The United States Citizenship and Immigration Services (USCIS) will begin sending work permits to U Visa applicants earlier in the process by issuing U Visa Bona Fide Determination and granting deferred action for four years. “This reform is one of a number of initiatives designed to eliminate complex, costly, and unjustified administrative burdens and barriers, and thus to improve our immigration processes,” the USCIS said in a news release on June 14, 2021.

The statutory cap for U visas is 10,000 per year. Since 2008, when U Visa regulations were first implemented, the number of U Visa petitions received by USCIS has grown exponentially. While approximately 10,000 petitions were received in the fiscal year 2008, there were nearly 35,000 petitions received by the USCIS in the 2018, and the number of pending principal U Visa petitions has nearly reached 150,000 as of 2019 (the last year with available data).

The dramatic increase in petitions as well as the delay in adjudication has resulted in a processing time of 5-10 years for noncitizens awaiting a favorable decision for U nonimmigrant status.

Although Congress authorized USCIS to grant employment authorization to noncitizens who have pending, bona fide U Visa petitions in 2008, USCIS previously granted Employment Authorization Documents (EADs) and deferred action only after an approved U Visa petition. In accordance with that authorization, the recent policy update allows those with a pending U Visa petition to receive employment authorization much sooner as long as their petition is made in good faith.

This policy update has the potential for allowing U Visa petitioners to obtain employment authorization and deferred action years earlier than they previously could. However, no practical steps have been announced as to how, when, or by who these Bona Fide Determinations will be made.

If you are a noncitizen who has been the victim of a crime in the United States and are currently or are likely to cooperate with law enforcement in the investigation of the crime, continue reading below and schedule a consultation with our attorneys to see if you could be eligible for a U Visa.

What is the Bona Fide Determination Process?

As of June 14, 2021, USCIS will conduct an initial review of the U Visa application and issue Bona Fide Determination (BFD) Employment Authorization Documents (EADs) and deferred action for four (4) years to U Visa petitioners and qualifying family members if their petition is deemed “bona fide.”

A principal petition is bona fide if:

  • The principal petitioner has properly filed a complete U Visa application, with all required initial evidence, which includes:
    • A complete and properly filled certificate of cooperation (submitted within six months of law enforcement certifier’s signature); and
    • A personal statement from the petitioner describing the facts of the crime suffered.
  • USCIS received the result of a background and security check based on the petitioner’s biometrics.

A qualifying family member’s petition is bona fide if:

  • The principal petitioner receives a BFD EAD;
  • The petitioner has properly filed a complete family member supplement;
  • The petition includes credible evidence of a qualifying family relationship; and
  • USCIS received the result of a background and security check based on the qualifying family member’s biometrics.

After determining that a petition is bona fide, USCIS then determines whether the petitioner (or qualifying family member) poses a risk to national security or public safety by reviewing the results of the background checks as well as considering other relevant discretionary factors.

If USCIS determines that a petitioner (or qualifying family member) merits a favorable exercise of discretion, USCIS issues a notice to inform the petitioner (or qualifying family member) of the decision.

How Can I Receive an Employment Authorization Document?

Where a petitioner (or qualifying family member) has already filed an Application for Employment Authorization along with the U Visa application, USCIS will use these previously filed applications to issue BFD EADs to principal petitioners and qualifying family members. BFD EADs and a grant of deferred action will be valid for four years, renewable afterwards under existing procedures.

Where a petitioner has not filed an application for employment authorization with their U Visa application, USCIS will issue a notice indicating that they have received a Bona Fide Determination and are eligible to receive a BFD EAD.

If you have filed a Form I-918 without also filing a Form I-765, our immigration attorneys can help you with completing and filing this form. Schedule a consultation today.

What About the Waiting List?

It is important to remember that a BFD EAD is not the same as the grant of U nonimmigrant status. USCIS could potentially determine that a petitioner will not receive a BFD EAD but can be placed on the waiting list; this would generally not affect the timeline in which the U Visa petition is adjudicated for final determination of U nonimmigrant status. Likewise, a grant of a BFD EAD and deferred action does not guarantee that USCIS will approve the principal petitioner or their qualifying family members for U nonimmigrant status.

USCIS will review all petitions in receipt date order for final adjudication for U nonimmigrant status.

How Does this Apply to Me?

If you have recently filed a U Visa application and have not yet had a biometrics appointment, this policy update mean that you may be eligible to receive a BFD EAD in the future (but not yet). As described above, USCIS first needs to receive the result of a background and security check based on a petitioner’s biometrics before exercising discretion to issue a BFD EAD and deferred action. Therefore, BFD EADs cannot be issued until after a petitioner attends their biometrics appointment.

If you have filed a U Visa application and have had a biometrics appointment, this policy update suggests that you may be eligible to receive a BFD EAD and deferred action. Applications for employment authorization that have been submitted with U Visa applications will be considered and BFD EADs issued to those with bona fide petitions. If an application for employment authorization was not submitted with your U Visa application, USCIS will issue a notice indicating a petitioner has received a BFD and may receive a BFD EAD. The petitioner then must file an application for employment authorization to receive a BFD EAD.

If you have already filed a U Visa application that has been pending for around five years, you may also be eligible to receive a BFD EAD and deferred action. However, because of the long processing times for applications for employment authorization, you may actually be approved for U nonimmigrant status before you would receive a BFD EAD.

Other Updates

USCIS has also clarified that they will evaluate whether a relationship between a principal petitioner and qualifying family member based on marriage existed at the time the petition was favorably adjudicated, rather than when the petition was filed.

Saev Hernandez Immigration Practice is accepting new U Visa cases amidst these encouraging developments. If you are interested in scheduling a consultation about a potential U Visa, whether it is an initial petition or an application for employment authorization based on a pending petition, please call our office at (615) 647-8628.