The Trump Administration’s onslaught of anti-immigrant rule-making, combined with increased enforcement, pushed the Immigration Court backlog to new heights–there are currently more than 1.3 million noncitizens in removal proceedings.
When Joe Biden came into office, we were hoping his Administration would move quickly to un-do the damage caused by his predecessor, and to issue new, badly-needed administrative (and hopefully legislative) changes. To be fair, there have been some changes, especially to the more high-profile Trump-era policies such as the Muslim travel ban and the Migrant Protection Protocols. Progress in other areas has been slower, but now–after more than four months of deliberation–we have a new DHS memo on prosecutorial discretion.
The purpose of the memo is to guide DHS/ICE attorneys (the prosecutors in Immigration Court) about their enforcement priorities, i.e., who should and should not be a priority for deportation. The ability of prosecutors to make these decisions is important, since there are not enough resources to deport everyone, and DHS needs to decide where to focus its efforts. The new memo sets forth how DHS attorneys should exercise their “prosecutorial discretion” or “PD.”
The memo lists “three categories of cases that are presumed to be enforcement and removal priorities” for ICE: (1) National Security-related cases, such as terrorists and spies (or suspected terrorists and spies); (2) Noncitizens apprehended at the border on or after November 1, 2020, or those who were not physically present in the U.S. before November 1, 2020; and (3) Noncitizens who have been convicted of an aggravated felony or who have been involved in gang activity, and who are a danger to public safety.
For cases that are not enforcement priorities, ICE can terminate removal proceedings (so that the person is not deported), release a noncitizen from custody, grant deferred action (which allows an otherwise deportable person to remain in the U.S., perhaps with a work permit), or otherwise decline to prosecute a removal case against the noncitizen.
Not everyone is eligible for PD, and the new memo provides some guidance about who may qualify. Positive factors that DHS will consider in deciding whether to a agree to a PD request include–
a noncitizen’s length of residence in the United States; service in the U.S. military; family or community ties in the United States; circumstances of arrival in the United States and the manner of their entry; prior immigration history; current immigration status (where lawful permanent resident (LPR) status generally warrants greater consideration, but not to the exclusion of other noncitizens depending on the totality of the circumstances); work history in the United States; pursuit or completion of education in the United States; status as a victim, witness, or plaintiff in civil or criminal proceedings; whether the individual has potential immigration relief available; contributions to the community; and any compelling humanitarian factors, including poor health, age, pregnancy, status as a child, or status as a primary caregiver of a seriously ill relative in the United States.
Negative factors include the following–
criminal history, participation in persecution or other human rights violations, extensiveness and seriousness of prior immigration violations (e.g., noncompliance with conditions of release, prior illegal entries, removals by ICE), and fraud or material misrepresentation. Where a criminal history exists, OPLA should consider the extensiveness, seriousness, and recency of the criminal activity, as well as any indicia of rehabilitation; extenuating circumstances involving the offense or conviction; the time and length of sentence imposed and served, if any; the age of the noncitizen at the time the crime was committed; the length of time since the offense or conviction occurred; and whether subsequent criminal activity supports a determination that the noncitizen poses a threat to public safety.
Balancing these factors on a case-by-case basis, DHS will determine whether a particular individual warrants PD. It is important to understand that PD is discretionary, meaning that DHS has a lot of power to determine whether to agree–or not–to a request for PD.
To apply for prosecutorial discretion, each local DHS office should establish a dedicated email address to receive PD requests. Such a system existed during a prior iteration of PD (during the Obama Administration), and so possibly those same mail boxes will be re-activated. In any event, if you want to apply for PD, you can always call the DHS office with jurisdiction over your case and ask for the email address.
Most asylum seekers, at least those with reasonably strong cases, will probably not want PD, which effectively ends the court case without a substantive decision. Such people would rather have the Immigration Judge review the merits of their claim and (hopefully) grant asylum. But for those with weak cases, or who are risk averse, PD may make sense. For one thing, PD avoids the possibility of a removal order and allows the person to remain in the United States (at least until a new Administration comes along and eliminates PD). Also, if an asylum case is Administratively Closed (meaning, the case remains alive, but dormant), the applicant may be eligible to renew his Employment Authorization Document (though at the moment, the policy on this is not entirely clear).
On the other hand, many asylum seekers will be less than thrilled if their Immigration Court cases end with PD. Such people will remain in limbo and the government can–at any time–re-calendar the case and try to remove the person from the United States. Also, asylum seekers with PD cannot travel outside the U.S. and return (even if they have Advance Parole), they cannot petition for family members to join them in the United States, and they cannot get a Green Card or become a U.S. citizen (unless they find an independent path to obtaining those benefits). So while PD may be useful for some applicants, each person will need to weigh the pluses and minuses in their individual cases.
In my own practice, I do not expect to make many PD requests, but we will make a few. We have a couple asylum-seeker clients who are now married to U.S. citizens. DHS previously would not agree to terminate their court cases, but maybe now they will agree (allowing the clients to adjust status). We also have a long-term LPR with two aggravated felony convictions (for very minor stuff, many years ago). I think we can make a good case for her to receive PD. Finally, we have an asylum case that was denied and is currently on appeal. If we lose the appeal, perhaps ICE would agree to deferral of removal, which would avoid the person being deported. While I do not have many clients who will benefit from PD, I am glad it is now available for those who need it.
Jason,
My case is in court for MCH. If I want to apply for PD, can I apply after IJ (if I don’t win) and after BIA denies my application?
In short, How far can I go to apply for PD to save myself from deportation?
Normally, PD is for people who did not yet have their final hearing with the judge. I guess you could try to apply for it at a later stage of the process, but I think it is less likely to work. If you do have a final order of removal, you can ask DHS to allow you to stay in the US for humanitarian purposes, and sometimes they agree a(and you get a work permit), but more likely, they would not agree. Take care, Jason
In 2010 I applied for asylum after being in the US for 10 years, the prosecutor agreed to a prosecutorial discretion and I was put on an administrative closure pending relative petitioning for my green card. Now my question is I have a son who is 21 and I was wondering if there is someone out there who has been through the process of applying for a green card with an administratively closed case. I appreciate any insight or hell thank you.
It should be pretty easy (assuming you are eligible – maybe check with a lawyer to be certain). First, he files the I-130 petition and once that is approved, you cam re-calendar the court case and dismiss the case. Then you can get your GC from USCIS. I did a post about this on August 6, 2018 (it is in the context of a marriage case, but the same rules apply when a 21+ US citizen child files for you). I do recommend you talk to a lawyer to be sure you are eligible and help you navigate the system. Take care, Jason
Hi Jason,
My attorney filed for PD a couple of weeks ago in Atlanta and I have an approved I-130 through marriage to US Citizen.
You’re familiar with the waiting and the impact it has on us, immigrants, but I would still like to ask the dreadful question – do you have a general idea of how long PD requests and responses are taking?
I’m guessing thousands of people are doing it now and I’m scared of being hopeful to hear back soon. My attorney said I’m the first person she does it for so I’m hoping you have a better idea. Thank you!
It varies by request – we have had some take a few days; others a few weeks. There was recently a federal court order that may block the PD program, but it is not clear how that will affect individual cases. Unfortunately, with things like this – that are completely within the discretion of DHS – time frames are not predictable. It probably does not help that you are in Atlanta, which has a very difficult court and DHS office. Take care, Jason
Hi Jason – Wondering if federal court order did anything to block the PD program?
Also, can you pls tell me if PD can be requested once one is denied in Asylum in court?
…Like file an appeal & then ask for PD?
Thanks!
As far as I know, PD is still available, and I have requested it in several cases where the person has other relief available (marriage to a US citizen with an approved I-130 petition). DHS has agreed in all cases but one, so I have found it to be effective for the most part. You can request it at any time, and you can request it more than once. However, if DHS has refused you, unless there is some new information or a policy change, there is probably no reason to ask them again. Take care, Jason
Good Morning Jason,
Just found out over the weekend that PD has been suspended. Below is the message i found in ICE website.
“Due to an August 19, 2021 preliminary injunction issued in Texas v. United States, 6:21-cv-16 (S.D. Tex. Aug. 19, 2021), OPLA has suspended reliance on the May 27, 2021 memorandum from the Principal Legal Advisor, Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities. Questions from noncitizens and their legal representatives about OPLA’s exercise of prosecutorial discretion in individual cases should be referred to your local OPLA office.
Updated: 08/20/2021”
What would be the next step? Will it come back? , PD was the only hope left for me and my family…
I doubt this is a ruling that will stand up, and so I suspect that it will come back. Even if it does not, I do not see how DHS can be required to prosecute every case. We will have to see how DHS responds, and whether that court order holds up. Take care, Jason
Thank you very much Jason. Your response is always a confidence booster.
Hey Jason! I have an individual hearing. And my attorney wants to apply for PD. Can you tell me what is the process if you get approved for PD? Are you allowed to obtain LPR? Or just terminating the court hearing and if that so what happens then? On the other hand, if you are not approved for PD, do you lose your individual hearing and any negative effect on that? Thank you so much for your contribution here.
It is a difficult question to answer without knowing the case, but essentially, you email the prosecutor (DHS/ICE) and ask whether they are willing to close the case. If so, and if the judge agrees (which they usually do), the court case will be closed. If you have some other way to get a GC, such as marriage to a US citizen, you can then do that. If you have no way to get a GC, you are basically here with no status. Depending how the case closes, you may be able to continue renewing an asylum-pending EAD (category c-8). For people with an alternative path to a GC or with a very weak asylum case, maybe this is a good option. For someone with no alternative and/or a strong asylum case, it may not be a good option. Take care, Jason
Thank you so much, Jason! I’ve asked my attorney if I’ll lose my status to no status when the case is closed, he said no and He will ask to the prosecutor to get approved for the case. If the prosecutor doesn’t approve my case, we will continue with the hearing. If the prosecutor approves then I will be get approved for my case and be able to get my status, LPR, through there. I am not sure which one is legit. Is there any possibility like this that just came out on the last memo?
Maybe the prosecutor (DHS) would agree to grant the case in advance. That is not normally what is meant by PD, though. As I understand, PD is basically where they agree to terminate proceedings. We have done that in a few cases where the person has another option to get a GC (marriage to a US citizen in our cases). I suppose there could be other ways to get the GC, but marriage is probably the most common. Take care, Jason
Can a person with pending asylum case, pending for first interview, asks affirmatively for PD ? It sounds like that as long as the Democratic Party is in charge or Republican who doesn’t make revoke PD a priority, this might…give people like me some peace of mind and some certainty ? I have some medical consideration related to my asylum condition, if I am granted PD, I feel that…I will have the courage to resume and move forward with my medical process…
PD is only for people in Immigration Court. Also, it is often not very desirable, as it just closes the deportation case, but does not usually leave you with any permanent status (unless you have a path to status some other way, such as through family immigration). Take care, Jason
Hello Mr. Jason,
I am a pending asylum seeker since 2016.
I got robbed 2 times at work place.
Later I recognized the robbery was arranged by my Employer itself.
And I spoke to the employer openly that it was arranged by them, with evidences.
Police cases filed the day when I got robbed. I have the File.
However, I am scarred to report to police that I it was my employer who arranged it.
As many of my friends and relative and colleagues stopped me from reporting it to Police.
Also noticed they are doing the same in different branches.
Right now I am sick.
I stopped going out of my apartments except for pharmacy or grocery.
Because I am very much scarred as the employer or their people may finish my life here.
My health condition is very bad and when I met doctor he said, it is due to ANXIETY.
I feel breathing difficulties and chest tightness since few months.
Covid Test Report is Negative.
Even I had been to Psychologist but no good result.
In short, my life is in a Hell !
And I feel to go back to my home country.
Even though there is persecution, I strongly believe that at least I can see my mother and my kids before anything happening to my life.
Please suggest, can I simply exit as a regular passenger ?
Do I need to provide any documents to the BORDER CONTROL ?
I have several reports from different Govt Department, related to the Robbery and Impairment details.
Also an year back I reported all the information to Crime Stoppers Houston.
I have that Report as Well.
Looking forward to hearing from you.
With Thanks, Regards
James
I think I responded to you previously, but briefly, you might look into a U visa (talk to a non-profit organization about that – I did a post with links to non-profits on September 22, 2016). If you want to leave, you can leave. That is not an issue. You should inform the asylum office after you leave in order to avoid them (eventually) ordering you deported. You can find their contact info (email) if you follow the link under Resources called Asylum Office Locator. Take care, Jason
Dear Jason,
Yes, You already responded on it.
U-Visa will give me more troubles to survive in this country.
Because, I have to support the Police to identify the Criminals and if I do, I can’t survive in this land alive.
Better, I feel, to keep away from these frauds and save my life.
Also doctors mentioned that reason for my present health problem is ANXIETY.
I am struggling to BREATH ! ( NO COVIDN19 )
And BP and Diabetic is very high with Cholesterol.
So, I am planning to exit early as possible and I can provide all the evidence to the asylum office or to the Embassy, once I am out to FRESH AIR from this land.
Hope, my decision is not wrong as at least I can see my old mother aged 86 as she is willing to see me past 5 years now. Of course, I have to face lot of religious persecution and insult over there.
Still, I prefer to see my family, before anything wrong happening in my life.
Thank you Jason, Thank you again for your guidelines.
With Best Regards
James
I wish you good luck, Jason
It’s great to have the option for people in removal proceedings especially if work authorizations are allowed. Is PD reversible if one wants to open the asylum case at any given time after being granted PD and schedule a hearing? It would be important in situations where family petition or other paths to permanent residency don’t work out. The other thing is if PD is requested after losing an appeal, are work authorizations permitted then? I know policies on work authorizations are not clear yet but what do you expect to happen?
If a person has been granted PD, they can usually re-calendar the court case at a later time. Maybe in some cases, PD results in the court case being terminated. If so, I think it would be more difficult to re-start the case, but I have not seen that happen with PD – they simply remove it from the calendar, but it is still an active (but dormant) case. If you get PD after being ordered removed (and the appeal is denied), there may be a way to get a work permit. I think you have to request that from ICE and then file for the EAD with USCIS, but I am not sure about the procedure – this used to be possible, but I have not looked at it in a long time and with this new PD memo, the procedure may be different. Take care, Jason
Hi Jason thank you for everything that you do for us Asylum Seekers.
I am scheduled for individual hearing end of October in NY . As per my attorney i need more evidence and documentation to make the case stronger or to even win. At this point of time its a total lock down and most of the government office in my country are under partial lock down due to COVID. I am finding it very difficult to collect these documents.
I am considering PD. Or i would say i made up my mind for PD. My question is will i be able to apply PD before the individual hearing or do i have to wait till my individual hearing and request at the hearing.
I have no criminal records. Pay my taxes. I have been working even during pandemic and my wife is pregnant and we are expecting our second baby right around the end of October.
I respect the time of the Judge and the prosecutor. And don’t want to waist their time in preparing for the hearing just to find out i am requesting PD. My immigration attorney is not aware about the new PD process.
The PD process seems not to be fully operational yet, but it should be soon (and maybe some officers are better than others on this point). One issue is that DHS may not consider PD until you get close to the court date, but you will have to submit all evidence 30 days (or whatever the judge ordered) before the hearing. So you may have to do all the prep before you can even get an answer from DHS about PD. Maybe you can try to contact them sooner – I have been trying that for a case in August, so far without any luck. One issue is that winning asylum is a much better outcome than PD, which basically just puts everything on hold and could be reversed by a future Administration. I guess you should discuss with your attorney to decide what you should do and when you should do it, but PD may be a good option if it seems that the asylum case is weak or if you have some other way to get status in the US (through a family petition for example). Take care, Jason
Thank you for the response. I will speak to my attorney and find out what are the options. Take care
Hi Jason. Just an FYI. I spoke to my Attorney today. As per my attorney the prosecutors are sending out letters and getting in touch with the immigration attorneys and suggesting PD and terminating the case. The cases that can qualify for PD. So my attorney said that we don’t have to request PD in advance but to wait for the prosecutors to reach out to the immigration attorneys which is going to happen as we get closer to the case.
Maybe it depends on the office. I reached out to DHS in Arlington and it would be fair to say that they were not very encouraging (or polite). So maybe it varies by office. Take care, Jason
Hi Mr Jason
How would this new memo and rules affect the adjustment of status based on marriage to US citizen while in removal proceedings before any hearing?
If I got the approval on I130 should I notify and update the court with the changes or I still have to attend the master hearing to provide updates? Because first court date is in years!
Can I proceed on the next step with USCIS?
Thank you
Even without the memo, you could ask DHS to terminate the court case, which would allow you to adjust status with USCIS (assuming you are eligible – I wrote about this on August 6, 2018). We have had a lot of resistance lately from DHS, and in most cases, they refused to agree to termination. If that happens, judges will almost never terminate. The new memo will hopefully make DHS more likely to agree to termination. In fact, we had one case where DHS was resisting, we filed the motion to terminate, and then after the memo was issued, they agreed to terminate. I have a feeling that they were ready to terminate anyway, but maybe the memo helped. And hopefully, it will help other people moving forward. Take care, Jason
Thank you for your reply
I have few questions
How do I ask the DHS to terminate the court case? By mail? Or at the first hearing?
Is this After the I130 approval or do I have to wait to the first court hearing?
Thank you very much
You have to file a motion to terminate. Typically, the lawyer does that. You can do it by mail or at a court date. Usually, they will not terminate until the I-130 is approved, and even then, they do not always agree to terminate. However, with the new PD memo, maybe termination will be more likely. Take care, Jason
Thank you for your Answer
So what if they don’t agree to terminate?
Should I file another motion to terminate ? Or do I have to continue the adjustment based on marriage with the judge?
I’m so thankful for you
You can file another motion to terminate, but unless something changes (either DHS agrees to terminate or your situation is different), there is probably no point and you should just go ahead and do the case with the judge. Take care, Jason
Hi Mr. Jason I have a question my son is extremely sick I never seen him since five years I am a asylum applicant and Right now I’m waiting on my master hearing I applied for form 131 to support my son condition And after seven months they denied it What should I do in this situation how can I meet my son in In a third country Please advise
I wish your son a quick recovery. Supposedly it is possible to travel if you get permission from DHS (the prosecutor in immigration court). I have never heard of this actually happening, but maybe you can reach out to them to ask. You can find their contact info if you follow the link under Resources called DHS Office of the Chief Counsel. Otherwise, if you leave the US while you have a court case, you will be considered to have deported yourself, and you will not be able to return. Whether the new PD memo discussed about will benefit you in any way, I do not know, but maybe it will make DHS more flexible if you ask them about possible travel. Good luck, Jason
Hi Mr. Jason
1- thank you for all your help to asylum community
2 – I have pending asylum application and my passport from the country where I come from expired I have an emergency there is anyway that I can travel to a third country ?
To travel as a person with a pending asylum case, you need Advance Parole and a valid passport. I wrote about that on September 11, 2017 – maybe that would help. But basically, you will need to get a passport, which could have implications for your asylum case. Another option is to try to expedite the asylum case. It is doubtful that this will help very quickly, but maybe – I wrote about that on March 30, 2017. Take care, Jason
after being unemployed for more than 10 months, I landed a decent job with my EAD. They asked me several questions regarding my status. It was really hard to convince them that I am not leaving the company after my EAD gets expired.
Again ? …
Alright, so personally I doing something to try to contain this kind of practices. Do you mind sharing what kind of questions they are asking of you ?
Hello Jason,
When I apply for Green Card as an asylee, is that “Advanced Parole” or “Travel Document” that I can apply for at the same time? Also,
1- Can the Travel Document/Advanced Parole be issued before my green application is approved?
2- Is it recommended to use travel document while my green card application is pending or it is better to wait after the application is approved?
Usually, you would apply for the RTD, which is a better document than AP in that it is valid longer (though still only 1 year) and it can be used in lieu of a passport if need be (and if the destination country accepts it). AP is only used to re-enter the US. 1 – Yes – if you file both forms at the same time, the RTD is usually processed faster. 2 – You can use it as long as it is valid. Take care, Jason
Jason, nicely said! Also, Bassam should understand that, s/he MUST, as an asylee (the pendency of his/her GC application is irrelevant, unless, of course, there is a request for evidence while s/he is abroad), apply for and receive an RTD before leaving the U.S. AP is not for asylees (those who are granted asylum). AP is usually- emphasis on “usually”-for people who have some “undocumented” status (such as DACA, for example) and or who are being petitioned for by family members (a husband filing for his wife/husband who lives in the U.S. with no other status, for example). If the AP was given to you by USCIS in error, you should return it and ask for the proper travel document. Congress, and ipso facto the INA, in accordance with international refugee regulations, made it possible for refugees and asylees to seek permission to travel abroad and return WITH an RTD.
Hi Jason,
Sorry a spelling mistake. I mean ask for termination for an approved I-140 with pending asylum in court.
Thanks
H
Hi Jason,
I hope you are doing well. With the new PD guidance issued on May, 27 by the US government that you posted, would it be possible not to ask for termination if I was able to get an I-140 approved ?
Thanks
Hisham
In most such cases, you would not be eligible to adjust status, even if court were terminated (there are exceptions to this general rule – talk to a lawyer to see if you are eligible). If you cannot adjust, I doubt DHS would agree to terminate, though maybe they would agree to Voluntary Departure and you can try to consular process based on the I-140. There are obviously a lot of difficulties doing that and so talk to a lawyer before you try something like that. However, if you are eligible to adjust and there are no criminal or fraud issues, DHS may very well agree to termination – we just got them to agree to terminate in a case with an approved I-130 where the person is eligible to adjust. Take care, Jason
Hi Jason,
Thanks a lot for your note. The recently-released PD form itself says in one of the paragraphs that one might need to apply for ” waiver of unlawful presence ” , which means waiver of inadmissibility. So they know very well that lots of people will be out of status by the time the termination of proceedings is granted. And USCIS can grant the waiver (if they wanted to). Do you have any comment on this ?
Thanks Jason
H.
We’ll have to see how it plays out, but I expect DHS will agree to terminate some cases where the person does not have other relief (or maybe is unlikely to get a waiver). That prevents the person from being removed, but may not help in terms of having a stable status or even an EAD. In some cases, ICE can offer DP to stop a deportation and can even issue a work permit, but I expect there will be cases where deportation is stopped, but the person is left with no status and no EAD. Take care, Jason
Hi Jason
I obtained RTD based on asylum and my GC is still pending. Can I still travel? Or will I be considered that I have abandoned my AOS since my RTD is based on my asylum? thank you
You should be fine to travel, as long as you return for any appointments with USCIS and as long as you return while the RTD is still valid. Take care, Jason
It looks like the secretary of homeland security will bring hope to some of us. Here is a kind of good news for u visa petitioners
USCIS Issues Policy Providing Further Protections for Victims of Crime
Release Date 06/14/2021. The policy update will help provide stability to U Visa Petitioners supporting law enforcement efforts to investigate and prosecute crimes
WASHINGTON—U.S. Citizenship and Immigration Services is updating the USCIS Policy Manual to implement a new process, referred to as Bona Fide Determination, which will give victims of crime in the United States access to employment authorization sooner, providing them with stability and better equipping them to cooperate with and assist law enforcement investigations and prosecutions.
“Today we are taking steps to help victims of crime and promote public safety,” said Secretary of Homeland Security Alejandro N. Mayorkas. “These are individuals who have come forward to help law enforcement keep us all safe, but who are in need of a measure of protection for themselves as well. The Bona Fide Determination process is consistent with the Department’s statutory authorities and will ensure these individuals receive the support they need.”
“Victims of crime need a way to support themselves as they heal and continue their pursuit of justice,” said USCIS Acting Director Tracy Renaud. “This Bona Fide Determination process will allow U visa petitioners to work while they remain safely in the United States, providing valuable support to law enforcement to detect, investigate, or prosecute the serious crimes they have survived or witnessed.”
Through this new process, USCIS will issue employment authorization and grant deferred action to petitioners in the United States with pending U visa petitions that it determines are bona fide (made in good faith and without intention of deceit or fraud) 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.
Congress has capped the number of principal U visas available each fiscal year at 10,000, but since 2010 USCIS has received more than 10,000 U visa petitions each year. As a result of this high case volume, U visa petitioners now wait approximately five years before receiving a determination that allows them access to an employment authorization document and deferred action. This wait time not only leaves these individuals vulnerable to financial instability and fear of deportation, but it also can disincentivize victims from coming forward and cooperating with law enforcement. Through this policy update, victims with pending bona fide petitions will receive the stability they need as they rebuild their lives while working with law enforcement to investigate and prosecute criminal activity. This increase in victim cooperation will further fortify law enforcement’s ability to protect communities throughout the United States.
USCIS will deem a petition bona fide if:
The principal petitioner properly filed Form I-918, including Form I-918B U Nonimmigrant Status Certification;
The principal petitioner properly filed a personal statement from the petitioner describing the facts of the victimization; and
The result of the principal petitioner’s biometrics has been received.
USCIS will issue employment authorization and deferred action if, after conducting and reviewing background checks, the agency determines, in its discretion, that petitioners merit a favorable exercise of discretion and do not pose a risk to national security or public safety.
This guidance is effective immediately and applies to all Form I-918 and Form I-918A petitions that are currently pending or filed on or after June 14, 2021.
Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking and other qualifying crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and who cooperate with law enforcement authorities during the investigation or prosecution of the criminal activity. In the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Congress specifically authorized DHS to grant employment authorization to a noncitizen who has a pending, bona fide petition for U nonimmigrant status. This guidance implements that authority.
This reform is one of a number of initiatives designed to eliminate complex, costly, and unjustified administrative burdens and barriers, and thus to improve our immigration processes.
Visit Victims of Human Trafficking and Other Crimes to learn more about other protections for victims of crime, human trafficking and domestic violence.
For more information see the policy alert (PDF, 372.89 KB).
For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter, Instagram, YouTube, Facebook, and LinkedIn.
Last Reviewed/Updated:
06/14/2021
Here is my question Jason, do you think USCIS will issue them EAD freely or they will still need to pay?
I do not do U visas, and so I do not know about the EAD. I have seen that DHS is planning to release proposed new rules to (probably) roll back a number of Trump era policies, including policies related to asylum seekers. Hopefully, the proposed new rules will be released in the coming months and will be implemented shortly after that. While it is understandable that the Biden Administration wants to proceed with caution, and I have little doubt that they want to do the right thing, it is getting frustrating to have to keep waiting for changes, many of which are very obviously needed. Hopefully we will have some new rules soon that will bring some relief to noncitizens. Take care, Jason
Jason,
To be frank I am loosing hopes for the Biden administration. As you said they seems proceeding with high caution, but helps nothing for the asylum community. They can’t even try to improve the processing time. I have been waiting 2 years for the i730 petition. Requesting 5 times for expedite, but futile.. I feel like the politicians have no pity and humanity at all.
A lot of people are getting frustrated (including me). However, it does seem like new regs are coming. Also, the budget proposal for FY2022, which starts October 1, 2021, includes more money for USCIS, which hopefully will help improve things there. It is slow going, but I am still hopeful we will see some positive changes in the relatively-near future. Take care, Jason
Jason,
Will the new regulation has a room for speeding up the asylee benefits petition processing time, like mine of i730 and a GC ?
Thanks,
I have not seen an proposed regulation that would speed up these processes. The Administration has proposed more money for USCIS, and so maybe that will help make things move a bit faster. Take care, Jason
in this new case can a crew member get GC by marry a citizen?
Crew members are subject to special rules, which are usually pretty bad. Talk to a lawyer about eligibility, as I have not looked at that for a while, but crew members are often not eligible for benefits that other visa holders can get. Take care, Jason
Thanks
This is a helpful explanation, Jason, thank you again. I’m in removal proceedings after my asylum case was referred to court 3 years ago but I’m still waiting for a master hearing date (no judge assigned either). However, I now have an approved I-130 after my US Citizen spouse and I passed the interview. Do you recommend pursuing a PD in order to adjust my status or should I keep waiting for a court date in order to close my asylum and apply for adjustment of status?
Congratulations on being one step further. I’m on the same boat but waiting for my I-130 interview. How long did it take for you to get the interview? Which field office?
We waited for about 2 years, but we ended up filing a lawsuit to expedite the process (apparently many people have been doing that) and so we got a date exactly 2 weeks after filing. Thank you and good luck.
This was also in the Atlanta field office.
We will be trying PD for a couple clients in this situation. For our cases, DHS previously opposed termination (for no good reason that I could see). Only today, we had DHS send us a response to a motion to terminate under circumstances similar to yours, and they have agreed not to oppose termination (which typically means the judge will now terminate so our client can adjust status with USCIS). Whether that was related to the PD memo, I do not know, as we filed the motion in April. Take care, Jason
Please advise how long a case takes to be reviewed by a supervisor,
It is totally unpredictable, but at least in my local office, there is (or was) a shortage of supervisors and that was contributing to the delay. Some cases take a few days; other take many months. Take care, Jason
Anyone recently traveled to Canada on RTD? Can you apply online for eTA? Do they accept the RTD or do I have to apply for a regular visit visa? P.S I will be driving there and not flying. Please share your experiences. Thanks.
Ray, it depends on whether or not you’ve adjusted your status to that of lawful permanent resident (LPR). If you are only an asylee, you are not eligible to apply for eTA. Instead, your must, irrespective of your mode of transportation, apply for a Canadian visa. As an LPR, you don’t need a Canadian visa to enter Canada- an eTA, your passport or RTD will suffice.
** You’d also need your GC to enter without a CAN visa.
Hi Jason,
I am waiting for a decision after my interview for 3 years now. I believe my case is stuck in the background check. I am on OPT and my employer is willing to sponsor me for EB green card. Don’t you think my EB green card application will be stuck in the same place as my asylum case is? Have you seen any pending decision asylum applicant could successfully get a green card from a different route while his/her asylum application is still pending? Thanks
It’s a good question, and I am not sure. My guess is that the EB case will probably not be stuck, but it probably depends on the case. I have one case where the guy paid a ransom to save his life. As a result, his asylum case was held up forever (6+ years and counting). His immediate family member filed a petition for him for a GC. He was eligible to adjust, but that case has been held up. On the other hand, I have had other cases where the asylum case was delayed for the “normal” security background check issues, and several of those people were able to adjust. So in short, I do not know. If you don’t mind trying the EB cases and paying the money for all that, it may work. But alert the lawyer to the issue and maybe see what the lawyer thinks. Take care, Jason
KAYBAJ, for your reference this is my timeline:
1. Applied for Asylum in 2015
2. Started EB2 process through my employer in early 2018
3. Had Asylum interview in early 2019
4. Filed AOS in early 2019
5. Waiting for more than 2 years for both processes, no news in the asylum decision, no news in the AOS
Hello Jason,
May I please ask a question not related to this topic? I am applying for renewal EAD, category c(8), and I see biometrics should be submitted.
Do I send a check for $410 for EAD renewal and $85 check for biometrics and then USCIS sends biometrics appointment? Or, do I go to do biometrics myself before sending the EAD renewal application?
Thank you
We combine them into one check. However, if you are a member of ASAP or Casa de Maryland, you do not need the biometrics fee. ASAP is free to join, and I think there is a small fee for Casa. I did a post with links to both organizations on September 23, 2020. Take care, Jason
Hi Jason and everyone
Please my fellows can anyone share his experience traveling with RTD? I got mine two months ago and I am going to see my family in a third safe country, but I am so scared about the readmission thing when I come back to the USA. Please share your stories it helps a lot. thank you!
I have never heard of anyone having trouble returning to the US with a valid RTD, and so I think you should be fine. Sometimes there are small delays when you re-enter (not all CBP officers seem to be familiar with the RTD), but that is the worst problem I ever heard about. One other issue is that not all countries will accept the RTD in lieu of a passport, and so you may need to use your passport (not ideal for asylees), but in terms of returning to the US, it should be fine. Take care, Jason
I recently travelled with RTD never had any issues with it while a was traveling but I was pulled aside for secondary screening at Philly airport when I got back to the US. So be prepared for it–it might happen. I was taken to another room where my RTD was checked and stamped and I was let to go. But my undersanding is the initial officer who was checking my documents didnt know more RTD or what an asylee status is because he was asking me for F1-Visa.
It is pretty surprising that many CBP officers seem not to know about the RTD. Take care, Jason
Haha 🙂 Jason, every asylee I know who travel on RTD experience the same thing with the immigration officers. The officers sometimes have no idea what an RTD is or even what asylum is. They even ask them where they get the document/what is it. Also, there is a 100% chance that you have to do a secondary inspection when seeking to enter with the RTD. However, unless there is an issue, everyone is eventually allowed to enter.
You wouldn’t think an RTD would be so complicated…
Thank you all for your answers!
Allow me here to ask another question regarding RTD since you travelled recently using it ( I know I seem to make things more complicated, but we all know how traumatized we are):
Is using the RTD included in the exceptions of the suspension of entry of immigrants/nonimmigrants? I am reading the WH proclamation and I do not see anything talking about the reentry of asylees, except this point but still not sure:
(a) Section 1 of this proclamation shall not apply to: …..
…
(b) Nothing in this proclamation shall be construed to affect any individual’s eligibility for asylum, withholding of removal, or protection under the regulations issued pursuant to the legislation implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws and regulations of the United States.”
So, is transiting through the shengen area using RTD still very risky? thank you so much for your time
I completely avoided travelling through Europe. I went through Qatar and connected to a third country. I think EU is still under travel ban
As far as I know, this has not been rescinded and asylum seekers are not covered by the exception (so they potentially can be excluded). I have not heard anything about this lately, and so I may be wrong, but it is worth double checking with the airline to make sure you won’t have a problem returning. I did hear about one person who was not able to return from Europe and had to go to Mexico first for two weeks, but that was at least 6 months ago and the situation now may be different. Take care, Jason
hello wannabe traveler
I will advise to go head and travel , since I just come back yesterday it was smooth entry . I had my RTD and I 94 .
Thank you so much ASYLEE K
Did you transit through the Schengen area? that’s the most important information for me
hi wannabe
I didn’t travel to Schengen area , I went to Africa . we were transited to Ireland Dublin but it was just taking fuel not going in thru the country.
as far for James respond it was from Washington DC my entry . another thing be prepare to be send out to a secondary inspection its not big deal they just verifying your RTD and they will let you go . please don’t travel to your country you claim by anymean (I know you acknowledge this just I’ll give you advise )
thanks
Hello Asylee K,
What was port of entry?
Hi Jason during my interview the officer asked where I worked . I worked on w2 she wrote the name down of the place . Will they be calling the place where I worked because I have ongoing case with labor department against them for non payment of wage and illegal deductions.. I am worried they won’t be telling good things about me.
Sister…I feel you…similar situation here. Employers these days really like to take advantage of asylum seekers…
ANNA and ASYLUM SEEKER, Jason will respond to your questions or concerns.
Why are you guys so concerned about what your employers might say to USCIS? Unless you did something criminal, or something that could potentially be classified as aggravated felony or crime involving moral turpitude, which could potentially bar you from receiving asylum or a GC, I am not sure why you’d be concerned about USCIS calling your employer (which is highly unlikely, btw). USCIS is more concerned about fraud, misrepresentation, your identity, the veracity of your story, your criminal history, etc. than you taking your employer to court because your employer may or may not have illegally docked or withheld your pay.
It is perfectly legal- at least here in the United States- to challenge or bring a lawsuit against your employer if you believe there is a breach of the employment contract. Unless there is more to the stories, I suggest you stop worrying too much about things that do not need worrying over.
I have never heard about them calling an employer (or anyone else) in an asylum case. I suppose it is not impossible, but I think it is extremely unlikely. Also, it would be illegal for them to reveal anything about your asylum case, including the fact that you filed for asylum. Take care, Jason
Hey Jason, I am a Green Card asylee preparing to send my Naturalization package to USCIS. How long these days to get the interview to be naturalized? Also, do you have any tips for me and mistakes to avoid. If any of the readers have any question for my trip of granted asylum to greencard, you can ask. Thanks
How long did it take for your green card to process back
Then ? And which service center if you can share ?
My greencard took about 6 months from filing to green card production and it took place in Texas Service Center.
GREEN CARD ASYLEE, I also was interviewed in Houston AO last month. How long did it take for them to send decision after interview? Can you pls share timeline. I will appreciate that.
RON, I understand your need for information. However, you can’t use GREEN CARD ASYLEE’s experience as an indication of anything. GREEN CARD ASYLEE is looking to apply for naturalization now. This means that when s/he applied for asylum or the GC things were much different from now.
We have been seeing cases take maybe 1 or 1.5 years for the interview. It varies a lot by case, and so it could be longer or shorter. In terms of tips, I did a post on December 2, 2020 that might help. Take care, Jason
Can you clarify the part about asylum seekers not being able to adjust status . Is there a change in law that will affect asylees looking to adjust status ? I didn’t quite understand this PD post to be honest.
PD is for people in Immigration Court. The rules about adjusting status have not changed. But in the last couple years, DHS has been reluctant to allow people to close a court case and get a GC some other way (through marriage to a US citizen, for example). Hopefully, with the new PD rules, that will become easier. Take care, Jason
Hi jason. Thank you for your work. May god bless you. I have a question. I have applied for green card based on asylum in november 2020 and i have not received my green card yet. My ead will expire this november and i need to renew it to continue working and issuing the driver license. I have read that as long as i have a green card petition with uscis in process, i should not pay the ead renewal fees because i already pay the green card fees to uscis ? Is this information correct because i read it on the uscis website but i am confused because it was talking about categories (c9) and (c13) applying to adjust status to permanent residence but i am category (a5) so is it the same or i will have to pay money again to renew the ead ?
Hi jason to make myself more clear, I have quoted the exact wording of the uscis manual guide for filing for, I 765. It looks confusing to me.
“If you are an asylee or refugee and have applied to adjust to lawful permanent resident status on Form I-485,
file Form I-765 under category (a)(5) as an asylee or (a)(3) as a refugee. Do not file under eligibility category (c)(9).
You will need to pay the filing fee or obtain a fee waiver for Form I-765 if your Form I-485 is still pending with
USCIS and this is not your first EAD as a refugee or asylee and you did not pay the Form I-485 filing fee for any reason.”
You only pay to renew an a-5 EAD, not for the first one. As I say, I do think you have to pay for the EAD. Take care, Jason
What is your center ? Is is the national benefits center? What state are you in . These could influence
Several years ago, we did have success using the I-485 fee receipt in lieu of payment for the a-5 EAD. However, USCIS started rejected such applications a few years ago, and we have not tried it since. I think you will need to pay for a new EAD (or do a fee waiver using form I-912, available at http://www.uscis.gov). I suppose you can try using the I-485 receipt, but I think that will not work. Also, of course, an asylee can work lawfully without an EAD (https://www.uscis.gov/i-9-central/handbook-for-employers-m-274/60-evidence-of-status-for-certain-categories/63-refugees-and-asylees), but it is difficult to get employers and the DMV to recognize that. Since most GC applications take 1 to 3 years, you may just want to renew the EAD so you will have it, which does make life a bit easier. Take care, Jason
Jason, I hope this message finds you well. I am very depressed and frustrated today. I applied for RTD in September and finally last week I checked the status and the cards were produced. We just moved and updated our addresses with USCIS. Unfortunately, they delivered the cards to the old address. We got our mail forwarded before moving but usps messed up and I am doomed. I checked with the property manager at the last place we lived and they said they don’t have anything. I called USCIS and they said the cards were delivered to the older address per their tracking records. I have no clue at this point what should I do. Please help. Thanks.
You can try to ask USCIS to deliver the RTD to the new address. You can call them and ask about that. Also, there is a link under Resources called USCIS Help, and you can make an online inquiry there. Unfortunately, this is a pretty common problem and not very easy to fix, but if you can talk to someone and if you send them an inquiry online, you may be able to get them to re-send. Good luck, Jason
It was delivered at the wrong address by usps. I was able to get hold of them on time and they were able to retrieve it. They told me it was a miracle and only happened by the grace of God! I am so relieved to track it and find it. Thank you.
That is great, and it does seem to happen pretty rarely. Take care, Jason
Some thing else open and account with USPS so that if you think of shifting you can update your address with them,you will never have issues with mail delievered to the wrong address,and the advantage with it.you can see your incoming mail on a daily basis and it’s free.Try it.Because the moment it’s changed all mail will be directed to your new address automatically.
It happened to me a couple of years ago similar, but not same situation. Post office returned as they could not deliver due to missing name on the box. Anyway, reach to USCIS and explain; they will reissue it to you.
Hi Jason,
My case referred to the immigration court in Dallas, TX. I completed my Master Hearing. Having a case 3-4 years later makes me depressed. I can’t continue my life. I am planning to move the other cities. I searched the grant rates for courts. Newark and Arlinton immigration courts’ judges have high grant rates. Do you have any clients in those courts, how long takes the get an IH date?
Some judges are better in those courts, but some are not. You have no control over which judge you will get, and you do risk getting a very difficult judge. While Arlington used to be one of the best (or maybe the best) court in the country, there are several judges there with very lower grant rates. The same may be true of Newark, but I do not know. In terms of time, most cases seem to get scheduled in 1 or 2 years, but it is not predictable – some cases take 3 or 4 years. If the only reason to move is to shorten the time, I think that may not help. You can try to expedite a court case – I wrote about that on April 20, 2017. Take care, Jason
Can I ask more about this ? So the risk of getting a very difficult judge, does it mean it’s just like when you get a new judge, you have a probability to be assigned a judge. or means because you moved jurisdiction, now you have an increased chance of getting a more difficult judge ?
If you move the case, you get a new judge. You could get a good judge or a bad judge; it is not predictable. Some courts have more good judges or more bad judges, but that is not easy to know, and so basically, in my opinion, it is rarely worth moving in the hope of getting a better judge (though if you have a judge who is very bad to start with, moving may make sense, as you have little to lose). Take care, Jason
Thanks :)…I guess I will just stay where I am then.
Hello Jason:
I am waiting for asylum interview 6 years and I need to renew my EAD. The instruction shows like I need to do biometric again (specially for renewal EAD) and I should to pay add fee $85. I am not sure if I understood this correct. Could you please clarify if it is a mandatory to go to biometric service center again (1st time I went when I applied for asylum)? If yes, should I schedule this procedure or I can just walk-in? And last question how early should I send the documents for renewal EAD till expiration day? Thank you so much for your help!
I think unless you are a member of ASAP or Casa de Maryland, you have to pay the biometric fee (in addition to the I-765 fee). You can find info about joining one of those groups in a post I did on September 23, 2020. Once you send in the application, if USCIS needs biometrics, they will send you an appointment letter. Take care, Jason
Hi Jason,
I m US Citizen.i applied I 130 for my younger brother 8 years ago in 2013.unfortunately USCIS denied the case this week so what could be further options In my case?? I haven’t receive denial letter yet.just checked online.
Regards
That is a bit unusual. Normally, they send you a request for evidence before they deny. You will have to wait for the paper decision and then see what it says. After that, you can decide how to proceed. Take care, Jason
Hi Jason,
There was a Trump administration’s guidance (I think from sometime in 2018) permitting the issuance of denials of petitions or applications without first issuing an RFE. USCIS just reverted back it a few days ago: “The new USCIS guidance reinstates a 2013 policy instructing officers to issue RFEs or notices of intent to deny”
That’s good – There was a recent announcement about new rulemaking and it sounds like a bunch of Trump-era stuff will be rolled back soon, I hope. Take care, Jason
Hi,
Has anyone applied for a travel document recently? What is the timeline? The notice said that I don’t need to do biometrics, does anyone know what’s the timeline from receiving the receipt and not needing a biometric?
My dad is sick and I need to go see him as soon as possible:( haven’t seen him in 6 years!
Both the Refugee Travel Document (for people with asylum) and Advance Parole (for affirmative asylum applicants) probably take 4 to 7 months for most cases. You can try to expedite such cases – I wrote about that on January 29, 2020. Take care, Jason
Here is my timeline for the RTD;
Submitted application on Oct 01
Received RTD on June 04
During these 8 months I called couple of times and was told it is still in process at Nebraska Office but the RTD came from MISSOURI. LOL! good luck.
Jason
What is going on in the asylum office. Are they interviewing all new cases? How are they dealing with covid? Have they eased the restrictions a bit? Can attorneys attend the interview in person with their clients now?
I do not know about all offices, but our office is doing some LIFO cases and a few expedites (I had an expedited interview today and I have a LIFO case later this week). Each person is in a separate room and we are connected by video and phone. It is not ideal, but it mostly works ok. Take care, Jason
I would very much want to pursue PD to be honest. There is nothing more important than safely pursue medical process and I wake up everyday grateful that I am in this country and not in my country of origin.
Hi guys
We just applied for PD
What is the respond timeline?
Thank you
I have filed a few PD requests. In a few cases, we had responses within a week or two. In other cases, we are still waiting, but it has been less than a month (so far). Take care, Jason
Thank you Jason