U Visa Bona Fide Determination Forum: Expert Insights and Guidance

The U Visa is a nonimmigrant visa created to provide protection and support to victims of certain qualifying crimes who cooperate with law enforcement in the investigation or prosecution of the criminal activity. With the increasing number of petitions and backlog of cases, USCIS introduced the Bona Fide Determination (BFD) process to conduct initial reviews more efficiently and provide eligible victims with temporary benefits, such as employment authorization and deferred action, while awaiting a final adjudication of their petition.

The Bona Fide Determination is a critical component of the U Visa petition process. To be considered bona fide, the principal petitioner must properly file and submit a complete Petition for U Nonimmigrant Status (Form I-918) and all the required initial evidence. This new process ensures that eligible victims receive the needed assistance and protection, serving as a crucial lifeline for many individuals and their families while they await their U Visa petition’s final decision.

U Visa Bona Fide Determination Process

Timeline

The U nonimmigrant Bona Fide Determination (BFD) process was introduced by the USCIS to address the significant visa backlog and the 10,000 annual statutory cap. The timeline for this new process can vary depending on each individual case. USCIS attempts to conduct initial reviews more efficiently, enabling eligible victims of qualifying crimes to receive employment authorization and deferred action while waiting for their U nonimmigrant status adjudication.

Deferred Action

Through the Bona Fide Determination process, USCIS grants deferred action to certain U petitioners and their family members, allowing them to remain in the United States without facing deportation. This deferred action status can last for up to four years while they await full adjudication of their U visa application. It is, however, a discretionary relief and doesn’t guarantee approval of the U nonimmigrant status.

Initial Evidence Requirements

When filing a U visa petition for Bona Fide Determination, several initial evidence requirements must be met. Some of the key requirements include:

• Form I-918: Applicants must submit a completed and signed Form I-918, Petition for U Nonimmigrant Status.
• Supplement B: A completed and signed Form I-918 Supplement B, U Nonimmigrant Status Certification, from a certifying law enforcement agency is required. This document provides evidence that the applicant is a victim of a qualifying crime and has been helpful to the investigation or prosecution of that crime.
• Personal statement: The petitioner must provide a statement describing the details of the crime they experienced and how they were affected by it.
• Evidence of eligibility: Petitioners must submit any additional evidence that supports their eligibility, such as police reports, court records, or medical documentation relating to the criminal activity.

The Bona Fide Determination process, although created to alleviate the backlog of U visa petitions, remains a complex procedure. It is crucial for applicants to provide accurate and relevant initial evidence for a successful outcome.

U Nonimmigrant Status

The U Nonimmigrant Status, also known as the U visa, is designed to provide protection and assistance for victims of certain crimes who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity. In this section, we will discuss Form I-918 Petitions, Qualifying Criminal Activity, and Principal Petitioners.

Form I-918 Petitions

To apply for U Nonimmigrant Status, a victim must file Form I-918, Petition for U Nonimmigrant Status. USCIS uses the information on this form to determine whether the petitioner meets the eligibility requirements for the U visa. On June 14, 2021, USCIS introduced a new “bona fide determination” process, which allows certain petitioners and their family members with pending U petitions to receive a four-year work authorization and deferred action while they wait for full adjudication.

Qualifying Criminal Activity

A wide range of criminal activities can qualify for U Nonimmigrant Status. Examples include but are not limited to: domestic violence, sexual assault, human trafficking, kidnapping, and extortion. It is important to note that not all crimes will qualify for U visa eligibility. For a crime to qualify, it must have violated the laws of the United States or occurred within the country. The crime must also have caused the applicant to suffer substantial mental or physical abuse.

Principal Petitioners

A principal petitioner is the person who suffered directly from the qualifying criminal activity. In addition to the principal petitioner, their qualifying family members may also be eligible for U Nonimmigrant Status based on the principal petitioner’s eligibility. To apply for this status, a qualifying family member must complete Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient. This form is available on the USCIS website.

Eligibility Criteria

Eligible Victims

U nonimmigrant status, also known as the U visa, is designed to provide temporary immigration benefits to noncitizens who are victims of certain qualifying crimes and who have been helpful, are being helpful, or are likely to be helpful in the investigation or prosecution of those crimes. To be eligible for U visa consideration, applicants must obtain a certification of helpfulness, which is usually provided on a Form I-918, Supplement B.

Qualifying Crimes

Applicants must have been victims of qualifying criminal activities that occurred in the United States or violated U.S. laws. Examples of qualifying crimes include, but are not limited to, domestic violence, human trafficking, sexual assault, and extortion. The full list of qualifying crimes can be found on the USCIS website.

Noncitizens

Noncitizens include principal petitioners as well as their qualifying family members, such as spouses, children, and, in some cases, parents and siblings. Family members can apply for derivative U nonimmigrant status using Form I-918, Supplement A.

In June 2021, USCIS implemented the bona fide determination process to help address the backlog of pending U visa petitions. This process aims to conduct initial reviews more efficiently and provide eligible victims of qualifying crimes with employment authorization and deferred action while they await final adjudication of their petition for U nonimmigrant status.

To be considered for a bona fide determination, an applicant must have a pending U nonimmigrant status petition supported by a properly completed Form I-918, including Supplement B, certifying their helpfulness in the investigation or prosecution of the qualifying crime.

Law Enforcement Involvement

Law Enforcement Certification

The U visa program was designed to foster cooperation between law enforcement and victims of serious crimes in the United States U Visa Law Enforcement Resource Guide. An essential requirement of the U visa application process is obtaining a signed certification from a law enforcement agency, known as the I-918 Supplement B. This document confirms the applicant’s helpfulness or willingness to be helpful in the investigation or prosecution of the crime committed against them.

It is crucial for applicants to maintain a positive relationship with law enforcement throughout the process, as their assistance is vital for obtaining and maintaining U visa status. Law enforcement agencies have the discretion to decide whether to issue the required certification or not, so collaboration is key for a successful U visa application.

Biometrics

As part of the U visa bona fide determination process, applicants must undergo biometric background checks, which include fingerprinting and a photo to verify their identity and check for criminal records Chapter 4 – Adjudication | USCIS. This step is crucial in ensuring the safety and security of the United States and its residents.

Biometric information is collected at an Application Support Center (ASC) and is then used by law enforcement agencies and the United States Citizenship and Immigration Services (USCIS) to conduct background checks and verify the applicant’s eligibility for U nonimmigrant status.

In sum, the U visa bona fide determination process requires close cooperation with law enforcement, including obtaining a signed certification from an agency and undergoing biometric background checks. This collaboration aims to facilitate the detection, investigation, and prosecution of serious crimes in the United States, while also promoting the well-being of eligible victims.

Employment Authorization and Family Members

EAD

The U visa petitioners and their qualifying family members with pending bona fide petitions are eligible to receive Employment Authorization Documents (EADs) as part of the new bona fide determination process introduced by USCIS on June 14, 2021¹. This allows principal petitioners and their family members to apply for work permits while they wait for the full adjudication of their U visa applications. The EADs issued under this process are valid for four years, providing a stable foundation for those who need support as they rebuild their lives².

Qualifying Family Members

Qualifying family members of principal U visa petitioners are also eligible to receive deferred action and employment authorization as part of the bona fide determination process³. Deferred action is a discretionary measure to temporarily protect these individuals from removal. This allows qualifying family members to remain in the United States while their U visa applications are pending with USCIS.

Family members who may qualify for deferred action and employment authorization include the petitioner’s spouse, children, and in some cases, parents and unmarried siblings under the age of 18⁴. It is essential for petitioners to include their qualifying family members in the U visa application to ensure that they can also benefit from the new bona fide determination process and receive the temporary immigration benefits⁵.

Waiting List Adjudication and Placement

Receipt Date Order

The waiting list adjudication process for U Visa petitions plays a crucial role in determining the order of case reviews. Generally, USCIS adjudicates cases for bona fide determinations in receipt date order, starting with the oldest pending petitions that had not already gone through a waiting list adjudication as of June 14, 2021.

It is essential for both principal petitioners and their qualifying family members living in the United States to be aware of this process. The new bona fide determination policy, introduced on June 14, 2021, aims to ensure a fair and orderly review of petitions for U non-immigrant status.

As a petitioner, understanding the waiting list adjudication process can provide insight into the expected processing time for your case. Keep in mind that external factors, such as reques+ts for expedited waiting list adjudication from ICE, may affect the overall timeline. However, USCIS typically does not conduct waiting list adjudications for individuals who have been granted Bona Fide Determination Employment Authorization Documents (BFD EADs) and deferred action, unless a revocation is necessary.

In summary, the waiting list adjudication process is an essential aspect of the U Visa application process, with cases being processed in receipt date order. Both principal petitioners and their qualifying family members should be aware of this system to better anticipate the timeline for their applications.

Exercise of Discretion

Waiver

When reviewing U visa applications, the Department of Homeland Security (DHS) has the authority to exercise discretion. This is particularly relevant when determining if an applicant should be granted a waiver for certain inadmissibility grounds. Many applicants might have previous criminal records or immigration violations; however, the exercise of discretion allows DHS to consider positive factors in the applicant’s case to overlook these concerns. As such, this process can lead to eligible individuals who have been victims of qualifying crimes receiving U nonimmigrant status, despite their past issues.

It is important to note that in exercising discretion, factors such as national security concerns will be taken into account by DHS. Applicants’ backgrounds will be thoroughly examined to ensure their eligibility and to confirm that granting them U nonimmigrant status would not pose a risk to the United States.

Favorable Exercise of Discretion

A favorable exercise of discretion is a crucial step in the U visa process. Once an applicant receives a bona fide determination, it indicates that their petition has been found to be credible and deserving of a favorable exercise of discretion. This is an important milestone for U visa petitioners, as it allows them to be issued an Employment Authorization Document (EAD) and deferred action while they continue to wait for further adjudication of their U nonimmigrant status.

In conclusion, the exercise of discretion by DHS is an essential component of the U visa process, which aims to assist eligible victims of serious crimes. Through the waiver and favorable exercise of discretion processes, DHS can make informed decisions about the individuals who merit U nonimmigrant status, considering factors such as national security and the welfare of the United States.

Challenges and Considerations

Public Safety

When it comes to U visa bona fide determination, one challenge faced by both petitioners and adjudicators is ensuring public safety. The U visa program provides immigration relief to victims of certain crimes who have been helpful to law enforcement agencies in the investigation or prosecution of these crimes. However, striking a balance between protecting the rights of victims and maintaining public safety can be difficult.

Sometimes, petitioners might have criminal backgrounds or pose potential risks to public safety, making decisions more complicated for adjudicators. It is essential to weigh the benefits of granting a U visa, such as ensuring the cooperation of victims in criminal investigations and prosecutions, against any potential risks that could arise from granting such a benefit to a petitioner with a problematic background.

Fraud

Another challenge in the U visa bona fide determination process is the risk of fraud. Form I-918 petitions need to be carefully reviewed to determine the petitioner’s eligibility, which includes assessing the applicant’s credibility and the authenticity of supporting documents. Due to the potential benefits of obtaining a U visa, there is a risk that some individuals may submit fraudulent petitions or attempt to abuse the system.

To combat fraud, USCIS conducts thorough reviews and background checks to ensure that only truly deserving petitioners receive U nonimmigrant status. Additionally, close cooperation between USCIS and law enforcement agencies is essential in identifying potential fraud and maintaining the integrity of the U visa program.

Additional Resources

Webinar

If you are looking for more information on the U Visa Bona Fide Determination process, a webinar was hosted on August 18, 2021, by ASISTA and ILRC, where USCIS representatives discussed the policy and procedures. This webinar covered important topics, such as what this new determination means for U Visa petitioners and their families. By attending or reviewing the resources from this event, you will gain a better understanding of the Bona Fide Determination Process, which provides certain petitioners and their family members with pending U petitions four-year work authorization and deferred action while they wait for full adjudication.

Some key aspects of this process are essential for U Visa petitioners and immigrant crime victims to understand:

• Eligibility: Petitioners must have a pending U Visa and meet specific criteria set by USCIS to qualify for the Bona Fide Determination process.
• Work Authorization: Successful petitioners are granted employment authorization for a period of four years.
• Deferred Action: During the waiting period, applicants receive deferred action, which temporarily protects them from removal.

For those who were unable to attend the August 18th webinar, annotated notes from the discussion are available. These notes provide valuable insights and analysis shared during the event, which can help petitioners, their families, and legal representatives better understand the intricacies of the Bona Fide Determination Process.

If you wish to stay updated on the U Visa Bona Fide Determination process, keep an eye on the USCIS website for the latest information and announcements.

Footnotes

1. AILA – USCIS Updates Policy Manual on the Bona Fide Determination ↩
2. Overview of The New U Nonimmigrant (“U Visa”) Bona Fide Determination ↩
3. National Engagement – U Visa and Bona Fide Determination Process ↩
4. Updated: Uscis to Conduct Bonafide Determinations to Those Pending for U-1 Visas ↩
5. Petition for U Nonimmigrant Status | USCIS ↩