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Understanding the U
Visa and the (Long) Waiting Times The U visa program, created to protect victims of certain crimes who have suffered substantial mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity, is limited by a statutory cap. Congress has allocated 10,000 U visas per fiscal year (FY) for principal petitioners. Since Fiscal Year 2010, the U visa program has
consistently met this 10,000 annual visa limit. Beginning in Fiscal Year
2011, the Department of Homeland Security (DHS) started receiving more U visa
petitions than the number of visas available under the statutory cap,
resulting in a growing backlog of cases. This is what is causing longer and
longer delays for receiving a decision on pending U visa applications. The Waiting List Process To address the excess petitions filed beyond the statutory cap, DHS introduced the waiting list process through a 2007 interim rule. This process allows eligible petitioners whose petitions are considered "approvable but for the statutory cap" to be placed on a waiting list when the cap has been reached for that fiscal year. Being placed on the waiting list provides critical protections to petitioners who would otherwise be left in limbo. Petitioners on the waiting list are eligible for: Employment authorization: This allows petitioners to work legally in the United States while awaiting the availability of a U visa. Deferred action: This grants protection from removal (deportation) while the petitioner waits for their U visa to become available. In limited cases, parole may also be granted, allowing the individual to remain in the United States while awaiting a final decision. William Wilberforce Trafficking Victims Reauthorization Act of 2008 (TVPRA 2008) In 2008, the William Wilberforce Trafficking Victims Reauthorization Act (TVPRA) was signed into law, introducing key changes to the U visa process. One of the most significant amendments to the Immigration and Nationality Act (INA) was the provision allowing DHS discretion to grant employment authorization to noncitizens with pending, bona fide U visa petitions. This was a game-changer, as it provided some petitioners with a pathway to work legally while awaiting the final decision on their U visa. The Introduction of the Bona Fide Determination (BFD) Process In June 2021, the Bona Fide Determination (BFD) process was implemented by USCIS to help streamline the handling of U visa petitions. This process allows principal petitioners and their qualifying family members with pending, bona fide U visa petitions to receive interim relief more quickly, based on a case-by-case favorable exercise of discretion by USCIS. The BFD process offers several advantages over the waiting list process: BFD Employment Authorization Documents (EADs): Eligible petitioners may be granted employment authorization much earlier in the process, allowing them to work legally while waiting for their U visa. Deferred action: As with the waiting list process, petitioners under the BFD process also receive deferred action, protecting them from removal. The BFD process is distinct from the waiting list
process. Prior to June 2021, employment authorization and deferred action
were only granted when a principal petitioner was placed on the waiting list.
Now, under the BFD process, petitioners may receive these benefits much
earlier in the U visa process if their petition is deemed bona fide. How These Processes Work Together While the BFD process aims to provide earlier relief to U visa petitioners, it is not a replacement for the waiting list process. Both mechanisms work together to ensure that petitioners receive employment authorization and protection from removal while waiting for a U visa. Petitioners who are placed on the waiting list have
already been determined to meet the eligibility requirements for a U visa but
are waiting for one of the 10,000 visas to become available. Those who
benefit from the BFD process are given work authorization and deferred action
even sooner, provided their petition is bona fide. Long Delays; The Waiting Period for U Visa Applicants If you are currently awaiting a decision on your U visa petition, the annual numerical cap of 10,000 visas per year for principal petitioners is significantly impacting processing times for those waiting. Given the high demand for U visas, the process can
be lengthy. According to the latest data on USCIS.gov, the average time it
takes to receive a bona fide determination (BFD) notice, or a notice that
your petition will be considered for waiting list placement, is approximately
54.5 months (about 4.5 years). Note that the 4.5 years is only to be placed
on the waiting list or the BFD, not the final decision of the U visa. What Happens at the 54.5 Month Mark? When your U visa petition reaches this point in processing, one of two things will happen: Bona Fide Determination Notice: If USCIS determines that your petition is "bona fide," meaning that it meets basic eligibility criteria, you may receive a work authorization document (EAD) based on this determination. However, it’s important to note that you must have filed an Application for Employment Authorization with your initial U visa petition, or submit it as soon as possible if you haven't already done so. If you do not file the application, you will not receive work authorization, even if your petition is found to be bona fide. Notice of Waiting List Consideration: If your petition is not yet eligible for a bona
fide determination but meets other requirements, it may be placed on the U
visa waiting list. Once you are placed on the waiting list, you will not
immediately receive U nonimmigrant status, but you may still be granted
deferred action and work authorization until a visa becomes available. The Overall Processing Time: Over 10 Years for Final Decision While the 54.5-month timeline reflects the wait for
a BFD or waiting list notice, the actual processing time for a final decision
on your U visa petition can take more than 10 years. USCIS processes cases in
the order they are received, but due to the volume of petitions and the
annual cap, it can take several years before your case is fully adjudicated. Factors That Can Affect Processing Times It’s important to understand that processing times are based on how long it took USCIS to process 80% of cases over the last six months. Each case is unique, and factors such as the complexity of the case, incomplete applications, or the need for additional evidence can affect how long it takes to process your petition. What You Should Do Next If you haven’t already submitted an application for
a work permit with your initial U visa petition, it is crucial that you do so
now. Conclusion The U visa process can be challenging, and while the 10,000 annual cap adds to the wait times, it’s important to stay informed and take proactive steps. Ensure you have filed Form I-765 to potentially receive work authorization after a bona fide determination. Be patient with the process, and consult with your immigration attorney if you have any questions or concerns about your case.
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About Authors: Liliana Gallelli and Christopher Kerosky, have been practicing immigration law in the States of California and Nevada and represented over 25,000 clients with family, fiancée and marriage, and employment-based immigration, work-related, dependent and visitor visas, investors, company management and business owners, asylum seekers and deportation defense, specialty cases like U-visa, VAWA, SIJS, PIP and DACA. Originally Published on K & G Immigration Law website (October 2024) English
(EN) Spanish
(ES) Portuguese
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