Understanding U Nonimmigrant Visa

U nonimmigrant status, generally referred to as the U visa, is an immigration benefit accessible to noncitizens who have been victims of certain serious crimes in the United States. Noncitizens who are approved for a U visa are provided a temporary lawful status for four years with work authorization and ability to apply for a green card after three years as well as being able to obtain immigration status for some family members if eligible as well.

The necessary requirements to be met for an application for a U visa are:

The victim of qualifying crime that contravened the laws of the United States, or of a crime that took place in the United States is the petitioner.
That significant and considerable physical or mental abuse was suffered by the applicant because of the crime.
The petitioner has significant evidence about the crime and have been helpful, are being helpful, or are likely to be helpful in the investigation or prosecution of said crime.
The petitioner has federal, state, or local law enforcement certification documenting their helpfulness in the detection, investigation, or prosecution of the crime; and
That petitioner is allowed into the United States or are eligible for a public interest waiver of any applicable inadmissibility factors.

To qualify for a U visa, the noncitizen must have been a victim of “qualifying criminal activity,” listed in the regulations at 8 CFR § 214.14(a)(9) as abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, fraud in foreign labor contracting, hostage, 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 restraints, or attempt, conspiracy, or solicitation to commit any of the enumerated crimes, and other “similar” related crimes.

The government can only issue up to ten thousand U visas annually, and because of this, there is a tremendous amount of backlog of U visa application. Under the current visa processing period, applicants are having to wait for many years before their case is decided, due to the limited amount of available visa annually. Once included in the U visa waitlist, an applicant will receive a deferred action which serves as protection from removal from the U.S. and they become eligible to apply for a work authorization, which can be renewed while they wait for final decision of their U visa application.

Benefits of U Visa

Some of the benefits of noncitizens applying or getting approval for the U Visa are:

1. Waiver Accessible for Most Inadmissibility Grounds

While a U petitioner must show that they are admissible, there are waivers that are available for most grounds of a U visa petitioner's inadmissibility. These waivers are found under INA § 212(d)(14). Grounds that are not waivable are grounds that show participation in Nazi persecution, genocide, torture, or extrajudicial killing (INA § 212(a)(3)(E)). All other grounds are theoretically waivable based on the discretion of the government official.

2. Opportunity to acquire Work Authorization and Deferred Action Sooner

Under the U nonimmigrant “bona fide determination” (BFD) process introduced by USCIS on June 14, 2021 as an attempt to curb the extensive waitlist, long processing time and backlog, qualifying U visa petitioner and their families can be granted work authorization and deferred action for four years which is renewable, pending the decision on their application. BFD serves as protection and authorization for petitioners to work sooner.

3. The capacity to assist eligible family members apply for an Immigration status:

A petitioner for the U visa can apply for immediate family members like their spouses and children (unmarried and under age 21) to acquire immigration status through the U visa process using Form I-918A. If the petitioner is under 21 years old at the time of filing their petition, in addition to being able to file for their spouse and children they also file for their parents and siblings under 18 years of age who are unmarried in the petition. Family members who were not initially qualified to be included in the petition at the nonimmigrant stage can be included when the petitioner is at the stage of adjusting or after adjusting status to a lawful permanent resident. This can be done using Form I-929.

4. Capacity to Bring in Children to the United States via the Revived and Expanded Central American Minors (CAM) Program

With the reopened and expanded Central American Minors (CAM) program by the Biden Administration in 2021 qualifying parents and legal guardians with pending U visa or asylum applications filed before May 15, 2021, can petition to bring their children who reside in El Salvador, Guatemala, or Honduras to the United States through the CAM program who are lawfully present in the United States to bring their children to the United States.

5. Capability to maintain two different deferred actions.

One thing that was a setback for applying for a U visa was USCIS position on refusal to granting two different forms of deferred action. An individual that was eligible for a U visa and DACA could not apply to both if one had been granted because they both result in a deferred action approval. This position has however changed since April 2021, individuals with DACA can now also apply for a U visa without fear of being refused renewal of their DACA later.

Conclusion

If an individual is unfortunately a qualifying victim of a crime, the U visa offers several benefits, and a route to acquiring a green card for them and their family members. If you want to apply for a U visa, we suggest that you contact us for consultation.