This advisory is not legal advice, but provides basic information on the new U Visa bona fide determination, issued June 2021. Individuals should seek a legal consultation from a qualified immigration attorney or DOJ accredited representative for a full assessment of their cases.
- What is a U Visa?
The U Visa is a nonimmigrant visa that allows noncitizen crime victims and certain qualifying family members to live and work in the United States for up to four years, with extensions in some cases. U Visa holders become eligible to apply to adjust status to lawful permanent resident (green card) after three years in U nonimmigrant status. After five years as a lawful permanent resident, one becomes eligible to apply for U.S. citizenship. There is an annual limit of 10,000 U Visas per year, not including spouses and other derivative family members, which has created a massive backlog and long waiting times for final U Visa adjudication.
- Who is eligible for a U Visa?
A noncitizen may be eligible for a U Visa if they suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity; possesses information concerning that criminal activity; has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; and the criminal activity violated the laws of the United States or occurred in the United States.
- What is the new “bona fide determination” for U Visa applicants?
The Department of Homeland Security (DHS) will decide if a U Visa application is “bona fide” if an initial review of the U Visa application demonstrates the application was complete and properly filed and a criminal background check does not raise any national security, public safety, or other concerns.
- How will the DHS determine that a U Visa application is bona fide?
First, DHS will check to make sure a U Visa applicant filed a complete application. A complete application includes:
- a complete, signed U Visa application (Form I-918);
- a complete, signed U Visa certification (Form I-918, Supplement B) filed within six months of the certifier’s signature;
- and a personal statement from the U Visa applicant describing the facts of the case.
Second, DHS will run the U Visa applicant’s biometric data (including fingerprints) for a criminal background and security check to ascertain whether the applicant poses a risk to national security or public safety or presents other negative discretionary factors. DHS may consider individuals arrested for, charged with, or convicted of certain serious crimes, such as aggravated assault, sex crimes, and drug trafficking offenses, a public safety risk.
- What are the benefits of a bona fide determination for U Visa applicants?
If DHS decides a U Visa application is bona fide, the applicant will be granted protection from deportation—called deferred action—and will be eligible for work authorization (an EAD) for four years, which can be renewed as necessary. If an application for an EAD was included with the U Visa application, DHS will issue an EAD valid for four years. If no EAD application was filed, DHS will issue a notice of the bona fide determination, which allows the applicant to apply for an EAD. No fee is required for the initial EAD, but a fee will be required for renewal.
- How is this different from the U Visa waiting list?
The new bona fide determination is different from the waiting list in two key ways. First, the standards are different. DHS can make a bona fide determination if an initial review of the U Visa application demonstrates the application was complete and properly filed and a criminal background check does not raise any national security, public safety, or other concerns. To place someone on the U Visa waiting list, DHS must determine that the U Visa application is approvable because the applicant meets all of the U Visa eligibility criteria. Second, a bona fide determination will come before a waiting list decision, which has been taking about 60 months (5 years) recently. If DHS makes a bona fide determination in a case, that case will not be placed on the waiting list. If DHS declines to make a bona fide determination in a case, it will proceed to waiting list consideration.
- If I already filed my U Visa application and it is still pending, will DHS make a bona fide determination in my case or is this only for new cases?
Yes, DHS will review both newly filed and pending U Visa applications to make a bona fide determination. However, cases already on the waiting list will not be considered for a bona fide determination.
- If my case is pending, do I need to request a bona fide determination or take some other affirmative action?
No. At this point, you do not need to take any action. DHS will review your case and make a bona fide determination, although it may take a long time for DHS to get through the hundreds of thousands of pending cases.
- How long will it take DHS to make a bona fide determination in my case?
At this point, that is unclear. DHS has not explained the order in which it will review cases to make a bona fide determination, but given the hundreds of thousands of pending cases, do not expect quick action on your case.
- If DHS decides an application is bona fide and grants an EAD and deferred action, does that mean DHS will grant a U Visa in that case?
No. In making a bona fide determination, DHS is only considering whether the application was complete and properly filed and that the applicant does not pose any national security, public safety, or other concerns. DHS will grant a U Visa if the applicant demonstrates they suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity; possesses information concerning that criminal activity; has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; and the criminal activity violated the laws of the United States or occurred in the United States.
- If DHS decides an application is bona fide and grants an EAD and deferred action, can DHS revisit whether an applicant poses a risk to national security or public safety?
Yes. DHS reserves the right to revoke an EAD and deferred action if it identifies any information that suggests that the applicant poses a risk to national security or public safety. This includes any issues that were present but undiscovered when DHS determined the application was bona fide or any new issues that have arisen since DHS made that determination.
- What if DHS decides not to make a bona fide determination in my case? Does that mean my U Visa application has been denied?
No. It does not mean DHS denied your U Visa application. DHS will consider your application for the waiting list. At that point, DHS may issue a request for evidence or a notice of intent to deny your application. If DHS determines your case cannot be place on the waiting list, DHS will deny your U Visa application.
- Are qualifying family members eligible for a bona fide determination?
Yes. A qualifying family member can receive a bona fide determination, an EAD, and protection against deportation if the principal applicant receives a bona fide determination; the principal applicant filed a Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A), including evidence of the qualifying family relationship; and a criminal background check presents no national security or public safety concerns.
- Are U Visa applicants or qualifying family members outside of the United States eligible for a bona fide determination?
No. Unfortunately, this policy only applies to people inside the United States.
- How can I check the status of my pending U Visa case?
You can check USCIS processing times for U Visas on the USCIS website: https://egov.uscis.gov/processing-times/. DHS currently only lists processing times for the waiting list determination, but it may update the website to show processing times for bona fide determinations in the future.
- Should I hire someone to help me obtain a bona fide determination?
If you have a U visa application pending, there is nothing more you need to do at this time to obtain a bona fide determination. If you have not applied for a U visa but think you may be eligible for one, please speak with a lawyer who has immigration law expertise or an accredited representative at a nonprofit organization authorized to provide immigration legal services (known as a DOJ accredited representative). Please be wary of notary fraud and unauthorized practice of law. Since this is a newly announced benefit, some people might mislead U visa applicants and suggest they must pay a fee or file new documents to obtain this benefit. That is not true. If you have questions about your U visa case, please consult with an immigration attorney or a DOJ Accredited Representative.
- What do I do if I think I may be eligible for a U Visa?
If you live in Illinois or Indiana and want to schedule a consultation appointment to determine your eligibility for U nonimmigrant status, please contact the National Immigrant Justice Center at 312-660-1370. If you live elsewhere, please find a legal service provider in your area: https://www.immigrationadvocates.org/nonprofit/legaldirectory/