Extension of Status for Derivative U Nonimmigrants for AOS Eligibility

 

Introduction: E/S for Derivative U Nonimmigrants for AOS Eligibility

Derivative U NonimmigrantOn June 22, 2010, the United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum titled “Extension of U Nonimmigrant Status for Derivative Family Members Using the Application to Extend/Change Nonimmigrant Status (Form I-539),” PM-602-0001 [PDF version] (“The Memorandum”). The Memorandum added chapter 39.1(g)(2)(i) to the USCIS's Adjudicator's Field Manual (AFM).

The Memorandum, among other matters, explains when the USCIS can approve a Form I-539, Application to Extend/Change Nonimmigrant Status extension of status request filed by a derivative U nonimmigrant whose initial period of stay is less than four years. Such a request may be made for purpose of establishing eligibility for adjustment of status when the derivative U nonimmigrant would be unable to meet the three-year continuous physical presence requirement for adjustment of status eligibility.

In this article, we will review the Memorandum and its policy guidance. Please see our article on extensions of status for U nonimmigrants in general in order to learn about other situations in which an extension may or must be granted [see article]. Please see our collection of articles on U visas to learn about the purpose of the U nonimmigrant visa category and the rules surrounding it [see category].

Overview of the Memorandum

In regulations found in 8 C.F.R. 214.14(g)(2), a derivative U nonimmigrant may seek an extension of status beyond the period authorized for the principal when he or she has been unable to enter the United States timely due to a delay in consular processing. Such an extension request must be filed on the Form I-539. The extension may be sought only after the U nonimmigrant is admitted. The reason for such an extension is that, normally, a U nonimmigrant cannot be granted for a period in excess of four years in the aggregate on U nonimmigrant status. However, in order to be eligible for adjustment of status, the U nonimmigrant must accrue three years of continuous physical presence in the United States on U nonimmigrant status [see article]. Thus, an extension may be granted in this scenario to ensure that the derivative U nonimmigrant can accrue the requisite presence in the United States for adjustment of status purposes. Although the extension thus allows the derivative U nonimmigrant's status to be extended beyond that of the principal's, it must be noted that the derivative's extension cannot grant him or her more than an aggregate of four years in the United States on U nonimmigrant status.

The Memorandum explains that the regulations are silent on whether the USCIS may approve such an extension for a derivative if it is needed for reasons other than a delay in consular processing. The Memorandum lists other reasons why a derivative U nonimmigrant may require such an extension in order to meet the physical presence requirement for adjustment of status as a U nonimmigrant:

  • Delays in promulgating U nonimmigrant regulations;
  • Delays in clarifying fee waiver authority for required inadmissibility waivers; and
  • Multi-track processing of principal and derivative petitions.

For this reason, the Memorandum clarified that the USCIS may consider “delays other than consular processing as a valid basis for an extension of status” for a derivative U nonimmigrant. It reaffirms that such an extension does not permit a U nonimmigrant to have his or her status extended such that he or she is granted more than four years of U nonimmigrant status in the United States in the aggregate.

The Memorandum notes that both the statutes and regulations regarding U nonimmigrants “appear to contemplate treating the U principal and U derivatives separately once the U derivative has been initially admitted in U nonimmigrant classification.” This is indicated by the fact that the statutes and regulations regarding adjustment of status for U nonimmigrants describe U nonimmigrants in general and do not distinguish between the principal and derivative U nonimmigrants.

In order to seek an extension, the derivative U nonimmigrant must file the Form I-539, justification for the extension, filing fee (or fee waiver request [see article]), and supporting documents with the Vermont Service Center (VSC). The Memorandum states that the following should be included with the Form I-539 as supporting evidence:

  • Evidence of U status for both the principal and derivative, showing all dates in such status;
  • Evidence of adjustment of status of the principal (if applicable);
  • Evidence of the applicant's qualifying relationship with the principal; and
  • The applicant's statement of need and reason(s) for seeking the extension.

It is important to restate that an extension of status may only be granted to a derivative U nonimmigrant who has already been admitted into the United States. An extension cannot be granted to a derivative U nonimmigrant awaiting admission because he or she has not yet been admitted in U nonimmigrant status. Please see our full article on extensions of status for U nonimmigrants to learn about options available when the principal's U nonimmigrant status is set to expire and a qualifying relative or qualifying relatives are awaiting initial admission in U nonimmigrant status [see article].

Conclusion

Under certain circumstances, the USCIS may allow a derivative U nonimmigrant to extend his or her status beyond the expiration of the principal's status such that he or she may accrue the requisite period of continuous physical presence in the United States. Although this would most commonly occur in the case of a derivative U nonimmigrant who encountered delays in consular processing, the Memorandum allows the USCIS to consider granting an extension for reasons other than a delay in consular processing. It should be noted, however, that such extension requests will be evaluated on a case-by-case basis with emphasis on determining whether the circumstances merit such an extension.

In general, a principal U nonimmigrant and any associated derivatives should consult with an experienced immigration attorney while on U nonimmigrant status. An experienced immigration attorney will be able to assess each case individually and help the family work to ensure that both the principal and all derivatives understand the requirements for eventually applying for and being granted adjustment of status.