The T Visa regulations allow for bona fide determination (BFD) of T visa application which would, in theory, allow for trafficking survivors to access work authorization and public benefits before the T visa is fully adjudicated. See USCIS Memo - Recommendations from CIS Ombudsman's Office (May 22, 2009)
However, in practice, we have not seen bona fide determination readily given.
As discussed in the memo above, VSC has consistently stated that the process for obtaining bona fide determination requires the full adjudication of the I-192 for waivers of inadmissibility and was a lengthy process. As a result, they have historically believed that it was more efficient to adjudicated the full T visa application rather than touch the application twice (once for bona fide determination and a second time for the full application adjudication). VSC's position on bona fide determination has been that the T Visa delays were not significant and that bona fide determination was not needed. This position has been reiterated in the T Visa Preamble regulations.
VSC has not made a formal statement about bona fide determination in almost three years and has not formally addressed if this policy has changed since the significant delays for T Visa adjudications. VSC has announced at past Freedom Network conferences that they do not have an official system allocated to expedite the T visa adjudication to provide a bona fide determination. At these conferences, VSC has stated that will take requests from the Office of Chief Counsel (OCC). But even in these circumstances, VSC has rarely granted the bona fide determinations. This may be a strategy that attorneys can take to request for bona fide determination, but there is not much more guidance on how to request bona fide determination. The only guidance that exists for bona fide determinations can be found at 8 CFR 214.11(e). There are no official mechanisms to submit formal requests for bona fide determination.
Strategy for requesting BFDs:
- Use VSC's recommended strategies for requesting BFD through OCC.
- While this strategy isn't formalized, we can assume that VSC will take these requests into consideration as it is the strategy they've advocated for us to use years.
- Request BFD through the VSC
- Since there is no mechanism to request BFD, we see no harm in requesting BFD through the VSC hotline or mailing a formal request.
If you are going to request bona fide determination, please be sure that the T application is as complete as possible, does not appear to be fraudulent (especially if there are multiple forms of relief that the applicant has applied for), and that all inadmissibilities are clearly addressed and appropriate waivers requested. If the adjudicator must request for additional evidence, the bona fide determination will most likely be denied.
Request more information through our individual technical assistance form: http://bit.ly/CASTTaForm.