U Visa

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: 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: 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 … Read more