U Visa Policy Update: Bona Fide Determination Process for Victims of Qualifying Crimes, and Employment Authorization and Deferred Action for Certain Petitioners

Overview. On June 14, 2021, USCIS issued a new policy which ultimately permits U Visa petitioners to obtain work authorization while waiting (for years!) for their petitions to be adjudicated. The full policy update is available here: https://www.uscis.gov/news/news-releases/uscis-issues-policy-providing-further-protections-for-victims-of-crime?fbclid=IwAR1jMX1NqEwOY6_lKuCzYWnMjeNabE7snfxfRqxTzDE1hxN8_d-G7-OKzq0. See USCIS Policy Alert, PA-2021-13, “Bona Fide Determination Process for Victims of Qualifying Crimes, and Employment Authorization and Deferred Action for Certain Petitioners” (June 14, 2021).   

Brief history of U nonimmigrant visas. Congress created the U nonimmigrant status when it passed the Victims of Trafficking and Violence Protection Act in 2000. By statute, the annual number of principal applicants who can receive U nonimmigrant status cannot exceed 10,000. Over a year ago, there were approximately 152,000 principal petitions pending and 104,000 derivative petitions pending. Thus, the wait time for the principal petitioner to receive a final adjudication is between 5 and 10 years. A process called deferred action would place approvable petitions on the waitlist, and in doing so, USCIS would choose to authorize employment for petitioners. However, even being placed on the waitlist took a number of years. This left victims at high risk of financial instability and discouraged victims from cooperating in the detection, investigation and prosecution of serious criminal activity. 

How has the new policy changed the process? Due to the increasing number of U nonimmigrant petitions and the waitlist and adjudication backlog, USCIS created the Bona Fide Determination. See USCIS Policy Manual, Chapter 5, “Bona Fide Determination Process,” (June 14, 2021). Here are some of the main changes: 

• USCIS will review Form I-918 and if it deems that the petition is “bona fide”, it will issue EADs and deferred action for 4 years to principal applicants and qualifying derivatives. 
• If USCIS deems the petition bona fide, it will determine whether the petitioner merits a favorable exercise of discretion to receive work authorization and whether they pose a risk to national security or public safety. 
• If the petition is not deemed bona fide, the petitioner will be placed on the waitlist adjudication. 

What do I need to do? Talk to an experienced immigration attorney to see if this change affects you.

In some cases, petitioners may have already filed work authorization applications under category (c)(14) with their Form I-918. In such cases where this application has already been filed and the client has been fingerprinted, clients do not have to file anything else in order to be placed in the Bona Fide Determination process. USCIS will continue to review all pending cases in the order they were received. If a case is approved in the Bona Fide Determination, USCIS will automatically send petitioners their work authorization card.

In other cases, petitioners may not have filed work authorization applications under category (c)(14) with their Form I-918. In these cases, it’s very important that you speak with your immigration attorney who can provide you with the steps necessary to be eligible for the Bona Fide Determination. 

This new policy is a welcome change for victims who have been diligently assisting in keeping their communities safe by reporting crimes and cooperating with law enforcement.

 1 USCIS, U Visa Filing Trends, (April 2020), https://www.uscis.gov/sites/default/files/document/reports/Mini_U_Report-Filing_Trends_508.pdf.