Criminal Defense Lawyers

The short answer is yes. But the longer answer is alot more complicated then that.

Here’s the thing—the U visa was specifically created to help crime victims like Maria, even when the situation gets messy. Your probably thinking: “How can I be a victim if I was arrested?” It’s a fair question. And its one that doesn’t get talked about enough in the immigration world.

This article addresses what most resources won’t: the paradox of being both a crime victim and a defendant. We’ll cover everything from basic eligibility to the strategic timing of your application, and we’ll bust some common myths along the way. If you’ve been victimized but also face criminal charges yourself, your not alone—and you may still have options.

Understanding the U Visa Basics

The U nonimmigrant status (commonly called the U visa) is set aside for victims of certain crimes who suffered mental or physical abuse and are helpful to law enforcement. Congress created this visa category back in 2000 through the Victims of Trafficking and Violence Protection Act, recognizing that undocumented immigrants were often afraid to report crimes or cooperate with investigations because of deportation fears.

The core idea is simple: if you help law enforcement solve crimes, you shouldn’t be punished with deportation. Makes sense, right?

Core Eligibility Requirements

To qualify for a U visa, you must meet these basic requirements:

• You were the victim of qualifying criminal activity
• You suffered substantial physical or mental abuse as a result of the crime
• You have information about that criminal activity
• You were helpful, are being helpful, or are likely to be helpful to law enforcement in investigating or prosecuting the crime
• The crime occured in the United States or violated U.S. law

Notice what’s NOT on that list: you don’t need to have perfect immigration status. You don’t need to have never been arrested. And you definately don’t need to be a “perfect victim” (whatever that means).

Benefits of U Visa Status

If your U visa petition is approved, you recieve several important benefits:

• Work authorization – You can legally work in the United States
• Protection from deportation – Your protected from removal while your petition is pending and approved
• Lawful presence – You can remain in the U.S. legally for up to four years
• Family members – You can include certain family members as derivatives
• Path to green card – After three years of continuous presence in U visa status, you may apply for permanent residence

These benefits can be life-changing, especially if your facing deportation or living in fear of ICE enforcement.

MYTH ALERT: “U visas are only for domestic violence victims.” FALSE. While domestic violence is a qualifying crime, their are actually more then 20 different types of crimes that can make you eligible. We’ll cover those next.

Qualifying Crimes – The Complete List

The statute lists specific crimes that qualify you for U visa consideration. If you were victimized by any of these crimes (or something substancially similar under state law), you might be eligible:

• Abduction
• Abusive sexual contact
• Blackmail
• Domestic violence
• Extortion
• False imprisonment
• Female genital mutilation
• Felonious assault
• Fraud in foreign labor contracting
• Hostage situations
• Incest
• Involuntary servitude
• Kidnapping
• Manslaughter
• Murder
• Obstruction of justice
• Peonage
• Perjury
• Prostitution
• Rape
• Sexual assault
• Sexual exploitation
• Slave trade
• Stalking
• Torture
• Trafficking
• Witness tampering
• Unlawful criminal restraint

Additionally, any “substantially similar” crime under state or local law can qualify. For example, if your state calls a crime “aggravated battery” instead of “felonious assault,” it still counts if the elements are similiar enough.

You can also qualify based off multiple victimizations. If you experienced a pattern of abuse involving several of these crimes, that strengthens your case.

MYTH ALERT: “The perpetrator must be convicted for me to get a U visa.” FALSE. The crime just needs to have occured. The person who harmed you doesn’t need to be arrested, charged, or convicted. Law enforcement just needs to confirm that the crime happened and you were the victim.

The Paradox – When Your Both Victim and Defendant

Now we get to the heart of the matter—the situation that brings most people to this article. What happens when you were victimized, but you also got arrested? Maybe even charged with a crime yourself?

Look, this is way more common then you think. And it doesn’t automatically disqualify you from U visa relief.

Common Scenarios Where Victims Get Arrested

These situations happen every day across the United States:

Dual Arrest in Domestic Violence Cases: Many states have mandatory arrest laws. When police respond to a domestic violence call, they’re sometimes required to arrest someone—and if they can’t figure out who the primary aggressor was, they arrest both parties. So you end up with a situation where the actual victim gets arrested alongside thier abuser.

I’ve seen this so many times. Police show up, both parties have injuries (because the victim fought back), and officers just arrest everyone to “let the courts sort it out.” Its frustrating, but it happens.

Self-Defense Situations: You were attacked, you defended yourself, and somehow you’re the one facing charges. Maybe you were the one holding the weapon when police arrived. Maybe you caused more visible injuries because you actually connected with your defensive blows. The optics made you look like the aggressor, even though you weren’t.

Protective Order Violations: You have a protective order against your abuser, but you contacted them (or allowed them to contact you). Now your facing criminal charges for violating the order. This is incredibly common in domestic violence cases—victims return to their abusers for complex reasons related to trauma bonding, economic dependence, or fear.

Substance Abuse Related Charges: You were sexually assaulted while intoxicated, but you also got charged with public intoxication or drug possession. Or you developed substance abuse problems as a result of trauma from victimization, and now you have drug-related charges.

False Reporting Accusations: You reported a crime, but authorities didn’t beleive you and charged you with filing a false police report. This happens more often then it should, particularly in sexual assault cases where there’s limited physical evidence.

Obstruction or Non-Cooperation Charges: You initially didn’t want to cooperate with police (maybe out of fear of your abuser or distrust of law enforcement), and you got charged with obstruction of justice or lying to police.

Why Victims Get Arrested

Understanding why this happens is important for your U visa case. Common reasons include:

• Mandatory arrest policies that require police to make an arrest at domestic violence calls
• Poor primary aggressor determinations by officers who aren’t properly trained on domestic violence dynamics
• Trauma responses that appear as aggression or non-cooperation to untrained observers
• Language barriers that prevent you from explaining what really happened
• Racial and immigration bias that leads officers to view you as less credible or more dangerous
• Mutual combat assumptions where officers incorrectly assume both parties are equally responsible

None of these reasons are your fault. But they do complicate your immigration case.

Criminal Charges vs. Criminal Convictions

Here’s a critical distinction that many people miss: an arrest is not the same as a conviction.

For immigration purposes, there’s a huge diffrence between:

• Arrest: You was taken into custody, but charges may be dropped, dismissed, or you may be acquitted
• Charges: Formal accusations filed against you, but you haven’t been convicted yet
• Conviction: You pled guilty or were found guilty after trial

U visa applications look at convictions much more closely then arrests or pending charges. If your case is still pending or was dismissed, that’s generally better then if you were convicted (though convictions don’t automatically disqualify you either, as we’ll discuss in the waiver section).

Additionally, sealed or expunged records still need to be disclosed for immigration purposes. Don’t make the mistake of thinking “the charges were expunged, so I don’t have to mention them.” Immigration law requires full disclosure regardless of expungement.

Deferred adjudication is viewed differently by USCIS then by criminal courts. What your criminal attorney calls “not a conviction” might still be treated as a conviction for immigration purposes. This is why you need both a criminal defense attorney AND an immigration attorney who can communicate with each other.

The Primary Aggressor Analysis

In situations where both parties were arrested, establishing that you were the victim (not the primary aggressor) is absolutley critical to your U visa case. You need to show that you were the person primarily victimized, not that you were equally responsible for the violence.

Evidence that establishes you as the victim includes:

Physical Evidence:

• Injury patterns—defensive wounds on your forearms, hands, or back versus offensive wounds on the other person’s face or knuckles
• Severity of injuries—who went to the hospital, who needed more medical care
• Weapons used—who brandished or used weapons first
• Size and strength disparities—are you significantly smaller or weaker than the other party

Behavioral Evidence:

• Who called 911 for help
• Who tried to flee or de-escalate
• Who was fearful versus who was aggressive
• Statements made to first responders

Historical Evidence:

• Prior police reports showing a pattern of abuse by the other party
• Previous protective orders against the other party
• Witness testimony about past abuse
• Documentation of coercive control

Expert Testimony:

• Domestic violence experts who can explain abuse dynamics
• Psychologists who can discuss trauma responses
• Cultural experts who can provide context about barriers to reporting

Start gathering this evidence immediately. Take photographs of any injuries (even minor ones). Keep copies of all police reports. Get medical records from every provider who treated you. Ask witnesses to write statements about what they saw or heard. The more documentation you have, the stronger your primary aggressor argument.

MYTH ALERT: “If we were both arrested, neither of us can claim victim status for immigration purposes.” FALSE. One person was the primary aggressor, and one person was primarily the victim defending themselves or being victimized. Both people cannot be equal victims in a domestic violence context. The evidence should show who initiated the violence and who was responding to it.

Criminal Inadmissibility and Waivers

Even if your a victim of a qualifying crime and you’ve cooperated with law enforcement, criminal history can still create immigration obstacles. The question is whether those obstacles can be overcome.

Understanding Inadmissibility Grounds

U.S. immigration law lists various grounds that make someone “inadmissible” to the United States. Some of these are based off criminal activity:

• Crimes involving moral turpitude (fraud, theft, assault with intent to harm)
• Controlled substance violations (drug possession, sales, trafficking)
• Multiple criminal convictions (if the aggregate sentences total 5 years or more)
• Prostitution and commercialized vice
• Certain family-based immigration violations

Other inadmissibility grounds aren’t criminal but can still apply: health-related grounds, public charge, fraud or misrepresentation in previous immigration matters, unlawful presence, and security-related grounds.

If any of these apply to you, you’ll need a waiver to overcome them.

The U Visa Waiver (Form I-192)

The good news is that U visa applicants can request waivers for most grounds of inadmissibility. You do this by filing Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

Form I-192 can be filed either with your initial U visa petition (Form I-918) or later if USCIS identifies inadmissibility issues. Their’s no seperate filing fee for the waiver—it’s included as part of the U visa process.

Crimes that CAN generally be waived:

• A single crime involving moral turpitude (if the sentence was less then one year)
• Simple possession of small amounts of marijuana or other controlled substances
• Prostitution offenses
• Immigration fraud (in some circumstances)
• Most misdemeanor offenses

Crimes that CANNOT be waived (or are very difficult to waive):

• Drug trafficking offenses
• Multiple drug offenses beyond simple possession
• Certain serious violent crimes
• National security or terrorism-related grounds
• Participation in genocide or torture

The key thing to understand is that most criminal history CAN be waived. Don’t assume your disqualified just because you have a conviction.

Factors in Waiver Approval

When deciding whether to grant a waiver, USCIS considers several factors. These aren’t rigid requirements—they’re discretionary considerations, which means USCIS weighs them based off the totality of your circumstances.

Hardship: What hardship would you and your qualifying family members suffer if the waiver is denied? This might include seperation from U.S. citizen children, inability to access medical care in your home country, or danger if you return.

Rehabilitation: Have you shown that your a different person now then when you committed the crime? Evidence of rehabilitation might include:

• Completion of drug or alcohol treatment programs
• Anger management or domestic violence intervention classes
• Mental health treatment
• Stable employment history
• Volunteer work or community involvement
• Lack of any subsequent criminal activity

Nature of the Crime: How serious was the offense? Was it violent? How long ago did it happen? Have you reoffended? A single shoplifting conviction from ten years ago is viewed very differently then multiple recent assaults.

Victimization Context: Here’s where the U visa waiver is different from other waivers. USCIS recognizes that sometimes criminal behavior results from being victimized. For example:

• A trafficking victim forced to commit crimes by their trafficker
• A domestic violence victim who violated a protective order due to coercive control
• A sexual assault victim who developed substance abuse as a trauma response

If your criminal conduct was connected to your victimization, make sure to explain that connection clearly. Expert testimony can help establish this link.

Building a Strong Waiver Case

Don’t just check boxes on Form I-192. Your waiver application should tell a compelling story about who you are and why you deserve discretionary relief despite past mistakes.

Include:

• Personal statement: Explain what happened, take responsibility (if appropriate), and describe how you’ve changed
• Treatment provider letters: From counselors, therapists, or substance abuse professionals who’ve worked with you
• Employment records: Show stability and community ties
• Character references: Letters from employers, teachers, religious leaders, community members
• Expert evaluations: Psychological evaluations linking your criminal behavior to victimization trauma
• Evidence of remorse: What have you done to make amends?
• Family impact statements: How would denial effect your children or other family members

The waiver is your oportunity to show USCIS that your more then the worst thing you’ve ever done. Take it seriously.

MYTH ALERT: “Any criminal conviction automatically disqualifies me from a U visa.” FALSE. Most criminal history can be waived through Form I-192. The main exceptions are serious drug trafficking and national security issues. Even multiple convictions or crimes involving moral turpitude can often be waived if you present strong evidence of rehabilitation and hardship.

The Law Enforcement Certification Challenge

One of the required components of every U visa petition is Form I-918 Supplement B, the Law Enforcement Certification. A qualifying law enforcement official must sign this form certifying that you were a victim of a qualifying crime and that you were, are, or are likely to be helpful in the investigation or prosecution.

But here’s the problem: how do you get the agency that arrested you to certify that your actually a victim?

Who Can Certify?

The good news is that police officers aren’t your only option. Many different agencies and officials can sign a U visa certification:

• Police departments and sheriff’s offices
• Prosecutors and district attorneys (often more sympathetic to victim’s circumstances)
• Judges (in some jurisdictions)
• Child Protective Services (for child abuse cases)
• Adult Protective Services (for elder abuse)
• Department of Labor (for labor trafficking, wage theft, workplace crimes)
• Equal Employment Opportunity Commission (for employment-related crimes)
• Federal agencies (FBI, ATF, ICE, DHS for federal crimes)

If the police department that arrested you won’t certify, consider approaching the prosecutor’s office. Prosecutors often have a broader understanding of who the real victim is, especially after reviewing all the evidence. They may be willing to certify even if the arresting officers aren’t.

When Police Refuse to Certify

Some common reasons why law enforcement might refuse to sign your certification:

• They have a blanket policy against certifying people who were arrested (even if charges were dropped)
• They don’t understand the purpose or requirements of the U visa
• They view you as a perpetrator, not a victim
• They lack resources or training on U visas
• Political or policy reasons

What you can do if certification is refused:

1. Request in Writing: Create a paper trail. Send a formal written request for certification, explaining your situation and attaching supporting evidence.

2. Provide Context: Include documentation that supports your claim of being the primary victim—medical records, photos, witness statements, history of abuse.

3. Involve a Victim Advocate: Victim advocates who work with law enforcement can sometimes facilitate communication and help officers understand the situation.

4. Seek an Alternative Certifier: If the police department won’t budge, approach the prosecutor’s office or identify another qualifying agency.

5. Wait for Case Resolution: If your criminal case is dismissed or your acquitted, the agency may be more willing to certify after that resolution.

6. Legal Advocacy: In some jurisdictions, agencies that receive federal funding are required to have U visa protocols. An attorney may be able to advocate for certification based off these requirements.

Recertification After Case Developments

If your criminal case is later dismissed or you win at trial, you can go back and request a new certification (or an updated one if you already filed your U visa petition). Changed circumstances may change the agency’s willingness to certify.

You can then submit this updated certification to USCIS to supplement your pending petition. This can significantly strengthen your case.

MYTH ALERT: “The police department that arrested me will never help with my U visa certification.” NOT NECESSARILY TRUE. It depends on the jurisdiction, the specific officers or officials involved, agency policies, and how you present your case. Additionally, prosecutors or alternative certifying agencies may certify even when police won’t. Don’t assume certification is impossible just because you were arrested.

Cooperation Requirement – What It Really Means

The statute requires that you be “helpful, have been helpful, or are likely to be helpful” to law enforcement. But what does that actually mean in practice, especially when you have your own criminal case to worry about?

Defining “Helpfulness”

Helpfulness is actually a pretty flexible standard. It can include:

• Reporting the crime to police
• Providing information during the investigation
• Identifying the perpetrator
• Testifying at trial or in other proceedings
• Providing physical evidence
• Being available and willing to help if called upon

Notice that last one—”likely to be helpful” means that even if you haven’t done much yet, your willingness and availability to help in the future can satisfy this requirement.

What helpfulness does NOT require:

• Waiving your 5th Amendment right against self-incrimination
• Testifying in a way that would incriminate you in your own criminal case
• Continuing cooperation indefinitely no matter what
• Perfect, unwavering cooperation from day one

Courts have interpreted this requirement broadly. Even if you were initially uncooperative (maybe you were afraid or didn’t trust police), later cooperation can satisfy the requirement. Even if you can’t testify now because of 5th Amendment concerns, the cooperation you already provided may be sufficient.

When You Have 5th Amendment Concerns

If testifying would incriminate you in your own pending criminal case, you have a constitutional right to assert the 5th Amendment. And you can do so without necessarily destroying your U visa eligibility.

The key is to document what cooperation you did provide before asserting your rights:

• Did you report the crime?
• Did you give a statement to police?
• Did you identify the perpetrator?
• Did you provide evidence?
• Did you appear when asked (even if you later asserted rights)?

Explain in your U visa petition why you had legitimate reasons for limiting cooperation. An attorney can help you balance your constitutional rights in the criminal case with the cooperation requirement in your immigration case.

Past vs. Ongoing Cooperation

You don’t need to be actively cooperating right now for your U visa to be approved. Past cooperation counts, even if your no longer involved in the case.

For instance:

• You reported the crime and gave a statement, but the investigation has since closed
• You testified at trial, and the case is now over
• You provided information that led to an arrest, but you’ve since relocated for safety reasons

Additionally, even if you initially recanted or stopped cooperating, you can explain the circumstances. If you were threatened, coerced, or afraid, document those reasons. Domestic violence experts and trauma psychologists can provide context about why victims behave this way.

MYTH ALERT: “I must testify at trial no matter what to get a U visa.” FALSE. Helpfulness is flexible. Past cooperation, initial information you provided, or willingness to assist if called upon can all be sufficient. You don’t have to waive your constitutional rights or testify in ways that harm your own legal interests.

Strategic Timing – Criminal Case vs. U Visa Application

Should you file your U visa application now while your criminal case is pending? Or should you wait untill the criminal case is resolved?

There’s no one-size-fits-all answer. It depends on your specific situation.

Reasons to File Early

Consider filing your U visa petition before your criminal case resolves if:

• The U visa waitlist is long: Currently, wait times are around 4-7 years due to the annual cap of 10,000 visas. Filing earlier gets you in the queue sooner.
• You need work authorization: If you’re placed on the waitlist and USCIS makes a “bona fide determination” that your petition is legitimate, you can get work authorization while you wait. This usually happens 12-18 months after filing.
• Your charges are minor or unrelated: If your criminal charges are unrelated to the qualifying crime, or are very minor, they may not significantly impact your U visa case.
• Filing establishes victim status: Submitting a U visa petition can help demonstrate to prosecutors and judges that your primarily a victim, not a criminal. This may influence plea negotiations or sentencing.
• You face imminent deportation: If ICE has initiated removal proceedings, filing a U visa can provide a defense against deportation.
• Your criminal case will drag on: If your case is going to take years to resolve, you don’t want to wait that entire time to start your U visa process.

Benefits of filing early:

• Establishes your victim status to all parties
• May influence prosecutorial discretion in your favor
• Work authorization helps with bail compliance, paying fines, attending treatment
• Shows community ties for sentencing purposes
• Gets you in the waitlist queue sooner

Reasons to Wait

Consider waiting to file your U visa untill after your criminal case resolves if:

• Charges likely to be dismissed soon: A dismissal strengthens your U visa case significantly.
• You might win at trial: An acquittal is powerful evidence that you weren’t actually guilty of criminal conduct.
• Plea negotiations ongoing: You don’t want to lock yourself into positions before you know the outcome of plea discussions. Some plea deals might be better for immigration than others.
• 5th Amendment concerns: If you need to preserve your right against self-incrimination in the criminal case, waiting might make sense.
• Certification more likely after resolution: Some agencies won’t certify while charges are pending but will certify after dismissal or acquittal.

Benefits of waiting:

• Present the strongest possible case to USCIS
• Avoid disclosure of criminal proceedings that might resolve favorably
• Easier certification after favorable criminal outcome
• Clean record is better then pending charges

Coordinating with Both Attorneys

Whatever you decide, your criminal defense attorney and your immigration attorney need to communicate with each other. The Supreme Court case Padilla v. Kentucky requires criminal defense attorneys to advise clients about immigration consequences of pleas and convictions. Your criminal attorney should know your pursuing a U visa, and your immigration attorney needs to understand the facts of your criminal case.

Joint strategy sessions between both attorneys can help you make the best decisions for both cases. Sometimes their will be conflicts (what’s best for the criminal case might not be best for immigration, or visa versa), and you’ll need to decide which priorities matter most to you.

MYTH ALERT: “I must wait untill my criminal case is completely over before filing a U visa.” FALSE. Strategic timing varies by case. Sometimes filing early is the better strategy, sometimes waiting makes more sense. The decision should be based off your specific circumstances, not a blanket rule.

Special Scenarios

Let’s address some specific situations that come up frequently.

Self-Defense Cases

If you were attacked and you defended yourself—and then got arrested for it—you can still qualify for a U visa. Self-defense is a legal justification, not a disqualification from victim status.

The key is documenting that you used reasonable force to protect yourself:

• Who initiated the confrontation?
• Was there a disparity of force (size, strength, weapons)?
• Did you try to retreat or de-escalate first?
• Were your actions proportional to the threat?

Evidence that supports self-defense includes:

• Your statement to police claiming self-defense
• Witness statements about who started the altercation
• Injuries showing defensive posture (wounds on forearms, hands, back)
• History of abuse by the other party
• Evidence that you called for help

Many self-defense cases result in dismissal or acquittal once all the facts come out. Even if your charged initially, that doesn’t mean your not a victim under immigration law.

Protective Order Violations

You have a protective order against your abuser, but you contacted them (or let them contact you). Now you face criminal charges for violating the order. Does this disqualify you from a U visa?

No. This is extremely common in domestic violence cases, and it doesn’t erase your victim status. In fact, victim-initiated contact with an abuser often demonstrates ongoing coercive control and trauma bonding—further evidence of victimization.

Expert testimony can explain why victims return to abusers despite protective orders:

• Economic dependence
• Fear of retaliation
• Trauma bonding
• Cultural or religious pressure
• Hope that the abuser has changed
• Threats against children or family members

Additionally, in many cases, the abuser initiates the contact and the victim responds. Make sure to document who reached out first and under what circumstances.

Substance Abuse-Related Charges

Maybe you were sexually assaulted while intoxicated, and you also face charges for public intoxication or drug possession. Or you developed substance abuse problems as a result of trauma from victimization. Does criminal activity related to substance abuse disqualify you?

No. Intoxication doesn’t mean you consented to being victimized. And substance abuse is a well-documented response to trauma. Many crime victims develop addiction issues as they try to cope with what happened to them.

If this applies to you:

• Get an evaluation from a psychologist or substance abuse counselor who can link your addiction to the trauma
• Complete treatment programs if possible
• Document your sobriety or progress in recovery
• Explain the connection between victimization and substance use

USCIS considers whether criminal behavior was a result of victimization. If your substance abuse stems from trauma you suffered as a crime victim, that’s a strong argument for a waiver.

False Reporting Accusations

Sometimes victims report crimes and authorities don’t beleive them. Then the victim gets charged with filing a false police report. If this happened to you, it doesn’t mean you can’t get a U visa—but you’ll need to present strong evidence that you were actually victimized.

Gather evidence that supports your account:

• Medical records consistent with your version of events
• Witness statements
• Text messages, emails, or other communications
• Expert testimony about why victims are sometimes disbelieved
• New evidence that has come to light since the initial report

Being disbelieved by police doesn’t mean you weren’t actually a victim. It might mean they didn’t have adequate training, they were biased, or they didn’t fully investigate. Present your evidence to USCIS and let them make an independent determination.

MYTH ALERT: “If police think I lied about being victimized, I can’t get a U visa.” FALSE. Initial disbelief can be overcome with evidence and context. Police sometimes get it wrong. USCIS makes its own determination based off all the evidence you present, not just what police believed at the time.

The Application Process with Criminal History

If your going to apply for a U visa while you have criminal history (arrests, charges, or convictions), here’s what you need to know about the application process.

Required Forms

You’ll need to submit:

• Form I-918, Petition for U Nonimmigrant Status: The main application form
• Form I-918 Supplement B: Law Enforcement Certification (signed by qualifying official)
• Form I-192: Application for Advance Permission to Enter as Nonimmigrant (if you have any criminal inadmissibility issues)
• Personal statement: Your story in your own words
• Evidence of victimization: Police reports, medical records, photos, witness statements, protective orders, etc.
• Evidence of substantial harm: Medical evaluations, psychological assessments, treatment records

If you have criminal history, also include:

• Court records: Charging documents, dispositions, judgments, sentencing orders
• Police reports: Especially those that show context for your actions
• Rehabilitation evidence: Treatment completion certificates, employment records, character letters
• Expert evaluations: Psychological reports linking criminal behavior to victimization trauma

Disclosure Requirements

You MUST disclose ALL arrests, charges, and convictions—even if:

• Charges were dismissed
• You were acquitted
• Records were sealed or expunged
• It was a juvenile offense
• It happened many years ago
• It was a very minor offense

Why full disclosure matters: USCIS will find out anyway through fingerprints and background checks. If you fail to disclose and they discover it, you’ll be denied for fraud—and that can permanently bar future immigration benefits. Fraud is taken extremely seriously.

How to disclose: In your personal statement, explain the circumstances of each arrest or charge. Show how it relates (or doesn’t relate) to your victimization. Emphasize rehabilitation and what you’ve learned. Be honest, provide context, and take responsibility where appropriate.

Evidence Strategy When You Have Criminal History

Your U visa petition needs to tell a compelling, coherent story: you were victimized, you cooperated with law enforcement despite challenges, and any criminal conduct on your part either resulted from victimization or has been addressed through rehabilitation.

Strengthen your case with:

1. Victimization Evidence (primary focus):

• Medical records showing injuries
• Photos documenting abuse
• Police reports (even if you were arrested too)
• Witness statements
• Protective orders
• 911 recordings
• Text messages or emails showing abuse pattern
• Prior incidents documented

2. Primary Aggressor Evidence:

• Comparative injury analysis
• History of abuse by perpetrator
• Expert testimony on domestic violence dynamics
• Evidence of coercive control

3. Rehabilitation Evidence:

• Treatment program completion certificates
• Employment records showing stability
• Community involvement and volunteer work
• Character reference letters
• Letters from family members
• Evidence of changed circumstances

4. Expert Evaluations:

• Psychological evaluation linking trauma to any criminal behavior
• Domestic violence expert explaining abuse dynamics and why victims fight back or return to abusers
• Cultural expert providing context about barriers to reporting
• Substance abuse counselor explaining addiction as trauma response

Present a narrative that makes sense and shows you as a whole person—someone who was harmed, who’s working to heal, and who deserves a chance at safety and legal status.

MYTH ALERT: “I should hide my criminal history from USCIS and hope they don’t find out.” ABSOLUTELY FALSE. This is fraud, and it will result in denial and a potential permanent bar from immigration benefits. Full disclosure with context is the ONLY approach. Honesty doesn’t guarantee approval, but dishonesty guarantees denial.

What to Expect – Realistic Timelines

U visa processing takes a long time. Like, a really long time. You need to be prepared for this.

Current Processing Times

Here are realistic expectations based off current data:

• Waitlist time: 4-7 years currently (because only 10,000 U visas are approved per year, and way more then that apply)
• Bona fide determination: 12-18 months after you file. If USCIS determines your petition appears legitimate, you’ll be placed on the waitlist and may receive work authorization.
• Final approval: After you reach the front of the waitlist (years later)
• Total time from filing to approval: 5-8 years in many cases

During the wait:

• You remain in whatever status you currently have (or without status if undocumented)
• If you receive a bona fide determination, you get work authorization
• Your generally protected from deportation while the petition is pending
• You may be able to travel with advance parole (if approved)

Impact of Criminal Proceedings on Timeline

If you have a pending criminal case, USCIS might hold your U visa petition until that case is resolved. They may issue a Request for Evidence (RFE) asking for updates on your criminal case status.

How to handle this:

• Keep USCIS updated on your criminal case developments
• Submit final dispositions as soon as their available
• If the outcome is favorable (dismissal, acquittal), highlight that in your response
• If the outcome is unfavorable (conviction), address it head-on and strengthen your waiver case

After Approval: The Path to a Green Card

Once your U visa is finally approved, its valid for four years. After you’ve maintained continuous presence in the U.S. for three years in U status, you can apply for a green card (lawful permanent residence) by filing Form I-485, Application to Register Permanent Residence or Adjust Status.

Important notes about the green card stage:

• Criminal history is re-examined during adjustment of status
• You may need an additional waiver (Form I-601) for certain criminal grounds
• You must show that you’ve maintained continuous presence (can’t leave the U.S. for extended periods without permission)
• You need to demonstrate continued cooperation with law enforcement or a reasonable explanation for why your no longer cooperating

The green card is not automatic just because you have a U visa. Its a seperate application with its own requirements. But most U visa holders who stay out of trouble and meet the requirements do successfully adjust to permanent residence.

MYTH ALERT: “If I get my U visa approved, I’ll definitely get a green card.” NOT AUTOMATIC. Green card is a seperate application three years later. Criminal history is reviewed again at that stage, and you must meet additional requirements like continuous presence and continued cooperation. However, most U visa holders do successfully obtain green cards if they meet the requirements.

Working with Attorneys – Criminal and Immigration

If your facing both criminal charges and immigration issues, you need both a criminal defense attorney AND an immigration attorney. Not one or the other. Both.

Why You Need Both

Criminal Defense Attorney:

• Defends you against criminal charges
• Negotiates plea deals
• Represents you at trial if necessary
• Advises on whether to take a plea or go to trial
• MUST advise you about immigration consequences (per Padilla v. Kentucky)

Immigration Attorney:

• Prepares your U visa petition
• Obtains law enforcement certification
• Advises on timing of application
• Handles all communications with USCIS
• Files waivers for criminal inadmissibility

Why both are essential: What’s best for your criminal case might not be best for your immigration case, and visa versa. You need attorneys who understand both systems and can develop a coordinated strategy.

What Each Attorney Needs to Know

Your criminal defense attorney must know:

• Your immigration status and goals
• That your pursuing a U visa
• How different plea deals will affect your U visa eligibility
• Immigration consequences of any conviction

Your immigration attorney must know:

• Detailed facts of the criminal charges
• Evidence from the criminal case
• Timeline and status of criminal proceedings
• Potential outcomes and their immigration impact

Potential Conflicts and How to Resolve Them

Sometimes your two attorneys will have conflicting advice:

• Criminal attorney wants a quick plea deal; immigration attorney wants to fight the charges. The criminal attorney might be focused on minimizing jail time or resolving the case quickly. The immigration attorney knows that a conviction (even with no jail time) could hurt your U visa. You’ll need to decide which matters more to you.
• Immigration attorney wants you to cooperate with police; criminal attorney says assert your 5th Amendment rights. The criminal attorney wants to protect you from self-incrimination. The immigration attorney knows you need to show cooperation. Find a balance—maybe you can cooperate in ways that don’t incriminate you.
• Criminal attorney advises taking a deportation deal; immigration attorney says you have other options. Sometimes prosecutors offer to dismiss charges if you agree to leave the country. Your criminal attorney might think its a good deal to avoid conviction. Your immigration attorney knows you might qualify for a U visa and could stay legally. Don’t accept a deportation deal without consulting your immigration attorney first.

Resolution strategies:

• Schedule joint consultation meetings with both attorneys present
• Encourage written communication between attorneys
• Make client-centered decisions—you ultimately decide your priorities
• Look for creative solutions (deferred prosecution, plea to non-deportable offense, etc.)

MYTH ALERT: “My criminal defense attorney can handle my immigration issues too.” RARELY TRUE unless your criminal attorney has specific immigration law training. Immigration law is highly specialized and complex. You need an attorney who focuses on immigration law, not someone who dabbles in it occasionally. Many excellent criminal defense attorneys know very little about immigration consequences.

Common Mistakes to Avoid

Don’t make these errors that can sink your U visa case:

1. Failing to Disclose Criminal History

Even dismissed charges, expunged records, and juvenile offenses must be disclosed. USCIS will find out through background checks. Hiding criminal history is fraud and will result in denial plus a potential permanent bar. Always disclose everything with context and explanation.

2. Waiting Too Long to Apply

There’s no formal statute of limitations, but you must apply within a “reasonable time” after the crime. What’s reasonable depends on circumstances, but generally sooner is better. Evidence becomes harder to gather over time, witnesses disappear, memories fade. Also, the waitlist is years long—filing earlier gets you in the queue sooner.

3. Insufficient Evidence of Victimization

“He said/she said” cases with no corroborating evidence are much harder to win. Document everything: take photos of injuries (even minor ones), get medical records, obtain police reports, ask witnesses to write statements, save threatening text messages or emails, keep a journal. The more evidence, the better.

4. Approaching the Wrong Certifying Official

Not all agencies will certify, and some are more sympathetic then others. Research which official is most likely to understand your situation. Sometimes prosecutors are better then police. Sometimes federal agencies are better then local ones. Don’t give up if one agency refuses—try another.

5. Inconsistent Statements Across Cases

What you said in your criminal case needs to align with what you say in your U visa petition. Unexplained inconsistencies raise red flags. If their are differences, explain them (maybe you were afraid to tell the full truth initially, or new memories emerged, or you didn’t understand the question). An attorney should review all your statements before filing to ensure consistency or explain discrepancies.

6. Inadequate Waiver Justification

Generic, boilerplate hardship statements don’t work. “I will suffer extreme hardship if I’m deported” without specific details won’t persuade USCIS. You need individualized evidence: medical records, psychological evaluations, country condition reports, expert opinions, family impact statements. Show, don’t just tell.

7. Filing Without an Attorney When You Have Criminal History

U visa cases are complicated. U visa cases with criminal history are extremely complicated. Self-filing is risky even in straightforward cases. When you have arrests, charges, or convictions, the stakes are too high to go it alone. Mistakes can result in denial and deportation. Invest in an experienced immigration attorney who handles U visa cases regularly.

MYTH ALERT: “I can handle this myself if I just follow the forms carefully.” VERY RISKY when you have criminal history. Criminal history adds layers of complexity that most people don’t fully understand. Small mistakes—like insufficient waiver evidence, inconsistent statements, or wrong certifying official—can result in denial. Attorney representation is strongly recommended for cases involving any criminal issues.

Frequently Asked Questions

Can I get a U visa if I was deported before?

Possibly, but you’ll need waivers for unlawful presence and the prior removal order. Previous deportation doesn’t automatically disqualify you, but it significantly complicates the case. You’ll need to demonstrate exceptional circumstances and very strong evidence of victimization. An experienced attorney is essential for this scenario.

What if my criminal charges are still pending?

You can file a U visa with pending charges. USCIS may issue a Request for Evidence asking for updates on the case status. You can submit the final disposition later when its available. Whether to file now or wait for resolution is a strategic decision you should make with your attorneys.

Can my family members get U visas too if I have criminal history?

Yes, qualifying family members (spouse, children, parents if your under 21, siblings if your under 18) can be included as derivatives on Form I-918 Supplement A. Your criminal history doesn’t automatically transfer to them. However, they’ll be separately evaluated for any criminal history they have.

What if I can’t afford two attorneys?

Look for legal aid organizations that provide free or low-cost immigration help. Law school clinics often handle U visa cases. Some private attorneys offer payment plans. For criminal cases, you may qualify for a public defender. Nonprofit organizations like immigration legal services providers may help with the U visa petition.

Will applying for a U visa make my criminal case worse?

Usually no. Immigration and criminal proceedings are seperate systems. In fact, filing a U visa may actually help by establishing you as a victim to prosecutors and judges, potentially influencing their discretion in your favor. However, discuss this with your criminal defense attorney before filing to make sure their aren’t case-specific concerns.

Can I be deported while my U visa is pending?

Generally, you’re protected from removal while your petition is pending, especially if USCIS has issued a bona fide determination. However, protection isn’t absolute—enforcement priorities and individual circumstances matter. If your in removal proceedings, the U visa can be filed as a defensive application. Your attorney may also request a stay of removal while the petition is adjudicated.

What happens if I’m denied?

You can appeal to the Administrative Appeals Office (AAO) or file a motion to reopen or reconsider. You may also be able to refile if circumstances change (like obtaining new evidence or resolving your criminal case favorably). Denial doesn’t automatically trigger deportation unless your already in removal proceedings. The reasons for denial matter for what options you have going forward.

Do I need to speak English?

No, their’s no English language requirement for the U visa. You can submit your application with certified translations of any documents in other languages. If USCIS schedules an interview, you can bring an interpreter. Language barriers can actually be noted in your application as part of the context for why you had difficulty reporting the crime initially.

How much does it cost?

There’s no filing fee for Form I-918 (U visa petition) or Form I-192 (waiver). However, you’ll likely have attorney fees ranging from $3,000 to $10,000 or more for complex cases involving criminal history. Additional costs may include court document fees, expert evaluations, certified translations, and medical or psychological assessments.

Can I work while my U visa is pending?

Not immediately upon filing. However, if USCIS places you on the waitlist and makes a bona fide determination that your petition appears legitimate, you can apply for work authorization (Employment Authorization Document or EAD). This typically happens 12-18 months after filing. The work authorization remains valid while your petition is pending.

Conclusion: You Have Options

If you’ve made it this far, you now understand something that many people—including some attorneys—don’t fully grasp: being arrested or charged with a crime doesn’t automatically disqualify you from U visa relief. The situation is complicated, yes. Its messy and unfair and frustrating. But their are paths forward.

Let me emphasize the key points one more time:

1. You can be both a victim and a defendant. These aren’t mutually exclusive categories. Life is complicated, situations are nuanced, and the U visa law recognizes that.

2. Criminal charges don’t automatically disqualify you. Most criminal history can be waived through Form I-192. What matters is presenting strong evidence of victimization, cooperation, rehabilitation, and hardship.

3. Strategic timing and dual representation are essential. You need both a criminal defense attorney and an immigration attorney, and they need to communicate with each other. When to file your U visa application depends on your specific circumstances—sometimes early filing is better, sometimes waiting makes more sense.

4. Full disclosure with context is the only path forward. Never hide criminal history from USCIS. Disclose everything, but provide context, explanation, and evidence of rehabilitation. Honesty doesn’t guarantee approval, but dishonesty guarantees denial and potential fraud findings.

5. Each case is unique. The advice in this article provides a framework, but your situation requires individualized analysis. What’s right for someone else might not be right for you.

If your in this situation—if you’ve been victimized but also face criminal charges—please know that your not alone. The system is confusing and sometimes contradictory. You may feel shame about being arrested, fear about deportation, and uncertainty about whether anyone will believe you or help you.

But you deserve safety. You deserve legal status. And being arrested doesn’t erase your victimization or eliminate your options.

Next Steps

Here’s what to do right now:

1. Document everything. Take photos of injuries. Get copies of all police reports (even the one from your arrest). Obtain medical records. Ask witnesses to write statements. Save text messages, emails, voicemails that show abuse or threats. The more evidence you gather now, the stronger your case will be later.

2. Consult with both a criminal defense attorney and an immigration attorney. Don’t try to handle either case on your own. You need professional help from attorneys who understand both systems and can coordinate strategy.

3. Request law enforcement certification—or identify alternative certifiers. Find out which agency or official is most likely to sign your Form I-918 Supplement B. If police won’t certify, approach prosecutors or other qualifying agencies.

4. Gather rehabilitation evidence if you have criminal history. Complete treatment programs, maintain employment, get character references, document your changed circumstances. Show that your more then your worst mistake.

5. Make a strategic decision about timing. With your attorneys’ help, decide whether to file your U visa petition now or wait for your criminal case to resolve. Consider all the factors we discussed—waitlist length, work authorization needs, likelihood of favorable criminal outcome, certification availability.

6. Prepare a comprehensive petition. When you do file, make sure your petition tells a complete, coherent story. Include all required forms and supporting evidence. Address criminal history head-on with context and rehabilitation evidence. Present yourself as a whole person who deserves a chance.

The U visa exists precisely for people in complicated situations like yours. You were victimized—that’s what matters. Even if you’ve been arrested, even if you face charges, even if you’ve made mistakes, you may still qualify for immigration relief.

Take the first step today. Reach out to an experienced immigration attorney who regularly handles U visa cases involving criminal history. Your case deserves individualized attention and strategic advocacy. You deserve safety, stability, and the chance to build a life free from violence and fear of deportation.

You’ve been through enough. Let’s get you the help you need.