BREAKING POLICY UPDATE: U Visa Victims of Crime Now Eligible to Receive Four Year EADs and Deferred Action

Welcome back to the start of a brand-new week! We are excited to announce brand new developments in the world of immigration specifically for U visa victims of crimes.

On June 14, 2021, the United States Citizenship, and Immigration Services (USCIS) issued a new policy alert, informing U visa applicants that the agency will now be exercising its discretion to issue four year Employment Authorization Documents (EADs) (also known as work permits), as well as four-year “deferred action” status to certain U visa applicants, including those who have filed new U visa petitions, and those whose U visa petitions remain pending with USCIS, based on a new discretionary process called a “bona fide determination.”

This is a groundbreaking new development for U visa applicants because victims of crime will now be eligible to receive an Employment Authorization Document (EAD), as well as “deferred action” status, while their U visa applications remain pending with USCIS. With this new policy change, U visa applicants will no longer need to wait 5+ years for their U visa approval, in order to become eligible for an Employment Authorization Document (EAD), and be protected from deportation.

Previously, only principal U visa applicants whose petitions were approved by USCIS, were authorized to work based on their approved status with immigration. Only those with an approved Petition for U Nonimmigrant Status (Form I-918) would automatically be issued an Employment Authorization Document (EAD). All other applicants with pending petitions were forced to wait in the visa queue for a visa to become available due to the mandatory U visa cap. This process on average has taken up to 5 years.

USCIS is now changing its policy to allow U visa applicants to obtain work permits so long as they demonstrate that they have filed a “bona fide” U visa petition. This change was made in response to the drastic increase in the number of U nonimmigrant petitions being filed with USCIS, and the growing backlog of applicants awaiting placement on the waiting list or final adjudication. USCIS will now use its discretionary powers under INA 214(p)(6) to conduct what they call “bona fide determinations” (‘BFD’) and provide Employment Authorization Documents (EADs) and “deferred action” status to applicants with pending, bona fide petitions who can meet certain discretionary standards.

Who will be eligible and what are the discretionary standards?

As a preliminary matter, petitioners for U nonimmigrant status and qualifying family members may qualify if USCIS deems their petition “bona fide”, instead of completing a full waiting list adjudication.

When filing a U visa petition, the principal applicant must demonstrate that they qualify for the visa type.

The U visa is a special nonimmigrant visa classification specifically created by U.S. Congress for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. The purpose of the U visa is to protect certain victims of crimes while at the same time ensuring that perpetrators of certain crimes are brought to justice.

The general requirements to obtain a U visa are as follows:

You must have been the victim of a qualifying criminal activity (such as extortion, felonious assault, rape, sexual assault, domestic violence, sexual exploitation, stalking, torture, and other types of crimes.)
You must have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
You must have information about the criminal activity. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf
You must have been helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.
The crime must have occurred in the United States or violated U.S. laws.
You must be admissible to the United States. Those who are not admissible, may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.

In order to receive a bona fide determination applicants must generally go through a three-step process.

The principal applicant must properly file Form I-918 Petition for U Nonimmigrant Status and meet the general qualifications mentioned above.
The principal applicant must have properly filed his or her personal statement describing the details of the crime and the incident or incidents that qualify them for the U visa. The principal applicant must also include Form I-918 Supplement B Nonimmigrant Certification with their filing.
The results of the U visa applicant’s biometrics must have already been received before the “bona fide determination” can be issued. The “bona fide determination” is the discretionary authority that makes an applicant eligible to receive an employment authorization document and deferred action status.

What exactly does an applicant receive once they are eligible for a “bona fide determination?”

Those who receive a “bona fide determination” will receive a four-year Employment Authorization Document (EAD) also known as a work permit which allows the applicant to (1) lawfully work in the United States (2) obtain a Social Security Number and (3) obtain a driver’s license in the United States. In addition, eligible applicants will receive “deferred action” status for four years which means that they will not be prioritized for removal from the United States, so long as they are not a national security risk or have committed serious crimes in the United States.

Does this new policy apply to new petitions or only those that have already been filed with USCIS?

The policy change will be implemented immediately and will apply to all Form I-918 petitions that are currently pending, and all U visa petitions filed on or after June 14, 2021.

What are some of the highlights of this new policy?

Pursuant to this new policy change

USCIS will conduct an initial review of Form I-918 and will issue “bona fide determinations” to issue Employment Authorization Documents (EADs) and deferred action for 4 years to petitioners for U nonimmigrant status and qualifying family members if USCIS deems their petition “bona fide”, instead of completing a full waiting list adjudication.
USCIS clarifies that if the agency determines the principal petition is bona fide, USCIS will then decide whether the principal petitioner poses a risk to national security or public safety, and finally, whether the principal petitioner warrants a favorable exercise of discretion to receive employment authorization under INA 214(p)(6) and deferred action.
Those who do not receive a “bona fide determination” Employment Authorization Document (EAD) under this initial review process will proceed to the full waiting list adjudication and, if their petitions are approvable, will be placed on the waiting list for a U visa. Principal petitioners placed on the waiting list, and their qualifying family members, receive deferred action; if they have properly filed for employment authorization, they also receive an EAD valid for 4 years.
USCIS will generally not conduct waiting list adjudications for noncitizens who have been granted “bona fide determination” Employment Authorization Documents (EADs) and deferred action. Instead, their next adjudicative step will be final adjudication for U nonimmigrant status when space is available under the statutory cap.
Throughout the initial 4-year validity period for the “bona fide determination” Employment Authorization Document (EAD) and grant of deferred action until final adjudication for U nonimmigrant status, USCIS will update and review background checks at regular intervals to determine whether a principal petitioner or a qualifying family member may maintain his or her “bona fide determination” EAD and deferred action. USCIS also retains discretion to update background and security checks at any time when case-specific circumstances warrant.
USCIS will review all petitions, both petitioners placed on the waiting list and petitioners issued “bona fide determination” EADs, in receipt date order for final adjudication of U nonimmigrant status.
USCIS is adopting the decision issued by the Ninth Circuit in Medina Tovar v. Zuchowski for nationwide application. This case illustrates that when confirming a relationship between the principal petitioner and the qualifying family member is based on marriage, USCIS will evaluate whether the relationship existed at the time the principal petition was favorably adjudicated, rather than when the principal petition was filed.

Where can I find more information about this policy change?

More detailed information about this new policy change is available in the USCIS Policy Manual regarding employment authorization and deferred action for principal petitioners for U nonimmigrant status, and qualifying family members with pending, bona fide petitions.

For information about the U visa please visit our webpage. If you are interested in scheduling a consultation to determine your eligibility, please see the contact us section below.

Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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