U Visa: Requirements and Benefits

Immigrants who are victims of crimes may fear that reporting criminal activity could expose them to immigration consequences, such as deportation. Fortunately, the U Visa process exists to protect them from these unfair consequences. More importantly, the U Visa may provide a pathway to legal status for some immigrants who would otherwise not be able to secure lawful permanent residency due to their individual circumstances.

The U Visa presents a unique opportunity for immigrants who cannot secure permanent legal residency due to the unlawful presence bar and who lack the necessary relationship to request an applicable waiver. It is important to have an experienced immigration lawyer with knowledge of the criminal justice system to assist you through the U Visa process. 

Requirements

U Visas are generally granted for periods of up to four years. To be eligible for a U Visa, the following requirements must be met:

1. The immigrant has suffered “substantial physical or mental abuse” as a result of having been a victim of certain “qualified criminal activity” that occurred in the U.S. or violated U.S. law;
2. The immigrant possesses credible and reliable information establishing that they have knowledge of the details concerning the criminal activity;
3. The immigrant (a) has been helpful or is being helpful to a certifying agency in the investigation or prosecution of the criminal activity that is the basis of the application and (b) continue to be helpful after the initiation of the investigation;
4. The immigrant is admissible to the U.S. or qualifies for a waiver on Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. Each qualifying family member must show their relationship with the principal immigrant and must show admissibility or qualify for a waiver.

U Visa Qualifying Victims

The following qualify as victims for a U Visa:

• The victim immigrant who suffered direct and proximate harm as a result of the commission of qualifying criminal activity;
• Indirect victim family members where the direct victim is deceased due to murder or manslaughter or is incompetent or incapacitated and where the family is the spouse and children under 21, and if the direct victim was under 21, his or her siblings under 18 and parents as well as spouse and children;
• Where the person is the victim of witness tampering, obstruction of justice or perjury, including attempt, solicitation or conspiracy to commit one or more of those offenses if he or she has been directly and proximately harmed by the perpetrator of those crimes and the perpetrator committed them as a means to avoid or frustrate efforts to investigate, arrest, prosecute or otherwise bring to justice the perpetrator for other criminal activity or to further the perpetrator’s abuse or exploitation of or undue control over the petitioner;
• A person who is culpable for the qualifying criminal activity being investigated or prosecuted is excluded.

Family members who accompany or follow to join are eligible for U-2 (spouse), U-3 (child), U-4 (parent) and U-5 (unmarried sibling) Visas. Family members are the spouse and children (under 21) of the U-1 where the U-1 is 21 or over. Where the U-1 is under 21 then family members include, spouse, children, parents, and unmarried siblings (under 18).

Evidence of the relationship, and a waiver if necessary, must accompany the petition. In addition, a qualifying family member may apply for an immigrant visa even if the qualifying family member never obtained a U Visa, as long as the relationship to the principal exists at the time of the U-1 principal’s adjustment of status (discussed below) and the qualifying family member or principal would suffer extreme hardship.

Deferred Action, Employment Authorization, and Processing Times

The number of U Visas requested each year generally exceeds the 10,000 annual limit, so there is usually a waiting list for the U visa.

USCIS has recently stated that the time it takes from filing a U application with USCIS to being placed on the waiting list is about 4-5 years. The time it takes from being placed on the waiting list until final adjudication of the U visa is about 10-12 months.

USCIS will grant deferred action or parole to U Visa petitioners and qualifying family members while the petitioner is on the waiting list. Employment authorization will also be granted on a discretionary basis to people on the waiting list. Bona fide determination, as discussed below, work authorizations and deferred action are valid for 4 years, and USCIS may renew the application if USCIS doesn’t make a decision during that time frame. Upon approval of the U Visa, the U Visa holder will be authorized to work as a result of their status upon receiving documentation from USCIS, I-765 Application for Employment Authorization.

Bona Fide Determination Process

The USCIS has implemented a “bona fide determination process” where USCIS officers conduct an initial review of a U Visa petition in order to provide employment authorization and deferred action while the petitioner waits for a decision on the U visa. After the principal is approved for these benefits, the officer will turn to the dependent relatives. Applicants are then placed in a queue in receipt date order to await final adjudication of U Visa status.

A U Visa will be deemed bona fide if a USCIS officer finds that:

• The petitioner properly filed Form I-918;
• The petitioner included a properly completed Form I-918B;
• The petitioner included a personal statement describing the facts of the victimization; and
• USCIS has received the results of the principal petitioner’s background and security clearances based on biometrics.

The new process applies to all U Visas pending as of June 14, 2021, as well as U Visas for qualifying family members filed after that date but based on earlier approved I-918s. This process does not apply to people outside of the U.S. since they cannot be provided deferred action or employment authorization.

Broad Waiver

Applicants for a U visa/status must be admissible, except public charge. However, all grounds of inadmissibility except INA §212(a)(3)(E) [Nazis, genocide, or torture or extrajudicial killings] are waivable by the Department of Homeland Security if in the public or national interest. This includes bars based on unlawful presence. There is no appeal from the discretionary denial of the waiver.

Adjustment of Status – Lawful Permanent Residency

U Visa holders can apply to adjust status to permanent residency if:

1. They lawfully admitted in U status;
2. They continue to hold U status at the time of filing adjustment of status [or accrued at least 4 years in U interim status (i.e., deferred action and employment authorization) and files adjustment of status within 120 days of U Visa approval];
3. They were continuously physically present for three years since being admitted in U status;
4. The U nonimmigrant is not inadmissible due to participating in genocide, torture, or extrajudicial killings;
5. They have not unreasonably refused to provide assistance to law enforcement agencies in regard to criminal activity that led to U status;
6. Their presence in the U.S. is justified on humanitarian grounds, to ensure family unity, or is in the public interest.

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