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Potential Avenues for Relief for Exceptional U-Visa Processing Backlogs

By February 22, 2022Immigration
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A U-Visa is relief in the form of prosecutorial discretion from removal granted to noncitizens with no lawful status in the United States which includes work authorization. The benefit is granted for four years granting the noncitizen the ability to apply for a green after possessing U-Visa status for a period of three years. To qualify, the noncitizen must have been a victim of a qualifying crime or criminal activity and assist in the investigation or prosecution of the crime. After, an authorized law enforcement officer or prosecutor must be willing to sign a certification of cooperation by the U-Visa applicant to submit to the immigration service, “USCIS” with the U-Visa application. You can read more on U-Visa eligibility requirements here.

One of the major issues faced by U-Visa applicants in recent years is the terrible backlog that has occurred, creating delays of processing and adjudication of applications of up to five years. The backlogs are so significant that USCIS, does not even post processing times for the application on its case processing website. Despite the frustration caused by these backlogs, USCIS has taken a couple of steps to attempt to alleviate the difficulties caused to applicants by these backlogs.

The Waiting List

Part of the reason for the backlogs is created by the fact that U-Visa applications are subject to an annual cap that is usually filled within the immigration fiscal year. In order to grant potentially eligible applicants some benefit while awaiting adjudication of their application, USCIS created a system where USCIS conducts a complete review of the application to determine if the application meets all the statutory requirements for a U-Visa by a preponderance of the evidence.

A case that is placed on the waiting list is one where the applicant is considered eligible for the status, but not granted status due solely because of the cap. Keep in mind that although applicants placed on the list are typically approved, approval is not guaranteed.

In reviewing a case for waiting list placement, officers:

  • Will perform a full evaluation of eligibility requirements which includes, but is not limited to
    • Determining whether the applicant was the victim of a qualifying crime or criminal activity;
    • Determining whether the applicant has established substantial mental and physical abuse;
    • Reviewing the U-Visa certification to evaluate all details regarding the criminal activity
    • Determining whether the applicant is subject to being disqualified based on an inadmissibility ground and determining if such a ground is eligible for a waiver.
  • Furthermore, a reviewing officer will consider:
    • An applicant’s criminal history and if there has been any serious immigration violations;
    • Whether an applicant poses a national security or public safety risk;

If after review, the officer determines eligibility for the waiting list, a notice is issued that is mailed to the applicant informing the applicant that he is now eligible for work authorization based on deferred action, so that the applicant can file a work authorization application. Work authorization is issued for a period of four years that may be renewed.

In the event that the applicant is considered ineligible for waiting list placement, USCIS will issue a request for evidence or notice of intent to deny letter giving the applicant an additional opportunity to submit additional evidence to address the deficiency in the case. If after reviewing the additional evidence, the reviewing officer decides that the applicant has not established eligibility, the officer will issue a denial notice.

If the case is placed on the waiting list, then as previously stated, the case is likely to be approved subject to the annual cap limitations. Keep in mind that a denial could result if the reviewing officer comes upon new information that potentially makes the applicant ineligible.

Waiting list reviews are generally performed at the same time for the principal applicant and any derivatives.

Bona Fide Determination

This is a process where USCIS conducts an initial review of an application to determine whether the application was properly filed under U-Visa filing requirements. Note this is not a full review of the application like the waiting list review. However, the review does include a review of the applicant’s background check to determine whether the applicant merits a positive exercise of discretion and that the applicant does not pose a risk to national security or public safety.

If after this preliminary review, the officer is satisfied that the applicant meets all preliminary requirements and that the applicant warrants a positive exercise of discretion, the officer will either issue an employment authorization document for four years or send notice that the applicant is eligible to receive work authorization. If the applicant had not submitted a work authorization application with the U-Visa application, USCIS will issue a notice that the applicant is eligible, so that the applicant can file the work authorization application.

If the officer is not satisfied that the applicant warrants a Bona Fide determination, the officer proceeds to perform a complete review of the application to determine whether to place the application on the previously mentioned waiting list.

Bona Fide determination reviews are first performed for the principal applicants and then performed on any derivative family members. In order for a derivative family member to qualify for the Bona Fide determination, the principal applicant must have been approved for the Bona Fide determination.

Application Process

Neither process has an application process. The review process for the Bona Fide determination and if necessary, the subsequent Waiting List review is conducted as soon as USCIS can get to an application waiting in line for review. If there is a positive determination for either benefit, USCIS will either issue the work authorization and/or a notice that the applicant is eligible for the work authorization. Keep in mind that the first review is for the Bona Fide determination and if not granted, the second review is for the waiting list.

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