- Introduction: Guidance for Extension of Status and Adjustment of Status for U Nonimmigrants
- Guidance in the Memorandum
On October 4, 2016, the United States Citizenship and Immigration Services (USCIS) published a Policy Memorandum (PM-602-0032.2) titled “Extension of Status for T and U Nonimmigrants (Corrected and Revised)” (“The Memorandum”) [PDF version]. The Memorandum, which revises both chapters 39.1 and 39.2 of the USCIS's Adjudicator's Field Manual (AFM), serves to rescind and replace a previous Policy Memorandum (PM-602-0032.1) titled “Extension of Status for T and U Nonimmigrants; Revisions to Adjudicator's Field Manual (AFM) Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update AD11-28),” issued on April 19, 2011.
The key revisions in the Memorandum pertain to certain rules regarding T nonimmigrants. Please see our full article to learn about all of the Memorandum's provisions and revisions relating to extension of status and adjustment of status for T nonimmigrants [see article]. In this article, we will examine the rules in the Memorandum for U nonimmigrants. Before reading this article, please see our overview of U nonimmigrant status [see article]. Please see our category for Victims of Violence Immigration to learn about T nonimmigrant status, U nonimmigrant status, and many other provisions of the Immigration and Nationality Act (INA) for victims of violence or other serious crimes [see category].
Before we examine the policy in the Memorandum, we must examine the general rules for extensions of status and adjustment of status for U nonimmigrants. To learn about the evidentiary requirements for seeking adjustment of status as a U nonimmigrant, please see our full article [see article].
First, a U nonimmigrant may not be admitted for an initial period of stay in excess of four years in the aggregate. As the Memorandum explains, 8 C.F.R. 214.14(g)(2)(i) provides that a U nonimmigrant may receive an extension of stay if his or her initial period of admission was less than four years. However, the extension may not go beyond that four year period unless there are other circumstances that warrant such an extension.
Under 8 C.F.R. 245.24(b)(2), a U nonimmigrant must meet the following requirements in order to file for adjustment of status:
- Have been lawfully admitted as a U nonimmigrant and continue to hold U nonimmigrant status at the time of the application for adjustment of status; or
- Have accrued at least four years in U interim relief status and file a completed application for adjustment of status within 120 days of the date of the approval of the Form I-918, Petition for U Nonimmigrant Status.
Furthermore, 8 C.F.R. 245.24(b)(3) requires that the U nonimmigrant have been continuously physically present in the United States for at least three years prior to filing for adjustment of status (with an exception if the certifying official certifies that an absence that would otherwise break continuous presence was necessary to the investigation of the underlying criminal activity).
It is important to note that a derivative U nonimmigrant can adjust status separate of the principal. This means, however, that the derivative U nonimmigrant must independently meet the eligibility requirements for adjustment of status.
There are three situations in which a U nonimmigrant may be eligible for an extension of status beyond the statutory four-year limit of U nonimmigrant status.
- Under section 214(p)(6) of the INA, the USCIS must extend U nonimmigrant status if the certifying official or agency investigating or prosecuting the qualifying criminal activity certifies that the U nonimmigrant's presence in the United States is required to assist in the investigation or prosecution of the qualifying criminal activity.
- Section 214(p)(6) gives the Secretary of Homeland Security the discretion to extend U nonimmigrant status if the Secretary determines that the extension is warranted due to “exceptional circumstances.”
- Finally, section 214(p)(6) requires the USCIS to extend U nonimmigrant status while an application for adjustment of status from U nonimmigrant status under section 245(m) is pending. In effect, this means that if the adjudication of a U nonimmigrant's adjustment of status application is still pending, the U nonimmigrant's status will be extended beyond the four-year limit until a final decision is rendered on the application.
Additionally, under 8 C.F.R. 214.14(g)(2)(i), a qualifying family member of a principal U nonimmigrant (defined as someone meeting the eligibility requirements to be a derivative U nonimmigrant) who was unable to enter the United States timely due to delays in consular processing to seek an extension of U nonimmigrant status beyond the expiration of the principal's U nonimmigrant status to ensure that the qualifying family member can accrue the requisite three years of U nonimmigrant status for purpose of adjustment of status. In PM-602-001 (June 22, 2010) [PDF version], the USCIS took the position that derivative U nonimmigrants could apply for such an extension for adjustment of status purposes if needed for certain reasons other than a delay in consular processing. Such an extension for a derivative U nonimmigrant may not allow the derivative to spend more than four years in the aggregate in the United States on U nonimmigrant status. Please see our full article to learn more [see article].
The Memorandum provides guidance for the extension of status for a U nonimmigrant in the various situations discussed in the previous section. In this section, we will review the Memorandum's guidance regarding when a U nonimmigrant may or shall be afforded an extension of status.
A U nonimmigrant must file the Form I-485, Application to Register Permanent Residence or Adjust Status, in order to seek adjustment of status. Provided that the U nonimmigrant properly files the Form I-485 while maintaining lawful U nonimmigrant status, he or she will not be required to file a separate application for extension of status. The USCIS will automatically extend the U nonimmigrant's status beyond the four-year limit if the application for adjustment of status remains in adjudication at that time. A U nonimmigrant who properly files the Form I-485 will receive two Forms I-797, Notice of Action. The first Form I-797 will be a receipt notice for the Form I-485, and the second Form I-797 will indicate the automatic extension of status during the pendency of the adjudication of the Form I-485.
The Memorandum explains that the extension will only be valid until a decision is rendered on the Form I-485. If a U nonimmigrant's status is automatically extended, he or she will continue to be in valid U nonimmigrant status, with all the associated rights, privileges, and responsibilities of such status.
The U nonimmigrant will remain authorized for employment during any extension stemming from a pending Form I-485 adjustment of status application. He or she may use the Form I-797, Notice of Action that indicates the extension of U nonimmigrant status as proof of employment authorization for Form I-9 purposes for up to one year dating from the expiration date of the previous period of U nonimmigrant status (unless the application is denied or withdrawn). The U nonimmigrant may also apply for an Employment Authorization Document (EAD) by filing the Form I-765, Application for Employment Authorization. The Form I-765 may be filed concurrently with the Form I-485.
A derivative U nonimmigrant's status will be extended upon filing a Form I-485 under the same rules as the principal. However, it is important to note that the derivative's status will not be extended based on the principal's pending Form I-485. Instead, the derivative U nonimmigrant must file his or her own Form I-485 when eligible in order to be granted an automatic extension of U nonimmigrant status.
In order to seek an extension of status based on law enforcement need or based on exceptional circumstances, a U nonimmigrant must file the Form I-539, Application to Extend/Change Nonimmigrant Status, along with supporting evidence. The Memorandum explains that the Form I-539 should be filed before the expiration of U nonimmigrant status but not before 90 days prior to the expiration of such status. The USCIS has discretion to grant an extension based upon an untimely filed Form I-539, and it may exercise such discretion on a case-by-case basis. The applicant for an extension must explain, in writing, the reason for the late filing of the application and why he or she merits a favorable exercise of discretion.
When a Form I-539 is properly filed, the applicant will receive a Form I-797 receipt notice for the Form I-539. If the Form I-539 is approved, the U nonimmigrant will receive a Form I-797 indicating the extension of U nonimmigrant status.
An extension based on a Form I-539 will be valid for one year from the date of the end of U nonimmigrant status. However, in the case of a Form I-539 that was filed late, the extension will be valid from the date of the expiration of the previous period of U nonimmigrant status and for one year from the approval of the extension. During the extension period, the U nonimmigrant will be in U nonimmigrant status, with all the associated rights, privileges, and responsibilities of such status.
It is important to note that a qualifying family member may not receive an extension of status before entering the United States in U nonimmigrant status. Such qualifying family members may, however, seek an amended visa approval notice with updated validity dates from the USCIS. In the “Exceptional Circumstances” and “Derivatives” sections, we will explore other options that may be available depending on the facts of a specific case.
In order to seek an extension of status based on law enforcement need, a U nonimmigrant must file the Form I-539, along with supporting evidence. Under statute, the USCIS is required to grant an extension where the certifying law enforcement agency or official certifies that the U nonimmigrant's continued presence is necessary for an ongoing investigation or prosecution.
Supporting evidence will include a new Form I-918 Supplement B, U Nonimmigrant Status Certification, “or other evidence from law enforcement explaining that the applicant's presence is necessary, as well as any other credible evidence.”
In order to seek an extension based on exceptional circumstances, the applicant must file the Form I-539 along with supporting evidence. The evidence should explain the exceptional circumstances and why the applicant merits a favorable exercise of discretion by the USCIS. The Memorandum explains that “[s]uch evidence may include an affirmative statement or any other credible evidence to establish exceptional circumstances.”
The Memorandum states that a principal U nonimmigrant is “strongly encouraged” to seek an extension based on “exceptional circumstances” if a derivative is awaiting the initial issuance of a U visa by a consulate with the principal's status slated to expire. Such an extension would allow the derivative U nonimmigrant to procure initial admission into the United States on U nonimmigrant status. This is important because an individual cannot be admitted as a U nonimmigrant if the principal's status has expire or been adjusted to that of lawful permanent resident. As we explained, per PM 602-001, a derivative U nonimmigrant's status may be extended beyond the principal's for purpose of ensuring that the derivative is able to accrue three years on U nonimmigrant status for purpose of adjustment of status (but not to allow the derivative more than four years in the United States in U nonimmigrant status).
In limited cases, a principal U nonimmigrant who adjusts to lawful permanent resident status may be able to procure admission for an individual who would have otherwise been admissible as a derivative U nonimmigrant while the principal was on U1 status. Such an application is filed on the Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant. The Form I-929 may be filed concurrently with a Form I-485 application for adjustment of status or after the approval of the Form I-485. If approved, the beneficiary of the Form I-929 can apply for a visa at a U.S. consulate to enter the United States as a lawful permanent resident. Please see our full article on the Form I-929 process to learn more about this issue and when a qualifying family member may be eligible [see article].
The Memorandum explains the limited cases in which a U nonimmigrant may be eligible for an extension of status. Besides extensions based on law enforcement need, the cases generally concern pending adjustment of status applications or complicated situations involving qualifying family members for derivative U nonimmigrant status. It is important for a principal U nonimmigrant and any derivative U nonimmigrants to consult with an experienced immigration attorney throughout the entire process. This is especially important if a derivative is seeking admission from abroad, since delays in consular processing may lead to complications in ensuring that the derivative is able to be admitted into the United States and subsequently meet the requirements for adjustment of status. An experienced immigration attorney will be able to assess each case individually and provide guidance in navigating the complicated U visa rules for the maintenance of status, any necessary extensions of status and, ultimately, adjustment of status.
Please see our U category for a collection of materials relating to the U nonimmigrant visa category [see category].