USCIS Updates Policy to Expedite the Grant of Employment Authorization and Deferred Action to U Visa Applicants

By: Jacqueline Valle and Toni Ordona

United States Citizenship and Immigration Services will update their USCIS Policy Manual to include Bona Fide Determination (BFD), a new process which aims to provide victims of crime in the United States access to employment authorization sooner. The goal of the policy is to better equip applicants to cooperate and assist law enforcement investigations and prosecutors.

The new process will allow USCIS to issue employment authorization and grant deferred action to any applicants in the US with pending U Visa petitions that are made in good faith and merit a favorable exercise of discretion.

While Congress caps the number of U visas available per fiscal year at 10,000, USCIS receives more than this number of U visa applications per year. Due to the backlog, there is now a five-year waiting period for U visa beneficiaries to gain employment authorization and deferred action, or deportation deferral. This wait time may disincentivize victims from cooperating with law enforcement, and could leave them vulnerable to financial instability and fear of deportation.

Bona Fide u visa petitions

USCIS will consider a U visa petition bona fide if:

• Form I-918 is properly filed by the petitioner.
• Form I-918B, U Nonimmigrant Status Certification, is properly filed and certified by law enforcement, confirming that:
  • The petitioner was a victim of a crime,
  • The petitioner is, has been, or will likely work with law enforcement to help with the investigation or prosecution of the crime.
• A personal statement was properly filed, detailing the facts of victimization.
• Biometric results are received.

After a review of the application and a background check, USCIS will determine if the applicant meets all the above requirements, merits a favorable exercise of discretion, and will not pose a risk to national security or public safety. If the applicant passes, USCIS will issue employment authorization and deferred action. USCIS will amend Form I-765 to add a specific reference to this new category.

The new rule is effective immediately. It will apply to all Form I-918 and I-918A applications that are currently pending or filed on or after June 14, 2021.

policy highlights and summary

• USCIS will conduct an initial review of Form I-918. If USCIS deems the application bona fide, instead of completing a full waiting list adjudication, the agency will issue Bona Fide Determination (BFD) Employment Authorization Documents (EADs) and deferred action for four years to applicants for U nonimmigrant status and certain family members.
• If USCIS deems the petition is bona fide, then the agency will determine whether the petition poses a national security or a public safety risk. USCIS will then determine if the applicant deserves a favorable exercise of discretion to receive employment authorization[1] and deferred action.
• If an applicant does not receive a BFD EAD during the initial review process, they will be sent to the full waiting list adjudication. If their application is approvable, their petition will be sent to the U visa waiting list. Petitioners and their dependent applicants will be given deferred action once on the waiting list. If these petitioners properly filed for employment authorization, they will also receive an EAD valid for four years.
• USCIS will usually not organize waiting list adjudications for noncitizens granted with BFD EAD and deferred action. Instead, the agency will perform the final adjudication for U nonimmigrant status when there is space available under the statutory cap.
• During the initial four-year validity period for BFD EAD and grant of deferred action, until the final adjudication for U nonimmigrant status, USCIS will conduct regular background checks to ensure petitioners and their family members still qualify for BFD EAD and deferred action.
• USCIS will revise and review background checks to decide whether an applicant or family member can retain BFD EAD and deferred action. USCIS also holds discretion to update background and security checks at any time on a case-by-case basis.
• USCIS will examine all petitions in order of receipt date for final adjudication of U nonimmigrant status.
• When confirming a relationship between a qualifying family member and an applicant based on marriage, USCIS will evaluate if the relationship existed when the petition was favorably adjudicated rather than when the petition was filed[2].

u visa background

The U nonimmigrant visa was created in response to the Victims of Trafficking and Violence Protection Act. It is designed to strengthen law enforcement’s capability to investigate and prosecute cases of domestic violence, sexual assault, trafficking, and other related crimes, while protecting victims.

In 2008 the William Wilberforce Trafficking Victims Protection Reauthorization Act allowed the Department of Homeland Security (DHS) to give employment authorization to any noncitizen with a bona fide petition. This reform aims to improve the immigration process by eliminating complicated and costly administrative burdens.

conclusion

If you have questions regarding this or other USCIS immigration policies, please contact your trusted Chugh, LLP immigration professional.

[1] Under INA 214(p)(6).

[2] Based on the verdict issued by the Ninth Circuit in Medina Tovar v. Zuchowski.