Author: Aidan Scible

What is U and T Visa Status and who currently qualifies?

U and T visa status are programs with the intention of aiding immigrants that are victims of certain criminal activity. U nonimmigrant status is designed to aid victims of crimes that involve mental or physical abuse who assist law enforcement and other government officials in the investigation and/or prosecution of the crime. T visas are designed for victims of human trafficking who fulfill a reasonable request for aid in detecting, investigating, and/or prosecuting human trafficking. 

How does one apply for a U or T visa?

1. Turn in a completed Form I-918 to the USCIS
   1. This is the main application document,
2. Turn in a completed Form I-918 Supplement B
   1. This form is confirmation that the applicant was cooperative with law enforcement, prosecutors, and other government officials in investigating and prosecuting the crime of which they were a victim. 
   2. This cooperation element is key to the public policy goals of the U and T nonimmigrant status programs, as it encourages cooperation with authorities, even if the victim is undocumented and may be wary of authority figures.
3. If petitioning for other family members, turn in a completed Form I-918 Supplement A.
   1. This allows other family members to receive U visa status based on their relationship to the victim of the crime.

What are the benefits of U or T visa status?

The immediate benefit of U or T visa status is that an individual receives lawful status, allowing them to remain in the United States for four years without entering removal proceedings. They are also allowed to petition for close family members, usually a spouse, unmarried minor children, and, if the victim is a child, parents and unmarried minor siblings. If granted, the family members all receive U nonimmigrant status. Another benefit is that employment authorization comes with U nonimmigrant status, allowing one to work legally in the United States while they are allowed to live here.

The biggest benefit of U and T nonimmigrant statuses is that they are a pathway to permanent residency, often known as a “green card.” While one does not immediately qualify after being granted a U or T visa, one is eligible after living continuously within the United States for four years after obtaining U or T nonimmigrant status. The process is lengthy, but having a green card is the last step before U.S. citizenship. 

What are the limitations of U and T visa status?

One of the main limitations of the current U and T nonimmigrant status programs is that a limited number of principal U visas—10,000—are issued annually. There are significantly more U visa applicants than visas issued annually, with over 35,000 filed in 2017 and again in 2018. Given this difference in applications and visas issued, there is a large queue of pending applications—142,000 as of 2019.

What is Special Immigrant Juvenile Visa Status?

Special Immigrant Juvenile Status (SIJS) is a program created by the Immigration Act of 1990, in order to address a growing issue of vulnerable immigrant children that lacked appropriate parental caretakers in the United States. Social service systems and juvenile courts could remove the children from harmful caregivers, enter them in the foster care system, and facilitate adoption. However, upon turning eighteen, these children would run the risk of being deported, and there was no clear way for these children to attain legal status.

A Special Immigrant Juvenile (SIJ) as defined by the Immigration Act is an immigrant that has been declared dependent on a state court and eligible for foster-care, and for whom it has been found in “administrative or judicial proceedings” that it is not in the child’s best interests to return to their home country. A clause was included which states that the parent of a child granted SIJS cannot qualify in order to prevent children being sent to the United States to petition for an abusive parent’s legal status. 

The 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 expanded eligibility for SIJS, from those declared dependent on the state to also include those committed to the custody of an individual or entity appointed by a state or juvenile court. This allows juveniles that are granted a legal guardian to also apply for SIJS, not just those destined to enter the foster care system.

Who currently qualifies for SIJS?

In 2022, to qualify for Special Immigrant Juvenile Status (SIJS), an immigrant must be:

1. A child that cannot be reunited with one or more parents due to abandonment, abuse, or neglect. 
2. Under 21 years old, 
3. Unmarried, and 
4. Declared a dependent by a juvenile court. 

What makes SIJS different from other visa programs?

SIJS is unique among immigration programs in that, in addition to involving the federal immigration court system, it also involves state juvenile court, which is defined by the USCIS as “a court in the United States that has jurisdiction under state law to make judicial determinations about the dependency and/or custody and care of juveniles.” This court can fall under a number of names, varying by state, but the involvement of this court is necessary to filing a valid SIJS application. 

How does one apply for Special Immigrant Juvenile Status?

To file an application for SIJS, the applicant must provide the following to the United States Citizenship and Immigration Service (USCIS):

1. A completed form I-360, Petition for Amerasian, Widow(er), or Special Immigrant
2. Evidence of the applicant’s age to prove they are a minor, which in immigration court is anyone under 21 years old. Possible documents include a birth certificate, passport, or ID issued by a foreign government.
3. A valid order from a juvenile state court

In order to receive the court order, there are a few different processes the applicant may have to go through. Generally, the guardian of the applicant files a case in whichever state juvenile court has jurisdiction, which varies by state and locality. This step generally requires a lawyer, who may be appointed by the state depending on the specifics of the case. 

The juvenile court must make specific findings for the juvenile to qualify under USCIS qualifications. The most important finding is that reunification with one or more parents is impossible due to abandonment, abuse, neglect, or similar reasons found in state law. Notably, the determination is made based on state law, not federal law, meaning that each state can have different criteria for what qualifies as abandonment, abuse, and neglect. The rules vary by state, with some states requiring that the court order be procured before the juvenile turns 18 or 19, while others allow up to 21 years old like the USCIS. Some states have made different decisions, stating that both parents of a juvenile must be responsible for the abuse, abandonment, or neglect, despite the 2008 TVPRA changing the requirement to one parent. 

What are the benefits of SIJS status?

SIJS waives some criteria required by other programs that would render applicants inadmissible. This includes unlawful entry, which is entering the United States in violation of immigration laws, usually by crossing the border in a remote area without inspection, entering with false documents like a fake passport, or entering the United States with a visa the applicant is ineligible for but provided false information in order to receive. SIJS also waives working without authorization, being a public charge, and some other immigration violations.

Given that those applying for SIJS are usually in removal proceedings, SIJS’s protection from deportation is one of the biggest benefits of the program. The biggest long-term benefit, however, may be that those that are granted SIJS status can apply for permanent residency, commonly known as a “green card.” The green card process can be long, especially for SIJS applicants, as they have to wait for their turn at a limited number of visas, but this status is an important foot in the door to eventually acquiring legal residency.

With current Biden administration policies, an individual granted SIJS but not yet eligible for a green card can still receive deferred action, which means that prosecutors will not seek removal for a certain period of time, as well as work permits, allowing SIJS holders to work legally in the United States. These are two major benefits as they enable an immigrant to earn money and stay in the United States without violating immigration laws.

What are the criticisms of SIJS status?

The current implementation of the SIJS program provides relatively broad privileges, including deferred action and work authorization, as well as certain provisions in the application process, which may result in negative unintended consequences. One of these consequences is that the USCIS is likely to receive many applications with illegitimate or exaggerated information, in order to pursue an easier path to work authorization and deferred action. The quick pathway to a work permit could also lead to exploitation of the juveniles applying, as unaccompanied minors that receive SIJS could work to pay back those that may have smuggled them into the US.

Another criticism of SIJS as it stands is the variation that exists because of the involvement of state courts. The ABA criticized the variation among state courts, stating that the “disparate result amounts to impermissible immigration adjudication by state courts.” With the relatively open-ended findings the state courts must make, there is room for a lot of variation in judgements, making some immigrants unable to receive the same access to SIJS as immigrants in another state.

What is the Special Immigrant program for Afghans and Iraqis? 

The Special Immigrant Visa program for Afghan and Iraqi nationals is a set of two visa programs: SI visas, for Iraqi and Afghan translators, and SQ visas, for Iraqis and Afghans employed on behalf of the United States government or the International Security Assistance Force (ISAF). There have been a total of 3,996 immigrants that have obtained SI visas and 105,477 immigrants that have obtained SQ visas.

The SI visa program was first signed into law in 2006 as part of the National Defense Authorization Act (NDAA), which authorized the issuing of up to 50 visas per year to those who qualify (called principals). 

Who qualifies for this program? 

SQ visas were issued through two Special Immigrant Visa programs for Iraqi nationals and Afghan nationals. The requirements to qualify are almost the same for both programs. The program for Iraqi nationals was signed into law with the NDAA of 2008, and for Afghan nationals the following year as part of the Afghan Allies Protection Act. The deadline to apply for the Iraqi program was in September, 2014, but the Afghan program will accept applications until December 31, 2023. The remainder of this brief will refer to the Afghan program, as it is the only active program of the two.

 To qualify for these programs, one must:

• Be a national of Iraq or Afghanistan, 
• Have been employed for one year by the U.S. government or allied missions
• Have received a letter of recommendation, and
• Have experienced or be experiencing an “ongoing serious threat” as a result of the previous employment by the United States

What is the process to obtain this visa?

In order to obtain an SQ visa as an Afghan, the USCIS lists five steps:

1. Apply for Chief of Mission (COM) Approval: This step requires certain documents, including verification of employment by the U.S. government, a letter of recommendation (LoR) from a direct senior supervisor, evidence of Afghan nationality, and a statement of threats received as a result of employment by the United States.
2. File a Petition with the USCIS: This step requires submitting an I-360 Form, the COM approval, the previous LoR, and a passport copy (and a translation if not in English).
3. Prepare for Visa Application: After receiving confirmation from the National Visa Center via email, the applicant must fill out more forms in order for the center to process the visa and schedule a visa interview.
4. Visa Interview: The applicant must attend a personal interview, conducted in English, with all family members applying for visas. Interviews used to be conducted at the U.S. embassy in Kabul, Afghanistan, but the embassy suspended operations on August 31, 2021, so any remaining applicants must apply at an embassy or consulate in another country. 
5. Arrival in the United States: From this point on, the process resembles that of refugees entering the United States. Afghan SIV recipients are eligible for the benefits refugees receive, and are resettled in a similar manner.

The process looks mostly the same for an SI visa applicant, except they do not need to complete the COM approval step. 

What does this program look like now?

There are many obstacles to applying for SIV status now that the United States has withdrawn from Afghanistan and the Taliban has taken control of the country. Because interviews can no longer be processed in Kabul, many individuals are traveling to other countries like Pakistan in order to apply. Despite the effort it takes to apply, many have nothing to show for it, as over 1,300 SIV applicants were denied from October to December of last year, often for lack of documentation, failure to prove service to the U.S. government, or derogatory information associated with the principal. There are currently 50,000 SIV applications being evaluated, but only 16,515 still remaining slots unless Congress approves more. Applicants also experience lengthy wait times.

The Biden administration recently attempted to ease requirements for SIV applicants, including allowing those who have worked as civil servants or paid for public services under the Taliban regime controlling Afghanistan, either prior to 2001 or after August 15, 2021, to be issued visas. Yet, requirements still remain vague. For example, if an applicant’s LoR was written by a non-U.S. citizen, they are asked to have the letter cosigned by a U.S. citizen, despite that not being listed as a requirement. This added complication makes it harder for SIV applicants to receive visas.

After the Taliban takeover of Afghanistan in August of 2021, 76,000 Afghans were brought to the United States through Operation Allies Welcome, with over half of those holding or qualifying for SIV status. President Biden issued an order defining Afghanistan as a temporary protected status (TPS) country, which prevents an Afghan national from being removed from the United States and allows them to access employment authorization. However, this does not provide a pathway to legal permanent residence, and the TPS designation is set to expire in November 2023. This leaves half of those brought to the United States without a guarantee of permanent residence outside of applying for asylum, a program with a grant rate of about 14% for the year 2021.  

What changes could be made to the SIV program for Afghans?

One possible solution to the limitations of the SIV Afghan program is to pass an adjustment act, which would allow Afghans that do not qualify for SIV status to apply for permanent status after a year of residing in the United States. This kind of program has been implemented previously for refugees from Vietnam, Cuba, and Iraq. The Biden Administration called on congress for a program like this to be included with a recent bill focused on providing aid to Ukraine, but the bill passed without such a program.

Supporters of an “Afghan Adjustment Act” say this program will alleviate the previously mentioned backlog of applications within the SIV program as well as the over one million case backlog in the asylum system, while providing our Afghan partners with a guarantee of permanent status. They also cite the many levels of screening and security vetting that all Afghan immigrants go through prior to entering the United States as proof that it is safe to implement this program. 

Critics of an Afghan adjustment act express concern over gaps in the vetting process. One critical lawmaker cited reports from the Department of Defense Inspector General, which state that thousands of Afghans were not screened completely using all of the department’s data prior to arrival in the United States. The lawmaker calls on the Biden Administration to address possible issues with vetting prior to enacting a large readjustment program. A response to mitigate this criticism is that Afghans seeking to adjust their status would be required to undergo additional screening.