The U visa was created in 2000 through the Victims of Trafficking and Violence Protection Act (TVPA). It is meant to incentivize immigrant victims of certain certifying crimes to cooperate with law enforcement agencies in exchange for immigration enforcement protection. I have written previously about significant problems that hinder the program from operating as intended.
Despite some very real issues with the program, some problems critics have decried actually have no basis in policy or law: namely the myth that the U visa program allows otherwise ineligible immigrants access to the U.S. labor market, making it an easy target for fraud.
In June 2021, U.S. Citizenship and Immigration Services (USCIS) released a U visa bona fide determination process, allowing individuals with pending U visa applications to receive work authorization while their applications were being processed.
To qualify, USCIS must first confirm the applicant accurately filed the proper forms and completed preliminary background checks. Once the principal applicant is cleared to receive favorable discretion to get an Employment Authorization Document (EAD) – enabling them to legally work in the U.S. – their dependents have their applications reviewed to see if they are also eligible.
Although minor issues of fraud have been reported regarding U visa applications, the system was designed to mitigate these risks by requiring a local, state, or federal law enforcement agency to certify that the immigrant victim provided satisfactory assistance throughout the criminal investigation.
Only when an immigrant victim has acquired law enforcement certification can the complete U visa application be sent to USCIS for processing and evaluation. Due to the need for a law enforcement agency certification, fraud is kept to a minimum, ensuring that U visas are only available to genuine immigrant victims of a qualifying crime and their dependents.
The structure of the U visa program allows for USCIS to implement the bona fide determination process that allows adequately vetted U visa petitioners to receive work authorization as they wait for a final decision on their applications. This new rule is much needed as the current U visa backlog stands at over 170,000, and only a maximum of 10,000 visas can be distributed annually.
As the victims of violent crime, U visa petitioners are already in extremely vulnerable situations. This is only exacerbated by their lack of legal status in the U.S. By being able to receive work authorization during the (likely many) years it takes for their application to be processed, crime victims will have the opportunity to rebuild their lives and look towards a better future as they heal from the trauma that they have tragically been dealt.
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