USCIS Published FAQs on Bona Fide Determination Process for Pending U Visa Petitioners

The U.S. Citizenship and Immigration Services (USCIS) has provided answers to a number of frequently asked questions (FAQs) on its newly implemented bona fide determination process for pending U nonimmigrant applications. As reported in the MurthyDotCom NewsBrief, Employment Authorization Available for Pending U Visa Petitioners (12.Jul.2021), under the new policy, once it makes a bona fide determination on a pending U visa petition, the USCIS may exercise its discretion to grant the petitioner an employment authorization document (EAD) and deferred action. The FAQs provide additional information on filing, adjudication, renewal, and other information on the bona fide determination process.

Background of the U Visa

U nonimmigrant status is available to noncitizens who have been victims of certain enumerated crimes, including domestic violence and felonious assault, and who 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.

Historically, a U visa petitioner would only become eligible for an EAD and deferred action once the individual was placed on a waiting list. Due to the large number of pending U visa petitions, it has been taking many years to get on this waiting list. Under the new policy, the EAD and deferred action benefits should become available far more quickly.

U Visa Bona Fide Determination Clarifications

In the FAQs, the USICS provides additional details on the requirements for bona fide determinations and how the cases will be processed. In order for a bona fide determination to be made on a U visa, the petitioner must submit a fully completed petition with all the required initial evidence. The list of documents required for principal petition includes a properly filed petition for U nonimmigrant status (form I-918), properly completed law enforcement certification (form I-918, supplement B), and a personal statement describing the facts of the victimization. The USCIS also must have received the petitioner’s biometrics and completed the necessary background and security checks before issuing a bona fide determination EAD. Further, the principal petitioner must be living in the United States.

According to the FAQs, if all required documents were submitted with the initial petition, the U visa petitioner does not need to take any additional action. The USCIS will initiate the bona fide determination evaluation without a separate request. If the petitioner did not file an application for employment authorization (form I-765) concurrently with the form I-918, the petitioner will be issued a notice indicating that the USCIS has made a bona fide determination, and the form I-765 can be filed at that time.

Benefits for Qualifying Family Members

After the principal petitioner receives employment authorization and deferred action, the USCIS will evaluate the petitions of qualifying family members (e.g., spouse, children under the age of 21) living in the United States. The benefit is not automatic based on the grant of benefits to the principal. Rather, the USCIS must verify that the petition for a qualifying family member of U-1 recipient (form I-918, supplement A) is bona fide.

Pending U Visa Petitions Reviewed in Order of Date of Filing

This policy applies to all pending I-918 petitions, and any petitions filed on or after June 14, 2021. The USCIS has started by reviewing the longest pending petitions that have not already been placed on the U visa waitlist. No further details have been provided on how long it will take the USCIS to issue bona fide determination EADs.

Renewal of Bona Fide Determination EAD and Grant of Deferred Action

If the USCIS does not adjudicate a principal petitioner or qualifying family member’s petition for U nonimmigrant status before the end of the 4-year validity period of the EAD and deferred action, the U visa petitioner and qualifying family members may apply to renew these benefits for another 4 years.

Conclusion

The ability to obtain work authorization while awaiting a final adjudication of a U visa petition will greatly benefit these foreign nationals who have been victims of criminal activity. If the USCIS provides additional information, details will be posted on MurthyDotCom.

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