The spouse of a U Visa holder or applicant can now file for a derivative U visa even if the marriage took place after the principal's application was filed, as long as the marriage was in existence at the time the principal's U Visa is received.
That is the game-changing finding handed down by the U.S. Ninth Circuit Court of Appeals this month in Medina Tovar v. Zuchowski, No. 18-35072 (9th Cir. 2020), widely expanding the number of people who qualify for a U Visa based on marriage to a principal applicant. (Note: depending on the circumstances, children or parents of a U Visa applicant may also qualify as derivatives -- the Tovar case is about expanding the possibilities for spouses).
The U Visa was created to encourage cooperation by victims of certain crimes with law enforcement officers. A principal applicant must, in general, have suffered substantial physical or mental harm as the result of being a victim of certain "qualifying" crimes and must have provided assistance to law enforcement in the detection, investigation, or prosecution of that crime. The U Visa provides a right to remain in the United States and work and also creates a path toward eventual permanent residence and citizenship. The U Visa may even be able to provide immigration relief to some applicants whose lawful status would otherwise be barred for their own crimes or violations of immigration regulations.
Until now, the spouse of a principal U Visa applicant could only be included in the application and receive a "derivative" U Visa of his or her own if the marriage was in existence on the date that principal filed. But the Ninth Circuit has ruled that the regulation so stating was unlawfully passed, and that actually the spouse will qualify so long as the marriage is in existence on the date that the principal applicant receives the U Visa.
This means that for those who have a pending U Visa application, it is not too late to file an application for their spouse.
Keep in mind that the Trump administration is likely to challenge this holding or may refuse to comply with it. The coming weeks will give us a better idea of whether this decision is here to stay.
If you have a U Visa application pending and a present or future spouse who has not been included, seek legal counsel about the possibility of a derivative application.