USCIS Does Not Have to Let U-Visa Petitioners Travel, the Ninth Circuit Says

Published September 15, 2026 | By Parikh & Prasad, PC

If you filed a U-visa petition years ago and have been waiting ever since, you have probably asked your attorney the same question more than once: can I leave the country and get back in? On September 14, 2026, the Ninth Circuit answered it for the states it covers, California and Nevada among them. USCIS may let you travel. Nothing requires it to — and a federal court cannot order the agency even to consider you.

What the U visa is, and why the wait is so long

Congress created the U visa in the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, § 1513, 114 Stat. 1464, codified at 8 U.S.C. § 1101(a)(15)(U). It is available to victims of qualifying crimes who suffered substantial physical or mental abuse, possess information about the criminal activity, and have been, are being, or are likely to be helpful to law enforcement; qualifying family members can be included as derivatives. Someone who receives the visa gets lawful nonimmigrant status and work authorization for up to four years. 8 U.S.C. § 1184(p)(3)(B), (p)(6); 8 C.F.R. § 274a.12(a)(19).

The bottleneck is statutory. Only 10,000 U visas may be issued each fiscal year to principal petitioners, 8 U.S.C. § 1184(p)(2), and the court noted the cap has been reached every fiscal year since 2010. It also recorded where the queue stands: USCIS is working through petitions filed in or before April 2017, oldest first. That is the reality behind this case — people who helped a prosecution and have since spent most of a decade waiting.

Two interim paths while you wait

Because the cap creates a backlog, USCIS built interim relief into its regulations. Under 8 C.F.R. § 214.14(d)(2), petitioners who would be approvable but for the cap “must be placed on a waiting list,” and “USCIS will grant deferred action or parole” to them “while” they are on it. Employment authorization is left to the agency’s discretion.

Then the waiting list developed a backlog of its own. In 2019, the court noted, it took an average of 41.5 months simply to decide whether a petitioner belonged on the list. So in 2021 USCIS built a faster track — by policy, not regulation: the bona fide determination. Under the USCIS Policy Manual, a principal’s Form I-918 is bona fide once it is complete and the agency has biometric screening results. USCIS then weighs national security, public safety, and other discretionary factors before granting deferred action and an employment authorization document. If relief comes that way, USCIS “generally does not conduct waiting list adjudications” at all.

That distinction matters. Only the waiting-list track includes a full review of whether you actually qualify for the visa: the bona fide process, in the Policy Manual’s words, “does not include a full analysis of eligibility requirements,” while the waiting-list process does.

What advance parole is

Parole is permission from the Department of Homeland Security to enter the United States temporarily, and by statute it “shall not be regarded as an admission.” 8 U.S.C. § 1182(d)(5)(A). Advance parole is the version obtained before you go — a procedure, as the Ninth Circuit has described it, permitting noncitizens to leave and reenter lawfully without jeopardizing a pending application for discretionary relief. Deferred action, the relief these petitioners received, does nothing for travel. It is a decision not to pursue removal for a period of time, and it confers no status. It protects you here. It does not get you back in.

The case

More than 150 U-visa petitioners living in the United States sued the Director of USCIS under the Administrative Procedure Act in the Northern District of California. Some had waiting-list determinations. Most had only bona fide determinations. All had deferred action and work authorization; none had advance parole, and they alleged years of being unable to visit family abroad. Their three APA claims were directed at delayed waiting-list decisions, at the failure to consider any of them for advance parole, and at the denial of parole to the waitlisted group. The district court rejected all three.

In U Visa Appellants v. Director, USCIS, No. 24-6824, decided September 14, 2026, a panel of Judges Paez, Bea, and Forrest affirmed in part, reversed in part, and remanded. Judge Forrest wrote the opinion. Judge Bea concurred in part and dissented in part.

The core holding: “or” means or

Everything turned on one word. Because § 214.14(d)(2) says USCIS “will grant deferred action or parole,” and because the agency sometimes grants both to petitioners waitlisted while living abroad, the petitioners argued it must grant both. The court read “or” as disjunctive, and observed that even treating it as “and/or” — A, or B, or both — still is not “and.” Where a waitlisted petitioner in the United States has been granted deferred action, the regulation is satisfied.

“While” does not follow you across the border

The second theory leaned on “while”: if the regulation promises relief throughout the time you are on the list, USCIS must consider you for parole if you travel. No plaintiff had alleged travel plans, but the court held the argument ripe anyway, because USCIS’s own evidence made a firm prediction possible. A declaration from a USCIS adjudications official stated that the agency “has not used this authority to provide advance parole to individuals inside the United States based on placement on the U visa waiting list,” that waitlist placement “does not create a separate basis on which to apply for advance parole,” and that domestic petitioners granted deferred action “are not subsequently considered for parole even if they depart the United States.”

On the merits, the theory failed. Nothing in “while” requires USCIS to change the relief it already granted based on where the petitioner chooses to be. Deferred action is not withdrawn when someone leaves; the petitioner simply stops benefiting from it while abroad.

The unlawful-presence provision shows authority, not obligation

The next subsection, 8 C.F.R. § 214.14(d)(3), says a petitioner granted deferred action or parole does not accrue unlawful presence while on the waiting list. Unlawful presence accrues only inside the United States, so the petitioners argued that mentioning parole there proves parole must be available to people who are here. The court accepted the premise and rejected the conclusion. The subsection shows USCIS has authority to adopt an advance-parole process for domestic waitlist members; authority to act is not a duty to act. An argument built on 8 C.F.R. § 212.5(f) drew the same answer, and the label “circular” — a petitioner is “authorized” for parole only once USCIS has decided to grant it.

Why the courthouse door closed

That conclusion decided the jurisdictional questions. The waitlisted plaintiffs had Article III standing; the court found injury, causation, and redressability satisfied. Standing was not enough. APA § 706(1) lets a court compel agency action “unlawfully withheld or unreasonably delayed,” and under Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004), that power reaches only a discrete action the agency is required to take. Parole here is discretionary, so there was no statutory jurisdiction. The arbitrary-and-capricious claim failed on different ground: no plaintiff had shown they requested advance parole and were denied, so there was no final agency action to review. An agency’s general policy, standing alone, is not final action.

The one claim that survives

The bona fide group’s separate claim — that USCIS unlawfully withheld or unreasonably delayed considering them for the waiting list — was sent back. The district court had found no injury because waitlisting would not improve their parole prospects, and the Ninth Circuit agreed with that much. But it erred by stopping there. The petitioners raised other injury theories the district court never addressed: that the bona fide track delays adjudication of their actual eligibility and risks the loss of evidence over time, that unlawful presence accrues after a bona fide determination but not after a waitlist determination, and that the bona fide path is a creature of policy rather than regulation and can be changed or rescinded at any time. The case returns for further proceedings on those questions and, if necessary, the merits.

Judge Bea would have dismissed that claim outright, on the view that no statute or regulation requires USCIS to adjudicate waiting-list eligibility for every pending petition, and said the district court should take up that jurisdictional question on remand.

What the decision does not decide

Two limits could matter to a particular family. Every plaintiff lived in the United States and none alleged a derivative abroad, so the court expressly reserved what § 214.14(d)(2) requires for principals or derivatives first placed on the waiting list while overseas. And the panel noted that the Sixth Circuit has held waitlist placement to be nondiscretionary, Barrios Garcia v. DHS, 25 F.4th 430, 443 (6th Cir. 2022), while declining to address that issue here.

The policy shift in the background

The petitioners’ concern about the fragility of the bona fide track was not hypothetical. During the appeal, USCIS issued Policy Alert PA-2026-01 (May 8, 2026), “Deferred Action as an Extraordinary Use of Prosecutorial Discretion,” adding a new Part I to Volume 1 of the Policy Manual. Unless mandated by law or regulation, it says, deferred action is considered only case by case, as an extraordinary exercise of discretion, and USCIS does not grant it to categories or groups. The guidance is effective immediately and applies to requests pending or filed on or after its publication date. The plaintiffs brought it to the court’s attention, and the panel cited the possibility that recent policy changes may require additional factual development on remand.

What to do now

Find out which track you are on. A bona fide determination and a waiting-list determination are not the same thing, and after this decision the difference is the subject of active litigation. Your notices from USCIS will say which you received.

Do not treat deferred action as permission to travel. This is the practical core of the ruling. If you leave with a pending U petition and no grant of parole, nothing in the waitlist regulation guarantees you will be let back in, and the Ninth Circuit has now said USCIS is not obligated even to consider you based on your place in line.

Talk to a lawyer before any international trip. The court noted that petitioners on either track may still seek parole the way any noncitizen can — at a port of entry, or by filing Form I-131. That is a discretionary request with real risk attached, and should not be filed casually.

Keep your evidence current. One of the injury theories headed back to the district court is that years of delay put evidence at risk. Certifications, records, and contact information for the law enforcement agency that helped you are worth preserving while they still exist.

Watch the remand. The bona fide group’s claim is alive, and the questions going back to the district court — including the unlawful-presence difference between the two tracks — could change the calculus for a large number of petitioners.

If you have a U petition pending and are weighing whether travel is possible, our attorneys can review your notices and explain your options. Contact Parikh & Prasad, PC to schedule a consultation.

This post is attorney advertising and is provided for general information only. It is not legal advice and does not create an attorney-client relationship. Immigration law changes rapidly; consult a qualified immigration attorney about your specific situation.

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