FAQ: U Visa Bona Fide Determination Process

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Questions About the Bona Fide Determination Process for Form I-918 U Nonimmigrant Petitions from USCIS 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, we implemented the bona fide determination process 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 wait for 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 and all Form I-918A 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. We do not consider principal petitioners and qualifying family members living outside of the United States for a bona fide determination because we 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. We published the new bona fide determination process in the USCIS Policy Manual on June 14, 2021, and began adjudicating and issuing Employment Authorization Documents (EADs) shortly thereafter. Q4. In what order will USCIS adjudicate cases for a bona fide determination? A4. We will generally adjudicate cases for bona fide determinations in receipt date order, starting with the oldest pending petitions that have 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 3 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 3 different adjudications. As of June 14, 2021, we 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 has a bona fide petition, merits a favorable exercise of discretion, and has filed their Form I-765, we will issue the principal petitioner a bona fide determination EAD and deferred action. We will place their petition in the queue in receipt date order to wait for 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 we determine will not receive a bona fide determination EAD and deferred action will receive waiting list adjudication. If a principal petitioner receives waiting list adjudication, qualifying family members will also receive waiting list adjudication. Principal petitioners and their qualifying family members placed on the waiting list before June 14, 2021, do not need to go through the bona fide determination process because they already can receive an EAD and deferred action. Petitioners placed on the waiting list before June 14, 2021, will be adjudicated for U nonimmigrant status in receipt date order at the same time as 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. A qualifying family member will not have access to a bona fide determination review unless and until the principal petitioner receives a bona fide determination. We will first determine whether a principal petitioner living in the United States may receive a bona fide determination before we make a bona fide determination for any associated qualifying family member living in the United States. A principal petition is bona fide if: We then assess the principal petitioner’s eligibility for a bona fide determination by considering whether they merit a positive exercise of discretion, including consideration of national security or public safety risks. After the principal petitioner receives a bona fide determination , we will evaluate the petitions of any qualifying family members living in the United States to assess whether they are eligible to receive a bona fide determination. If the principal petitioner receives a bona fide determination, this does not guarantee a qualifying family member living in the United States will receive a bona fide determination . The record must independently demonstrate the qualifying family member’s Form I-918, Supplement A, Petition for Qualifying Family Member of U-1 Recipient, is bona fide. A qualifying family member’s petition is bona fide if: As with principal petitioners, we then consider whether the qualifying family member living in the United States merits a favorable exercise of discretion to receive a bona fide determination. 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 to receive a bona fide determination EAD? A7. We will initiate bona fide determination adjudication of pending petitions not already placed on the waiting list. Principal petitioners, qualifying family members, and counsel do not need to take any action. We are reviewing pending petitions filed by petitioners living in the United States in receipt date order. Petitioners will not need to submit an additional request. We will send petitioners a notice to file a Form I-765, Application for Employment Authorization, if they have not done so already. Q8. I did not previously file Form I-765, Application for Employment Authorization, with my U visa petition. What should I do? A8. We encourage petitioners to submit a Form I-765, Application for Employment Authorization, concurrently with their Form I-918 or … Read more

HOW TO: Naturalization/Citizenship

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U.S. Citizenship

Do I need a lawyer to apply for U.S. citizenship? No. You can file USCIS forms yourself, including Form N-400, Application for Naturalization, which can be submitted online. However, some people choose to seek assistance from a lawyer or Executive Office for Immigration Review (EOIR)-accredited representative.  If you decide to get legal assistance, you can start here: Many people offer to help with immigration services. Unfortunately, not all of them are authorized or qualified to do so. If you are seeking legal help to complete your Application for Naturalization, please be aware that only attorneys and EOIR-accredited representatives can provide legal advice about which forms and documents to attach to your application, explain immigration options you may have, and communicate with USCIS about your case. For additional information, please review USCIS’ guidance on the unauthorized practice of immigration law. If you decide to submit Form N-400, Application for Naturalization, without legal assistance, obtain information about the naturalization application process and study materials to help you prepare for the naturalization test at the Citizenship Resource Center. Also visit, the N-400, Application for Naturalization page and read the instructions. Will I be asked all of the civics questions during the naturalization interview? For the 2008 version of the civics test, there are 100 available civics questions on the naturalization test (PDF, 368.79 KB), but you will not be asked to answer all of them during your naturalization interview. You will be asked up to 10 questions from the list of 100 questions. You must answer 6 questions correctly to to pass the 2008 version of the civics test. For the 2020 version of the civics test, there are 128 available civics questions on the naturalization test, but you will not be asked to answer all of them during your naturalization interview. You must answer at least 12 of the 20 questions correctly to pass the 2020 version of the civics test.  Do I need to bring original documents such as birth and marriage certificates to the naturalization interview? Yes. You should bring certain original documents to your interview. In the instructions to Form N-400, Application for Naturalization, USCIS provides an extensive list of examples of original documents that you should bring to the interview, depending on different case scenarios. Examples of these documents include: original birth, marriage, divorce, final adoption and naturalization certificates; court orders/decrees; evidence of child support payments; court-certified arrest reports; and probation/parole records. Certain certified copies of documents can also be provided.  You should also submit copies–preferably certified copies–of these documents at the initial filing of your application. These documents should be submitted as evidence in support of your application, and will facilitate the USCIS officers’ review of your request. When should I submit Form N-648, Medical Certification for Disability Exceptions? Applicants for naturalization seeking an exception to the English and/or civics requirements for naturalization because of a physical or developmental disability or mental impairment are encouraged to submit this form at the time they file Form N-400, Application for Naturalization, with USCIS. However, USCIS recognizes that certain circumstances may prevent concurrent filing of the naturalization application and the disability exception form. Accordingly, an applicant may file the disability exception form during any part of the naturalization process, including after the application is filed but before the first examination, during the first examination, during the re-examination if the applicant’s first examination was rescheduled, and during the rehearing on a denied naturalization application. How will I know what the decision is on the Form N-648, Medical Certification for Disability Exceptions, I submitted? The decision on your Form N-648 will be made at the time of your naturalization interview. If your Form N-648 is found to be sufficient, and the licensed medical professional who completed your Form N-648 indicated on the form that you were unable to comply with all of the educational requirements, the officer will conduct the eligibility interview in your language of choice with the use of an interpreter and will not test you on any of the educational requirements. If your Form N-648 is found to be sufficient, and the licensed medical professional indicated on the form that you were unable to comply with only some of the educational requirements, the officer will administer the tests for the other requirements.  You will be permitted to use an interpreter if the medical professional indicated that you were unable to comply with the English speaking requirement. If your Form N-648 is found to be insufficient, the officer must proceed with the eligibility interview in English and administer all portions of the English and civics testing as if you had not submitted Form N-648. What should I do if I have already applied for naturalization and my Permanent Resident Card (Green Card) is expiring? While one’s lawful permanent resident status does not expire, barring naturalization or termination of status, a lawful permanent resident must have valid, unexpired proof of lawful permanent residence in their possession at all times. Applying for naturalization does not change this requirement. However, effective Dec. 12, 2022, a naturalization applicant who properly submits Form N-400 will receive a Form N-400 receipt notice that, when presented with their Green Card, automatically extends the validity of the Green Card for 24 months from the “Card Expires” date. This receipt notice must be presented to show that your Green Card, which is proof of your lawful permanent resident status, has been extended, such as for purposes of employment or travel authorization. If you have been issued a Form N-400 receipt notice that automatically extends the validity of your Green Card, but it has been lost or destroyed, then you generally must file Form I-90 to renew your expiring Green Card. For more information on renewing your Green Card, visit uscis.gov/green-card/after-we-grant-your-green-card/replace-your-green-card or uscis.gov/i-90. If I fail a portion of the naturalization test, when will I be retested? Unless you are eligible for an exception to the English or civics requirements, you will be given two opportunities to meet the English and civics requirements. If you fail any portion of these requirements, you will be retested during a new interview on the portion of the test that you … Read more

245(i)

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INA 245i

WHAT IS SECTION 245(I) OF THE IMMIGRATION AND NATIONALITY ACT? Section 245(i) of the Immigration and Nationality Act (INA) allows certain noncitizens physically present in the United States to adjust status to a lawful permanent resident despite being ineligible to adjust status under INA 245(a) because they entered the United States without inspection, violated their nonimmigrant status, were employed in the United States without authorization, or are otherwise barred from adjustment by INA 245(c). Those grandfathered under INA 245(i) can waive their immigration violation(s) and adjust status upon payment of a $1,000 fee, which essentially serves as a fine. WHO IS GRANDFATHERED UNDER INA 245(I)? Immigrants who are the beneficiary of a labor certification or family-based visa petition (or less common Immigrant Petition by Alien Entrepreneur (Form I-526))that was filed on or before April 30, 2001, would be grandfathered under INA 245(i). The labor certification or petition must have been approvable when filed, even if it was never approved. Approvable when filed means that it was properly filed, meritorious in fact; and Non-frivolous. INA 245(i) also grandfathered derivative beneficiaries of theses labor certifications and visa petitions. The basis of a grandfathered individual’s eventual adjustment, however, is not restricted to the application or petition filed to preserve adjustment eligibility. The grandfathered individual’s application for adjustment of status may be based on any adjustment provision available to the individual at the time of adjustment and usually won’t be based on the grandfathering petition or labor cert. For example, a qualifying Form ETA-750 filed on or before Jan. 14, 1998, preserves the individual’s eligibility to adjust status after that date. However, the filed ETA-750 does not commit that individual to adjustment on the basis of an employment based petition. If, after Jan. 14, 1998, the individual was named as beneficiary in a family based petition or won an immigrant visa in the diversity lottery, they may adjust status on the new basis. (The immigrant visa won in the diversity lottery will not grandfather an individual, but may be used as a basis of adjustment by an individual who is already grandfathered under section 245(i)). HISTORY, AMENDMENTS, AND EXTENSIONS In 1997, 245(i) was extended and revised. Qualified applicants no longer had to submit their application for adjustment of status by October 1, 1997. Rather, an immigrant visa petition or labor certification application had to be filed on the principal applicant’s behalf on or before a newly established deadline of January 14, 1998. However, as long as this occurred no earlier than October 1, 1994, the application for adjustment of status itself (for the principal applicant or eligible spouse and children) could be filed at any time; even years after the filing deadline. In 2000, 245(i) was extended and revised again for the last time. The Legal Immigration Family Equity (LIFE) Act Amendments of 2000 set a new deadline of April 30, 2001, for the filing of the required immigrant visa petition or labor certification application on behalf of the principal applicant. As long as the filing deadline was met, the application for adjustment of status could be filed at any time. The 2000 revision of 245(i) also required that, if the immigrant visa petition or labor certification application was filed after January 14, 1998, the principal applicant had to have been physically present in the United States on December 21, 2000 (the date of enactment of the LIFE Act Amendments). CURRENT ELIGIBILITY REQUIREMENTS FOR 245(I) Under current law, an undocumented immigrant can apply for LPR status under Section 245(i) if he or she meets the following conditions: To file for adjustment under INA 245(i) you must file a Supplement A to Form I-485 along with all the forms and documents required for adjustment pursuant to whatever grounds you are adjusting status under. WILL IT BE EXTENDED AGAIN? Some people anticipate this section being extended one day as a measure to help resolve the current immigration problems. Congress retains the authority to either extend the filing deadline or eliminate it. If Congress acts on this issue, it is estimated that as many as 2.3 million unauthorized immigrants living in the United States may be able to seek a green card through sponsorship by a spouse, other family member, or employer. As we get further and further away from 2001 it seems less and less likely though. Though, May 13, 2021, Senator Catherine Cortez Masto (D-Nevada) reintroduced the Fairness for Immigrant Families Act (S.1638) that, among other things, would extend the filing deadline for §245(i) from April 30, 2001, to five years following the enactment of the Fairness for Immigrant Families Act. The information below is taken directly from the USCIS Policy Manual, Volume 7, Chapter 2: Qualifying Immigrant Visa Petition or Labor Certification Application A qualifying immigrant visa petition or permanent labor certification application is defined as a petition or application that was both “properly filed” on or before April 30, 2001 and “approvable when filed.” A qualifying immigrant visa petition may include any of the following forms: A qualifying permanent labor certification application refers to an Application for Alien Labor Certification (ETA Form 750). 1. Properly Filed Qualifying Immigrant Visa Petition For purposes of INA 245(i), an immigrant visa petition is considered properly filed if: A petition received with either an illegible or missing postmark is timely filed if INS physically received the petition by May 3, 2001, and stamped it with a “Filed Prior to 245(i) Sunset” stamp. Qualifying Permanent Labor Certification Application A permanent labor certification application is properly filed if it was filed on or before April 30, 2001 and accepted for processing according to the regulations of the Secretary of the U.S. Department of Labor (DOL) that existed at the time of filing. During the INA 245(i) qualifying time period and under authority delegated by DOL, permanent labor certification applications were generally filed directly with the state workforce agency (SWA) (such as a State Employment Service Agency) in the state where the offered job was located. The SWA indicated the filing date or receipt … Read more

Biometrics (Fingerprints) Appointment

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After you file your application, petition, or request, we will schedule your biometric services appointment at a local Application Support Center (ASC) if you need to provide your fingerprints, photograph, and/or signature. We have the general authority to require and collect biometrics from any applicant, petitioner, sponsor, beneficiary, or other individual residing in the United States for any immigration and naturalization benefit. See 8 CFR 103.2 (b)(9). Your appointment notice (Form I-797C, Notice of Action) will include the date, time, and location for your ASC appointment. The biometrics you provide during your ASC appointment allow us to confirm your identity and run required background and security checks. You may obtain a copy of your own FBI identification record using the procedures outlined in 28 CFR 16.32. The procedures to change, correct, or update your FBI identification record are outlined in 28 CFR 16.34. For additional information, please visit the Identity History Summary Checks and Privacy Act Statement pages on the FBI’s website. WHAT TO BRING TO YOUR FINGERPRINT APPOINTMENT Your attorney or an accredited representative does not need to go with you to the biometrics (“fingerprints”) appointment, even if they submitted your application, petition, or request to USCIS. Your notice will provide specific instructions on what you should bring to your ASC appointment. You must also bring: We recommend that you print or save a copy of your completed application, petition, or request for your records. We also recommend that you review this copy before you come to your ASC appointment. We cannot provide you with a copy at your appointment. Rescheduling Appointments If you are unable to attend your scheduled biometric services appointment for good cause, you may request to reschedule your appointment by calling the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833). You must make your request before the date and time of the original appointment, and you must establish good cause for rescheduling. If you fail to call before your scheduled appointment or fail to establish good cause, USCIS may not reschedule your ASC appointment. If we do not reschedule your appointment, we will consider your application, petition, or request abandoned and, as a result, it may be denied. If you need to change your address, please follow the instructions provided on our website. If you have a serious ongoing medical condition and you cannot leave your home/hospital, you may request a mobile biometrics/homebound appointment by following the instructions in the Notice for People with Disabilities section of your appointment notice. If you need to reschedule your appointment because you feel sick please follow the instructions above. CONTACTING USCIS TO RESCHEDULE YOUR APPOINTMENT If you are unable to attend your appointment for any reason you MUST contact USCIS to reschedule your appointment to avoid delaying or harming your immigration case. You can do this online by using the USCIS website to make a Service Request but you should also call the toll free number (1-800-375-5283) to reschedule in addition to doing it online. For general information and to find the ASC closest to you, see the USCIS Service and Office Locator webpage. You can also call the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833). Representatives are available to help in English and Spanish. After submitting a service request online you should print or save a copy of the confirmation page showing you submitted a request and the confirmation number of your request. It is important that you write down your Service Request Number and the name and identification number of the USCIS representative that you speak to when you call. If they don’t automatically provide you with that information, which they should, then you should ask them for it. USCIS will often mark you down as failing to appear if you call to reschedule too soon before the appointment, but if you have this proof that you did reschedule then it will not be a problem and they will simply reschedule the appointment or tell you that you can go any time in the next two weeks. INFORMATION ABOUT YOUR LOCAL SERVICE CENTER You can find information about the Service Center location that you have been scheduled to appear at for your biometrics appointment by searching the USCIS Service and Office Locator. Source: USCIS Tips For Preparing for Your Biometrics Appointment