You Down with BFD? Yeah, You Know Me
Congress created the U nonimmigrant visa in 2000 when it passed the Victims of Trafficking and Violence Protection Act. The purpose of the U visa was to encourage immigrants to report crimes to law enforcement and also to afford protection for those willing to cooperate.
U visa status benefits include the following:
- Lawful status for up to four years;
- Work authorization;
- Derivative benefits for qualifying family members; and
- Eligibility to adjust status to a lawful permanent resident after three years.
This visa has been a lifesaver to so many immigrants and an aid to law enforcement since it was implemented, but it has been a victim of its own success and Congressional budgetary constraints that were written into the statute. There is a statutory limit of 10,000 U visas available per year for principal applicants. This statutory limit has been hit every year since the law was enacted. As of April 2020, USCIS reported nearly 152,000 pending U visas with an approximate waiting time of 5-10 years, depending on where the U visa Petition was located in the queue. For years, many lawyers have had to field calls from frustrated clients asking when they could expect their U visa to be approved. For years, lawyers have only been able to point to USCIS processing times (which currently show a waiting time of 60.5-61.5 months), thank the client for their patience, and ask them to continue to trust their law firm with their case.
Well, wait no longer. On June 14, 2021, USCIS announced a new system called “Bona Fide Determination”, to be used for U-Visa applications. Through this new process, USCIS will issue employment authorization (“work permit”) valid for four years and grant deferred action to petitioners in the United States with pending U visa petitions that it determines are bona fide (made in good faith and without intention of deceit or fraud) and who merit a favorable exercise of discretion. To be considered bona fide, the petition must include a certification from law enforcement that the petitioner was a victim of a crime and that the victim has been, is being, or is likely to be helpful in the investigation or prosecution of that crime,
In addition, USCIS will deem a petition bona fide if:
- The principal petitioner properly filed Form I-918, including Form I-918B U Nonimmigrant Status Certification;
- The principal petitioner properly filed a personal statement from the petitioner describing the facts of the victimization; and
- The result of the principal petitioner’s biometrics has been received.
“Today we are taking steps to help victims of crime and promote public safety,” said Secretary of Homeland Security Alejandro N. Mayorkas. “These are individuals who have come forward to help law enforcement keep us all safe, but who are in need of a measure of protection for themselves as well. The Bona Fide Determination process is consistent with the Department’s statutory authorities and will ensure these individuals receive the support they need.”
This guidance is effective immediately and applies to all Form I-918 and Form I-918A petitions that are currently pending or filed on or after June 14, 2021.
This system serves to benefit both the United States as well as immigrant petitioners, by helping those who are victims of crime and simultaneously promoting public safety, as the lawyers at SHG Immigration Law can explain. Now petitioners will be able to work in the United States while their U-Visa application is pending, and minimize their fear of deportation.