** LEGAL UPDATE **
U.S. Citizenship and Immigration Services (USCIS) has made sweeping changes to the U visa adjudication process for victims of crime in order to improve the efficiency of adjudications. These policy changes, announced June 14, 2021, provide a pathway for U visa petitioners to receive employment authorization and deferred action status much sooner than before. This policy change also encourages more non-citizen victims to come forward and cooperate with law enforcement to prosecute serious crimes.
The U visa is available for victims of crime (or an immediate family member of a victim) who suffered substantial mental or physical abuse while in the U.S. and assist law enforcement in the investigation. The number of U visas available each year is capped at 10,000, which has led to a tremendous backlog in case approvals (or denials).
For U visa petitions in 2021, the wait was well over five years before USCIS even reviewed the application. Only after this five-year (or longer) wait would a petitioner be eligible for work authorization (an "EAD") and deferred action, so as to prevent deportation. In the meantime, petitioners could not work and were without any lawful immigration status, leaving them at high risk for deportation.
This long (and risky) wait likely had a chilling effect, making many victims of crime reticent to come forward and take the risk of assisting law enforcement.
The June 2021 USCIS guidance has streamlined the long waits before petitioners can receive work authorization and deferred action, through a process known as a bona fide determination (BFD). From now on, when USCIS receives a U visa petition, it will review the petition to ensure that it is bona fide (a good faith application that meets the basic U visa requirements—see below).
After receiving a positive BFD, victims of crime can receive employment authorization and deferred action, giving them the opportunity for financial security and greatly reducing their risk of deportation while awaiting a final decision on their U visa petition.
The new guidance applies both to already-pending U visa applications and new applications filed after June 14, 2021. The BFD determination also lasts for four years (as opposed to the two-year period under the prior policy). Within that four-year period, USCIS will periodically conduct background check reviews to ensure that the petitioners remain eligible.
USCIS will deem a pending U visa application bona fide if it meets the following requirements:
If USCIS determines that an application does not warrant a bona fide determination, the petitioner's case will not be dismissed, but instead placed on the full waiting list. From there, the petitioner can eventually receive deferred action and employment authorization (though this will involve a much longer wait than the BFD determination).
Because of the significant benefits of receiving a BFD, potential petitioners should strongly consider working with a qualified immigration attorney or nonprofit organization to ensure that all forms are properly filed.
USCIS has also changed how it analyzes qualifying family members of a U visa petitioner. Previously, a U visa petitioner could not add a spouse as a qualifying family member if they weren't married to that person at the time they FILED for the U visa.
However, the new USCIS guidance adopts a Ninth Circuit decision, Medina Tovar v. Zuchowski, which allows a U visa petitioner to add any spouse as a qualifying family member, provided that the petitioner was married to that person at the time the U visa was ADJUDICATED. With a wait period of at least five years before a U visa petition gets adjudicated, many marriages that otherwise would have been ineligible will now qualify.
Effective Date: June 14, 2021