Chapter 5 - Bona Fide Determination Process

By statute, USCIS has discretion to provide employment authorization to noncitizens with pending, bona fide U nonimmigrant status petitions.^[1] Consequently, USCIS implemented the Bona Fide Determination (BFD) process.

During the BFD process, USCIS first determines whether a pending petition is bona fide. Second, USCIS, in its discretion, determines whether the petitioner poses a risk to national security or public safety, and otherwise merits a favorable exercise of discretion. If USCIS grants a noncitizen a Bona Fide Determination Employment Authorization Document (BFD EAD) as a result of the BFD process, USCIS then also exercises its discretion to grant that noncitizen deferred action for the period of the BFD EAD. USCIS generally does not conduct waiting list adjudications for noncitizens who USCIS grants BFD EADs and deferred action to; these petitioners’ next adjudicative step is final adjudication when space is available under the statutory cap.^[2]

As a matter of policy, USCIS interprets “bona fide” as part of its administrative authority to implement the statute as outlined below. Bona fide generally means “made in good faith; without fraud or deceit.”^[3] Accordingly, when interpreting the statutory term within the context of U nonimmigrant status, USCIS determines whether a petition is bona fide based on the petitioner’s compliance with initial evidence requirements and successful completion of background checks. If USCIS determines a petition is bona fide, USCIS then considers any national security and public safety risks, as well as any other relevant considerations, as part of the discretionary adjudication.^[4]

As a primary goal, USCIS seeks to adequately evaluate and adjudicate petitions as efficiently as possible. The BFD process provides an opportunity for certain petitioners to receive BFD EADs and deferred action while their petitions are pending, consistent with the William Wilberforce Trafficking Victims Reauthorization Act of 2008 (TVPRA 2008).^[5]

Only petitioners living in the United States may receive BFD EADs, since those outside the United States cannot as a practical matter work in the United States.^[6] Likewise, deferred action can only be accorded to petitioners in the United States since those outside the United States have no potential removal to be deferred.

A. Bona Fide Determination

1. Principal Petitioners

USCIS determines a principal petition is bona fide if:

The principal petitioner has properly filed a complete Petition for U Nonimmigrant Status (Form I-918), including all required initial evidence,^[7] except for the Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).^[8] Required initial evidence includes:
- A complete and properly filed U Nonimmigrant Status Certification (Form I-918, Supplement B) submitted within 6 months of the certifier’s signature; and
- A personal statement from the petitioner describing the facts of the victimization; and
USCIS has received the result of the principal petitioner’s background and security checks based upon biometrics.^[9]

2. Qualifying Family Members

A qualifying family member is not guaranteed a BFD EAD solely because the principal petitioner receives a BFD EAD.^[10] The record must independently demonstrate the Form I-918, Supplement A is bona fide. USCIS determines a qualifying family member’s petition is bona fide when:

The principal petitioner receives a BFD EAD;
The petitioner has properly filed a complete Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A);
The petition includes credible evidence of the qualifying family relationship;^[11] and
USCIS has received the results of the qualifying family member’s background and security checks based upon biometrics.^[12]

B. Exercise of Discretion, Including Risk to National Security or Public Safety and Other Factors

Once USCIS has determined a petition is bona fide, USCIS determines whether the petitioner poses a risk to national security^[13] or public safety by reviewing the results of background checks, and considers other relevant discretionary factors.^[14] USCIS then determines whether to exercise its discretion to issue a BFD EAD and grant deferred action to a petitioner.

Section 214(p)(6) of the Immigration and Nationality Act (INA) gives the Secretary of Homeland Security, and USCIS as his or her designee, discretionary authority over the issuance of employment authorization to noncitizens with pending, bona fide U nonimmigrant status petitions.^[15] A principal petitioner or qualifying family member who poses a risk to national security or public safety, or has other adverse discretionary factors, may not merit the favorable exercise of discretion necessary to grant deferred action.

Moreover, at the final adjudication, such individuals may require a waiver for any grounds of inadmissibility, and may be ineligible for U nonimmigrant status if they do not merit a favorable exercise of discretion. Therefore, in exercising the discretion granted by the INA, USCIS grants BFD EADs to principal petitioners and qualifying family members with pending bona fide petitions who it determines merit a favorable exercise of discretion, considering any risk to national security or public safety, as well as other relevant discretionary factors.

USCIS may choose not to exercise its discretion to grant a BFD EAD and deferred action where a petitioner appears to pose a risk to national security or public safety. For example, where a principal petitioner or qualifying family member has been convicted of or arrested for any of the following acts, USCIS generally does not issue a BFD EAD and deferred action and instead proceeds to a full adjudication to assess eligibility for waiting list placement. The following categories generally overlap with inadmissibility grounds^[16] and may include:

National security concerns;^[17] and
Public safety concerns, which include but are not limited to:
- Murder, rape, or sexual abuse;
- Offenses involving firearms, explosive materials, or destructive devices;^[18]
- Offenses relating to peonage, slavery, involuntary servitude, and trafficking in persons;^[19]
- Aggravated assault;
- An offense relating to child pornography; and
- Manufacturing, distributing, or selling of drugs or narcotics.^[20]

Violent and dangerous crimes, such as those listed above, embody the very activities law enforcement seeks to deter and prevent through cooperation facilitated by the U nonimmigrant status program.

Additionally, USCIS may determine on a case-by-case basis that other adverse factors weigh against a favorable exercise of discretion. USCIS may also exercise discretion favorably notwithstanding the above concerns if case-specific circumstances warrant it.

Recognizing that many factors may influence whether criminal activity is prosecuted and results in a conviction, an arrest for a serious crime is relevant to whether USCIS should exercise its discretion favorably. A determination about whether to favorably exercise discretion when there are indicators of national security or public safety concerns requires a comprehensive review of the available evidence.

For example, officers may need to request additional evidence or information in certain cases where security checks indicate that a petitioner has an arrest record.^[21] Therefore, USCIS does not conduct this in-depth, discretionary review during the BFD process. Instead, if USCIS determines that a petitioner may pose a risk to national security or public safety, or has other relevant adverse factors that would require further review, and therefore will not receive a BFD EAD, USCIS initiates a waiting list adjudication and conducts a comprehensive discretionary review as part of the evaluation of Form I-192 if one is submitted.

USCIS evaluates all evidence provided by petitioners regarding their arrest records before making determinations for waiting list placement.^[22]

C. Adjudicative Process

USCIS evaluates all petitions for U nonimmigrant status filed by noncitizens living in the United States as described above.^[23] If USCIS determines a principal petitioner and any other qualifying family members have a bona fide petition and warrant a favorable exercise of discretion, USCIS issues them BFD EADs and grants deferred action.

USCIS initiates waiting list adjudication for petitioners who do not receive BFD EADs. When USCIS determines a principal petitioner will not receive a BFD EAD, USCIS proceeds to a full adjudication for waiting list placement for the principal petitioner and his or her qualifying family members.

A determination that a petitioner will not receive a BFD EAD and deferred action is not a denial of Form I-918 or the Application for Employment Authorization (Form I-765). A petitioner who does not receive a BFD EAD and deferred action is evaluated for waiting list eligibility and still has the opportunity to obtain employment authorization and a grant of deferred action if deemed eligible for waiting list placement. Consequently, non-issuance of a BFD EAD is not a final agency action. Correspondingly, USCIS does not accept or process motions to reopen or reconsider, appeals,^[24] or requests to re-apply for a BFD EAD.

For any qualifying family member who will not receive a BFD EAD, USCIS completes a full adjudication for that qualifying family member. The full adjudication includes the issuance of Requests for Evidence (RFEs) to address any deficiencies or concerns identified in the qualifying family member’s record but it is not an adjudication for waiting list placement. Because qualifying family members are “accompanying or following to join” the principal petitioner, they will not be placed on the waiting list unless the principal petitioner was placed on the waiting list.^[25]

If the qualifying family member resolves the deficiencies or concerns in the record, USCIS issues a BFD EAD and grants deferred action to the qualifying family member. If additional evidence provided by the qualifying family member does not resolve the deficiencies or concerns identified, then USCIS does not issue a BFD EAD and generally places the qualifying family member’s petition with the principal petition back in line to await a final statutory cap adjudication.

When USCIS issues a final decision to the principal petitioner, USCIS also issues a final decision for any qualifying family member who did not receive a BFD EAD. USCIS retains the authority to deny any petition when, after full adjudication, USCIS determines the qualifying family member is ineligible for the underlying benefit.

For example, USCIS may deny the petition where the record establishes that the claimed family member does not have a qualifying family relationship with the petitioner, or where USCIS determines a favorable exercise of discretion is not warranted to waive the qualifying family member’s grounds of inadmissibility.

1. Criminal History Check for Bona Fide Determination Employment Authorization Documents

To efficiently determine whether to issue BFD EADs and grant deferred action, USCIS conducts background and security checks to identify petitioners who may pose risks to national security and public safety, or other adverse discretionary factors. USCIS relies on a variety of databases that collect information from law enforcement agencies and other federal, state, local, and tribal agencies, including information regarding arrests and convictions.

USCIS uses this information to determine whether a petitioner is admissible for the purposes of receiving a grant of U nonimmigrant status or merits a favorable exercise of discretion to waive any grounds of inadmissibility. USCIS’ consideration of national security and public safety risks at the BFD EAD stage aligns with inadmissibility grounds evaluated during the adjudication of a petition for U nonimmigrant status and is therefore a consistent exercise of discretion within the authority afforded by INA 214(p)(6) to grant BFD EADs.

A petitioner who is not issued a BFD EAD due to the risk the petitioner appears to pose to national security or public safety receives a full adjudication for waiting list placement. During the adjudication for waiting list placement, petitioners have the opportunity to provide USCIS with potentially mitigating information or other evidence pertaining to arrests or convictions.

USCIS issues petitioners a BFD EAD and grants deferred action in order to promote victim stability and continued cooperation with law enforcement. However, USCIS updates and reviews background and security checks at regular intervals during the validity period of a principal petitioner or a qualifying family member’s BFD EAD.

Additionally, USCIS retains discretion to update background and security checks at any time when case-specific circumstances warrant. During those reviews, USCIS evaluates whether the petitioner and qualifying family members who have been granted BFD EADs and deferred action continue to warrant the BFD EAD and merit a favorable exercise of discretion while their petitions for U nonimmigrant status are pending with USCIS.

USCIS reserves the right to revoke the BFD EAD^[26] and terminate the grant of deferred action at any time if it determines the BFD EAD or favorable exercise of discretion are no longer warranted, or the prior BFD EAD and deferred action were granted in error.

For example, USCIS may revoke the BFD EAD and terminate deferred action if USCIS identifies any adverse information, such as new information pertaining to the risks the petitioner poses to national security or public safety, or the withdrawal of a petitioner’s Form I-918, Supplement B. At that time, USCIS initiates a waiting list adjudication to gather additional information and evidence to determine if the petitioner is eligible for a waiver of inadmissibility for any relevant inadmissibility grounds and placement on the waiting list.

2. Previously Filed Form I-765 for Bona Fide Determination Process

USCIS uses all Applications for Employment Authorization (Form I-765) already filed by principal petitioners under 8 CFR 274a.12(a)(19) and (c)(14) to issue a BFD EAD. USCIS also uses Form I-765 applications previously filed under 8 CFR 274a.12(a)(20) and (c)(14) for a qualifying family member to issue a BFD EAD to qualifying family members. Using previously filed applications limits the burden on petitioners to file additional paperwork.

Where a petitioner has filed a Form I-918 but has not filed an accompanying application for employment authorization under 8 CFR 274a.12(a)(19), (a)(20) or (c)(14), USCIS issues a notice indicating that the petitioner has received a BFD and may receive a BFD EAD. To obtain an EAD, the petitioner must file a Form I-765 after receiving this notice.

3. Bona Fide Determination Employment Authorization Document Issuance

Once USCIS has determined that a petitioner present in the United States has a bona fide petition and merits a favorable exercise of discretion, and therefore may receive a BFD EAD, USCIS issues a notice to inform the petitioner of the decision.

Such petitioners who have already filed a Form I-765 under either of the EAD classifications noted above then receive an EAD and a grant of deferred action valid for 4 years. Petitioners who must file a new Form I-765 after receiving the BFD notice from USCIS receive employment authorization and deferred action valid for 4 years once USCIS finishes adjudicating the Form I-765.

4. Prima Facie Case for Approval

Where USCIS issues a BFD EAD to a petitioner, the petitioner is also considered to have established a prima facie case for approval within the meaning of INA 237(d)(1). The term “prima facie” refers to a petition appearing sufficient on its face.

The evaluation performed by USCIS to determine whether a petition is bona fide and whether a petitioner receives a BFD EAD is a more complex evaluation than looking at the petition on its face alone. The BFD process satisfies the prima facie standard that U.S. Immigration and Customs Enforcement (ICE) previously requested in specific circumstances^[27] since the steps taken to determine whether a petition is bona fide and a petitioner receives a BFD EAD rely on the initial evidence submitted with a petition for U nonimmigrant status, as well as the results of background checks.

5. Waiting List Adjudication for Petitioners Not Issued a Bona Fide Determination Employment Authorization Document

Once an officer has determined that a petitioner will not receive a BFD EAD, the officer reviews the complete filing and identifies any deficiencies or concerns that need to be addressed for waiting list adjudication. The officer then issues an RFE or Notice of Intent to Deny (NOID), which includes:^[28]

A notice explaining that USCIS will not be issuing a BFD EAD; and
An RFE to address any deficiencies or concerns associated with waiting list adjudication.

If USCIS determines that a petitioner will not receive a BFD EAD, but can be placed on the waiting list, that decision generally does not affect the timeline in which the petition for U nonimmigrant status is adjudicated for final determination of U nonimmigrant status. If USCIS determines that a petitioner will not receive a BFD EAD and cannot be placed on the waiting list, USCIS will deny the petition.

6. Request to Renew Bona Fide Determination Employment Authorization Document and Deferred Action

Generally, USCIS does not charge a fee for the filing of certain victim-based and humanitarian benefit requests, including Form I-918 and Form I-918, Supplement A.^[29] Consequently, petitioners who receive BFD EADs do not need to submit a filing fee for the initial Form I-765 associated with the BFD EAD. Petitioners who choose to renew their BFD EADs may do so under existing procedures.^[30] Once a BFD EAD is renewed, the accompanying grant of deferred action is also renewed.

TVPRA 2008 requires USCIS to permit petitioners for U nonimmigrant status to apply for fee waivers for “any fees associated with filing an application for relief through final adjudication of the adjustment of status.”^[31] USCIS has interpreted this to mean that, in addition to the main benefit request, applicants and petitioners must have the opportunity to request a fee waiver for any form associated with the main benefit, including applications for waivers of inadmissibility or employment authorization. Principal petitioners and qualifying family members who are seeking to renew a BFD EAD must either submit a filing fee or submit a Request for Fee Waiver (Form I-912).

An initial BFD EAD grant does not guarantee future renewals. Principal petitioners and qualifying family members are evaluated independently for each EAD and deferred action renewal to ensure that the BFD EAD and grant of deferred action are still warranted as a matter of discretion.

>Additionally, USCIS may identify principal petitioners and qualifying family members who pose a risk to national security and public safety during the validity period of the BFD EAD and deferred action, until final adjudication of U nonimmigrant status.

At any point during the validity period, USCIS has the right to revoke employment authorization or terminate deferred action if USCIS determines a national security or public safety concern is present, if USCIS determines the BFD EAD and deferred action is no longer warranted, the Form I-918 Supplement B law enforcement certification is withdrawn, or USCIS determines the prior BFD EAD was issued in error.^[32]

If USCIS determines that adverse information may impact a principal petitioner’s ability to maintain a BFD EAD and deferred action, USCIS will initiate a waiting list review for the principal petition. Similarly, if USCIS determines that adverse information may impact a qualifying family member’s ability to maintain a BFD EAD and deferred action, USCIS will conduct a full adjudication of the qualifying family member’s petition as described above to determine whether the qualifying family member can maintain a BFD EAD and deferred action.

An initial grant or renewal of a BFD EAD and deferred action does not guarantee that USCIS will approve the principal petitioner or his or her qualifying family members for U nonimmigrant status. Generally, USCIS adjudicates petitions for U nonimmigrant status in the order in which they are received, subject to limited exceptions. When the principal petitioner’s filing is next in line for final adjudication, an officer assesses eligibility requirements for U nonimmigrant status. This adjudication does not include consideration of prior grants or renewals of BFD EAD or deferred action.

7. Petitioners Residing Outside of the United States

USCIS only issues BFD EADs and deferred action to petitioners living in the United States as it cannot provide deferred action or employment authorization to petitioners outside the United States. Deferred action, as an exercise of prosecutorial discretion to make a noncitizen a lower priority for removal from the United States, is only applicable to noncitizens in the United States. Additionally, INA 274A gives the Secretary of Homeland Security, and USCIS as his or her designee, authority over noncitizen employment authorization in the United States.

Because the BFD EAD is only for petitioners living in the United States, principal petitioners (and their qualifying family members) who live outside of the United States proceed directly to waiting list adjudication.

Generally, USCIS adjudicates cases in the order in which they were received to determine waiting list placement. If USCIS determines a principal petitioner residing outside the United States is eligible for waiting list placement, the principal petitioner and his or her qualifying family members should submit a Form I-765 upon admission to the United States to receive an EAD.

Footnotes

[^ 1] See INA 214(p)(6) (“The Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 101(a)(15)(U).”).

[^ 2] See Appendix: Bona Fide Determination Process Flowchart [3 USCIS-PM C.5, Appendices Tab].

[^ 3] See Black’s Law Dictionary (11th ed. 2019).

[^ 4] Submission of biometrics is a requirement for principal petitioners as well as derivatives. See 8 CFR 214.14(c)(3) and 8 CFR 214.14(f)(5).

[^ 5] See Pub. L. 110-457 (PDF) (December 23, 2008). See INA 214(p)(6) (“The Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 101(a)(15)(U).”).

[^ 6] See INA 274A. See 8 CFR 274a.12(a), (b), (c) (referring to employment in the United States).

[^ 7] See 8 CFR 214.14(c)(2).

[^ 8] One of the main purposes for issuing employment authorization to those with pending, bona fide petitions is to provide EADs to good faith petitioners who are vulnerable due to lengthy wait times. Requiring and adjudicating Form I-192 for purposes of the EAD would delay the EAD adjudication and undermine efficiency. Instead of adjudicating the Form I-192 at this stage, USCIS relies on criminal history checks.

[^ 9] See instructions for the Petition for U Nonimmigrant Status (Form I-918).

[^ 10] The principal petitioner enables access to the benefits associated with U nonimmigrant status for the qualifying family member. Therefore, USCIS does not consider a qualifying family member for a BFD unless the principal petitioner receives a BFD EAD.

[^ 11] Under INA 214(p)(4), USCIS considers any credible evidence relevant to the petition.

[^ 12] See instructions for Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A).

[^ 13] See INA 212(a)(3).

[^ 14] See Section C, Adjudicative Process, Subsection 1, Criminal History Check for BFD EADs [3 USCIS-PM C.5(C)(1)].

[^ 15] See INA 214(p)(6) (“The Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 101(a)(15)(U).”) (emphasis added).

[^ 16] See INA 212(a).

[^ 17] As listed in INA 212(a)(3).

[^ 18] Such as those defined in INA 101(a)(43)(C) and (E).

[^ 19] As defined in INA 101(a)(43)(K)(iii).

[^ 20] This includes acts defined in INA 101(a)(43)(B).

[^ 21] See Matter of Arreguin, 21 I&N Dec. 38, 42 (BIA 1995) (considering but hesitating to give “substantial weight” to an uncorroborated arrest report). See Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1350 (11th Cir. 2010) (“Absent corroboration, the arrest reports by themselves do not offer reasonable, substantial, and probative evidence that there is reason to believe Garces engaged in drug trafficking.”).

[^ 22] See Henry v. I.N.S., 74 F.3d 1, 6 (1st Cir. 1996) (noting “while an arrest, without more, is simply an unproven charge, the fact of the arrest, and its attendant circumstances, often have probative value in immigration proceedings.”).

[^ 23] See Section A, Principal Petitioners [3 USCIS-PM C.5(A)] and Section B, Qualifying Family Members [3 USCIS-PM C.5(B)].

[^ 24] Appeals are not available to applicants who have been denied employment authorization under 8 CFR 274a.13(c). Therefore, even if the BFD EAD issuance was considered a final agency action, the lack of an appeals process for BFD EADs aligns with regulatory practice pertaining to employment authorization generally.

[^ 25] See INA 101(a)(15)(U)(ii).

[^ 26] See 8 CFR 274a.14(b).

[^ 27] See ICE’s Revision of Stay of Removal Request Reviews for U Visa Petitioners webpage.

[^ 28] See Chapter 6, Waiting List [3 USCIS-PM C.6].

[^ 29] See 8 CFR 103.7(b)(1)(i)(VV).

[^ 30] See 8 CFR 274a.13(d). See Instructions for Form I-765.

[^ 31] See INA 245(l)(7).

[^ 32] See 8 CFR 274a.14(b).

Resources

8 CFR 274a.12 - Classes of aliens authorized to accept employment

8 U.S.C. 1367 - Penalties for disclosure of information

INA 101(a)(15)(U) - Definition of U nonimmigrant classification

INA 212(a) - Excludable aliens; classes of aliens ineligible for visas or admission

INA 212(a)(4)(E)(ii) - Exemption from public charge ground of inadmissibility

INA 212(d)(14), 8 CFR 212.17 - Waiver of grounds of inadmissibility for U nonimmigrants

INA 212(d)(3) - Nonimmigrant waiver of inadmissibility

INA 214(p), 8 CFR 214.14 - Admission of nonimmigrants; requirements applicable to section 1101(a)(15)(U) visas

INA 237(d) - Administrative stay of final order of removal

INA 248(b) - Change of nonimmigrant classification

AR-11, Change of Address

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-192, Application for Advance Permission to Enter as a Nonimmigrant

I-765, Application for Employment Authorization

I-912, Request for Fee Waiver

I-918 Supplement A, Petition for Qualifying Family Member of U-1 Recipient

I-918 Supplement B, U Nonimmigrant Status Certification

I-918, Petition for U Nonimmigrant Status

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

A. Background

A noncitizen granted U-1 nonimmigrant status as a principal petitioner is employment authorized incident to status. USCIS automatically issues an Employment Authorization Document (EAD) to principal petitioners upon the approval of the U nonimmigrant status petition.^[1]

The statute only allows 10,000 U nonimmigrant visas to be issued every fiscal year.^[2] If the number of approvable petitions exceeds 10,000, USCIS places the approvable petitions on a waiting list. Once they are on the waiting list, USCIS grants deferred action or, in limited circumstances, parole to U-1 principal petitioners and qualifying family members and, as a matter of discretion, may authorize employment for such petitioners and qualifying family members.^[3] USCIS generally provides such employment authorization under 8 CFR 274a.12(c)(14). Under the existing regulatory structure, noncitizens with pending petitions are currently unable to apply for employment authorization before waiting list placement.

The William Wilberforce Trafficking Victims Reauthorization Act of 2008 (TVPRA 2008), signed into law on December 23, 2008, amended Section 214(p)(6) of the Immigration and Nationality Act (INA) to provide DHS with discretion to grant employment authorization to a noncitizen who has a pending, bona fide petition for U nonimmigrant status.^[4] Though permitted by statute, DHS had not previously implemented a process for providing such employment authorization, separate from the existing regulatory waiting list, before June 14, 2021.

The permissive language of INA 214(p)(6) does not require the agency to create a separate employment authorization process. However, because of drastic increases in the volume of U nonimmigrant petitions and a growing backlog, USCIS decided to exercise its discretion to conduct bona fide determinations (BFD) and provide EADs and deferred action to noncitizens with pending, bona fide petitions who meet certain discretionary standards, beginning on June 14, 2021.

INA 103(a) grants the Secretary of Homeland Security the authority to enforce the immigration laws and provides general authority for deferred action. The U.S. Supreme Court has clarified that decisions made to either initiate or terminate enforcement proceedings are under the purview of the Executive Branch,^[5] and therefore fall within DHS’s authority. The Executive Branch has exercised its discretion to grant deferred action, and the federal courts have consistently recognized the existence of this authority, since the mid-1970s.^[6]

While USCIS has approved the statutory maximum of petitions each year since Fiscal Year 2010, the increasing number of petitions and complexity of the adjudication resulted in increased processing times. USCIS attempted to keep up with this increase by shifting resources as well as hiring and training new officers; yet, despite these attempts, the burden quickly outpaced resources given competing demands and priorities across the agency.

Consequently, the number of remaining pending petitions after the annual cap was reached grew dramatically. Though the waiting list was initially conceived to address the gap between petitions filed and available visas, USCIS’ ability to adjudicate pending petitions for placement on the waiting list has been and continues to be outmatched by the steady number of new filings.

To illustrate, in 2009, USCIS received 6,850 principal petitions; in 2020, 22,358 principal petitions were filed. From 2015-2018, over 30,000 principal petitions were filed annually.^[7] The pending backlog, and the corresponding delay in adjudication time, is due to the increase in U visa filings overall, the complexity of the adjudication, the statutory cap mandated by Congress, and the agency’s priorities and limited resources.

As of June 14, 2021, USCIS is unable to adjudicate the tens of thousands of petitions for the waiting list, as well as completing full adjudication for the 10,000 principal visas available under the statutory cap, in a single fiscal year without incurring a negative impact in other humanitarian programs and fee-based applications or petitions.

Taking into consideration the overall filings increase and the numerous adjudications USCIS is responsible for, USCIS must allocate resources among the competing adjudicative priorities and balance the number of resources that can be assigned to the U visa program.

Additionally, as of June 14, 2021, USCIS is facing substantial litigation fueled by the years-long wait times for petitioners to be placed on the waiting list and obtain U nonimmigrant status due to the number of new petitions filed each year exceeding the statutory cap. Case review has revealed that most U nonimmigrant petitioners do not have lawful immigration status and are not otherwise authorized to work, so they may be vulnerable during the lengthy adjudication period.

USCIS recognizes concerns regarding such vulnerability raised by stakeholders and believes implementing the statute’s authorization to provide EADs to those with pending, bona fide petitions better aligns the U program with its dual purpose as envisioned by Congress: stabilizing victims of crime and serving as a tool for law enforcement.^[8]

In addition, the BFD process enables USCIS to review petitions more efficiently, and provide the benefits of employment authorization and deferred action to more petitioners in a shorter time period than the waiting list process alone, which requires a full adjudicative review of eligibility for nonimmigrant status. USCIS notes that from FY 2009 through FY 2020, over 75 percent of fully adjudicated Petition for U Nonimmigrant Status (Form I-918) have been approved.^[9]

Therefore, under this policy, USCIS deems a petition “bona fide” when USCIS determines that the Form I-918 is complete and properly filed^[10] and has received the result of the petitioner’s biometrics. Because INA 214(p)(6) gives the Secretary of Homeland Security, and USCIS as the Secretary's designee, discretion to issue employment authorization to pending, bona fide principal petitioners and qualifying family members, USCIS also considers whether the principal petitioners or qualifying family members appear to pose a risk to national security^[11] or public safety, and otherwise merit a favorable exercise of discretion.

The EAD and deferred action that USCIS issues for these cases is valid for 4 years, subject to termination if USCIS determines a national security or public safety concern has arisen, or a determination that the BFD EAD is no longer warranted, or that the prior BFD EAD and deferred action was issued in error.

USCIS issues BFD EADs under 8 CFR 274a.12(c)(14) because recipients of BFD EADs also receive deferred action. Furthermore, there is currently no other EAD category specifically designated for principal petitioners and qualifying family members with pending, bona fide petitions. INA 214(p)(6) provides the statutory foundation for the implementation of the BFD process, and explicitly speaks to the granting of employment authorization. As such, petitioners granted BFD EADs receive employment authorization documents under 8 CFR 274a.12(c)(14).

B. Administrative Procedure Act Considerations

The Administrative Procedure Act (APA) excepts interpretive rules; general statements of policy; and rules of agency organization, procedure, or practice from notice and comment requirements.^[12]

On June 14, 2021, USCIS updated the Policy Manual to notify the public of its interpretation of “bona fide application” at INA 214(p)(6), its exercise of discretion under that provision, and explain its policy for issuing such EADs and granting deferred action. USCIS’ interpretation is reasonable because “bona fide” generally means “made in good faith; without fraud or deceit.”^[13]

In this context, USCIS interprets the bona fide standard^[14] as being met once the entire petition (including the required certification on Form I-918, Supplement B) is properly filed and biometrics are submitted and received. The completion of the Supplement B by a law enforcement official or judge provides an appropriate assurance of the bona fide nature of the petition in this context.

Likewise, because INA 214(p)(6) gives USCIS discretionary authority to issue such employment authorization, it is reasonable, in the exercise of such discretion, to assess security checks to determine whether petitioners may pose a threat to national security or public safety before according benefits under this section.

The Policy Manual guidance explains and provides clarification to officers but does not add to the substantive regulations, create legally binding rights or obligations, or change the substantive standards by which USCIS evaluates applications for immigration benefit requests.

1. Unfair Surprise and Reliance Interests

An agency changing its interpretation of a regulation should consider, among other factors, whether the interpretative change creates unfair surprise.^[15] USCIS is issuing this guidance to clarify what the law and regulations permit or require. USCIS is not restricting the program for pending petitioners; rather, USCIS is using its statutory authority to provide an additional pathway to employment authorization and deferred action. Pending petitioners will not be treated in a disparate or unfair manner, as the evaluation for an EAD is based on the initial evidence petitioners must submit when filing a Petition for U Nonimmigrant Status (Form I-918).

This process does not create an undue burden on pending or future petitioners, as it does not change any evidentiary requirement. Rather, it utilizes the filing system already in place to issue benefits to Form I-918 petitioners and mitigate any vulnerabilities they may face due to the lengthy adjudicatory wait times.

Additionally, those who are not granted BFD EADs and deferred action under the first phase of review proceed to the full waiting list adjudication, thereby receiving the same adjudicative review they would have had before this policy implementation. Consequently, the new policy only has an adverse impact on overseas derivatives where the principal petitioner resides in the U.S.

USCIS notes that overseas principal petitioners and qualifying family members would not benefit from this EAD and deferred action process because they are not physically located in the United States. Neither deferred action nor employment authorization are accorded to noncitizens outside the United States.

USCIS considered the potential impact to such petitioners and determined that offering employment authorization and deferred action to the majority of petitioners (as a majority of Form I-918 petitioners are physically located in the United States), coupled with the statutory authority to provide employment to pending, bona fide petitioners, provides numerous benefits.

Additionally, USCIS does not anticipate that overseas principal petitioners and qualifying family members would be harmed by this process, since the agency continues to conduct full waiting list adjudications for overseas principal petitioners and qualifying family members, as the agency has previously done. Consequently, this policy has no adverse impact upon overseas principal petitioners and qualifying family members.

USCIS notes that there will be adverse impacts to overseas qualifying family members where the principal petitioner is in the United States; if the principal petitioner receives the BFD EAD and deferred action, there is not a sufficient basis to conduct a waiting list adjudication for the qualifying family member.

However, USCIS believes the overall benefits of this policy change outweigh the adverse impacts. The BFD process only provides a basic review of the principal petition for U nonimmigrant status, and does not require the petitioner to establish eligibility for U nonimmigrant status but for visa availability in a given fiscal year under the statutory cap.

USCIS cannot provide different levels of adjudication to a principal petitioner and the petitioner's qualifying family members. Advancing qualifying family members to an adjudicative phase beyond that of the principal petitioner would conflict with the INA’s requirement that the qualifying family members be “accompanying or following to join” the principal petitioner, and in addition would be confusing and difficult to administer.^[16]

USCIS also considered providing petitioners in the United States who have overseas beneficiaries the option of forgoing the BFD process for a waiting list adjudication; however, this would create multiple adjudicatory tracks and result in operational inefficiencies that this policy change was meant to eliminate.

USCIS recognizes that 8 CFR 214.14(d)(2) states, “After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed.” Historically, USCIS has interpreted and applied this provision to mean that it will grant visas to those on the waiting list, based on the date the petition was filed, before granting visas to those not on the waiting list. Yet the regulation also clearly states “the oldest petitions receiving the highest priority” for such cap numbers.

Under this policy, as part of the first phase of review, USCIS issues EADs and deferred action to noncitizens in the United States with a bona fide petition, instead of placing them in the queue for a waiting list adjudication. Those who do not receive an EAD under the first phase proceed to the full waiting list adjudication.

That is, if their petitions are approvable, they are placed on the waiting list to receive an EAD and deferred action. As these two tracks receive the same benefits (EAD and deferred action), the most equitable path is to continue to issue visas based on the date a petition is filed, regardless of whether a petitioner is placed on the waiting list or not. USCIS believes this approach best implements the regulatory provision and statute, and provides the greatest benefit to all petitioners, without adversely impacting any petitioner.

USCIS considered the alternative of continuing to adjudicate petitions on the waiting list first, before those with BFD EADs, but believes that would be inequitable and in conflict with the regulatory language directing that the oldest petitions receive the highest priority. Most of those with BFD EADs will never be placed on the waiting list.

To make them wait behind all petitioners on the current waiting list regardless of filing date, and to prioritize those placed on the waiting list in the future, would effectively penalize those who were able to receive BFD EADs because they had properly filed a complete Form I-918 that did not raise any public safety or national security risks. Accordingly, USCIS will adjudicate petitions for U nonimmigrant status in date-filed order, drawing from both BFD EAD recipients and petitioners on the waiting list.

2. Criminal History Check for Bona Fide Determination Employment Authorization Documents

Before June 14, 2021, USCIS officers considered criminal history background checks when adjudicating a Form I-918 petition: first, for waiting list placement and second, for the final adjudication when a visa has become available.

USCIS continues to evaluate whether a principal petitioner or a qualifying family member may maintain a BFD EAD and grant of deferred action throughout the 4-year validity period until final adjudication for U nonimmigrant status; however, as of June 14, 2021, USCIS will review and update background and security checks at regular intervals during the validity period of a principal petitioner or qualifying family member’s BFD EAD and deferred action. USCIS also retains discretion to update background and security checks at any time when case-specific circumstances warrant.

By reviewing updated background and security checks at regular intervals during the validity period, USCIS will ensure the petitioner continues to pose no risk to public safety and national security. USCIS does not believe this review would adversely impact any petitioner’s reliance interests or raise retroactivity concerns, as the checks are already run regularly.

Additionally, implementing these checks allows USCIS to maintain a balance between providing employment authorization to eligible immigrant victims of crime and ensuring the security of the United States. Finally, any public safety and national security issues raised anew after a BFD EAD and deferred action have been granted will be fully evaluated during the waiting list adjudication, under the same adjudicative review as would have occurred before this policy implementation.

C. Implementation

USCIS began implementing this policy on June 14, 2021. This policy applies to all Form I-918 petitions pending on June 14, 2021, as well as Form I-918 petitions filed on or after that date. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.

Footnotes

[^ 1] See 8 CFR 214.14(c)(7). See Petition for U Nonimmigrant Status (Form I-918).

[^ 2] See INA 214(p)(2).

[^ 3] See 8 CFR 214.14(d)(2).

[^ 4] See Section 201(c) of Pub. L. 110-457 (PDF), 122 Stat. 5044, 5053 (December 23, 2008) (amending INA 214(p)(6)).

[^ 5] See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (holding that “an agency’s decision not to prosecute or enforce. . . is a decision generally committed to an agency’s absolute discretion” and noting that enforcement decisions involve a “complicated balancing of a number of factors which are peculiarly within [the agency’s expertise, including] whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing.”).

[^ 6] See, for example, Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976); Vergel v. INS, 536 F.2d 755, 757-58 (8th Cir. 1976); and Nicholas v. INS, 590 F.2d 802, 806-08 (9th Cir. 1979), superseded by rule on other grounds, as stated in Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985).

[^ 7] See Number of Form I-918, Petition for U Nonimmigrant Status Statistics by Fiscal Year, Quarter, and Case Status (Fiscal Years 2009-2020) (PDF, 112.43 KB).

[^ 8] See Section 1502 and 1513(a)(2) of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1518 (October 28, 2000) (“[P]roviding battered immigrant women and children who were experiencing domestic violence at home with protection against deportation allows them to obtain protection orders against their abusers and frees them to cooperate with law enforcement and prosecutors in criminal cases brought against their abusers and the abusers of their children . . . .”).

[^ 9] See Number of Form I-918, Petition for U Nonimmigrant Status By Fiscal Year, Quarter, and Case Status (Fiscal Years 2009-2020) (PDF, 112.43 KB).

[^ 10] This includes all required initial evidence, except the Application for Advance Permission to Enter as a Nonimmigrant (Form I-192). One of the main purposes for issuing employment authorization to those with pending, bona fide petitions is to provide EADs to good faith petitioners who are vulnerable due to lengthy wait times. Requiring and adjudicating the Form I-192 for purposes of the EAD would delay the EAD adjudication and undermine the efficiency goals of this change. Instead of adjudicating the Form I-192 at this stage, USCIS relies on criminal history checks.

[^ 11] See INA 212(a)(3).

[^ 12] See 5 U.S.C. 553(b)(A).

[^ 13] See Black’s Law Dictionary (11th ed. 2019).

[^ 14] USCIS considered different potential definitions of “bona fide” and ultimately determined that this definition was best suited to this context. USCIS specifically considered the criteria for the “bona fide determination” at 8 CFR 214.11(e), regarding noncitizen victims of severe forms of trafficking, but ultimately decided not to adopt those criteria because of the differences between the U and T visa requirements, such as the law enforcement certification requirement for U nonimmigrant petitioners. See INA 214(p)(1); 8 CFR 214.14(c)(2)(i). The completion of the Supplement B by a law enforcement official or judge provides an appropriate assurance of the bona fide nature of the petition in this context. Additionally, the T regulation requires consideration of waivers of inadmissibility, for which an RFE is often required. This would significantly delay the U BFD adjudication, contrary to Congress’ likely intent in authorizing the issuance of this interim benefit. It would also undermine the procedural efficiencies this policy was intended to create in comparison with the waiting list process.

[^ 15] See Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 170-71 (2007). See Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).

[^ 16] See INA 101(a)(15)(U)(ii).

Appendix: Bona Fide Determination Process Flowchart (PDF, 95.1 KB)

Updates

U.S. Citizenship and Immigration Services (USCIS) is publishing guidance in the USCIS Policy Manual on employment authorization and deferred action for principal petitioners for U nonimmigrant status and qualifying family members with pending, bona fide petitions.

Version History

No historical versions available.