Legal Information: Federal

Immigration

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Updated: 
September 21, 2021

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.

Waitlist
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.

1 INA § 214(p)(2)
2USCIS Policy Manual, Vol. 3, Part C, Chp. 5
3 8 CFR § 214.14(d)(2); USCIS Policy Manual, Vol. 3, Part C, Chp. 5(c)(5)

Can I get deported while I'm waiting for the government to review my U visa application?

If you get put on the U visa waitlist or get a bona fide determination, it is unlikely, but not impossible, that Immigration and Customs Enforcement (ICE) will try to deport you. Once you are on the waitlist or get a bona fide determination, you get “deferred action.”1 This is not a real immigration status but it allows USCIS to give you a work permit.

However, while you are waiting to hear if you get on the waitlist or if USCIS has made a bona fide determination, you will not have any sort of legal status or deferred action, so you could be at risk of deportation. ICE has a policy that if you have a U visa application pending, they will not arrest, detain, or deport you unless they think you are dangerous to other people.2 However, every ICE officer is different, and ICE can change their policy in the future, so it is important to remember that filing a U visa will not necessarily protect you from ICE.

If you are in immigration court currently because the government is trying to deport you, see Can I apply for U visa status if I am in immigration court for deportation (“removal”) proceedings? for more information.

1 8 CFR § 214.14(d)(2); USCIS Policy Manual, Vol. 3, Part C, Chp. 5
2ICE Directive 11005.3, August 10, 2021

If my U visa application gets approved, when can I get lawful permanent residence (a green card)?

You can apply for lawful permanent residence after you have had your U visa for three years and before your U visa expires.1 To get lawful permanent residence, all of the following must be true:

  1. You have been physically in the U.S. for a “continuous period” of at least three years since the date you got U visa status. A “continuous period” means that you cannot leave the U.S. for 90 days in a row or for 180 days in total over the three years, unless the reason you left was related to the criminal investigation or prosecution. (If your U visa was granted when you were outside of the U.S., the three years starts from the day that you come into the U.S. with a U visa.)
  2. If law enforcement asked you for more help related to the criminal investigation or prosecution since you got your U visa, you did not unreasonably refuse to provide that help.
  3. Your continued presence in the US is “justified on humanitarian grounds, to ensure family unity, or it is in the public interest.”2 USCIS will weigh the pros and cons of your case in deciding whether to approve your green card. Generally, if you do not have any negative factors, such as criminal history or significant immigration violations, it will be considered “in the public interest” for you to continue to be in the U.S. and so USCIS will likely approve your green card application.3 If you do have negative factors in your case, USCIS will weigh them as “cons” in deciding your case.

1 INA § 245(m); 8 CFR § 245.24(b)
2 INA § 245(m)(1), (m)(2); 8 CFR § 245.24(b), (c)
3 See Matter of Arai, 13 I&N Dec. 494 (BIA 1970) (“In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion”)

If my U visa application gets denied, will I be deported?

If USCIS denies your request for a U visa, then your status is still the same as it was before you applied. This means that if you are in the country without legal documentation, you are at risk for being detained and deported. In addition, by filing a U visa application, you are providing the government with information about you, and you may be telling them that you are living here without lawful status. However, you will not automatically be put into deportation (“removal”) proceedings just because your application was denied.

If your U visa application gets denied, it might be possible to appeal that decision to a higher, supervisory part of U.S. Citizenship and Immigration Services, or to file a case in federal court. However, federal courts can only review limited types of U visa denials, so you should contact an immigration attorney with experience in U visas to determine what options you may have. The attorney may want to connect with a national organization with immigration expertise, such as ASISTA or another national organization, which can be found on our National Organizations - Immigration page.

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