New Guidelines Make Obtaining a U Visa as a Crime Victim in the U.S. Harder Than Ever

An applicant can expect to wait many years to receive the U visa, if it is ever approved at all, owing to new USCIS and ICE procedures and rules.

** LEGAL UPDATE **

In July 2019, U.S. Citizenship and Immigration Services (USCIS) issued new guidance to law enforcement agencies (LEAs) on how to handle the certification of U visas. In addition, Immigration and Customs Enforcement (ICE) recently issued new guidance on how to evaluate stays of removal for U visa applicants.

The U visa is for immigrant victims of certain serious crimes who cooperate with LEAs. Once a U visa is approved by USCIS a noncitizen is granted legal status in the U.S. and can apply for a green card after three years.

What's in the New USCIS Guidance

The first required step of the U visa process is to obtain certification of one's role as a crime victim and witness from an LEA, such as a police agency or prosecutor’s office, using Form I-918, Supplement B. The new USCIS guidelines stress, however, that the LEA is under no legal obligation to complete this form.

The new guidelines also encourage law enforcement agencies to conduct criminal background checks on applicants, even though it is not necessary for the process (USCIS will later conduct its own background check).

The guidelines also state that if an LEA signs a certification form, it retains the right to withdraw it, and gives information on how to do so. The new guidelines could encourage more LEAs to decline signing U visa certifications or to impose unnecessary restrictions on signing them for immigrants.

What's in the New ICE Guidance

In addition to the July USCIS guidance, ICE issued new guidance in August, regarding requests for stays of removal for people with a pending U visa application.

A stay of removal allows a noncitizen to remain in the U.S. for a designated period of time even with a final removal (deportation) order on record. Previously, ICE was required to seek a prima facie determination from USCIS for people who had submitted a U visa application. Under the new guidance, ICE is no longer required to do this.

Furthermore, a pending U visa will not be considered a dispositive factor for a request for a stay of removal. Under this new guidance, it will be much more difficult for people with removal orders to remain in the U.S. while a USCIS decision on the U visa is pending.

Backlog Challenges for U Visa Applicants

In addition to these new guidance documents, U visa applicants face increasing backlogs in the time it takes to decide on applications.

Currently, USCIS is reviewing U visa applications filed in 2014, five years ago. After a U visa application is approved by UCSIS, the applicant is granted deferred action and put on a waitlist.

Because USCIS can grant only 10,000 U visas per year (and many more than this apply), an applicant can expect to wait many years after being approved to finally receive the U visa. All of these factors put together make obtaining a U visa increasingly challenging.

Date: September 26, 2019