Undocumented individuals who have been victims of certain qualifying crimes may apply for U nonimmigrant status if they cooperate in the investigation or prosecution of that crime. Unfortunately, applicants for U nonimmigrant status (or U visas) must wait years for a decision due to a cap of 10,000 U visas issued annually. As of this writing, there are currently over 100,000 U visa applications pending with USCIS, resulting in this backlog. For the last several years, the procedure has been the following:
- The applicant submits their application for a U visa to USCIS.
- Within a month or so, USCIS will send the applicant a receipt notice and a biometrics appointment notice.
- After these two initial notices, it will likely be years before the applicant receives anything from USCIS.
- Approximately, five to six years after filing, USCIS reviews the U visa application. If the applicant meets the requirements, USCIS will grant the applicant deferred action and work authorization. The applicant does not receive U nonimmigrant status at this point due to the unavailability of U visas. Instead, the applicant is placed on a waiting list.
- Once a U visa becomes available (within 1 to 2 years), the applicant is granted U nonimmigrant status, assuming the applicant still qualifies for the U visa. One of the major differences between Deferred Action and U nonimmigrant status is that while under Deferred Action, the applicant is not accruing time towards the 3 years necessary to apply for a green card (adjustment of status).
- Another major drawback of this system has been that the applicant receives no benefits, such as work authorization, until 5 or 6 years after filing their U visa application.
Thankfully, USCIS has finally recognized the long, arduous road for crime victims in receiving benefits. On June 14, 2021, USCIS announced the Bona Fide Determination process, which allows applicants to receive work authorization much sooner. Through this process, USCIS will grant deferred action and employment authorization to applicants with pending U visa petitions that it determines are bona fide and who merit a favorable exercise of discretion as the applicant wait for the issuance of their U visa.
To be considered bona fide, an applicant must have submitted a complete Petition for U nonimmigrant Status (Form I-918), a complete U Nonimmigrant Status Certification (Form I-918B) and a personal statement describing the qualifying crime and victimization.
- Once USCIS has received the results of the applicant’s background check, USCIS must determine whether the applicant poses a risk to national security or public safety, and whether the applicant is deserving of a favorable exercise of discretion to receive deferred action and employment authorization.
- Those applicants who have been granted deferred action and employment authorization under the Bona Fide Determination process will then move on to the final step where USCIS conducts a full review once a visa becomes available.
This policy is effective immediately and applies to new U visa applications and all U visa applications currently pending with USCIS. This new review process will hopefully dramatically decrease the time applicants wait for work authorization and encourage more immigrant crime victims to come forward and report a crime. If you believe you qualify for U visa or have any other questions, please contact an experienced attorney at Minsky, McCormick & Hallagan, P.C.