A. Determination of U Nonimmigrant Status for A Petitioner Granted A Bona Fide Determination Employment Authorization Document and Deferred Action

A Bona Fide Determination Employment Authorization Document (BFD EAD) and grant of deferred action does not guarantee eligibility for U nonimmigrant status at the time a visa becomes available in a given fiscal year under the statutory cap.

Officers perform a full file review to determine eligibility for U nonimmigrant status for petitioners granted employment authorization and deferred action, as a matter of discretion, through the BFD process.

USCIS determines eligibility for U nonimmigrant status on a case-by-case basis. Officers:

1. Perform a full evaluation of eligibility requirements, which includes but is not limited to:
   1. Determining whether the petitioner was the victim of qualifying criminal activity or qualifying crime (QCA);
   2. Analyzing evidence submitted to establish substantial mental and physical abuse;
   3. Assessing the U Nonimmigrant Status Certification (Form I-918, Supplement B) law enforcement certification for all details regarding the QCA;
2. Complete a full review of background checks; and
3. Determine whether any applicable inadmissibility grounds are waivable in the exercise of discretion, which includes a detailed, individualized assessment for principal petitioners and qualifying family members who have one or more applicable grounds of inadmissibility.^[1]

Petitioners and qualifying family members seeking U nonimmigrant status who USCIS determines are inadmissible,^[2] and do not warrant the favorable exercise of discretion to waive such inadmissibility, are generally ineligible to receive visas or be admitted to the United States. USCIS may exercise its discretion to deny waiver requests in the following circumstances:^[3]

1. Aliens with criminal histories and serious immigration violations;
2. Aliens who pose a national security or public safety risk;
3. Aliens determined to have committed fraud or misrepresentation; or
4. For any other reasons that USCIS deems necessary and appropriate.

B. Determination of U Nonimmigrant Status for Petitioners Placed on the Waiting List

Although officers fully evaluate a petition for placement on the waiting list, officers conduct an additional review of the petition and update background checks to establish continuing eligibility before approving the petition when a visa becomes available in a subsequent fiscal year.

If the principal petitioner or qualifying family member has failed to establish one of the eligibility requirements, USCIS issues a Request for Evidence (RFE) to the petitioner. Petitioners have the opportunity to submit additional information to address deficiencies or concerns identified in the RFE.

Placement on the waiting list does not guarantee a grant of U nonimmigrant status. USCIS may deny a petition for U nonimmigrant status if USCIS determines the petitioner is ineligible. For example, officers may deny a petition for U nonimmigrant status where acts of criminality or immigration violations occurring after a petitioner was placed on the waiting list trigger inadmissibility grounds and USCIS does not favorably exercise its discretion to waive those grounds. Officers may also deny a petition where a certifier has withdrawn the Form I-918, Supplement B after USCIS placed the petitioner on the waiting list.

C. Order of Adjudication

Neither Congress nor USCIS anticipated filings to significantly exceed the statutory cap every year. The waiting list was first created as an intermediate mechanism for a small number of petitioners who could not be granted U nonimmigrant status in a fiscal year due to the limited number of visa numbers allotted under the statutory cap.^[4] The BFD process was created as an additional mechanism to provide petitioners with bona fide petitions with employment authorization and deferred action, which are benefits equal to those accorded to petitioners placed on the waiting list.

Although current regulatory language notes the prioritization of petitioners placed on the waiting list for grants of U nonimmigrant status under the statutory cap as visas become available,^[5] the regulation also clearly envisions “the oldest petitions receiving the highest priority” for such visa numbers.

To best reconcile these regulatory provisions with the BFD policy, and to maintain fairness between petitioners placed on the waiting list and petitioners issued BFD EADs, USCIS prioritizes all petitions for adjudication of U nonimmigrant status under the statutory cap in the order they were received, ensuring older petitions maintain their priority over newer petitions.

Consequently, when U nonimmigrant visas become available each fiscal year, USCIS draws from both BFD recipients and waitlisted petitioners, in order of filing date with the oldest filings receiving highest priority, to meet the statutory cap.

D. Decision

1. Approval

Petitioners Living Inside the United States

Upon approval, principal petitioners and their qualifying family members living in the United States receive a grant of U nonimmigrant status, valid for a period of no more than 4 years.

Principal Petitioners

After USCIS approves U nonimmigrant status for a principal petitioner living in the United States, USCIS notifies the petitioner of such approval by issuing a Notice of Action (Form I-797). USCIS also includes an Arrival-Departure Record (Form I-94), indicating U-1 nonimmigrant status.

Principal petitioners living in the United States receive employment authorization incident to a grant of U nonimmigrant status.^[6] However, petitioners living outside the United States do not receive an initial employment authorization document until they have obtained a U nonimmigrant visa at a U.S. consulate or embassy and have been admitted to the United States as a U nonimmigrant.

Qualifying Family Members

USCIS may not approve U nonimmigrant status for a qualifying family member unless USCIS has granted the principal petitioner U nonimmigrant status.

When USCIS approves a Petition for Qualifying Family Member of a U-1 Recipient (Form I-918, Supplement A) for a qualifying family member living in the United States, it concurrently grants that petitioner U-2, U-3, U-4, or U-5 nonimmigrant status.

USCIS issues the Form I-797 regarding the approval of U-2, U-3, U-4, or U-5 nonimmigrant status to the principal petitioner. USCIS also issues a Form I-94 indicating U-2, U-3, U-4, or U-5 nonimmigrant status.

Qualifying family members must submit a fee or a Request for Fee Waiver (Form I-912) for an Application for Employment Authorization (Form I-765) associated with a grant of U nonimmigrant status.^[7]

Petitioners Living Outside the United States

After USCIS approves U nonimmigrant status for a principal petitioner or qualifying family member living outside the United States, USCIS notifies the principal petitioner of such approval on Form I-797. USCIS also forwards the notice to the U.S. Department of State (DOS).

DOS communicates the approval to the U.S. embassy or consulate with jurisdiction over the area in which the principal petitioner or qualifying family member is located. DOS communicates the approval to the appropriate port of entry for principal petitioners or qualifying family members who are from countries that are exempt from visa requirements.^[8] The approved petitioners and qualifying family members may then seek admission to the United States as U nonimmigrants at a designated port of entry.

2. Denial

USCIS provides written notification to the principal petitioner, listing the reasons for the denial of a Petition for U nonimmigrant status (Form I-918), and a Form I-918 Supplement A, where applicable.^[9] A principal petitioner may request USCIS to reconsider the denial by filing a Notice of Appeal or Motion (Form I-290B).

Alternatively, the principal petitioner may appeal the denial to the Administrative Appeals Office (AAO).^[10] If a principal petitioner pursues an appeal, the denial of U nonimmigrant status is not deemed administratively final until the AAO issues a decision affirming the denial.

The denial of a petition for U nonimmigrant status automatically lifts any stay of removal based on the U nonimmigrant status petition as of the date the denial becomes administratively final for a principal petitioner or qualifying family member subject to an order of removal, deportation, or exclusion.

Footnotes

[^ 1] Congress granted DHS the discretionary authority to waive most inadmissibility grounds for an alien seeking U nonimmigrant status if it is in the public or national interest to do so. See INA 212(d)(3)(A)(ii). See INA 212(d)(14) (authorizing the waiver of any inadmissibility ground except for participation in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].

[^ 2] See INA 212(a).

[^ 3] See 8 CFR 212.17.

[^ 4] See 72 FR 53013 (PDF), 53033 (Sept. 17, 2007) (estimating USCIS would receive 12,000 principal petitions per year). See Number of Form I-918, Petition for U Nonimmigrant Status By Fiscal Year, Quarter, and Case Status (Fiscal Years 2009-2020).

[^ 5] See 8 CFR 214.14(d)(2) (“After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U–1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed.”).

[^ 6] See 8 CFR 274a.12(c).

[^ 7] See 8 CFR 274a.12(a)(20).

[^ 8] See DOS’s Visa Waiver Program webpage.

[^ 9] See 8 CFR 103.3(a)(1).

[^ 10] See 8 CFR 103.3.