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S Visas for Criminal and Terrorist Informants

In response to the terrorist acts of September 11, 2001, Congress passed a legislation making permanent a provision that allows aliens with critical information on criminal or terrorist organizations to come into the United States to provide information to law enforcement officials. This legislation (S. 1424) became P.L. 107-45 on October 1, 2001. The law amends the Immigration and Nationality Act to provide permanent authority for the administration of the “S” visa, which was scheduled to expire on September 13, 2001. On November 29, 2001, Attorney General John Ashcroft announced the “Responsible Cooperators Program” to reach out to individuals who may be eligible for the S visa. The S visa quota allows 200 criminal informants and 50 terrorist informants to be admitted annually to the U.S. Since FY1995, almost 900 informants and their accompanying family members have entered on S visas.

Criminal Informants (S-5)

The S-5 classification may be granted to a foreign national who has been determined by the Attorney General to possess critical and reliable information concerning a criminal organization or enterprise. The alien must be willing to supply or have supplied this information to federal or state law enforcement authorities, or to a federal or state court. The Attorney General must also determine that the alien’s presence in the U.S. is essential to the success of an authorized criminal investigation or to the successful prosecution of an individual involved in a criminal organization or enterprise. The number of witnesses or informants granted S-5 status in a fiscal year may not exceed 20.

Terrorist Informants (S-6)

The S-6 classification may be granted to an alien who the Attorney General and Secretary of State have determined possesses critical and reliable information concerning a terrorist organization, operation, or enterprise, and who is willing to supply or has supplied information to federal law enforcement authorities or to a federal court. The Attorney General and Secretary must also determine that the alien has been or will be placed in danger as a result of providing information, and is eligible to receive a cash reward under§36(a) of the State Department Basic Authorities Act of 1956. The number of informants admitted under this classification may not exceed 50 in any fiscal year.

Accompanying Family Members (S-7)

The law allows the informant’ s accompanying family members — including spouses, married or unmarried children, and parents — to receive S nonimmigrant visas. These accompanying family members are referred to as S-7 nonimmigrants.

Adjustment of Status

The Attorney General may adjust the status of S-5 nonimmigrants and their family members to that of aliens lawfully admitted for permanent residence (LPRs) if the aliens have supplied information as agreed, and the information has contributed substantially to a successful criminal investigation. The Attorney General likewise may adjust the status of S-6 nonimmigrants and their accompanying family members to LPR status if the aliens have — in the sole discretion of the Attorney General — substantially contributed information that led to:

  • The prevention or frustration of an act of terrorism against the U.S, or
  • A successful investigation or prosecution of an individual involved in such an act of terrorism.

The informants also must have received a reward under §36(a) of the State Department Basic Authorization Act of 1956.

In order for an “S” nonimmigrant to adjust status, a Form I-854 must be filed on the alien’s behalf by the federal or state law enforcement agency that originally requested the visa. This application must be approved by the Assistant Attorney General in charge of the Criminal Division of the Department of Justice, and the Assistant Secretary of Immigration and Customs Enforcement of the Department of Homeland Security before the alien can file the Form I-854. These LPR adjustments are then counted under the country ceilings of the numerically limited legal immigration system. Upon adjusting status, the nonimmigrant will remain deportable, if convicted of a crime involving moral turpitude, for 10 years after the date of adjustment.

Other Conditions and Requirements

Aliens admitted under the S-5 and S-6 categories are required to report quarterly to the Attorney General. If an alien fails to meet the reporting requirements, U.S.C.I.S. may institute deportation proceedings. The alien will lose lawful nonimmigrant status if convicted of any criminal offense punishable by one year or more of imprisonment after the date of admission. The alien must waive the right to contest (other than on the basis of an application for withholding of deportation) any action of deportation instituted before that alien obtains lawful permanent residence status. The alien must also abide by any other limitations, restrictions, or conditions imposed by the Attorney General

Responsible Cooperators Program

On November 29, 2001, Attorney General John Ashcroft announced the “Responsible Cooperators Program” to reach out to potential terrorist informants. The Attorney General asked that all non-U.S. citizens who are present in the United States or who seek to enter our country come forward to the FBI with any valuable information they have to aid in the war on terrorism and said that, in return for this information, the Department of Justice would assist nonresident aliens in obtaining S visas. The Attorney General also stated that aliens who provide useful and reliable information but are not technically eligible for S visas would receive assistance in seeking either parole or deferred action status, which would allow them to reside in the U.S.

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