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UPDATED: USCIS TO CONDUCT BONAFIDE DETERMINATIONS TO THOSE PENDING FOR U-1 VISAS

Bona Fide Determination Employment Authorization for U-1 Applicants

and their Family Members

Starting June 14, 2021, USCIS has decided to exercise its discretion under INA 214(p)(6) to conduct bona fide determinations (BFD) and provide EADs (Employment Authorization Documents) and deferred action to non-citizens with pending, bona fide petitions who meet certain discretionary standards due to the drastic increase in the volume of U non-immigrant petitions. USCIS is implementing this guidance immediately and the guidance applies to all Form I-918 (U visa application) petitions that are currently pending or filed on or after June 14, 2021.

U non-immigrant status is available to non-citizens 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. USCIS has a cap for 10,000 U visas that they give out every year, and the backlog has grown to nearly about 270,000 as of the end of 2020, according to recent statistics from USCIS.

The Biden administration announced that those who are waiting for U visas will their applications preliminary reviewed and be issued bona fide EADs and have deferred action for 4 years for themselves and qualifying family members if USCIS considers them to be qualified.

If USCIS considers the principal petition to be accurate and authentic, they will then determine whether the applicant poses a risk to national security or public safety, and finally whether the petitioner warrants a favorable exercise of discretion to receive their employment authorization.

Those who do not receive bona fide EAD under their initial review will proceed to the full waiting list 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.

Throughout the initial 4-year validity period for the bona fide EAD and grant of deferred action until final adjudication for U non-immigrant 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 EAD and deferred action. USCIS also retains discretion to update background and security checks at any time when case-specific circumstances warrant.

 

There are other important facts to know about this new EAD process.

Additional criteria to be eligible for the bona fide EAD:

  1. A properly completed Form I-918, including all required initial evidence, was submitted to USCIS which will not require an RFE to address any deficiencies or concerns.
  2. The I-918 Supplement B (law enforcement certification) was not expired at the time of filing;
  3. The applicant provided a personal victim statement;

–              If an applicant is selected for bona fide EAD and he/she previously submitted Form I-765, Application for Employment Authorization under categories (c)(14) or (a)(19), USCIS will issue the EAD card to the applicant and his/her dependents automatically, based on use the existing application on file. If the applicant hasn’t yet filed Form I-765, USCIS will send the applicant a letter inviting him/her to apply.

–              There is no filing fee for applying for the bona fide EAD.

–              Another big update is that spouses of U-Visa applicants can qualify for U-2 status as long as they married the principal applicant before the application is approved. (Previous USCIS rule was that the couple had to be married before the time of filing to be eligible.) This is good news for people who got married during the 5+ years they waited for their applications to be adjudicated!

USCIS is adopting the decision issued by the Ninth Circuit in Medina Tovar v. Zuchowski for nationwide application.

Disclaimer

This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).