On September 14, 2026, the U.S. Court of Appeals for the Ninth Circuit issued a precedential decision in U Visa Appellants v. Director, USCIS, No. 24-6824. The court held that parole for U visa petitioners on the waiting list is discretionary. The Administrative Procedure Act (APA) does not authorize a court to compel USCIS to grant that discretionary relief.
The decision has immediate implications for U visa petitioners and qualifying family members who live in the United States, have deferred action and a work permit, and are considering international travel.
The ruling applies within the Ninth Circuit: California, Washington, Oregon, Arizona, Nevada, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands.
What did the Ninth Circuit decide?
More than 150 U visa petitioners residing in the United States brought the lawsuit in the Northern District of California. The petitioners had received deferred action and employment authorization but had not received advance parole.
The case presented three claims:
- U visa petitioners with bona fide determinations alleged that USCIS unlawfully withheld or unreasonably delayed considering them for placement on the U visa waiting list.
- All plaintiffs alleged that USCIS unlawfully withheld or unreasonably delayed considering them for advance parole.
- Petitioners already on the waiting list alleged that USCIS arbitrarily and capriciously denied them advance parole.
The panel consisted of Judges Paez, Bea, and Forrest. Judge Forrest wrote the majority opinion. Judge Bea concurred in part and dissented in part.
The court held that:
- USCIS has discretion to grant parole to U visa petitioners on the waiting list.
- The phrase “deferred action or parole” in 8 C.F.R. § 214.14(d)(2) identifies alternatives rather than requiring USCIS to grant both forms of relief.
- The APA does not permit courts to compel an agency to take discretionary action under 5 U.S.C. § 706(1).
- The arbitrary-and-capricious claim failed because the plaintiffs did not present evidence that they had requested and been denied parole. Therefore, there was no final agency action reviewable under 5 U.S.C. § 706(2).
The decision is available in the Ninth Circuit’s published opinion.
Why does the phrase “deferred action or parole” matter?
The waiting-list regulation provides that:
“USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list.”
The petitioners argued that USCIS must grant both deferred action and parole. The Ninth Circuit rejected that interpretation.
The court concluded that “or” sets out alternatives. USCIS may grant deferred action, parole, or both in an appropriate case. The regulation does not require USCIS to provide advance parole to every waitlisted petitioner who is already inside the United States and has received deferred action.
The court also rejected arguments based on 8 C.F.R. § 214.14(d)(3), which provides protection from accruing unlawful presence for qualifying petitioners who are on the waiting list and have been granted deferred action or parole. The court determined that this provision indicates that USCIS has authority to create a parole process. It does not require USCIS to grant parole to every domestic petitioner.
What is the difference between deferred action, parole, and advance parole?
These terms have distinct legal meanings.
Deferred action
Deferred action is an exercise of prosecutorial discretion that defers removal for a specified period. It does not:
- Create lawful immigration status;
- Provide a right to enter or reenter the United States; or
- Guarantee permission to travel internationally.
A U visa petitioner may receive deferred action while waiting for USCIS to complete further processing. Deferred action commonly supports eligibility for an employment authorization document, or work permit.
Parole
Parole is temporary permission to enter the United States physically. It is not an admission and does not create an immigration status. Parole remains discretionary and may be granted for humanitarian reasons or significant public benefit.
Advance parole
Advance parole is arranged before travel. It generally allows a person to leave the United States and request parole upon returning. It does not guarantee admission or reentry. The final decision is made by U.S. Customs and Border Protection at the port of entry.
A work permit or deferred action document is not a travel document.
How do the two U visa interim tracks differ?
The U visa program has a statutory cap of 10,000 principal petitioners per fiscal year. The cap has been reached every fiscal year since 2010. The Ninth Circuit opinion referenced more than 250,000 unadjudicated Form I-918 petitions as of fiscal year 2026, second quarter.
According to the USCIS page cited in the opinion, current as of June 5, 2026, USCIS was reviewing petitions filed in or before April 2017. The waiting-list process previously took an average of 41.5 months in 2019 and more than 50 months by the end of 2020.
The regulatory waiting-list process
The waiting-list process was created in 2007 and is governed by 8 C.F.R. § 214.14(d)(2). USCIS conducts a full adjudication of U nonimmigrant eligibility. If the petitioner is otherwise eligible but cannot receive a visa because of the annual cap, USCIS places the petitioner on the waiting list.
Waiting-list placement generally provides:
- Deferred action;
- Eligibility for employment authorization;
- Regulatory protection from accruing unlawful presence under 8 C.F.R. § 214.14(d)(3); and
- Potential consideration for parole, subject to USCIS discretion.
The USCIS Policy Manual waiting-list guidance explains the eligibility and adjudication process.
The bona fide determination process
USCIS created the bona fide determination process through policy in 2021. It is a threshold review rather than a full adjudication of U visa eligibility.
USCIS considers whether the petition:
- Was properly filed;
- Is complete;
- Includes the required initial evidence;
- Includes the necessary law enforcement certification; and
- Has associated biometrics and background information.
USCIS then conducts a separate discretionary assessment that may include national security and public safety concerns.
A favorable bona fide determination may lead to deferred action and employment authorization. It does not provide an equivalent regulatory guarantee against accruing unlawful presence. It also does not create a separate U visa queue-based parole mechanism for a petitioner inside the United States.
The Ninth Circuit did not decide whether bona fide deferred action stops the accrual of unlawful presence. That issue was remanded to the Northern District of California.
What claims remain unresolved?
The Ninth Circuit remanded the bona fide determination plaintiffs’ remaining claim for further consideration. The plaintiffs identified several potential injuries caused by delayed waiting-list adjudication, including:
- Delayed adjudication of their underlying U visa eligibility;
- The risk that evidence may become stale or unavailable;
- The potential accrual of unlawful presence; and
- The vulnerability of a process created by agency policy rather than regulation.
The district court must consider those alternative injury theories and, if necessary, address the merits of the claim concerning delayed waiting-list consideration.
Judge Bea would have dismissed that claim for lack of statutory jurisdiction. He reasoned that no statute or regulation requires USCIS to adjudicate every pending U visa petition for waiting-list eligibility. The majority did not adopt that position at this stage.
The Ninth Circuit also expressly declined to decide the broader question of whether USCIS must adjudicate every petition for waiting-list eligibility. The Fourth and Sixth Circuits have held that USCIS must adjudicate petitions for waiting-list eligibility. The Ninth Circuit’s conclusion regarding parole aligns with a 2026 unpublished Eleventh Circuit decision and several district court rulings.
Does the ruling eliminate all parole options?
No. The decision does not eliminate general parole procedures available to noncitizens.
A petitioner may still have potential avenues that include:
- Filing Form I-131, Application for Travel Document, when the petitioner can establish an independent basis for advance parole.
- Requesting parole at a port of entry, when legally and factually appropriate.
- Seeking other humanitarian immigration remedies or travel options based on the petitioner’s individual circumstances.
The ruling does establish that being on the U visa waiting list does not, by itself, create a separate right to advance parole for a petitioner residing in the United States.
A grant of deferred action also does not prevent USCIS from granting parole. The Ninth Circuit stated that deferred action and parole can coexist. The issue is that parole remains discretionary, and the APA cannot be used to compel USCIS to grant it.
What should U visa petitioners do before traveling?
International travel requires careful case-specific analysis. Petitioners should take the following steps:
- Do not leave the United States without advance parole in hand. Departure without valid advance parole can prevent return, trigger serious immigration consequences, and harm a pending U visa case.
- Confirm that the document is valid for the intended travel dates and review any travel limitations.
- Determine whether the petitioner has accrued unlawful presence or may trigger a three-year or ten-year bar.
- Review the petitioner’s manner of entry, prior immigration history, removal proceedings, criminal history, and inadmissibility issues.
- Check the U visa case status through the USCIS case status system.
- Track the petition’s position in USCIS processing and preserve all notices, employment authorization documents, and correspondence.
- Consult an experienced immigration lawyer before booking travel or departing the United States.
Petitioners should not assume that a bona fide determination, deferred action, or a valid work permit authorizes international travel. Those documents do not guarantee admission or reentry.
What is the rehearing deadline?
Because a federal agency is a party, the deadline to seek rehearing or rehearing en banc is 45 days after the decision. For the September 14, 2026 decision, the deadline is expected to fall on October 29, 2026, subject to the applicable federal appellate rules and any court order.
Until further action changes the ruling, the decision governs within the Ninth Circuit.
How can Blasingame Law LLC help?
U visa cases involve overlapping issues involving humanitarian immigration, deferred action, employment authorization, unlawful presence, inadmissibility, and international travel. The Ninth Circuit’s decision makes advance parole planning more important for petitioners and families located in the western United States.
Blasingame Law LLC provides personalized guidance in U visa matters, family immigration, humanitarian immigration, and related travel and status concerns. Our immigration attorneys can review your U visa posture, assess travel risks, evaluate available parole options, and help you determine what action is appropriate before you leave the United States.
Contact Blasingame Law LLC to schedule a consultation or call 719-521-2115. You may also visit the firm’s family immigration services page for additional information.
This article provides general information and does not constitute legal advice. Immigration consequences depend on the facts of each case. Consult qualified counsel before international travel or filing a travel-related request with USCIS.
