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Bona Fide Determination and Employment Authorization for U-Visa Petitioners
In 2000, Congress created the U nonimmigrant visa status for victims of crime. The U visa was created to encourage crime victims to come forward and help law enforcement identify and prosecute criminals. Undocumented immigrants are especially vulnerable to many crimes, including involuntary servitude, trafficking, and sexual exploitation. Without the protection of the U visa, many people would hesitate to speak to police out of fear that they would be deported.
A petitioner who is granted a U visa receives Employment Authorization Documents (EAD) and, after three years, may apply for a green card (lawful permanent resident status). After five more years, if all other citizenship requirements are met, a person who became a lawful permanent resident after receiving a U visa can become a naturalized citizen.
The U visa helps law enforcement by enabling crime victims to testify against the criminals who harmed them; and, of course, the U visa benefits the crime victims themselves by offering protection from deportation, the ability to work legally, and a possible path to citizenship.
Who Qualifies for a U Visa?
Victims of many different crimes that took place in the United States (or in a U.S. territory or possession, or on a U.S. military base) may qualify for a U visa. These crimes include:
- Rape
- Torture
- Domestic violence
- Sexual assault
- Abusive sexual contact
- Trafficking
- Kidnapping
- Abduction
- Prostitution
- Sexual exploitation
- Felonious assault
However, just being a victim of a qualifying crime in the United States is not enough to ensure that you will be granted a U visa. You must have information about the crime and be helpful to law enforcement. In addition, you must be able to show that you suffered substantial physical or mental harm because of the crime, and no grounds of inadmissibility apply to you. If you are considered inadmissible, you must apply for a waiver of inadmissibility.
Unfortunately, due to the COVID-19 pandemic and other reasons, United States Citizenship and Immigration Services (USCIS) has developed a large backlog of cases, and there has been a delay in processing them. In order to grant crime victims relief in a timely fashion, USCIS created the “bona fide determination” (BFD) process in June 2021. Through the BFD process, USCIS can grant victims of qualifying crimes with employment authorization and deferred action while they wait for a final decision on their U visa petition.
If you petition for U nonimmigrant visa status, qualifying family members may also be eligible for this status as a derivative of your application. If you are the principal applicant and you are over the age of 21, your spouse and your children under 21 are qualifying family members. If you are a principal applicant under age 21, your spouse, children under 21, parents, or siblings under 18 may be qualifying family members.
What is the “Bona Fide Determination” Process?
The BFD process was implemented as of June 14, 2021. The decision whether a U visa petition is bona fide (made in good faith) is made by USCIS. In order to get a bona fide determination, you must have a complete application for U visa status. A complete U visa application includes the following:
- Petition for U Nonimmigrant Status, properly completed and filed;
- U Nonimmigrant Status Certification. This is a form that must be completed by the law enforcement agency, certifying your personal information, information about the crime of which you were a victim, and your helpfulness to the agency in investigating or prosecuting the crime;
- A personal statement from you about the facts of the case in which you were a victim;
- Completed biometrics (background checks).
Not only must you have a complete application on file, USCIS must conclude that you do not pose any national security or public safety risks. That conclusion is reached at the discretion of USCIS.
If USCIS decides that you have a bona fide application, you will be granted deferred action. You will also be eligible for work authorization for four years. Your qualifying family members will be eligible for work authorization as well. If you have not already filed an application for work authorization on Form I-765, you will be requested to do so.
Although a bona fide determination is a positive development, it is not a guarantee that your petition for a U visa will ultimately be granted. Also, there is no current indication how long it will take USCIS to review pending U visa petitions. However, if you receive a bona fide determination and have applied for employment authorization, there is nothing further you need to do.
Having the help of an experienced immigration attorney is a big help in ensuring that your petition for a U visa receives a bona fide determination. If you think you may be eligible for a U visa, we invite you to contact our law office to schedule a consultation to increase your chances of a favorable determination.