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Sixth Circuit rules that U Visa Applicants can Sue Over Processing Delays

Updated: Sep 17, 2021

On Monday, September 13, 2021, a panel of the 6th Circuit Court of Appeals, in Barrios Garcia v. Department of Homeland Security, unanimously held that USCIS unreasonably delayed in placing four applicants for U Visas on a waiting list, which would have provided them with deferred-action status that would protect them from deportation.

To understand the implications of this decision, it is important to first understand what a U Visa is.

What is a U-Visa?

U nonimmigrant status, commonly referred to as a U Visa, is a special type of visa that is given to victims of certain qualifying crimes who cooperate with law enforcement in the investigation and/or prosecution of criminal activity. Congress created the U Visa with the intent of strengthening law enforcement’s ability to investigate and prosecute serious crimes while encouraging non-citizen victims to cooperate with police and prosecutors without the fear of being removed (deported) from the United States. See 8 U.S.C. §§ 1103(a)(1), 1101(a)(15)(U); 8 C.F.R. § 214.14(a)(10).

The benefit of a U Visa is that it provides a non-citizen with legal status within the United States, provides them with employment authorization (a work permit), and provides them with a path to obtaining lawful permanent residence (green card) and potentially citizenship. A U Visa applicant may also seek derivative U visas on behalf of certain qualifying family members. Your Miami U Visa attorney can help explain all of the benefits that you and your family may be eligible for.

U Visa Eligibility

To be eligible for a U Visa, you must establish that:

  • You are the victim of a qualifying crime;

  • You have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;

  • You have information about the criminal activity;

  • You were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime;

  • The crime occurred in the United States or violated U.S. laws; and

  • You are admissible to the United States. (There is a waiver available if you are inadmissible.)

Qualifying Crimes

If you were the victim of one or more of the following crimes, you may be eligible for a U Visa:

  • Abduction

  • Abusive Sexual Contact

  • Blackmail

  • Domestic Violence

  • Extortion

  • False Imprisonment

  • Female Genital Mutilation

  • Felonious Assault

  • Fraud in Foreign Labor Contracting

  • Hostage

  • Incest

  • Involuntary Servitude

  • Kidnapping

  • Manslaughter

  • Murder

  • Obstruction of Justice

  • Peonage

  • Perjury

  • Prostitution

  • Rape

  • Sexual Assault

  • Sexual Exploitation

  • Slave Trade

  • Stalking

  • Torture

  • Trafficking

  • Witness Tampering

  • Unlawful Criminal Restraint

  • Other Related Crimes (including attempt, conspiracy, or solicitation to commit any of the above and other related crimes)

U Visa Processing Times and The Sixth Circuit’s Decision in Barrios Garcia v. Department of Homeland Security

Congress has capped the number of U visas that can be granted each year at 10,000. This cap has resulted in long processing times for U visas (five years on average). To combat these delays, DHS has implemented a waitlist framework where an applicant who qualifies for a U visa but cannot be granted one solely due to the 10,000-person cap has their application approved and is placed on a waitlist. The benefit of being placed on the waitlist is that the applicant is granted deferred action status (protection from removal) and the applicant may be issued work authorization even though their visa has yet to be granted.

Barrios Garcia dealt with an issue over delays in placing U Visa applicants on this waitlist. Some of the U visa applicants in this case had been waiting five years to be placed on the waitlist. In rejecting the government’s argument, a unanimous Sixth Circuit panel held that “federal courts may compel USCIS to place principal petitioners on the U-visa waitlist when an unreasonable delay has occurred.” See Barrios Garcia v. Department of Homeland Security, No. 21-1037 (6th Cir., Sep. 13, 2021)

The Bona Fide Determination Process

It is important to note that, prior to the Sixth Circuit’s decision, USCIS recently announced a new “bona fide determination” (BFD) process whereby certain U petitioners and their family members with pending U petitions can receive four-year work authorization and deferred action while they wait for full adjudication. This new process is meant to combat the growing backlog of U Visa cases.

This new BFD process applies to all pending U Visa applications and all applications that are filed on or after June 14, 2021, for applicants who are living within the United States. USCIS has advised that they will review all pending U Visa applications for the BFD and that a person with a pending U Visa application does not need to do anything to undergo this review process.

How can The Law Office of George K. Gomez, P.A. help?

An experienced U Visa attorney is one who is there to help non-citizens who have been the victims of serious crimes and who understands the physical and emotional trauma associated with reliving your crime, as well as the legal implications relevant to preparing your application (and waiver, if needed). At The Law Office of George K. Gomez, P.A, we are prepared to help our clients navigate this process, step by step, to ensure that they not only understand what is happening in their case but to ensure that their applications are approved.

An experienced U Visa attorney is important in the success of your U Visa case. The Law Office of George K. Gomez, P.A., is experienced in U Visa law and will fight hard to make your case as strong as possible. If you're looking for an immigration law firm with great reviews that can guide you through the U Visa process, call The Law Office of George K. Gomez, P.A. at (305) 539-0991 and schedule your free consultation today.

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