Each year there are more applicants who continue to apply for the U visa. However, with the limited annual allocation of U visas, it is currently creating a few issues that had not been anticipated by Congress.
What is the U Visa? Congress created the U visa through the Victims of Trafficking and Violence Protection Act of 2000 to encourage victims of violence to assist in the investigation or prosecution of certain crimes.1 A U visa certification on Form I-918, Supplement B is requested from a law enforcement agency that has responsibility for the investigation or prosecution of the qualifying crime or criminal activity.2 The U visa certification is one of the many required documents that must be submitted along with the application to show that the applicant was helpful in the prosecution of the crime they were a victim of, and that they have suffered substantially as a result of the crime.3 Only the United States Citizenship and Immigration Services (USCIS), the federal agency that oversees the program, has the jurisdiction to grant the U visa; law enforcement officials cannot confer legal status by signing Form I-918, Supplement B.4 Once the U visa application is approved the recipient is given U non-immigrant status. After three years of continuous presence in the United States, U visa recipients can apply for lawful permanent resident status as long as they have not unreasonably refused to cooperate with the authorities once they are granted their U non-immigrant status.5
There is currently an annual cap of 10,000 U visas that can be granted to principal victims of violence each fiscal year.6 There were 26,039 U visa petitions that were submitted for the fiscal year of 2014.7 USCIS has indicated they are currently adjudicating U visa petitions for visas available in fiscal year 2018.8 If a U visa applicant is not granted a U visa solely because of the 10,000 cap, then he or she is placed on a waiting list and will be granted status when new U visas become available at the start of the following fiscal year.9 U visa applicants who are placed on the waiting list are granted deferred action and are eligible to apply for employment authorization while they wait for a U visa.10 These individuals are usually considered “conditionally approved” U visa holders as they must remain on this waiting list until a U visa is available for them. Immigration practitioners have to routinely deal with the special problems and issues arising from these several year delays for these conditionally approved U visa holders.
Updates on Conditional U visa Employment Authorization Documents (EADs). USCIS automatically issues an initial Employment Authorization Document (EAD), which is valid for the duration of status upon approval of the U visa for the principal U visa applicant living in the United States.11 Derivative and principal applicants living abroad have to file Form I-765 “Application for Employment Authorization” (Form I-765), in order to obtain an EAD upon grant of U visa status.12 However, due to the annual U visa cap, U visa applicants now need to request EADs based on deferred action as conditional U visa grantees.13 As of March 17, 2015, the Vermont Service Center (“VSC”), the agency that adjudicates U visa petitions, started issuing two-year work permits under 8 C.F.R. §274a.12(c) (14) to U visa applicants who were granted deferred action under the conditional program.14 Principal U visa applicants are still automatically issued an EAD upon approval of their U visa petition and therefore, only need to submit one Form I-765, based on deferred action.15
However, derivative applicants need to submit two separate Form I-765: one based on deferred action and one based upon approval of their U visa petition.16 This new approach helps the U visa applicant save time by not having to submit these EAD forms once they are placed on the waiting list and once their U visa is approved.
Although USCIS is granting deferred action and employment authorization to those who are receiving a conditional U visa, the delay in receiving secure status is especially problematic for those with derivative family members residing abroad. That is because derivative applicants who are outside of the United States may only request employment authorization after admission to the United States in U non-immigrant status.17
Parole for Conditional U visa Grantees. A U visa principal petitioner is able to obtain derivative U visa status for his or her qualifying spouse, child, parent or sibling, whether in the United States or abroad.18 USCIS is under a regulatory directive under 8 C.F.R. §214.14(d)(2) to provide parole for conditional grantees.19 In the immigration context, “parole” is a discretionary decision to allow an individual to enter the United States for a temporary period of time.20 However, there is currently no established parole policy so that U visa conditional applicants or derivatives abroad may utilize parole to enter the United States.
Currently, the only way to seek such parole is through the regular humanitarian parole process under the Immigration and Nationality Act (INA) § 212(d)(5). Humanitarian parole may be granted “on a case-by-case basis for urgent humanitarian
reasons or significant public benefit.”21 Some of the requirements to request humanitarian parole include the submission of Form I-134 “Affidavit of Support,” a DNA test to confirm the parent/child relationship and the sponsor’s income which must be 125% of the poverty guidelines.22
However, requesting a DNA test and proof of a certain income level undermines the nature of the U visa program. Section 804 of the Violence against Women Act (VAWA) 2013 specifically exempts approved U visa applicants from the public charge grounds of inadmissibility.23 In other words, U visa applicants are not required to submit any type of proof of income or affidavit of support.24 Nonetheless, if U visa applicants want to bring their children while they are on the wait list through humanitarian parole, they must overcome additional hurdles that are normally not applicable to them. U visa applicants requesting humanitarian parole must submit additional proof and documentation which in many cases is not available, causing a huge burden for these families who are survivors of a crime and have very limited resources. USCIS has to work on implementing a mechanism or policy that would allow conditional U visa grantees to travel into the United States through a process that is less rigorous than the current humanitarian parole process.
Conclusion. With more than 22,000 conditional grantees on the U visa waiting list, there are certainly more issues that will need to be addressed in the future. Until then, learning how to address these issues will determine whether a case is successful, with family unification, or unsuccessful, by breaking up families.
1. Pub. L. No. 106-386, 114 Stat. 1464 (Oct. 28, 2000) [VTVPA].
2. 8 C.F.R. §214.14(b)(3).
4. Form, I-918, Supplement B, Instructions (01/15/2013), at 3.
5. 8 C.F.R. §245.24(a)(1).
6. 8 C.F.R. §214.14(d)(1).
7. Department of Homeland Security, U.S. Citizenship and Immigration Services, Performance Analysis System (PAS), January 2015, http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20
8. Information from the Vermont Service Center staff at the Freedom Network Conference on April 21, 2015 in Alexandria, VA.
9. 8 C.F.R. §214.14(d)(2).
10. Id; Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion.
11. 8 C.F.R. §214(a)(12).
12. 8 C.F.R. §214(a)(12); a U visa applicant under 21 years old can apply for derivative status for a spouse, children, parents and siblings under 18 years old; a U visa applicant 21 years or older can apply for derivative status for a spouse and unmarried children under 21 years of age. The principal applicant must complete a Form I-918 Supplement A for each qualifying family member.
13. 8 C.F.R. §214.14(d)(2).
15. 8 C.F.R. §214.14(c)(7); 8 C.F.R. §274a.12(c)(14); 8 C.F.R. §274a.12(a)(19).
16. 8 C.F.R. § 214.14(f)(7).
18. INA § 101(a)(15)(U)(i); 8 U.S.C. §1101(a)(15(U)(ii).
19. 8 C.F.R. §214.14(d)(2).
20. 8 C.F.R. §212(d)(5)(A).
21. INA §212(d)(5).
23. INA § 212(a)(4)(E)(ii).
24. USCIS defines “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence . . .” 64 FR 28689 (May 26, 1999).
Rocio S. Becerril, JD/MBA, practices in the area of immigration law. In 2009 she received her J.D. from Northern Illinois University. She is a member of the American Immigration Lawyers Association. Ms. Becerril founded the Law Office of RSB in 2012 with offices in Chicago and the western suburbs.