Employment Authorization Available for Pending U Visa Petitioners

On June 14, 2021, the U.S. Citizenship and Immigration Services (USCIS) updated the USCIS Policy Manual to implement a new process, referred to as a bona fide determination, to grant victims of crime in the United States with pending U visa petitions earlier access to employment authorization. Based on this new policy, once the USCIS determines that a U visa petition is bona fide – that is, “made in good faith; without fraud or deceit” – and warrants favorable exercise of discretion, the USCIS will issue a bona fide determination employment authorization document (EAD) and grant deferred action to the petitioners. This new policy guidance applies to all petitions for U nonimmigrant status (form I-918) that are currently pending or filed on or after June 14, 2021.

Background of the U Visa

The Victims of Trafficking and Violence Prevention Act of 2000 created the U visa category. U nonimmigrant status is available to noncitizens who have been victims of certain crimes, including domestic violence and sexual assault, and who are or have been helpful to law enforcement in the prosecution or investigation of those crimes. The goal of the U visa is to encourage foreign nationals who are victims of certain crimes to come forward and cooperate with law enforcement authorities. More details on the U visa are available in the MurthyDotCom NewsBrief, Enhancements to U Category Help to Better Protect Crime Victims (23.Jul.2014).

Historical U Visa Backlog Delays Employment Authorization

Congress has capped the number of principal U visas available each fiscal year at 10,000. However, since 2010, the USCIS has received more than 10,000 U visa petitions each year. Due to the high case volume, U visa petitioners now wait approximately five years before receiving a determination that allows them access to an employment authorization and deferred action.

U Visa Bona Fide Determination

In order for the USCIS to make a bona fide determination on a U visa petition, the petitioner must submit a fully completed petition with all the required initial evidence. Further, the USCIS must complete its background and security checks based on biometrics.

Exercise of Discretion

Once the USCIS makes the bona fide determination, it must then ensure that the petitioner warrants the favorable exercise of discretion. The USCIS will examine the individual’s risk to national security and public safety, and examine other adverse factors, on a case-by-case basis, that weigh against a favorable exercise of discretion. If the USCIS determines that a favorable exercise of discretion is justified, it will issue the petitioner an EAD and grant the individual deferred action.

Qualifying Family Members

After the principal petitioner has been issued an EAD based on a bona fide determination, the USCIS may issue EADs to qualifying family members; however, this is not automatic. Rather, the USCIS must ensure that there is credible evidence of the qualifying relationship. Further, as with the principal petitioner, the USCIS must complete its background and security checks based on biometrics, and then determine whether favorable exercise of discretion is justified for family members.

Conclusion

The ability to obtain work authorization while a U visa petition is pending will be a great help to individuals and families who otherwise would have had to wait several years until adjudication of their U visa petitions for work eligibility. The Murthy Law Firm regularly files U petitions. We will continue to track and share changes to the U visa program. We are always available for assistance pertaining to the U visa and all other immigration matters.

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