On June 14, USCIS announced a “bona fide determination” (BFD) process whereby certain U visa
petitioners and their family members can receive four-year work permits and deferred action while their
U visa petitions (link here to article on U visas) are pending. Given only 10,000 U visas are available
each year creating enormous backlogs, and petitioners had to wait years before even obtaining a work
permit, this is a huge breakthrough for the more than 270,000 U visa applicants.
Deferred Action will protect U visa petitioners from removal and potential adverse immigration action
by ICE. USCIS has also stated that the BFD will satisfy the prima facie standard that ICE considers when
granting a stay of removal for a pending U case. See INA § 237(d)(1). ([USC02] 8 USC 1227: Deportable
aliens (house.gov)
Those with a currently pending I-918 or I-918A living in the United States will be considered for bona
fide determination. If approved, deferred action and employment authorization will be granted for
those with an I-765 on file. But not all U visa applicants qualify for bona fide determination. The
following categories of applicants are excluded from receiving a bona fide determination:
1) Those living outside the U.S. are ineligible;
2) USCIS is also excluding individuals who are considered a threat to national security or public
safety or who present other adverse discretionary factors based on a review of the petitioner’s
background. If a person’s background check show convictions— or even just arrests—for
offenses related to aggravated assault, sexual abuse, firearms, child pornography, drug
manufacturing, distributing, or sale, among other offenses, they will most likely not be granted
BFD;
3) Derivative applicants (spouses, and minor children) where the principal applicant does not
receive a BFD. Thus, if the principal applicant does not receive a BFD because they are residing
outside the US, their derivatives will not either, even if the derivatives are inside the United
States. Also, if the principal does not receive a BFD because they are considered a threat to
national security or public safety, their derivatives will not receive BFD either, regardless of their
background or lack of criminal history.
Applicants who are deemed a threat to national security or public safety including those either arrested
or convicted of murder, rape, sexual abuse, offenses involving firearms, explosive materials, or
destructive devices, peonage, slavery, involuntary servitude, and human trafficking,child pornography;
as well as the manufacturing, distributing, or selling of drugs or narcotics will not be granted a bona fide
determination. USCIS is continuing to review pending cases to determine eligibility for BFD. Currently
those with cases from 2016 and before are being reviewed for eligibility.
An I-765 Application for Employment Authorization must be on file for USCIS to issue the work permit
under the BFD category. For more information or to apply for a work permit under this category,
contact our office to schedule an appointment to discuss your case.
Get in touch!
tel: 415-274-7551
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