U Visa Review on the Eve of Fiscal Year 2017

October 1, 2016 marks the first day of fiscal year 2017, the day Congress allocates its annual 10,000 visa slots for eligible victims of qualifying crimes. Maybe you filed a U petition (Form I-918) and are now wondering when you will receive your Employment Authorization Document (EAD) incident to U nonimmigrant status. You are anxious and have read online that the current USCIS processing times for U petitions is approximately 2-2 ½ years. But the timeline is not clear. You want to know what steps USCIS is taking on your case during that timeline so you can estimate when you will receive your EAD.

Answer: The processing times posted online only account for the steps USCIS has taken from receipt of your U petition through to its “conditional approval.” Before explaining what that means for your EAD, let us review some key information about the U petition process.

Final Approval Versus Conditional Approval

USCIS automatically issues EADs after it has made a final determination approving your U petition. Final approval occurs once USCIS determines that you are legally eligible for U nonimmigrant status and a U visa number is readily available. The limit on the number of U visas that may be granted each year is 10,000, creating an enormous backlog of individuals who are legally eligible for U status but who are awaiting a final decision because there are no more U visa numbers available during the fiscal year in which they filed their petition. As new U visa numbers become available each fiscal year, USCIS issues the numbers and approves the eligible petitions on a first-in, first-out basis, starting with those that have the oldest receipt dates.

To reduce the strain of the backlog on petitioners, USCIS has created a system allowing it to “conditionally approve” U petitions and place eligible petitioners on a waiting list for a U visa number. Petitioners placed on the waiting list are generally granted “deferred action,” meaning that they will not be deported if they fall out of lawful immigration status while they wait in line for additional U visas to become available. Petitioners with deferred action are also eligible to receive temporary EADs. Although petitioners granted deferred action do not need to take any additional steps to request a U visa, they do need to file an I-765, Application for Employment Authorization, based on their deferred action notification if they want to work while they await the final approval of their U petitions.

USCIS Processing Time Information

The current processing times posted on the USCIS website account for the time it takes for USCIS to “conditionally approve” a U petition and grant the petitioner deferred action (or place her on the waiting list for a U visa number). Presently, USCIS is processing cases that were filed on or before May 7, 2014. This means that, as per USCIS processing rates in September 2016, it will take approximately 2 years and 4 months to receive your conditional approval and deferred action notification, which you can then use to apply for a temporary EAD. Please be advised that all USCIS processing times vary month-to-month, so the 2-year, 4-month waiting period may change. Also, please remember that you will be issued an EAD automatically if and when a final determination is made on your U petition and your U visa number is readily available.

To be clear, USCIS does not presently track its processing times for final determinations – only conditional approvals. Although USCIS did just recently transfer a batch of U petitions from the Vermont Service Center to the National Benefits Center in an attempt to cut through the backlog, this will still take time. You must be patient and assess alternative means of financial support while you await your conditional approval and deferred action notification letter.

How long do I have to wait to get my deferred action notification and temporary EAD?

Did you file your U petition this year during fiscal year 2016 (between October 1, 2015 and September 30, 2016)? Per the current processing times, you can expect to receive your conditional approval, if USCIS finds you legally eligible for U status, sometime in the fall or winter of 2018. You would then need to file an I-765 application for a temporary EAD. Immigration officers usually issue decisions on EAD applications within 3 months. If you wait for your conditional approval to apply for the EAD, you would receive your temporary EAD in spring of 2019.

What can I do right now to shorten the length of the process?

If your U petition is already pending, you can file the I-765, Application for Employment Authorization, based on the deferred action notification which you have not received yet. Filing this application early will route the application to your U petition, so the immigration officer can conditionally approve the petition, grant you deferred action, and issue an EAD all at the same time, hopefully cutting your wait time by 3 or so months. The EAD application costs $380.00 to file, but you can obtain a fee waiver. A fee waiver request requires evidence of financial hardship.

Summary of U Petition Process and EAD Eligibility

Step 1: File U petition with any necessary waivers*

Step 2: Receive Receipt Notice(s)

Step 3: Receive Biometrics Appointment Notice

Step 4: Attend Biometrics Appointment

Step 5: Receive Conditional Approval Notice/Deferred Action Notification

Step 6: File I-765 for temporary EAD based on deferred action status

Step 7: Receive Receipt Notice (I-765)

Step 8: Receive Approval Notice (I-765) and temporary EAD

Step 9: Wait for U visa number to become available

Step 10: Receive final Approval Notice (U petition) and EAD

*You can also file the I-765 at Step 1, along with the U petition and any necessary waiver applications and fee waiver requests.

Please take note that, even if your case is strong, it is ultimately within the discretion of USCIS to grant or deny any petition or application for immigration benefits. It is also within the discretion of USCIS to place you in deferred action should you receive a conditional approval of your U petition. The backlog of persons waiting for U visas is estimated at over 78,000, all of which are subject to the annual cap. 10,000 patient individuals who have been waiting in line for years will finally receive status over the course of the next few months when USCIS updates the background checks of those conditionally approved petitioners whose number has finally come up. Everyone else must reset their clocks to countdown to the next fiscal year.

This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact your life. Meet with an attorney in person to obtain competent personal and professional guidance. To meet with one of our experienced immigration attorneys call 855-428-3762.