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New U Visa Update: Bona Fide Determination

We’ve covered U visas in previous articles, but we want to update you about bona fide determination.

The USCIS announced that it would grant certain U visa applicants work authorization and deferred action status while their applications are pending, as long as they meet specific conditions.

We’ll talk a little about U visas in general and discuss what bona fide determination means.

Related: How Joint Sponsorship Works

What Is a U Visa?

U visas are humanitarian visas created to help protect victims (and their qualifying family members) of serious crimes. Congress passed an act to protect victims of trafficking and violence in 2000, leading to the availability of U visas.

A U visa grants a nonimmigrant status to qualifying crime victims and their families.

If you receive your U visa, you can stay in the U.S. legally for four years and apply for your green card after the first three, securing your status as a permanent U.S. resident. In addition, U visas allow you to work in the country while you’re here.

Need help filing for your U visa and getting a bona fide determination to stay and work in the country? We can help.

Eligibility Requirements for U Visas

U visas have various requirements. First, you must be the victim of a serious crime that meets certain U visa requirements per the USCIS. Crimes that meet those requirements include:

  • Unlawful criminal restraint
  • Witness tampering
  • Trafficking
  • Torture
  • Stalking
  • Slavery
  • Sexual assault or exploitation
  • Rape
  • Prostitution
  • Obstruction of justice
  • Murder or manslaughter
  • Fraud related to employment
  • False imprisonment
  • Domestic violence
  • Extortion
  • Blackmail
  • Abduction

However, more crimes than these qualify — according to the USCIS, crimes related to or similar to the ones listed above may be acceptable to your U visa application.  In addition, the crimes must happen in the U.S. or violate U.S. laws.

Furthermore, the crime must have experienced severe mental or physical abuse from the crime, and you must assist law enforcement with the investigation and/or prosecution of the crime if necessary.

Finally, you must be admissible to the U.S. under immigration laws. There are many reasons that can make someone inadmissible. If you are inadmissible, you will need to file a waiver on Form I-192 to gain permission to enter the country as a nonimmigrant.

What “Bona Fide Determination” Means For U Visa Applicants

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In June 2021, the USCIS announced a bona fide determination process for applicants of U visas, allowing those with pending applications to receive a four-year work permit and deferred action status while waiting for the USCIS to grant them their U visa.

Historically, U visa applicants would only be eligible to receive a bona fide determination once they were placed on a waiting list, which could years. However, the new policy means that these benefits become available much more quickly – while the U visa petition is still pending.

Related: Here Are the Family Members You Can Sponsor

How Does the DHS Determine Whether Your Application is Bona Fide or Not?

If your application appears to be filed properly and a background check doesn’t raise any red flags, it is considered bona fide.

The process of determining whether your application qualifies for bona fide determination consists of two steps:

  1. The USCIS must determine that your pending application was made in good faith, meaning that:
    1. You must properly file your petition for a U visa with all the required evidence. This evidence includes all proper forms, including a signed Form I-918 Supplement B, and at a minimum a statement describing your victimization.
    2. The USCIS must receive the results of your background check based on your biometrics.
  1. Once the USCIS determines your application to be bona fide, the organization must then determine whether you pose any risks to public safety or national security. This determination is made from your background check results mentioned above.

What Are a Few Benefits of Bona Fide Determination?

The primary benefit of the new bona fide determination policy is that — once the USCIS makes a determination about your U visa — you will have protection from deportation, which is known as deferred action. You will also be allowed to work in the U.S. for up to four years, and you can renew your work permit for as long as your U visa petition is pending until a decision is made.  

And while no fees are necessary for your initial work authorization application, you will have to pay to file a renewal afterward (if necessary).

How Is Bona Fide Determination Different Than a Waiting List?

There are two key factors that set apart bona fide determination from the U visa waiting list.

First, there are different standards — DHS can make its bona fide determination if its initial review of your application demonstrates that your application was properly and completely filed and you don’t raise any significant concerns.

On the other hand, your U visa application has to meet every aspect of the various U visa eligibility requirements if you want to be placed on DHS’s waiting list. When you are placed on the waiting list, the government has said that you qualify for the U visa but one is not currently available for you and when one is available, it will be given to you. 

Second, bona fide determination can happen much sooner than a decision on your application, which can take years. If DHS determines your application to be bona fide, your case will not go to the waiting list. However, if USCIS does not make a bona fide determination, but then decides to approve your U visa, it will go to the waiting list.

Is Bona Fide Determination Only for New Applications?

No! DHS will review your pending U visa application to make a determination — not just new ones. However, if your case already made it on the waiting list, they will not consider you for a bona fide determination.

Are Family Members Eligible for a Bona Fide Determination?

Any family member of yours that qualifies for the U visa can also get the benefits of the U visa bona fide determination decision, including deferred action status and a work permit.

Have more questions about U visas and bona fide determination? Schedule a consultation today.

Learn More About Bona Fide Determination

Although a bona fide determination is positive, it’s not a guarantee that the USCIS will grant your U visa petition. There is also no guarantee as to how long it will take to have your pending petition reviewed since this is a relatively new policy.

If you want to increase your approval odds for bona fide determination, you should consult an experienced attorney. At Abogada Ashley Immigration, we can help you properly file for a U visa to increase the likelihood that you will get a bona fide determination and work authorization as soon as possible.Related: Do You Qualify for VAWA?

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