Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick brings you a brand-new update available on our YouTube channel, discussing a new policy that will allow U visa victims of criminal activity to apply for employment authorization with the United States Citizenship and Immigration Services (USCIS), and receive deferred action protecting them from removal from the United States while their applications are pending with USCIS.
Keep on watching for all the details.
What is the U visa?
The U visa is a special nonimmigrant visa classification specifically created by U.S. Congress for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. The purpose of the U visa is to protect certain victims of crimes while at the same time ensuring that perpetrators of certain crimes are brought to justice.
In general, to qualify for a U visa, you must:
- Have been the victim of a qualifying criminal activity (such as extortion, felonious assault, rape, sexual assault, domestic violence, sexual exploitation, stalking, torture, and other types of crimes.)
- Have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
- Have information about the criminal activity. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on your behalf
- Have been helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime. If you are under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on your behalf.
- The crime must have occurred in the United States or violated U.S. laws.
- Be admissible to the United States. Those who are not admissible, may be eligible to apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant.
U visa applicants now eligible for Work Authorization and Deferred Action
Until recently, U visa applicants have not been eligible to apply for work authorization while their immigration process has been pending with USCIS. Only principal U visa applicants whose petitions have been approved are authorized to work based on their approved status and are automatically issued an Employment Authorization Document (EAD) upon approval of the Petition for U Nonimmigrant Status (Form I-918).
This has proved to be a very challenging predicament for U visa applicants who have been patiently waiting for their visas to be approved, considering that that the current waiting period to process the Form I-918, U visa petition, is between 59.5 months to 60 months (that is 5 years).
These long waiting periods have meant that applicants with pending applications have been unable to legally work in the United States for many years. This extremely long waiting period is due to current visa quota limitations. By law, there is a 10,000-annual cap on U visas for principal applicants. However, USCIS continues to adjudicate applications even after the annual cap has been reached. Cases that qualify for approval after the cap has been reached receive “conditional approval” and work authorization based on “deferred action” until U visas become available.
According to USCIS, “If the number of approvable petitions exceeds the annual visa cap allocation, USCIS places the approvable petitions on a waiting list. USCIS grants deferred action or, in limited circumstances, parole to U-1 principal petitioners and qualifying family members on the waiting list.”
Updated Policy Manual
Now this process has changed for the better. On June 14, 2021, USCIS issued a policy alert notifying the public that the agency will now be exercising its discretion to issue Employment Authorization Documents (EADs) and deferred action to certain U visa applicants whose petitions are still pending with USCIS. The agency will be publishing further guidance in its Policy Manual on employment authorization and deferred action for principal petitioners for U nonimmigrant status and qualifying family members with pending, bona fide petitions.
Due to drastic increases in the number of U nonimmigrant petitions that have been filed in recent years, and the growing backlog of applicants awaiting placement on the waiting list or final adjudication, USCIS has decided to use its discretionary powers under INA 214(p)(6) to conduct “bona fide determinations” (BFD) and provide Employment Authorization Documents (EADs) and deferred action to applicants with pending, bona fide petitions who meet certain discretionary standards.
This means that those who qualify based on a “bona fide determination” will receive a work permit (also known as Employment Authorization Document) and deferred action which will ensure their legal status without fear of removal from the United States. This is a groundbreaking new development because those who receive a “bona fide determination” will now be eligible for a work permit and can in turn receive a Social Security Number and driver’s license.
USCIS is implementing this guidance immediately and the guidance applies to all Form I-918 petitions that are currently pending, or those that were filed on or after June 14, 2021.
Who will qualify for the Bona Fide Determination under this new policy?
First, the principal applicant must properly file Form I-918 Petition for U Nonimmigrant Status and meet the general qualifications mentioned above.
Second, the principal applicant must have properly filed his or her personal statement describing the details of the crime and the incident or incidents that qualify them for the U visa. The principal applicant must also include Form I-918 Supplement B Nonimmigrant Certification with their filing.
Finally, the results of the U visa applicant’s biometrics must have already been received before the bona fide determination can be issued. The bona fide determination is the discretionary authority that makes an applicant eligible to receive an employment authorization document and deferred action status.
What are some of the new policy highlights?
Under this new policy guidance:
- USCIS will conduct an initial review of Form I-918 and will issue “bona fide determinations” to issue Employment Authorization Documents (EADs) and deferred action for 4 years to petitioners for U nonimmigrant status and qualifying family members if USCIS deems their petition “bona fide”, instead of completing a full waiting list adjudication.
- USCIS clarifies that if the agency determines the principal petition is bona fide, USCIS will then decide whether the principal petitioner poses a risk to national security or public safety, and finally, whether the principal petitioner warrants a favorable exercise of discretion to receive employment authorization under INA 214(p)(6) and deferred action.
- Those who do not receive a “bona fide determination” Employment Authorization Document (EAD) under this initial review process will proceed to the full waiting list adjudication and, 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.
- USCIS will generally not conduct waiting list adjudications for noncitizens who have been granted “bona fide determination” Employment Authorization Documents (EADs) and deferred action. Instead, their next adjudicative step will be final adjudication for U nonimmigrant status when space is available under the statutory cap.
- Throughout the initial 4-year validity period for the “bona fide determination” Employment Authorization Document (EAD) and grant of deferred action until final adjudication for U nonimmigrant 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 determination” EAD and deferred action. USCIS also retains discretion to update background and security checks at any time when case-specific circumstances warrant.
- USCIS will review all petitions, both petitioners placed on the waiting list and petitioners issued “bona fide determination” EADs, in receipt date order for final adjudication of U nonimmigrant status.
- USCIS is adopting the decision issued by the Ninth Circuit in Medina Tovar v. Zuchowski for nationwide application. This case illustrates that when confirming a relationship between the principal petitioner and the qualifying family member is based on marriage, USCIS will evaluate whether the relationship existed at the time the principal petition was favorably adjudicated, rather than when the principal petition was filed.
If you found this video helpful, please make sure to share this information with those who may need it. If you have filed or are planning to file your U visa application, contact us to schedule a consultation to discuss all the details regarding this new policy update and how you may qualify for a bona fide determination work permit and deferred action.
Contact us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
- U Visa Policy Alert
- EAD Work Permit Validity Extended to 2 Years
- Lockbox Filing Flexibilities
- State Department Newsroom
- ImmigrationU Membership
- Success stories
- Youtube channel
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