U Visas & U Status - H-1B, Asylum, L-1, EAD, Green Card

The U nonimmigrant status allows noncitizen victims of certain crimes to stay in the United States temporarily, obtain employment authorization, and eventually apply for lawful permanent resident (LPR) status. U nonimmigrant status is normally granted for four years. One can apply for permanent residence after three (3) years of holding U status.

To be eligible for U nonimmigrant status one must:

have suffered substantial physical or mental abuse (injury or harm to physical person, or harm to or impairment of the emotional or psychological soundness) as a result of having been a victim of certain criminal activity;
have information concerning that criminal activity;
have been helpful, are being helpful, or are likely to be helpful (to Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity) in the investigation or prosecution of the criminal activity (and since the initiation of cooperation, has not refused or failed to provide information and assistance reasonably requested.)
have certification from a federal, state, or local law enforcement authority (official, prosecutor, judge, or other Federal, State, or local authority investigating criminal activity. Certification may also be provided by an official of the Service whose ability to provide such certification is not limited to information concerning immigration violations. Includes agencies that have criminal investigative jurisdiction in their respective areas of expertise, including, but not limited to, child protective services, the Equal Employment Opportunity Commission, and the Department of Labor) certifying one’s helpfulness in the detection, investigation, or prosecution of the criminal activity;
be a victim( one who has suffered direct and proximate harm. Includes spouse, child, the parent, or unmarried siblings if the direct victim is murdered or incompetent or incapacitated. Excludes those culpable of the criminal activity being investigated) of criminal activity that has violated the laws of the United States or occurred in the United StatesStates (including in Indian country and military installations or the territories and possessions of the United States);
be admissible to the United States or demonstrate eligibility for a public interest waiver of any inadmissibility factors

Qualifying crimes listed in the statute. include:

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 Restraint•Other Related Crimes (similar activity where the elements of the crime are substantially similar. Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.)

Who is a victim?

Apart from directly targeted victims of a crime, bystander and indirect victims also may qualify for U status. Bystander victims are those who were not the direct target of a crime, but who nevertheless suffered “unusually direct injury as a result of a qualifying crime” ( Example :a pregnant woman suffered a miscarriage as a result of the trauma she experienced witnessing a violent crime). “Indirect victims” include certain family members of direct victims who are deceased because of murder or manslaughter, or incompetent or incapacitated as a result of the a crime. Only the following family members may qualify as an indirect victim: Spouses, Unmarried children under twenty-one years of age. If the victim was under twenty-one years of age parents and Siblings under the age of eighteen would qualify. Indirect victims also need to prove their helpfulness in the criminal investigation or prosecution and that they suffered substantial physical or mental abuse. The certification must also be in the indirect victim’s name, not the deceased or incompetent victim’s name. Victims of crimes who brought the criminal activity upon themselves by their own criminal actions, are excluded from the definition of a victim, but a domestic violence victim who fought back against their abuser would still be considered a victim of domestic violence.

Helpful in the investigation

To qualify for U nonimmigrant status, the victim must provide proof from a law enforcement agency on Form I-918 Supplement B that they have provided some form of help in the detection, investigation, or prosecution of the criminal activity. The Victim cannot refuse to provide requested assistance through the duration of the U nonimmigrant status, and has an ongoing responsibility to cooperate. The certifying official can withdraw certification any time while the U nonimmigrant application is pending or after it is approved. Note, however, that this ongoing responsibility is limited to responding to requests from law enforcement. Law enforcement agencies may require that as long as the investigation or prosecution is open, the victim must keep their contact information current with the relevant agency. Victims under sixteen years of age, incapacitated, or incompetent can satisfy the helpfulness requirements if their parent, guardian, or next friend provides the required assistance.

Eligible Relatives

Those eligible for U status if under 21 years of age, can also apply for their parents, spouse, child, or unmarried sibling under 18 years of age on the date on which application for U status is filed. U visa Applicants over 21 years of age or older can apply for their spouse and children. A qualifying family member who committed the qualifying criminal activity in a family violence or trafficking context which established the principal’s eligibility for U nonimmigrant status shall not be granted U nonimmigrant status.

The Numerical CAP & Waiting list.

Only 10,000 U visas can be granted each year (excluding applications for relatives). All eligible applicants who cannot be granted U-1 nonimmigrant status because of the CAP will placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. USCIS will grant employment authorization and deferred action or parole to U petitioners and qualifying family members while the U petitioners are on the waiting list. U.S. Immigration and Customs Enforcement (ICE) may request expedited waiting list adjudications for specific petitioners, in relation to enforcement priorities. Waitlisted petitioners do not accrue unlawful presence while on the waiting list. Petitioners on the waiting list and their qualifying family members, who are outside the United States, may generally seek parole on a case-by-case basis.

The three distinct adjudicative processes.

Bona Fide Determination (BFD) process for principal petitioners and qualifying family members with pending, bona fide U nonimmigrant petitions, who USCIS determines merit a favorable exercise of discretion in the form of BFD EAD and deferred action valid for 4 years.;
Waiting list adjudication for petitions USCIS determines are eligible for U nonimmigrant status but cannot be approved due to the annual statutory cap; and
The final adjudication of eligible petitions for U nonimmigrant status, where the approval of a principal petition results in the issuance of a visa drawn from the statutory cap of 10,000 visas allotted per fiscal year.

Bona Fide Determination (BFD)

DHS has the discretion to grant employment authorization to noncitizens who have pending, bona fide petitions for U nonimmigrant status. In June 2021, USCIS implemented the Bona Fide Determination (BFD) process for U visa applicants, with bona fide petitions who USCIS determines merit a favorable exercise of discretion. Under this process, USCIS exercises its discretion on a case-by-case basis to grant BFD Employment Authorization Documents (BFD EADs) and deferred action. The BFD process is distinct from the waiting list process. Before June 2021, U visa applicants only received employment authorization and deferred action when USCIS placed the principal petitioner on the waiting list, now they can obtain EAD and deferred action before USCIS before USCIS has made a final adjudication of their case and/or put them on the waiting list. During the BFD process, USCIS first determines whether a pending petition is bona fide based on compliance with initial evidence requirements and successful completion of background checks. Second, USCIS, determines if an applicant poses a risk to national security or public safety by reviewing the results of background checks, and considers other relevant discretionary factors to see if a favorable exercise of discretion is merited. USCIS may choose not to exercise its discretion to grant a BFD EAD and deferred action where a petitioner appears to pose a risk to national security or public safety, for example, due to prior a prior conviction for offenses like murder, rape, sexual abuse, firearms offenses, aggravated assault, drugs, trafficking in persons, etc. USCIS may also exercise discretion favorably notwithstanding such prior convictions if case-specific circumstances warrant it. If USCIS grants a noncitizen a Bona Fide Determination Employment Authorization Document (BFD EAD) as a result of the BFD process, USCIS then also exercises its discretion to grant that noncitizen deferred action for the period of the BFD EAD. USCIS generally does not conduct waiting list adjudications for noncitizens who USCIS grants BFD EADs and deferred action to; these petitioners’ next adjudicative step is final adjudication when space is available under the statutory cap. Only petitioners living in the United States may receive BFD EADs, since those outside the United States cannot as a practical matter work in the United States. Likewise, deferred action can only be accorded to petitioners in the United States since those outside the United States have no potential removal to be deferred. USCIS initiates waiting list adjudication for petitioners who do not receive BFD EADs. When USCIS determines a principal petitioner will not receive a BFD EAD, USCIS proceeds to a full adjudication for waiting list placement for the principal petitioner and his or her qualifying family members. USCIS does not accept or process motions to reopen or reconsider, appeals, or requests to re-apply for a BFD EAD. Except in cases where ICE requests expedited waiting list adjudication, or where USCIS revokes the Bona Fide Determination Employment Authorization Document (BFD EAD) and terminates deferred action, USCIS generally will not conduct waiting list adjudications for noncitizens who USCIS grants BFD EADs and deferred action to.

Waiving grounds of Inadmissibility.

USCIS considers it to be in the public or national interest, they have the ability to waive any ground of inadmissibility a U visa applicant is subject to other than Participation in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing. USCIS routinely waives unlawful entry and illegal presence. In the cases of criminal or related grounds, in exercising its discretion USCIS will consider the number and severity of the offenses of which the applicant has been convicted. In cases involving violent or dangerous crimes or inadmissibility based on security and related grounds, USCIS will only exercise favorable discretion in extraordinary circumstances. One cannot appeal the denial of a waiver but one may reapply.

What kind of abuse must the victim have suffered to be eligible for a U Visa ?

Physical or mental abuse means injury or harm to the victim’s physical person, or harm to or impairment of the emotional or psychological soundness of the victim. Whether abuse is substantial is based on a number of factors, including but not limited to: The nature of the injury inflicted or suffered; the severity of the perpetrator’s conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite to establishing the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse suffered was substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level.

Effect of Approval of U Petition on prior removal order.

For a petitioner subject to an order of exclusion, deportation, or removal issued by the Secretary, the order will be deemed canceled by operation of law as of the date of USCIS’ approval of Form I-918. A petitioner who is subject to an order of exclusion, deportation, or removal issued by an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings. ICE counsel may agree, as a matter of discretion, to join such a motion to overcome any applicable time and numerical limitations.

Denial of U Petition

USCIS will provide written notification of the reasons for the denial. One may appeal a denial to the Administrative Appeals Office (AAO). During an appeal to the AAO, the denial will not be deemed administratively final until the AAO issues a decision affirming the denial. Upon USCIS’ final denial of a petition for a petitioner who was in removal proceedings that were terminated, DHS may file a new Notice to Appear to place the individual in proceedings again. For those subject to an order of removal, deportation, or exclusion and whose order has been stayed, USCIS’ denial of the petition will result in the stay being lifted automatically as of the date the denial becomes administratively final.

Employment Authorization

Foreign nationals granted U nonimmigrant status are employment authorized incident to status. USCIS automatically will issue the principal applicant an initial Employment Authorization Document upon approval of U status. Relatives granted U status to obtain EAD must file Form I-765, “Application for Employment Authorization,” with the appropriate fee. Principal petitioners who file an application for employment authorization based on being on the waiting list must submit a fee or a Request for Fee Waiver. USCIS uses all Applications for Employment Authorization (Form I-765) already filed to issue a BFD EAD. Where a petitioner has filed a Form I-918 but has not filed an accompanying application for employment authorization, USCIS issues a notice indicating that the petitioner has received a BFD and may receive a BFD EAD. To obtain an EAD, the petitioner must file a Form I-765 after receiving this notice. Petitioners who receive BFD EADs do not need to submit a filing fee for the initial Form I-765 associated with the BFD EAD