Law Enforcement Certification: A determinative step in your U visa case

12/10/2013

Applying for a U nonimmigrant status—a lawful, temporary status for immigrant victims of certain crimes, like domestic violence and sexual assault, who are helpful to law enforcement—is a lengthy process that is only possible with the essential signature known as the law enforcement certification. 

Requesting a law enforcement certification is the first step in the application process.   Police, sheriffs, district and city attorneys, judges and other agencies with investigating or prosecuting authority over crimes can sign law enforcement certifications.  The certifying individual confirms the applicant is a victim of a crime that qualifies under the law, and the applicant was, is, or may be helpful in the detection, investigation or prosecution of the crime.   The law enforcement certification is mandatory: without it, the full application to U.S. Citizenship and Immigration Services will be denied without exception.

Getting this essential signature can be challenging for two main reasons:

First, each agency has the discretion to decide whether it will sign a certification.  In fact, some agencies refuse to sign all certifications as a matter of policy.  This puts victims in some locations at a major disadvantage.  Some agencies also impose additional requirements for certification, like an independent background check, that are actually discouraged by U.S. Citizenship and Immigration Services because it does its own thorough review before deciding each application.  An agency’s refusal to sign certifications has been challenged with lawsuits that argued a failure to even consider a request for certification is an abuse of discretion.  But to date, the courts have upheld agency discretion. 

Second, agencies may interpret the law differently.  This comes up in several parts of the law.  As an example, agencies may differ on whether a crime is “qualifying.”  The law has a list of general crime categories.  But the actual crimes with which a defendant may be charged and convicted differ depending on where the crime occurred and what acts occurred.  Domestic violence is a qualifying crime under the law.  But states and even cities have different definitions and different crimes of “domestic violence.”  In some areas, domestic violence may be an actual crime of which someone may be convicted.  In Colorado, it is a tag that is added to other crimes, like assault, that allows for certain modifications to the sentence a defendant receives if convicted.    Agencies also differ on their interpretation of “victim,” and some even question their own authority to sign certifications.

Luckily, there are strategies to overcome an initial denial by a law enforcement agency.  Remember, there are multiple agencies authorized to sign a certification.  So if the police are unwilling to sign the certification, it is possible a District Attorney or a judge may take another position.  Each has independent authority. 

Sometimes, it is possible to meet in person or over the phone to discuss the case.  If there was someone from the agency involved in your case, you may be able to reach out to that person directly to see if he or she will help. 

The head of agencies change over time, and so do positions on law enforcement certifications.  You may be able to wait for a new person in charge to ask again.

There are other strategies that can be used.  So if you don’t get a “yes” the first time, there may still be other opportunities to pursue your case.