Tag: T visa

USCIS UPDATES POLICY MANUAL GUIDANCE FOR T VISAS

Posted on by Joseph Caraccio

USCIS UPDATES POLICY MANUAL GUIDANCE FOR T VISAS

USCIS has revised its guidance in the USCIS Policy Manual to align with the Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status Final Rule.

This rule was published in the Federal Register on April 30, 2024. USCIS’ updated policy guidance is effective immediately and applies generally to all applications pending or applications filed after August 28, 2024 (The bona fide determination process generally applies to applications filed on or after August 28, 2024 only). No provision of the rule applies to an applicant who filed before Aug. 28, 2024, if it would make an applicant who was eligible under the previous regulations, ineligible.

About T Nonimmigrant Status

T nonimmigrant status (commonly referred to as a T visa) allows certain victims of “a severe form of trafficking in persons” to remain in the United States temporarily f they complied with any reasonable request for assistance from law enforcement in connection to the investigation and prosecution of the trafficking. Under federal law, a “severe form of trafficking in persons” is considered to be sex trafficking or labor trafficking where someone recruits or harbors a person for labor or services using force, fraud, or coercion for the purposes of involuntary servitude.

Congress created T status in October 2000 as part of the Victims of Trafficking and Violence Protection Act. Victims must show they assisted law enforcement, that they are physically present in the US, and that they would suffer extreme hardship involving unusual and severe harm if they were to be removed from the US. It is not an immigration benefit that is commonly utilized. In 2023 USCIS received a total of 8,598 applications and approved only 2,181 (denying 635 and the rest remaining unadjudicated)1. This is the most T Visa applications ever received and most approved in a single year.

By statute, no more than 5,000 principal T visas may be
granted in any fiscal year. See INA § 214(o)(2); 8 U.S.C. 1184(o)(2)

T nonimmigrant status affords victims of a severe form of trafficking in persons the ability to remain in the United States for an initial period of up to 4 years if they complied with law enforcement. T nonimmigrants are eligible for employment authorization and certain federal and state benefits and services. T nonimmigrants who qualify may also be able to adjust their status and become lawful permanent residents (get a Green Card) after a period of time.

More information about what qualifies as severe trafficking in persons is available on the USCIS website. A T Visa Law Enforcement Resource Guide is available as a PDF from the USCIS as well as more information about the benefits of T nonimmigrant status.

Bona Fide Determinations

The bona fide determination is something that USCIS had already been doing in similar U Nonimmigrant Status (U Visa) cases. USCIS issues a notice stating that although they are unable to adjudicate the application at present time due to limitations on the number of visas that may be issued each year, the Service will acknowledge that the application filed and supporting documents show that the applicant has a bona fide case (it appears to be valid under the law or it is in accordance with legal regulations).

Once deemed bona fide, the applicant may obtain an employment authorization document (EAD or work permit) under category (c)(40) and USCIS will consider whether to grant the applicant deferred action and an employment authorization document while the T nonimmigrant status application is pending. A Form I-765 Application for Employment Authorization can be submitted with a Form I-914 Application for T Nonimmigrant Status. USCIS recommends that Applicants submit the Form I-765 with the Form I-914 in the new policy guidance.

Specific Policy Guidance

Specific Policy Guidance Updates:

  • Emphasizes and expands on the “any credible evidence” provision and its applicability to applications for T nonimmigrant status;
  • Emphasizes a victim-centered and trauma-informed approach to adjudicating applications for T nonimmigrant status;
  • Explains the bona fide determination process for applicants for T nonimmigrant status;
  • Provides additional exceptions to the general rule that departures from the United States after trafficking render an applicant unable to establish physical presence on account of their trafficking;
  • Clarifies the requirement that an applicant must establish that a perpetrator engaged in a specific prohibited action “for the purpose of” inducing a commercial sex act or subjecting the applicant to involuntary servitude, peonage, debt bondage, or slavery;
  • Revises the definition of “law enforcement agency”; and
  • Explains that an applicant generally must report their trafficking to law enforcement authorities with jurisdiction to investigate their trafficking to satisfy the reporting requirement.

In addition, when an individual whose application is deemed bona fide files Form I-765, Application for Employment Authorization, under category (c)(40), we will consider whether to grant them deferred action and an Employment Authorization Document while we adjudicate their application for T nonimmigrant status. We recommend that applicants submit Form I-765 with their Form I-914, Application for T Nonimmigrant Status. Applicants for T nonimmigrant status do not need to pay a fee to file Form I-765.

  1. According to the Department of Homeland Security, Fiscal Year 2023: Immigration Applications and Petitions Made by Victims of Abuse Annual Report to Congress, April 16, 2024. Available at : https://www.uscis.gov/sites/default/files/document/reports/fy23_immigration_applications_made_by_victims_of_abuse.pdf ↩︎

Final Rule For T Nonimmigrant Status

Posted on by Joseph Caraccio

This rule is effective on Aug. 28, 2024, and applies to benefit requests that are pending or filed on or after that date.

T Nonimmigrant Status (T Visa)

A T visa is a type of visa allowing certain victims of human trafficking (which includes both labor trafficking and sex trafficking) and immediate family members to remain and work temporarily in the United States in T Nonimmigrant status, typically after they report the crime to law enforcement, and agree to help them in the investigation and/or prosecution of the crime(s) committed against them. It also allows close family members of the victims to come to the United States legally. There are T1, T2, T3, T4, and T5 visas. They are only granted in limited circumstances and only 50-500 have been granted each year since 20031.

The Final Rule

On Dec. 19, 2016, DHS published an interim final rule to respond to public feedback, clarify requirements based on statutory changes, formalize the experience gained from operation of the program for more than 14 years, and amend the regulations as required by intervening legislation2. In July 2021, DHS reopened the public comment period for the 2016 interim rule for 30 days and subsequently extended the deadline for comments. This final rule responds to public comments, clarifies eligibility requirements, and ensures application requirements conform to current law.   

The final rule reflects a victim-centered approach, clarifies the requirements, and introduces provisions to reduce potential barriers to victims. These clarifications will enable USCIS officers to adjudicate more efficiently and effectively. The final rule also improves the program’s integrity by clarifying the reporting and evidence requirements for victims of trafficking, which will better help law enforcement act on reports of trafficking. Key elements of the final rule include: 

  • Updating and clarifying definitions – including serious harm, abuse, and law enforcement agency – to ensure consistency and standards as described in the Trafficking Victims Protection Act of 2000, as amended;  
  • Improving program efficiency by clarifying reporting and evidence requirements on the outset to decrease requests for additional evidence;
  • Streamlining law enforcement agencies’ ability to act on reports of trafficking by requiring victims to report instances of trafficking to the correct law enforcement agency of jurisdiction; and
  • Simplifying the bona fide determination and adjudication process, while continuing to uphold fraud prevention measures.

Revised Bona Fide Determination Process

This final rule, announced today, also lays out the framework for considering filings under the bona fide determination process, which includes background checks and case review. USCIS will continue to prioritize adjudications for T nonimmigrant status and, subject to available resources and processing times, consider applications under the bona fide determination process. This process will apply to cases filed on or after the effective date of the rule.

When an individual whose application is deemed bona fide files Form I-765, Application for Employment Authorization, USCIS will consider whether to grant them deferred action and an Employment Authorization Document while we continue to adjudicate their application for T nonimmigrant status. USCIS recommends that applicants submit a (fee-exempt) Form I-765 at the same time as their Form I-914, Application for T Nonimmigrant Status.

More Information on Protecting Yourself

Protect yourself from immigration scams. Because victims of trafficking are vulnerable and have already been subject to abuse and mistreatment, USCIS reminds potential applicants to be cautious of anyone offering guaranteed outcomes, be educated on the benefits they are filing for, and be aware of what evidence they are submitting to USCIS. You can also find information on avoiding immigration scams and finding reputable legal counsel by visiting the USCIS Find Legal Services webpage.

  1. https://travel.state.gov/content/visas/en/law-and-policy/statistics/non-immigrant-visas.html ↩︎
  2. https://public-inspection.federalregister.gov/2024-09022.pdf ↩︎