There are something like 350,000 people, mostly one-time illegal aliens, who have received immigration benefits of various kinds in recent years (including green cards) because they claim that they were crime victims, or relatives thereof, as my colleague Dan Cadman and I have noted earlier.
This U visa program has morphed from a sensible, small-scale activity designed to help law enforcement agencies when working with illegals into a huge, largely hidden, backdoor amnesty program. It is another of the cluster of programs that provide large numbers of green cards to aliens not because there is a national need for their presence, or even because of relatives already here, but just because of luck.
In some cases it is the good luck that comes with winning the visa lottery.
In many others it is because of the bad luck of being a refugee, an asylum applicant, a trafficking victim, a special juvenile court dependent, alien brides (and a few grooms) saying that their U.S.-resident spouses had abused them, or alleged crime victims.
The press rarely notes the huge factor of raw luck in our immigration admissions.
We have suggested a partial, long-term solution to the U visa problem, a DHS research program to see if the U visas are actually much help to law enforcement; the results of such a study might well suggest changes in legislation.
But can USCIS, in the meantime, make some changes in the program without legislation? It seems that this is quite possible, and might at least slow the growth of the burgeoning backlog of U petitions, now in the 200,000 range.
The backlog exists because Congress has, sensibly, put a 10,000 annual limit of the number of victims who can be rewarded with green cards; since the number of aliens filing for this benefit far exceeds that number, the backlog of petitions grows each year.
An alien crime victim must complete an I-918 form identifying him or herself, and claiming victim status. The alien then must also obtain from a law enforcement agency a completed form I-918 Supplement B, routinely signed by both an officer familiar with the case and the head of the agency, confirming that a crime has been reported and that the alien is either cooperating with authorities or is "likely to do so", a bureaucratic fudge. If the alien wants to extend U status to close relatives, as many of them do, the alien also completes and files an I-918 Supplement A form.
The law enforcement agency has the discretion whether or not to complete the form; data may be available in some localities as to the extent of denials at this point, but it is not available nationally. The assumption is that agencies will routinely sign off on the I-918 Supplement B because nothing negative happens to the agencies if they do so, and if they refuse they may have a controversy on their hands. (I gather California state law makes it hard for a law enforcement agency to deny these applications.)
If the alien gets conditional approval for the I-918, then the alien can file another form, the I-765, this time with a $410 fee (there are no fees for the I-918), seeking an Employment Authorization Document (EAD), which permits the alien to work legally in the United States while the other application is pending. It appears that about 88,000 EADs were issued to U visa holders in FYs 2012 through 2017, but since each is good for two years, the total number of U visa holders with EADs is probably no more than 44,000 at any given time, and is probably lower. Given the presence of more than 200,000 U applications waiting for final determination, this suggests that only a fraction of this population is working legally, a point that needs further attention.
Years later, when the backlog allows, DHS makes a decision about granting the alien a green card, and once this is made (the DHS decisions seem to be favorable by a ratio of something like six to one in most quarters), then the immediate relatives also move into green card status. Each year about 10,000 green cards are issued to victims and about 7,000 to their family members.
I was not able to find any statistics regarding the nature of the crimes reported. I suspect that most of them, perhaps a large majority of them, are domestic violence. A clue to this was provided by an alien-serving agency, the Tahirih Justice Center of Vienna, Va., seeking to render assistance to potential U visa holders; one of its publications shows the model completion of an I-918 Supplement B, with Part 3, question 5 reading as follows:
Ms. XXXX reported that her ex-boyfriend, Mr. XXXX punched her in the face multiple times and pulled her hair.
Mr. XXXX, of course, should be in jail; whether hundreds of thousands Ms. XXXX's should get green cards for unfortunate events like this one is another question.
At the very least, USCIS should run a quick tabulation on a sample of its recent cases to see to what extent this program deals, as I suspect it does, primarily with domestic violence. I worry, too, that the process is handled in such a way that a false claim of hair pulling, for example, can lead to a green card that would otherwise be unavailable to the alien in question.
A further review of this process shows, to me at least, three weaknesses that can be addressed without any change in the law. They are:
- Interviews with applicants are not routine, and I doubt if there are ever any interviews with the officers signing the I-918 Supplement B.
- While the date of the crime is recorded at Part 3, question 2, of the I-918 Supplement B, its recency does not seem to play a role in the evaluation process: Reporting a new crime may help law enforcement; reporting the same crime 10 years later is less likely to produce results.
- The I-918 form, like most DHS documents, is alien-oriented, not crime oriented. The I-918 Supplement B asks (in Part 4) five soft questions about the alien's relations with the authorities in this connection; there are no questions as to the results of the alien's cooperation with law enforcement, such as: Has the criminal been identified by name and postal address? Has there been an arrest or an indictment? Has a warrant for arrest been issued? Is the applicant offering any information that is likely to impact the outcome of the case at hand?
This last question is meant to avoid something that appears to be happening in Las Vegas, where many illegal aliens actually witnessed the mass shooting there, but their testimony, no matter how detailed, (in a case where the gunman is dead) is unlikely to change any legal outcome.
In order to make this program more useful to law enforcement and to minimize its misuse, I suggest three reforms:
- In-person interviews should be conducted in every case, as soon after filing the initial I-918 as possible. All USCIS material on these visas should make it clear that there will be such an interview, and fingerprints will be collected from the applicants. The purpose of this provision is to make sure that there is detailed, useful information for the law enforcement agencies, in something other than a he-said/she-said situation. The fingerprints may, in some cases, indicate that the victim has his or her own criminal record.
- For a crime to be included in the U visas process, it must be reported within 30 days of its occurrence and it must be the subject of a DHS application filed within 60 days of the event.
- The I-918 and I-918 Supplement B forms should open, as they do not do now, with a series of questions along these lines:
- What crime was committed?
- On what date?
- Was the alleged criminal named by the victim?
- If yes, what are the accused's name and postal address.
- When was it reported to a law enforcement agency?
- Did the victim provide information that was not already known to the authorities?
- Is there any evidence, beyond the word of the alien, that the crime occurred?
- Has there been an arrest in the case?
- Has a warrant been issued for an arrest?
If all of the last three questions are answered in the negative (on the I-918 Supplement B only) why should the Department of Homeland Security proceed with this matter?
Two other lesser suggestions:
- Some two years after the first filing, in cases that were initially approved and are on the waiting list for further action, the U.S. Postal Service should be asked if the accused is living (and receiving mail) at the address of the victim. If so, the I-918 should probably be denied, as the former domestic dispute may be regarded as closed.
- The I-918, Supplement B, should be amended to record the number of these sign-offs since say, September 1, 2018, by the individual officer concerned and by the law enforcement agency. DHS may find some interesting concentration patterns.