Q&A
U VISA QUESTIONS
Questions & Answers: U Nonimmigrant Status What forms do I need? Principal Applicants: ► Form I-918, Petition for U Nonimmigrant Status ► Form I-918, Supplement B, U Nonimmigrant Status Certification ► Form I-192, Application for Advance Permission to Enter as a Nonimmigrant (if your client is inadmissible under any ground found at INA § 212(a)) ► Form I-912, Request for Fee Waiver (if your client requires a waiver of the Form I-192 filing fee) Derivative Applicants: ◊ Form I-918A, Petition for Qualifying Family Member of U-1 Recipient ◊ Form I-192, Application for Advance Permission to Enter as a Nonimmigrant (if derivative is inadmissible under any ground found at INA § 212(a)) ◊ Form I-765, Application for Employment Authorization (filed for derivative applicant only; not needed for principal) ◊ Form I-912, Request for Fee Waiver (if your client requires a waiver of the Form I-192 and/or Form I-765 filing fee) Can I get a waiver of the filing fee? U Visa applicants can request a fee waiver for the I-192 and I-765. There is no fee for the I-918 and I-918A, and thus, no need for a fee waiver. NOTE REGARDING I-192 FILING FEE: See Notice of Settlement Agreement in Vangala v. U.S. Citizenship and Immigration Services, No. 4:20-cv-08143 (N.D. Cal.)) A request for a fee waiver should be made on Form I-912. USCIS will exercise its discretion to grant a fee waiver when an applicant: a) is receiving a means-tested benefit, b) has a household income of 150% or below of the poverty guidelines, or c) can demonstrate financial hardship. You can claim eligibility for a fee waiver on multiple grounds. You should submit evidence in support of your request for a fee waiver. Typically that evidence will include: tax returns, pay stubs, utility bills, rent receipts, medical bills, etc. TIP: You should note on the cover letter that you are requesting a fee waiver so USCIS doesn’t automatically reject your submission as missing the filing fee without seeing that you were requesting it be waived. Does the Form I-918, Supplement B, U Nonimmigrant Status Certification expire? The Form I-918, Supplement B, is valid only six months from the date of certification. What happens while I am waiting for my I-918 to be adjudicated and for visas to be available? Read about the bona fide determination process for Form I-918 nonimmigrant visa petitioners. As a U nonimmigrant when can I apply for lawful permanent residence? Pursuant to INA § 245(m), a U nonimmigrant must be able to demonstrate three years of continuous physical presence in the United States, in valid U nonimmigrant status, in order to be eligible to apply for lawful permanent residence. What other requirements are there for legal permanent residency based on U nonimmigrant status? According to INA § 245(m) a U nonimmigrant must also be able to demonstrate that: The applicant is not inadmissible under INA § 212(a)(3)(E); The applicant has not unreasonably refused to provide assistance to an official or law enforcement agency…after the alien was granted U nonimmigrant status, as determined by the Attorney General, based on affirmative evidence; and A favorable exercise of discretion is “justified on humanitarian grounds, to ensure family unity, or is in the public interest.” My U visa was granted but why does my U nonimmigrant status and employment authorization document (EAD) expire in four years? U nonimmigrant status is issued for a maximum period of four years under 8 C.F.R. § 214.14(g)(1). Why were my derivatives granted U nonimmigrant status for less than four years? Derivative U status (U-2, U-3, U-4, and U-5) cannot be granted for a period not to exceed the initial grant period of the principal U applicant (U-1). What if a derivative is granted U nonimmigrant status for less than three years and therefore won’t enough time in U nonimmigrant status to be able to adjust with the principal? The derivative may be eligible to extend their U nonimmigrant status allowing them to accrue the three years they need in U status needed for adjustment of status to legal permanent resident. Can I obtain employment authorization being in U nonimmigrant status? The regulations providing eligibility for employment authorization are found at 8 CFR § 274a.12: (a)(19) – an alien in valid U-1 nonimmigrant status (a)(20) – an alien in valid U-2, U-3, U-4, or U-5 nonimmigrant status If my U visa is approved can I travel outside the US? This is a somewhat complicated question and you can read more about traveling abroad with an approved U visa here. Individuals in U nonimmigrant status are eligible to apply for a U visa abroad at a U.S. consulate and may be able to use that visa to reenter the United States after a trip abroad. It is highly likely that any travel outside the US would raise issues with unlawful presence bars since the recipient of U nonimmigrant status most likely accrued unlawful presence in the United States. You would need to talk with an immigration attorney to determine if it is possible in your particular case but typically it would not be advisable. If USCIS already met its cap on U Visas for 2023 when does the next year start? When the new fiscal year begins on October 1, 2023, USCIS will resume approving principal petitions for U-1 nonimmigrant status starting with petitions filed on or before July 31, 2016, prioritizing the oldest petitions. What is the Bona Fide Determination Process and how does that work? To learn about the bona fide determination process and how USCIS processes Form I-918 petitions for U Nonimmigrant status as well as what happens to applicants waiting years for their U visas to get approved please visit that FAQ page.
Petty Offense Exception
The “petty offense exception” applied to a person with only one conviction for a crime involving moral turpitude (CIMT). Since so many offenses can be classified as crimes involving moral turpitude, many noncitizens risk being excluded even for minor convictions. Coming within the Petty Offense Exception is one way to avoid this exclusion. This exception excuses inadmissibility, but not deportability, on account of a conviction of, or admission of committing, one crime of moral turpitude. It does not excuse any other ground of inadmissibility, such as a drug conviction. This question was sent in by someone who asked another question but in their email mentioned the petty offense exception and how they weren’t sure what it is or how it worked. Thank you so much for submitting this questions and I hope to receive more questions from readers. You can submit questions anonymously by email or by using our simple question submission form. The person must meet the following criteria under INA § 212(a)(2)(A)(ii)(II): COMMISSION OF ONLY ONE CMT If the government shows, by a preponderance of the evidence, that a noncitizen has committed a second CMT, s/he will no longer be eligible for the petty offense exception to inadmissibility. Counsel should check the defendant’s entire criminal record to make sure that s/he has committed only one crime involving moral turpitude. Commission of a second moral turpitude offense, even if the conviction was expunged, or charges were dismissed and there was no second conviction at all, will disqualify the defendant from eligibility for the Petty Offense Exception to inadmissibility for one CMT. On the other hand, previous non-turpitude convictions (e.g., driving under the influence, simple assault) will not disqualify the defendant from receiving the Petty Offense Exception. A court finding that a defendant violated a condition of probation does not constitute a conviction, and therefore does not establish that the defendant committed a second CMT for purposes of disqualifying him or her from the petty offense exception to inadmissibility. However, if the conduct underlying the violation of probation constitutes CMT conduct (i.e., the commission of a second CMT), the conduct could disqualify a noncitizen from the Petty Offense Exception. Counsel should examine the petition filed in the criminal court alleging a violation of probation, and any attached documents such as police reports, and determine the nature of the conduct resulting in the allegation that the defendant violated probation. The question of whether a noncitizen has committed a second CMT is a conduct-based factor, and the noncitizen is free to contest it as a factual matter. The client could testify in removal proceedings they did not commit the second CMT, or call other witnesses to prove this. For example, in the context of determining whether a noncitizen on supervised release from immigration detention had violated the term of the release requiring that he not “commit any crimes, “ the Ninth Circuit has held that a plea of no contest in criminal proceedings is insufficient evidence to show that the noncitizen has committed a crime, since a nolo contendere plea is not an admission of guilt to the underlying crime. Applied in this context, counsel can argue that a no contest plea cannot be used to establish that a noncitizen has “committed” another CMT, because even though there is a conviction, a no contest plea gives no proof that the offense of conviction was “committed” by the defendant. Other evidence, however, could be used to prove the conduct. Counsel can also argue (similarly to the single scheme concept applied to the two or more CMT ground of deportability) that a second CMT committed as part of the same criminal act does not disqualify a person from the Petty Offense Exception. SENTENCE IMPOSED OF SIX MONTHS OR LESS The immigrant will qualify for the Petty Offense Exception if s/he obtains a sentence imposed of six months or less, or suspended imposition of sentence with six months or less jail time as a condition of probation. This requirement is violated by a court-ordered sentence in excess of six months, even if the person does not actually serve a sentence in excess of six months.[9] Note, however, that the definition of “sentenced to imprisonment in excess of six months” is technical. See, generally, Criminal Defense of Immigrants Chapter 10, supra. For example, if a term of imprisonment in excess of six months is imposed, suspended execution of that sentence does not prevent the entire sentence (including the portion as to which execution was suspended) from being counted as a sentence for this purpose, disqualifying the noncitizen from eligibility for the Petty Offense Exception. The actual sentence imposed by the court determines whether the person meets this requirement for the Petty Offense Exception, even if the conviction occurred in a foreign country. A prison term “in excess of six months” is generally assumed to mean a term in excess of 180 days. Counsel can argue, however, that a sentence imposed of 182 days would not disqualify a person from the Petty Theft Offense Exception, since a year consists of 365 days, and half a year (i.e., six months), would therefore consist of 182.5 days. MAXIMUM POSSIBLE SENTENCE OF ONE YEAR The Petty Offense Exception also requires that the maximum sentence of imprisonment that could have been imposed be one year or less; a greater maximum is a disqualifier. For offenses committed in the United States, the criminal statute that establishes the maximum allowable time in custody for the crime of which the defendant was convicted determines whether this requirement is met. If the conviction is for a misdemeanor rather than a felony, the Petty Offense Exception can apply, assuming the misdemeanor is punishable by a maximum of one year or less in custody. Some states’ statutory schemes differ, however, so the particular state statute establishing the maximum for the offense of conviction must be consulted to determine whether the maximum possible sentence for the misdemeanor is one year or less in custody. Similarly, in some states, the … Read more