QUESTIONS AND ANSWERS
Q: What has changed?
A: U.S. Immigration and Customs Enforcement (ICE) Directive 11005.1, Stays of Removal Requests and Removal Proceedings Involving U Nonimmigrant Status (U Visa) Petitioners, required ICE to request a prima facie determination from U.S. Citizenship and Immigration Services (USCIS). This determination was a simple confirmation that the petition was filed correctly and was not a substantive review of the petition. As the number of U visa petitions submitted increased, this process became burdensome on both agencies and often did not impact ICE’s decisions.
On December 2, 2021, ICE issued an updated policy. Under ICE Directive 11005.3, Using a Victim-Centered Approach with Noncitizen Crime Victims, ICE officers will exercise prosecutorial discretion in appropriate circumstances when they identify victims for witnesses in the course of their duties to facilitate access to justice and victim-based immigration benefits for noncitizen crime victims.
Q: Will the changes negatively affect crime victims?
A: When noncitizens have pending or approved applications or petitions for victim-based immigration benefits, ICE will refrain from taking enforcement actions against the applicant or petitioner until USCIS makes a:
- Final determination for pending T visa applications or Special Immigrant Juvenile Classification petitions.
- Negative bona fide determinations or waiting list determinations for pending U visa petitions.
- Negative prima facie determinations for pending Violence Against Women Act (VAWA) petitions.
Q: Will ICE remove crime victims who are still assisting law enforcement with the investigation or prosecution of their cases?
A: ICE recognizes the significant law enforcement interest in active victim-witnesses remaining in the United States and will exercise prosecutorial discretion in appropriate circumstances to facilitate access to justice and victim-based immigration benefits by noncitizen crime victims. To that end, absent exceptional circumstances, ICE officers will refrain from taking civil immigration enforcement actions against noncitizens who are known beneficiaries of victim-based immigration benefits or those known to have pending applications for such benefits.
Q: Do immigration judges issue removal orders to pending U visa petitioners, and if so, what recourse do U visa petitioners have?
A: Noncitizens who have applied for a U visa but have not received a favorable adjudication may be subject to removal, depending on the unique circumstances of each individual case. U visa petitioners have all recourse available to them that immigration law permits of anyone else in removal proceedings or with final removal orders.
Q: Why has there been such an exponential increase in U visa petitions from crime victims?
A: The U visa is now better known by immigration attorneys and law enforcement. The U.S. Government made a concerted effort through training and awareness to ensure that law enforcement was aware of this tool to encourage noncitizen victims of crime to come forward.
Q: What happens if ICE removes a U visa petitioner from the United States and that person is then granted a U visa after he/she is already removed?
A: ICE defers to USCIS and the U.S. Department of State.
Q: What is the number of pending applications that end up receiving a U visa?
A: USCIS approves 10,000 principals annually which is the statutory cap.
Q: Will sponsoring law enforcement agencies and prosecuting offices be informed if potential witnesses are subject to removal?
A: ICE will follow routine notification procedures prior to effectuating the removal of a U visa petitioner whose request for a Stay of Removal was denied. If ICE denies a Stay of Removal request, the agency will reach out to the investigating agency and provide notification that the petitioner is being removed.
Q: If ICE determines that a U visa petitioner’s Stay of Removal request will be granted, will that determination extend to qualifying family members who are included with the petition?
A: Yes, ICE Directive 11005.3 includes qualifying family members. Per statute and regulation, certain family members of a U visa petitioner may also apply.
Q: Why doesn’t ICE comment on specific cases involving U visas?
A: Government officials, including those at ICE, are prohibited from disclosing any information which relates to an individual who has a pending or approved application for relief under 8 U.S.C. § 1367 (i.e., relief under the Violence Against Women Act, T or U visa). The broad language of this statute prohibits not only the disclosure of information relating to the individual’s application or claim, but any other information about the individual. Therefore, no information may be released at all – either proactively or in response to a request. These restrictions extend to family members who are included on the individual’s application.