USCIS Issues Policy Providing Further Protections for Victims of Crime
U.S. Citizenship and Immigration Services (USCIS) updated its Policy Manual to reflect the implementation of a new process known as “Bona Fide Determination.”
The purpose of this process is to issue employment authorization to survivors of crimes, who apply for U Non-Immigrant Status (known as the U Visa), earlier. The earlier issuance of work permits is meant to provide more stability to survivors and encourage them to continue cooperating in the investigation of the crime.
Through the Bona Fide Determination process, USCIS will issue work permits and grant deferred action (protection from deportation) to those individuals who qualify. Individuals who qualify are those who USCIS determines have a bona fide U Visa petition pending. A bona fide petition is one filed in good faith and without intention of deceit or fraud. USCIS will also conduct background checks to determine whether the petitioner merits a favorable exercise of discretion, meaning he or she does not pose a risk to national security or public safety.
USCIS will implement this policy for any Form I-918 (principal petitioner) or Form I-918A (derivative) which are pending on or after June 14, 2021.
Due to an annual limit of 10,000 available U Visas, before this policy change, U Visa petitioners waited a minimum of five years before receiving a decision which would grant them a work permit and deferred action. The acting director of USCIS, Tracy Renaud, indicated “this Bona Fide Determination process will allow U visa petitioners to work while they remain safely in the United States, providing valuable support to law enforcement to detect, investigate, or prosecute the serious crimes they have survived or witnessed.”
Additional Options for After-Acquired Spouses of Principal Petitioners
In December 2020, the Ninth Circuit determined U Visa petitioners who marry after they file their petition with USCIS but before their petition is adjudicated can file a derivative petition for their spouse, called an after-acquired spouse.
USCIS is developing formal guidance which has not yet been issued; however, USCIS recently announced that it will:
- Apply the decision in Medina Tovar nationwide (not just in the Ninth Circuit)
- Apply the decision to U Visa and petitions for T Non-Immigrant Status (known as the T Visa)
- Not make final decisions on any pending derivative petitions until the formal guidance is published
The decision in Medina Tovar and USCIS’ application of it is great news for many people. Before this decision, U Visa petitioners who married after they filed their petition had to wait until they were eligible to apply for adjustment of status to include their spouse.
A U Visa holder can be eligible to apply for adjustment of status after three years in U status; however, the wait for a decision on a U Visa petition is currently about five years making the wait for an after-acquired spouse very lengthy.
Please note: This is an overview of immigration options and is not meant to be legal advice. For information on your specific situation, we recommend you use our contact form to schedule an appointment with our office. We would be glad to help you determine the best option for you.