Victims of qualifying crimes who assist law enforcement and government officials in the investigation and prosecution of criminal activity may travel to the United States under a U visa. With approved U nonimmigrant status, the victim and their immediate family members (under derivative U visas) may temporarily reside in the United States for up to four years. After three years of continuous physical presence in the United States, eligible U visa-holders can apply for permanent residency with a green card.
Processing a U visa application can unfortunately take a very long time (up to four years in some cases), but the good news is that qualifying applicants can be placed in deferred action status while on the waiting list. During that time, the applicant can live and work in the United States with a valid work permit under deferred action status.
US Citizenship and Immigration Services (USCIS) maintains an online portal with up-to-date estimates of application processing times for most immigration petitions. Currently, the estimated waiting time for a work permit is approximately 2.5 – 5 months.
Foreign nationals who wish to work in the United States must have express authorization from USCIS before starting a job. Some visas naturally include employment authorization, while others require a separate work permit. In either case, the visa-holder will need an Employment Authorization Document (EAD) to prove their work status to prospective employers. Whether you need employment authorization, an EAD, or both, you can apply with Form I-765, Application for Employment Authorization.
The U Visa Application Process
A discussion about U visa work permits requires an understanding of the U visa application process, as the process is quite long and may require multiple work permits. Generally speaking, the U visa application process is as follows:
- The victim of a qualifying crime helps law enforcement officials (or agrees to help them) and receives a certificate (Form I-918 Supplement B)
- The victim files an application for U nonimmigrant status (Form I-918) with the USCIS Vermont Service Station
- Assuming USCIS approves the application, the applicant will be placed in deferred action on a waiting list until a U visa becomes available (USCIS only issues 10,000 U-1 visas each year)
- Once a U visa is available, the applicant’s status will switch from deferred action to U nonimmigrant
- After establishing a physical presence in the United States for at least three years, a U visa-holder can apply for a green card
Work Permits for the Principal U Visa Petitioner
Under U nonimmigrant status regulations, the victim of the qualifying crime is referred to as the principal (principal applicant, principal petitioner, etc.). Once the application is approved, the principal will receive a U-1 visa that is valid for up to four years.
U-1 visa petitioners are employment authorized incident to status, so USCIS will automatically issue an EAD when the underlying application for U nonimmigrant status is approved. That means U-1 principals only need to apply for a work permit while they are under deferred action status. Currently, USCIS automatically issues a two-year employment authorization to principals who submit a work permit application concurrently with their U visa application.
Work Permits for Derivative U Visa Petitioners
In most cases, U-1 principals can petition for a U visa on behalf of immediate family members. In this context, these family members are referred to as derivative petitioners or beneficiaries. Principals who are younger than 21 can apply on behalf of their spouse (U-2), children (U-3), parents (U-4), and unmarried siblings under 18 (U-5), while principals who are 21 and over can only apply on behalf of their spouse and children.
Derivative family members who live in the United States are also employment authorized incident to status. However, where USCIS automatically issues the principal an EAD upon approval of U nonimmigrant status, USCIS does not automatically issue derivative family members an EAD upon their U visa approval. Derivative family members would need to submit a separate petition to receive an EAD.
Just as the agency does for U visa principal applicants, USCIS issues a two-year employment authorization to derivative applicants who submit a work permit application concurrently with their U visa application. If their derivative U visa application is still pending when the first work permit is set to expire, the derivative family member would need to submit another work permit application to bridge the gap until their U visa application is ultimately approved.
How to Obtain a Work Permit
Generally speaking, U visa principals are advised to submit a work permit application concurrently with their U visa application. USCIS should approve the application after the principal is placed in deferred action on the U visa waiting list. Once a U visa becomes available, USCIS will automatically issue a new EAD reflecting the change in status.
Derivative family members are generally advised to submit two work permit applications along with their U visa application. The first permit application is for authorization for two years during deferred action status, and the second application is for a new EAD reflecting the change in status once the applicant switches from deferred action to U nonimmigrant status. USCIS will hold on to the second application and process it with the U visa application once a U visa becomes available.
Note that for each work permit application, there is a $410 filing fee attached to Form I-765. Unfortunately, that means derivative family members would need to pay a total of $820 to file both work permit applications. If you believe you qualify for a fee waiver, you can request to have your filing fees waived with Form I-912.
Filing for a Replacement Work Permit
Considering how there is potentially a four-year waiting list for U visas, there’s unfortunately a significant chance that your two-year work permit will expire before your status changes from deferred action to U nonimmigrant. As long as you are still eligible for employment authorization, you can apply for a renewal EAD with Form I-765. The standard $410 filing fee still applies, and USCIS will only review renewal applications for an EAD that expires in less than 180 days.
Call our Immigration team at (480) 626-2388 to discuss your case today.