Putting the U in Underinclusive: The Shortcomings of U Visa Procedures in Light of the 2021 Bona Fide Determination Process.

• Author: Timko, Paige

"We all should care about victims of domestic violence, documented or not, because they are all people who do not deserve such treatment.... Domestic violence is against the law and all victims, regardless of their legal status, deserve protection." (1)

1. Introduction

   Kenia left her home in El Salvador in 2004 with the hope of having asylum waiting for her in the United States. (2) Instead, a long battle for citizenship awaited her. (3) After nearly fifteen years in the United States, Kenia applied for U Nonimmigrant Status (U visa), a visa available for victims of certain crimes, such as domestic abuse, which aid law enforcement efforts to prosecute those crimes. (4) During her time in the United States, Kenia was in a relationship with a man who physically assaulted her--displaying fresh markings and cuts on her face at the time of reporting--giving her the ability to seek help through a U visa. (5) Kenia obtained an emergency protective order against the man, but, in 2019, while the U visa application was pending, U.S. Immigration and Customs Enforcement (ICE) initiated deportation proceedings without providing an opportunity for her U visa claim to be resolved. (6) Despite her efforts, Kenia was deported to El Salvador, separated from her two adult children in the United States. (7)

   Kenia's experience is not an isolated incident: Thousands of legitimate U visa applicants have sustained immeasurable harm at the hands of the United States because of a catastrophic lack of proper review procedures. (8) In response to stories like Kenia's, the U.S. Citizenship and Immigration Services (USCIS) created the "Bona Fide Determination Process" and published policy manual guidance to aid in its June 2021 implementation. (9) Under this new process, a U visa application that meets certain threshold requirements indicative of its potential for approval no longer undergoes the waitlist adjudication; instead, it creates an alternative route for noncitizens to obtain protections while waiting for a final decision on their U visa determination. (10) Through this determination, USCIS may grant qualifying noncitizens a Bona Fide Determination Employment Authorization Document (BFD EAD). (11) This document allows immigrants to legally obtain employment in the United States, regardless of their citizenship status. (12) If approved for a BFD EAD, the petitioner may also obtain deferred action, effectively shielding them from deportation for a four-year period, solving the dilemma posed by Kenia's story. (13)

   U visa benefits are particularly vital for immigrants who have been subjected to domestic abuse. (14) There are certain domestic abuse concerns specific to noncitizens that are especially troubling, such as threats and manipulation regarding their citizenship status; in theory, the U visa provides a way for them to obtain lawful residency without the assistance or cooperation of their abuser. (15) The victims also have the opportunity to achieve independence in the form of lawful employment, which is especially critical for breaking free from the cycle of abuse. (16)

   Although the 2021 USCIS policy catalyzes a much-needed change in U visa procedures, many cracks still exist that are detrimental for noncitizen domestic abuse victims. (17) Specifically, the prolonged application process and tyrannical cap on the number of applications considered per year inhibits many victims' ability to receive the proper help. (18) The inability of noncitizens to obtain nonimmigrant status within a reasonable time frame--if at all--substantially hinders the effectiveness of the U visa. (19) Recent proposals to raise the statutory cap from the current 10,000 applicants to 30,000 applicants further demonstrate this ineffectiveness. (20)

   This Note will examine the history of the U visa and its continuing failures despite recent attempts to alleviate significant wait times with the Bona Fide Determination Process. (21) Part II begins by considering the impact domestic abuse has on all victims, as well as the specific risks to noncitizen victims in the United States. (22) Part II will detail U visa legislation and the evolving goals of noncitizen domestic abuse relief. (23) Part III will then discuss the inadequacy of the updated procedures to handle the influx of U visa applications which continues to grow each year, highlighting why this must be addressed imminently. (24) This Note concludes that efforts should be made to distribute the influx of U visa applicants among the federal governmental agencies and, subsequently, to increase the yearly cap to better accommodate the number of applicants. (25)

2. History

   1. Overview of Domestic Abuse

      Domestic abuse consists of a pattern of abusive behavior that is used by one intimate partner in a relationship to gain or maintain power and control over another partner. (26) Because gaining power over another can be done in a number of ways, domestic abuse can take numerous forms. (27) For instance, it may consist of emotional, physical, and sexual abuse, in addition to threats of such abuse, intimidation, and other harmful behaviors. (28) Typically, domestic abuse can be described as a cycle of power and control, leaving the victim trapped and isolated. (29)

      Domestic abuse is highly prevalent in today's society, with an average of one in two women succumbing to contact sexual violence, physical violence, or stalking by an intimate partner in the United States. (30) According to a study conducted from 2016 to 2017 in the United States, nine million women reported domestic abuse in just that year. (31) Globally, one in three women have been subjected to either physical or sexual violence in their lifetime. (32) Victims of domestic abuse continuously suffer from its negative consequences: 42% of women who experienced intimate partner violence reported physical injuries as a result of the abuse. (33) Domestic abuse also readily leads to unseen struggles such as depression, post-traumatic stress disorder, anxiety disorders, sleep difficulties, eating disorders, and suicide attempts. (34)

   2. Impact of Domestic Abuse on Noncitizens

      1. Specific Domestic Abuse Concerns for Noncitizens

         Domestic abuse spans many nationalities, races, ethnicities, and socioeconomic classes, but noncitizens are especially vulnerable. (35) Individuals without citizenship status typically experience heightened risks of domestic abuse. (36) Intimidation and manipulation of citizenship or residency are defining features of domestic abuse against noncitizens. (37) The abusers often destroy or withhold important documentation like passports, resident cards, driver's licenses, and health insurance records in an attempt to control victims. (38) Abusers additionally may exploit their victims' fears of deportation by using the noncitizen status as leverage to keep their victims stuck. (39) Beyond status-based concerns, noncitizen victims frequently face additional hardship due to language barriers, lack of information regarding U.S. law, and differing cultural beliefs or practices, forcing them to rely on their abusers. (40) Combined, these factors render noncitizens particularly at risk of becoming victims of domestic abuse in the United States. (41)

      2. Hurdles Preventing Noncitizens from Seeking Legal Assistance

         Although noncitizens are subject to a heightened risk of domestic abuse-- accompanied by unique abuse tactics--victims are often reluctant to seek assistance from law enforcement. (42) Noncitizen women particularly underreport domestic abuse in the United States. (43) U.S. laws guarantee protection from domestic abuse, regardless of immigration status; nonetheless, many noncitizens fear deportation more than remaining in an abusive situation. (44) In addition to the deportation concern, victims often do not know the remedies available to them because of cultural differences, language barriers, and isolation. (45) Further, escaping domestic abuse as a noncitizen can be exceptionally taxing when the victim is reliant on their abuser for their legal status in the United States, whether through marriage, family, or sponsorship. (46) In these instances, turning to law enforcement can mean losing the security of lawful status--a risk many are unwilling to take. (47)

   3. Legislative Efforts Aimed at Assisting Noncitizen Victims of Domestic Abuse

      1. Historical Background of Immigration Based on a Familial Relationship

         Traditionally, when the United States first began formally accepting immigrants, an individual seeking to immigrate based on familial status did so based on the approval of a sponsoring family member in the United States who was a lawful, permanent resident or a citizen. (48) The existing policies required the sponsoring family member to petition the United States for a visa for the immigrating family member. (49) Thus, the entire process of obtaining lawful status in the United States, for women, was at the sole discretion of a sponsoring citizen or permanent resident family member, leaving the immigrant entirely unable to achieve lawful status independently. (50) This scheme of immigration law prevailed until 1990, when the legislature intervened to give noncitizens greater powers that were not conditioned on the cooperation of their spouse. (51)

      2. Immigration Marriage Fraud Act and the Immigration Act of 1990

         Despite the domestic violence issues that were pervasive among noncitizens, it is notable that Congress, out of legitimacy concerns, worsened the domestic violence situation for noncitizens through the passage of the Immigration Marriage Fraud Act (IMFA), which reaffirmed the historical power of the lawful permanent resident spouse over the status of their noncitizen spouse. (52) In 1986, Congress became wary that immigrants were engaging in fraudulent marriages to obtain lawful permanent residency, passing IMFA to ensure the legitimacy of the system. (53) IMFA dictated that, in marriages less than two years...