Benefits of U Status

 

Introduction

u-1 visaThis article will be about the benefits of being on U Visa status, rules for maintaining U status, and the process of adjusting from a U Visa to lawful permanent resident (LPR) status. For information about U Visas in general, the rules for who is eligible for U Visas, and guidelines for applying for U Visas, please see our detailed article on those subjects.

Benefits of U Status

U-1 Visas admit the beneficiary for up to 4 years' residence in the aggregate on U status in the United States.1 Derivative U Visas may be initially approved for up to the initial expiration date of the principal U-1 Visa holder's U-1 Visa.2 After 3 years on U status, a U Visa holder is eligible for adjustment to LPR status.3

Persons who obtain U-1 Visas are automatically issued Employment Authorization Documents (EADs) along with their U-1 Visas (however, if a person is granted a U-1 Visa abroad, he or she will be issued an EAD only once admitted into the United States).4 Derivative U Visa holders are similarly eligible for employment authorization as a benefit of a derivative U Visa, but they must file a Form I-765, Application for Employment Authorization,5 in order to receive an EAD.6 The Form I-765 may be filed concurrently with the Form I-918, Supplement A, when initially applying for a derivativeU Visa.7 If a U Visa holder needs a new EAD for any reason, he or she must file a Form I-765 to obtain a replacement.

Scenarios in Which U Status May be Revoked

An approved U-1 petition will be revoked if the U-1 petitioner informs USCIS that he or she will not seek admission into the United States.8 It also may be revoked if the certifying official withdraws or disavows the law enforcement certification in writing, if the approval was in error, or if there was fraud in the petition.9 For derivative U Visa holders, an approved petition may be revoked if the derivative U's relationship to the principal is terminated or if the principal U's approved petition is revoked.10 In the case of a discretionary decision to revoke, the U Visa holder will have 30 days to appeal the decision to the Administrative Appeals Office (AAO).11 If the petition is ultimately revoked, waivers for grounds of inadmissibility that were provided in the application process for the U Visa will also be revoked, and the former U Visa holder may be subject to removal proceedings.12

Extending U Status

U-1 Visa holders may receive 1-year extensions of status if the certifying official determines that the U-1 Visa holder's presence in the United States is necessary for the investigation or prosecution of the crime.13 In this case, the certifying official must submit a new Form I-918, Supplement B, and the U-1 Visa holder must submit a Form I-539, Application to Extend/Change Nonimmigrant Status.14 Furthermore, U Status is extended if the U-1 Visa holder has pending adjustment of status proceedings under INA § 245(m).15 Both extensions may be granted even if the U-1 Visa holder is out of status.

Derivative U Visa holders are eligible for extensions of status beyond the expiration date of the principal's if they were unable to enter the United States in a timely fashion due to delays in consular processing, and the extension is required in order to accrue three years on U status for purposes of adjustment of status.16

Adjustment of Status

For Principal U

If it is determined that a U-1 Visa holder unreasonably refused to provide assistance to the criminal investigation or prosecution for which he or she was issued a U-1 Visa, he or she will not be eligible for adjustment of status pursuant to INA § 245(m).17 If it is alleged that the U-1 Visa holder refused reasonable requests to assist law enforcement, United States Citizenship and Immigration Services (USCIS) will examine the totality of circumstances to determine whether the refusal should render the U-1 Visa holder ineligible for adjustment of status.18

In addition, the U-1 Visa holder will be ineligible for adjustment of status if:

  • The U status is revoked;19 or
  • He or she departed the United States for any single period of at least 90 days during the requisite period on U status, or for 180 days in the aggregate, unless the law enforcement agency that certified the I-918, Supplement B, attests that the absences were necessary for the criminal investigation or prosecution, or were otherwise justified;20 or
  • USCIS determines that there are compelling factors (usually grounds that would normally render an applicant for adjustment inadmissible) that weigh against exercising discretion in favor of granting the application to adjust status.21

Provided that none of the above factors apply to a U-1 Visa holder applying for adjustment of status, USCIS may grant the adjustment of status application if the U-1 Visa holder accrued at least three years of continuous physical presence in the United States, and if the continued presence of the U-1 Visa holder is justified on humanitarian grounds, to ensure family unity, or is otherwise deemed to be in the public interest.22

In order to apply for adjustment of status, the applicant must file:

  • Form I-485, Application to Register Permanent Residence or Adjust Status;23 and
  • Passport showing all departures from the United States and subsequent returns; also
  • A certificate from investigating authority if there were any absences of more than 90 consecutive days or 180 days in the aggregate; and
  • A Form I-94, Arrival/Departure Record, and evidence of lawful admission under U status; and
  • Evidence of law enforcement organization request for assistance along with response; and
  • Evidence (including an affidavit) of at least 3 years of physical presence on U status;
  • Evidence that applicant should be granted adjustment of status on humanitarian grounds, to ensure family unity, or in the public interest; also
  • Evidence that discretion should be exercised in favor of the applicant's application due to “exceptionally and extremely unusual hardship” that would result if it is denied, if the applicant has adverse factors stemming from a conviction for a serious violent crime, sexual abuse of a child, multiple drug crimes, or if there are terrorism-related concerns pertaining to the applicant; and
  • Evidence that the applicant continued to assist the investigation or prosecution of the crimes he or she was issued a U-1 Visa in order to assist with (this may be a new Form I-918 or other documentation and an affidavit describing the applicant's assistance).24

If a U-1 petition for adjustment of status is denied, the petitioner may file an appeal only with the AAO.25 During the pendency of an appeal, the applicant will be ineligible to obtain or renew employment authorization.26

While on U status, it is important for applicants to continue cooperating fully with the investigation or prosecution of the crime that they were issued a U-1 Visa in order to assist with. Failure to do so will in most cases render the U-1 Visa holder ineligible for adjustment of status. In addition, a U-1 Visa holder should never leave the country for 90 consecutive days, or 180 days in the aggregate, without express approval from the law enforcement agency he or she is assisting.

While the only grounds of inadmissibility that automatically bar a U-1 Visa holder from adjustment are those in INA § 212(a)(3)(E) [and this is unlikely to come up in an adjustment proceeding since those grounds, most commonly participation in persecution abroad or extrajudicial killings, would also bar someone from obtaining U status in the first place], the grant of adjustment of status is discretionary. Therefore, anything that would otherwise be grounds of inadmissibility, especially the ones listed above that require the demonstration of “exceptionally and extremely unusual hardship,” may be weighed against granting the applicant adjustment of status.

Finally, the applicant will be required to demonstrate that his or her adjustment of status is justified on humanitarian grounds, to ensure family unity, or is in the public interest. An experienced immigration practitioner will help an applicant determine, based on his or her circumstances, which of these grounds (or combination thereof) will make the most compelling case for the exercise of favorable discretion in granting adjustment of status.

For Derivative U Visa Holders and Family Members without U Status

Derivative U Visa  holders may petition for adjustment of status independently of the principal, provided that they have accrued at least three years of presence on U status and generally have the same qualifications as are required for U-1 applicants to be granted adjustment of status.27 Derivative U Visa holders may apply for adjustment even if the principal U Visa holder dies, provided that he or she resided in the United States at the time of the principal's death, and that he or she continues to reside in the United States upon filing for adjustment.28

The denial of a derivative U Visa holder's application for adjustment of status is only reviewable if the principal U Visa holder has not been denied for adjustment of status.29

In special cases, a spouse, child, or parent (if the U-1 Visa holder is less than 21 years of age) may apply for adjustment of status even if he or never obtained a derivative U Visa. In order to be approvable, the family member must demonstrate denial of adjustment of status would cause “extreme hardship”30 both to him or herself and to the U-1 Visa holder.31 The bar for approval is demonstrating “exceptionally and extremely unusual hardship” if there are severe adverse factors that would weigh against granting adjustment of status.32 If the family member is not in the United States and will not be in the United States before the U-1 Visa holder's status is set to expire, the U-1 Visa holder may request an extension of status and ask that it also be applied to the family member such that the family member would be eligible to apply for adjustment.33

In order to apply for adjustment for a family member who never had derivative U status, the principal must file a Form I-929 on behalf of the family member, either separately or concurrently with his or her application to adjust status.34 Provided that it is approved, the family member may apply for either an immigrant visa or adjustment of status.35

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  1. 8 C.F.R. § 214.14(g)
  2. Id.
  3. INA § 245(m)
  4. 8 C.F.R. § 214.14(c)(7); Kurzban 1053, citing INA § 214(p)(3)(B). Section 201 of the Wilberforce Act, supra, [“The Secretary may grant work authorization to any alien who has a pending bona fide application for” U status].
  5. Follow link for USCIS page on the Form I-765
  6. 8 C.F.R. § 214.14(f)(7)
  7. Id.
  8. 8 C.F.R. § 214.14(h)(1)
  9. 8 C.F.R. §§ 214.14(h)(2)(i)(A)-(C)
  10. 8 C.F.R. §§ 214.14(h)(2)(i)(D)-(E)
  11. 8 C.F.R. §§ 214.14(h)(2)(ii)
  12. 8 C.F.R. §§ 214.14(h)(4), (4)(i)
  13. 8 C.F.R. § 214.14(g)(2)(ii)
  14. See link for USCIS page on the Form I-539
  15. S. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1053, citing INA § 245(m). AFM 39.1(g)(2)(B); AFM 39.1(g)(3)
  16. 8 C.F.R. § 214.14 (g)(2)(i); Kurzban 1053, citing Policy Memo, USCIS, Extension of Status for T and U Nonimmigrants, PM 602-0032.1 (Apr. 19, 2011), published on AILA InfoNet at Doc. NO. 11042034 at 3.
  17. Kurzban 1055, citing 8 C.F.R. § 245.24
  18. Kurzban 1055, citing AFM 23.5(o)(1)(C) [explaining that USCIS may consult with the Attorney General]. 73 FR at 75547
  19. Kurzban 1055, citing 8 C.F.R. § 245.24(c)
  20. Kurzban 1055, citing 8 C.F.R. § 245.24(a)(1)
  21. Kurzban 1055, citing 8 C.F.R. § 245.24(l). Grounds of inadmissibility under INA § 212(a)(3)(E) would render applicant ineligible for adjustment. 8 C.F.R. § 245.24(d)(11) [explaining that USCIS may consider “all factors, including acts that would otherwise render the applicant inadmissible].
  22. Kurzban 1055
  23. Follow link for USCIS page on the Form I-485
  24. For the list; Kurzban 1056, citing 8 C.F.R. § 245.24(d)
  25. Kurzban 1057, citing 8 C.F.R. §§ 245.24(f)(2), (i)(2), (k)
  26. Kurzban 1057, citing 8 C.F.R. § 245.24(k)
  27. Kurzban 1056, citing 8 C.F.R. § 245.24(b)(2)
  28. Kurzban 1057, citing INA § 204(l)(2)(E)
  29. Kurzban 1057, citing 8 C.F.R. §§ 245.24(f)(2), (i)(2), (k)
  30. Kurzban 1057, citing 8 C.F.R. § 245.24(h)(iv) [for a list of factors that may demonstrate “extreme hardship” in this scenario: nature and extent of abuse suffered by U-1; impact of loss of access to the U.S. criminal justice system; likelihood that victimizer would harm family member in home country; need for services in the United States not available in home country; inability to safely travel to home country; age].
  31. Kurzban 1056, citing INA § 245(m)(3); 8 C.F.R. §§ 245.24(g), (h)
  32. Kurzban 1057
  33. Kurzban 1057 citing 8 C.F.R. § 245.24(h). Policy Memo, USCIS, Extension of Status for T and U Nonimmigrants, PM-602-32.1 (Apr. 19, 2011), published on AILA InfoNet at Doc. No. 11042934 at p.9
  34. Kurzban 1056
  35. Id.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1053-1057, Print. Treatises & Primers.