QUESTION: I’m a material witness. Can I get some help from immigration, other than just being paroled for a couple of weeks into the US?
Answer: Yes, there is a type of visa available called the S Visa. The S-1 Visa is for persons in possession of critical reliable information concerning a criminal organization or enterprise who is willing to supply or has supplied such information to federal or state law enforcement authorities or court and whose presence in the US the Attorney General determines is essential to the success of an authorized criminal investigation or prosecution. The S-2 Visa is for persons session of critical reliable information concerning a terrorist organization, enterprise or operation; Is willing or has supplied such information to federal law enforcement authorities or federal court; Will be or has been placed in danger as a result of providing such information; and is eligible to receive an award under 22 USC. §2708(a).
Question: What are some specifics of the S Visa?
Answer: There are 200 visas for S-1 per year; 50 for S-2. Maximum admission is 3 years. AG not permitted to grant extension. There is no change of status from the S visa. However, one can do a change of status to S status. The applicant must Report to ICE in accordance with the provisions tied to the visa. The Attorney General can waive grounds of inadmissibility except for Nazis. The applicant must waive right to contest removal, except for withholding.
Question: Can the S-1 or S-2 applicant adjust status for residency at any point?
Answer: Yes, it is possible. S-1 or S-2 and family (spouse, children, son or daughter, parents) if admitted as S may adjust if they are not inadmissible as a Nazi and the provision of information has substantially contributed to the success of the investigation, and in the case of S-2s, has also resulted in receiving a Department of State reward. Must submit approved I-854 with I-485.
Question: What is the procedure to apply for the S Visa?
Answer: Application is made on I-854. Application shall include evidence of: (i) applicant’s cooperation; (ii) the need for her presence; (iii) grounds of inadmissibility; (iv) factors warranting favorable exercise of discretion. It can only be filed by federal or state law enforcement agency (LEA).
It is then filed with the Asst. AG, Criminal Division, who will then certify and forward it to ICE Commissioner. The US Attorney with jurisdiction over the investigation or prosecution, as well as the highest level of state or federal LEA must endorse the I-854. If approved, S must report quarterly to LEA. Must also report change of telephone number, address and travel plans.
Question: Do you have any other tips on the S Visa?
Answer: S status was introduced by legislation in 1994. In theory, S status involves a two-part process, whereby nonimmigrant (temporary) status up to three years is first granted during the period of time that an investigation and prosecution is ongoing. If the investigation and/or prosecution is successfully completed due in part to the involvement of the witness, permanent resident status may be granted. In reality, law enforcement officials and prosecutors often are not willing to file for the nonimmigrant status until the investigation is either completed or well under way.
An individual is sponsored for S status by the LEA, aided by the prosecutor. According to regulation, the term law enforcement agency also encompasses a federal or state court, or a United States Attorney’s Office “directly in need of information to be provided by the alien witness or informant.” It is not an affirmative application that a person can send in on his or her own. Moreover, immigration judges have no jurisdiction to grant S status.
It is available to cooperating witnesses in both state and federal cases. However, there are only 200 numbers for S status available each year, and 50 available for terrorist-type cases. (After the cap is reached, a waiting list is established for applicants in the backlog.) This small number underlies the fact that S status is reserved for those high-profile cases that are extremely important. However, there has yet to be a cap.
However, if you are going to be a material witness, be sure to try to do this S Visa prior to giving the testimony, not after.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
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