Two individuals, who both entered without inspection, marry. The couple’s home is broken into two and thieves steal nearly 10,000 dollars in property. The homeowners cooperate with the police and, through their cooperation find the criminals. Are they eligible for a U-visa?
The U Visa is a special non-immigrant visa available to the victims of crimes that occurred in the United States or territories. Aside from the location of the crime, the applicant must demonstrate that they “a) suffered substantial physical or mental anguish as a result of having been a victim of ‘qualifying criminal activity,’ b) possess 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 and c) has been helpful is being helpful or is likely to be helpful to a certifying agency in the investigation or persecution of the qualifying criminal activity.”1
A qualifying criminal activity is defined as one, a combination of or an activity similar to, one of the following crimes: blackmail, incest, perjury, domestic violence, involuntary servitude, rape, extortion, kidnapping, sexual assault, false imprisonment, manslaughter, sexual exploitation, felonious assault, murder, abusive sexual contact, female genital mutilation, obstruction of justice, slave trade, held as a hostage, peonage, witness tampering or the attempt, conspiracy or solicitation to commit any of these crimes.
Substantial Physical or Mental Anguish is defined as abuse that results in injury or harm to the victim’s physical person, or harm to the psychological soundness of the victim.2 There are many factors that are considered when evaluating the aforementioned details. These factors include but are not limited to “the nature of the injury; the severity of the perpetrators’ conduct, the severity of the harm suffered; the duration of the infliction of harm; any permanent or serious harm to appearance, health and physical or mental soundness, and any aggravation of a victim’s pre-existing conditions. No single factor is required and a series of acts may suffice, even where no single act meets the standard.”3
U Visas are available to aliens who are the victims of crimes that happened in the United States and have experienced substantial physical or mental harm. Furthermore, the applicant has to be willing to cooperate with police in the investigation of the crime. Many crimes qualify and the aforementioned list is in no way exhaustive. The qualifying crimes are typically violent, coercive or psychologically disruptive in nature. The most ambiguous part of U-Visas is defining substantial physical or mental abuse, as while many factors are considered, these factors can be subjective.
U Visa Hypothetical Answer
Burglary, in of itself, does not specifically constitute any of the crimes on the aforementioned list. While the list is not exhaustive, the nature of burglary, as a crime, is not substantially similar to that list of crimes. Many of those crimes are violent or coercive in nature. To qualify for a U-Visa, then, the applicants must have also been the victim of another crime that would qualify. While the 10,000 dollars lost in assets is substantial, its worth is technically irrelevant because burglary does not qualify. Thus, scenario must be given more context, to narrow down the possibilities of other crimes that might have been committed during the burglary.
If the couple was not present during the crime, then the likelihood of other qualifying crimes to have occurred are unlikely. Some after- the-fact crimes could have been committed. For examples, if the couple was blackmailed or threatened, after the crime by the thieves, to not report the burglary, they might claim blackmail or obstruction of justice.
However, if the couple was home at the time of the burglary, then it seems rather likely that other crimes would have occurred simultaneously. If, for example, during the crime, the couple was assaulted (it would have to be a felony) or, held hostage and cooperated with the police, then they would qualify. If the couple was held against their will, they might qualify as being victims of false imprisonment.
The scenario gives that the couple had cooperated with the police and that their cooperation has led to the apprehension of the criminals. The next step in this process would be to prove that the crimes, associated with the burglary, would cause physical or mental anguish. In the case of the couple being home during the burglary, the severity of the associated crimes would be without question. The 10,000 dollars, while not a qualifying factor, can demonstrate the nature and extent of the burglary. For the couple, the loss of significant assets while also being threatened or physically abused would certainly result in significant mental anguish.
U Visa Conclusion
Burglary would not constitute a crime that one could claim in a U-Visa application. However, other crimes that would seemingly occur during a home invasion or as a result of a burglary might. Other circumstances may change the findings given above. For example, if one was inadmissible on other ground, they might have to file for an inadmissibility waiver.