Immigrants' Rights Update, Vol. 16, No. 1, February 28, 2002

The U.S. Dept. of Justice has issued interim regulations implementing the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), which provides a way for people who have been trafficked into the United States for illegal purposes to obtain temporary lawful tatus, provided they cooperate with any reasonable requests for assistance made by law enforcement officials. The interim rule establishes the procedure to apply for T status and the standards under which eligibility will be determined. Individuals may adjust to lawful permanent resident status after they have been in T nonimmigrant status for three years; the INS will separately issue regulations concerning the process for this adjustment of status.

Eligibility. Non–U.S. citizens who are admissible to the U.S. may be classified by the Immigration and Naturalization Service as T-1 nonimmigrants if they demonstrate that they

The regulation requires that in order to be granted T visas, individuals must have had contact with a law enforcement agency (LEA), either by reporting a crime or by responding to inquiries from an LEA. The regulation also restricts the definition of an LEA to include only federal law enforcement or prosecuting agencies authorized to investigate or prosecute trafficking crimes. Thus, state or local law enforcement agencies conducting a criminal investigation would have to contact a federal agency in order to be able to assist a victim to obtain a T visa.

The statute provides that a "severe form of trafficking in persons" includes trafficking for the purpose of obtaining or providing a person to engage in a commercial sex act in which the act is induced by force, fraud, or coercion or which is performed by a trafficked person who is younger than 18 years of age. It also includes recruiting a person through force, fraud, or coercion for the purpose of subjecting the person to involuntary servitude, peonage, debt bondage, or slavery—all of which are defined specifically in the new rule. Under the regulations, victims must have been subjected to some form of force, fraud, or coercion to provide labor or services or to engage in a commercial sex act, except in the case of victims younger than 18 years of age who were induced to perform a commercial sex act.

Application Procedure. Applicants for T visas must file the new Form I-914 (Application for T Nonimmigrant Status) with the INS's Vermont Service Center. The application packet, including attachments and instructions, is 17 pages long. A complete application includes the following:

If possible, the applicant should also submit a "law enforcement agency endorsement" ("LEA endorsement") or evidence that the INS has arranged for the applicant's continued presence in the United States. The endorsement is not mandatory, but it constitutes primary evidence that the applicant is a victim of a severe form of trafficking and has not unreasonably refused to assist an investigation or prosecution. An LEA endorsement is made on Supplement B to Form I-914 and consists of a declaration made by an officer of a federal law enforcement agency that investigates or prosecutes person-trafficking crimes. However, neither an LEA endorsement nor evidence of INS-arranged continued presence is necessary if the applicant is under 18 years of age. The application must include the applicant's statement describing how he or she was victimized by traffickers.

To be eligible for a T visa, a person who was the victim of trafficking before Oct. 28, 2000 (the date the VTVPA became law) must apply for the visa within one year of Jan. 31, 2002. A person who was a child (unmarried and under 21 years of age) when he or she was victimized must file within one year of his or her twenty-first birthday or within one year of Jan. 31, 2002, whichever comes later. For filing purposes, the victimization will be deemed to have occurred on the last day in which an act constituting an element of the trafficking act occurred. The applications of persons who miss their deadline will not be considered unless they provide evidence that exceptional circumstances prevented them from filing on time—e.g., that they suffered severe psychological or physical trauma that delayed their application.

All applicants must be fingerprinted for criminal background checks. After filing their application, they will be scheduled for a fingerprinting appointment, and they may be required to undergo a personal interview with an INS examiner.

Persons in pending immigration proceedings who intend to apply for a T visa must notify the INS of their intention. If the INS counsel concurs, a trafficking victim may request that proceedings be administratively closed or that a motion to reopen or reconsider be indefinitely continued to allow him or her to file an application. If the individual appears to be eligible for a T visa, the immigration judge or the Board of Immigration Appeals (whoever has jurisdiction) may grant the request to close the matter or continue the motion indefinitely. If the INS later finds the individual to be ineligible for a T visa, the INS may recommence proceedings by filing a motion to recalendar. If the individual is in INS custody, the INS may continue to detain him or her until it renders a decision on the T visa application.

Individuals with final orders of removal are not precluded from filing T visa applications, but filing a T visa application has no effect on the execution of a final order. An applicant may request a stay of removal under 8 C.F.R. section 241.6(a), and if the INS determines that the person's application is bona fide, it will automatically stay the execution of the order. Such stay will remain in effect until a final decision is made on the T visa application. However, the INS will not count the period of time that the stay is in effect in determining whether the individual's continued detention under a final order is reasonable under the standards of 8 C.F.R. section 241.4.

If the T visa application is denied, the stay is lifted as of the date of the denial, regardless of any appeal. If, on the other hand, the INS grants the application, the final order is cancelled as of the date of the approval.

Physical Presence. An application for a T visa must show that the applicant is physically present in the United States, American Samoa, the Mariana Islands, or a port of entry on account of having been the victim of a severe form of trafficking in persons. Persons may be considered to be physically present on account of trafficking if they were the victims of trafficking in the past and their continued presence is directly related to trafficking. Trafficking victims who have left the U.S. voluntarily after having been trafficked and then have returned are not considered to be physically present on account of trafficking unless they returned as victims of a new incidence of trafficking.

The regulations require that trafficking victims who escaped the trafficking situation before a law enforcement agency got involved show that they did not have a clear chance to leave the U.S. in the interim. For example, they must show that psychological trauma, or injury, or lack of resources, or lack of access to travel documents prevented them from leaving the U.S. after they escaped from the trafficking situation.

Evidence of Compliance with LEA Requests for Assistance. An LEA endorsement describing how the T visa applicant assisted the LEA in investigating or prosecuting a trafficking crime is considered primary evidence that the victim has reasonably complied with a request for assistance. Although an LEA endorsement is not a requirement, the INS strongly recommends that applicants obtain one. Applicants who do not submit an endorsement must submit an explanation describing their attempts to obtain one and why their request was refused. If the INS determines that an applicant has not complied with a reasonable request for assistance from an LEA, the application will be denied or an approved application will be revoked.

Credible secondary evidence and affidavits may be submitted with the T visa application to explain why the applicant could not submit an LEA endorsement. Secondary evidence must include an original statement by the applicant showing why an LEA endorsement is unavailable. Statements or evidence submitted by the applicant must show (1) that an LEA that is charged with detecting, investigating, or prosecuting trafficking crimes knows about the trafficking situation the applicant was involved with and (2) that the applicant complied with any reasonable request for assistance made by the LEA. If the applicant did not report the trafficking crime at the time it occurred, he or she must explain why. Applicants who have never had contact with an LEA are not eligible for a T visa.

T visa applicants who are under 15 years of age need not have assisted with an investigation or prosecution in order to be eligible for lawful status. However, such applicants must provide evidence of their age. Primary evidence of age includes a birth certificate, passport, or certified medical opinion. Secondary evidence includes documents described in 8 C.F.R. section 103.2(6)(2)(i), such as church or school records.

Evidence of Hardship if Removed. To qualify for a T-1 visa, applicants must show that they would face "extreme hardship involving unusual and severe harm" if they were removed from the United States. This standard is higher than that required of applicants for suspension of deportation. According to the new rule, "A finding of extreme hardship involving unusual and severe harm may not be based upon current or future economic detriment, or the lack of, or disruption to, social or economic opportunities." In determining whether the applicant would suffer extreme hardship, the INS must take into account factors it has traditionally taken into account in making such determinations, plus any factors associated with the applicant's having been a victim of a severe form of trafficking in persons. The extreme hardship-related factors the INS should take into account include but are not limited to the following:

Waivers of Inadmissibility. The regulations provide that applicants for a T visa who are inadmissible are not eligible for T status unless they can obtain a waiver. INA section 212(d)(3) gives the INS general authority to waive most of the grounds of inadmissibility for nonimmigrants. In addition, INA section 212(d)(13) gives the attorney general additional authority to waive most grounds of inadmissibility for victims of trafficking where he or she finds it to be in the national interest to grant a waiver. It is to be expected that many victims of trafficking will need waivers because of the very circumstances that make them victims. With respect to the public charge ground, the supplementary information to the interim rule notes that, "[f]or the purposes of receipt of public benefits, Congress has recognized that victims of trafficking are in much the same position as refugees, and therefore has provided specific authority for the Service to exempt them from the ground of inadmissibility for aliens who are likely to become a public charge." However, rather than establishing a simpler procedure for applicants to obtain waivers of public charge and other grounds that are likely to commonly arise, the rule requires applicants who need a waiver to submit Form I-192, Application for Advance Permission to Enter as Nonimmigrant, with its $195 fee or a request for a fee waiver, at the time they file their I-914 application.

Bona Fide Application. The INS will review each newly filed T visa application to determine if it is bona fide. An application is not bona fide if the applicant is inadmissible, except where the grounds of inadmissibility fall under INA section 212(d)(13) (which gives the INS general authority to waive many grounds of inadmissibility for victims of trafficking) or if the INS has already granted a waiver on any other grounds.

Once the INS has determined that an application is bona fide, it must provide the applicant written confirmation of this. Such a determination automatically stays the execution of a final order of removal, and the stay remains in effect until the INS renders a final decision on the T visa application. The rule provides that neither an immigration judge nor the BIA has jurisdiction to adjudicate an application for a stay on the basis of a T visa application.

The supplementary information to the rule notes that once the INS has determined that an application is bona fide, adult applicants may apply to the Dept. of Health and Human Services to be certified to receive benefits and services. Applicants under 18 years of age do not need a bona fide determination or an HHS certification to receive benefits.

Decision on Application. The INS will issue a written decision granting or denying each application. If the INS grants the application, the applicant is subject to an annual cap of 5,000 T-1 visas. If no visa numbers are available at the time the application is approved, the applicant will be placed on a waiting list. While on the waiting list, the applicant will maintain the temporary immigration status that has been preventing him or her from being removed from the U.S.—e.g., deferred action status, parole, or other temporary INS-granted relief. When new T-1 visa numbers become available, the INS will issue them to applicants on the waiting list in the order in which their applications were filed. Before actually granting the visas to applicants on the waiting list, the INS may require them to undergo a new fingerprint and criminal background check.

Once applications are granted, the INS must provide the approved applicant a list of nongovernmental organizations that can assist him or her. The INS will also provide the T-1 nonimmigrant an employment authorization document (EAD).

Admission of the Principal Applicant's Family. A person who has applied for or been granted T-1 visa status may apply to have his or her immediate family members admitted to the U.S. In order to be granted derivative status, members of the principal applicant's immediate family must show that they would suffer extreme hardship if they were not allowed to accompany or join the principal applicant.

The principal applicant may apply for the admission of immediate family members by filing Form I-914 by mail with the INS. The principal may apply for derivative family members at the same time he or she applies for T-1 status, or in a separate application filed at a subsequent time. The I-914 must be accompanied by the following (for each family member seeking derivative status):

Derivative status is available for a spouse (T-2), child (T-3), or parent (T-4, where the principal applicant is a child) of a T-1 principal applicant. The family relationship must exist at the time that the application was filed and must continue to exist at the time of the family member's admission. If the principal proves he or she became a parent of a child after the application was filed, the child will be eligible to accompany or join the principal.

Applicants must show that each family member for whom derivative status is being sought, or the principal applicant him/herself, would suffer extreme hardship if the family member were not granted admission to the U.S. For family members who would follow to join the principal applicant, the hardship they face must be more severe than the hardship generally experienced by other residents of their country of origin. Factors the INS will take into account include but are not limited to the following:

Duration of the T Nonimmigrant Status. An approved applicant's T nonimmigrant status expires three years from the date the I-914 is approved, and is not renewable. Applicants must immediately notify the INS of any changes that may affect their eligibility for T nonimmigrant status. Persons in T nonimmigrant status who want to adjust to permanent residence must apply for adjustment within the 90 days immediately preceding the third anniversary of having their I-914 application approved.

Denials and Revocation. When the INS denies a T visa application, it must provide written notification of the denial—including the reasons for it-to the applicant, to any LEA that provided an endorsement, and to the U.S. Dept. of Health and Human Services. All benefits derived from having filed the application are automatically revoked when the denial is issued. If the applicant appeals the denial, it will not become final until the appeal is adjudicated.

The INS will send to a person in T nonimmigrant status a notice of intent to revoke the status of the person if any of the following apply:

An INS district director may revoke approval of T nonimmigrant status at any time, even after the validity of the status has expired. The notice of intent to revoke must be in writing and must contain a detailed statement of the grounds for revocation and notice of the 30-day time period allowed for the person to submit a rebuttal. If, after reconsidering an application, the district director revokes the approval of an application, the district director must provide the applicant with written notification of the decision that explains the specific reasons for the revocation.

If a principal application's approval is revoked, all derivative approvals are also revoked; and if derivative applications are pending when a principal application's approval is revoked, they will be denied. The interim rule takes effect on March 4, 2002. Written comments must be submitted on or before April 1, 2002.

67 Fed. Reg. 4,783-820 (Jan. 31, 2002).