U Visas: A Potential (but Long) Path to Citizenship

Managing client expectations is fundamental for all attorneys. However, in immigration law, our task is more difficult due to the one great unknown: Government processing times. Take, for instance, adjudications on U Nonimmigrant, or U visa, petitions.

The U visa was an outgrowth of the Violence Against Women Act (VAWA) in 2000. This allows non-immigrants and the undocumented to apply for a visa if they have been the victim of certain enumerated crimes. They also must show that they are helpful to law enforcement, and that they suffered substantial harm due to their victimization.

Domestic violence and armed robberies are some of the most common types of criminal activity. This program has become extremely popular and potential clients are numerous.

Initially, many of the issues with the program revolved around the cooperation of law enforcement in providing Law Enforcement Certifications, which are required in order to file a petition.

An excellent 2013 study by the University of North Carolina School of Law illustrates the uneven treatment across the nation. Here in California, SB 674, which became law on January 01, 2016, has created a rebuttable presumption of helpfulness which encourages law enforcement to provide victims with the needed certification.

While issues with individual jurisdictions persist, the processing itself is a growing problem. As recently as 2012, there were same-year decisions in U visa cases, and conclusions to such cases were within at least one year of filing. That is no longer the case.

The slowdown at the Vermont Service Center, where U visas are adjudicated, is the result of the tremendous growth in demand for, and awareness of, this visa category.

United States Citizenship and Immigration Services (USCIS) provides a list of the processing times for various forms. U visa petitions are submitted using Form I-918, which currently shows the date for the most recent cases being processed as May 07, 2014.

Data from USCIS shows that in fiscal year 2009, just under 7,000 petitions were received; by FY 2015, this number had climbed to over 30,000. Just in the last quarter of FY 2015, which ended on September 30, 2015, over 8,000 petitions were filed. Today, more than 110,000 petitions remain pending.

USCIS may issue no more than 10,000 U visas per fiscal year. For the current fiscal year, the cap was reached on December 29, 2015. In an effort to address the delay, USCIS has been issuing Deferred Action Letters, indicating that petitioners appear to meet the eligibility requirements, but were barred by the cap from receiving a visa.

In these cases, the Deferred Action determination allows petitioners to apply for employment authorization, but even these determinations are regularly taking over a year. Many of the cases submitted will hit over two years of processing this summer.

These long delays have profound effects upon people’s lives. Many of the petitioners are women and are often single mothers. A determination allowing for employment authorization, at the very least, would allow them to bring stability to their lives, as many struggle to overcome the trauma of domestic violence.

As the timeline is stretched out further and further due to processing delays and the low quantity of visas available, it also becomes increasingly difficult for attorneys to manage expectations. The U visa itself is a four-year visa: After three years in U visa status, visa holders become eligible to apply to become a legal resident.

However, cases may now be pending for over two years, and even after the two years of processing time, a petitioner may only be granted Deferred Action due to the statutory cap on U visas. Because of the long waitlist for a U visa, they’re likely to be in Deferred Action for many years. So a process that took only eight months as little as four years ago can now possibly stretch on for four to five years.

There have been attempts to improve this process: The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 included an increase of the annual limit to 18,000 and a process for providing employment authorization within 180 days of filing the petition.

Additional attempts were made in 2012, with the reauthorization of VAWA, but none of these proposals have become law. In the absence of reforms, the backlog only continues to grow.

One concern is that eligible victims simply won’t apply, believing the U visa program to be another in a long line of schemes through which their communities have been taken advantage of. The entire theory for the program’s existence is based upon the need to provide support to law enforcement.

Immigrant communities, regardless of legal status, should not fear reporting crime to law enforcement or fear cooperation in the prosecution of criminals, who sometimes live within their own communities. This purpose is undermined when the program moves at an ever more glacial pace.

Clients must be advised that the petition will be a multi-year process. While the benefits are not immediate, they are profound, as for some the petition represents the only potential pathway to citizenship. Attorneys and clients should be ready for the frustrations and the extra services these cases will require, and be prepared for the long haul.