T-Visas for Victims of Trafficking

T visa

 

Introduction

Congress established the T Visa category for certain victims of severe forms of human trafficking in which the victim ends up in the United States as a result of the trafficking. The T-1 Visa, for the victim, is intended both as a powerful form of relief for the victim and a potent incentive for the victim to assist (with narrow exceptions) authorities in the investigation and prosecution of dangerous human traffickers. Furthermore, certain family members of T-1 Visa beneficiaries are eligible for derivative T Visas (T-2, T-3, T-4, T-5, and T-6 Visas). This article will explain who is eligible for T Visas and the procedures for applying for T Visas. For information about the benefits of T Visas [see article], please follow the link for our article on that subject.

Victims of many other crimes subject to United States jurisdiction with information that may help authorities may be eligible for the similar U-1 Visa. For information about applying for U Visas [see article] or the benefits of U status [see article], please follow those two links for our detailed articles on those subjects.

Eligibility Requirements for T-1 Visa

Applicable Crimes

Section 101(a)(15)(T)(i)(I) of the Immigration and Nationality Act (INA) requires that any person eligible for a T-1 Visa have been a victim of a form of “severe trafficking in persons” as defined in section 7102 of the U.S. Code. The statutory requirements for something to qualify as “severe trafficking in persons” are:

When a commercial sex act is induced by force, fraud, or coercion, or in where the victim induced to perform a sex act is less than 18 years of age; or
The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.1

Note that evidence “force, fraud, and coercion” being present are not required in sex trafficking when the victim is less than 18 years of age.2

In addition to the specifically enumerated types of trafficking, INA § 101(a)(15)(T)(i)(II) requires that the trafficked person is physically present in the United States3 on account of the trafficking. The same section includes persons who are allowed entry into the United States for the purpose of their participation in the investigation or prosecution of an act of trafficking in the definition of “physically present in the United States on account of trafficking.”

Reasonable Requests for Assistance

T-1 Visas are not only intended as a form of relief for trafficking victims, but also as an incentive for trafficking victims to assist law enforcement agencies in the investigation and prosecution of the perpetrators. Accordingly, INA § 101(a)(15)(T)(i)(III)(aa) requires in most cases that a person eligible for a T-1 Visa must “have complied with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime.” However, two subsections of the same provision allow the Attorney General to exempt persons from this requirement who are unable to cooperate with requests for assistance due to physical or psychological trauma, or by virtue of being less than 18 years of age.4

For persons who are not exempt from complying with reasonable requests for assistance, “reasonableness” is defined on a case-by-case basis, and regulations require that adjudicators consider the totality of circumstances including the law enforcement and prosecutorial practices, the nature of the victimization, and the specific circumstances of the victim.5

Extreme Hardship

INA § 101(a)(15)(T)(i)(IV) requires that the trafficking victim “would suffer extreme hardship involving unusual and severe harm upon removal” from the United States.

Regulations found in 8 C.F.R. §§ 214.11(h)(i)(1)-(2) explain that United States Citizenship and Immigration Services (USCIS) interprets “extreme hardship involving unusual and severe harm upon removal” as requiring a higher burden of evidence for the applicant to demonstrate than traditional “extreme hardship [see article].” Accordingly, an applicant for a T Visa may not demonstrate the requisite hardship by demonstrating he or she would suffer a lack or disruption of social or economic opportunities due to removal.

Regulations require that the hardship showing must combine traditional extreme hardship factors along with hardship factors that are specific to the applicant's victimization. The applicable regulation lists the factors that USCIS will consider on a case-by-case basis in assessing whether a T Visa applicant meets the standard for “extreme hardship involving unusual and severe harm upon removal”:

Age and personal circumstances;
Serious physical or mental illnesses that necessitate care that the applicant could not reasonably obtain in the country he or she would be returned to;
The nature and extent of consequences suffered from the trafficking victimization;
The impact that losing access to U.S. courts and the U.S. criminal justice system would have on the applicant as applied to his or her trafficking victimization;
The reasonable expectation that the applicant would be penalized severely in his or her home country on account of his or her trafficking victimization;
The likelihood of re-victimization if the applicant is returned to his or her home country;
The likelihood that the applicant's safety would be threatened by factors that go into granting Temporary Protected Status (TPS) [see article].

The factors that USCIS may consider are not limited to the factors listed above from that regulation. The cited regulations advise applicants to list as many factors as possible that may support their claim to meeting the requisite hardship standard set forth in the statute for T Visas since, while no single factor is guaranteed to satisfy USCIS, the totality of circumstances in a given case may be found to meet the standard.

Admissibility

As with any nonimmigrant visa applicant, a T Visa applicant must be admissible to the United States. However, T Visa applicants are exempt from the public charge ground of inadmissibility [see article] and may have any ground of inadmissibility waived, save for those under INA § 212(a)(3) [security, terrorism, and related grounds], INA § 212(a)(10)(C) [international child abductors], and INA § 212(a)(10)(E) [former U.S. citizens who renounced citizenship in order to avoid U.S. taxes].6 If there is substantial reason to believe that a T Visa applicant committed an act of severe trafficking in persons, he or she will be found ineligible for a T Visa.7 If the applicant is inadmissible on public health grounds found in INA § 212(a)(1), he or she only needs to show that a waiver of inadmissibility would be in the national interest.8

Generally, a T Visa applicant will need to show that a ground of inadmissibility was the result of his or her trafficking victimization.9 Since the Attorney General has discretion to waive nearly every ground of inadmissibility if he or she finds that doing so would be in the national interest, the very nature of the T Visa category makes it more likely than not that otherwise qualified T Visa applicants will have discretion exercised in their favor with regard to waivers of inadmissibility. However, T Visa applicants must still actually apply for the waiver of inadmissibility.

Eligibility Requirements for Derivative T Visas

If the T-1 Visa applicant or beneficiary is less than 21 years of age, the following family members are eligible for derivative T Visas:

Spouse (T-2)
Children (T-3)
Parent(s) (T-4)
Sibling(s) less than 18 years of age (T-5)

If the T-1 Visa applicant or beneficiary is older than 21 years of age, the following family members are eligible for derivative T Visas:

Spouse (T-2)
Children (T-3)10

In order for family members to be eligible, their relationship to the T-1 Visa applicant or beneficiary must exist at the time the T-1 Visa applicant files his or her application pursuant to 8 C.F.R. § 214.11(o)(4).

In special cases where the T-1 Visa applicant is older than 21 years of age, he or she may bring a parent and a sibling less than 18 years of age if the law enforcement agency investigating or prosecuting the trafficking case submits a written request to DHS attesting that the parent or sibling faces a present danger of retaliation due to circumstances pertaining to the T-1 applicant's or beneficiary's trafficking victimization.11 Children of derivative T Visa beneficiaries (adult or minor) may be eligible with the same conditions (regardless of the age of the T-1 applicant or beneficiary) for T-6 Visas.12

Siblings and children applying for T Visas do not “age out” provided that their derivative T Visa applications were filed before they exceeded the age limit for the type of T Visa they were applying for.13 If the principal T Visa applicant applies before he turns 21 years of age, accompanying parents and siblings who are less than 18 years of age will be eligible for T Visas even if his or her T Visa applicant is still being adjudicated when he or she turns 21 years of age.14

A derivative T Visa applicant must obtain any waivers of inadmissibility for any inadmissibility grounds he or she may have in order to ultimately be eligible for a derivative T Visa.15

Finally, in order to be eligible for derivative T Visas, regulations found in 8 C.F.R. §§ 214.11(o)(5)(i)-(iii) require that it be demonstrated that extreme hardship would result on account of the removal of the derivative T Visa applicant either for the derivative T Visa applicant or the principal. The regulation explains that the extreme hardship determination should be made on a case-by-case basis in light of the totality of evidence, and encourages applicants to submit all evidence that may support their claims. The regulation also provides a non-exhaustive list of common factors that may support a finding of extreme hardship:

Need to provide financial support to the principal;
Need for family support of principal; or
Risk of serious harm to the family member from the perpetrators of trafficking.

Family members granted continued presence may be paroled into the United States under INA § 212(d)(5) during the pendency of their applications.16

Filing for T Visas

A T-1 Visa application [link] 17 must include:

Form I-914, Application for T Nonimmigrant Status, with
A statement describing the acts of victimization, and
Evidence to show that the applicant is eligible for a T-1 Visa (evidence that the applicant is physically present in the United States on account of trafficking, evidence that the applicant has complied with reasonable requests for assistance or that the applicant is less than 18 years of age, and evidence that the applicant meets the requisite hardship standard);
Three passport-sized photographs;
Form I-912, Application for Advance Permission to Enter as Nonimmigrant [link],18 if the applicant requires a waiver of ground of inadmissibility.19

A T-1 Visa application may include:

Form I-914, Supplement A, Application for Immediate Family Member of T-1 Recipient, if the T-1 is also applying for derivative T Visas for family members.20 In this case, each Supplement A must be supported by evidence that the family member is eligible for a derivative T Visa.21 The application may be filed concurrently with the principal T-1 application or at a later date.22
Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, is a form filled out by law enforcement supporting the claims made by the T-1 applicant and attesting that the applicant has complied with reasonable requests for assistance. Although it is not required, if the applicant is required to provide assistance in order to be eligible for a T-1 Visa, he or she will have to provide ample evidence of compliance and a compelling reason why a law enforcement endorsement could not be obtained.23

There is no fee for filing the Form I-914 itself, and the applicant may request waivers for other fees associated with the application.24 Unless a waiver is granted, however, payment of other applicable fees is necessary for the ultimate approval of the application. USCIS will schedule a mandatory appointment for fingerprinting after it receives a T Visa application.25 In most cases, USCIS will also schedule a required interview for the applicant.26 It is imperative that the applicant ensure that he or she does not miss the fingerprinting or the interview since doing so may scuttle the entire application.27 Pursuant to 8 C.F.R. § 214.11(6), USCIS should make every effort to schedule the interview at a place convenient for the applicant.

Cap on Available T Visas

Available T-1 Visas are capped at 5,000 per fiscal year.28 If an application is approvable but for the cap, USCIS may place the applicant on a waiting list until new T-1 Visas are available.29 Applicants on the waiting list may be granted deferred action, parole, or stay of removal until new T-1 Visas are available.30 There is, however, no cap on derivative T Visas, although a derivative T Visa may not be granted until the principal T-1 Visa is granted.31

Applying While in Immigration Proceedings

Applicants in removal proceedings may request a joint motion with Immigration and Customs Enforcement (ICE) to close removal proceedings if they are pending before an immigration judge or the Board of Immigration Appeals, or to defer a motion to reopen or reconsider while the application for a T Visa is pending.32 The Department of Homeland Security (DHS) may grant a stay of removal when a person files a T Visa request that is presumptively approvable.33 Upon a grant of T status, DHS may cancel a final order of removal.34 Persons in removal proceedings who may be eligible for T Visas should consult with an experienced immigration attorney who can ensure that an application is filed correctly and then make an appeal for removal proceedings to be deferred, or for a cancelation of a final order of removal.

Application Tips

For the purpose of obtaining a T-1 Visa, applicants, where applicable, should do their utmost to comply with every request for assistance from the law enforcement authorities handling the investigation or prosecution of their cases.

Applying for T Visas is often a complicated process even for applicants who obviously warrant them. It is entirely possible that a simple mistake on one of the many steps of the application process may lead to an otherwise deserving applicant being denied a T Visa. For this reason, it is always advised that applicants retain an experienced immigration attorney. An experienced immigration attorney will help an applicant make the most compelling case based on the circumstances of his or her trafficking for T Visa eligibility. In addition, the expertise of an experienced immigration attorney is especially important if the applicant requires waivers of certain grounds of inadmissibility, is unable to assist law enforcement or is otherwise having trouble obtaining a I-914, Supplement B, or is embroiled in removal proceedings.

_____________________

  1. Paraphrasing 22 U.S.C. §§ 7102(9)(A)-(B) for the list
  2. S. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1044
  3. This includes ports of entry to the United States, American Samoa, and the Commonwealth of the Northern Marian Islands
  4. Kurzban 1045, citing Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2 (Apr. 15, 2004), published on AILA InfoNet at Doc. No. 04060110 [as of 2003, children under 18 are not required to comply with any requests for assistance, even if reasonable]
  5. 8 C.F.R. § 214.11(a)
  6. Kurzban 1046 [also for description of non-waivable grounds of inadmissibility]
  7. Kurzban 1046, citing INA § 214(o)(1); 8 C.F.R. § 214.11(c)
  8. Kurzban INA § 212(d)(13)
  9. Id.
  10. Kurzban 1047, citing for the lists, INA 101(a)(15)(T)(ii); 22 C.F.R. § 41.84(a)
  11. Kurzban 1047, citing INA § 101(a)(15)(T)(ii); 9 FAM 41.84; AFM 39.2(f)(1)
  12. Id.
  13. Kurzban 1046 citing Memo, Yates, Assoc. Dir. Operations, USCIS, HQOPRD 70/6.2 (Apr. 15, 2004), published on AILA InfoNet at Doc. No. 04060110
  14. Id.
  15. 8 C.F.R § 214.11(o)(7)
  16. Kurzban 1047, citing INA § 240A(b)(6).
  17. Follow link for USCIS page on the various forms required for applying for T Visas
  18. Follow link for USCIS page on the Form I-912, Application for Advance Permission to Enter as Nonimmigrant
  19. Kurzban 1045, citing for the list, 8 C.F.R. §§ 214.11(d)(2), (f)
  20. 8 C.F.R. § 214.11(o)(2)
  21. 8 C.F.R. §§ 214.11(o)(3)(i)-(v)
  22. 8 C.F.R. § 214.11(o)(2)
  23. Kurzban 1046, citing 8 C.F.R. §§ 214.11(f)(1), (h)(2)
  24. “Questions and Answers: Victims of Human Trafficking, T Nonimmigrant Status,” USCIS, retrieved on August 4, 2015, available at http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status/questions-and-answers-victims-human-trafficking-t-nonimmigrant-status-0
  25. 8 C.F.R. § 214.11(5)
  26. 8 C.F.R. § 214.11(6)
  27. 8 C.F.R. § 214.11(7)
  28. Kurzban 1047, citing INA § 214(o)(2)
  29. Kurzban 1047, citing 8 C.F.R § 214.11(t)
  30. Kurzban 1047, citing 8 C.F.R. § 214.11(m)(2)
  31. Kurzban 1047, citing INA § 214(o)(3)
  32. Kurzban 1046, citing 8 C.F.R. § 214.11(d)(8)
  33. Kurzban 1046, citing INA § 237(d)(1); AFM 39.2(c)(1)(C)
  34. Kurzban 1046, citing 8 C.F.R. § 214.11(d)(9)

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. 1051-1055,. Print. Treatises & Primers.

“Questions and Answers: Victims of Human Trafficking, T Nonimmigrant Status,” USCIS, retrieved on August 4, 2015, available at http://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status/questions-and-answers-victims-human-trafficking-t-nonimmigrant-status-0 [link]

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T visa