U.S. immigration law allows USCIS to allow noncitizens with pending, bona fide U nonimmigrant status petitions to lawfully work in the U.S. while awaiting the final adjudication of their petitions. USCIS implemented this bona fide determination process in June 2021. In addition, U.S. Citizenship and Immigration Services (USCIS) recently published FAQs to assist individuals and their advocates with the U nonimmigrant status bona fide determination process.
These FAQs apply to all Form I-918 petitions pending as of June 14, 2021, or filed on or after that date by principal petitioners and their qualifying family members living in the U.S. However, these FAQs do not apply to Form I-918 petitions filed by principal petitioners and qualifying family members residing outside the U.S.
Order of Cases Considered in the Bona Fide Determination Process
USCIS will begin processing the petitions with the oldest receipt dates that have not gone through a waiting list adjudication as of June 14, 2021. You do not need to take action if your petition is already pending; USCIS will automatically place these petitions into the bona fide determination process.
Once a petition has gone through the bona fide determination process and USCIS finds it bona fide, the petitioner will receive deferred action and employment authorization. Their petition then will go on the list to await final adjudication, which also operates by the date of receipt. These petitions will not be subject to a separate waiting list adjudication unless new adverse information arises that affects the ability of the petitioners to maintain their employment authorization.
On the other hand, if a petition goes through the bona fide determination process and USCIS determines that the petition is NOT bona fide, the petition will go into the waiting list adjudication process. In this situation, the petitioner will receive neither deferred action nor employment authorization while waiting for the adjudication of their petition. However, they typically will receive a Request for Evidence (RFE) to submit additional evidence for the waiting list adjudication. Thus, even if a petitioner does not receive a bona fide determination, USCIS still could ultimately grant their petition for U nonimmigrant status.
Those petitioners who already had petitions on the waiting list before June 14, 2021, do not need to go through the bona fide determination process. This is because they are already eligible to receive employment authorization and deferred action.
Meeting the Requirements for a Bona Fide Determination
A petitioner must meet the requirements for a bona fide determination before their qualifying family members can enter the bona fide determination process. Additionally, family members do not automatically qualify for deferred action and employment authorization if the principal petitioners qualify for these benefits. Therefore, family members must meet their own bona fide determination requirements.
For a principal petitioner to meet the requirements of a bona fide determination, they must:
Qualifying family members must meet many of the same requirements to obtain a bona fide determination, except the personal statement describing their victimization. They also must file Supplement A to Form I-918 rather than Form I-918. In addition, however, they must provide credible evidence of their qualifying family relationship with the principal petitioner.
Filing Form I-765, Application for Employment Authorization
Petitioners and qualifying family members can continue to file their Forms I-765 along with their Forms I-918 and Supplements A to Forms I-918. However, if they have not done so, and it is necessary to the bona fide determination process, USCIS then will send them a notice to file their Forms I-765.
Duration of Bona Fide Determination
Initial bona fide determinations will be valid for four years. They will not expire until four years from the issuance date listed on their employment authorization documents (EADs). If a petitioner does not receive a bona fide determination but later receives waitlist placement, they, too, will receive an EAD that is valid for four years from the date of its issuance.
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