What legal status do I have while I am waiting for the government to review my U visa application?
It will likely take years to get your U visa from the day that you apply for it. As of June 2021, the USCIS website reported that they were reviewing applications that were filed in 2016, five years before. However, any application filed now would likely take much longer than five years to be reviewed because thousands more applications have been filed since 2016 and are already ahead of you in line waiting to be reviewed. One reason it takes so long is that Congress limited the number of U visas the government can give out to 10,000 per year,1 but far more than 10,000 people apply for U visas each year, so the line of applications waiting to get reviewed gets longer and longer every year.
Because it is taking so long for the government to review U visa applications, USCIS may give you a work permit and deferred action while you wait for a final decision. Deferred action is not an immigration status, but it allows USCIS to give you a work permit so you can work legally while you wait for a decision on your U visa. Having deferred action also means that the government thinks you are a low priority for deportation, so it is less likely that you will be deported while you wait for your U visa.
There are two ways to get a work permit and deferred action: (1) through a bona fide determination;2 or (2) through the waitlist:3
Bona fide determination
For the bona fide determination, USCIS does a basic review of your application to see if the Form I-918 (U visa application form) and Form I-918 Supplement B (law enforcement certification) were complete and properly filed. In addition, they will make sure that you provided a personal statement about the crime, and they will run a criminal background check on you. Based on your criminal background check and any other information in your file about your criminal and immigration record, USCIS will weigh the pros and cons of giving you a work permit and deferred action. If the pros outweigh the cons, USCIS will give you a work permit and deferred action for four years, which you can renew until your U visa is finally decided. USCIS will not give you a bona fide determination and work permit if any of the following are true:
- your Form I-918 or Form I-918 Supplement are not complete and properly filed;
- you do not provide a personal statement;
- you do not complete your biometrics (fingerprints); or
- USCIS believes you are a threat to public safety or national security.
If your derivative family members are in the United States, USCIS can also give them a work permit and deferred action. Your derivatives would need to show that their Form I-918 Supplement A (derivative application form) was complete and properly filed and that they have a qualifying relationship to you; in other words, they must show evidence that they are your spouse, child under 21, or if you were under 21 when you filed your U visa, that they are your parent or unmarried sibling under 18. USCIS will also do a criminal background check on them and weigh the pros and cons before deciding whether to give them a four-year work permit and deferred action. USCIS will not give your family members a bona fide determination and work permit if any of the following are true:
- you (the primary applicant) do not also receive a bona fide determination;
- their Form I-918 Supplement A is not complete and properly filed;
- they do not include evidence of their relationship to you;
- they do not complete their biometrics (fingerprints); or
- USCIS believes your family members are a threat to public safety or national security.
If after doing a basic review of your application, USCIS decides not to give you a work permit through the bona fide determination, they will do a full review of your application. If they think that they are likely to approve your U visa application but they have run out of visas to give out in the current year, they will put you on a waitlist and give you a work permit and deferred action for four years, which you can renew until a U visa is available for you. USCIS will also put your derivatives on the waitlist and give them deferred action and a work permit if USCIS thinks it is likely to approve your derivatives’ applications.
It may take USCIS several years to complete either a bona fide determination or waitlist review of your case because so many people have applied for U visas and their applications are already waiting in line. While you are waiting for the bona fide determination or waitlist, you will not have a work permit or any legal status or protection from deportation.
Many attorneys are now seeking help from federal courts to get U visa applicants their work permits faster and to stop Immigration and Customs Enforcement (ICE) from deporting U visa applicants who are waiting for the government to decide their cases. If your attorney is considering filing in federal court, please first ask your attorney to contact ASISTA, a national non-profit specializing in immigration law, for help with this.