Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

The U Visa – Victim of Crime – Part 2

Question: If I come forward and try to apply for the U Visa, can ICE deport me?

Answer: ICE may not rely solely on information obtained from the perpetrators of the crime against the respondent to initiate removal proceedings and must place a certificate on the NTA indicating that it has complied with 8 U.S.C. §1367.

Question: If I’m already in Removal Proceedings, can I still go forward with the U Visa?

Answer: A person who may be prima facie eligible for a U visa can seek a joint motion with DHS to continue, stay, or terminate proceedings, to allow for the adjudication of U status.

Question: Can I request a Stay of deportation if I already have a deportation order?

Answer: A stay of a final order of removal may be granted by DHS when a person files a prima facie U status/visa request. A stay should be favorably considered when the applicant has established prima facie eligibility for a U visa and/or when there are favorable humanitarian factors related to the applicant or his or her close relatives who rely on the applicant for support.

Question: Can a Stay of deportation be denied?

Answer: A stay is not appropriate where: (1) the applicant is not prima facie eligible; (2) the petition for the U-visa has been denied; or (3) there are serious adverse factors weighing against a stay including (a) national security concerns; (b) evidence that applicant is a human rights violator; (c) evidence that applicant has engaged in significant immigration fraud; (d) applicant has a significant criminal history; and (e) any significant public safety concerns.

Question: Are there Waivers of inadmissibility for the U Visa?

Answer: All grounds of inadmissibility are waivable by DHS if in the “public or national interest.” However, Inadmissibility is not waived for Nazis, participants in genocide, or persons who committed, ordered, incited, assisted or otherwise participated in torture or extrajudicial killings. If you are inadmissible on criminal or related grounds, USCIS will consider the number and severity of the offenses. In cases involving violent or dangerous crimes or inadmissibility based on security or related grounds, USCIS will only exercise discretion in “extraordinary circumstances.”

Question: If the Waiver is denied, can I appeal?

Answer: There is no appeal from the denial of the waiver.

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