Although the immigration relief that is the U visa can provide safety and protection for victims of abuse, the process to obtain this status can take several years to resolve. Fortunately, the USCIS has created the “U Visa Bona Fide Determination” process to assist eligible applicants. This allows you to obtain work authorization in a timely manner, reducing the stress of a difficult situation.
The immigration law experts at Urbina Immigration Law explain in this article what the Bona Fide U Visa and Deferred Action for U Visa process consists of, how it benefits applicants, and what steps to take with the help of an immigration attorney. Contact our offices at(770) 626-7268
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What is the U Visa Bona Fide Determination?
The U Visa Bona Fide Determination is a recent policy of the U.S. Citizenship and Immigration Services. (USCIS) that aims to help crime victims get the protection and security they need more quickly and efficiently.
With the new Bona Fide Determination (BFD) process, U visa applicants will be able to obtain work authorization and Deferred Action for U visa status much sooner.
What is Deferred Action for U Visa?
Deferred Action for U visas is temporary relief from deportation granted to individuals who have applied for a U visa and meet the requirements, but have not yet received a decision on their application. This allows them to remain legally in the United States and obtain benefits such as work authorization, the ability to marry, the ability to travel outside the U.S., and protection from deportation. To be eligible, applicants must demonstrate that they are not a threat to national security or public safety and are not subject to factors that would make them ineligible for a U visa.
Who qualifies for the U Visa Bona Fide Determination?
To qualify for the Deferred Action U visa and employment authorization based on the U Visa Bona Fide determination, an individual must:
- Be a principal petitioner for a U Visa who has properly filed a completed I-918 with all required initial evidence, including an I-918 Supplement B law enforcement certification signed no more than six months prior to filing and a personal statement describing the facts of the crime victimization.
- Be a qualified relative of a U Visa petitioner who has properly filed a completed I-918A with evidence of the qualified family relationship to the principal U petitioner and the principal U petitioner has been granted the BFD.
Requirements for the U Visa Bona Fide Determination
To be eligible for the U Visa Bona Fide determination, the applicant must meet the following requirements:
- Currently living in the United States.
- Have a U Visa petition (I-918 or I-918A) currently pending or have filed a petition after June 14, 2021.
- The application for U status must be truthful and not fraudulent.
- The application must be complete and meet the initial evidence requirements.
It is important to know that an I-192 waiver request is not required, nor will it be reviewed as part of the BFD, as USCIS believes that an I-192 review will unnecessarily slow down the BFD decision-making process.
Visa U Bona Fide Determination Process
Once the U visa application is filed, USCIS will conduct a background check. Through this process, the agency will ensure that the applicant is not a risk to national security or public safety. This will make it possible to determine whether the applicant deserves a favorable exercise of discretion.
Why can I be denied a U Visa Bona Fide Determination?
USCIS will generally not grant a Bona Fide Determination or U Visa Deferred Action if the applicant has a criminal record. That is, if he or she has been convicted or even simply arrested for acts that raise national security or public safety concerns. These acts include:
- Sexual Abuse
- Crimes involving firearms, explosive materials or destructive devices
- Crimes related to peonage, slavery, involuntary servitude and human trafficking
- Aggravated assault
- Crimes related to child pornography
- Manufacture, distribution or sale of drugs or narcotic drugs
USCIS has the authority to determine on a case-by-case basis whether other adverse factors weigh against a favorable exercise of discretion, and may grant a U Visa Bona Fide determination. There are also certain crimes that are forgivable under the U visa and will not be counterproductive to your application.
It is important to know that USCIS will conduct background checks and security checks at regular intervals during the period of the U Visa Bona Fide Determination and/or Deferred Action. And it may revoke the benefits granted if it decides that the individual no longer warrants the grant.
Does the Bona Fide Determination guarantee U Visa approval?
No. Receiving a U Visa Bona Fide Determination does not guarantee that an individual will be granted U Visa status. The BFD is only a determination by USCIS that an individual’s application for a U Visa has been made in good faith and has met the necessary requirements.
The granting of the U Visa is a separate process. USCIS will still need to review and approve the application. You must make sure you meet all the requirements so that your application is not denied.
The Bona Fide Determination only allows the individual to apply for an Employment Authorization Document(EAD) and provides for U visa Deferred Action, which means that the individual will not be deported for a certain period of time.
In addition, even if a person is granted a U Visa, this does not guarantee that he or she will be granted permanent residency or citizenship. You will still have to meet the necessary requirements and go through the application processes, following all the steps to obtain permanent residency or citizenship.
Can the Bona Fide Determination and U Visa Deferred Action be renewed?
If a person’s U Visa Bona Fide Determination and Deferred Action are about to expire, he or she may apply for a renewal. The renewal application must be submitted no earlier than 180 days prior to the expiration date and no later than the expiration date. It is essential to file the renewal application on time to avoid a gap in employment authorization or deferred action status.
To be eligible for renewal, the individual must continue to meet all eligibility criteria. This includes continued physical presence in the United States and cooperation with law enforcement. The person must also not have engaged in any criminal activity or conduct that would make him/her inadmissible.
USCIS will review the renewal application and conduct a background check to ensure that the individual continues to merit a favorable exercise of discretion. If USCIS approves the renewal, the individual will receive a new U Visa Bona Fide Determination and Deferred Action. The Determination of Bona Fide and his or her work permit will be valid for two years from the date of approval.
What happens if I am not granted a U Visa Bona Fide Determination?
If a person is not granted a Bona Fide Determination, this does not imply that he or she has been denied a U visa. The next steps depend on whether the person is the principal applicant or a derivative relative.
If this is the primary applicant, the case moves to the waiting list placement award. During this stage, there may be a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) issued.
If approved for inclusion on the waiting list, the applicant may receive an Employment Authorization Document (EAD) and Deferred Action for U Visa based on their inclusion on the waiting list. However, the applicant may have to wait longer through this method. If the applicant is rejected at the waiting list adjudication stage, the case is denied.
In the case of eligible derivative family members who are not granted a U Visa Bona Fide Determination, they proceed to full adjudication, which includes issuance of RFE or NOID. If the primary applicant was not granted the BFD but was placed on the waiting list, the referred family member may also be placed on the waiting list if he or she can resolve the identified problems.
However, if the primary applicant was granted the BFD, the referred person cannot be placed on the waiting list without the primary applicant on the waiting list. In that case, if the derivative is able to resolve the identified problems, it may receive a Bona Fide Determination at that time. If they are not able to solve the problems, they have to wait for the final award of the principal. At that time, USCIS will make a final decision on the referral’s application.
Need help with your Bona Fide Determination? Consult with an attorney
If you have questions about the process or how to make your request, an experienced attorney can review your case and identify any weaknesses or errors that may lead to the denial of your Bona Fide Determination. It can also help you prepare a strong response to any request for evidence or notice of intent to deny that you may receive during the adjudication phase of waitlist placement.
If you are facing a bona fide refusal of determination or need assistance with your U Visa application, please do not hesitate to contact our offices. Our skilled immigration attorneys can help you navigate the complex immigration system and work to achieve your immigration goals.