Relief for U Visa Applicants – USCIS Finally Issuing Temporary Work Permits Following Bona Fide Determinations
Waiting for a U visa approval—and the work permit that comes with it—can seem like an eternity. The government continues to report that it is taking 60.5-61 months or just over 5 years for USCIS to issue a decision on a U visa application, with some applicants waiting much longer. After 10 years, and quite a bit of urging from Wilson Law Group and other stakeholders, USCIS finally authorized what is known as the (p)(6) work permit. This is a work permit for individuals with a pending U visa. This is not the same work permit that USCIS issued in the past when it granted an applicant deferred action after years of waiting for anything. Instead, this new inititative is provide relief to applicants soon after USCIS conducts an initial screen of a U visa application.
The key condition is that USCIS must conduct a section 214 (p)(6) bona fide determination (BFD) before issuing any employment authorization document (work permit). The obvious question is - what is a BFD?
USCIS first conducts an initial review of the application to ensure that the principal petitioner has properly filed all forms and initial evidence. Second, USCIS will determine whether the principal petitioner poses a risk to national security or public safety based upon background and security checks following biometrics. This means that nothing happens until USCIS captures all fingerprints and facial captures. USCIS then will start the process. USCIS next reviewes the biometrcis to determine if there are any negative discretionary factors against granting interim relief. For example, is the U visa really weak? Does a person have a lot of negative immigration or criminal history? USCIS will consider all discretionary factors that supports and opposes a favorable exercise of discretion. If the principal petitioner passes this 3-step test, USCIS will issue a BFD EAD and deferred action for 4 years and will then repeat the process for qualifying family members.
You may ask what happens if your U visa application is already pending. USCIS is working through its current case load. This may take up to 18 to 24 months given the number of pending cases. You can interfile your Application for Employment Authorization after USCIS claimed your fingerprints. Best part - there is no filing fee!
It’s important to keep in mind that receiving a BFD EAD or deferred action does not speed up processing time for the U visa. It also does not guarantee that USCIS will grant U visa at the final adjudicative step. It definitely is not travel permission. A lot can happen between the initial filing and a final determination, and USCIS retains the authority to update background and security checks at any time. USCIS may also revoke a person's work permit and its bona fide determination if it discovers new contact with the police or other negative information about a person.
We understand that the process of applying for U visa only to wait over 5 years for a final determination can be daunting, but the (p)(6) work permit is certainly a step in the right direction. This, however, does not mean that the fight is over. Wilson Law Group will continue to push for faster processing times and more visa numbers because victims of serious crimes deserve protection under the law and shouldn’t have to wait 5 years to get it.