This case was formerly known as B.L.R. v. DHS
In December 2023, the National Immigrant Justice Center, Michigan Immigrant Rights Center, and Winston & Strawn LLP, filed a class action against U.S. Citizenship and Immigration Services (USCIS) for unreasonably delaying the initial adjudication of U visa applications.
About The Case
In the Victims of Trafficking and Violence Protection Act of 2000, which reauthorized the Violence Against Women Act, Congress created the U visa for immigrant victims of serious crimes. Subject to an annual cap of 10,000 visas per year, any noncitizen who has suffered substantial physical or mental harm as a result of rape, sexual assault, domestic violence, or other serious crimes may apply for a U visa if a law enforcement officer certifies that they were helpful in the investigation or prosecution of the crime. Congress created the U visa to encourage noncitizens to cooperate with law enforcement without fear of deportation and, by doing so, to make communities across the United States safer and more peaceful.
From the outset, U.S. Citizenship and Immigration Services (USCIS) systematically failed to implement the U visa in a way that could meaningfully advance Congress’s objectives. The agency did not even begin processing U visa petitions until 2009, nearly a decade after Congress created the program. Even when it began adjudicating applications, USCIS quickly fell farther and farther behind. Because USCIS knew that it was likely to receive more than 10,000 grantable petitions each year, it created a regulatory “waiting list” and promised to place everyone who would be granted a U visa but for the statutory cap on that list — which would make applicants eligible for work authorization and give them protection from deportation. But the agency never fulfilled that promise. Instead, it routinely adjudicated U visa petitions only until it reached 10,000 grantable petitions per year — and then stopped. The result is that the wait simply to be on the waiting list grew and grew, reaching about five years by 2020.
Even while the backlog ballooned in size, USCIS ignored a congressionally mandated way to streamline initial U visa adjudications. Although adjudications for the regulatory waiting list required a full merits determination of a U petition, Congress had in 2008 provided that any U visa applicant who filed a bona fide application could receive work authorization from USCIS. Because the “bona fide” standard does not require a full merits adjudication, application of that standard could have immediately saved the agency a great deal of time and allowed it to process far more applications. But USCIS failed to apply the bona fide standard for 13 years.
USCIS did finally transition from the regulatory waiting list to a “bona fide determination” process in June 2021. It now will provide a U visa applicant with deferred action and work authorization if the application is complete and background checks reveal that the applicant is not a risk to public safety or national security. This process is a more streamlined approach to the granting of initial, interim relief. Nevertheless, the backlog has not disappeared, or even improved. When the bona fide determination process started, it took USCIS roughly five years from filing to adjudicate an application for the waiting list. Now, two and a half years later, it takes USCIS roughly five years from filing to make a bona fide determination.
These continuing delays eviscerate the purposes of the U visa. The agency’s imposition of a five-year wait for even interim protection greatly reduces the incentives for noncitizens to come forward and speak with law enforcement about serious crimes. It also undermines Congress’s goal of increasing public safety across the country. NIJC’s complaint, filed in the Eastern District of Michigan, asks the court to hold these delays unreasonable under the Administrative Procedure Act.
The Plaintiffs
The nine named plaintiffs in this case are all victims of serious crimes who assisted law enforcement, filed U visa applications more than two years ago, and have not yet received a bona fide determination. None of the plaintiffs is able to legally work until they receive that determination, and all of the plaintiffs are suffering severe harm from USCIS’s severe delays. For example, lead plaintiff A.M.P. brought charges against an acquaintance who sexually assaulted her. A.M.P. applied for a U visa in October 2021 but has yet to receive a bona fide determination from USCIS — meaning that she cannot legally work and lacks a reliable way to transport her U.S. citizen son, who has eye cancer, to medical appointments.
Relevant Documents
Amended complaint (February 9, 2024)
Original complaint (December 19, 2023)
In the Media
Press release: Survivors Facing Years-Long Waits For U Visa Adjudications Sue U.S. Government (December 2023)