Class Action Claims USCIS Processing Delays Harm Noncitizen Crime Victims Seeking U Visas

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The U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) face a proposed class action over the allegedly “ever-growing and extreme” delays in processing and granting interim relief to noncitizen crime victims awaiting U visas.

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The 35-page lawsuit says that in 2000, Congress created the U visa—which provides temporary nonimmigrant status to undocumented noncitizens who have survived serious crimes in the United States—in an attempt to incentivize engagement with law enforcement and, therefore, enhance public safety. However, the suit alleges that the defendants—which also include DHS secretary Alejandro Mayorkas and USCIS director Ur Mendoza Jaddou—have unreasonably delayed processing U visa petitions, even after Congress attempted to reduce wait times and provide interim relief by making noncitizens with “pending, bona fide” U visa petitions eligible for work authorization in 2008.

The case contends that the defendants waited seven years after the enactment of U visa regulations to begin providing temporary protection from deportation to eligible noncitizens and did not start processing or granting U visa petitions until 2009.

What’s more, the complaint claims the delays have only grown longer since the introduction of the bona fide determination process, which USCIS apparently did not implement until June 2021—more than 12 years after Congress first established it.

U visa petitioners, who may wait years for a bona fide determination by USCIS, “live in a constant state of uncertainty and severe economic insecurity,” the filing shares.

“They must survive without work authorization, which makes these survivors of crime vulnerable to additional harm and exploitation,” the lawsuit describes. “They also risk removal, even during the course of the investigation and prosecution in which they are a witness.”

According to the suit, a U visa—which grants petitioners and their derivative family members work authorization in the United States—is available to noncitizen victims of serious crimes such as trafficking, domestic violence, sexual assault and kidnapping, among others, provided they report and cooperate in the investigation or prosecution of the crime.

As the number of U visa recipients is capped at 10,000 per year, a waiting list was established, which provides those on the list with work authorization and temporary protection from deportation, the case relays. However, the delay to be placed by USCIS on the waiting list was nearly five years by 2020, the complaint charges.

Due to these growing delays, Congress modified the U visa regulations in 2008 to introduce the bona fide determination process, the filing says. Because it purportedly takes “less than 15 minutes” to determine if a petition is bona fide—i.e., it was submitted in good faith and is not fraudulent—and the review process significantly overlaps with steps USCIS already takes when it initially receives a U visa application, the delays for interim relief were expected to decrease, the lawsuit states.

However, the suit contends that “[d]espite Congress’s 2008 instruction and the steadily rising backlog and waiting times, [the defendants] failed to implement a bona fide determination process for twelve and a half years.”

Moreover, the delays continued to increase even once a bona fide determination process was in place, the case alleges.

“Given the brevity of the required assessment, [the plaintiffs] and other petitioners anticipated that the delay for obtaining interim relief would decrease after implementation of the bona fide determination process,” the complaint shares. “Instead, it now takes USCIS longer to issue a streamlined bona fide determination than it did to issue a full merits determination for the regulatory waiting list in 2020.”

The filing stresses that U visa petitioners like the plaintiffs—eight noncitizens who survived serious crimes and have been waiting years to receive bona fide determinations from USCIS—have suffered severe financial, medical and psychological harms as a result of the defendants’ allegedly unlawful delays.

The suit states that “[b]y [the defendants’] own admission, current waiting times for bona fide determinations are inconsistent with the purposes of the U-visa program,” which are to protect victims, encourage engagement with law enforcement and improve public safety.

“Nevertheless, [the defendants] have taken no action that has reduced those waiting times,” the case claims.

The lawsuit looks to represent anyone who has filed a principal petition for U nonimmigrant status (known as a U visa) with USCIS more than two years ago and has not received a bona fide determination pursuant to 8 U.S.C. § 1184(p)(6) and USCIS Policy Manual volume 3, part C, Chapter 5.

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