U Visa Pending and Stay of Deportation - Changes in Policy

September 14th, 2019

Until July 2019, people who were arrested by ICE but had pending U Visa Applications, ICE communicated with USCIS to see if the U Visa petition was properly filed (called prima facie determination, not whether the case could be approved) and decided whether a Stay could be granted on the person’s Deportation. (Directive 11005.1 from 2009)

Under the new ICE Factsheet to implement a revised Directive from August 2019 (11005.2).

  • ICE is no longer required to seek a prima facie determination from USCIS before deciding on whether to grant a stay of removal to a U visa petitioner;
  • ICE will decide whether to grant stay of removals or termination of proceedings exclusively based on the “totality of circumstances,” including any favorable or adverse factors and any “federal interest(s) implicated”, for example,
    • Assistance provided by a U visa petitioner to law enforcement is considered a significant favorable factor, but is not dispositive of the outcome of a stay of removal request
    • No criminal record is a favorable factor but not dispositive.
  • U petitioners and derivative beneficiaries who are on the wait list with deferred action will not be removed unless a new basis of removal has developed since placement on the wait list (such as a charge or conviction) or USCIS has terminated deferred action.
  • ICE may join in a motion to terminate proceedings for persons granted U status and those placed on the wait list.
  • Convictions for crimes related to a U petitioner’s victimization will generally not be considered an adverse factor.
  • The fact that a petitioner can continue to pursue a U visa adjudication from outside the United States is not a reason for ICE to deny a Stay of Removal request without additional factors.
  • If ICE grants a U status petitioner’s request for a stay of removal, the determination will extend to derivative beneficiaries.