T Visas provide extremely valuable benefits to certain trafficking victims and accompanying immediate family members. T status admits T Visa holders to the United States for a duration of four years. While on T status, status-holders are authorized to work in the United States. After three years, or after the Attorney General certifies that the trafficking investigation or prosecution is complete (whichever comes first), T Visa beneficiaries are eligible to apply for adjustment of status from nonimmigrant T status to lawful permanent resident (LPR) status. This article will explore the benefits of T status, maintaining T status, and the process for applying for adjustment of status. To learn the rules for obtaining T Visas, please follow this link for our detailed article on that subject.
T-1 beneficiaries are admitted to the United States for up to 4 years on T status.1 There are very limited scenarios in which T-1 status may be extended beyond the maximum 4 year period:
- Law enforcement officials certify that the T-1 Visa beneficiary's continued presence is necessary for the investigation or prosecution of the trafficking offense.2 In this case, the extension will be granted provided that the T-1 Visa beneficiary properly applies.
- The Department of Homeland Security has discretion to grant an extension for “exceptional circumstances.” Generally, this would occur if a T-1 beneficiary's status is set to expire and an immediate family member who was approved for a derivative T Visa had not yet been able to enter the United States (see the section on adjustment of status for explanation that derivative T Visa holders may not adjust if the principal is no longer on T status).3 In this scenario, it is incumbent on the T-1 Visa beneficiary to demonstrate that the family member was prevented from entering the United States in a timely due to exceptional circumstances.4
In order to receive one of those two extensions, the T-1 Visa beneficiary must file a Form I-539, Application to Extend/Change Nonimmigrant Status.5 The T-1 Visa beneficiary should note on the Form I-539 if he or she is requesting an extension for derivatives as well.6 In this case, the extension will be valid for up to 1 year from the date the T status would have ended.7 Employment authorization will continue for the 1-year extension.8
If a T-1 Visa beneficiary applied for adjustment of status in a timely manner, the T-1 status will be automatically extended for the pendency of the adjustment petition without the requirement that the T-1 Visa beneficiary file a Form I-539.9 However, derivative T Visa holders who have not yet filed for adjustment of status will not have their statuses automatically extended in this scenario.10
In the case of the death of the principal beneficiary, any derivative T beneficiaries (they must already have T status) may maintain status and after 3 years, if qualified, be eligible to apply for adjustment of status.11
T status may be revoked before 4 years under the following circumstances pursuant to regulations found in 8 C.F.R. § 214.11(s)(1):
- The T Visa violated the terms of his or her T status; or
- The approval of the T application is found to have been in error; or
- A T-2 (spouse of principal) beneficiary is divorced from the principal beneficiary; or
- The law enforcement agency investigating or prosecuting the trafficking offense notifies United States Citizenship and Immigration Services (USCIS) that the T-1 Visa beneficiary has refused reasonable requests for assistance; or
- The law enforcement agency that filed a I-914, Supplement B, withdraws its endorsement or disavows its contents in writing.
Pursuant to 8 C.F.R. § 214.11(s)(4), (5), in the case of revocation, the T Visa will have 15 days to lodge an appeal. If the principal T-1 Visa is ultimately revoked, any associated derivative T Visas will be automatically revoked.
Pursuant to 8 C.F.R. 214.11(t), USCIS may commence removal proceedings against a T Visa beneficiary while he or she is still on T status for conduct occurring after being granted a T Visa, or for information that was not disclosed or misrepresented by the T-1 Visa beneficiary during the T Visa application process.
All T Visa beneficiaries may obtain employment authorization along with their T status.12 In addition, persons granted T status are eligible to receive the same federally funded benefits that refugees are eligible for.13 Pursuant to 8 U.S.C. § 1105(b)(1)(B), this includes available federally-run non-entitlement programs.14 Federal student aid is also available to T Visa beneficiaries.15
Pursuant to INA §§ 245(l)(4)-(5), up to 5,000 T-1 beneficiaries may have their status adjusted each fiscal year. Adjustment of status for derivative T beneficiaries is not cap-subject. If an otherwise eligible T-1 Visa beneficiary's application for adjustment of status is pending when the annual cap is reached, he or she will be placed on a waiting list until USCIS may adjust his or her status.16 In order to be eligible for adjustment of status, a T-1 Visa beneficiary must:
- Have been continuously physically present in the United States for 3 years while on T status, or physically present for the duration of the investigation and prosecution of the trafficking case through its completion, whichever is less; and
- Be admissible or granted a waiver of inadmissibility; and
- Have maintained good moral character (GMC) from the date he or she was granted a T-1 Visa to the date of the grant of adjustment of status; and
- Have complied with all reasonable requests for assistance in the trafficking investigation or prosecution or would suffer extreme hardship involving unusual and severe harm if removed.17
Pursuant to 8 C.F.R. § 245.23(a)(3), in order to meet the 3 years of continuous physical presence requirement, a T-1 Visa beneficiary may not depart the United States for any single period in excess of 90 days or 180 days in the aggregate. This requirement is waived if a law enforcement agency certifies that the absence was required in order to assist in the trafficking investigation or prosecution or that the absence was otherwise justified.18 If the Attorney General determines that the investigation or prosecution of the trafficking offense concluded prior to 3 years, the physical presence requirement applies only for that shorter period.
A T-1 Visa beneficiary must be admissible to the United States in order to be granted adjustment of status (this section also applies for derivative T Visa applicants). If the applicant requires a waiver of a ground of inadmissibility, he or she must file a Form I-601, Application for Waiver of Grounds of Inadmissibility.19 20
The applicant must maintain GMC for the duration of T status until the adjustment of status process is completed. This is important for many sex trafficking victims who were forced to engage in prostitution or commercialized vice prior to being granted T Visas.21 Applicants under 14 years of age are generally presumed to be of GMC unless there is evidence to the contrary.22 Applicants may provide local police clearances and background checks to satisfy the GMC requirement.23 To learn more about acts that may lead to conditional and permanent bars to GMC, please follow the highlighted terms in this sentence to see our articles on those subjects.
Applicants who are not exempt on account or age of trauma generally must demonstrate that they complied with all reasonable requests for assistance in the investigation or prosecution of their trafficking cases. Otherwise eligible applicants who are exempt from having to provide reasonable requests for assistance will be eligible for adjustment of status unless there is another reason why they should not be, as will applicants who can demonstrate “extreme hardship involving unusual and severe harm upon removal.”24
Applicants who were not exempt on account of age or trauma and failed to comply with reasonable requests for assistance may demonstrate “extreme hardship involving unusual and severe harm upon removal” in order to be eligible to adjust status.25 Pursuant to 8 C.F.R. 245.23(f)(2), the basis for demonstrating the requisite hardship for eligibility to adjust status is the same as for applying for a T Visa. Each determination of whether the requisite hardship exists will be made on a case-by-case basis. If the hardship claim is the same as the claim made in the original T-1 Visa application, the T-1 Visa beneficiary may provide evidence that the hardship is ongoing. However, USCIS is not necessarily bound by its previous determination that the hardship claim met the requisite standard.
Derivative T beneficiaries may be eligible to adjust status if:
- The principal has applied for adjustment of status and is qualified; and
- He or she was lawfully admitted into the United States and continues to maintain status; and
- He or she is admissible or was granted a waiver of inadmissibility; and
- The principal did not adjust from T status or lose T status before the derivative applied for adjustment of status.26
In the event that the principal dies, a derivative T Visa may apply for adjustment of status if he or she is still on T status, and both demonstrates that he or she resided in the United States at the time of the principal's death and that he or she continues to reside in the United States when applying for adjustment of status.27
Pursuant to 8 C.F.R. § 245.23(i), if the principal's adjustment of status application is denied, the adjustment applications for all associated derivative T beneficiaries will also be denied. Waivers may be granted on normally waivable grounds under INA § 212(h) or INA § 212(i), when USCIS determines it is in the national interest to grant a waiver under health grounds found in INA §§ 212(a)(1), or when USCIS finds with regard to any other non-waivable ground28 of inadmissibility that the action was related to the applicant's victimization as a trafficking victim and granting a waiver is in the national interest.29
In order to apply for adjustment of status, a T Visa must file:
- Form I-797, Notice of Action (provided when T status was approved); and
- Form I-94, Arrival/Departure Record; and
- Affidavit from applicant with passport pages and other evidence to demonstrate continuous physical presence for the required amount of time; and
- Evidence of GMC while on T Status (e.g., local police clearances and background checks to satisfy the GMC requirement);31 and
- (If applicable for T-1) Evidence of compliance with all reasonable requests for assistance from law enforcement; or
- (For T-1) Evidence that applicant would suffer “extreme hardship involving unusual and severe harm upon removal.”32
While the application is pending, the applicant may obtain employment authorization, and be granted advance parole to leave the United States.33
If the application for adjustment is denied, the applicant may appeal to the Administrative Appeals Office.34 As noted earlier, the denial of the principal's adjustment of status application results in the automatic denial of any adjustment applications by associated derivatives.35
All T Visa beneficiaries seeking adjustment of status are well-advised to consult with an experienced immigration attorney, and those with adverse factors weighing against approval can especially use the expertise of an experienced immigration attorney.
For derivative T beneficiaries, it is recommended that they apply for adjustment of status along with the principal, since any automatic extensions the principal receives for pending adjustment of status applications do not automatically extend derivative T status, and because after the principal is granted adjustment of status, derivative T beneficiaries lose their T status. If the principal has a family member who was approved for a derivative T Visa but has not yet been able to enter the United States, and the principal's T-1 status is slated to expire before the family member can enter the United States, the principal should apply for extension of status and include all derivatives in the request so that the family member may enter the United States and apply for adjustment of status along with the principal.
Principals who are not otherwise exempt should cooperate with all requests for assistance from law enforcement in order to greatly increase the likelihood that they will be found eligible for adjustment of status. Principals should always be cognizant of the continuous presence requirement and obtain approval from the law enforcement agency they are working with for any absences that may otherwise threaten satisfaction of the continuous physical presence requirement.
- I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1047, citing INA § 214(o)(7); 8 C.F.R. § 214.11(p)(1); AFM 39.2(g)(2)-(3)
- 8 C.F.R. § 214.11(p)(1); Kurzban citing Policy Memorandum, USCIS, Extension of Status for T and U Nonimmigrants, PM-602-0032.1 (Apr. 19, 2011), published on AILA InfoNet at Doc. No. 11042934 at 5.
- Kurzban 1047, citing Policy Memorandum, USCIS, Extension of Status for T and U Nonimmigrants, PM-602-0032.1 (Apr. 19, 2011), published on AILA InfoNet at Doc. No. 11042934 at 5.
- Follow the link for the USCIS page on the Form I-539
- 8 C.F.R. § 214.11(p)(1); Kurzban citing INA § 214(o)(7); AFM 39.2(g)(2)-(3); Policy Memorandum, USCIS, Extension of Status for T and U Nonimmigrants, PM-602-0032.1 (Apr. 19, 2011), published on AILA InfoNet at Doc. No. 11042934 at 5.
- Kurzban 1046 citing AFM 10.21(c)(4)
- Kurzban 1047 citing INA § 101(i)(2); 8 C.F.R. § 214.11(l)(4).
- Kurzban 1047 citing 67 FR 4784, 4785, supra
- 22 U.S.C. §§ 1105(b)(1)(A)-(B)
- Kurzban 1047
- Kurzban 1047, citing 8 C.F.R. § 245.23(k)(2)
- Kurzban 1048, citing for the list, INA § 245(l); 8 C.F.R. § 214.11(p)(2); 8 C.F.R. § 245.23(a); AFM 23.5(n)
- Kurzban 1048, citing AFM 23.5(n)(1)(B); Policy Memo, USCIS, PM-602-0004 (July 21, 2010), published on AILA InfoNet at Doc No. 11042934
- Follow link for USCIS page on Form I-601
- Kurzban 1065, citing 8 C.F.R. § 212.18(d)
- Kurzban 1049, citing INA §212(a)(2)(D) for provisions regarding prostitution or commercialized vice; 73 FR at 75542.
- Kurzban 1049, citing 8 C.F.R. § 245.23(g)(4)
- Kurzban 1049, citing 8 C.F.R. § 245.23(g)(1); 73 FR at 75545
- Kurzban 1049, citing AFM 23.5(n)(1)(D); INA § 245 (l)(1)(C)(ii), (iii)
- Kurzban 1048, citing for the list, 8 C.F.R. § 245.23(b); Policy Memo, USCIS, Extension of Status for T and U Nonimmigrants, PM-602-32.1 (Apr. 19, 2011), published on AILA INfoNet at Doc. No. 11042934 at p.7.
- Kurzban 1048, citing INA § 204(l)(2)(E)
- Kurzban 1049, citing INA §§212(a)(3), (10)(C), and (1)(E) for non-waivable grounds of inadmissibility
- Kurzban 1049, citing 8 C.F.R. § 212.18(b)
- Follow link for USCIS page on the I-485
- Kurzban 1049, citing 8 C.F.R. § 245.23(g)(1); 73 FR at 75545
- Kurzban 1049-50, citing for the list, 8 C.F.R. § 245.23(e)
- Kurzban 1050, citing 8 C.F.R. § 274a.12(c)(9); 73 FR 75551 [for employment authorization]; 8 C.F.R. §245.23(j); 73 FR at 75545-46, 75551 [for advance parole]
- Kurzban 1050, citing 8 C.F.R. § 245.23(i)
Resources and materials:
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1046-50, Print. Treatises & Primers.