An appellate opinion, Barrios Garcia et Al. v. DHS et al., held that Courts may review unreasonably delayed U-Visa cases. The 6th circuit interpreted the Immigration and Nationality Act (INA) and the Department of Homeland Security (DHS) policies to mean that courts may compel U.S. Citizenship and Immigration Services (USCIS) to place a petitioner and their dependents on the waitlist track if there is an unreasonable delay in processing the U-Visa petition. Further, the court may also require DHS to determine whether the petition is bona fide. This is great news for U-Visa applicants, although the 6th Circuit notes it cannot force DHS to make a decision on a pre-waitlist work authorization application.

What Are U-Visas?

U-Visas or Form I-918 are available for those who are victims of qualifying criminal activity resulting in mental or physical abuse and help law enforcement. Qualifying criminal activity includes prostitution, domestic violence, involuntary servitude, torture, obstruction of justice, and others.

U-Visas are capped at 10,000 per year. Year-end 2020, USCIS had over 160,000 visas pending. This means that for any excess over the 10,000 allotment must wait longer. It would take roughly 16 years for the 160,000 cases to get processed because of the 10,000 per year cap. However, there is a waitlist for applications that are processed but do not yet qualify for the visa because of the cap. Those waitlisted by USCIS receive protection from deportation because of deferred action status and may receive an EAD to work in the meantime.

Bona Fide Determination (BFD) Process v. Waitlist

There are two tracks afforded to U-Visa applicants. The first is the waitlist and the second is the Bona Fide Determination Process (BFD). To qualify for the waitlist, the petitioner must apply for a U-Visa, the application must be approved, and the petitioner is then put on a waitlist until the U-Visa is granted. For waitlisted petitioners and their dependents who have not yet received their U-Visa, work authorization is granted at USCIS’s discretion – it is not guaranteed. Once the U-Visa is eventually granted, work authorization is automatically given to the petitioner and the dependents.

The BFD process is a policy that was added to the USCIS manual in June 2021. It applies to those with pending I-918 filed on or after June 14, 2021. A USCIS officer decides when it receives a petition whether the case is made in “good faith; without fraud or deceit.” If the officer finds that it was in good faith and without fraud or deceit, then the petition is placed in the EAD track while the petitioner and dependents wait for the U-Visa. If USCIS finds that the petition is not bona fide, it either goes to the waitlist for further review or it gets denied.

What does Barrios Garcia et Al. v. DHS et al. mean for processing U-Visas?

In Barrios Garcia et Al, the petitioner and their dependents filed for U-Visa status years ago and USCIS failed to take any action. They allege that USCIS has unreasonably delayed their petition which is against the administrative rules of procedure. The petitioner claims that others who filed after them have already been placed on the waitlist or had a decision made.

The Court laid out the following six factors from TRAC v. FCC to determine whether there is unreasonable delay: (1) the time agencies take … must be governed by the rule of reason; (2) whether Congress gave a timeline; (3) “whether the delay is reasonable…when human health and welfare are at stake;” (4) the effect of expediting a case would have on the agency’s activities and other priorities; (5) the nature and extent of the interest prejudiced by delay;  (6) and impropriety by the agency is not required for there to be an unreasonable delay.

In Barrios Garcia et Al, the Court found that the petitioners supplied sufficient evidence to show an unreasonable delay in their case and the government failed to argue otherwise. As a result, the Court can compel USCIS to decide whether the petition is bona fide or to place the petition on the waitlist, to hopefully expedite the process and receive an EAD in the meantime.

This is an important case for U-Visa applicants, who often remain in limbo for several years without access to work authorization or a means to support themselves while they wait. Following this case, U-Visa applicants can now file suit in court to compel a bona fide determination whenever there is an unreasonable delay by USCIS. This will provide important access to relief from unreasonable USCIS processing times, which are greatly impacting this area, among others.

If you have questions about U-visas or any other immigration-related issue, reach out to an ILBSG attorney today. We are here to get you the right advice.

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