant status has been issued to qualifying petitioners on the
waiting list, any remaining U-1 nonimmigrant numbers for that fiscal
year will be issued to new qualifying petitioners in the order that the
petitions were properly filed. USCIS will grant deferred action or
parole to U-1 petitioners and qualifying family members while the U-1
petitioners are on the waiting list. USCIS, in its discretion, may
authorize employment for such petitioners and qualifying family
members.
(3) Unlawful presence. During the time a petitioner for U
nonimmigrant status who was granted deferred action or parole is on the
waiting list, no accrual of unlawful presence under section
212(a)(9)(B) of the INA, 8 U.S.C. 1182(a)(9)(B), will result. However,
a petitioner may be removed from the waiting list, and the deferred
action or parole may be terminated at the discretion of USCIS.
(e) Restrictions on use and disclosure of information relating to
petitioners for U nonimmigrant classification--(1) General. The use or
disclosure (other than to a sworn officer or employee of DHS, the
Department of Justice, the Department of State, or a bureau or agency
of any of those departments, for legitimate department, bureau, or
agency purposes) of any information relating to the beneficiary of a
pending or approved petition for U nonimmigrant status is prohibited
unless the disclosure is made:
(i) By the Secretary of Homeland Security, at his discretion, in
the same manner and circumstances as census information may be
disclosed by the Secretary of Commerce under 13 U.S.C. 8;
(ii) By the Secretary of Homeland Security, at his discretion, to
law enforcement officials to be used solely for a legitimate law
enforcement purpose;
(iii) In conjunction with judicial review of a determination in a
manner that protects the confidentiality of such information;
(iv) After adult petitioners for U nonimmigrant status or U
nonimmigrant status holders have provided written consent to waive the
restrictions prohibiting the release of information;
(v) To Federal, State, and local public and private agencies
providing benefits, to be used solely in making determinations of
eligibility for benefits pursuant to 8 U.S.C. 1641(c);
(vi) After a petition for U nonimmigrant status has been denied in
a final decision;
(vii) To the chairmen and ranking members of the Committee on the
Judiciary of the Senate or the Committee on the Judiciary of the House
of Representatives, for the exercise of congressional oversight
authority, provided the disclosure relates to information about a
closed case and is made in a manner that protects the confidentiality
of the information and omits personally identifying information
(including locational information about individuals);
(viii) With prior written consent from the petitioner or derivative
family members, to nonprofit, nongovernmental victims' service
providers for the sole purpose of assisting the victim in obtaining
victim services from programs with expertise working with immigrant
victims; or
(ix) To federal prosecutors to comply with constitutional
obligations to provide statements by witnesses and certain other
documents to defendants in pending federal criminal proceedings.
(2) Agencies receiving information under this section, whether
governmental or non-governmental, are bound by the confidentiality
provisions and other restrictions set out in 8 U.S.C. 1367.
(3) Officials of the Department of Homeland Security are prohibited
from making adverse determinations of admissibility or deportability
based on information obtained solely from the perpetrator of
substantial physical or mental abuse and the criminal activity.
(f) Admission of qualifying family members--(1) Eligibility. An
alien who has petitioned for or has been granted U-1 nonimmigrant
status (i.e., principal alien) may petition for the admission of a
qualifying family member in a U-2 (spouse), U-3 (child), U-4 (parent of
a U-1 alien who is a child under 21 years of age), or U-5 (unmarried
sibling under the age of 18) derivative status, if accompanying or
following to join such principal alien. A qualifying family member who
committed the qualifying criminal activity in a family violence or
trafficking context which established the principal alien's eligibility
for U nonimmigrant status shall not be granted U-2, U-3, U-4, or U-5
nonimmigrant status. To be eligible for U-2, U-3, U-4, or U-5
nonimmigrant status, it must be demonstrated that:
(i) The alien for whom U-2, U-3, U-4, or U-5 status is being sought
is a qualifying family member, as defined in paragraph (a)(10) of this
section; and
(ii) The qualifying family member is admissible to the United
States.
(2) Filing procedures. A petitioner for U-1 nonimmigrant status may
apply for derivative U nonimmigrant status on behalf of qualifying
family members by submitting a Form I-918, Supplement A, ``Petition for
Qualifying Family Member of U-1 Recipient,'' for each family member
either at the same time the petition for U-1 nonimmigrant status is
filed, or at a later date. An alien who has been granted U-1
nonimmigrant status may apply for derivative U nonimmigrant status on
behalf of qualifying family members by submitting Form I-918,
Supplement A for each family member. All Forms I-918, Supplement A must
be accompanied by initial evidence and the required fees specified in
the instructions to the form. Forms I-918, Supplement A that are not
filed at the same time as Form I-918 but are filed at a later date must
be accompanied by a copy of the Form I-918 that was filed by the
principal petitioner or a copy of his or her Form I-94 demonstrating
proof of U-1 nonimmigrant status, as applicable.
(i) Qualifying family members in pending immigration proceedings.
The principal alien of a qualifying family member who is in removal
proceedings under section 240 of the Act, 8 U.S.C. 1229a, or in
exclusion or deportation proceedings initiated under former sections
236 or 242 of the Act, 8 U.S.C. 1226 and 1252 (as in effect prior to
April 1, 1997), and who is seeking U nonimmigrant status, must file a
Form I-918, Supplement A directly with USCIS. ICE counsel may agree to
file, at the request of the qualifying family member, a joint motion to
terminate proceedings without prejudice with the immigration judge or
Board of Immigration Appeals, whichever is appropriate, while the
petition for U nonimmigrant status is being adjudicated by USCIS.
(ii) Qualifying family members with final orders of removal,
deportation, or exclusion. An alien who is the subject
[[Page 53040]]
of a final order of removal, deportation, or exclusion is not precluded
from filing a petition for U-2, U-3, U-4, or U-5 nonimmigrant status
directly with USCIS. The filing of a petition for U-2, U-3, U-4, or U-5
nonimmigrant status has no effect on ICE's authority to execute a final
order, although the alien may file a request for a stay of removal
pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in
detention pending execution of the final order, the time during which a
stay is in effect will extend the period of detention (under the
standards of 8 CFR 241.4) reasonably necessary to bring about the
alien's removal.
(3) Initial evidence. Form I-918, Supplement A, must include the
following initial evidence:
(i) Evidence demonstrating the relationship of a qualifying family
member, as provided in paragraph (f)(4) of this section;
(ii) If the qualifying family member is inadmissible, Form I-192,
``Application for Advance Permission to Enter as a Non-Immigrant,'' in
accordance with 8 CFR 212.17.
(4) Relationship. Except as set forth in paragraphs (f)(4)(i) and
(ii) of this section, the relationship between the U-1 principal alien
and the qualifying family member must exist at the time Form I-918 was
filed, and the relationship must continue to exist at the time Form I-
918, Supplement A is adjudicated, and at the time of the qualifying
family member's subsequent admission to the United States.
(i) If the U-1 principal alien proves that he or she has become the
parent of a child after Form I-918 was filed, the child shall be
eligible to accompany or follow to join the U-1 principal alien.
(ii) If the principal alien was under 21 years of age at the time
he or she filed Form I-918, and filed Form I-918, Supplement A for an
unmarried sibling under the age of 18, USCIS will continue to consider
such sibling as a qualifying family member for purposes of U
nonimmigrant status even if the principal alien is no longer under 21
years of age at the time of adjudication, and even if the sibling is no
longer under 18 years of age at the time of adjudication.
(5) Biometric capture and evidentiary standards. The provisions for
biometric capture and evidentiary standards in paragraphs (c)(3) and
(c)(4) of this section also are applicable to petitions for qualifying
family members.
(6) Decision. USCIS will issue a written decision approving or
denying Form I-918, Supplement A and send notice of this decision to
the U-1 principal petitioner. USCIS will include in a decision
approving Form I-918 a list of nongovernmental organizations to which
the qualifying family member can refer regarding his or her options
while in the United States and available resources. For a qualifying
family member who is subject to an order of exclusion, deportation, or
removal issued by the Secretary, the order will be deemed canceled by
operation of law as of the date of USCIS' approval of Form I-918,
Supplement A. A qualifying family member who is subject to an order of
exclusion, deportation, or removal issued by an immigration judge or
the Board may seek cancellation of such order by filing, with the
immigration judge or the Board, a motion to reopen and terminate
removal proceedings. ICE counsel may agree, as a matter of discretion,
to join such a motion to overcome any applicable time and numerical
limitations of 8 CFR 1003.2 and 1003.23.
(i) Approvals for qualifying family members within the United
States. When USCIS approves a Form I-918, Supplement A for a qualifying
family member who is within the United States, it will concurrently
grant that alien U-2, U-3, U-4, or U-5 nonimmigrant status. USCIS will
notify the principal of such approval on Form I-797, ``Notice of
Action,'' with Form I-94, ``Arrival-Departure Record,'' indicating U-2,
U-3, U-4, or U-5 nonimmigrant status. Aliens who were previously
granted U interim relief as defined in paragraph (a)(13) of this
section will be accorded U nonimmigrant status as of the date that the
request for U interim relief was approved. Aliens who are granted U-2,
U-3, U-4, or U-5 nonimmigrant status are not subject to an annual
numerical limit. USCIS may not approve Form I-918, Supplement A unless
it has approved the principal alien's Form I-918.
(ii) Approvals for qualifying family members outside the United
States. When USCIS approves Form I-918, Supplement A for a qualifying
family member who is outside the United States, USCIS will notify the
principal alien of such approval on Form I-797. USCIS will forward the
approved Form I-918, Supplement A to the Department of State for
delivery to the U.S. Embassy or Consulate having jurisdiction over the
area in which the qualifying family member is located, or, for a visa
exempt alien, to the appropriate port of entry.
(iii) Denial of the Form I-918, Supplement A. In accordance with 8
CFR 103.3(a)(1), USCIS will provide written notification of the reasons
for the denial. The principal alien may appeal the denial of Form I-
918, Supplement A to the Administrative Appeals Office in accordance
with the provisions of 8 CFR 103.3. Upon USCIS' final denial of Form I-
918, Supplement A for a qualifying family member who was in removal
proceedings that were terminated pursuant to 8 CFR 214.14(f)(2)(i), DHS
may file a new Notice to Appear (see section 239 of the INA, 8 U.S.C.
1229) to place the individual in proceedings again. For qualifying
family members who are subject to an order of removal, deportation, or
exclusion and whose order has been stayed, USCIS' denial of the
petition will result in the stay being lifted automatically as of the
date the denial becomes administratively final.
(7) Employment authorization. An alien granted U-2, U-3, U-4, or U-
5 nonimmigrant status is employment authorized incident to status. To
obtain an Employment Authorization Document (EAD), such alien must file
Form I-765, ``Application for Employment Authorization,'' with the
appropriate fee or a request for a fee waiver, in accordance with the
instructions to the form. For qualifying family members within the
United States, the Form I-765 may be filed concurrently with Form I-
918, Supplement A, or at any time thereafter. For qualifying family
members who are outside the United States, Form I-765 only may be filed
after admission to the United States in U nonimmigrant status.
(g) Duration of U nonimmigrant status--(1) In general. U
nonimmigrant status may be approved for a period not to exceed 4 years
in the aggregate. A qualifying family member granted U-2, U-3, U-4, and
U-5 nonimmigrant status will be approved for an initial period that
does not exceed the expiration date of the initial period approved for
the principal alien.
(2) Extension of status. (i) Where a U nonimmigrant's approved
period of stay on Form I-94 is less than 4 years, he or she may file
Form I-539, ``Application to Extend/Change Nonimmigrant Status,'' to
request an extension of U nonimmigrant status for an aggregate period
not to exceed 4 years. USCIS may approve an extension of status for a
qualifying family member beyond the date when the U-1 nonimmigrant's
status expires when the qualifying family member is unable to enter the
United States timely due to delays in consular processing, and an
extension of status is necessary to ensure that the qualifying family
member is able to attain at least 3 years in nonimmigrant status for
purposes of adjusting status under section 245(m) of the Act, 8 U.S.C.
1255.
[[Page 53041]]
(ii) Extensions of U nonimmigrant status beyond the 4-year period
are available upon attestation by the certifying official that the
alien's presence in the United States continues to be necessary to
assist in the investigation or prosecution of qualifying criminal
activity. In order to obtain an extension of U nonimmigrant status
based upon such an attestation, the alien must file Form I-539 and a
newly executed Form I-918, Supplement B in accordance with the
instructions to Form I-539.
(h) Revocation of approved petitions for U nonimmigrant status--(1)
Automatic revocation. An approved petition for U-1 nonimmigrant status
will be revoked automatically if, pursuant to 8 CFR 214.14(d)(1), the
beneficiary of the approved petition notifies the USCIS office that
approved the petition that he or she will not apply for admission to
the United States and, therefore, the petition will not be used.
(2) Revocation on notice. (i) USCIS may revoke an approved petition
for U nonimmigrant status following a notice of intent to revoke. USCIS
may revoke an approved petition for U nonimmigrant status based on one
or more of the following reasons:
(A) The certifying official withdraws the U nonimmigrant status
certification referred to in 8 CFR 214.14(c)(2)(i) or disavows the
contents in writing;
(B) Approval of the petition was in error;
(C) Where there was fraud in the petition;
(D) In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the
relationship to the principal petitioner has terminated; or
(E) In the case of a U-2, U-3, U-4, or U-5 nonimmigrant, the
principal U-1's nonimmigrant status is revoked.
(ii) The notice of intent to revoke must be in writing and contain
a statement of the grounds for the revocation and the time period
allowed for the U nonimmigrant's rebuttal. The alien may submit
evidence in rebuttal within 30 days of the date of the notice. USCIS
shall consider all relevant evidence presented in deciding whether to
revoke the approved petition for U nonimmigrant status. The
determination of what is relevant evidence and the weight to be given
to that evidence will be within the sole discretion of USCIS. If USCIS
revokes approval of a petition and thereby terminates U nonimmigrant
status, USCIS will provide the alien with a written notice of
revocation that explains the specific reasons for the revocation.
(3) Appeal of a revocation of approval. A revocation on notice may
be appealed to the Administrative Appeals Office in accordance with 8
CFR 103.3 within 30 days after the date of the notice of revocation.
Automatic revocations may not be appealed.
(4) Effects of revocation of approval. Revocation of a principal
alien's approved Form I-918 will result in termination of status for
the principal alien, as well as in the denial of any pending Form I-
918, Supplement A filed for qualifying family members seeking U-2, U-3,
U-4, or U-5 nonimmigrant status. Revocation of a qualifying family
member's approved Form I-918, Supplement A will result in termination
of status for the qualifying family member. Revocation of an approved
Form I-918 or Form I-918, Supplement A also revokes any waiver of
inadmissibility granted in conjunction with such petition.
(i) Removal proceedings. Nothing in this section prohibits USCIS
from instituting removal proceedings under section 240 of the Act, 8
U.S.C. 1229(a), for conduct committed after admission, for conduct or a
condition that was not disclosed to USCIS prior to the granting of U
nonimmigrant status, for misrepresentations of material facts in Form
I-918 or Form I-918, Supplement A and supporting documentation, or
after revocation of U nonimmigrant status.
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
0
9. The authority citation for section 248 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
0
10. Section 248.1 is amended by revising paragraph (a) to read as
follows:
Sec. 248.1 Eligibility.
(a) General. Except for those classes enumerated in Sec. 248.2,
any alien lawfully admitted to the United States as a nonimmigrant,
including an alien who acquired such status pursuant to section 247 of
the Act, 8 U.S.C. 1257, who is continuing to maintain his or her
nonimmigrant status, may apply to have his or her nonimmigrant
classification changed to any nonimmigrant classification other than
that of a spouse or fianc(e), or the child of such alien, under section
101(a)(15)(K) of the Act, 8 U.S.C. 1101(a)(15)(K), or as an alien in
transit under section 101(a)(15)(C) of the Act, 8 U.S.C.
1101(a)(15)(C). An alien defined by section 101(a)(15)(V), or
101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(V) or 8 U.S.C.
1101(a)(15)(U), may be accorded nonimmigrant status in the United
States by following the procedures set forth respectively in Sec.
214.15(f) or Sec. 214.14 of this chapter.
* * * * *
0
11. Section 248.2 is amended by:
0
a. Revising the introductory text;
0
b. Redesignating the revised introductory text through paragraph (f) as
paragraphs (a) introductory text through (a)(6); and by
0
c. Adding a new paragraph (b) to read as follows:
Sec. 248.2 Ineligibile Classes.
(a) Except as described in paragraph (b) of this section, the
following categories of aliens are not eligible to change their
nonimmigrant status under section 248 of the Act, 8 U.S.C. 1258:
* * * * *
(b) The prohibition against a change of nonimmigrant status for the
categories of aliens described in paragraphs (a)(1) through (6) of this
section is inapplicable to aliens applying for a change of nonimmigrant
status to that of a nonimmigrant under section 101(a)(15)(U) of the
Act, 8 U.S.C. 1101(a)(15)(U).
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
12. The authority citation for section 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
0
13. Section 274a.12 is amended by:
0
a. Revising paragraph (a) introductory text;
0
b. Amending paragraph (a)(14) by removing the word ``or'' at the end of
the paragraph;
0
c. Removing the period at the end of paragraph (a)(16) and inserting a
semicolon in its place;
0
d. Adding and reserving paragraphs (a)(17) and (18); and by
0
e. Adding new paragraphs (a)(19) and (20).
The revision and additions read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
(a) Aliens authorized employment incident to status. Pursuant to
the statutory or regulatory reference cited, the following classes of
aliens are authorized to be employed in the United States without
restrictions as to location or type of employment as a condition of
their admission or subsequent change to one of the indicated classes.
Any alien who is within a class of aliens described in paragraphs
(a)(3), (a)(4), (a)(6)-(a)(8), (a)(10)-(a)(15), or (a)(20) of this
section, and who seeks to be employed in the United States, must apply
to U.S.
[[Page 53042]]
Citizenship and Immigration Services (USCIS) for a document evidencing
such employment authorization. USCIS may, in its discretion, determine
the validity period assigned to any document issued evidencing an
alien's authorization to work in the United States.
* * * * *
(17) [Reserved]
(18) [Reserved]
(19) Any alien in U-1 nonimmigrant status, pursuant to 8 CFR
214.14, for the period of time in that status, as evidenced by an
employment authorization document issued by USCIS to the alien.
(20) Any alien in U-2, U-3, U-4, or U-5 nonimmigrant status,
pursuant to 8 CFR 214.14, for the period of time in that status, as
evidenced by an employment authorization document issued by USCIS to
the alien.
* * * * *
0
14. Section 274a.13 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 274a.13 Application for employment authorization.
(a) General. Aliens authorized to be employed under section
274a.12(a)(3), (a)(4), (a)(6)-(8), (a)(10)-(15), and (a)(20) must file
an Application for Employment Authorization (Form I-765) in order to
obtain documentation evidencing this fact.
* * * * *
PART 299--IMMIGRATION FORMS
0
15. The authority citation for part 299 continues to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2.
0
16. Section 299.1 is amended in the table by adding the entries for
Forms ``I-918,'' ``I-918 Supplement A,'' and ``I-918 Supplement B'' in
the proper alpha/numeric sequence.
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * * * * *
I-918............................. 8/15/07 Petition for U
Nonimmigrant Status.
I-918 Supplement A................ 8/15/07 Petition for Qualifying
Family Member of U-1
Recipient.
I-918 Supplement B................ 8/15/07 U Nonimmigrant Status
Certification.
* * * * * * *
------------------------------------------------------------------------
0
17. Section 299.5 is amended in the table by adding the entries for
Forms ``I-918,'' ``I-918 Supplement A,'' and ``I-918 Supplement B'' in
the proper alpha/numeric sequence.
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
Form No. Form title assigned OMB
control No.
------------------------------------------------------------------------
* * * * * * *
I-918......................... Petition for U 1615-0104
Nonimmigrant Status.
I-918 Supplement A............ Petition for 1615-0104
Qualifying Family
Member of U-1
Recipient.
I-918 Supplement B............ U Nonimmigrant Status 1615-0104
Certification.
* * * * * * *
------------------------------------------------------------------------
Dated: September 4, 2007.
Michael Chertoff,
Secretary.
[FR Doc. E7-17807 Filed 9-14-07; 8:45 am]
BILLING CODE 4410-10-P