Ninth Circuit: Parole for U Visa Waiting List Is USCIS Discretion, Not a Duty

Status as of September 16, 2026. On September 14, 2026, the Ninth Circuit issued a published, precedential opinion in U Visa Appellants v. Director, USCIS (No. 24-6824). The panel affirmed the dismissal of claims brought by petitioners already on the U-visa waiting list and remanded the bona fide determination plaintiffs' remaining claim to the Northern District of California. The deadline for a petition for panel rehearing or rehearing en banc has not passed: because a federal agency is a party, that period runs 45 days from the decision.

The Ninth Circuit has held that granting advance parole to U-visa petitioners on the waiting list is discretionary for USCIS, not mandatory, and that courts cannot compel the agency to issue it. Below is what the panel decided, on what reasoning, and how it sits alongside other circuits.

In brief

• The regulatory phrase "USCIS will grant deferred action or parole" sets out alternatives, not a requirement to provide both.

• Petitioners inside the United States who already hold deferred action are not considered for parole on the basis of waiting-list status — established by the agency's own uncontroverted evidence.

• The waiting-list plaintiffs' claims were dismissed for lack of statutory jurisdiction; the bona fide plaintiffs' claim was remanded in part.

Contents

• What the Ninth Circuit decided

• How the U visa queue works

• Two waiting tracks: the waiting list and bona fide determinations

• Why parole remains discretionary

• What this means for petitioners inside the United States

• Where the circuits disagree

• What happens next in the case

• Frequently asked questions

• Official sources

What the Ninth Circuit decided

A panel of Judges Paez, Bea and Forrest — with Judge Forrest writing the opinion — reviewed a suit brought by more than 150 U-visa petitioners in the Northern District of California. All plaintiffs reside in the United States, all have deferred action and employment authorization, and none has advance parole, the document that permits travel abroad followed by a request for parole on return without an immigrant visa.

There were three claims. First, that USCIS unlawfully withheld or unreasonably delayed considering the bona fide determination plaintiffs for waiting-list placement. Second, that the agency unlawfully withheld or unreasonably delayed considering all plaintiffs for advance parole. Third, that waiting-list plaintiffs were arbitrarily and capriciously denied advance parole.

The panel resolved the appeal through one antecedent question: whether granting parole to waitlisted petitioners is discretionary or mandatory. It is discretionary. The Administrative Procedure Act permits a court to compel agency action only where the action is one the agency is required to take, so § 706(1) provides no jurisdiction here. The third claim failed on separate grounds: the plaintiffs offered no evidence that they had requested parole and been refused, so there was no final agency action to set aside under § 706(2).

How the U visa queue works

The U visa is available to victims of qualifying criminal activity who suffered substantial physical or mental abuse and have been, are being, or are likely to be helpful to law enforcement. Congress caps issuance at 10,000 visas per fiscal year for principal petitioners, a cap reached every fiscal year since 2010.

The scale of the backlog appears in the opinion itself: more than 250,000 unadjudicated Form I-918 petitions as of the second quarter of fiscal year 2026. According to the USCIS page cited in the opinion, current as of June 5, 2026, the agency was reviewing petitions filed in or before April 2017.

Two waiting tracks: the waiting list and bona fide determinations

Petitioners waiting behind the cap are funneled into one of two interim paths, and the difference between them is the heart of the dispute.

The waiting list was created by regulation in 2007 (8 C.F.R. § 214.14(d)(2)). Placement requires the same full adjudication of eligibility that issuing the visa itself would require. Those on the list receive deferred action, employment authorization, and protection from accruing unlawful presence while in the United States.

The bona fide determination process was created by policy in 2021 in response to the growing backlog. It begins with a threshold review of whether the petition is properly filed, complete, and supported by the required initial evidence, along with biometric screening results. USCIS then separately assesses national security and public safety concerns and other discretionary factors before granting any interim relief. Under agency policy, a petitioner who receives relief through this path generally does not receive a waiting-list adjudication.

Section 214.14(d)(3) expressly protects waiting-list members from accruing unlawful presence while they are in the United States and the interim relief contemplated by the regulation is in place. There is no equivalent regulatory guarantee for the bona fide path. Plaintiffs argued that following the 2026 USCIS policy change, deferred action granted on a bona fide basis does not by itself stop the accrual of unlawful presence; the Ninth Circuit did not reach that question and remanded it. Their second asserted difference: the bona fide path rests on agency policy, which can be revised or rescinded, while the waiting list is governed by regulation.

Why parole remains discretionary

The dispute turned on a single word. The regulation provides that USCIS "will grant deferred action or parole" to petitioners while they are on the waiting list. Plaintiffs argued that "or" functions as "and/or," obliging the agency to consider them for parole as well.

The panel rejected that reading: in Ninth Circuit practice "or" has consistently been treated as indicating separate alternatives. That USCIS sometimes grants both — for example to petitioners placed on the waiting list while living abroad — shows the agency exercising its discretion, not an obligation to do so in every case.

Plaintiffs' second argument rested on § 214.14(d)(3), the unlawful presence subsection: because it mentions parole in a provision that applies only to those inside the country, parole must be contemplated for them. The panel answered that the subsection confirms the agency has authority to adopt such a process, but authority is not obligation.

The third argument — that because § 214.14(d)(2) "authorizes" parole, § 212.5(f) requires issuing a travel document — the panel called circular. That an agency may do something does not mean it must.

What this means for petitioners inside the United States

The practical portion of the ruling rests on declarations from the USCIS Adjudications Division Chief that plaintiffs did not controvert. Per that evidence, U-visa petitioners located in the United States are not considered for parole on the basis of waiting-list placement. Placement creates no separate mechanism to apply for parole. A person who received deferred action while in the United States and then travels abroad gains no advantage from waiting-list status when seeking to return.

The panel noted that there was no evidence USCIS withdraws deferred action because a petitioner leaves the country; on the record before it, the petitioner simply does not benefit from that relief while abroad.

For the same reason the panel rejected the bona fide plaintiffs' parole-related theory of injury: since no one inside the country receives parole on that basis, waiting-list placement would not have given them an additional opportunity.

The decision does not disturb the general routes to parole open to any noncitizen — filing Form I-131 or requesting parole at a port of entry. The panel expressly noted that a grant of deferred action does not preclude USCIS from also granting parole. What does not exist, for those inside the country, is a separate mechanism tied to U-visa queue status.

Where the circuits disagree

On whether parole is mandatory, the Ninth Circuit's conclusion aligns with a 2026 unpublished Eleventh Circuit decision and with several district court rulings.

On the adjacent question — whether USCIS must adjudicate every petition for waiting-list eligibility at all — the Fourth and Sixth Circuits have answered yes. The Ninth Circuit expressly declined to reach that issue, noting it in a footnote.

Judge Bea, concurring in part and dissenting in part, would have dismissed the bona fide plaintiffs' claim outright: neither statute nor regulation requires USCIS to conduct waiting-list adjudications for every pending petition, so in his view statutory jurisdiction is lacking. The majority observed that resolving the point would create a split with the Fourth and Sixth Circuits and declined to reach a significant merits question before constitutional jurisdiction was settled.

What happens next in the case

One issue returns to the district court. The court below addressed only the parole-related injury and did not consider the plaintiffs' alternative theories: delayed adjudication of visa eligibility and the risk of evidence going stale, accrual of unlawful presence, and the vulnerability of the bona fide process as a creature of policy rather than regulation.

That last theory was sharpened by something that arose during the appeal: a May 2026 USCIS policy alert on deferred action and the accrual of unlawful presence. The panel concluded that evaluating these arguments may require further factual development and remanded.

Judge Bea suggested that on remand the district court should first satisfy itself of jurisdiction and dismiss if it is lacking.

Frequently asked questions

Does the ruling mean waiting-list members will no longer receive parole?

The ruling confirms existing practice rather than changing it. On the agency's own evidence, petitioners located in the United States were not receiving parole on the basis of waiting-list placement before this decision either. The panel held that practice lawful because the regulation leaves the choice between deferred action and parole to USCIS discretion.

What is the difference between deferred action and parole?

Deferred action is an exercise of prosecutorial discretion deferring removal; it confers no immigration status and no right of entry. Parole is permission to physically enter the United States temporarily and is not deemed an admission. Advance parole is arranged in advance and allows a petitioner to seek parole on return, but it does not guarantee entry: that decision is made on inspection at the port of entry.

How does a bona fide determination differ from waiting-list placement?

The bona fide path begins with a threshold review of whether the petition is complete and supported by required evidence, together with biometric results, after which USCIS separately weighs discretionary factors. Waiting-list placement requires a full adjudication of U nonimmigrant eligibility. The regulation expressly shields waiting-list members from accruing unlawful presence while in the United States; there is no equivalent regulatory guarantee on the bona fide path, and the panel left that question for remand.

Is the decision final?

No. Part of the case was dismissed, but the bona fide plaintiffs' claim returns to the district court. The parties may also seek panel rehearing or rehearing en banc, and then certiorari.

Where does the ruling apply?

It binds federal courts within the Ninth Circuit: California, Washington, Oregon, Arizona, Nevada, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands. Other circuits retain their own precedent.

Official sources

This material is informational, current as of September 16, 2026, and is not legal advice. Before any decision involving travel outside the United States with a pending petition, consult official sources and a licensed immigration attorney.