You have been waiting years for a U visa, and somewhere in those years a parent got sick, a grandmother died, or a child you have not held since 2019 turned ten. You have a work permit and a letter from USCIS saying your petition is bona fide or that you are on the waiting list, and the question you actually want answered is whether any of that lets you get on a plane and come back. On September 14, 2026, the Ninth Circuit answered it, and the answer is no.
The decision is U Visa Appellants v. Director, U.S. Citizenship and Immigration Services, No. 24-6824 (9th Cir. Sept. 14, 2026), a published opinion by Judge Forrest, with Judge Bea concurring in part and dissenting in part. It is binding in California and everywhere else in the Ninth Circuit. More than 150 U visa petitioners sued USCIS to force the agency to consider them for advance parole. They lost on that question, and it is worth understanding exactly why, because the reasoning controls what you should and should not do with your case right now.
What does the law actually say about the U visa waiting list?
A U visa goes to a crime victim who suffered substantial physical or mental abuse, has information about the crime, and has been, is being, or is likely to be helpful to law enforcement. INA § 101(a)(15)(U), 8 U.S.C. § 1101(a)(15)(U). Congress capped the number at 10,000 principal petitioners per fiscal year. 8 U.S.C. § 1184(p)(2)(A). That cap has been hit every year since 2010. The cap does not apply to derivatives — spouses, children, and in the case of child petitioners, parents. § 1184(p)(2)(B). If you are trying to work out how family members fit into a U visa case, that distinction matters.
Because the cap is reached every year, USCIS built a waiting list by regulation in 2007. The text matters:
All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list… 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.
8 C.F.R. § 214.14(d)(2)
The next subsection provides that while you are on the waiting list with deferred action or parole, you do not accrue unlawful presence under INA § 212(a)(9)(B). 8 C.F.R. § 214.14(d)(3).
In 2021, facing a backlog on the waiting list itself, USCIS created a second, faster interim path by policy rather than regulation: the bona fide determination. If your Form I-918 is complete and your biometrics and background results are in, USCIS can find the petition bona fide and grant deferred action and a work permit without ever reaching waiting list adjudication. The statutory hook is 8 U.S.C. § 1184(p)(6), which lets the Secretary grant work authorization to anyone with a pending, bona fide petition.
So there are two doors. Both give you deferred action and a work permit. Only one of them is written into a regulation.
What did the Ninth Circuit hold?
The panel resolved an antecedent question that decided most of the case: is parole for waitlisted U visa petitioners discretionary or mandatory? It is discretionary.
The petitioners argued that “deferred action or parole” in § 214.14(d)(2) has to mean both, or at least that “while… on the waiting list” imposes an ongoing duty that follows you if you travel. The court rejected both readings. “Or” is disjunctive; USCIS satisfies the regulation by granting one of the two. And the fact that USCIS sometimes grants parole to petitioners who are waitlisted while living abroad — so they can enter the country — does not convert a permissive “and/or” into a mandatory “and.”
The petitioners’ fallback was 8 C.F.R. § 212.5(f), which says that when parole “is authorized” for someone traveling without a visa, a travel document “shall be issued.” The court called that circular. Being eligible for parole is not the same as being authorized for it. Only once USCIS decides to exercise the power does § 212.5(f) obligate it to issue the document.
From that holding, the rest follows mechanically. The Administrative Procedure Act lets a court compel agency action “unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), but only where the agency failed to take a discrete action it was required to take. Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). Since parole is discretionary, no court can order USCIS to consider you for it. The separate arbitrary-and-capricious claim failed for a different reason: the petitioners never actually requested advance parole and were never denied it, so there was no final agency action to review.
One piece survived. Petitioners with bona fide determinations argued they were injured by never getting a waiting list adjudication. The district court said their only injury was parole-related and that waitlisting would not help them get parole — correct, said the panel. But the district court never addressed their other injury theories, and the panel remanded for it to do so. Those theories are the practically important ones: that the bona fide path delays a full eligibility determination and risks loss of evidence; that unlawful presence keeps accruing on a bona fide determination but not on a waiting list determination; and that the bona fide path, being policy, can be rescinded at any time, while the waiting list is regulation.
Judge Bea would have dismissed that claim outright for lack of statutory jurisdiction, reasoning that nothing requires USCIS to adjudicate waiting list eligibility for every pending petition. The district court will now take that up on remand. The panel also noted, without deciding, that the Sixth Circuit has held the act of placing petitioners on the waitlist is “nondiscretionary per DHS regulations.” Barrios Garcia v. U.S. Dep’t of Homeland Sec., 25 F.4th 430, 443 (6th Cir. 2022), as cited in the panel’s opinion.
How long does the U visa waiting list actually take?
Judge Bea’s opinion collects figures worth knowing. U visa filings went from 6,850 in 2009 to 37,287 in 2017. The average time between filing and a waiting list determination was about 12 months at the start of 2016 and exceeded 50 months by the end of 2020. In 2019 it averaged 41.5 months. The backlog now exceeds 250,000 unreviewed petitions, and USCIS is working on petitions filed in or before April 2017.
Read that last sentence again. If you filed in 2020, the agency has not opened your file.
The mistakes that cost people their cases
Leaving the country on deferred action. Deferred action is not status and it is not permission to return. It defers removal while you are here. If you leave, it does you no good at the border, and USCIS told the court plainly that a domestic petitioner who departs is not considered for parole based on waitlist status. Leaving can also trigger the three- and ten-year bars on whatever unlawful presence you already accrued.
Believing the work permit means anything about travel. It does not. An EAD is employment authorization. It is not advance parole and it is not a visa.
Assuming a bona fide determination is the same as the waiting list. It is not. Only the waiting list involves a full adjudication of U visa eligibility, and only the waiting list stops unlawful presence from accruing under § 214.14(d)(3).
Forgetting that any of this can be taken away. Section 214.14(d)(3) says in so many words that a petitioner may be removed from the waiting list and that deferred action or parole may be terminated at USCIS’s discretion. USCIS changed its deferred action policy in May 2026, and that change was live enough that counsel wrote to the Ninth Circuit about it mid-appeal.
Ignoring the inadmissibility problem until adjustment. The grounds that apply to a U visa case are their own subject, and they do not go away because you waited a decade. I have written separately on what you are inadmissible under with a U visa.
What should you do now?
If you need to travel, file Form I-131 and make the case on its own merits — a documented humanitarian or significant public benefit reason. This decision does not take that away. What it takes away is the argument that your waitlist or bona fide status entitles you to it. Do not leave the United States on a promise, a pending application, or anyone’s assurance that you can come back.
If your derivative family members are outside the United States, your situation is genuinely different, and the court said so twice: it expressly reserved the question of what § 214.14(d)(2) requires for petitioners or derivatives first placed on the waiting list while overseas. That path still exists.
And if you are sitting on a bona fide determination with unlawful presence quietly accruing, that is now the live issue. It is the one the Ninth Circuit sent back for a hearing, and it is the one that will matter when you finally reach adjustment — the same accrual problem that drives provisional waiver strategy in other cases.
A U visa case that has been pending since 2017 is not a file you should be carrying alone. If you want your case reviewed before you make a decision about travel or about pushing for a waiting list adjudication, a 20-minute consultation is $250 — book at blerner.timetap.com or call (562) 495-0554. If you are in removal proceedings or a family member is detained, the consultation is free and the timeline is shorter than you think.
This article is general information about United States immigration law and is not legal advice. Reading it does not create an attorney-client relationship. Immigration outcomes depend on the specific facts of each case. Law Offices of Brian D. Lerner, A Professional Corporation, 3233 E. Broadway, Long Beach, CA 90803. Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law, The State Bar of California Board of Legal Specialization.