Legal Permanent Residence Based on a U Visa

There are a special set of laws and rules for obtaining a green card through a U visa. For most people, section 245(a) of the Immigration and Nationality Act (INA) governs who can adjust status in the United States. For U visa holders, section 245(m) of the INA outlines the eligibility and criteria for applicants submitting Form I-485 to USCIS.

Section 245(m)(1) of the INA states that USCIS "may adjust the status" of a person that was lawfully admitted into the United States with a U visa. This is an important provision because if a person was not admitted under U visa status, he or she cannot adjust status under this section of the law. For example, a person that currently holds a U visa, but did not disclose an important fact on his or her original Form I-918, Petition for U Nonimmigrant Status, may not have been "admitted" with a U visa in the first place. As a result, a person with U visa status may not be eligible to adjust status under section 245(m) in the future.

Significantly, section 245(m)(1) also forecloses the ability to obtain a green card to a U visa applicant that files Form I-485 after his or her U visa status has expired. For example, if a U-1 status has been issued to a person from January 15, 2016 until January 14, 2020, a person must file Form I-485 with U.S. Citizenship and Immigration Services before the expiration of the U visa on January 14, 2020 in this example. Form I-485 must be filed at the correct service center depending on where you reside and also before the expiration date of the U visa. Keep in mind that an applicant must hold U visa status at the time of the filing of Form I-485. See 8 C.F.R. § 245 .24(b )(2)(ii).

Additionally, section 245(m)(1)(A) of the INA states that a person must have been physically present inside the United States for a period of 3 years since obtaining a U visa. If a person leaves the United States for a period of 90 days or longer, then he or she breaks the 3 year physical presence requirement. See INA 245(m)(2). The physical presence requirement comes into play when a person with a U visa seeks to travel abroad. Although a person with a U visa can travel abroad, he or she would need to apply for waiver using Form I-192 before returning to the United States. Waiting for the approval of a waiver on Form I-192 will likely take longer than 90 days. As a result, if a person is outside the United States for longer than 90 days, he or she will break the 3 year physical presence requirement when it comes time to apply for adjustment of status, and would be ineligible to adjust status under section 245(m)(1)(A). In such a case, a person would need to begin to accrue another 3 years of continuous physical presence upon any subsequent admission into the United States with a U visa. See AAO Non-Precedent Decision, dated April 13, 2022, ("Thus, the Act and regulation do not require the accrual of continuous physical presence from the first grant of U status, and instead, allow for a new period of continuous physical presence to commence upon any subsequent "date of admission as a U nonimmigrant." Section 245(m)(1)(A) of the Act; 8 C.F.R. § 245.24(a)(1).").

Finally, section 245(m)(1)(B) states that USCIS can approve an application to adjust status if, in their opinion, it is "justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest." This provision appears like a low legal standard, but it has been the basis to deny applications for adjustment of status for U visa holders.

A person may have been granted a U visa, but could still be denied an application for adjustment of status under the same factors used to approve the U visa. For example, in a recent decision by the Administrative Appeals Office (AAO), an application for adjustment of status was denied under section 245(m)(1)(B) because the negative factors in the case outweighed the positive factors in the case even though the U visa had been granted using the same factors. The AAO held that the discretionary standards for approving a temporary U visa are more lenient than the discretionary standards for approving a permanent legal residence. See AAO Non-Precedent Decision, dated June 14, 2022, ("Thus, the fact that USCIS granted the Applicant U nonimmigrant status and a waiver of inadmissibility as a matter of discretion despite her immigration violations and criminal record, does not mean that USCIS must exercise its discretion favorably in adjustment of status proceedings notwithstanding those adverse factors.").

Even if a person is not convicted of a crime, USCIS will take into account the facts and circumstances that led to an arrest when making a discretionary decision about whether to approve an I-485 based on a U visa. See AAO Non-Precedent Decision, dated May 9, 2022, ("even if the Applicant was not ultimately convicted of the charges, that does not equate with a finding that the underlying conduct or behavior leading to the charges did not occur or that the charges were unsubstantiated. See 8 C.F.R. § 245.24(d)(11) (stating that USCIS may take into account all factors in making the discretionary determination and that it "will generally not exercise its discretion favorably in cases where the applicant has committed or been convicted of' certain classes of crimes.").