New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 53014-53042 [E7-17807]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• U.S. Citizenship and Immigration Services

[Federal Register Volume 72, Number 179 (Monday, September 17, 2007)]
[Rules and Regulations]
[Pages 53014-53042]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-17807]



[[Page 53013]]

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Part IV





Department of Homeland Security





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8 CFR Parts 103, 212, et al.



New Classification for Victims of Criminal Activity; Eligibility for 
``U'' Nonimmigrant Status; Interim Rule

Federal Register / Vol. 72, No. 179 / Monday, September 17, 2007 / 
Rules and Regulations

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 212, 214, 248, 274a and 299

[CIS No. 2170-05; DHS Docket No. USCIS-2006-0069]
RIN 1615-AA67


New Classification for Victims of Criminal Activity; Eligibility 
for ``U'' Nonimmigrant Status

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends Department of Homeland Security 
regulations to establish the requirements and procedures for aliens 
seeking U nonimmigrant status. The U nonimmigrant classification is 
available to alien victims of certain criminal activity who assist 
government officials in investigating or prosecuting such criminal 
activity. The purpose of the U nonimmigrant classification is to 
strengthen the ability of law enforcement agencies to investigate and 
prosecute such crimes as domestic violence, sexual assault, and 
trafficking in persons, while offering protection to alien crime 
victims in keeping with the humanitarian interests of the United 
States.
    This interim rule outlines the eligibility and application 
requirements for the U nonimmigrant classification and the benefits and 
limitations relating to those granted U nonimmigrant status. This 
interim rule also amends existing regulations to include U 
nonimmigrants among the nonimmigrant status holders able to seek a 
waiver of documentary requirements to gain admission to the United 
States, and to permit nonimmigrants to change status to that of a U 
nonimmigrant where applicable. This rule also establishes a filing fee 
for U nonimmigrant petitions.
    Aliens who have been granted interim relief from USCIS are 
encouraged to file for U nonimmigrant status within 180 days of the 
effective date of this interim rule. USCIS will no longer issue interim 
relief upon the effective date of this rule; however, if the alien has 
properly filed a petition for U nonimmigrant status, but USCIS has not 
yet adjudicated that petition, interim relief will be extended until 
USCIS completes its adjudication of the petition.

DATES: Effective date. This rule is effective October 17, 2007.
    Comment date. Written comments must be submitted on or before 
November 16, 2007.

ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2006-0069 by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Chief, Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To 
ensure proper handling, please reference DHS Docket No. USCIS-2006-0069 
on your correspondence. This mailing address may also be used for 
paper, disk, or CD-ROM submissions.
     Hand Delivery/Courier: Regulatory Management Division, 
U.S. Citizenship and Immigration Services, Department of Homeland 
Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 
20529. Contact Telephone Number (202) 272-8377.

FOR FURTHER INFORMATION CONTACT: Laura Dawkins, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 111 
Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone: 
(202) 272-8350.

SUPPLEMENTARY INFORMATION: This supplemental information section is 
organized as follows:

I. Public Participation
II. Background and Legislative Authority
III. Analysis of Requirements and Procedures Under This Interim Rule
    A. Eligibility Requirements for U Nonimmigrant Status
    1. Victims of Qualifying Criminal Activity Who Have Suffered 
Physical or Mental Abuse
    2. Possession of Information Concerning the Qualifying Criminal 
Activity
    3. Helping Law Enforcement in the Investigation or Prosecution 
of Criminal Activity
    4. Criminal Activity That Violated U.S. Law or Occurred in the 
United States
    B. Application Process
    1. Filing the Petition to Request U Nonimmigrant Status
    2. Initial Evidence
    3. Derivative Family Members
    4. Designations
    C. Adjudication and Post-Adjudication
    1. Credible Evidence
    2. Prohibitions on Disclosure of Information
    3. Annual Numerical Limitation on Grants of U Nonimmigrant 
Status
    4. Decision on Petitions
    5. Benefits for U Nonimmigrants
    6. Travel Outside the United States
    7. Revocation of U Nonimmigrant Status
    8. Removal Proceedings
    D. Filing and Biometric Services Fees
IV. Regulatory Requirements
    A. Administrative Procedure Act
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act of 1995
    D. Small Business Regulatory Enforcement Fairness Act of 1996
    E. Executive Order 12866 (Regulatory Planning and Review)
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. Family Assessment
    I. Paperwork Reduction Act

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
interim rule. U.S. Citizenship and Immigration Services (USCIS) also 
invites comments that relate to the economic, environmental, or 
federalism effects that might result from this interim rule. Comments 
that will provide the most assistance to USCIS in developing these 
procedures will reference a specific portion of the interim rule, 
explain the reason for any recommended change, and include data, 
information, or authority that support such recommended change.
    Instructions: All submissions received must include the agency name 
and DHS Docket No. USCIS-2006-0069. All comments received will be 
posted without change to https://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received go to https://www.regulations.gov. Submitted comments 
may also be inspected at the Regulatory Management Division, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529.

II. Background and Legislative Authority

    Congress created the U nonimmigrant classification in the Battered 
Immigrant Women Protection Act of 2000 (BIWPA). See Victims of 
Trafficking and Violence Protection Act of 2000, div. B, Violence 
Against Women Act of 2000, tit. V, Battered Immigrant Women Protection 
Act of 2000, Pub. L. 106-386, sec. 1513, 114 Stat. 1464, 1533-37 
(2000), amended by Violence Against Women and Department of Justice 
Reauthorization Act of 2005 (VAWA 2005), tit. VIII, Pub. L. 109-162, 
119 Stat. 2960 (2006), amended by Violence Against Women and Department 
of Justice Reauthorization Act--Technical Corrections, Pub. L. 109-271, 
120 Stat. 750 (2006). Alien victims may not have legal status and, 
therefore may be reluctant to help in the investigation or prosecution 
of criminal activity for fear of removal from the United States. In

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passing this legislation, Congress intended to strengthen the ability 
of law enforcement agencies to investigate and prosecute cases of 
domestic violence, sexual assault, trafficking of aliens and other 
crimes while offering protection to victims of such crimes. See BIWPA, 
sec. 1513(a)(2)(A). Congress also sought to encourage law enforcement 
officials to better serve immigrant crime victims. Id.
    The U nonimmigrant classification was established under section 
1513(b) of the BIWPA. Notwithstanding the title of the legislation, the 
U nonimmigrant classification is available to qualified victims of 
crimes, without regard to gender. The U nonimmigrant classification 
provides temporary immigration benefits to certain victims of criminal 
activity who: (1) Have suffered substantial mental or physical abuse as 
a result of having been a victim of criminal activity; (2) have 
information regarding the criminal activity; and (3) assist government 
officials in the investigation and prosecution of such criminal 
activity. USCIS can only grant U nonimmigrants status to 10,000 
principal aliens in each fiscal year. See INA sec. 214(p)(2), 8 U.S.C. 
1184 (p)(2). (Note: this number does not include persons eligible for U 
nonimmigrant derivative status--e.g. spouses, children, or parents of 
applicants--as discussed in Section III. C. of this rule below).
    Aliens granted U nonimmigrant status can remain in the United 
States for a period of up to four years, with possible extensions upon 
certification of need by certain government officials. INA sec. 
214(p)(6), 8 U.S.C. 1184(p)(6). Section 1513(f) of the BIWPA provides 
DHS with discretion to convert the temporary U nonimmigrant status to 
permanent resident status if (1) the alien has been physically present 
in the United States for a continuous period of at least three years 
since the date of admission as a U nonimmigrant; and (2) DHS determines 
that the ``alien's continued presence in the United States is justified 
on humanitarian grounds, to ensure the family unity, or is otherwise in 
the public interest.''
    To qualify for the U nonimmigrant classification:
     The alien must have suffered substantial physical or 
mental abuse as a result of having been a victim of qualifying criminal 
activity;
     The alien must be in possession of information about the 
criminal activity of which he or she has been a victim;
     The alien must be of assistance to a Federal, State, or 
local law enforcement official or prosecutor, a Federal or State judge, 
the Department of Homeland Security (DHS), or other Federal, State, or 
local authority investigating or prosecuting criminal activity; and
     The criminal activity must have violated U.S. law or 
occurred in the United States (including Indian country and military 
installations) or the territories and possessions of the United States.

INA sec. 101(a)(15)(U)(i), 8 U.S.C. 1101(a)(15)(U)(i). Qualifying 
criminal activity is defined by statute to be ``activity involving one 
or more of the following or any similar activity in violation of 
Federal, State, or local criminal law: Rape; torture; trafficking; 
incest; domestic violence; sexual assault; abusive sexual contact; 
prostitution; sexual exploitation; female genital mutilation; being 
held hostage; peonage; involuntary servitude; slave trade; kidnapping; 
abduction; unlawful criminal restraint; false imprisonment; blackmail; 
extortion; manslaughter; murder; felonious assault; witness tampering; 
obstruction of justice; perjury; or attempt, conspiracy, or 
solicitation to commit any of the above mentioned crimes[.]'' 
Id.,(iii). The list of qualifying crimes represents the myriad types of 
behavior that can constitute domestic violence, sexual abuse, or 
trafficking, or are crimes of which vulnerable immigrants are often 
targeted as victims.
    U nonimmigrant status can also extend to certain family members of 
the alien victim. If the alien victim is under 21 years of age, the 
victim's spouse, children, unmarried siblings under 18 years of age, 
and the victim's parents may qualify for U nonimmigrant status. INA 
sec. 101(a)(15)(U)(ii)(I), 8 U.S.C. 1101(a)(15)(U)(ii)(I). If the alien 
victim is 21 years of age or older, his or her spouse and children may 
also qualify for U nonimmigrant status. INA sec. 101(a)(15)(U)(ii)(II), 
8 U.S.C. 1101(a)(15)(U)(ii)(II).
    Aliens applying for U nonimmigrant status must provide a 
certification from a Federal, State or Local law enforcement official 
demonstrating that the applicant ``has been helpful, is being helpful, 
or is likely to be helpful'' in the investigation or prosecution of the 
qualifying criminal activity. INA sec. 214(o), 8 U.S.C. 1184(o). The 
BIWPA further directs DHS to provide aliens who are eligible for U 
nonimmigrant status with referrals to nongovernmental organizations 
(NGOs) to advise the aliens regarding their options in the United 
States. Id. Further, USCIS is required to provide U nonimmigrants with 
employment authorization. Id.
    Section 1513(e) of the BIWPA amended section 212(d) of the INA, 8 
U.S.C. 1182(d), to provide for a waiver of inadmissibility if the 
Secretary of Homeland Security determines that such a waiver is in the 
public or national interest.\1\ Finally, the BIWPA added a new 
paragraph (1)(E) to 8 U.S.C. 1367(a) to prohibit adverse determinations 
of admissibility or deportability and disclosure of information 
pertaining to an alien seeking U nonimmigrant status, except in certain 
circumstances. BIWPA sec. 1513(d) (amending section 384(a) of the 
Illegal Immigration and Immigrant Reform Act (IIRIRA), div. C of the 
Omnibus Appropriations Act of 1996, Pub. L. 104-208, 110 Stat. 3009 
(1996)).
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    \1\ Unless waived, a ground of inadmissibility can preclude an 
alien from receiving nonimmigrant status. 8 CFR 214.1(a)(3). Section 
212(a) of the INA, 8 U.S.C. 1182(a), contains a list of the grounds 
of inadmissibility.
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    Following passage of the BIWPA in October 2000, USCIS implemented 
procedures to ensure that those aliens who appeared to be eligible for 
U nonimmigrant status under the BIWPA would not be removed from the 
United States until they had an opportunity to apply for such status. 
See e.g., Memorandum from Michael D. Cronin, Acting Executive Associate 
Commissioner, Office of Field Operations, Immigration and 
Naturalization Service (Aug. 30, 2001); Memorandum from William R. 
Yates, Associate Director of Operations, USCIS, Centralization of 
Interim Relief for U Nonimmigrant Status Applicants (Oct. 8, 2003) 
(https://www.uscis.gov/graphics/services/tempbenefits/antitraf.htm); 
Memorandum from William R. Yates, Associate Director of Operations, 
USCIS, Assessment of Deferred Action in Requests for Interim Relief 
from U Nonimmigrant Status Eligible Aliens in Removal Proceedings (May 
6, 2004) (https://www.uscis.gov/graphics/services/tempbenefits/
antitraf.htm).\2\ Alien victims who may be eligible for U nonimmigrant 
status were given the opportunity to ask USCIS for interim relief 
pending the promulgation of implementing regulations. Family members 
seeking to derive immigration benefits from such aliens were accorded 
the same treatment. Interim relief provides alien victims with parole, 
stays of removal, or assessed deferred action, as well as an 
opportunity to apply for employment authorization.\3\
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    \2\ Copies of these documents are accessible on the public 
docket for this rulemaking at www.regulations.gov, Docket Number 
USCIS-2006-0069.
    \3\ Parole is permission given by DHS that allows an alien to 
physically enter the United States temporarily for urgent 
humanitarian reasons or significant public benefit; the entry is not 
deemed to be an admission to the United States. INA 212(d)(5)(A), 8 
U.S.C. 1182(d)(5)(A); 8 CFR 212.5. A stay of deportation or removal 
is an administrative decision to stop temporarily the deportation or 
removal of an alien who has been ordered deported or removed from 
the United States. See 8 CFR 241.6; 8 CFR 1241.6. Deferred action is 
an exercise of prosecutorial discretion that defers the removal of 
the alien based on the alien's case being made a lower priority for 
removal. Immigration and Customs Enforcement, Department of Homeland 
Security, Detention and Deportation Officer's Field Manual, ch. 20.8 
(2005). Deferred action does not confer any immigration status upon 
an alien.

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III. Analysis of Requirements and Procedures Under This Interim Rule

    To implement the BIWPA and its creation of the U nonimmigrant 
classification, this interim rule outlines the eligibility and 
application requirements for the U nonimmigrant classification and the 
benefits and limitations relating to those granted U nonimmigrant 
status. Specifically, this interim rule provides definitions of 
relevant terms contained in the BIWPA and establishes procedures and 
standards for adjudicating petitions for U nonimmigrant status. It also 
describes the filing procedures and adjudication standards for 
applications for the waiver of inadmissibility created by the BIWPA 
that is available to those seeking U nonimmigrant status. New 8 CFR 
212.17. The rule amends 8 CFR 212.1 to include U nonimmigrant status 
recipients among the nonimmigrant status holders able to seek a waiver 
of documentary requirements to gain admission to the United States. 
This rule also amends 8 CFR 248.2 to permit nonimmigrants to change 
status to that of a U nonimmigrant; 8 CFR 274a.12(a) to add U 
nonimmigrant status recipients to the list of aliens authorized to 
accept employment; 8 CFR 274a.13(a) to require an application to be 
filed for certain U nonimmigrants seeking evidence of employment 
authorization; 8 CFR 299.1 to prescribe the petition form for U 
nonimmigrant status; and 8 CFR 103.7 to prescribe the filing fee for U 
nonimmigrant petitions.
    As discussed below, USCIS encourages petitioners and accompanying 
or following to join family members who have been granted interim 
relief to file Form I-918 within 180 days of the effective date of this 
rule. After the effective date of this rule, the interim relief process 
will no longer be in effect, and USCIS will not consider initial 
requests for interim relief. After the 180-day time period, USCIS will 
reevaluate previous grants of deferred action, parole, and stays of 
removal and terminate such interim relief for those aliens who fail to 
file Form I-918 within the 180-day time period. However, if the alien 
has properly filed a Form I-918, but USCIS has not yet adjudicated that 
petition, interim relief will be extended until USCIS completes its 
adjudication of Form I-918.

A. Eligibility Requirements for U Nonimmigrant Status

    There are four statutory eligibility requirements for U 
nonimmigrant status, the alien (1) Has suffered physical or mental 
abuse as a result of having been a victim of certain criminal activity; 
(2) possesses information concerning such criminal activity; (3) has 
been helpful, is being helpful or is likely to be helpful in the 
investigation or prosecution of the crime; and (4) the criminal 
activity violated the laws of the United States or occurred in the 
United States. This section of the Supplementary Information describes 
each statutory eligibility requirement for U nonimmigrant status and 
this rule's implementation of each requirement.
1. Victims of Qualifying Criminal Activity Who Have Suffered Physical 
or Mental Abuse
    The first eligibility requirement for U nonimmigrant status is that 
the alien must have suffered substantial physical or mental abuse as a 
result of having been a victim of qualifying criminal activity. INA 
sec. 101(a)(15)(U)(i)(I), 8 U.S.C. 1101(a)(15)(U)(i)(I). This interim 
rule defines the following terms that relate to this eligibility 
requirement: Victims of qualifying criminal activity, physical or 
mental abuse, and qualifying crime or qualifying criminal activity. New 
8 CFR 214.14(a). These definitions are discussed below.
a. Victims of Qualifying Criminal Activity
    The meaning of ``victim of qualifying criminal activity'' is 
provided by new 8 CFR 214.14(a)(14). Within this definition, the rule 
provides for indirect victims of the criminal activities in the case of 
deceased victims of murder and manslaughter and victims of violent 
criminal activity who are incapacitated or incompetent. See new 8 CFR 
214.14(a)(14)(i). The definition also clarifies how victims of witness 
tampering, obstruction of justice, and perjury can constitute victims 
of qualifying criminal activity. See new 8 CFR 214.14(a)(14)(ii). This 
interim rule also excludes alien victims who are themselves culpable of 
criminal activity from the definition of victim, subject to certain 
exceptions. See 8 CFR 214.14(a)(14)(iii).
(i) Direct Victims
    This rule generally defines ``victim of qualifying criminal 
activity'' as an alien who is directly and proximately harmed by 
qualifying criminal activity. 8 CFR 214.14(a)(14). To formulate the 
general definition, USCIS drew from established definitions of 
``victim.'' Federal statutory provisions consistently define ``victim'' 
as one who has suffered direct harm or who is directly and proximately 
harmed as a result of the commission of a crime. See e.g., 42 U.S.C. 
10603(c) (relating to terrorism); 18 U.S.C. 3663(a)(2) (relating to 
restitution); 18 U.S.C. 3771(e) (relating to crime victim rights); Fed. 
R. Crim. P. 32(a)(2) (defining victim for sentencing purposes); see 
also United States v. Terry, 142 F.3d 702, 710-11 (4th Cir. 1998) 
(reviewing the possible definitions of ``victim''). The Department of 
Justice's (DOJ's) Attorney General Guidelines for Victim and Witness 
Assistance (AG Guidelines) adopts a similar definition of the term 
``victim.'' See Attorney General Guidelines for Victim and Witness 
Assistance at 9 (May 2005) (https://www.ojp.usdoj.gov/ovc/publications/
welcome.html). The AG Guidelines serve to guide federal investigative, 
prosecutorial, and correctional agencies in the treatment of crime 
victims and, therefore, were viewed by USCIS as an informative resource 
in the development of this rule's definition of victim.\4\
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    \4\ The AG Guidelines, and some of the aforementioned statutes, 
also include pecuniary crimes within the scope of qualifying 
activities. The BIWPA, however, limits the qualification 
requirements to aliens who suffer substantial physical or mental 
abuse and did not expressly reference pecuniary crimes. Therefore, 
pecuniary crimes are not included as qualifying criminal activities 
for U nonimmigrant status. In addition, the AG Guidelines include 
business entities in the definition of ``victim.'' USCIS, however, 
only grants non-immigrant status to individuals, not to business 
entities and therefore limits the definition of ``victim'' under 
this rule to persons.
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    The AG Guidelines also state that individuals whose injuries arise 
only indirectly from an offense are not generally entitled to rights or 
services as victims. AG Guidelines at 10. The AG Guidelines, however, 
provide DOJ personnel discretion to treat as victims bystanders who 
suffer unusually direct injuries as victims. USCIS does not anticipate 
approving a significant number of applications from bystanders, but 
will exercise its discretion on a case-by-case basis to treat 
bystanders as victims where that bystander suffers an unusually direct 
injury as a result of a qualifying crime. An example of an unusually 
direct injury suffered by a bystander would be a pregnant

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bystander who witnesses a violent crime and becomes so frightened or 
distraught at what occurs that she suffers a miscarriage.
(ii) Indirect Victims
    USCIS believes that the U nonimmigrant classification contemplates 
encompassing certain indirect victims in addition to direct victims. 
This is because the list of qualifying criminal activity at section 
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), includes 
the crimes of murder and manslaughter, the direct targets of which are 
deceased. The list also includes witness tampering, obstruction of 
justice, and perjury, which are not crimes against a person. Therefore, 
this rule extends the definition of victim beyond the direct victim of 
qualifying criminal activity in certain circumstances. See new 8 CFR 
214.14(a)(14)(i) & (ii).
    The AG Guidelines also cover those persons who are not direct 
victims of a crime where the direct victim is deceased as a result of 
the qualifying crime (e.g. murder or manslaughter), incompetent or 
incapacitated, or under the age of 18. AG Guidelines, at 9. In these 
situations, the direct victim is not available or sufficiently able to 
help in an investigation or prosecution of the criminal activity. Id. 
The AG Guidelines list such indirect victims to be a spouse, legal 
guardian, parent, child, sibling, another family member, or another 
person designated by the court. Id. Under the AG Guidelines, however, 
only the first available person on the list is eligible to be 
considered a victim. Id. For instance, the parent of a murder victim is 
only considered a victim if his or her child is unmarried. The spouse, 
as the first person on the list, would be deemed the victim.
    Drawing from the AG Guidelines in conjunction with the U 
classification statutory provision describing qualifying family members 
(section 101(a)(15)(U)(ii) of the INA, 8 U.S.C. 1101(a)(15)(U)(ii)), 
this rule extends the victim definition to the following list of 
indirect victims in the case of murder, manslaughter, or incompetent or 
incapacitated victims: Spouses; children under 21 years of age; \5\ 
and, if the direct victim is or was under 21 years of age, parents and 
unmarried siblings under 18 years of age. See new 8 CFR 
214.14(a)(14)(i). This rule does not extend the victim definition 
beyond these family members since the U nonimmigrant classification 
does not apply to other individuals. Unlike the AG Guidelines, the rule 
does not restrict the victim definition only to the first available 
person on the list of indirect victims. USCIS has determined that such 
a restrictive definition of victim would not adequately serve the 
purpose behind the U nonimmigrant classification. Family members of 
murder, manslaughter, incompetent, or incapacitated victims frequently 
have valuable information regarding the criminal activity that would 
not otherwise be available to law enforcement officials because the 
direct victim is deceased, incapacitated, or incompetent. By extending 
the victim definition to include certain family members of deceased, 
incapacitated, or incompetent victims, the rule encourages these family 
members to fully participate in the investigation or prosecution. 
Extending immigration benefits only to the first available person on 
the AG Guidelines list could separate families and lead to anomalous 
results. For example, in the case of a mother who is murdered and 
leaves behind her husband and young children, extending benefits only 
to the husband, as the first person on the list, could leave minor 
children without U nonimmigrant status protection.
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    \5\ Qualifying children also must be unmarried. See INA sec. 
101(b), 8 U.S.C. 1101(b).
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    USCIS notes, however, that while family members on the list of 
indirect victims under this rule may apply for U nonimmigrant status in 
their own right as principal petitioners, there is no requirement that 
they do so. For example, in the scenario described above of a mother 
who is murdered and leaves behind a husband and minor children, the 
husband and minor children could each apply as principal petitioners. 
In the alternative, the husband could file as a principal petitioner 
and the children could be included as family members on his petition, 
as will be discussed later in this Supplementary Information. Likewise, 
the children potentially could be principal petitioners and their 
father (the husband of the deceased), could be included as a family 
member on one of the children's petitions. Family members who are 
recognized as indirect victims and, therefore, eligible to apply for U 
nonimmigrant status as principal petitioners must meet all of the 
eligibility requirements that the direct victim would have had to meet 
in order to be accorded U nonimmigrant status.
    In the case of witness tampering, obstruction of justice, or 
perjury, the interpretive challenge for USCIS was to determine whom the 
BIWPA was meant to protect, given that these criminal activities are 
not targeted against a person. USCIS looked to the purpose of the 
BIWPA--to encourage cooperation with criminal investigations and 
protect vulnerable victims (BIWPA sec. 1502)--and to the federal 
definitions of the term ``victim.'' As discussed above, in order to be 
classified as a victim under Federal law, an individual must suffer 
direct and proximate harm. Therefore, USCIS considered which categories 
of people would suffer direct and proximate harm from witness 
tampering, obstruction of justice, and perjury. USCIS identified one 
such category as individuals who are harmed when a perpetrator commits 
one of the three crimes in order to avoid or frustrate the efforts of 
law enforcement authorities. USCIS identified another such category as 
individuals who are harmed when the perpetrator uses the legal system 
to exploit or impose control over them.
    Accordingly, this rule provides that a victim of witness tampering, 
obstruction of justice, or perjury is an alien who has been directly 
and proximately harmed by the perpetrator of one of these three crimes, 
where there are reasonable grounds to conclude that the perpetrator 
principally committed the offense as a means: (1) To avoid or frustrate 
efforts to investigate, arrest, prosecute, or otherwise bring him or 
her to justice for other criminal activity; or (2) to further his or 
her abuse or exploitation of or undue control over the alien through 
manipulation of the legal system. New 8 CFR 214.14(a)(14)(ii). In 
developing this definition, USCIS considered whether or not the 
criminal activity of witness tampering, obstruction of justice, or 
perjury must have been committed in relation to one of the other 
qualifying crimes listed in the statute. However, the text of section 
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), listing 
qualifying criminal activity explicitly states that the criminal 
activity must involve ``one or more'' of the 27 categories of crimes 
listed. USCIS reads the phrase ``one or more'' to mean that each of the 
crimes listed thereafter may qualify independently. Therefore, this 
rule does not require such a nexus.
(iii) Culpability of the Victim
    This rule excludes a person who is culpable for the qualifying 
criminal activity being investigated or prosecuted from being deemed a 
victim. See new 8 CFR 214.14(a)(14)(iii). Although the statutory 
provision at section 101(a)(15)(U)(i) of the INA, 8 U.S.C. 
1101(a)(15)(U)(i), describing who qualifies as a U nonimmigrant neither 
explicitly covers nor explicitly excludes culpable persons, USCIS 
believes that this exclusion is warranted.

[[Page 53018]]

    This exclusion does not apply to an alien who committed a crime 
other than the one under investigation or prosecution, even if the 
crimes are related. For instance, an alien who agrees to be smuggled 
into the United States, but is then held in involuntary servitude may 
still be deemed to be a victim of involuntary servitude even though he 
or she also may be culpable in the smuggling crime and for illegally 
entering the United States. USCIS has concluded that, while it is 
reasonable to exclude culpable individuals from being defined as a 
victim, it is not reasonable to exclude individuals simply based on any 
criminal activity in which they may have at one time engaged. USCIS 
notes that this approach of distinguishing between those who are 
culpable for the qualifying crime and those who are culpable for other 
crimes is supported by the AG Guidelines. See AG Guidelines, at 10.
b. Physical or Mental Abuse
    This rule defines physical or mental abuse to mean injury or harm 
to the victim's physical person, or harm to or impairment of the 
emotional or psychological soundness of the victim. New 8 CFR 
214.14(a)(8). In considering how to define the term physical or mental 
abuse, USCIS examined existing regulations that use similar terms. In 
particular, USCIS looked to regulations promulgated following the 
enactment of VAWA 1994 that allow battered spouses and children of U.S. 
citizens and lawful permanent residents to seek immigration status. See 
8 CFR 204.2(c), 216.5(e)(3). These regulations use the terms 
``battery'' and ``extreme cruelty'' to refer to any act or threatened 
act of violence that results in physical or mental injury. See 8 CFR 
204.2(c)(2)(vi); 8 CFR 216.5(e)(3)(i). Battery and extreme cruelty are 
terms that the regulations use interchangeably with the term ``abuse.'' 
See 8 CFR 204.2(c)(1)(vi); (2)(iv); 216.5(e)(3)(i); and 
216.5(e)(3)(iii).
    The term, ``physical or mental abuse,'' encompasses a wide range of 
physical or mental harm. Section 101(a)(15)(U)(i)(I) of the INA, 8 
U.S.C. 1101(a)(15)(U)(i)(I), which establishes this as a requirement, 
qualifies ``physical or mental abuse'' with the term, ``substantial.'' 
The statutory provision does not make clear, however, whether the 
standard of ``substantial'' physical or mental abuse is intended to 
address the severity of the injury suffered by the victim, or the 
severity of the abuse inflicted by the perpetrator. USCIS has concluded 
that it is reasonable to consider both. Rather than define what 
constitutes abuse that is ``substantial,'' however, USCIS believes that 
a better approach would be to make case-by-case determinations, using 
factors as guidelines.
    This rule lists a number of factors USCIS will consider when 
determining whether the physical or mental abuse at issue qualifies as 
substantial. New 8 CFR 214.14(b)(1). These factors are: The nature of 
the injury inflicted or suffered; the severity of the perpetrator's 
conduct; the severity of the harm suffered; the duration of the 
infliction of the harm; and the extent to which there is permanent or 
serious harm to the appearance, health, or physical or mental soundness 
of the victim. Through these factors, USCIS will be able to evaluate 
the kind and degree of harm suffered by the individual applicant based 
upon that applicant's individual experience. No single factor is a 
prerequisite to establish that the abuse suffered was substantial. 
Also, the existence of one or more of the factors does not 
automatically create a presumption that the abuse suffered was 
substantial.
    USCIS recognizes the possibility that some victims will have a pre-
existing physical or mental injury or condition at the time of the 
abuse. In evaluating whether the harm is substantial, this rule 
requires USCIS to consider the extent to which any pre-existing 
conditions were aggravated. Id. Some abuse may involve a series of acts 
or occur repeatedly over a period of time. USCIS will consider the 
abuse in its totality to determine whether the abuse is substantial. A 
series of acts taken together may be considered to constitute 
substantial physical or mental abuse even where no single act alone 
rises to that level. Id.
c. Qualifying Criminal Activity
    The statutory list of qualifying criminal activity in section 
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), is not a 
list of specific statutory violations, but instead a list of general 
categories of criminal activity. It is also a non-exclusive list. Any 
similar activity to the activities listed may be a qualifying criminal 
activity. This interim rule adopts the statutory list of criminal 
activity and further defines what constitutes ``any similar activity.'' 
See new 8 CFR 214.14(a)(9). The rule provides that for a criminal 
activity to be deemed similar to one specified on the statutory list, 
the similarities must be substantial. USCIS bases this definition on 
the fact that the statutory list of criminal activity is not composed 
of specific statutory violations. Instead, the criminal activity listed 
is stated in broad terms. The rule's definition of ``any similar 
activity'' takes into account the wide variety of state criminal 
statutes in which criminal activity may be named differently than 
criminal activity found on the statutory list, while the nature and 
elements of both criminal activities are comparable. In addition, 
qualifying criminal activity may occur during the commission of non-
qualifying criminal activity. For varying reasons, the perpetrator may 
not be charged or prosecuted for the qualifying criminal activity, but 
instead, for the non-qualifying criminal activity. For example, in the 
course of investigating Federal embezzlement and fraud charges, the 
investigators discover that the perpetrator is also abusing his wife 
and children, but because there are no applicable Federal domestic 
violence laws, he is charged only with non-qualifying Federal 
embezzlement and fraud crimes.
2. Possession of Information Concerning the Qualifying Criminal 
Activity
    In passing the BIWPA, Congress wanted to encourage aliens who are 
victims of criminal activity to report the criminal activity to law 
enforcement and fully participate in the investigation and prosecution 
of the perpetrators of such criminal activity. BIWPA sec. 
1513(a)(1)(B). The second eligibility requirement for U nonimmigrant 
status is that the alien must possess information about the qualifying 
criminal activity of which he or she is a victim. INA sec. 
101(a)(15)(U)(i)(II), 8 U.S.C. 1101(a)(15)(U)(i)(II). This rule adopts 
this statutory requirement at new 8 CFR 214.14(b)(2). Possessing 
information about a crime of which the alien is not a direct or 
indirect victim would not satisfy this requirement and, therefore, is 
not included in the rule.
    USCIS will consider an alien victim to possess information 
concerning qualifying criminal activity of which he or she was a victim 
if he or she has knowledge of the details (i.e., specific facts) 
concerning the criminal activity that would assist in the investigation 
or prosecution of the criminal activity. See new 8 CFR 214.14(b)(2). 
The findings that Congress expressed in sections 1513(a)(1) and (2) of 
the BIWPA make clear that the intent behind the creation of U 
nonimmigrant status was to facilitate the investigation and prosecution 
of criminal activity of which immigrants are targets while providing 
protection for victims of such criminal activity. USCIS believes that, 
to give effect to congressional intent, the information that the alien 
must possess must be related to the crime of which he or she is a 
victim. If not, the stated purpose of the statute is thwarted. 
Possession of information concerning

[[Page 53019]]

the criminal activity necessarily means that the alien must have 
knowledge of it.
    When the alien victim is under 16 years of age, the statute does 
not require him or her to possess information regarding the qualifying 
criminal activity. Rather, the parent, guardian, or next friend of the 
alien victim may possess that information if the alien victim does not. 
INA sec. 101(a)(15)(U)(i)(II), 8 U.S.C. 1101(a)(15)(U)(i)(II). This 
rule reiterates this exception at new 8 CFR 214.14(b)(2). This 
provision specifies that the age of the alien victim on the day on 
which an act constituting an element of the qualifying criminal 
activity first occurred is the applicable age to consider for purposes 
of establishing whether the exception is triggered. The purpose of the 
exception is to allow for alternative mechanisms for possessing 
information when a child is at an age where he or she may be too young 
to adequately understand and relay traumatic and sensitive information. 
As such, USCIS believes that the date on which the qualifying criminal 
activity began is the appropriate date for triggering this exception.
    The rule also permits a parent, guardian, or next friend to provide 
information when the alien victim is incapacitated or incompetent. New 
8 CFR 214.14(b)(2). Permitting certain family members or guardians to 
act in lieu of incapacitated or incompetent victims is supported by the 
AG Guidelines, at 9.
    This rule also defines the term ``next friend.'' New 8 CFR 
214.14(a)(7). An individual will qualify as a next friend under this 
rule if he or she appears in a lawsuit to act for the benefit of an 
alien who is under the age of 16 or who is incapacitated or 
incompetent. See Whitmore v. Arkansas, 495 U.S. 149, 163-4 (1990) 
(describing next friend as someone dedicated to the best interests of 
the individual who cannot appear on his or her own behalf because of 
inaccessibility, mental incompetence, or other disability). The next 
friend is not a party to the legal proceeding and is not appointed as a 
guardian.
3. Helping Law Enforcement in the Investigation or Prosecution of 
Criminal Activity
    The third eligibility requirement for U nonimmigrant status is that 
the alien victim of qualifying criminal activity (or, in the case of an 
alien child under the age of 16, the parent, guardian, or next friend 
of the alien) has been, is being, or is likely to be helpful to a 
government official or authority in the investigation or prosecution of 
the qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(III), 8 
U.S.C. 1101(a)(15)(U)(i)(III). This requirement is set forth in new 8 
CFR 214.14(b)(3), which further provides that the alien victim cannot 
refuse or fail to provide reasonably requested information and 
assistance in order to remain eligible for U nonimmigrant status. The 
rule also provides for alien victims who are incompetent or 
incapacitated. Additionally, this rule provides that the official or 
authority receiving the assistance be a ``certifying agency,'' as 
defined in new 8 CFR 214.14(a)(2).
a. Helpfulness
    USCIS interprets ``helpful'' to mean assisting law enforcement 
authorities in the investigation or prosecution of the qualifying 
criminal activity of which he or she is a victim. USCIS is excluding 
from eligibility those alien victims who, after initiating cooperation, 
refuse to provide continuing assistance when reasonably requested. New 
8 CFR 214.14(b)(3). USCIS believes that the statute imposes an ongoing 
responsibility on the alien victim to provide assistance, assuming 
there is an ongoing need for the applicant's assistance. USCIS bases 
this interpretation on the plain text of the statutory provision that 
sets forth this requirement. See INA sec. 101(a)(15)(U)(i)(III), 8 
U.S.C. 1101(a)(15)(U)(i)(III). The requirement was written with several 
verb tenses, recognizing that an alien may apply for U nonimmigrant 
status at different stages of the investigation or prosecution. By 
allowing an individual to petition for U nonimmigrant status upon a 
showing that he or she may be helpful at some point in the future, 
USCIS believes that Congress intended for individuals to be eligible 
for U nonimmigrant status at the very early stages of an investigation. 
This suggests an ongoing responsibility to cooperate with the 
certifying official while in U nonimmigrant status. If the alien victim 
only reports the crime and is unwilling to provide information 
concerning the criminal activity to allow an investigation to move 
forward, or refuses to continue to provide assistance to an 
investigation or prosecution, the purpose of the BIWPA is not 
furthered. See BIWPA sec. 1513(a)(2).
    In addition, in order to qualify for permanent resident status on 
the basis of the U nonimmigrant classification, the alien must not have 
unreasonably refused to provide assistance in a criminal investigation 
or prosecution. INA sec. 245(m)(1), 8 U.S.C. 1255(m)(1). This 
requirement further suggests an ongoing responsibility to cooperate 
with the certifying official while in U nonimmigrant status.
    An exception to the helpfulness requirement applies to alien 
victims who are under 16 years of age. Such alien victims can satisfy 
the helpfulness requirement if their parent, guardian, or next friend 
provides the required assistance. INA sec. 101(a)(15)(U)(i)(III), 8 
U.S.C. 1101(a)(15)(U)(III). This exception is the same exception 
applicable to the previous requirement that the alien victim possess 
information regarding the criminal activity. See new 8 CFR 
214.14(b)(2). This rule reiterates the exception with respect to the 
helpfulness requirement at new 8 CFR 214.14(b)(3). The provision 
specifies that the age of the victim on the day on which an act 
constituting an element of the qualifying criminal activity first 
occurred is the applicable age to consider for purposes of establishing 
whether the exception is triggered. New 8 CFR 214.14(b)(3). It also 
extends the exception to individuals who are incapacitated or 
incompetent and allows a parent, guardian, or next friend to be helpful 
in those instances. Id.
b. Certifying Agency
    This rule requires that the assistance in the investigation or 
prosecution of qualifying criminal activity be provided to a 
``certifying agency.'' As discussed later in this Supplementary 
Information, an alien victim must include a certification from such 
agency in support of his or her request for U nonimmigrant status. INA 
sec. 214(p)(1), 8 U.S.C. 1184(p)(1).
    A ``certifying agency'' is one of the government officials and 
entities identified in the statute that is investigating or prosecuting 
qualifying criminal activity. INA sec. 101(a)(15)(U)(i)(III), 8 U.S.C. 
1101(a)(15)(U)(i)(III). The rule defines a ``certifying agency'' as a 
Federal, State, or local law enforcement agency, prosecutor, judge, or 
other authority, that has responsibility for the investigation or 
prosecution of the qualifying criminal activities designated in the 
BIWPA. New 8 CFR 214.14(a)(2). This includes traditional law 
enforcement branches within the criminal justice system. However, USCIS 
also recognizes that other agencies, such as child protective services, 
the Equal Employment Opportunity Commission, and the Department of 
Labor, have criminal investigative jurisdiction in their respective 
areas of expertise. The rule specifies these agencies. See id.

[[Page 53020]]

    The rule provides that the term ``investigation or prosecution,'' 
used in the statute and throughout the rule, includes the detection or 
investigation of a qualifying crime or criminal activity, as well as 
the prosecution, conviction, or sentencing of the perpetrator of such 
crime or criminal activity. New 8 CFR 214.14(a)(5). Referring to the AG 
Guidelines, USCIS is defining the term to include the detection of 
qualifying criminal activity because the detection of criminal activity 
is within the scope of a law enforcement officer's investigative 
duties. AG Guidelines, at 22-23. Also referring to the AG Guidelines, 
USCIS is defining the term to include the conviction and sentencing of 
the perpetrator because these extend from the prosecution. Id. at 26-
27. Moreover, such inclusion is necessary to give effect to section 
214(p)(1) of the INA, 8 U.S.C. 1184(p)(1), which permits judges to sign 
certifications on behalf of U nonimmigrant status applications. INA 
sec. 214(p)(1), 8 U.S.C. 1184(p)(1). Judges neither investigate crimes 
nor prosecute perpetrators. Therefore, USCIS believes that the term 
``investigation or prosecution'' should be interpreted broadly as in 
the AG Guidelines.
4. Criminal Activity That Violated U.S. Law or Occurred in the United 
States
    The fourth requirement for U nonimmigrant classification is that 
the qualifying criminal activity violated the laws of the United States 
or occurred in the United States (including in Indian country and 
military installations) or the territories and possessions of the 
United States. INA 101(a)(15)(U)(i)(IV), 8 U.S.C. 
1101(a)(15)(U)(i)(IV). This requirement is adopted in new 8 CFR 
214.14(b)(4).
    The term United States is defined in section 101(a)(38) of the INA, 
8 U.S.C. 1101(a)(38), to mean the continental United States, Alaska, 
Hawaii, Puerto Rico, Guam, and the U.S. Virgin Islands. The BIWPA does 
not define the term ``Indian country,'' but for purposes of this rule, 
USCIS is adopting the definition contained in 18 U.S.C. 1151. Under 
this rule, ``Indian country'' means all land within the limits of any 
Indian reservation under the jurisdiction of the United States, all 
dependent Indian communities within the borders of the United States, 
and all Indian allotments. New 8 CFR 214.14(a)(4). Although 18 U.S.C. 
1151 is a criminal jurisdiction statute, tribal and federal courts have 
applied this statutory definition to both criminal and civil matters. 
See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208 
n.5 (1996).
    Similarly, the term ``military installation'' is not defined in the 
BIWPA. This rule defines that term as meaning any facility, base, camp, 
post, encampment, station, yard, center, port, aircraft, vehicle, or 
vessel under the jurisdiction of the Department of Defense, or any 
location under military control, including any leased facility. New 8 
CFR 214.14(a)(6). To develop this definition, USCIS looked to other 
statutory definitions of the term. See, e.g., 10 U.S.C. 2687(e) 
(defining the term in the context of base closures and realignments); 
10 U.S.C. 2801(c)(2) (relating to military construction). A review of 
the federal case law reveals that this is a nebulous concept with no 
absolute definition. United States v. Buske, 2 M.J. 465, 467 (A.C.M.R. 
1975). In order to realize the purpose of the U nonimmigrant 
classification, to facilitate criminal investigations and prosecutions, 
USCIS interpreted the term broadly to encompass a wide range of 
military locations.
    New 8 CFR 212.14(a)(11) defines the term ``territories and 
possessions of the United States'' to mean American Samoa, Swains 
Island, Bajo Nuevo (the Petrel Islands), Baker Island, Howland Island, 
Jarvis Island, Johnston Atoll, Kingman Reef, Midway Atoll, Navassa 
Island, Northern Mariana Islands, Palmyra Atoll, Serranilla Bank, and 
Wake Atoll. This definition is based on current information that the 
Department of Interior provided to USCIS. Although Guam, Puerto Rico, 
and the U.S. Virgin Islands are also considered territories or 
possessions of the United States, USCIS has not included them in this 
regulatory definition because they are already incorporated into the 
INA definition of United States. See INA sec. 101(a)(38), 8 U.S.C. 
1101(a)(38).
    Section 101(a)(15)(U)(i)(IV) of the INA, 8 U.S.C. 
1101(a)(15)(U)(i)(IV), requires that the criminal activity either 
violated the laws of the United States or occurred in the United 
States. USCIS does not believe that this distinction is based on which 
laws are violated--U.S. laws or foreign laws--because elsewhere in the 
statute, qualifying criminal activity is defined as criminal activity 
that is ``in violation of Federal, State, or local criminal law.'' See 
INA sec. 101(a)(15)(U)(iii), 8 U.S.C. 1101(a)(15)(U)(iii). Instead, 
USCIS believes that the distinction refers to where the violation 
occurred, whether inside or outside the United States. Accordingly, 
USCIS interprets the phrase, ``occurred in the United States,'' to mean 
qualifying criminal activity that occurred in the United States that is 
in violation of U.S. law. USCIS interprets the phrase, ``violated the 
laws of the United States,'' as referring to criminal activity that 
occurred outside the United States that is in violation of U.S. law.
    This rule provides that criminal activity that has occurred outside 
of the United States, but that fits within a type of criminal activity 
listed in section 101(a)(15)(U)(iii) of the INA, 8 U.S.C. 
1101(a)(15)(U)(iii), will constitute a qualifying criminal activity if 
it violates a federal statute that specifically provides for 
extraterritorial jurisdiction. See new 8 CFR 214.14(b)(4). Such 
criminal activity will have ``violated the laws of the United States.'' 
Congress has enacted a variety of statutes governing criminal activity 
occurring outside the territorial limits of the United States. These 
statutes establish extraterritorial and federal, criminal jurisdiction. 
Statutes establishing extraterritorial jurisdiction generally require 
some nexus between the criminal activity and U.S. interests. For 
example, pursuant to 18 U.S.C. 2423(c), the United States has 
jurisdiction to investigate and prosecute cases involving U.S. citizens 
or nationals who engage in illicit sexual conduct outside the United 
States, such as sexually abusing a minor. See also 18 U.S.C. 32 
(destruction of an aircraft); 15 U.S.C. 1 (extraterritorial application 
of the Sherman Act governing antitrust laws).
    This rule does not require that the prosecution actually occur, 
since the statute only requires an alien victim to be helpful in the 
investigation or the prosecution of the criminal activity. See INA 
sections 101(a)(15)(U)(i)(III) & 214(p)(1), 8 U.S.C. 
1101(a)15(u)(i)(III) and 1184(p)(1). Prosecution may be impossible due 
to a number of factors, such as an inability to extradite the 
defendant.

B. Application Process

    By statute, the petition for U nonimmigrant status must be filed by 
the alien victim and contain a certification of helpfulness from a 
certifying agency. See INA sec. 214(p)(1), 8 U.S.C. 1184(p)(1). Based 
upon these statutory requirements, this rule designates the form that 
petitioners must use to request U nonimmigrant status and describes the 
evidence that must accompany the form, including the certification of 
helpfulness. The rule also sets forth filing requirements and 
procedures. This section of the Supplementary Information discusses 
these requirements, as well as eligibility and filing requirements for 
those qualifying family members of the alien victim who also are 
seeking U nonimmigrant status.

[[Page 53021]]

1. Filing the Petition To Request U Nonimmigrant Status
    This interim rule designates Form I-918, ``Petition for U 
Nonimmigrant Status,'' as the form an alien victim must use to request 
U nonimmigrant status. See New 8 CFR 214.14(c)(1), This provision also 
requires petitioners to follow the instructions to Form I-918 for 
proper completion and accompany Form I-918 with initial evidence and 
the correct fee(s).\6\ Form I-918 requests information regarding the 
applicant's eligibility for U nonimmigrant status and admissibility to 
the United States. Jurisdiction over all petitions for U nonimmigrant 
status rests with USCIS. The instructions to Form I-918 specify where 
petitioners must file (by mail) their application package. At present, 
USCIS has centralized the adjudication process for Forms I-918 at its 
Vermont Service Center. This centralization will allow adjudicators to 
develop expertise in handling U nonimmigrant petitions and provide for 
uniformity in the adjudication of these petitions.
---------------------------------------------------------------------------

    \6\ A fee waiver is available for the Form I-918 filing fee. Fee 
waivers are governed by 8 CFR 103.7(c).
---------------------------------------------------------------------------

    The rule addresses several special considerations that may affect 
certain petitioners seeking to file Form I-918: Filing petitions from 
outside the United States; the effect of a petition on interim relief; 
petitioners subject to grounds of inadmissibility; petitioners in 
removal proceedings or subject to a final order of exclusion, 
deportation, or removal; changing nonimmigrant classifications; and the 
effect of a petition on other immigration benefits. These 
considerations are discussed below.
a. Alien Victims of Qualifying Criminal Activity Filing Form I-918 From 
Outside the United States
    This interim rule does not require petitioners to file Form I-918 
from within the United States. USCIS has determined that the statutory 
framework for U nonimmigrant status permits alien victims of qualifying 
criminal activity to apply for U nonimmigrant status classification 
from either inside or outside the United States. For example, the 
statute does not require petitioners to be physically present in the 
United States to qualify for U nonimmigrant status. By contrast, other 
nonimmigrant classifications, such as the T nonimmigrant classification 
(INA sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T)), explicitly require 
an alien's physical presence in the United States as a condition of 
eligibility. Moreover, under section 101(a)(15)(U)(i)(IV) of the INA, 8 
U.S.C. 1101(a)(15)(U)(i)(IV), qualifying criminal activity may occur 
outside the territorial jurisdiction of the United States under certain 
circumstances. USCIS recognizes that for qualifying criminal activity 
that occurred outside the United States, the investigation may take 
place either outside or inside the United States. The alien victim may 
be needed in the United States to assist the certifying agency in its 
investigation or subsequent prosecution of the criminal activity. 
Allowing alien victims to submit petitions from outside the United 
States provides the certifying agency with the necessary flexibility to 
further the investigation or prosecution.
    To apply from outside the United States, petitioners must submit a 
complete application package for U nonimmigrant status to the USCIS 
location specified in the form instructions.
b. Petitioners With Interim Relief From Removal
    This rule does not impose a deadline for submission of U 
nonimmigrant status petitions. However, USCIS encourages petitioners 
and accompanying or following to join family members who were granted 
interim relief to file Form I-918 within 180 days of the effective date 
of this rule. After the effective date of this rule, the interim relief 
process will no longer be in effect, and USCIS will not consider 
initial requests for interim relief. After the 180-day time period 
following the effective date of the rule, USCIS will reevaluate 
previous grants of deferred action, parole, and stays of removal and 
terminate such interim relief for those aliens who fail to file Form I-
918 within the 180-day time period. However, if the alien has properly 
filed a Form I-918, but USCIS has not yet adjudicated that petition, 
interim relief will be extended until USCIS completes its adjudication 
of Form I-918. USCIS believes that 180 days provides an interim relief 
recipient a sufficient period of time within which to file and perfect 
a U nonimmigrant petition, taking into account the time it may take for 
individuals to learn of this rule and put together a complete package 
requesting U nonimmigrant status.
c. Petitioners Who Are Inadmissible
    To be eligible for U nonimmigrant status, the alien requesting 
status must be admissible to the United States. 8 CFR 214.1(a)(3)(i); 
see also INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1). Therefore, those who 
are inadmissible to the United States, or who become inadmissible for 
conduct that occurs while their petition for U nonimmigrant status is 
pending, will not be eligible for U nonimmigrant status unless the 
ground of inadmissibility is waived by USCIS. See INA sec. 212(a), 8 
U.S.C. 1182(a) (grounds of inadmissibility). USCIS has general 
authority to waive many grounds of inadmissibility for nonimmigrants 
and may prescribe conditions on their temporary admission to the United 
States. See INA sec. 212(d)(3)(B), 8 U.S.C. 1182(d)(3)(B).
    In addition, the BIWPA created a waiver specific to U nonimmigrant 
status. Under this waiver, the Secretary of Homeland Security has the 
discretion to waive any ground of inadmissibility with respect to 
applicants for U nonimmigrant status, except the ground applicable to 
participants in Nazi persecutions, genocide, acts of torture, or 
extrajudicial killings. INA sec. 212(d)(14), 8 U.S.C. 1182(d)(14). 
However, the Secretary of Homeland Security first must determine that 
such a waiver would be in the public or national interest. Id.
    It is important to note that the determination that a waiver would 
be in the public or national interest and the decision to grant a 
waiver are made at the discretion of the Secretary. In the immigrant 
context, the Board of Immigration Appeals has held that, in assessing 
whether an applicant has met the burden that a waiver is warranted in 
the exercise of discretion, the adjudicator must balance adverse 
factors evidencing inadmissibility as a lawful permanent resident with 
the social and humane considerations presented to determine if the 
grant of the waiver appears to be in the best interests of the United 
States. Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). More 
recently, in the context of a case involving a waiver of a criminal 
ground of inadmissibility under section 209(c) of the Act, the Attorney 
General determined that favorable discretion should not be exercised 
for waivers under section 212(h) of the Act involving violent or 
dangerous crimes, except in extraordinary circumstances. Matter of 
Jean, 23 I&N Dec. 373 (A.G. 2002).
    In view of these considerations, this rule provides a general rule 
that DHS will only exercise favorable discretion in U nonimmigrant 
status cases in which a waiver for violent or dangerous crimes or the 
security and related grounds under section 212(a)(3) of the Act is 
requested, in extraordinary circumstances. Moreover, depending on the 
nature and severity of the underlying offense/s to be waived, the 
Secretary retains the discretion to determine that the mere existence 
of

[[Page 53022]]

extraordinary circumstances is insufficient.
    Additionally, this rule provides that the Secretary will not 
exercise discretion under section 212(d)(3) of the Act, 8 U.S.C. 
1182(d)(3), to waive the ground of inadmissibility under section 
212(a)(3)(E) applicable to participants in Nazi persecutions, genocide, 
acts of torture, or extrajudicial killings. New 8 CFR 212.17(b). 
Because Congress determined not to make a waiver available for this 
ground of inadmissibility in the waiver provision created for U 
nonimmigrant applicants at section 212(d)(14) of the Act, DHS has 
determined that it would not be logical to allow these applicants to be 
eligible for a waiver of this ground of inadmissibility under section 
212(d)(3) of the Act.
    To apply for a waiver of inadmissibility, a petitioner must file 
Form I-192, ``Application for Advance Permission to Enter as 
Nonimmigrant,'' with USCIS. New 8 CFR 212.17(a); new 8 CFR 
214.14(c)(2)(iv). USCIS will evaluate the application to determine 
whether it is in the public or national interest to exercise discretion 
to waive the applicable ground(s) of inadmissibility. New 8 CFR 
212.17(b)(1). As with inadmissibility waiver applications for other 
nonimmigrant classifications, there is no appeal of a decision to deny 
Form I-192. New 212.17(b)(2); see also 8 CFR 212.4(a)(1). This rule 
also provides that an applicant whose waiver application is denied is 
not prevented from re-filing a request for a waiver. New 8 CFR 
212.17(b)(2). This is to allow those petitioners whose Forms I-918 and 
concurrently filed Forms I-192 are denied an opportunity to have a 
subsequently filed Form I-192 considered in the context of other 
immigration benefits.
    USCIS has determined that implicit in its discretionary authority 
to grant a waiver is the authority to determine the conditions under 
which a waiver is granted, including revocation of previously granted 
waiver. Therefore, this interim rule establishes USCIS' authority to 
revoke its approval of a waiver of inadmissibility that was previously 
granted. The decision to revoke a waiver is not appealable. New 8 CFR 
212.17(c).
d. Petitioners Who Are in Removal, Deportation, or Exclusion 
Proceedings or Who Are Subject to a Final Order of Removal, 
Deportation, or Exc