The Immigration and Nationality Act (INA) gives multiple federal agencies under several Cabinet departments jurisdiction over different—sometimes overlapping—processes. U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), handles most visa petitions and applications for adjustment of status. The courts that hear removal cases and other matters are part of the Executive Office of Immigration Review (EOIR), which is part of the Department of Justice. The Board of Immigration Appeals (BIA), also part of EOIR, recently resolved a dispute over whether an immigration judge (IJ) could adjudicate a request for a waiver of inadmissibility by a U visa petitioner, when the petitioner was already in the IJ’s court for another matter. Matter of Khan, 26 I&N Dec. 797 (BIA 2016). The BIA held that USCIS has exclusive jurisdiction to decide whether to grant waivers of inadmissibility.
A prospective immigrant who wishes to come to the U.S. must establish that they do not fall under any of the categories of inadmissibility set forth by the INA. These include criminal convictions, national security issues, and health-related factors. See 8 U.S.C. § 1182(a). USCIS has discretionary authority, however, to admit many otherwise inadmissible people on a temporary nonimmigrant basis. Id. at § 1182(d)(3)(A)(ii). This is known as a waiver of inadmissibility.
The INA creates numerous categories of nonimmigrant visas for people who intend to come to the U.S. for a limited period of time before returning home. These include tourist and business visitor visas, student visas, and various types of work visas. The respondent in Khan was seeking a U visa, which is available to crime victims who are actively assisting law enforcement in an investigation or prosecution. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The total number of U visas that may be issued each fiscal year is capped at 10,000, not counting spouses and parents of the principal beneficiaries. A U visa is valid for up to four years and can be extended under some circumstances.