The 2023 fiscal year marked a significant milestone in immigration law—it was the first year that the T visa cap of 5,000 applications was reached. This highlights just how vital these visas are for victims of trafficking and other crimes seeking protection in the U.S. In response to the growing demand, the Department of Homeland Security (DHS) has introduced a new policy to expedite certain visa applications: the Modified Bona Fide Determination (BFD) process.
With this blog, we want to share what you need to know about these recent changes, and how they impact applicants moving forward.
What Is the Modified Bona Fide Determination (BFD) Process?
The BFD process is designed to allow U visa (victims of crime) and T visa (victims of trafficking) applicants to receive Deferred Action (DA) and Employment Authorization Documents (EAD) while their cases are pending. While this already existed for U visa applicants, it now applies for T visa applicants as well. This new policy aims to provide applicants with interim relief much earlier in the process, rather than making them wait until they receive the full approval for their case. For this new process, only applications filed on or after August 28, 2024, are eligible.
Previously, applicants for these visas had to wait years for their cases to be adjudicated, which left them in limbo without work authorization or protection from deportation. With the BFD process, eligible applicants may receive these benefits while their case continues through the full review.
How Does the Process Work?
The BFD process for T visa applicants follows three main steps:
- Application Review & Background Check: USCIS reviews the submitted application to ensure it’s complete. They also conduct a background check to screen for any potential security risks.
- Exercise of Favorable Discretion: After the initial review, USCIS determines whether the applicant deserves a favorable exercise of discretion. This means they look at whether the applicant’s case deserves the benefits of DA and an EAD based on the facts of their case and overall background.
- Issuance of BFD: If both steps are successfully cleared, USCIS issues a Bona Fide Determination, allowing the applicant to receive deferred action and an EAD while their application is pending.
What Factors are Considered in the BFD Process?
The BFD process includes a review of any potential negative factors that may affect the applicant’s eligibility for relief. If the applicant is not eligible for the U or T visa, they won’t be eligible for the BFD either. However, most cases have a strong basis and a high chance of success.
These factors include convictions for serious crimes like murder, sexual abuse, trafficking, child pornography, and drug-related offenses. Although this list is not complete, it highlights the types of criminal activities that could prevent an applicant from receiving a BFD or approval.
How Does This Affect Future Filings?
T visa applications filed after August 28, 2024, should now include an I-765 application for Employment Authorization. Including this in the initial filing can significantly speed up the timeline for receiving work authorization while the primary visa application is still being reviewed.
Although this program is less than two months old, some applicants have already received their T BFD notices. We are hopeful that USCIS will maintain this level of efficiency as the program moves forward.
Why Does This Matter?
The Modified BFD process represents a crucial shift in how USCIS handles U and T visa applications. With the growing demand for these visas, USCIS must evolve with it. By allowing eligible applicants to receive work authorization and protection from deportation earlier in the process, this new policy provides much-needed relief and security for individuals who have already endured significant hardships.
If you might qualify for a U or T visa, it’s important to consult with an immigration attorney. They can help ensure all applications are filed correctly under the new guidelines. This policy could be a game-changer for thousands of applicants seeking a safer and more stable future in the United States.