Do You Need to Continue I 929 Petition if U Visa is Approved

• Introduction: Purpose of the Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant
• Statutory Background
• Implementation through Regulations and USCIS and Department of State (DOS) Guidance
  • Extreme Hardship
  • Evidence Establishing Applicant Merits Favorable Exercise of Discretion
  • Decision on the Form I-929
  • Applying for Adjustment of Status
  • Applying for a Visa Through Consular Processing
• Conclusion

Introduction: Purpose of the Form I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant

If an individual is approved for U nonimmigrant status as a principal U1 visa holder, he or she may seek to afford derivative U nonimmigrant status to certain qualifying family members. A derivative U nonimmigrant will be eligible to seek adjustment of status separate from the principal U nonimmigrant. The U nonimmigrant statutes provide for a limited scenario in which a principal U nonimmigrant may file the Form I-929, Petition for a Qualifying Family Member of a U-1 Nonimmigrant, on behalf of a qualifying relative who was never a derivative U nonimmigrant. This petition may be approved after the principal adjusts status and would allow the qualifying family member to seek admission into the United States as a permanent resident. In this article, we will examine the rules surrounding the Form I-929 petition.

Please see our full articles to learn about adjustment of status for U nonimmigrants [see article], extension of status [see article], and special situations in which a derivative U nonimmigrant can procure an extension of status to meet the continuous physical presence requirement for adjustment from U nonimmigrant status to permanent resident status [see article]. Please see our category on the U visa in general to learn more about a variety of issues relating to U nonimmigrant status [see category].

Additionally, please consult the following 2008 USCIS Fact Sheet for a brief overview of many of the points that we discuss in detail in this article [PDF version].

Statutory Background

The provision underpinning the Form I-929 is found in section 245(m)(3) of the Immigration and Nationality Act (INA). The statute provides that, upon the approval of an adjustment of status application for a principal U nonimmigrant, "the Secretary of Homeland Security may adjust the status or issue an immigrant visa to a spouse, a child, or in the case of an alien child, a parent who did not receive a [derivative U visa] under section 101(a)(15)(U)(ii)" of the INA. In order to approve an immigrant visa petition in such a case, the United States Citizenship and Immigration Services (USCIS) must find that the grant of permanent resident status to the qualifying relative is "necessary to avoid extreme hardship" [see article].

It is important to note that not every individual who may have been eligible for a derivative U visa will be eligible for permanent residency based on a Form I-929 petition. Section 101(a)(15)(U)(ii) of the INA provides the list of individuals who may be eligible for a derivative U visa. If the principal U nonimmigrant is under the age of 21, his or her spouse, children, unmarried siblings under 18 years of age (on the date on which the alien applied for U nonimmigrant status), and parents will be eligible for derivative U nonimmigrant status. If the principal U nonimmigrant is 21 years of age or older, his or her spouse and children will be eligible for derivative U nonimmigrant status. However, regardless of the age of the principal U nonimmigrant, he or she cannot file a Form I-929 on behalf of a sibling.

Implementation through Regulations and USCIS and Department of State (DOS) Guidance

The Department of Homeland Security (DHS) promulgated regulations to implement section 245(m)(3) of the INA. These regulations are found in 8 C.F.R. 245.24(g) and (h).

Under 8 C.F.R. 245.24(g), a principal U1 nonimmigrant who is seeking adjustment of status or who has adjusted status already may file the Form I-929 immigrant petition on behalf of a qualifying family member under the following circumstances (paraphrased):

1. The qualifying family member has never held U nonimmigrant status;
2. The qualifying family relationship exists at the time of the U1 principal's adjustment and continues to exist through the adjudication of the adjustment of status application or the issuance of the immigrant visa for the qualifying family member;
3. The qualifying family member would suffer extreme hardship, as defined in 8 C.F.R. 245.24(g), if the qualifying family member is not allowed to remain in or enter the United States; and
4. The principal U1 has adjusted status to that of a lawful permanent resident, has a pending application for adjustment of status, or is concurrently filing an application for adjustment of status.

8 C.F.R. 245.24(g)(2) requires that the relationship between the principal and the qualifying family member exists at the time the principal adjusts or adjusted status. This means, for example, if the principal marries or has a child after adjusting status, the principal could not file a Form I-929 on behalf of the spouse or child. Instead, the principal would have to sponsor a family immigrant visa petition as a lawful permanent resident to accord status on the spouse or child. Similarly, if the principal divorces his or her spouse between the filing of the Form I-929 and the issuance of an immigrant visa based on an approved Form I-929, the former spouse would not be eligible for an immigrant visa.

In the Department of State's (DOS's) Foreign Affairs Manual (FAM), the DOS notes at 9 FAM 402.6-6(K)(d) that there is no age-out protection for the child beneficiary of a Form I-929 petition. The lack of age-out protection is distinguishable from seeking adjustment of status as a derivative U nonimmigrant child, where certain age-out protections do apply. The DOS takes the position that as soon as the beneficiary turns 21 years of age, he or she is no longer eligible for an immigrant visa on the basis of being the child beneficiary of the Form I-929 petition. In an unpublished decision titled the Matter of C-J-C-A, (AAO, Vermont Service Center, Oct. 27, 2015), 2015 WL 6957366, the AAO held that an individual who was the beneficiary of a Form I-929 petition and who aged out before being able to adjust status was ineligible for adjustment of status. Although this decision is not for precedent, it indicates that both the DOS and the USCIS concur that there is no age-out protection for a child-beneficiary of a Form I-929 petition.

The regulations allow for the filing of the Form I-929 after the principal has adjusted status, while an adjustment of status application is pending, or concurrently with the application for adjustment of status. Furthermore, the Form I-929 may be filed on behalf of an individual abroad or an individual in the United States. Regulations found in 8 C.F.R. 245.24(h)(1)(i)-(v) list the filing requirements:

1. The Form I-929, in accordance with the form instructions [PDF version (03/16/15 ed.)];
2. The requisite filing fee ($230.00 as of 12/23/16) or an application for a fee waiver [see article];
3. Evidence of qualifying relationship between petitioner and qualifying relative (e.g., birth or marriage certificate, or if primary evidence is unavailable, secondary evidence such as affidavits);
4. Evidence establishing that either the qualifying family member or U1 principal would suffer extreme hardship if the qualifying family member is not allowed to remain in the United States or join the principal in the United States; and
5. Evidence, including a signed statement from the qualifying family member and other supporting documentation, to establish that discretion should be exercised in the qualifying family member's favor.

Extreme Hardship

8 C.F.R. 245.24(h)(1)(iv) sets forth the extreme hardship requirement for approval of a Form I-929 petition. First, it is important to note that the petition may be approved based on establishing that extreme hardship to either the U1 alien or the qualifying family member would occur if the petitioner were to be denied. The regulation explains that extreme hardship is evaluated on a case-by-case basis. In endeavoring to establish extreme hardship, the petition should document any and all applicable factors. Because the USCIS makes extreme hardship determinations based on all of the available evidence, it is likely that no single piece of evidence will be determinative. If the petition is based on hardship to the qualifying family member and the qualifying family member is already present in the United States, the petition must establish that the removal of the family member "would result in a degree of hardship beyond that typically associated with removal." At clauses (A)-(G), the regulation lists factors that may be relied upon to establish extreme hardship to either the U1 principal alien or the qualifying family member:

A. The nature and extent of the physical or mental abuse suffered as a result of having been a victim of criminal activity;
B. The impact of loss of access to the United States courts and criminal justice system (including factors related to the underlying criminal activity);
C. The likelihood that family, friends, or others acting on behalf of the perpetrator of the criminal activity in the home country would harm the applicant or his or her children;
D. The applicant's needs for social, medical, mental health, or other supportive services for crime victims that are unavailable or not reasonably accessible in his or her home country;
E. If the criminal activity was related to domestic violence, the existence of laws and social practices in the home country that punish the applicant or his or her child(ren) because they were the victims of domestic violence or took steps to leave an abusive household;
F. The perpetrator's ability to travel to the home country and the willingness of the authorities in the home country to protect the applicant and the applicant's child(ren); and
G. The age of the applicant both at the time of entry to the United States and at the time of the application for adjustment of status.

Significantly, this list of factors is not exhaustive. Any individual factor may or may not be applicable because of the facts of an individual case. Applicants should work with an experienced immigration attorney to determine whether there is a case to be made in support of the Form I-929, and if so, the evidence that would best sustain the burden of proof regarding the extreme hardship requirement.

Under 8 C.F.R. 245.24(h)(1)(v), if there are serious adverse factors weighing against the approval of the Form I-929, the evidence may have to rise to establishing the "exceptional and extremely unusual hardship" that would result if the petition were to be denied [see section]. Moreover, depending on the severity of the adverse factors, the USCIS may still deny the petition notwithstanding that the applicant sustains the burden for establishing exceptional and extremely unusual hardship. The regulation states that, in general, the USCIS will generally not exercise discretion favorably in cases where the applicant has committed a serious violent crime, a crime involving sexual abuse of a child, multiple drug-related crimes, or where there are security- or terrorism-related concerns regarding the applicant.

Evidence Establishing Applicant Merits Favorable Exercise of Discretion

Under 8 C.F.R. 245.24(h)(1)(v), the Form I-929 must be accompanied by a signed statement from the qualifying family member along with other supporting documentation to establish that the qualifying family member warrants the favorable exercise of discretion.

The regulation notes that qualifying family members are not required to establish that they are admissible on any grounds found in section 212(a) of the INA except for section 212(a)(3)(E) (relating to inadmissibility due to participation in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing). Nevertheless, because the decision of whether to approve the Form I-929 is discretionary, the USCIS may consider all factors in determining whether the qualifying relative merits the favorable exercise of discretion, including acts that would otherwise render the applicant inadmissible. Accordingly, the petition should be accompanied by supporting documentation that offsets any adverse factors that could weigh against the approval of the Form I-929, where arguably applicable. Please refer to the extreme hardship section for a discussion on when a higher hardship standard may apply.

Decision on the Form I-929

The decision of whether to approve a Form I-929 is in the discretion of the USCIS. Moreover,the approval of the Form I-929 does not accord lawful status to the qualifying family member. Rather, it merely allows the qualifying family member to seek an immigrant visa at a U.S. consulate or to apply for adjustment of status from within the United States.

If the Form I-929 is approved, the 8 C.F.R. 245.24(h)(2)(i)(A) and (B) codify procedures for when the qualifying relative is abroad and when the qualifying relative is in the United States. If the qualifying family members are abroad, the USCIS will forward notice of the petition approval to the DOS's National Visa Center (NVC) so that the applicant can apply for an immigrant visa at a consular post or at an appropriate port of entry if the applicant is visa-exempt. If the qualifying family member is in the United States, the USCIS will forward an approval notice to the U1 principal applicant.

Under 8 C.F.R. 245.24(h)(2)(ii), if the Form I-929 is denied, the applicant will be notified in writing of the reasons for the denial of the petition. The applicant may appeal the denial to the AAO under 8 C.F.R. 103.3. If the applicant appeals, the denial will not become final until the AAO renders a final decision. There is no appeal from a denial by the AAO.

If the Form I-929 was filed prior to the principal U1 nonimmigrant being granted adjustment of status, and if the principal U1 nonimmigrant's application for adjustment of status is then denied or withdrawn, then the Form I-929 will be denied automatically. There are no grounds for appealing the automatic denial of the Form I-929 under such circumstances.

Applying for Adjustment of Status

If a Form I-929 is approved and the qualifying family member is present in the United States, he or she may seek adjustment of status to lawful permanent resident. 8 C.F.R. 245.24(i)(1)(i)-(iv) lists the filing requirements for seeking adjustment of status on the basis of an approved Form I-929:

1. Form I-485, Application to Register Permanent Residence or Adjust Status, filed in accordance with the form instructions;
2. An approved Form I-929;
3. The filing fee ($1,140 as of Dec. 23, 2016) or fee waiver request;
4. The biometric services fee ($85 as of Dec. 23, 2016) or fee waiver request.

The decision whether to approve the adjustment of status application is discretionary. The approval of the Form I-929 does not guarantee the subsequent approval of the Form I-485. Additionally, the applicant must maintain his or her relationship to the U1 principal alien and, if a child, must be under 21 years of age when the adjustment of status application is fully adjudicated. However, section 245.24(l), the provisions of 8 C.F.R. 245.1 and 245.2, and by effect sections 245(a) and (c) of the INA, are inapplicable to adjustment of status applications filed under section 245(m) of the INA (contains the various U visa adjustment provisions, including the one based off an approved Form I-929 in section 245(m)(3)).

8 C.F.R. 245.24(i)(2), the applicant will be notified of the final decision on the Form I-485 in writing. If approved, 8 C.F.R. 245.24(i)(2)(i) provides that the applicant will be admitted as a lawful permanent resident from the date of such approval. If the application is denied, 8 C.F.R. 245.24(i)(2)(ii) provides that the applicant will be notified of the reason(s) for denial in writing. The applicant may appeal the denial to the AAO, and in such case, the denial will not be finalized until the AAO renders a decision on appeal. However, the applicant may not renew or seek new employment authorization while the denial is under appeal. There is no appeal from a denial by the AAO because, under 8 C.F.R. 245.24(k), the USCIS has exclusive jurisdiction over adjustment applications filed under section 245(m) of the INA.

Although this is a general rule for individuals seeking adjustment of status, it is worth noting that leaving the United States while an adjustment application is pending will generally constitute abandonment of the application. However, an applicant may seek advance parole if he or she needs to depart while an adjustment of status application is pending [see article].

Applying for a Visa Through Consular Processing

The DOS explains the process for consular processing for an individual based on an approved Form I-929 in 9 FAM 402.6-6(K). An individual seeking an immigrant visa through consular processing will be considered in the SU category, which is not numerically limited. This means that there is no wait time associated with the SU visa category. If the application is approved, the individual will be able to immediately follow their LPR relative (the U1 principal alien) to the United States.

Once the beneficiary of the Form I-929 is documentarily qualified, pays all the appropriate fees, and schedules an interview, the NVC will forward the Form I-929 petition to the appropriate consular posts for processing.

The FAM instructs DOS officers to process cases where the immigrant visa applicant is a child who is approaching 21 years of age expeditiously. This is to ensure that a final decision can be rendered before the applicant ages out and becomes ineligible. However, there is no guarantee in a given case that the DOS will be able to render a decision in advance of the age out. If the individual does age out, the visa will be refused automatically [see article on visa refusals].

In order to procure a visa, all immigrant visa requirements must be met, except for the Form I-864, Affidavit of Support. Section 212(a), (4)(C), and (D) inadmissibility do not apply in these cases.

The classification for a spouse is SU2, for a child is SU3, and for a parent is SU5.

Conclusion

In certain cases, the Form I-929 provides an alternative way for a person who was approved for U nonimmigrant status to accord status to a qualifying relative. However, there are significant differences between the Form I-929 process and seeking derivative U nonimmigrant status for a qualifying relative. Chief among these differences is that the principal U1 nonimmigrant must be at a minimum be applying for adjustment of his or her own status in order to file a Form I-929, and the adjustment application of the principal U1 nonimmigrant must be approved before the Form I-929 can be approved. It is important to consult with an experienced immigration attorney throughout the U visa application process for guidance on obtaining approval for U nonimmigrant status and adjustment of status, and on planning ahead to provide qualifying relatives with the best opportunity to procure nonimmigrant and/or immigrant status in the United States through the principal.

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Source: http://myattorneyusa.com/overview-of-the-form-i-929-petition-for-a-qualifying-family-member-of-a-u-1-nonimmigrant

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