After many years of advocacy on this issue by stakeholders, U.S. Citizenship and Immigration Services, or USCIS, announced that it will exercise its statutory authority to grant employment authorization documents, or EADs, to noncitizens with a pending bona fide petition for U nonimmigrant status. USCIS issued a policy alert on June 14, 2021, announcing changes to the Policy Manual that would implement USCIS’s authority to perform bona fide determinations, or BFDs, for pending U nonimmigrant status petitions and provide EADs and deferred action to those who meet certain discretionary standards. The Immigration and Nationality Act limits the number of U nonimmigrant visas that can be issued each fiscal year to 10,000. As a result, the waiting list for individuals seeking to obtain a U visa has grown each year as the number of principal petitioners exceeds the number of allowed approvals. In addition, the processing time to be placed on the waiting list has grown to over five years. Under prior USCIS policy, U visa petitioners could not obtain work authorization and deferred action until they were placed on the waiting list. This new program is a welcome change, as it should enable U status petitioners and their family members to obtain deferred action and EADs much faster.

The details of the Bona Fide Determination Process are found in Volume 3, Part C, Chapter 5 of the USCIS Policy Manual. This guidance applies to all Form I-918 petitions that are currently pending and those filed on or after June 14, 2021.

What are the requirements for a principal petitioner?

• Properly filed Form I-918, Petition for U nonimmigrant status;
• All required initial evidence, except for Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. Required initial evidence includes a complete and properly filed Form I-918B, Law Enforcement Certification and a personal statement from the petitioner; and
• USCIS has received the principal petitioner’s biometrics.

What are the requirements for derivatives?

• The principal petitioner has been approved for an EAD based on a BFD;
• Properly filed Form I-918A (Petition for Qualifying Family Member of U-1 Recipient);
• The petition includes credible evidence of the qualifying family relationship; and
• USCIS has received the derivative’s biometrics.

When must a spousal relationship exist in order for a spouse to qualify as a derivative?

The guidance clarifies that USCIS will implement the Ninth Circuit decision in Medina Tovar v. Zuchowski on a nationwide basis and evaluate whether the spousal relationship existed at the time the principal petition was favorably adjudicated, rather than when Form I-918 was filed. In Medina Tovar, the court found that USCIS’s requirement that the spousal relationship exist at the time of filing Form I-918 was arbitrary and capricious. As a result, the court held that principal petitioners may file Form I-918A for their after-acquired spouses.

What happens after USCIS reviews the required initial evidence?

USCIS will perform an initial review of the required initial evidence to determine if the application is bona fide. If the application is deemed bona fide, USCIS will evaluate whether the applicant poses a risk to national security or public safety and whether the applicant warrants a favorable exercise of discretion to receive an EAD and deferred action.

What factors does USCIS use to assess discretion, national security and public safety concerns?

USCIS will generally not choose to exercise discretion to grant a BFD EAD and deferred action where a petitioner or derivative:

• Is inadmissible under the security and related grounds found at INA § 212(a)(3)
• Has been convicted of or arrested for any of the following acts:
  • murder, rape, or sexual abuse;
  • offenses including firearms, explosive materials or destructive devices;
  • offenses relating to peonage, slavery, involuntary servitude, and trafficking in persons;
  • aggravated assault;
  • an offense relating to child pornography; and
  • manufacturing, distributing, or selling of drugs or narcotics.
• USCIS may also determine on a case-by-case basis that other adverse factors weigh against a favorable exercise of discretion.

What happens if USCIS determines that a petitioner may pose a risk to national security or public safety?

USCIS will not issue a BFD EAD if it determines the petitioner poses a national security risk. USCIS will not conduct an in-depth, discretionary review at this stage. Instead, USCIS will initiate a waiting list adjudication, including review of Form I-192, if one was submitted. What benefits does the petitioner receive if USCIS determines the petition is bona fide? If USCIS determines a principal petitioner and derivatives have bona fide petitions and warrant a favorable exercise of discretion, USCIS will issue BFD EADs and grant deferred action. The EAD and deferred action will be granted for a four-year period, which may be renewed. In cases in which a BFD EAD was issued, USCIS will generally not conduct a full waiting list adjudication. Instead, the next step will be final adjudication of the U visa once a visa becomes available.

When does USCIS conduct a full waiting list adjudication?

If USCIS does not grant a BFD EAD and deferred action, this does not mean the I-918 will be denied. USCIS will initiate a full waiting list adjudication for the principal petitioner and any derivatives. USCIS will issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) indicating that USCIS will not issue a BFD EAD and requesting evidence to address any deficiencies or concerns associated with adjudication.

What does this mean for prima facie approval?

In cases in which USCIS issues a BFD EAD, the petitioner is considered to have established a prima facie case for approval. A prima facie determination is required by Immigration and Customs Enforcement in certain circumstances, such as when a petitioner seeks a stay of removal.

What are the fees and how do you file?

There are no fees for initial BFD EADs for either principals or derivatives. If the principal or derivative wishes to renew the EAD after four years, he or she must either pay the Form I-765 filing fee or request a fee waiver. If a Form I-765 has been previously submitted in either the 8 CFR § 274a.12(a)(19), (a)(20) or (c)(14) category, an additional Form I-765 does not need to be submitted.

What about petitioners residing outside the United States?

USCIS will only issue BFD EADs and deferred action to petitioners residing in the United States.