Questions About the Bona Fide Determination Process for Form I-918 U Nonimmigrant Petitions from USCIS
Q1. What is the bona fide determination process?
A1. By statute, USCIS has discretion to provide employment authorization to noncitizens with pending, bona fide U nonimmigrant status petitions. In June 2021, we implemented the bona fide determination process with the goal of conducting initial reviews of U nonimmigrant status petitions more efficiently and providing eligible victims of qualifying crimes with employment authorization and deferred action while they wait for final adjudication of their petition for U nonimmigrant status under the annual statutory cap. This will provide victims with stability and better equip them to cooperate with and assist law enforcement.
Q2. Who does the bona fide determination process apply to?
A2. This policy applies to all Form I-918 petitions and all Form I-918A petitions pending as of June 14, 2021, filed by principal petitioners and qualifying family members living in the United States, as well as Form I-918 petitions filed on or after this date by principal petitioners and their qualifying family members living in the United States. We do not consider principal petitioners and qualifying family members living outside of the United States for a bona fide determination because we cannot provide deferred action or employment authorization to petitioners outside the United States.
Q3. When did USCIS begin implementing the bona fide determination process?
A3. We published the new bona fide determination process in the USCIS Policy Manual on June 14, 2021, and began adjudicating and issuing Employment Authorization Documents (EADs) shortly thereafter.
Q4. In what order will USCIS adjudicate cases for a bona fide determination?
A4. We will generally adjudicate cases for bona fide determinations in receipt date order, starting with the oldest pending petitions that have not already gone through a waiting list adjudication as of June 14, 2021.
Q5. I filed a petition for U nonimmigrant status several years ago. Will my petition now go through 3 different adjudications: bona fide determination, waiting list, and final adjudication? What happens if I was already placed on the waiting list before this policy was issued?
A5. Principal petitioners and qualifying family members will not all go through 3 different adjudications. As of June 14, 2021, we began adjudicating pending, non-waitlisted petitions filed by noncitizens living in the United States in receipt date order for bona fide determinations.
If a principal petitioner has a bona fide petition, merits a favorable exercise of discretion, and has filed their Form I-765, we will issue the principal petitioner a bona fide determination EAD and deferred action. We will place their petition in the queue in receipt date order to wait for final adjudication for U nonimmigrant status. These petitioners will not have to go through a waiting list adjudication unless new, adverse information impacts their ability to maintain a bona fide determination EAD.
Principal petitioners who we determine will not receive a bona fide determination EAD and deferred action will receive waiting list adjudication. If a principal petitioner receives waiting list adjudication, qualifying family members will also receive waiting list adjudication.
Principal petitioners and their qualifying family members placed on the waiting list before June 14, 2021, do not need to go through the bona fide determination process because they already can receive an EAD and deferred action. Petitioners placed on the waiting list before June 14, 2021, will be adjudicated for U nonimmigrant status in receipt date order at the same time as petitioners who received bona fide determination EADs and deferred action.
Q6. How are bona fide determinations for principal petitioners different from qualifying family members?
A6. A qualifying family member will not have access to a bona fide determination review unless and until the principal petitioner receives a bona fide determination. We will first determine whether a principal petitioner living in the United States may receive a bona fide determination before we make a bona fide determination for any associated qualifying family member living in the United States. A principal petition is bona fide if:
- The principal petitioner properly filed Form I-918;
- The principal petitioner included a properly completed law enforcement certification (Form I-918 Supplement B, U Nonimmigrant Status Certification);
- The principal petitioner included a personal statement describing the facts of the victimization; and
- We received the results of the principal petitioner’s background and security checks based on biometrics.
We then assess the principal petitioner’s eligibility for a bona fide determination by considering whether they merit a positive exercise of discretion, including consideration of national security or public safety risks.
After the principal petitioner receives a bona fide determination , we will evaluate the petitions of any qualifying family members living in the United States to assess whether they are eligible to receive a bona fide determination.
If the principal petitioner receives a bona fide determination, this does not guarantee a qualifying family member living in the United States will receive a bona fide determination . The record must independently demonstrate the qualifying family member’s Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient, is bona fide. A qualifying family member’s petition is bona fide if:
- The principal petitioner receives a bona fide determination;
- The petitioner has properly filed Form I-918, Supplement A;
- The petition includes credible evidence of the qualifying family relationship; and
- We receive the results of the qualifying family member’s background and security checks based on biometrics.
As with principal petitioners, we then consider whether the qualifying family member living in the United States merits a favorable exercise of discretion to receive a bona fide determination.
For more information on the bona fide determination process for principal petitioners, please see the USCIS Policy Manual Appendix: Bona Fide Determination Process Flowchart (PDF, 95.1 KB). For more information on the bona fide determination process for qualifying family members, please see Chapter 5: Bona Fide Determination, A. Bona Fide Determination, 2. Qualifying Family Members.
Q7. What do I need to file to receive a bona fide determination EAD?
A7. We will initiate bona fide determination adjudication of pending petitions not already placed on the waiting list. Principal petitioners, qualifying family members, and counsel do not need to take any action.
We are reviewing pending petitions filed by petitioners living in the United States in receipt date order. Petitioners will not need to submit an additional request. We will send petitioners a notice to file a Form I-765, Application for Employment Authorization, if they have not done so already.
Q8. I did not previously file Form I-765, Application for Employment Authorization, with my U visa petition. What should I do?
A8. We encourage petitioners to submit a Form I-765, Application for Employment Authorization, concurrently with their Form I-918 or Form I-918A. This will enable us to act efficiently on their case when it is current for consideration under the bona fide determination process. Please note that there is no fee for an initial bona fide determination EAD.
If you have a pending Form I-918 or Form I-918A and have not already submitted a Form I-765, Application for Employment Authorization, please submit Form I-765 now to the appropriate address in the “Where to File” section on the Form I-918 webpage.
If a petitioner has already filed Form I-765 under 8 CFR 274a.12(a)(19), (a)(20) or (c)(14) and we determined they will receive a bona fide determination EAD and deferred action, they will not need to submit another Form I-765.
For additional information, please see Chapter 5: Bona Fide Determination, C. Adjudicative Process, 2. Previously Filed Form I-765 for Bona Fide Determination Process.
Q9. Can petitioners still file Forms I-918 and I-765 together, or should we wait until USCIS issues a bona fide determination notice?
A9. We recommend that principal petitioners and their qualifying family members file Form I-765, Application for Employment Authorization with their initial filings. Principal petitioners and qualifying family members may file a Form I-765 under a (c)(14) category for a bona fide determination EAD or if their petition is placed on the waiting list.
Q10. I am a new petitioner. Do I need to submit a fee or a fee waiver with my Form I-765 for the waiting list (under 8 CFR (c)(14))? Do I need to submit a fee or a fee waiver for the bona fide determination EAD?
A10. Generally, we do not charge a fee to file certain victim-based and humanitarian benefit requests, including Form I-918, and the initial Form I-765 associated with this form.
If a petitioner (principal petitioner or qualifying family member) does not file their Form I-765 concurrently with their Form I-918 and we determine they may receive a bona fide determination EAD, we will issue a notice indicating that they have received a bona fide determination, merit a favorable exercise of discretion, and may receive a bona fide determination EAD if they file Form I-765.
Petitioners do not need to submit a filing fee for the initial Form I-765 associated with the bona fide determination EAD. While we do not charge a filing fee for the initial Form I-765 requesting a bona fide determination EAD, a petitioner will need to submit the appropriate fee or fee waiver request if they choose to renew their bona fide determination EAD.
Petitioners do not need to submit a filing fee for the initial Form I-765 associated with waiting list placement. Petitioners do need to submit the appropriate fee or fee waiver if they choose to renew their waiting list placement EAD.
Q11. Do I need to submit proof of economic necessity or file a Form I-765 worksheet?
A11. No, principal petitioners and their qualifying family members do not need to submit proof of economic necessity or file a Form I-765 worksheet to receive a bona fide determination EAD.
Q12. I received a bona fide determination notice from the Vermont Service Center, but I live in California and the website says I should send my Form I-765 to Nebraska. What should I do?
A12. Please follow the directions included in the bona fide determination notice. For example, if you received a bona fide determination notice from the Vermont Service Center, send your Form I-765 to the Vermont Service Center.
Q13. Will you refund my filing fee if my Form I-765 under 8 CFR (a)(20) or (c)(14) is converted to a bona fide determination EAD?
A13. We cannot refund the filing fee for a previously submitted Form I-765 filed under 8 CFR (a)(20) and (c)(14). Petitioners do not need to submit a filing fee for the initial Form I-765 associated with a bona fide determination EAD or EAD based on waiting list placement. Petitioners do need to submit the appropriate fee or fee waiver if they choose to renew their bona fide determination EAD or waiting list placement EAD.
Q14. Will I have an opportunity to submit additional information so I can receive a bona fide determination EAD?
A14. When we determine a principal petitioner will not be granted a bona fide determination EAD and deferred action, we will issue a Request for Evidence (RFE) stating that we will not grant a bona fide determination EAD and deferred action and request the additional evidence we need for the waiting list adjudication.
Consequently, a principal petitioner who does not receive a bona fide determination EAD and deferred action still is able to obtain employment authorization and a grant of deferred action through waiting list placement, if they are found eligible for U nonimmigrant status but for the annual statutory cap. If we determine that the principal petitioner can be placed on the waiting list, that decision generally does not affect the timeline in which we adjudicate the petition for final determination of U nonimmigrant status. A determination that a petitioner (principal petitioner or qualifying family member) will not receive a bona fide determination EAD and deferred action is not a denial of Form I-918 (or Form I-918A) or the initial Form I-765.
Q15. My family member was living outside of the United States when I filed my Form I-918. Does that mean my family member will not receive a bona fide determination? Do I need to request the bona fide determination and submit Form I-765 now that they are in the United States?
A15. The bona fide determination process is for principal petitioners and their qualifying family members living in the United States. We will generally adjudicate cases for bona fide determinations in receipt date order, starting with the oldest pending petitions that did not already go through a waiting list adjudication as of June 14, 2021.
We will initiate bona fide determination adjudications for pending petitions that are not already on the waiting list without any action required by principal petitioners, qualifying family members, or counsel. We first determine whether the principal petitioner may receive a bona fide determination. After the principal petitioner receives a bona fide determination, we then determine if the qualifying family member living in the United States may receive a bona fide determination.