Report on the “S” Visa Program Reveals Flawed System

The Federal Docket

August 17, 2021

At the end of July, the National Association of Criminal Defense Lawyer (NACDL) released a comprehensive report prepared by attorney Brad Gershel regarding the Government’s “S” Visa program. The S visa program was designed to give law enforcement the ability to incentivize cooperation among non-citizens by offering them a visa to remain in the U.S. The S visa is commonly referred to as the “snitch visa.”

Under the terms of the program, the Government can issue 200 criminal and 20 terrorism-related S visas per year. The process to acquire an S visa involves having a three-year temporary status and fulfilling any and all obligations related to assisting the Government. If all obligations are fulfilled, the cooperator can obtain permanent residency.

The report released by NACDL, however, reveals that the system is broken. In 2018, for example, only 16 criminal informants were approved for an S visa, out of the 200 visas the government can issue. The report found that, more than bad faith by government actors, the primary reason for the lack of S visas was bureaucracy. For example, since 2002, the Department of Homeland Security has take over immigration issues, so it has to review S visa applications submitted by the DOJ and its related agencies. There are multiple levels of review after that, and the application can be denied with little to no explanation. During this lengthy process, the applicant must remain under supervision. Gershel, the attorney who wrote the report, called the S visa program, as it currently exists, a “pipe dream.”

NACDL has called on policymakers to address these issues and make the program more efficient and accessible.

Click here to read the report.

Click here to read an article discussing the report on The Intercept.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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