USCIS Creates New Illegal Alien Work Permit Program

Simply applying for a U visa for crime victims will now get you a work permit

By Robert Law on June 15, 2021

The Biden administration has announced a new policy for U visa applicants that could potentially allow every illegal alien in the country to obtain a work permit. Rather than enhancing policies for aliens who are legitimate victims of crime (which is what the U visa is supposed to be for), U.S. Citizenship and Immigration Services (USCIS) will now give out four-year renewable work permits to any illegal alien who merely applies for a U visa.

The U visa was created in 2000 as part of the Victims of Trafficking and Violence Protection Act to encourage alien victims of domestic violence, sexual assault, gangs, and human trafficking to assist law enforcement in prosecuting offenders. Congress set the annual cap at 10,000 visas, but unlike other visa categories, derivatives do not count against the cap.

As Jessica Vaughan has detailed, “There are legitimate concerns that the program is vulnerable to fraud, improperly promoted by advocates, and exploited as an avenue to obtain legal status.” Using USCIS data, she points out that U visa petitions quintupled between 2009 (11,000) and 2018 (59,000). USCIS has approved more than 170,000 petitions since 2009 with only 56 percent of them for principals, i.e., the actual alien victim. Given limited adjudicator resources and the surge of petitions filed over recent years, there are hundreds of thousands of petitions that are pending, meaning that USCIS has not yet adjudicated the claim.

Historically, once the annual cap was hit, aliens with approvable U visa petitions were placed on a waitlist for a work permit. However, those in the pending queue were not eligible for a work permit and could be removed, notwithstanding the pending U visa petition.

Utilizing a loophole in the law, the new policy will create a lower screening threshold that will give all illegal aliens with a pending U visa petition the ability to work lawfully for years before USCIS substantively reviews the petition for statutory eligibility. Under section 214(p)(6), the DHS secretary “may grant work authorization to any alien who has a pending, bona fide application” for U nonimmigrant status. Despite this provision of law, USCIS did not have a “bona fide” determination process, until now.

Through a June 14 policy alert, USCIS announced it is establishing a bona fide determination process that will apply to all pending U visa petitions, as well as to all that are submitted on or after June 14, 2021. As explained by the agency, “USCIS conducts an initial review of Form I-918 and will issue BFD EADs and deferred action for 4 years to petitioners for U nonimmigrant status and qualifying family members if USCIS deems their petition ‘bona fide’, instead of completing a full waiting list adjudication.”

Translation: USCIS will take a quick, cursory review of the petition and consider it “bona fide” unless the alien poses a risk to national security or public safety. The illegal alien will then receive deferred action and a work permit for four years, renewable, and will not be vetted again by USCIS until there is a potential U visa cap number available.

As I previously discussed in a post entitled, "USCIS Announces It Will Violate the Law", the Biden administration has already unilaterally ignored the form instructions for the U visa (Form I-918) and allows illegal aliens to submit incomplete petitions. Combined with the lucrative work permit now available under the “bona fide determination” process, there will be a race to the bottom to see how little information an illegal alien can put on the I-918 and still get deferred action and a work permit. Or, as I framed it for the Washington Times, “Once word gets out, every illegal alien in the country will file a U petition, which is free, to get a free work permit.”