By: Elizabeth Mansfield

The aftermath of a mass shooting is never easy. This is especially true for those survivors who have to deal with the trauma of what they’ve just experienced as well as the trauma of the American immigration system. Undocumented survivors of mass shootings may have concerns about going to the police with information because of their immigration status. The U Visa was created to assuage such concerns; however, it is unclear if and when survivors of mass shootings qualify. That, combined with the long wait period (only 10,000 U Visas can be granted every year[1] and there is currently a wait time of 64.5 months for either a “Bona Fide Determination notice or a notice that the petition will be considered for waiting list placement”[2]), may make some survivors hesitant to step forward.

What are the Qualifications for a U Visa?

The U nonimmigrant visa (U Visa) was created in 2000 with the passage of the Victims of Trafficking and Violence Protection Act.[3] It was designed “for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.”[4] Among the relevant crimes are felonious assault, murder, and “any similar activity where the elements of the crime are substantially similar.”[5] This also includes “attempt, conspiracy, or solicitation to commit any of the above and other related crimes.”[6]

The Act was intended to “‘strengthen the ability of law enforcement agencies to detect, investigate, and prosecute’ all qualifying crimes, not merely those crimes that the government might conclude in retrospect, and in the context of later litigation, are significant.”[7] The California Northern District Court, citing the 9^th Circuit Court of Appeals, interpreted this to mean that “[i]t does not matter if the perpetrator of the crime was ultimately arrested, charged or convicted.”[8] The person applying must also be eligible to be admitted to the United States and if they are not eligible, they must apply for a I-192, Application for Advance Permission to Enter as a Nonimmigrant.[9]

Further, the harm suffered must meet the level of “substantial abuse.”[10] There is no clear-cut definition for “substantial abuse,” but the factors include, “[t]he 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, including aggravation of preexisting conditions.”[11] Fulfilling one or more factors does not guarantee that the qualifications for substantial abuse have been met.[12]

The Act categorizes applicants into two categories, direct victims and indirect victims. A direct victim is anyone who “suffered substantial physical or mental abuse as a result of having been a victim” of a qualifying criminal activity and “possesses information concerning” said crime.[13] An indirect victim is a direct victim’s “alien spouse, children under 21 years of age and, if the direct victim is under 21 years of age, parents and unmarried siblings under 18 years of age,” where the direct victim “is deceased due to murder or manslaughter, or is incompetent or incapacitated.”[14] Thus, an applicant must either have suffered due to a qualifying crime and offered information to the police or be the relative of a victim who is unable to provide such information and then provide the information on the victim’s behalf.

After a qualifying crime has occurred, local police and prosecutors must certify the U Visa through a Form I-918, Supplement B, “which confirms that the petitioner has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim.”[15] The certification process is discretionary and will be discussed in more detail in the next section.

Do Survivors Qualify for a U Visa?

As a general matter, the answer is yes, but this depends heavily on the facts of the case. For instance, it matters if the person applying was a direct or indirect victim. Whether an applicant qualifies as a direct victim is complicated by the nature of a mass shooting, where generally no one person is the target. Bystanders can still qualify as direct victims if they suffered an “unusually direct injury.”[16]

Law enforcement has a lot of leeway in deciding who qualifies as a victim. After the 2017 Las Vegas shooting at the Route 91 Harvest Music Festival, Clark County police certified for bystanders who experienced psychological harm but not physical harm, though, only after pressure from attorneys representing survivors.[17] There was more disagreement after the 2019 El Paso shooting at a Walmart. El Paso police were only willing to consider “those who suffer a physical injury in a crime as victims, while El Paso County prosecutors will consider physical and psychological trauma.”[18] Police cited the Texas Penal Code when arguing that a physical injury was a prerequisite for being a victim and all others were merely witnesses.[19] However, police are not bound to apply a state’s criteria for a victim when deciding to sign off on an I-918.[20] The Broward County Sheriff’s Office certified the I-918 of anyone associated with the Marjorie Stoneman Douglas High School shooting, refusing to follow Florida’s more stringent criteria for defining victims, but did not specify what it meant for someone to be associated with the shooting.[21]

What Barriers Exist to Obtaining a U Visa?

Survivors of the Pulse Nightclub Shooting and their family members faced additional issues. For instance, if they needed to travel abroad for reasons related to the shooting, such as for funeral preparation, then they would need a visa in order to be guaranteed return.[22] However, the lengthy time to obtain a U Visa, at least five years to receive a Bona Fide determination, makes that extremely difficult.[23]

It is also exceptionally difficult for undocumented survivors to seek aid when they need it because of the lack of “availability of physical and psychological health care for multilayered trauma, access to assistance programs, as well as financial, emotional, and religious issues affecting families and communities in their home countries.”[24] They also have to worry about deportation and impacts on their work status.[25] One undocumented survivor sought aid at a community center and ended up being referred to the U.S. Department of Immigration and Customs Enforcement after their immigration status was revealed.[26] Even applying for a U Visa is not guaranteed relief because those who have applied for a U Visa but not yet received favorable adjudication can still be subject to removal.[27]

Thus, the risks to undocumented survivors of mass shootings are high. Depending on the county, law enforcement might not certify a U Visa for anything other than a physical injury.[28] If someone is denied a U Visa, they could immediately be referred for removal.[29] And, even if they are placed on the waitlist for a U Visa, it could take years to obtain one.[30]

[1] U.S. Citizenship and Immigr. Serv., Victims of Criminal Activity: U Nonimmigrant Status (Mar. 20, 2023), https://www.uscis.gov/humanitarian/victims-of-criminal-activity-u-nonimmigrant-status.

[2] A Bona Fide Determination is not the same as receiving a U Visa but does allow applicants to receive working permits while they wait for a visa to become available. National Engagement Pre-submitted and Live Q&As Overview of T Visas and U Visas for Certifying Officials (2023) https://www.uscis.gov/sites/default/files/document/outreach-engagements/NationalEngagement-TVisaUVisaandVAWAforLawEnforcementandCertifyingAgencies-Q%26A.pdf.

[3] U.S. Citizenship and Immigr. Serv., supra note 1.

[4] Id.

[5] Id.

[6] Id.

[7] United States v. Cisneros-Rodriguez, 813 F.3d 748, 762 (citing Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464, 1533 (2000)).

[8] United States v. Valdivias-Soto, 2020 U.S. Dist. LEXIS 209572, *40 (citing United States v. Cisneros-Rodriguez, 813 F.3d 748, 761).

[9] U.S. Citizenship and Immigr. Serv., supra note 1.

[10] 8 C.F.R. § 214.14(b)(1).

[11] Id.

[12] Id.

[13] 8 C.F.R. § 214.14(b)(1).

[14] Id.

[15] 8 C.F.R. § 214.14(a)(12).

[16]U.S. Citizenship and Immigr. Serv., U Visa Filing Trends (2020),  https://www.uscis.gov/sites/default/files/document/reports/Mini_U_Report-Filing_Trends_508.pdf.

[17] Mallory Falk et al., After tragedy in El Paso, a special visa could be available to some survivors, Tex. Trib. (Aug. 27, 2019), https://www.texastribune.org/2019/08/27/el-paso-shooting-victims-might-get-special-visas/.

[18] Lauren Villagran, ’Living in the shadows’: Visa could give undocumented mass shooting victims chance to help, El Paso Times (Aug. 20, 2019), https://www.usatoday.com/story/news/2019/08/20/el-paso-shooting-undocumented-victims-could-qualify-u-visa/2059941001/.

[19] Id.

[20] Id.

[21] Id.

[22] Priscilla Alvarez, What Will Happen to the Orlando Victims Who Are in the U.S. Illegally?, The Atlantic (Jun. 24, 2016), https://www.theatlantic.com/politics/archive/2016/06/orlando-shooting-undocumented-immigrants/488381/.

[23] Id.

[24] Id.

[25] Id.

[26] Judith E. Koons, Pulse: Finding Meaning in a Massacre Through Gay Latinx Intersectional Justice, 19 Scholar 1, 24 (2017).

[27] U.S. Immigr. And Customs Enf’t, Using a Victim-Centered Approach with Noncitizen Crime Victims (Aug. 8, 2023), https://www.ice.gov/factsheets/using-victim-centered-approach-with-noncitizen-crime-victims.

[28] Villagran, supra note 15.

[29] Id.

[30] U.S. Citizenship and Immigr. Serv., supra note 1.