For a decade, the U.S. has offered a special visa to some immigrants who are crime victims. Those who survive domestic violence, human trafficking or sexual assault — and help law enforcement investigate the crime — can apply for a U visa, which allows them to remain legally in the U.S.
Earlier this month, the stakes changed.
Undocumented victims who are denied a U visa may now receive an order to appear before an immigration judge — the first step toward deportation, the U.S. Citizenship and Immigration Services agency said last week.
"It is expected that individuals who no longer have a lawful basis to remain in the United States will return to their home country," USCIS spokesman Michael Bars said in a statement to FRONTLINE. The agency said the policy would aid in enforcing immigration laws.
But lawyers who work on U visa cases say the change could discourage undocumented survivors of domestic violence or human trafficking from coming forward, fearing deportation should their petition fail.
"This is a drastic departure from prior practice and policy," said Cecelia Friedman Levin, senior policy counsel at Asista, an organization that helps immigration advocates and attorneys. In the past, undocumented applicants whose petitions were denied still risked deportation, but were not considered a priority. Levin said until now, "notices to appear" were only issued in egregious cases, "precisely in recognition of the chilling effect it would have on people accessing survivor protections."
Read: For Shadow Victims of Violence, the "U Visa" Can Help
The decision on U visas is part of a broader effort by the Trump administration to curtail immigration, both by blocking migrants from coming to the U.S., and deporting those without legal status who are already here. In January last year, President Donald Trump issued an executive order stating that certain categories of immigrants would no longer be exempt from deportation. Since then, the government has said it may also start deportation proceedings for people in the U.S. unlawfully who are denied a trafficking victim visa and those denied a petition as a relative of a refugee or asylum seeker, among others.
U visa applicants are a relatively small fraction of the total immigrant population. By law, there is a cap on the number of U visas that can be approved in a year: 10,000. And the application process is challenging, requiring documentation and evidence of serious trauma. Applicants must have suffered "substantial physical or mental abuse" as a result of the crime, according to USCIS. A law enforcement agency must also certify that they helped bring the perpetrators to justice.
Over the last eight years, on average around 2,800 U visa applications have been denied annually, according to USCIS data.
Some applicants might be turned away for failing to meet the requirements. But immigration lawyers say applications can also be denied if they lack sufficient documentation, or because the applicants didn't respond to a request for more evidence. And for victims of domestic violence, assault or trafficking who may live in precarious circumstances, getting all the necessary documents filed may be more difficult, putting them at higher risk for a denial.
Read: Undocumented Sexual Assault Victims Face Backlash and Backlog
The policy is already having an impact, according to Michelle Ortiz, deputy director at Americans for Immigrant Justice, who also supervises the program that helps domestic violence and human trafficking victims. Ortiz said that she and her colleagues are compelled to explain the risks of filing for a U visa, which now includes deportation.
"For the first time in my career, we've had two clients decline filing for their U visas," Ortiz said. "They were just like, "No, I'm not going to do it. I cannot risk being separated from my children.'"
When asked about the impact of the policy on crime victims, Bars, the USCIS spokesman, said in an email that the new policy is about "fidelity to the law." "USCIS carefully reviews each petition on a case-by-base basis to determine whether the victim meets all eligibility requirements, including whether the person is in fact a victim of a qualifying crime and whether the person was helpful to law enforcement in the investigation or prosecution of a crime."
The policy will also apply to those who have pending applications. Over the last decade, a backlog of more than 128,000 applications has accumulated, according to USCIS data.
The long wait means people who applied years ago, when there was minimal risk of deportation if they were denied, will now be affected. "All the people we told, "You'll be fine,' they are the ones whose cases are getting reviewed today," said Jessica Farb, directing attorney for the San Francisco office of the Immigration Center for Women and Children. "The folks who filed four, four and a half years ago, they're the ones who're being taken by surprise and don't get to actually weigh their options."
Farb said the most attorneys can do for people who have already applied is to inform them of the policy change. Withdrawing an application, she said, won't change their circumstances.
Muzaffar Chishti, director of the Migration Policy Institute at New York University School of Law, said the high rate of approval for U visas attests to the fact that the U visa is helpful to law enforcement. He said people who have strong cases should still go ahead and apply after getting counsel from a lawyer. "If it's strong, they should go ahead," he said. "But if they are on the fence, I would think twice about it."