Illinois Streamlines Rules Enabling Immigrant Survivors of Crime to Achieve Visa Eligibility

On January 1, 2019, Illinois enacted the Voices of Immigrant Communities Empowering Survivors (VOICES) Act. The VOICES Act sets uniform T and U Visa certification standards for all law enforcement agencies in Illinois.  Congress established the T and U Visas to provide survivors of qualifying crimes and severe forms of trafficking with immigration protection if they reported the crimes to law enforcement and cooperated in the investigation or prosecution of those crimes.  The intended purpose of the T and U visas is to encourage individuals without lawful immigration status, who may otherwise avoid interactions with law enforcement based on their status, to report crimes to law enforcement and cooperate in bringing their perpetrators to justice.

To qualify for a U Visa, a survivor of a qualifying crime must first obtain a signed law enforcement certification affirming the applicant’s status as a victim of a qualifying crime and the applicant’s cooperation in the investigation or prosecution of the case. The signed certification is the first step in the process of applying for a U Visa and, without it; a survivor of a qualifying crime cannot apply for this immigration benefit.  The U Visa law enforcement certification must be completed on Form I-918B and in accordance with U.S. Citizenship and Immigration Services (USCIS) instructions.

While a signed law enforcement certification is not a requirement for a T Visa, applicants must establish they were a victim of a severe form of trafficking and they complied with any reasonable requests from law enforcement in the investigation or prosecution of the case.  Although the T Visa declaration of law enforcement is not a requirement for filing, it is given significant weight by USCIS in determining an applicant’s eligibility for this immigration benefit.  The T Visa declaration of law enforcement must be completed on Form I-914B and in accordance with USCIS instructions.

Prior to the VOICES Act, law enforcement agencies in Illinois had no uniform standard to follow when responding to requests for certification for the T and U Visas. While some agencies were familiar with the requirements of the T and U Visas, others were not prepared to handle such requests.  Depending on the jurisdiction in which the crime occurred, and sometimes within the same jurisdiction, requests for certification for the T and U Visas suffered from arbitrary delays, inconsistent responses, and even erroneous denials.  The disparate treatment of requests for certification by law enforcement agencies across the state inhibited survivors’ ability to seek immigration protection and undermined the very purpose of the T and U Visas.

To streamline the process and ensure equal access to these important benefits, the VOICES Act establishes a uniform set of requirements every law enforcement agency in Illinois should abide by when the agency receives a request for certification. The full text of the VOICES Act is available here.  The following is a general summary of the requirements Illinois law enforcement agencies should follow when they receive a request for a certification:

1) The head of each agency should designate a certifying official.  The certifying official shall respond to certification requests and make information regarding the agency’s procedure for certification publicly available for the victims of qualifying criminal activity.

2) Any person seeking certification must submit a request to the certifying official from the law enforcement agency that detected, investigated, or prosecuted the offense, that is, the agency with which the survivor worked most closely and that would have the most information about the case.  The request may be submitted by the survivor or their representative.

3) Certifying officials must issue a certification within 90 business days after receiving the certification request.  Expedited processing may be requested in the following scenarios: (i) If the requester is in removal proceedings or detained, the certification should be issued within 21 business days; (ii) If the requester or the requester’s child, parent, or sibling would age out of qualifying for a U or T visa within 90 business days from the date the certifying official receives the request, the certification should be issued within 21 business days; (iii) If the requester, requester’s child, parent or sibling would age out of qualifying within 21 days from the date the certifying official receives the request, the certification should be completed within 5 business days.  Requests for expedited processing based on one of these circumstances must be made in writing and must establish that the person is eligible for expedited review.

4) Certifying officials can decline to issue a certification only if they cannot determine from the evidence provided that the applicant is in fact a victim of a qualifying crime or severe form of trafficking.  The certifying agency may respond in writing explaining why the available evidence does not support a finding that the person is a victim of qualifying criminal activity.

5) Certifying agencies are immune from civil or criminal liability for issuing or failing to issue a certification unless the agency engages in willful and wanton misconduct.

It is important to emphasize that the language in the Act does not impose civil or criminal liability for failing to comply with the standards and that certifying officials are not required to provide written explanation for their denials. Nonetheless, we are hopeful this legislation will facilitate increased reliability in responses to requests for certification and ensure that immigrant survivors across Illinois have equal access to the critical protections of the T and U visas.  And if you are a victim of a crime, don’t hesitate to call your local police department and file a police report whether or not the T and U visas become available in your case.

Since the VOICES Act went into effect on January 1, 2019, our immigration attorneys at Minsky, McCormick & Hallagan, P.C. have been monitoring its implementation by law enforcement agencies across the state.  If you have questions as to whether you might be eligible for the T or U Visa, contact an attorney at Minsky, McCormick & Hallagan, P.C.