What’s New With U?

I can’t believe we got through October – Domestic Violence Awareness Month and the start of the new Fiscal Year for U visas – and I didn’t mention U visas at all! Better late than never – there’s been some news on the status front.

Increased Filings

In 2009 USCIS received only 4,102 U applications for the entire year. Not even a decade later – in 2017 – USCIS received over 25,100 U applications. Since 2010, the 10,000 per year cap has been reached, forcing cases that are approvable but get decided after the cap is reached, to go on a wait-list. How long is that wait-list? We don’t know, but by the end of June 2018, there were over 128,000 U applications pending. If those cases were all “provisionally approved,” people could be on the wait-list for 12 years or longer.

If you want to see the full breakdown of U applications at USCIS, check out their data chart.

Backlogs

With such an increase in filings, adjudications have slowed down considerably. Currently at both the Vermont and Nebraska Service Centers, it is taking 49 months – over four years! – to have a case reviewed. And that’s not even for an approval – it’s merely to be put on the four-year long wait list. We can’t even inquire about a case unless it was filed on or before November 4, 2014.

I can share some statistics from our office…

Our last U grant (not wait-list) was on April 18, 2018 for a case that we filed on October 11, 2014.

Our last case to be placed on the wait-list was filed on March 31, 2015 and we received her deferred action notice on September 24, 2018. We’ve also received a few Requests for Evidence for cases filed in March 2015.

Requests for Evidence

Yes, we are seeing more and more of these. USCIS is taking a very hard stance against any U applicant with an arrest history – regardless of conviction or not. Instead of looking at whether it’s in the public or national interest to allow someone to remain in the United States, USCIS has been (incorrectly) applying a higher standard and looking for more equities and evidence of rehabilitation.

At first glance, that may not sound too bad. Remember, though, that the U visa was designed to encourage cooperation with law enforcement and one of the most generous waiver provisions in all of immigration law attaches to the U. Congress knew that immigrant victims of crimes may not be perfect, but if they helped protect our communities by reporting crimes, then that cooperation outweighs most every negative factor an immigrant could have (there is no waiver for genocide, terrorism-related grounds or murder).

Notice to Appear Memo

Oh, how this breaks my heart. This summer, USCIS announced a major shift in policy by implementing new Notice to Appear (NTA) guidance. In short, USCIS said they will issue a NTA (which starts deportation proceedings) in cases that are denied and the applicant does not have current lawful status. Shortly after they announced this policy, they realized they hadn’t thought this through on humanitarian and employment based cases, so they paused NTAs for these types of applications.

Well, in early November, USCIS said that humanitarian-based cases were no longer safe. Starting on November 19, 2018, NTAs could be issued upon the denial of certain humanitarian cases.

Humanitarian cases include:
I-914 T Status
I-918 U Status
I-360 VAWA, Amerasian, Widow or Special Immigrant Juvenile
I-730 Refugee/Asylee Relative Petitions
I-485 Adjustment of Status for any case that was based on the above

In a stakeholder call, USCIS stated that their goal isn’t to discourage people from filing from relief. I’m not sure that’s true. If I had a strong story, but my evidence was sparse, I might have at least tried for relief before this policy went into effect…but now, with the threat of deportation increased significantly, I don’t think I’d file for help.

USCIS has also said that the NTA won’t come at the same time as a denial. They will not issue a NTA if an appeal is timely filed (generally within 30 days of the denial) or if the applicant has left the United States within that same time-frame. Apparently officers will still have some discretion in determining whether or not a NTA should be filed, but it’s unclear what those standards may be or how often officers will be allowed to exercise favorable discretion.

This policy is in effect for all cases denied on or after November 19, 2018. I think about the cases that I’ve filed over the last 3-4 years…and I know I told clients that there was no risk in applying (as did just about every advocate out there) and now, suddenly, if the case is deficient and denied, they are put in harm’s way.

It’s hardly fair for USCIS to change the rules years after the game began. I suppose I shouldn’t be surprised, though. Nothing is fair these days and fewer things make sense. I fear that all of this will lead to an increase in unreported crime, domestic violence, and our communities (all of our communities) will become less safe because USCIS doesn’t seem to care about helping survivors.

-Tracie