USCIS to Grant Deferred Action and Work Permits to U Visa Applicants

FAIR Take | June 2021

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum yesterday announcing that USCIS will begin granting work permits and deferred action to illegal aliens who submit applications claiming to be victims of crime in the United States. The policy is DHS’s latest exercise in executive overreach, and has been implemented without regard to the interests of the nearly 10 million unemployed U.S. workers or the provisions of the Immigration and Nationality Act (INA).

Current law allows USCIS to grant up to 10,000 U visas a year to aliens who establish that they are a victim of certain domestic crimes and whose continued presence in the United States is useful to law enforcement in the investigation or prosecution of the criminal activity. The new policy, however, will not benefit aliens who have had their applications approved or applicants who are lawfully in the United States, but rather, only illegal aliens who are waiting for their application to be considered by an immigration officer.

The new U visa work permit program suffers the same legal deficiencies as the Obama administration’s creation of the Deferred Action for Childhood Arrivals (DACA) program. Like DACA, the Biden administration has unlawfully designated another class of ineligible aliens to receive deferment from removal and work permits, without authorization from any provision in the INA. Further, by granting deferred action and work permits to nearly any applicant, not recipient, of the visa, the Biden administration has effectively circumvented Congress’s mandate to limit U visa benefits to its numerical cap.

The U visa program has historically been subject to substantial fraud and abuse, and has been used as a loophole to obtain legal status in the United States despite being otherwise inadmissible or removable. This has been made worse in recent years by legislation from a handful of states, including California, New York, and Nevada, that created legal presumptions of “helpfulness” for victims seeking law enforcement certification for the purpose of applying for a U visa. As a result, state law often requires state and local law enforcement officers to certify that an alien would helpful in the investigation or prosecution of a crime, even if reality dictates otherwise.