Q1. What is the bona fide determination process?
A1. By statute, USCIS has discretion to provide employment authorization to noncitizens with pending, bona fide U nonimmigrant status petitions. In June 2021, USCIS implemented the bona fide determination process. The bona fide determination process was created with the goal of conducting initial reviews of U nonimmigrant status petitions more efficiently and providing eligible victims of qualifying crimes with employment authorization and deferred action while they await a final adjudication of their petition for U nonimmigrant status under the annual statutory cap. This will provide victims with stability and better equip them to cooperate with and assist law enforcement.
Q2. Who does the bona fide determination process apply to?
A2. This policy applies to all Form I-918 petitions pending as of June 14, 2021, filed by principal petitioners and qualifying family members living in the United States, as well as Form I-918 petitions filed on or after this date by principal petitioners and their qualifying family members living in the United States. Principal petitioners and qualifying family members living outside of the United States are not considered for a bona fide determination as USCIS cannot provide deferred action or employment authorization to petitioners outside the United States.
Q3. When did USCIS begin implementing the bona fide determination process?
A3. USCIS published the new bona fide determination process in the USCIS Policy Manual on June 14, 2021, and began adjudicating and issuing EADs shortly thereafter.
Q4. In what order will USCIS adjudicate cases for a bona fide determination?
A4. USCIS will generally adjudicate cases for bona fide determinations in receipt date order, starting with the oldest pending petitions that had not already gone through a waiting list adjudication as of June 14, 2021.
Q5. I filed a petition for U nonimmigrant status several years ago. Will my petition now go through three different adjudications: bona fide determination, waiting list, and final adjudication? What happens if I was already placed on the waiting list before this policy was issued?
A5. Principal petitioners and qualifying family members will not all go through three different adjudications. As of June 14, 2021, USCIS began adjudicating pending, non-waitlisted petitions filed by noncitizens living in the United States in receipt date order for bona fide determinations. If a principal petitioner receives a bona fide determination, and the principal petitioner merits a favorable exercise of discretion, they will be issued an Employment Authorization Document (EAD) and deferred action, and their petition will be placed in the queue in receipt date order to await final adjudication for U nonimmigrant status. These petitioners will not have to go through a waiting list adjudication unless new adverse information impacts their ability to maintain a bona fide determination EAD.
Principal petitioners who USCIS determines will not receive a bona fide determination EAD and deferred action will receive a waiting list adjudication.
Principal petitioners and their qualifying family members placed on the waiting list prior to June 14, 2021, do not need to go through the bona fide determination process because they already can receive an EAD and deferred action. The petitioners placed on the waiting list before June 14, 2021, will be adjudicated for U nonimmigrant status in receipt date order concurrently with those petitioners who received bona fide determination EADs and deferred action.
Q6. How are bona fide determinations for principal petitioners different from qualifying family members?
A6. USCIS will first determine whether a principal petitioner living in the United States may receive a bona fide determination EAD and deferred action before making a bona fide determination for any associated qualifying family member living in the United States. USCIS determines whether a principal petition is bona fide if an officer finds that:
- The principal petitioner properly filed Form I-918;
- The principal petitioner included a properly completed law enforcement certification (Form I-918B U Nonimmigrant Status Certification);
- The principal petitioner included a personal statement describing the facts of the victimization; and
- USCIS has received the results of the principal petitioner’s background and security checks based on biometrics.
USCIS then considers whether the principal petitioner with a bona fide petition merits a favorable exercise of discretion to be granted a bona fide determination EAD and deferred action.
Once the principal petitioner receives employment authorization and deferred action, USCIS will evaluate the petitions of any qualifying family members living in the United States. The principal petitioner must be issued employment authorization and deferred action before the petition for any qualifying family member may receive a bona fide determination.
Additionally, a qualifying family member living in the United States is not guaranteed a bona fide determination EAD solely because the principal petitioner receives a bona fide determination EAD. The record must independently demonstrate theForm I-918, Supplement A,is bona fide. USCIS determines a qualifying family member’s petition is bona fide when:
- The principal petitioner receives a bona fide determination 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;and
- USCIS has received the results of the qualifying family member’s background and security checks based upon biometrics.
As with principal petitioners, USCIS then considers whether the qualifying family member living in the United States merits a favorable exercise of discretion to be granted a bona fide determination EAD and deferred action.
For more information on the bona fide determination process for principal petitioners, please see the USCIS Policy Manual Appendix: Bona Fide Determination Process Flowchart (PDF, 95.1 KB). For more information on the bona fide determination process for qualifying family members, please see Chapter 5: Bona Fide Determination, A. Bona Fide Determination, 2. Qualifying Family Members.
Q7. What do I need to file in order to receive a bona fide determination EAD?
A7. USCIS will initiate bona fide determination adjudications of pending petitions not already placed on the waiting list without any action required by principal petitioners, qualifying family members, or counsel. USCIS is reviewing pending petitions in receipt date order filed by petitioners living in the United States. Petitioners will not need to submit any additional request for USCIS to initiate a bona fide determination adjudication of pending petitions not already placed on the waiting list. The petitioner will receive a notice from USCIS if any documentation is needed to complete the bona fide determination adjudication, such as a Form I-765, Application for Employment Authorization.
Q8. I did not previously file a Form I-765, Application for Employment Authorization, with my U visa petition. What should I do?
A8. If a petitioner has filed a Form I-918 or Form I-918 Supplement A, but has not filed an accompanying Application for Employment Authorization (Form I-765), USCIS will issue a notice indicating that the petitioner has received a bona fide determination, merits a favorable exercise of discretion, and may receive a bona fide determination EAD. To obtain an EAD after receiving this notice, the petitioner must file aForm I-765under 8 CFR 274a.12(c)(14).
For petitioners who have already filed an Application for Employment Authorization (Form I-765) under8 CFR 274a.12(a)(19), (a)(20) and (c)(14) and who USCIS determines will receive a bona fide determination EAD and deferred action, the petitioner will not need to submit another Form I-765.
For additional information, please see Chapter 5: Bona Fide Determination, C. Adjudicative Process, 2. Previously Filed Form I-765 for Bona Fide Determination Process.
Q9: Can petitioners still file both the I-918 and I-765 together, or should we wait until USCIS issues a bona fide determination notice?
A9. Principal petitioners and their qualifying family members can continue to file a Form I-765 with their initial filing under (a)(19) (a)(20), or (c)(14) for employment authorization associated with principal status, derivative status, bona fide determination EAD, or placement on the waiting list, respectively.
USCIS will initiate bona fide determination adjudications without any action required by petitioners, qualifying family members, or counsel. The petitioner will receive a notice from USCIS if any documentation is needed to complete the bona fide determination adjudication, such as a Form I-765, Application for Employment Authorization.
Q10: I am a new petitioner. Do I need to submit a fee or a fee waiver with my application for employment authorization for the waiting list (under (c)(14))? Do I need to submit a fee or a fee waiver for the bona fide determination EAD?
A10. Generally, USCIS does not charge a fee for the filing of certain victim-based and humanitarian benefit requests, includingForm I-918, and the initial Form I-765 associated with this form.
If Form I-765 was not filed concurrently with the Form I-918 and USCIS determines the petitioner (principal petitioner or qualifying family member) may receive a bona fide determination EAD, USCIS will issue a notice indicating that the petitioner has received a bona fide determination, merits a favorable exercise of discretion, and may receive a bona fide determination EAD if they file a Form I-765. Petitioners do not need to submit a filing fee for the initialForm I-765associated with the bona fide determination EAD.
While USCIS does not charge a filing fee for the initial Form I-765 requesting a bona fide determination EAD, if a petitioner chooses to renew their bona fide determination EAD, they will need to submit the appropriate fee or fee waiver request.
Petitioners filing an application for employment authorization associated with waiting list placement should continue to submit the appropriate fee or fee waiver request.
Q11. Do I need to submit proof of economic necessity or file an I-765 worksheet?
A11. No, principal petitioners and their qualifying family members do not need to submit proof of economic necessity or file an I-765 worksheet to receive a bona fide determination EAD. USCIS will initiate bona fide determination adjudications of pending petitions not already placed on the waiting list without any action required by principal petitioners, qualifying family members, or counsel. Petitioners with pending petitions not already placed on the waiting list will not need to submit an additional request for bona fide determination adjudication; if any documentation is needed to complete the bona fide determination adjudication, such as a Form I-765, Application for Employment Authorization, the petitioner will receive a notice from USCIS.
Q12. I received a bona fide determination notice from the Vermont Service Center, but I live in California, and the website says I should send my Form I-765 to Nebraska. What should I do?
A12. Please follow the directions included in the bona fide determination notice. If you received a bona fide determination notice from the Vermont Service Center, send your Form I-765 to the Vermont Service Center.
Q13. Will USCIS refund my filing fee if my Form I-765 under (a)(20) or (c)(14) filing is converted for a bona fide determination EAD?
A13. USCIS cannot refund the filing fees for previously submitted Form I-765 filed for (a)(20) and (c)(14). Derivative petitioners must include the appropriate fee or request for a fee waiver when filing Form I-765.
Q14. Will I have an opportunity to submit additional information so I can receive a bona fide determination EAD?
A14:When USCIS determines a principal petitioner will not be granted a bona fide determination EAD and deferred action, USCIS will issue a Request for Evidence (RFE) providing notice that a bona fide determination EAD will not be granted, and requesting the additional evidence needed for the waiting list adjudication.Consequently, a principal petitioner who does not receive a bona fide determination EAD and deferred action still is able to obtain employment authorization, a grant of deferred action if they are found eligible for U nonimmigrant status but for the annual statutory cap, and be placed on the waiting list.If USCIS determines that the principal petitioner can be placed on the waiting list, that decision generally does not affect the timeline in which the petition is adjudicated for final determination of U nonimmigrant status. Adetermination that a petitioner (principal petitioner or qualifying family member) will not receive a bona fide determination EAD and deferred action is not a denial of Form I-918 or theinitial Form I-765.
Q15. My family member was living outside of the country when I filed my I-918 petition. Does that mean my family member won’t receive a bona fide determination? Do I need to request the bona fide determination and submit an I-765 now that they are in the United States?
A15. The bona fide determination process is for principal petitioners and their qualifying family members living in the United States. USCIS will generally adjudicate cases for bona fide determinations in receipt date order, starting with the oldest pending petitions that did not already go through a waiting list adjudication as of June 14,2021.
USCIS will initiate bona fide determination adjudications for pending petitions not already placed on the waiting list without any action required by principal petitioners, qualifying family members, or counsel. USCIS first determines whether the principal petitioner may receive a bona fide determination EAD and grant of deferred action. Once the principal petitioner receives a bona fide determination EAD, USCIS then determines if the qualifying family member living in the United States may receive a bona fide determination EAD and grant of deferred action. If any documentation is needed to complete the bona fide determination adjudication, such as a Form I-765, Application for Employment Authorization, the petitioner will receive a notice from USCIS.
As long as the qualifying family member has their current address updated to show they are residing in the U.S., USCIS will review their petition for a bona fide determination EAD and no further action will be necessary. Family members previously residing outside the U.S. who are now physically present may update their address at any time.
If the principal petitioner does not live in the United States at the time their petition is to be reviewed in receipt date order, USCIS will perform a waiting list adjudication.
Q16. How long will it take to receive my bona fide determination EAD?
A16. USCIS is committed to adjudicating petitions in a timely and efficient manner. While the goal of the bona fide determination process is to provide initial reviews of pending U petitions more efficiently, USCIS does not yet have sufficient data to provide an estimated processing time at this stage.
Q17. How does the bona fide determination process affect certifying officials?
A17. The bona fide determination process does not change the role of certifying officials who complete the law enforcement certification. USCIS evaluates whether the Form I-918, Supplement B, meets initial evidence requirements during the bona fide determination process. USCIS then considers whether the Form I-918, Supplement B, as well as the other evidence in the record, establishes eligibility during the final adjudication of Form I-918 when visas are available under the statutory cap. A complete and properly filed Form I-918, Supplement B, is a requirement for both the bona fide determination EAD and the final adjudication of Form I-918, so USCIS encourages certifying officials to answer all questions on the form as fully as possible.
Q18. Can the bona fide determination EAD and grant of deferred action be renewed?
A18. Generally, yes. If USCIS does not adjudicate a principal petitioner or qualifying family member’s petition for U nonimmigrant status before the 4-year validity period of the EAD and deferred action ends, the noncitizen may apply for renewal according to Form I-765 Instructions. If granted, the noncitizen would receive a bona fide determination EAD and grant of deferred action for another 4-year validity period. At any point during the validity period, USCIS has the right to revoke the bona fide determination EAD and terminate the grant of deferred action if USCIS determines that the bona fide determination EAD and deferred action are no longer warranted, or the prior bona fide determination EAD was issued in error. For example, USCIS may revoke the EAD and terminate the grant of deferred action if the Form I-918 Supplement B law enforcement certification is withdrawn, or a national security or public safety concern is present.
For more information, please see Chapter 5: Bona Fide Determination, A. Bona Fide Determination, 6. Request to Renew Bona Fide Determination Employment Authorization Document and Deferred Action.
Q19. How long will my bona fide determination EAD and grant of deferred action be valid for?
A19. An initial bona fide determination EAD and grant of deferred action will be valid for 4 years. The grant of deferred action will begin on the issuance date listed on your EAD. The bona fide determination process provides an EAD and grant of deferred action to petitioners who meet the criteria; neither is available independent of each other.
Petitioners who do not receive a bona fide determination EAD and grant of deferred action, but who eventually receive waitlist placement, if eligible, will also receive an EAD and grant of deferred action for 4 years to promote consistency and fairness in the U program.
Q20. How does the bona fide determination process impact petitioners who are in removal proceedings?
A20. The bona fide determination process satisfies the prima facie standard that U.S. Immigration and Customs Enforcement (ICE) previously requested in specific circ*mstances. The steps taken to determine whether a petition is bona fide and whether a petitioner receives a bona fide determination EAD rely on the initial evidence submitted with a petition for U nonimmigrant status, as well as the results of background checks. USCIS will continue to coordinate with ICE on individual cases as requested by ICE. See Chapter 5: Bona Fide Determination, C. Adjudicative Process, 4. Prima Facie Approval.
Q21. I have seen information posted by USCIS on the Policy Manual webpage. Are there other materials that USCIS or DHS has released to the public about the bona fide determination process?
A21. Below is a list of the public-facing materials released by USCIS:
- PM-V3-Part C: Bona Fide Determination Process
- PM-V3-Part C Appendix: Bona Fide Determination Process Flowchart (PDF, 95.1 KB) (PDF, 95.1 KB)
- Victims of Criminal Activity: U Nonimmigrant Status
- USCIS Issues Policy Providing Further Protections for Victims of Crime News Release
- Twitter/Twitter-Spanish
- Facebook /Facebook-Spanish
- Eng./Sp. Stakeholder Message
Q22. Where else can I find more information about the bona fide determination process?
A22. The bona fide determination process was introduced on June 14, 2021, in the USCIS Policy Manual. Information on the process can be found in Volume 3, Part C, Chapter 5. A flowchart (PDF, 95.1 KB)of the process for principal petitioners can be found in the “appendices” tab in the USCIS Policy Manual. Additionally, information on the bona fide determination process can be found on the special instructions section of the Form I-765 webpage and the special instructions of the Form I-918 webpage.
Q23. How can I stay up to date on USCIS policies?
A23. You can sign up to receive notifications of new alerts from USCIS by entering your email here.
