Can I Add My New Spouse to My Pending U Visa?

The U nonimmigrant status (U visa) was created in October 2000 as part of the Victims of Trafficking and Violence Protection Act and the Battered Immigrant Women Protection Act. Congress created the U visa to protect non-citizens who are victims of crime and encourage them to come forward without fear of removal.

To qualify for a U visa, the applicant must be a victim of a qualifying crime, including (but not limited to):

• Domestic violence
• Stalking
• Blackmail
• Trafficking
• Prostitution
• Perjury
• Extortion
• Abduction
• False imprisonment
• Manslaughter
• Murder
• Obstruction of justice
• Sexual assault
• Felony assault

The U nonimmigrant status is intended to encourage victims to come forward regardless of their immigration status. In return for their willingness to assist law enforcement with the investigation and prosecution of criminal activity, U visa holders are provided with:

• Temporary immigration status
• Work authorization (“Employment Authorization Document”)
• The ability to apply for a green card after 3 years
• Protection from removal

New Spouses Now Eligible to “Accompany” U-1 Petitioner

According to a recent court ruling on May 2, 2021, U visa applicants are now eligible to add an after-acquired spouse to their pending U visa petition, even if they initiated the process before marriage.

Before this change went into effect, many newly married immigrants were forced to wait until the USCIS reached a final decision regarding the first spouse’s petition before they could hope to apply for a U visa themselves. Prior to May 2021, spouses were required to wait another 3 years for the other spouse to become eligible to file for an adjustment of status petition and Form I-929 (Petition of Qualifying Family Member of a U-1).

As you can see, the process for U visa applicants to help their families and loved ones can be intricate and time-consuming. Fortunately, the U.S. Court of Appeals for the Ninth Circuit’s decision in Medina Tovar v. Zuchowski changed the federal landscape for U visa applicants and their families in May 2021.

Are you eligible to add your new spouse to your pending U visa application? Keep reading to learn more about eligibility requirements for both yourself and your partner.

Eligibility Requirements for Qualifying Family Members

The court’s decision in Medina Tovar v. Zuchowski significantly reduced the wait time and simplified the process of adding a family member to a pending U visa application. Now, U nonimmigrant visa applicants are permitted to add new spouses—regardless of whether they submitted their application prior to the marriage.

If you wish to add a family member (including an after-acquired spouse) to your pending U visa petition, you can do so by including them as a “derivative.” The following people are eligible to be added to a pending U visa application:

• If the applicant is over 21, they can include their spouse and any unmarried children under 21.
• If the applicant is under 21, they can include their spouse, unmarried children, parents, and unmarried siblings under 18.

Any derivatives (family members) added to a pending petition do not have to be a victim of crime themselves. However, they are required to show that they’re not prohibited from obtaining status on the “grounds of inadmissibility.” Such grounds are established by the Immigration and Nationality Act.

Common reasons for inadmissibility include (but aren’t limited to):

• Health
• Criminal activity
• National security
• Public charge
• Lack of labor certification
• Fraud and misrepresentation
• Prior removals
• Unlawful presence in the U.S.
• Other miscellaneous categories

If one of these items applies to your spouse or family member, there’s no need to give up hope. The person in question can still apply for a waiver that may change the situation. The U.S. Citizenship and Immigration Service (USCIS) will review their application and make a final decision.

How Can I Get a U Visa for My New Spouse?

To include your new spouse on your pending U-1 petition, it’s important to follow the steps outlined by the USCIS as meticulously as possible:

#1: Fill out Form I-929 (Petition for Qualifying Family Member of a U-1 Nonimmigrant).

A petitioner may file Form I-929 on behalf of a spouse or family member who doesn’t hold U nonimmigrant status. Keep in mind that a separate petition must be filed for each individual family member if the petition intends to file for multiple derivatives.

The petitioner must either be a lawful permanent resident or have a pending Form I-485, including a pending U visa application. In this case, the petitioner should submit:

• A copy of their approval notice for Form I-918
• The Petition for U Nonimmigrant Status
• A receipt that shows Form I-845 has been filed with USCIS

When filling out the petition for a qualifying family member, it’s crucial to follow these guidelines:

• Type or print in legible black ink.
• Fill out all parts of the form. If a question doesn’t apply to you, simply write “N/A” (not applicable). Don’t leave it blank.
• If you need extra space, attach a continuation sheet that includes your full name and Alien Registration number at the top of each sheet. Indicate the item number, and be sure to sign and date each sheet.
• Include English translations if needed. All non-English documents or text must be translated into English before submission.

#2: Include evidence to support your petition.

The person filing must demonstrate a legal and valid relation to the spouse or family member they are filing for. This is achieved by including supporting documentation and evidence with your I-929 form.

Satisfying USCIS requirements can be difficult and confusing. It’s important to provide enough evidence to ensure your case is well-supported. To successfully include your spouse on your pending U visa petition, it’s crucial to seek legal counsel from a trusted immigration attorney, as they can help you collect and present evidence effectively and fully.

According to USCIS regulations, there are 4 things a U-1 petitioner must prove:

1. The petitioner is a lawful permanent resident or has a pending I-485 form.
2. The petitioner’s alien relative is eligible for immigrant classification based on their relationship to the petitioner.
3. The petitioner or their alien relative will suffer extreme hardship if they aren’t permitted to remain in or enter the United States.
4. The petitioner must establish that discretion should be exercised in favor of their alien relative.

A marriage certificate or evidence of a legal name change is appropriate evidence to establish your marriage to the spouse you’re applying for. If you wish to apply for your child or parent, a birth certificate will both names listed can effectively demonstrate a familial relation.

It’s important to consult with a skilled immigration lawyer to ensure the evidence you include is sufficient and relevant to your case. Ideally, you’ll send the following documents to the USCIS:

• Form I-929. Make sure the petition is completely filled out, signed, and dated.
• A photo of your spouse or family member.
• Proof of lawful permanent residence status or pending U visa petition.
• Proof of relationship to the spouse or family member you’re applying for
• Proof of extreme hardship if your spouse or family member isn’t permitted to stay or enter the U.S. Examples may include medical records, court documents, photographs, and well-written testimonies or affidavits.

#3: Mail your completed I-929 form and filing fee to USCIS.

Once your Petition for Qualifying Family Member of a U-1 Nonimmigrant is entirely filled out (including all required signatures), it’s time to submit Form I-929 and the required evidence to USCIS.

Your completed I-929 form and corresponding evidence should be mailed to:

It’s important to include the $230 required filing fee with your petition. Follow these instructions closely when submitting your payment:

• Do NOT mail cash.
• Your check or money order must be drawn from a U.S. bank or financial institution and be payable in U.S. currency.
• Make the check or money order payable to “U.S. Department of Homeland Security.”

Because filing fees are subject to change, you can confirm the current fee by clicking here and selecting “Forms.”

Fierce Advocacy for Immigrants in New York

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