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Latest updates regarding USCIS’ new ‘Bona Fide Determination’ process; Supreme Court’s Temporary Protected Status (TPS) decision

Earlier this month, United States Citizenship and Immigration Services (USCIS) implemented a policy that “will give victims of crime in the United States access to employment authorization sooner.” Additionally, the U.S. Supreme Court issued a ruling which has the potential to impact many individuals who have received Temporary Protected Status (TPS).

Important details and information about both can be found below:

USCIS’ ‘Bona Fide Determination’ process

In mid-June, USCIS announced it was implementing a process intended to provide certain crime victims earlier access to work permits, pending review and adjudication of their visa petitions.

The new policy, which will be known as a “Bona Fide Determination,” will allow USCIS to “grant deferred action to petitioners in the United States with pending U visa petitions that it determines are bona fide … and who merit a favorable exercise of discretion.”

“To be considered bona fide, the petition must include a certification from law enforcement that the petitioner was a victim of a crime and that the victim has been, is being, or is likely to be helpful in the investigation or prosecution of that crime,” a press release from USCIS read.

In order to be deemed bona fide by USCIS, the result of the principal petitioner’s biometrics must have been received. The petitioner is also required to have:

  • Properly filed Form I-918, including Form I-918B U Nonimmigrant Status Certification
  • Properly filed a personal statement describing the facts of the victimization

To be eligible for a U visa, an individual must:

  • Be “the victim of qualifying criminal activity” in the United States
  • Have suffered “substantial physical or mental abuse as a result of having been a victim of criminal activity”
  • Have information about the criminal activity
  • Have been “helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime”
  • Be admissible to the United States

A statutory cap limits approvals of new U visas for principal petitioners to 10,000 each year. Individuals considering applying for a U visa should consult with experienced immigration counsel to determine their eligibility.

Supreme Court’s Temporary Protected Status (TPS) decision

Meanwhile, in early June, the United States Supreme Court ruled in a unanimous decision that Temporary Protected Status (TPS) holders who entered the country unlawfully are not eligible to adjust status to become legal permanent residents (LPR).

Justice Elena Kagan authored the court’s decision.

“Lawful status and admission … are distinct concepts in immigration law: Establishing one does not necessarily establish the other,” Kagan wrote.

The justice added: “The TPS program gives foreign nationals nonimmigrant status, but it does not admit them. So, the conferral of TPS does not make an unlawful entrant … eligible under (U.S. immigration law) for adjustment to LPR status.”

Countries are designated for temporary protected status when conditions in the nation are determined to temporarily prevent individuals from returning safely. There are currently 12 countries designated for TPS:

  • Burma (Myanmar)
  • El Salvador
  • Haiti
  • Honduras
  • Nepal
  • Nicaragua
  • Somalia
  • Sudan
  • South Sudan
  • Syria
  • Venezuela
  • Yemen

To be eligible for temporary protected status, an individual must:

  • Be a national of a country designated for TPS
  • File during the open initial registration or re-registration period
  • Have been continuously physically present in the United States since the effective date of the most recent designation date of their country
  • Have been continuously residing in the United States since the date specified for their country

There are about 400,000 people currently living in the United States under TPS.

As always, please do not hesitate to contact Garfinkel Immigration Law Firm at 704-442-8000 or via email with any questions.

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