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Qualifying Criminal Activity for U Status

By Sarah Bronstein

U nonimmigrant status is available to individuals who have been the victims of certain criminal activity in the United States.  In order to meet the eligibility requirements, the crime must fall under the definition set forth in INA § 101(a)(15)(U)(iii).  The INA definition lists 28 qualifying crimes and the attempt, conspiracy or solicitation to commit any of those crimes, and any “similar activity.”  Advocates have long argued that these listed offenses should be viewed as categories of offenses rather than specific required offenses.  It is important to remember that each state has its own way of labeling and defining criminal offenses.  In addition, practitioners have advocated that the “any similar activity” language should be viewed broadly.

On January 22, 2015, the Administrative Appeals Office (AAO) issued a decision interpreting qualifying criminal activity for U nonimmigrant status.  While not a precedent decision, this decision from the AAO gives an indication of its thinking on the issue of qualifying criminal activity.  In this case, the AAO reviewed the USCIS decision to deny the U nonimmigrant petition of a person who had been the victim of robbery under Texas Penal Code section 29.02.  In its denial of the I-918 petition for U nonimmigrant status, USCIS found that while the petitioner had established that he had suffered substantial mental abuse as a result of criminal activity, robbery under Texas law is not similar to felonious assault or any other qualifying crime.  On appeal, the petitioner asserted that he was the victim of robbery by assault, which is substantially similar to the qualifying crime listed in the statute as felonious assault.

In analyzing this case, the AAO looked at whether robbery under the Texas Penal Code is similar to the qualifying crime of felonious assault.  The AAO did not take the approach of looking at whether robbery falls under the “category” of felonious assault.  The regulations define any similar activity as “criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities.”  8 CFR § 214.14(a)(9).  The AAO emphasizes that in order to determine whether the Texas robbery statute is substantially similar to felonious assault, one must look at the language in the statutes involved, rather than the actual facts of the case.

In order to conduct this analysis, the AAO compares the definition of robbery under Texas law with the definition of felonious assault.  Because there is no one definition of felonious assault across the 50 states, and many states call such an offense by a different name, the AAO looks to the definition of aggravated assault in the Model Penal Code.  The Model Penal Code was developed in an effort to encourage states to adopt more uniform criminal laws.  While it is not binding on any one jurisdiction, it serves as a guide to generally accepted definitions of offenses. 

The AAO decision examines the language in the Texas Penal Code and the Model Penal Code.  Texas Penal Code § 29.02 states that a person commits robbery when “if, in the course of committing theft…and with intent to obtain or maintain control of the property, he:  1) intentionally, knowingly, or recklessly causes bodily injury to another; or 2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”  Model Penal Code § 211.1(2) states that “a person is guilty of aggravated assault if he:  (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempt to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.”  The AAO concludes that because the Texas statute involves causing bodily injury while committing theft and the Model Penal Code aggravated assault statute also involves causing bodily injury, these statutes are substantially similar.  The AAO therefore finds that the crime of which the petitioner was a victim was a qualifying crime for purposes of U nonimmigrant status eligibility.

The AAO remanded this case to USCIS for adjudication of the petitioner’s request for a waiver of certain grounds of inadmissibility.  USCIS denied the petitioner’s waiver solely because it denied the U nonimmigrant status petition without reaching the merits of the waiver request. 

While some advocates have stressed that practitioners should argue that the criminal activity involved in a particular case fits into one of the enumerated categories of crimes in the INA, this decision shows that the “any similar activity” language in the statute should not be discounted. In a case such as this where the crime involved does not clearly fall within one of the listed crimes, advocates may want to make both arguments.

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CLINIC and Other Advocates Comment on Interim Guidance Related to U Nonimmigrant Status and Adjustment of Status Provisions

The interim guidance recently issued by USCIS provides much needed security for immigrant crime victims and their families.  However, as the advocates note in comments to USCIS Director Leon Rodriguez, issues still remain related to the agency’s interpretation of the two new U visa qualifying crimes -- stalking and fraud in foreign labor contracting.  Additionally, the advocates request that USCIS provide more detail on implementation of age-out provisions and grant parole to conditionally granted U visa derivatives after the U visa cap has been reached each year. 

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CLINIC Newsletter - July 2014 - VOL. XVIII No. 7

In this issue…                        

Protecting the Vulnerable:  Unaccompanied Immigrant Children

U. S. Department of State Updates Foreign Affairs Manual Guidance

News From the Catholic Network

  • New Subscribers
  • Network Affiliate Agency Profile                                                                                                                                                                      

Advocacy Update

Immigration Law Update

Technical Assistance and Trainings



Visa Bulletin

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Updates from the Vermont Service Center and the National Visa Center

By Kristina Karpinski and Susan Schreiber

On May 20-21, CLINIC conducted a two-day family-based immigration conference in Manchester, New Hampshire.  The training included two panels where officers from the Vermont Service Center (VSC) addressed family-based immigration issues, VAWA self-petitions, and applications for U status.   On May 22, training participants visited the National Visa Center (NVC) in Portsmouth, New Hampshire and had an opportunity to address questions to NVC Director Kimberly Kelly and NVC staff about consular processing. Highlights from the VSC panel presentations and the meeting with NVC staff are described below.


VSC Updates on Family-Based Immigration

VSC Staff and Petition Processing

The VSC currently has approximately 1,000 federal employees including 600 adjudicators.  New adjudicators have mentors and coaches and must do a certain number of cases before they can adjudicate cases on their own. Adjudicators receive form-specific training and will generally work with that form for at least six months before taking on adjudication of a new form.

Cases are processed by adjudicators in receipt order.  All petition denials are reviewed by a supervisor regardless of form type.  If an approved petition is inappropriately routed for adjustment of status instead of consular processing, this may be corrected by contacting the National Customer Service Center.

DNA Testing

A petitioner may decide to submit DNA evidence proactively, without waiting for a request for more evidence of relationship. Petitioners pursuing DNA evidence after RFE issuance should notify the VSC if the test results are still pending by the RFE response date. The VSC cannot extend the RFE deadline but will generally delay making a decision until after the DNA results are received.  DNA results must come from an accredited lab and the petitioner’s A# or the petition receipt number should be given to the lab at the time of testing. Where DNA evidence is not submitted and the petition is denied for lack of evidence of relationship, the petitioner may consider submitting DNA test results in connection with a motion to reopen or an appeal.

Stepparent/Child Petitions After Death of Biological Parent or Divorce

A petition based on stepparent/child relationship may be approved where the relationship between the step and biological parents has ended if there is evidence that the stepparent and stepchild have an ongoing relationship.  Such evidence may include school records, permission slips, insurance records, tax returns, and other evidence showing financial and emotional ties between the stepparent and the stepchild.

Petition Returns

The VSC receives petition returns on a monthly basis from the NVC based on a variety of reasons, including suspect relationship (particularly in marriage and fiancée cases), and deceased petitioners and beneficiaries.  Returned petitions are assigned to an adjudicator for review, and may result in issuance of an RFE.  VSC adjudicators reviewing petition returns do not consult social media sites. There is no time frame for petition return adjudication. 

Adam Walsh Act

The VSC Adam Walsh team was formed in 2008 and since then has reviewed approximately 2,500 cases.  After a petition is forwarded to the team, the file is reviewed by an officer to see

if it is properly documented to show the relationship between petitioner and beneficiary. Once that is established, a Notice of Intent to Deny is sent to the petitioner, who may either seek to prove that underlying crime was not a specified offense against a minor, or that the petitioner poses no risk to the beneficiary. The approval rate for petitions subject to Adam Walsh protocols is exceptionally low.  Of 601 cases reviewed last year, the VSC panelists estimated that fewer than 10 were approved.

I-751 Petitions 

The current processing time for I-751 cases is about six months. Applicants submitting late joint I-751 petitions need to assert good cause based on reasons other than simply forgetting to file.  This may include circumstances that triggered forgetting to file, like illness, death in family, marriage of son or daughter, or other major life events.

A joint petition may be converted to a waiver case without filing a new I-751 where the change is based on divorce or death of the petitioner spouse. Where the applicant wishes to apply for a battered spouse or hardship waiver after first filing a joint petition, the VSC cannot process that change.  VSC recommends that applicants in this situation ask the VSC to forward the case to the field office, which can respond to this request to change the basis of the I-751 application.

If an I-751 application is approved before VSC has been notified of a change in circumstances impacting on the approvability of the petition, applicants should notify the VSC to reopen and correct the adjudication.  This may happen, for example, where an applicant is divorced while an I-751 joint petition is pending and VSC approves the petition before receiving notification of the divorce.

USCIS is no longer scheduling random interviews for I-751 petitions; cases scheduled for interview are those needing additional proof of the bona fides of the marriage. If an I-751 application is approvable as filed, an interview will not be scheduled.

VSC Updates on VAWA and U Visa Cases

VAWA Petitions

The I-360 petition will be updated soon to include all eligible self-petition categories. VSC does not track self-petitions by category of eligibility, but officers stated that they are seeing more self-petition cases based on abused parents of U.S. citizens than cases of abused sons and daughters filing between the ages of 21 and 25.

The VSC speakers confirmed that an aged-out VAWA derivative is a considered a self-petitioner and may file for adjustment even if the principal self-petitioner does seek to adjust status. 

USCIS is in the process of consolidating guidance on VAWA self-petition issues to be included in a new chapter of the USCIS policy manual.  This new guidance will address issues including waiving the permanent bar and avoiding reinstatement for self-petitioners with prior removal orders.

The VSC will not be taking over adjudication of VAWA self-petitioner applications to adjust status. Delays in forwarding adjustment applications to the NBC have been addressed, and cases are now being forwarded to the NBC on a weekly basis. In some instances, the adjustment adjudication delays may be due to the field office not contacting the applicant for an interview, although the file was already forwarded to the district by the NBC. 

U Visas

VSC has already processed 10,000 conditional U approvals for FY 2015 and is now working on cases that will be charged to the FY 2016 U approval cap.  U applicants with conditional approval will not be able to use that time to meet the three-year continuous presence requirement for adjustment of status.

VSC will issue a notice of intent to revoke U status in cases involving fraud, error in approval, withdrawal of law enforcement certification, and divorce.  Currently, VSC is holding in abeyance cases involving U -3 derivatives who marry, waiting for more guidance on this issue. 

A nonimmigrant visa holder who applies for U status and then travels abroad must apply for a U visa to return to the United States if the U status application is approved while the nonimmigrant is still abroad.  If the nonimmigrant only receives a conditional approval, then s/he may return to the United States using the existing nonimmigrant status. 

U adjustment applicants who file after U status has expired may file an I-539 application to extend status concurrent with the adjustment application. The applicant should explain the reasons for the late filing, and detail any extenuating circumstances or events that delayed filing that were outside the applicant's control. Adjustment applicants who still have derivatives abroad waiting to enter on a U visa should ask the VSC to hold the adjustment application in abeyance.


Updates from the National Visa Center

NVC Receipt of Approved Petitions

NVC receives approved petitions from all USCIS Service Centers. The petitions include I-130s, I-140s, I-360s, I-129Fs, I-730s, and adoption petitions.  NVC reports it can take 6-8 weeks for USCIS to forward an approved I-130 to NVC.  If more than 8 weeks have passed since approval, NVC can reach out to USCIS to track down the case.  Sometimes files are misrouted to another USCIS Service Center or remain at the original Service Center waiting for a bulk shipment.   NVC must receive the original petition from USCIS before it can begin processing of the case.  After 8 weeks, petitioners, applicants and representatives can contact NVC to request assistance in locating an approved I-130 file.

Electronic Processing

NVC continues to increase its use of electronic procedures to communicate with visa applicants and to process immigrant visa forms and documentation. Currently, 45 percent of NVC correspondence is sent by e-mail.  NVC encourages applicants, petitioners and representatives to provide an e-mail address by either writing it on the USICS petition or by sending it directly to NVC.  Also, 85 percent of fees are now paid online through the Consular Electronic Applications Center (CEAC) Immigrant Visa Invoice Payment Center. NVC reports that the Electronic Processing Program, which requires immigrant visa applicants processing at select consulates to scan and e-mail documents and the I-864 affidavit of support, decreases the processing time by about a half.  While this pilot program is considered a success, the software used has limitations and no new consulates will be added to the program.  Additionally, several months ago NVC stopped assigning new cases for electronic processing through Ciudad Juarez.  Therefore all new cases processing through CDJ will require that original civil documents, the I-864 affidavit of support, and other supporting documentation be mailed to NVC.  In place of the pilot electronic processing program, NVC will soon introduce a new electronic system in which applicants will scan and upload their documents directly to NVC through CEAC and won't have to e-mail them.


When a petition was originally submitted to USCIS without representation or by a different representative, an attorney or BIA accredited representative can be added to a case at NVC by submitting a G-28, Notice of Appearance.  NVC recommends submitting the G-28 by e-mail to  Once the G-28 is received, the new representative will receive correspondence about the case and will be able to inquire about the status of the case.  NVC recommends submitting a new G-28 even if the change in representation is within the same agency.

If a representative wants to withdraw from a case, he or she should send an e-mail to  Once representation is withdrawn, NVC will send all correspondence to the applicant and petitioner or new representative if there is one.

When communicating with NVC by e-mail, the subject line should contain the NVC case number.  The e-mail should include the petitioner’s name and date of birth, the principal beneficiary’s name and date of birth, the representative’s full name, and the agency or firm name and address.  The communication should be limited to one case per e-mail.

Derivative Consular Processing

If the principal beneficiary adjusted status in the U.S., a form I-824, Application for Action on an Approved Petition, should be filed with USCIS.  Once approved, USCIS will send the approval to NVC and begin consular processing.  If instead, the principal beneficiary obtained an immigrant visa abroad and a derivative wishes to later follow-to-join the principal, the process needs to be initiated at the specific consular post abroad.

Provisional Unlawful Presence Waivers

When an applicant submits an I-601A provisional waiver to USCIS, NVC will automatically be notified by USCIS.  NVC will not send a case to the consulate and schedule the immigrant visa interview until further notification by USCIS that a decision was made on the waiver.  It is no longer required, and even discouraged by NVC, for applicants to e-mail NVC stating their intention to file the I-601A.  NVC has found that many applicants who have e-mailed in the past, never filed waivers.  Instead of keeping those cases on hold, NVC has sent those cases to the consulates for the visa interview if all the required forms and documents have been submitted.  If an applicant submits an I-601A after the case has been scheduled for an interview, he or she can make a request to the consulate that the interview be rescheduled.

Affidavit of Support Issues

NVC does a technical review of the I-864 affidavit of support and accompanying documents submitted by the petitioner/sponsor and co-sponsors.  Advocates have reported an increase in requests by NVC for new I-864s.  NVC explained that when the form is not properly completed, NVC can't send back the form for correction because of privacy concerns and must request a new form.  NVC made some recommendations to avoid a request for a new form or documentation.

  • Don't leave any blank spaces on the form.  Write N/A if the question is not applicable.
  • Be careful in properly calculating the household size in Part 5.  Do not count anyone twice.
  • In completing Part 6, question #13, the sponsor must fill in the total income reported on his/her federal tax returns for the last three years.  The amount should match exactly what is on the return, so if a joint return was filed, the amount should include the spouse's income.  When it is a joint return, NVC requests that both the sponsor's W-2 and the spouse's W-2 be submitted.  However, an I-864A is not required if sponsor's income is sufficient for his/her household size.  If a consulate is improperly requesting an I-864A in this situation, NVC recommends contacting  
  • NVC recommends getting tax return transcripts from IRS online or by mail.
  • If submitting an employment letter as evidence of current income, make sure the letter was signed within the last 90 days.


F-2B Immigrant Visa Processing Without Separate I-130 Petition

NVC is awaiting guidance from USCIS on whether aged-out derivatives from the F-2A category who automatically convert to the F-2B category and have a current priority date, may seek an immigrant visa without the petitioner having filed a second I-130 petition.  In a November 2013 memo, USCIS provided guidance on this issue for those seeking adjustment of status.  If an aged-out F-2A derivative beneficiary is current in the F-2B category and is otherwise eligible for adjustment of status, he or she may file an I-485 application without the petitioner having filed a separate I-130.  NVC indicated they are aware of this issue and are willing to proceed with the consular processing of these cases after receiving guidance from USCIS and making the necessary changes to their internal systems.  Further information on this issue will be provided when received from NVC.

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USCIS Hosts U Visa Listening Session

By Matthew Seamon

Advocacy Intern


On June 4, 2014, USCIS hosted a “listening session” teleconference regarding U nonimmigrant status visas. U visas provide immigration protection for victims of qualifying crimes who aid law enforcement in the investigation or prosecution of criminal activity. USCIS is engaging in rulemaking to modify the U visa application and eligibility rules and sought comments and feedback from immigration advocates and other stakeholders.

Numerous CLINIC affiliates, religious organizations, other nonprofit agencies, and local law enforcement agencies participated. The session identified several key areas that many groups in the immigration community highlight as priority areas for improving U visa policy, including:

  • Expanding the list of qualifying crimes that make individuals eligible for U visa consideration, including child abuse, robbery, and employment-related crimes
  • Allowing additional types of law enforcement and other government officials to sign U visa certification forms
  • Granting immediate provisional employment authorization for U visa applicants while their application is pending, and
  • Releasing clearer guidance and additional training materials regarding U visas for state and local law enforcement agencies.

Additionally, USCIS’ Office of Policy and Strategy offers training on U nonimmigrant petition certifications. Organizations with questions on training or requests for training can send them to CLINIC will continue to work with national partners to strategize ways to improve the U visa program to better serve immigrant communities.


CLINIC Comments on Age-out Protections for U Visa Derivatives

On January 10, 2013, CLINIC shared comments on USCIS’s policy memo, “Age-Out Protection for Derivative U Nonimmigrant Status Holders: Pending Petitions, Initial Approvals, and Extension of Status.”  CLINIC welcomes the issuance of the guidance, as this policy will provide much needed security for the immigrant crime victims and their families that CLINIC members serve.  We are encouraged by USCIS’ statement that the preservation of family unity is a benefit to law enforcement.  The policy provides important protections for U visa derivatives who age out after the approval of the principal’s application, however, there are still important issues that remain unaddressed.  To read the full comments, click here

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CLINIC Comments on Employment Eligibility for VAWA Beneficiaries

On January 10, 2013, CLINIC shared comments with USCIS on its guidance entitled “Eligibility for Employment Authorization upon Approval of a Violence Against Women Act (VAWA) Self- Petition; and, Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants.”  CLINIC’s comments addressed concerns regarding the employment authorization process for approved VAWA beneficiaries, as well as the eligibility for employment authorization for battered spouses of A, E (iii), G, and H nonimmigrants.  To read the full comments, click here.

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