Getting Legal Status as a Matter of Luck — in, for Instance, Las Vegas

By David North on July 24, 2018

One of the unfortunate features of U.S. immigration law is that some aliens with no qualifications secure legal status, sometimes a green card, through nothing but luck.

One need not have any educational or skill qualifications, nor citizen relatives in the United States, nor money in the bank; one need not even file for the visa lottery. One simply has to be in the right place at the right time, or in some cases, you do not need to be so situated as long as a relative of yours has the right kind of luck. (How this applies to Las Vegas will be explained below).

There are at least two such luck-based programs, a larger one now being reduced in size and another that seems to be out of control.

Temporary Protected Status

TPS has granted legal status, sometimes for decades, to aliens who happen to be in this country — legally or illegally — when something terrible happens in the home nations, like an earthquake or a storm or a revolution. While TPS status does not lead to a green card, the program does give one the right to work legally in the United States as long as that status lasts. That's a major economic boon related only to where one was when the disaster happened, i.e., sheer luck. Prior administrations were reluctant to end TPS status, as Mark Krikorian wrote in a posting headed "Temporary Protected Status Means Never Having to Go Home".

This administration has begun to cut back on TPS programs; seemingly dividing them (like all Gaul) into three parts; those to be ended in 12 months; those given 18 more months before termination; and those that will remain, at least for a while. (I have not seen anything in writing about these distinctions, but this seems to be the situation; it shows a deference to nuance, missing in so much of what the White House does these days.) This is how the 11 nations have been divided in recent decisions:

  • 12-month extension, then termination, for mostly small TPS populations: Nicaragua, Nepal, and Sudan; there was a similar program called Deferred Enforced Departure that covered only people from Liberia, which is being treated in the same way.
  • 18-month extension, then termination, mostly larger TPS populations: El Salvador, Haiti, and Honduras.
  • No TPS terminations announced, at least not for a while, for four nations wracked with internal strife, some where there is a direct or indirect U.S. involvement in the fighting: Somalia (recently extended for 18 more months), South Sudan, Syria, and Yemen. The populations covered are small in these nations as well; for instance, it is estimated that 70 persons from South Sudan have TPS status.

The U Visa, and Las Vegas

While TPS status is offered on a mass-basis, and is a nonimmigrant status that does not lead to a green card, U Visas (for crime victims broadly defined) are handed out individually, providing both temporary nonimmigrant status and often a path to a green card. And, as my colleague Dan Cadman has written, there are more than 200,000 in this particular queue.

The U visa was created to help law enforcement by making sure that alien (largely illegal alien) witnesses and victims would help in the prosecution of crime.

To qualify for a U visa one must meet all of these qualifications:

  • You are the victim of qualifying criminal activity.
  • You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
  • You have information about the criminal activity.
  • You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. [Emphasis added.]
  • The crime occurred in the United States or violated U.S. laws.
  • You are admissible to the United States. If you are not admissible, you may apply for a waiver.

Those are the qualifications needed for U-1 status There are also provisions for your spouse, your children, and, if you are under 21, your parents and your unmarried siblings under 18.

What caught my eye recently in this connection was the fact that perhaps as many as 70 undocumented aliens who were working at the Route 91 Harvest Festival in Las Vegas at the time of last October's mass shooting, are now seeking U visas and that the local sheriff is helping them to do so, according to a KTNV 13 news report.

The reporter did not distinguish between those who simply saw or heard some of the shooting and those actually injured by it.

Looking at the legal requirements a little more closely, one wonders how being one of hundreds of witnesses to an event can be regarded as being "helpful in the investigation or the prosecution of a crime".

Such a witness could, at the most, testify to what hundreds of others could confirm, that there were many shots fired that day in Las Vegas. And no witnesses are needed, anyway, because there will be no prosecution — the gunman is dead. So why even consider rewarding any or all of the 70 illegal aliens on the scene with a path to a green card?

Will the sheriff sign papers saying that he thinks all 70 "are likely to be helpful" to a non-existent prosecution. If he does so, will USCIS hand out still more U visas to the 70? And still more to their kin?

This is a story in progress but it makes one wonder about the utility — other than it is an amnesty-based-on-luck — of the entire concept of U visas, and particularly on the wisdom of making the whole application process much easier, as the Obama administration did back in 2014.

Maybe, short of a change in the law, DHS could simply repeal those easier application rulings made four years ago? Governmental change is always a difficult process, but reversing a specific rule made by the prior administration has proved easier for the Trump administration, at least in the immigration field, than changes that are more complex.

There will be more observations on U visas in a future posting.