U Visa Bona Fide Determination EAD: Getting a Work Permit Before Approval in 2026
If you filed a U visa petition, the first real answer from USCIS is usually not an approval. It is a U visa bona fide determination, the screening step that can bring a four-year work permit, the BFD EAD, plus deferred action long before a visa number opens under the annual cap. This guide covers that step: what USCIS checks, what the U visa bona fide determination EAD is, who in your family qualifies, and what can take it away.
As of September 27, 2026, the process is still in effect, and the Form I-918 page says USCIS will "continue to conduct bona fide determination reviews." What changed sits around it: a faster track suspended in 2025, a May 2026 deferred action policy, a June 2026 proposed rule on deferred action work permits, and a May 2026 court order limiting ICE.
Where the Bona Fide Determination Stands in September 2026
INA 214(p)(6), 8 USC 1184(p)(6), lets DHS grant work authorization to anyone with "a pending, bona fide application" for U status. USCIS built its process on that sentence on June 14, 2021, and updated its family member procedure on August 11, 2023. Since then the Policy Manual chapter (Volume 3, Part C, Chapter 5) has had only a February 26, 2025 terminology update, and it was marked current as of September 23, 2026.
Two things did change. USCIS ran a streamlined bona fide review for some petitions from late 2023 and suspended it as of February 4, 2025; standard review continues, generally in filing date order. And on May 8, 2026, USCIS issued new deferred action guidance that calls deferred action "an extraordinary use of prosecutorial discretion." It does not repeal the BFD, and it names a pending bona fide U petition as the threshold for deferred action here, but it says USCIS may terminate deferred action at any time, generally through a Notice to Appear, and that U petitioners "may be subject to removal" depending on the facts. A BFD is now a discretionary grant USCIS keeps reviewing, not a formality.
Two 2026 Developments: A Proposed EAD Rule and ICWC v. Noem
On June 5, 2026, DHS proposed a rule on discretionary employment authorization, 91 FR 34352, which reaches category (c)(14), the deferred action category used for BFD and waiting list EADs. As drafted, USCIS generally would not grant a discretionary EAD to anyone arrested for, charged with, or convicted of any criminal act, including cases resolved by a diversion agreement that imposes a penalty and records later sealed or expunged, unless "significant countervailing public interests" exist, which may include helping law enforcement. Clients who completed ARD, Pennsylvania's Accelerated Rehabilitative Disposition program, should watch this closely. Renewal applicants would need to work for, or be seeking work with, an E-Verify employer in good standing, and DHS proposes limiting these permits to no more than one year. The proposal carves DACA and T visa applicants out of its (c)(14) changes but not U petitioners. Comments closed August 4, 2026; as of September 27, 2026 we have found no final rule, so today's four-year rules still apply.
In Immigration Center for Women and Children v. Noem, No. 2:25-cv-09848 (C.D. Cal.), survivors challenged a January 30, 2025 ICE directive and related practices. On May 20, 2026, the court provisionally certified three nationwide classes and, under 5 USC 705, stayed, for the plaintiffs and class members, the directive and the "De Facto Revocation Policy," under which ICE did not honor deferred action USCIS had granted to U and T petitioners. The case does not change how USCIS decides a BFD; it limits what ICE may do afterward. The government appealed (Ninth Circuit No. 26-3961), and on July 27, 2026 the court refused to pause its order while the Solicitor General decides whether to pursue that appeal, so check for appellate developments.
What Makes a U Visa Petition "Bona Fide"
A principal petition is bona fide when four things are true: the I-918 was properly filed with all required initial evidence except the Form I-192 waiver, which is not decided at this stage; it includes a complete Supplement B submitted within six months of the certifier's signature; it includes a personal statement describing the victimization; and USCIS has the results of biometrics-based background checks. Our guides to the Supplement B certification in Pennsylvania and the full list of qualifying crimes cover that groundwork.
USCIS then weighs national security, public safety, and other discretionary factors. Where a petitioner has been arrested for or convicted of offenses such as murder, rape, sexual abuse, trafficking, aggravated assault, or drug distribution, USCIS generally withholds the BFD EAD and moves to a full waiting list review. Because arrest records are not examined in depth at this stage, an arrest alone can divert a case; the waiting list review is where mitigating evidence gets weighed.
The U Visa Bona Fide Determination EAD: Category (c)(14), Four Years, No Fee
The card issues under 8 CFR 274a.12(c)(14). USCIS grants it together with deferred action for four years, starting on the card's issuance date, and the Form I-918 page says you "cannot get either alone." U petitioners are presumed to have economic necessity, so no I-765 worksheet is required. File Form I-765 with the I-918 if possible, since a pending application is used to issue the card once the BFD is made; otherwise USCIS mails a notice inviting you to file, and its instructions control.
As of September 2026 there is no fee. 8 CFR 106.3(b)(5) exempts U petitioners from the I-765 fee, and the I-918 page says no fee or fee waiver is needed to file or renew. The 2025 reconciliation law, H.R. 1 (Public Law 119-21), created new non-waivable EAD fees, but USCIS applies them only to categories (a)(4), (a)(12), (c)(8), (c)(11), (c)(19), and (c)(34), covering asylum, parole, and TPS, and not category (c)(14). DHS's April 29, 2026 H.R. 1 rule, 91 FR 22952, left the part 106 exemptions unchanged. One Policy Manual paragraph still mentions a renewal fee or waiver, so we confirm the fee schedule before each filing.
Filed a U visa petition and still waiting on a work permit?
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Family Members Come Second, and Separately
Qualifying family members in the United States can receive their own BFD EAD and deferred action, but only after the principal receives a BFD, and never automatically. Each Supplement A must independently be properly filed, show credible evidence of the relationship, and have its own background check results, and each relative faces the same discretionary screen. A relative who falls short gets a full review, usually with a request for evidence; if the problem is not resolved, the Supplement A is decided with the principal's petition at final adjudication, and the relative is waitlisted only if the principal is. Relatives living abroad are not considered for a BFD. Our realistic U visa timeline follows derivatives through to the green card.
When USCIS Skips the BFD and Moves to Waiting List Review
Not receiving a BFD EAD is not a denial of your I-918 or I-765 and not a final agency action, so there is no appeal, motion, or reapplication. USCIS instead issues a request for evidence or notice of intent to deny aimed at waiting list eligibility.
Because INA 214(p)(2) caps U-1 status at 10,000 principals a year, 8 CFR 214.14(d)(2) requires USCIS to place eligible petitioners held back "due solely to the cap" on a waiting list, oldest filings first, and it "will grant deferred action or parole" to them and their qualifying family members. USCIS says waitlisted petitioners also receive four-year EADs, and under 214.14(d)(3) no unlawful presence accrues on the list. A petitioner who cannot be waitlisted is denied, so that response matters enormously.
Renewals, Revocation, and What a BFD Means in Philadelphia
If your petition is still pending near the end of four years, renew. USCIS recommends filing up to 180 days before expiration, and (c)(14) cards did not qualify for the automatic extension DHS ended for renewals filed on or after October 30, 2025. Each renewal is a fresh discretionary decision. Under 8 CFR 274a.14(b), USCIS may revoke the card and end deferred action if a security concern arises, the grant is no longer warranted or was issued in error, or the certifier withdraws the Supplement B. The EAD is not a travel document, and after the Board of Immigration Appeals' August 13, 2026 decision in Matter of Delcarmen-Lara, 29 I&N Dec. 830, advance parole travel no longer avoids the unlawful presence bar, so talk to counsel before any trip.
A BFD also counts as a prima facie case for approval under INA 237(d)(1), which matters when asking ICE for a stay of removal. For Lehigh Valley clients with cases at the Philadelphia Immigration Court, 900 Market Street, a BFD notice is a useful exhibit when asking ICE counsel to join a motion to terminate under 8 CFR 214.14(c)(1)(i). Our humanitarian relief and removal defense practice coordinates those steps.
Frequently Asked Questions
Is there a fee for the BFD work permit or its renewal in 2026?
No. As of September 2026, 8 CFR 106.3(b)(5) exempts U petitioners from the I-765 fee, and the H.R. 1 work permit fees reach only asylum, parole, and TPS categories, not (c)(14). Check the fee schedule on the day you file.
How will I know whether USCIS made a bona fide determination?
You will receive either a BFD notice, with a four-year EAD if your I-765 was on file, or a request for evidence saying no BFD EAD will issue and your case is moving to waiting list review. The USCIS processing time for Form I-918 measures receipt to one of those notices, not to final approval.
Does a BFD protect me from ICE detention or removal?
It helps, but it is not a guarantee. USCIS can terminate deferred action, and it says U petitioners may be subject to removal. On May 20, 2026, the court in ICWC v. Noem stayed ICE's policy of not honoring USCIS-granted deferred action for members of the certified class, while that order remains in place.
What happens if USCIS decides I will not receive a BFD EAD?
Your petition is not denied. USCIS sends a request for evidence on waiting list eligibility, and placement on the list brings deferred action or parole and, under current practice, a four-year EAD. There is no appeal of the BFD decision, so that response is where the case is won or lost.
Talk to a Lehigh Valley U Visa Attorney About Your BFD
A U visa bona fide determination is the first protection many petitioners receive, and in 2026 it pays to build the petition to clear it the first time. Lehigh Valley Immigration Law LLC prepares U visa petitions, I-765 filings, and waiting list responses across Pennsylvania, New Jersey, and New York, with a free bilingual consultation by phone or Google Meet. Call (484) 763-4984 or contact us online. No outcome can be guaranteed.
This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Immigration law changes frequently; consult a licensed immigration attorney about your specific situation.