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Starting March 17, 2015, the Vermont Service Center (which handles all U visa applications) has started issuing 2 year work authorization to any eligible U visa petitioner who includes an I-765 application (Application for Employment Authorization) with their U visa petition.
How the new work authorization rules work.
Victims of certain crimes may be eligible to apply for the U nonimmigrant status, otherwise known as the U visa. The U visa is reserved for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. Unfortunately, getting a U-visa can take a very long time, and applicants have struggled to support themselves while they wait for approval. But USCIS has recently announced a policy that will help applicants get work authorization sooner.
The number of U visas available each year is limited to 10,000. Although the cap is reached each year, The United States Citizenship and Immigration Services (USCIS) will create a waiting list for any elgible U visa petitioner or derivative petitioner. Petitioners placed on the waiting list will be granted deferred action and are eligible to apply for work authorization while waiting for additional U visas to become available.
Under the new guidance, USCIS advises that applicants submit two Applications for Employment Authorization (I-765) with any U visa petition. The first application would give the U visa petitioner work authorization for two years under the deferred action status. The second application would give work authorization to the U visa petitioner for the duration of the U visa, once a U visa becomes available.
Although there is a fee associated with the Application for Employment Authorization under deferred action status, petitioners can also submit form I-912 (Request for Fee Waiver) to ask for the fee to be waived.
How to apply for work authorization under the new rules
After USCIS announced the new U-Visa work authorization rules, there has been confusion about how to apply. One reason is that the I-765 work authorization application requires you to list the legal basis for your application. Here is what USCIS says you should do.
- Principal applicants. A principal applicant is the U-Visa petitioner who was the crime victim. A principal should file one I-765 application, listing the (c)(14) category (deferred action) as the basis.
- Derivative applicants. A derivative applicant is a family member of the crime victim. Derivative applicants should submit two I-765 applications. One I-765 application should like the (c)(14) (deferred action) and one should list the (a)(20) category (which is for approved U-Visa derivatives.
Why are the procedures different for principal and derivative applicants? Because the legal authority for their work authorizations are different. For the temporary work authorization, both qualify under the deferred action category, (c)(14). But after the U-Visa is actually approved, the authorization is different. Principal applicants automatically receive work authorization, whereas derivatives have to apply under category (a)(20).
I already filed my I-765… should I send another?
What if you filed your I-765 before March 2015, and didn’t list category (c)(14) (deferred action)? If you are a principal applicant, you should not need to file a new I-765. USCIS has said that if you already filed an I-765 with your U-Visa petition then they will convert that application to a request for the new temporary work authorization. If you didn’t file any I-765 then you should submit a I-765, listing category (c)(14).
If you are a derivative applicant it may be different. USCIS has said that if a derivative has already filed and I-765 then that will be considered an application for the new, temporary work authorization under the deferred action category. But because of how USCIS assigns work authorization you would need to file a second I-765 application after receiving your temporary work authorization. This second application should list (a)(20) as the category.
Is there a filing fee for the I-765?
Yes, there is a filing fee for I-765 applications based on category (c)(14), deferred action. However, you can apply for a fee waiver using this form. USCIS has said that it will be generous granting such requests.
Updated February 22, 2016