Employment Authorization Documents for Pending U Visas

On June 14, 2021, USCIS published a policy manual alert regarding the issuance of bona fide work authorization for pending U visa cases, this policy is for both principal and derivative applicants. This policy became immediately effective and applies to all Form I-918 petitions pending on June 14, 2021, and any I-918 petitions filed on or after June 14, 2021.

USCIS will begin conducting reviews of Form I-918s and will issue Bona Fide Determination (BFD) Employment Authorization Document (EADs) and Deferred Action for 4 years to U petitioners and qualifying family members if USCIS deems their petition “bona fide”. The process for the new policy consists of, making a bona fide determination of the case, determining whether the petitioner is a risk to national security and public safety, and assessing whether the petitioner warrants a positive exercise of discretion. This replaces the previous policy of completing a full waiting list adjudication.

Here are some answers to the most common questions asked about this new policy:

What is a Bona Fide Determination?

According to the policy guidance, for principal petitioners, a U visa petition is bona fide where there is a properly filed I-918 including all initial evidence and USCIS has collected biometrics. Initial evidence includes a complete and timely Form I-918, Form I-918 Supplement B and a personal statement from the petitioner describing the facts of the victimization.

What requirements are USCIS adjudicators looking for in a file?

· I-918 (petition for U nonimmigrant status) properly completed and signed;

· I- 918 B (law enforcement certification) properly completed and signed;

· Signed statement from the principal petitioner; and

· USCIS has collected biometrics from the principal petitioner.

How does USCIS use Discretion in Determining National Security and Public Safety Risks?

USCIS will review the results of background checks to see if the individual poses a national security or public safety risk and consider other discretionary factors. In assessing public safety risks, USCIS indicates that an arrest for serious crime is relevant to its exercise of discretion.

I have a Criminal History. Will this prevent me from obtaining a Bona Fide Determination (BFD) Employment Authorization Card (EAD)?

Review of a petitioner’s criminal history will not be in depth. If USCIS needs additional information or evidence regarding an arrest, or if an individual has other relevant adverse factors that require additional review, then these U petitioners will not receive a BFD EAD and deferred action. Background checks and security checks may be updated at any time by USCIS.

What happens if I Receive a Criminal Charge After Obtaining a BFD EAD?

USCIS will update and review background checks at a regular interval to determine whether a principal petitioner or qualifying family member may maintain his or her BFD EAD and deferred action.

What Benefits Come with a BFD EAD?

If USCIS finds that a U visa petition is bona fide, USCIS will issue a 4-year EAD and Deferred Action that can be renewed in 4-year intervals. For those people who are granted BFD EAD and deferred action, the next adjudicative step will be issuance of U visa status once a visa is available.

I am a Derivative Beneficiary for a U Visa. Am I eligible for a BFD EAD?

Possibly. Derivative Beneficiaries may be eligible for employment authorization but must independently demonstrate their application is bona fide.

What Requirements are USCIS Adjudicators looking for with Derivative Beneficiaries?

· The principal petitioner received a BFD EAD;

· The petitioner has properly filed a complete form I-918, Supplement A;

· The petition includes credible evidence of the qualifying family relationship; and

· USCIS has received the results of the qualifying family member’s background and security checks based upon biometrics.

If you believe that you may be eligible for Bona Fide Determination (BFD) Employment Authorization Document (EAD), you should speak with an experienced Immigration Attorney to determine how best to submit your application and to explore any other options you may have. Contact our office at 346-340-8760 to schedule a consultation with an experienced immigration attorney.