Commentary Law and Policy

We All Have a Role to Play in Improving U Visa Process for Immigrant Domestic Violence Victims

Andres Pertierra

Local elections can have sweeping consequences for victims of intimate partner violence who may qualify for a U visa.

Six months to a year is often the time that some immigrant victims of domestic violence have had to wait for a key preliminary step in order to apply for U visas, popularly known as “victim’s visas.” During this time they remain undocumented, without so much as a work permit, and unable to count this processing time toward their application for the U visa itself, which currently takes several years.

In 2000, Congress passed the Victims of Trafficking and Violence Protection Act, which created the U visa program. It was meant to offer immigrants who have been the victims of serious crimes (such as peonage, slavery, rape, kidnapping, involuntary servitude, felonious assault, and of course domestic violence) a path to legal status in exchange for cooperation with law enforcement.

Before applying for U visas, victims have to convince local government officials to certify form I-918 Supplement B. By signing, government officials are attesting to the fact that the crime was reported, that it is one of the short list of crimes which qualify victims to apply for U visas, and that the victim had cooperated with the criminal investigation and (when the case has gone to trial) prosecution.

Once the form is signed, immigrants can proceed with the rest of their U visa case, including requesting waivers for outstanding issues that would normally bar them from legalizing their status and for adding some types of immediate relative to their cases, thereby granting them legal status as well. When the U visa is approved, they gain both legal status and the ability to request work authorization. After three years under the U visa, they and their family members can petition to become legal permanent residents.

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While the program has done a great deal of good, it also has several major limitations.

The most obvious is the minuscule number of visas available for the program each year and the resulting backlog of requests. To clarify, I’m not merely referring to immigration taking a long time to process requests, although that is also true. The Vermont Service Center, which handles many U visa requests, states on its website that it is currently processing cases submitted by August 25, 2014. I’m referring to the program’s annual visa “cap” of 10,000. As more and more victims and their families have applied for visas through the program, a backlog has steadily grown. During fiscal year 2009, the total number of cases pending was 21,138. As of fiscal year 2016, that number has grown to 150,604.

While this backlog is seemingly hopeless, this does not mean in practice that immigrants must wait over a decade for any kind of relief. It is possible for a U visa applicant to be placed onto a “wait list” until a visa becomes available. Once immigration reviews their case and establishes that it seems to qualify, applicants become wait-listed and are granted limited but important benefits, such a right to work authorization.

While they wait for their U visa case to be heard, immigrants and their families remain undocumented and unable to work legally. These delays have obvious negative implications for domestic violence victims in particular since it prolongs the period that they must work without legal authorization to do so, which usually means having to look for poor paying jobs and increased vulnerability to any employers engaging in practices such as wage theft.

Another issue is that victims must have cooperated during the criminal investigation. This can be a major obstacle, as I explain further below.

Finally, local law enforcement has been given a significant degree of discretion to approve or deny certification. In other words, even if a victim qualifies according to the law, there is no way to twist the arm of law enforcement officials to make them sign a U visa certification. Because so much depends on their goodwill or potential prejudices, perfectly valid applications for certification can be denied for arbitrary reasons.

While some of the issues that hinder the U visa program can only be resolved through congressional action, which is currently unlikely, the certification process itself is a problem that is well within the control of local authorities and therefore vulnerable to pressure at a grassroots level.

Major Barriers

The struggle of obtaining U visa certifications often affects victims of intimate partner violence particularly harshly. This is due in part to the tendency of many victims to fail to cooperate fully with law enforcement due to fear of reprisal or dependence on their abuser. Immigrant victims can be especially dependent on their abusive partners due to language barriers; unemployment due to controlling spouses; a lack of social and familial networks in the United States, which could help them gain independence; family abroad who depend on remittances their abusers send; or out of fear that Immigration and Customs Enforcement could be called on them as revenge for contacting the police. Often it is a combination of several of these factors.

If working-class U.S. citizens find it difficult or outright impossible to live on minimum wage without family support or government assistance, this is multiplied in the case of victims who cannot even directly apply for government support. Companies can also abuse immigrant’s lack of a legal status, through wage theft or other forms of abuse. Issues related to education also come into play, with some victims being functionally or completely illiterate, which further bars them from many minimum wage jobs. This last point can be part of the abuser’s strategy to keep their victims dependent on them.

The process for obtaining a U visa certification can also create a nearly insurmountable hurdle for victims. One community organization in the D.C. metro area that regularly deals with the problem of U visa certifications is Ayuda (Help). Regarding obstacles in obtaining U visa certifications, accredited representative Eric Unternahrer said that the process not only varies from county to county but even within the same county. “It can be different between the police and the prosecutor as well. Differences in time, procedure, arbitrary requirements that they might put on whether or not they might give the certification,” said Unternahrer. “There are definitely differences in processing times and procedures and whether or not they’ll even consider doing it.”

Specifically regarding domestic violence victims, Unternahrer went on to say that their situations are exacerbated “the more there are delays” and that “delays of any sort are problematic, especially if they have small children abroad.” He refers here to the fact that children who are still minors can be included in the U visa cases of immigrants, even when those children are abroad.

The ”arbitrary requirements” that Unternahrer mentioned vary, but can be anything from a local official refusing to certify a case that is over a year old or refusing to certify cases where the suspect was never caught, to more subjective and nebulous reasons that can simply serve as a blanket pretext for saying “no.” Given that U visa certifications are discretionary, these arbitrary requirements are entirely within the rights of the official who is being asked to certify.

As immigrants have already discovered in states like Arizona and California, local authorities can use personal discretion to effectively shut the doors on U visa requests entirely if they’re so inclined. Here, anti-immigrant stances among local officials can easily color U visa certification policies.

Even when anti-immigrant policies are not a major factor, ignorance of what a U visa certification entails or lack of clarity over who, if anyone, is in charge of reviewing certification requests can be major barriers. As a legal assistant at an immigration law firm, I have seen officials who begin by stating they are willing to do whatever they can to help victims grow distant and unresponsive when presented with certification requests. This is often out of fear that U visas imply some kind of economic or legal consequences for them personally.

Other times, officials will simply play “hot potato” with incoming requests, passing victims or their representatives to one official after another in an attempt to avoid the issue.

When a lawyer or community organization is working on a case, they can establish relationships and contacts in different jurisdictions, which streamline the process. Locals quickly learn through trial and error whether police or prosecutors in one area review a case faster. They also discover which counties impose arbitrary demands on certifications. All these factors contribute to delaying the case, increasing the workload of victims and their advocates, and most importantly contributing to the number of applications that are summarily denied.

Partial Solutions

A real solution to this problem would have to involve removing or greatly expanding the 10,000-a-year visa “cap.” Given that the GOP-controlled Congress and White House are currently eyeing ways to limit even legal immigration, with proposals such as the so-called RAISE Act, that seems unlikely, to say the least. However, as the recent removals of Confederate statues in the wake of the terror attack in Charlottesville, Virginia, have shown, local governments and activists are still able to provide at least partial solutions.

The most obvious is for local authorities, such as state’s attorney’s offices or police departments, to inform their personnel about the program and look for ways to streamline the U visa certification process. For example, in areas where there is a large immigrant community, it may be useful to have designated officials in charge of reviewing all certification requests. In Montgomery County, both police and local prosecutors have designated officials for this task who have streamlined the process and made it one of the best in the D.C. metro area.

Given that U visas incentivize cooperation with law enforcement, these changes make sense purely in pragmatic terms.

A second partial solution, which local governments, activists, and community organizations can explore, are family justice centers (FJC). In the words of Thomas Manion, director of the local Montgomery County Family Justice Center, they are attempts at “co-locating service providers … anyone who has a role to play in victim’s services … [specifically] victims of partner violence.” Before FJCs, Manion explained, victims would have to go to many different locations in order to get the same services that these centers put under one roof. With each visit to a new location they would often have to re-tell what had happened to them, reliving the trauma and exhausting them emotionally.

FJCs are public-private partnerships where local governments, charities, and community organizations pool resources and expertise in an attempt to provide a coordinated response to domestic violence issues.

When a victim walks through the door, they meet with a “victim assistant” who listens carefully and tries to assess which of the organizations present at the FJC would be most helpful in their specific case.

“What we’re trained to do first is listen,” Manion says. “We have to respect the fact that this may be the first time they’re disclosing this.” He emphasized that it takes “courage just to walk through the door” and that the first interview is done with that in mind.

Once the victim has explained their situation, a safety plan is created to make sure that whatever additional help is provided the victim is protected from future abuse. After this, different entities are brought in to help attend to case-specific needs. Immigrant victims of domestic violence can be made aware of the U visa option, if they weren’t already, and organizations specializing in aiding immigrants can be brought in to discuss the process with them. Some organizations help victims with this process for free, others at subsidized prices; it all depends on what organizations are locally available.

The Montgomery County FJC has a direct video-conference link to local courts to help file protection orders on behalf of victims without even needing to leave the premises. Food and drink are available, as are toys for kids to play on site, and places to charge phones (particularly useful for victims who may have fled without their phone chargers or money to replace them).

FJCs create a space where victims can involve law enforcement safely. They have a degree of control, their desires and concerns are respected, and advocates can try to put both information and resources in their hands so that they can make the best decision for themselves and their family.

Montgomery County’s FJC had its origins in the local sheriff’s office’s decision to create the Domestic Violence Coordinating Council (DVCC) in the mid-2000s. It was made up of a 17-member board: eleven ex-officio court or police officers and six members of the public with strong connections to domestic violence (of which one must have been a victim of domestic violence). The DVCC was meant to make recommendations to improve the law enforcement response to domestic violence issues. The council learned of the success of the FJC model elsewhere and proposed implementing a local version. The municipal government agreed and after a great deal of planning and coordination, the local center was opened in 2009.

“It takes a lot of work,” director Manion explained. “It takes a lot of coordination, when you house so many organizations.” Perhaps most importantly, “you need buy-in from the people at the top”; it can’t just be local activists pushing for change. You need willpower and resources from local government officials who are looking to improve current policies.

The degree of their contribution will vary from place to place, but some degree of government cooperation and material support is necessary.

While technically separate from U visa certifications as such, FJCs can help convince local authorities to streamline their certification reviewal process as well as inform victims about the program’s existence and requirements. FJCs can also connect victims with law enforcement officials who they might not have contacted otherwise due to fear of deportation or excessive force.

Lastly, local elections can have sweeping consequences. Local elected officials can block certifications completely, allow poor certifications processes to continue uncorrected, or close the door to public-private partnerships that would otherwise provide a great deal of help to domestic violence victims.

Under President Donald Trump, the pressure to prosecute and deport immigrants may make it even harder to convince victims to step forward, or for local organizations to implement partial solutions. Local governments with strong anti-immigrant tendencies might use the current administration as cover to ratchet up immigration enforcement and thereby alienate even more immigrants who already fear deportation.

There is no magical solution to these complex issues, especially without changes to the laws behind the U visa program. Nonetheless, a great deal can be done at the local level with major ramifications for countless victims and their families.

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