The U Visa: A Remedy for Vulnerable Immigrants Scammed by Unscrupulous Attorneys

by Jennifer Piñeros*

Volume 45 Issue 6

The full text of this article may be downloaded by clicking on the PDF link.

Introduction

As of 2018, the Department of Homeland Security (DHS) estimates that there are eleven million unauthorized immigrants† living in the United States. Due to limited resources, DHS has taken the position that it “cannot respond to all immigration violations or remove all persons unlawfully [residing] in the United States.” Congress has failed to enact comprehensive immigration reform, despite numerous attempts, since the Reagan administration. This leaves the unauthorized population in a limbo often characterized as “living in the shadows”—relegated to fading into the background so as to not draw the attention of immigration enforcement authorities. Immigration status impacts many facets of an individual’s life, including subjecting them to substandard wages in terrible work conditions and imposing barriers to obtaining financial aid for higher education. Consequently, an unauthorized immigrant’s top priority is often to rectify their status as soon as possible. In their efforts to do so, several factors make unauthorized immigrants susceptible to fraud: the difficulties of unauthorized life driving an urgency to obtain legal status; a complicated immigration legal system; and the limited access to reliable legal counseling (as a consequence of both economic and language barriers). Fraudulent scams exploit the fear of deportation and give false hopes of easy pathways to legalization.

The so-called “ten-year visa” or “ten-year green card” is a common fraud scheme that exploits the aforementioned vulnerability, and whose promised green card is premised on an intentional misrepresentation of the law. Perpetrators of this scam—sometimes including licensed attorneys—offer the “ten-year visa” as an affirmative benefit solicited through the United States Citizenship & Immigration Services (USCIS). In reality, the “ten-year visa” is a misrepresentation of a legal defense that is only available in removal proceedings in immigration court, and that is difficult to obtain because of the accompanying high legal standard that requestors must establish. At the conclusion of the scam, victims unknowingly find themselves at risk of imminent removal from the United States.

A conferral of U nonimmigrant status (“U visa”) is the best currently available remedy for victims of the ten-year scam. In general, the U visa provides temporary legal status for victims of criminal activity who suffer substantial harm and cooperate with law enforcement on investigation or prosecution of that activity. USCIS has most frequently recognized harm arising from domestic violence as the requisite harm for U visa conferrals. As a result, most legal scholarship has focused on substantial harm in the context of domestic violence. There is limited scholarship proposing that the U visa should be available to immigrants who suffer from scams conducted by unauthorized practitioners of immigration law. This Note will argue that the victims of the ten-year visa scam may be eligible for and deserve the protection that the U visa can offer. Specifically: (1) offenses committed by attorneys who engage in the ten-year visa scam may constitute qualifying crimes for the U visa; and (2) the harm sustained from the scam may qualify for the U visa. The conferral of U visas for victims of this scam will ensure that victims receive a remedy that is best suited for their injury and consistent with the legislative intent behind the U visa.

Part I of this Note will discuss the “ten-year visa scam” within the context of the federal immigration system, as well as the conditions from which fraudulent scams may develop. It will also include a discussion of the U visa and statutory eligibility, as well as “categorical analysis”—a tool used in criminal and immigration law alike—which will be used in this Note to determine whether the criminal activity committed against the victims may constitute one or more of the statutorily enumerated qualifying crimes. Part II will provide an analysis of whether the ten-year visa scam and the harm arising from the scam may constitute qualifying criminal activity and substantial harm. Finally, Part III will state a proposal to facilitate the availability of the recommended remedy.

††   In this Note, the term “unauthorized immigrant” refers to any noncitizen who is present in the United States without lawful immigration status, and, consequently, unauthorized to reside and work in the United States.

* Associate Editor, Cardozo Law Review (Vol. 45); J.D., Benjamin N. Cardozo School of Law (2024); B.A., Hunter College (CUNY) (2015). I would like to thank my faculty supervisor, Professor Lindsay Nash, for her invaluable guidance and contributions throughout my research and writing process. A wholehearted thanks to my colleagues at Cardozo Law Review for their diligent work in preparing this Note for publication. My deepest gratitude to my siblings, best friend, and dear friends at Cardozo for their unwavering support during two tumultuous years of my life. I dedicate this Note to my parents, who, in the course of my research, I discovered nearly fell victim to the ten-year visa scam in the early days of their immigrant journey in New York. You are the personification of resilience. Last but not least, I take this opportunity to honor my late father—my guiding light. Thank you for inspiring this career and for fighting valiantly until the end. El dulce recuerdo de su cariño es mi bendición y fortaleza.