One of the benefits of obtaining a U-Visa other than being protected from removal and receiving work authorization for a period of four years, is the fact that a U-Visa beneficiary after maintaining such status for a period of three years, is eligible to apply for a green card without the requirement of a family or employer as a petitioner. You can read more about U-Visa eligibility by reviewing our blog here.
The following criteria must be met by the U-1 beneficiary in order to qualify for the green card.
- The beneficiary must file immigration form I-485, Application to Adjust Status to Legal Permanent Resident Status and pay the required fee.
- The beneficiary must have been admitted in U-1 nonimmigrant status.
- The beneficiary must maintain U-1 nonimmigrant status at the time of filing the form I-485.
- The beneficiary must be physically present in the United States for a continuous period of at least three years since admission as a U-1 nonimmigrant and maintain such status at the time of filing the form I-485 through the date the immigration service makes a decision on the Adjustment of Status Application.
- The beneficiary must not have unreasonably refused to provide assistance in the investigation or prosecution of the qualifying criminal activity, from when the beneficiary was first admitted into U-1 status through the date the immigration service makes a decision on the application.
- The beneficiary is not inadmissible under section 212(a)(3)(E) of the Immigration and Nationality Act which are acts related to involvement in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing.
- The beneficiary’s presence in the United States is justified on humanitarian grounds or to ensure family unity or is in the public interest.
- The beneficiary merits a favorable exercise of discretion.
I. Important Issues of note based on eligibility requirements.
Maintaining physical presence in the United States
Essentially, if the beneficiary departs the United States for any reason, the beneficiary will fall out of U-1 status and become disqualified from applying for the green card. There may be circumstances where a departure could be justified and a temporary document known as a parole document can be obtained from the immigration service before departure, but we generally advise clients not to travel, even if a parole document is obtainable because the parole document does not guarantee an inspecting officer will allow re-entry into the United States. Additionally, the law may be subject to interpretation that a departure even under parole, may stop the counting of physical presence in the United States.
Refusing to provide assistance in the investigation or prosecution of the qualifying criminal activity
In order to be able to apply for U-1 status, the beneficiary must obtain a certification signed by an authorized investigation officer, prosecutor or judge confirming cooperation by the beneficiary in the investigation or prosecution of the qualifying criminal activity. This requirement is further extended to the Adjustment of Status process where the beneficiary, must acquire a second signed certification or be prepared to explain attempts to acquire the certification and the reason the officer denied signing the certification. If the immigration service is left with the impression that the beneficiary did not make a reasonable attempt to obtain the certification a second time or that the certification refusal was a result of the beneficiary failing to continue cooperation with authorities, the immigration service will deny the application for the green card.
The basis for this requirement is to assure in cases where certification was obtained prior to the end of an investigation or prosecution, that the beneficiary is obligated to continue cooperation until the investigation is deemed to end by the investigating officer or the end of the prosecution. Additionally, even if there was a prosecution that ended in a conviction, a prosecutor may still require cooperation in post-conviction issues arising out of the conviction and may choose to deny certification if the beneficiary fails to assist in one of those scenarios.
Demonstrating justification on humanitarian grounds, to ensure family unity or that it is in the public interest and that the beneficiary merits a favorable exercise of discretion.
This issue essentially breaks down to demonstrating to the immigration service that U-1 beneficiary deserves the green card. The rule of thumb in these issues is that the less criminal history and more equities such as long-time residence in the United States, combined with a positive work history in addition to having close family that are U.S. Citizens or Legal Permanent Residents, increases the chances that an adjudicator will find that approval of the green card is justified and that the case merits a favorable exercise of discretion.
If in the case, there are negative factors, then the plan is to highlight the positive equities to attempt to have the positive equities outweigh or outshine the negative as much as possible. Note that even though U-1 status serves to waive or forgive many crimes that would typically disqualify a beneficiary from the green card, cases with significant criminal history need great care to work on addressing the past criminal history in a manner that will convince the adjudicating officer that the beneficiary deserves the green card and that such re-offense will not happen again.
II. What to submit to the Immigration Service.
- As previously indicated, Form I-485, Application to Register Permanent Residence or Adjust Status with the required filing fee;
- Copy of Form I-797, Approval Notice;
- Copies of every page of all passports or equivalent travel documents that were valid while you were in U nonimmigrant status (or a valid explanation of why you do not have this evidence);
- If you departed from the United States while in derivative U nonimmigrant status, you must submit evidence showing the dates of each departure from the United States, the date and place of each return to the United States, and the reason for each departure (if applicable);
- Your own affidavit attesting to your physical presence and evidence of your continuous physical presence;
- Evidence that you were lawfully admitted in U-1 nonimmigrant status and continue to hold such status at the time you file Form I-485;
- Evidence that adjustment of status is warranted as a matter of discretion on humanitarian grounds, to ensure family unity, or is otherwise in the public interest;
- Two passport-style photographs;
- Copy of your government-issued identity document with photograph;
- Copy of your birth certificate;
- Form I-693, Report of Medical Examination and Vaccination Record;
- Certified police and court records of criminal charges, arrests, or convictions.
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