Complicated Inner Workings in the Amnesty Program for Crime Victims

By David North on December 19, 2013

In an earlier blog I sketched the main elements of the U visa program for illegal aliens who have become crime victims in the United States and for their relatives. There are both nonimmigrant and green card stages of the program, there are time limits for applying, and there are some numerical ceilings.

This is one of the many specialized amnesty programs that are ongoing. This one brings us far more of the huddled masses than of the best and the brightest. Anyone can be a crime victim, but violent crime happens more often in the slums than on college campuses. In the late Nancy Mitford's terminology, those with U visas are a distinctly non-U population.

On closer examination, the outcomes of the U visa program are extremely complicated because of both congressional provisions and administrative decision-making. As a consequence, the 138,487 people who applied for it in fiscal years 2009-2013 can be divided into 12 separate subpopulations, based on their interactions with this program.

My worry is that this kind of complexity, and the administration's general unwillingness to deport people deserving deportation, both shown in this program, will be mirrored on a much bigger scale should a S.744-type amnesty program be enacted.

Complexity and Simplicity. The United States is like an Ivy League university in that there are far more people wanting to enter it than there are spaces within it. The universities, however, make simple yes and no decisions, every year, in their admissions process, producing two populations: those admitted and those denied.

The nation's immigration policy is much more complicated and deals with a reality that the Ivies are spared — a huge population of illegal residents. (Think, for a moment, of the Harvard campus with five thousand illegal (non-admitted) students going to classes and living in the dorms, many on partial scholarships!) U.S. immigration policy generally, and that for U-visas specifically, is also more complex because of compromises made at both the legislative and the administrative levels: general rules and exceptions, numerical limits and exceptions; time requirements for a second round of applications, and so on. With the U visas, for instance, there is an annual numerical limit of 10,000 for the victims (U-1) but no annual limits for their relatives (U-2 through U-5). The nonimmigrant visas last for four years. In the final year, the alien can apply for permanent legal status, i.e., a green card.

With these thoughts in mind, let's examine what happened (or probably happened, the data are not complete) to the 138,487 aliens (most of them illegals) who sought legal status through the U-visa program in the fiscal years 2009 through 2013.

As shown in the table included in the earlier blog, there were 84,545 applications for victim status (U-1) visas and 53,942 applications filed for U-2 through U-5 visas. The total number of applications, in both groups, was 138,487; of these 81,512 were approved at the nonimmigrant level. A more detailed analysis of the fates of the applicants can be seen in the table below:

What Happened to the 138,487 U-Visa Applicants Filing During FYs 2009-13?

(status at the end of FY 2013)
General Category Detailed Category Number or Estimate
Applied for legal status and USCIS decision made
  A. Secured Green Card 7,000 (estimated)
  B. In legal U status at end of period 53,361
  C. Granted U status early in FY '14 10,000+ (estimated)
  D. Denied U status but most not deported 19,943
  E. Denied green card status, but probably not deported 700 (e)
  Subtotal 91,004 (partially estimated)
Applied for legal status, no USCIS decision, thus mostly in illegal status
  F. Backlogged potential approvals for U status Many thousands
  G. Backlogged potential denials for U status Thousands, but about a fourth of the above
  H. Backlogged potential green card approvals Thousands
  I. Backlogged potential green card denials About one tenth of the above
  J. Once in U status, now dropouts, have not filed for the green card; hence illegal Not known
  K. Once in U status, now dead or have left country Small number
  L. Once in U status, now in other, non-U, legal status Very small number
  Subtotal 47,483 (a residual)

Source: Center for Immigration Studies analysis.

Explaining the Numbers. So here we have a program that is designed to give permanent legal status to crime victims, but when the numbers are examined we find that only a tiny portion (7,000 or so) have reached green card status, though that number will increase in the future as the four-year time limit elapses for more and more of the U visa holders.

Looking at it another way, there were nearly 140,000 applicants and only a little over half had moved toward legal status at the end of FY 2013 (September 30, 2013). The other half included nearly 20,000 denials and about 47,500 waiting for USCIS decisions while largely in illegal status.

Let me explain some of the items in the table. First, why were so few green cards (those in population A) granted if that is nearly automatic at the end of three years, and what is the source of those numbers?

Timing plays a major role in the answer to that question. I examined the U visa outcomes for those applying during the years 2009 through 2013. Thus the only people who could get a green card in this framework were those who had secured the U visa in the years 2009 and 2010 — you have to wait for three years to apply for the green card. (There were also some eligibles from prior years, when data are unavailable, and when the program usage was less extensive.)

In 2009 there were 8,663 U visa approvals; when 2012 came around, a different data source, the 2012 Yearbook of Immigration Statistics, showed that only 2,161 aliens secured adjustment to green card status from U status that year; that's 24.9 percent of the eligibles. Applying the same percentage to the 2010 U approvals (there were 19,388 of them), we get an estimate of 4,829 for 2013, which adds to about 7,000 for the total number of green cards issued to 2009-2013 U applicants. (In one of those anomalies typical of U.S. immigration statistics, data on FY 2013 grants of U visas are currently available, while data on FY 2013 adjustments from U visas to green cards are not.)

Still, 7,000 green cards for two years of adjustments seems to be a small number compared to the approximately 28,000 eligibles. The number of green cards will surely rise with the passage of time, as aliens apply slowly, and as USCIS decides slowly, but moving to the green card is not seen as needed by some aliens, and others are discouraged by the filing fee for a green card — there is no such fee at the time of the U visa filing.

The rather low rate of green card utilization by this U visa population is reminiscent of the fact that a majority of those securing green card status from the IRCA amnesties of the 1980s did not bother to file for citizenship.

Back to the subgroups in the table: population C, the burst of 10,000-plus new U visas at the start of FY 2014 is explained by the 10,000 cap on the issuance of U-1 visas during a fiscal year. This batch of visas was issued based on filings the prior year that could not be approved formally until the following fiscal year and the heavy demand for them. This was the subject of a happy (and simplistic) press release from USCIS entitled "USCIS Approves 10,000 U Visas for 5th Straight Fiscal Year", which reminded me of the whole program.

The U visa denial statistics that measure population D were provided by USCIS and the size of population E is my estimate based on a 10 percent denial rate for the green card applications. The denial rate for population D, about 20 percent, is an indication that USCIS staff find more than usual trouble in this group of nonimmigrant applicants; USCIS benefit denial rates are usually in the 1 percent to 5 percent range. My estimate of a 10 percent denial rate at the green card stage is based on the fact that most of the bad applications had been weeded out in the earlier part of the decision-making process.

Incidentally, I sense no organized program to deport those who applied for and were denied U visas; similarly, those who apply successfully for U-1 visas, but who have to wait for them until a number is available, are not being deported in the meantime.

In addition to the five groups within the overall population of U visa applicants for whom decisions have been made, there are seven other subpopulations. These, listed in the chart as classes F through L, are mostly in illegal status while waiting for a USCIS decision; others have dropped out of the U visa system in one way or another. Again, I sense no effort to deport any of the subpopulations at the bottom of the chart.

One would hope that a government legalization program would be less complex than this one.

U Visas vs. DACA or S.744 Cases. Aliens who have secured U visas are unlikely to venture into the Deferred Action for Childhood Arrivals (DACA) system or to be tempted to apply under the provisions of the omnibus Senate bill S.744, should it become law. This is the case because a green card after three years (the rule with the U visas) is a much better reward than that offered by the two other systems. DACA simply postpones possible deportations and offers no permanent benefits; the basic amnesty in S.744 includes a 10-year waiting period before granting a green card.

It should be an easy choice for those holding U visas.