Long visa delays leave immigrant victims of crime in the lurch, argue NC legal advocates

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Two federal lawsuits originating in North Carolina could have national implications for immigrant victims of crime. Visa processing backlogs mean victims must wait years to access the immigration protections they need to assist in criminal investigations, and legal advocates say those delays violate the law.

More than 20 years ago, Congress established the U visa, a status designed for non-citizens who were victims of a serious crime, like human trafficking or domestic violence, while in the United States.

A major goal of the program is to assist law enforcement investigations by allowing cooperative victims to remain and work in the U.S.

But only 10,000 victims can qualify annually, and for years now, that cap has been easily met, explained Anna Cushman, an attorney with Legal Aid of North Carolina and the Battered Immigrant Project.

“I think it shows that this is a successful program. Congress has created something that is incredibly useful for law enforcement, honors our humanitarian values as a country, and assists immigrant crime victims,” Cushman said.

That success has also meant a substantial backlog of U visa applications, translating into wait periods ranging from four to seven years in many cases.

“I've had a client die while his case was pending,” Cushman said. “If we think about all the things that happen in five years, if any of us thought about where we were five years ago, it'll feel like a different era.”

As of 2021, more than 170,000 U visa applications were pending with United States Citizenship and Immigration Services.

Legal Aid of North Carolina, North Carolina Justice Center, and Charlotte Center for Legal Advocacy are now suing USCIS over that backlog in Nebraska and Vermont, where U visas are processed.

While the lawsuits can’t address the annual cap set by Congress, Cushman said they can push an issue called bona fide determination. That’s a step that comes before a U visa decision is made. It means an applicant passes a criminal background check and that they’ve properly filed a complete visa application.

“This bona fide determination process is still incredibly slow and years away,” Cushman said. “It doesn't require an incredible amount of time or resources by the government to see that they have submitted the proper forms. That background check comes back fairly promptly. We've had a government official confirm that in another case.”

With bona fide determination, applicants gain access to a work permit, they can apply for a North Carolina driver’s license and they’re protected from deportation. It can also mean reuniting with immediate family members.

The litigation argues that unreasonable delays to reaching this step violate the Administrative Procedure Act.

“We still don't have a solution to these incredible delays. And those have an incredible impact on immigrant survivors,” Cushman said. “When you just think about how they have bills to pay today, they need to drive their kid to school today, to wait five years for those benefits that would allow them to work and support their family - that's unreasonable. And that is the heart of our case.”

Fear of coming forward

One of the U visa applicants represented in the litigation is Maria, whose full name is being withheld for safety reasons. Her family submitted U visa petitions through the Charlotte Center for Legal Advocacy in mid-2017 — almost six years ago —after her adolescent daughter was the victim of a violent crime.

“I was very afraid to report it,” she said. “I asked myself what I was going to do and who would support me.”

She says undocumented people run into a lot of situations that don’t get reported out of fear of authorities.

“When you call the police, they ask if you’re Hispanic,” she said. “And the first thing they ask is if you have papers.”

Now María knows her rights and understands the U visa program because she found a pro bono lawyer, Ruth Santana, at the Charlotte Center for Legal Advocacy.

But the nearly six-year wait has meant surviving without a work permit and without a driver’s license. The situation has left the family vulnerable to exploitation.

“Sometimes people don’t pay you,” she said, adding that instead, they threaten to call immigration if they know the worker doesn't have a work permit.

Stories like María’s can have a dampening effect on the U visa program’s goals, explained Sharon Dove, director of the Charlotte Center for Legal Advocacy’s Immigrant Justice Program.

“If the immigrant who is a victim of a crime doesn't feel that she is going to be protected when she's coming forward with her evidence to the police,” Dove said, “then the immigrant victim is very likely not going to be willing to cooperate and her perpetrator is going to be free in the community. And, of course, that's something that we all have an interest in avoiding.”

If successful, the litigation won’t influence the outcomes of U visa petitions. But Dove hopes it will provide the protections that applicants need.

“Where we're coming in is, we just want these people to have work authorization and to not be subject to deportation, to have deferred action,” Dove said.

A response from USCIS to the Nebraska and Vermont lawsuits is expected in the coming weeks.