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U Visas: Consular Processing Issues for Principal Applicants

Earlier this month, I had the honor of presenting in Vienna, Austria on “Unusual Visas.” I was asked to speak about consular processing T and U visas since these are rarely seen at U.S. Embassies and Consulates. Foreign nationals who have T or U status tend to stay in the United States and don’t travel internationally and have no need ever see a Consular Officer.  In fact, my co-panelist who has worked at the U.S. Embassy in Vienna for 30 years stated that he had never seen a T or U visa applicant in all his years there.

Why is it so rare?

When people are granted U status, it’s done in the United States by USCIS. USCIS grants the I-918 and the foreign national becomes a U status holder without needing to go abroad and get a visa or do anything else. The foreign national has U status for four years and after three years of “continuous presence”, they can apply for a green card.

Continuous presence means that the person cannot be outside the U.S. for more than 90 days in any one trip or more than 180 days total in those four years of U status. One trip of 91 days or more or several trips that add up 181 days or more outside the country destroys the chance for the U status holder to obtain a green card absent some pretty extraordinary circumstances.

If you pay attention to the calendar, planning a trip outside the United States shouldn’t be that complicated, right? Wrong.

In order to return to the United States in U status, the foreign national needs a U visa* (see below for a discussion of visa versus status).

The U visa is granted by a Consular Officer with the U.S. Department of State at a U.S. Embassy or Consulate. Although the Consular Officer does not re-adjudicate the U case, getting a U visa isn’t easy. Consular officers don’t see these visa applications often, so the criteria may not be at the forefront of their mind. The timing involved was unclear and the coordination between USCIS and DOS left much to be desired. Thankfully, that appears to have gotten better and Consular Officers are aware of what a U visa is, at least.

Problems persist, though, in how to get it done. When a U status holder leaves the United States, they often trigger a new ground of inadmissibility – the unlawful presence bar. The unlawful presence bar doesn’t start until the U status holder leaves the United States so it’s not something they could have asked for ahead of time. If the U status holder had any time in the United States without lawful status, as soon as they step one foot outside of the United States, the new ground of inadmissibility applies to them and they need a new waiver.

However, that waiver can only be decided by USCIS and the Vermont Service Center. That alone can typically take six months or longer. Thankfully, there is a way to request an expedited review of the waiver.  Because remember, the waiver has to be approved, the U visa granted by the Consular Officer, and the foreign national has to be back in the United States all within 90 days. It’s a finely choreographed dance.

In order to have any hope of getting a green card in the future – maintaining that “continuous presence” – that insanely fast timeline has to be met.  Having an experienced advocate working with you can really help because they know the people to talk with and how to ask for things to be moved as quickly as possible so that the U status holder can return to the United States with a U visa within 90 days.

Of course, my best advice is to not leave the U.S. until you have a green card, but sometimes, I know that’s just not possible.

– Tracie

* “Status” is something that a foreign national has once in the United States. It’s an idea, not a thing you physically possess. A “visa” is a physical document that is issued by the Embassy or Consulate. When a foreign national enters the United States with a visa, they will have that type of status while in the United States until they change or adjust status or do something that violates their status.

Example: Bob is issued an F-1 student visa to come study at Georgia State University. When he enters the United States on the F-1 visa he is in F-1 status. As long as he stays in school he is in F-1 status. However, Bob graduates and has an employer who sponsors him for an H-1B, which is granted. Bob’s status is now H-1B. He did not leave the U.S., so he does not have an H-1B visa. If he leaves the United States, though, and wants to resume his H-1B status and working for his employer, he must obtain an H-1B visa at a U.S. Embassy or Consulate.