Yes. The Policy Manual T visa sections clarify that applicants may establish eligibility for T nonimmigrant status even without having performed the labor or service where they can show that the perpetrator’s purpose was to subject them to commercial sex, involuntary servitude, peonage, debt bondage, or slavery.[1] Legal practitioners making such an attempted trafficking argument will need to be able to prove all the required elements of the severe form of trafficking definition—the process (recruitment, harboring, transportation, provision, or obtaining), the means (force, fraud, or coercion), and the intended ends (labor or sex trafficking).[2] Additionally, the applicant needs to demonstrate that they are in the U.S. or at a port-of-entry on account of that trafficking.[3] In a nutshell, the argument is essentially that but/for some intervention or the victim’s escape, the perpetrator would have completed the act of trafficking.  

To prove that the trafficker’s purpose was to subject the applicant to forced labor or services or commercial sex in the U.S. when no labor, service, or sex act was performed, applicants should provide concrete details demonstrating why they believe the trafficker’s purpose was to subject them to trafficking. It is apparent from AAO opinions that USCIS will look closely for facts and evidence indicating the trafficker’s intention to bring the applicant to the U.S. for the purpose of subjection to labor or sex trafficking.[4]

Remember that an applicant’s declaration alone can serve as the requisite evidence under the any credible evidence standard.[5] Examples of the trafficker’s intention that can be explored and included in the applicant’s declaration are:

• the applicant was told by the trafficker that their intention was to force them to engage in commercial sex, involuntary servitude, or debt bondage;
• the applicant overheard the trafficker tell another of the trafficker’s intention to traffic the applicant in the U.S.;
• actions by the trafficker to put in motion a plan to traffic the applicant (e.g., buying relevant supplies, telling the applicant to engage in certain grooming or beauty regimens, readying a physical space, making phone calls to others, etc.); and
• the applicant’s knowledge of other people being forced by the trafficker to engage in commercial sex, involuntary servitude, or debt bondage.

For questions, please submit an Individual Technical Assistance Request or join CAST’s Legal Working Group call. For help analyzing potential trafficking cases, see CAST’s Ends-Means-Process Model, and for more on the T visa physical presence requirement, see CAST's Physical Presence Toolkit.

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[1] Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 81 Fed. Reg. 92226, 92270-71 (Dec. 19, 2016) (hereinafter “Preamble to 2016 Interim T Visa Regulations”); 3 USCIS-PM B.2.B.6; B.3.C.5.

[2] 3 USCIS-PM B.3.C.5.

[3] 8 CFR § 214.11(b)(2). For more on the T visa physical presence requirement, see CAST’s resources linked here.

[4] See, e.g., In Re: 21712344 (AAO June 29, 2022) (non-precedent decision); In Re: 05083923 (AAO Jan 17, 2020) (non-precedent decision); In Re: [REDACTED] (AAO Sept. 28, 2007) (non-precedent decision) (discussing speculative statements regarding the perpetrator’s intent to traffic the applicant and the importance of accurate accounts of the applicant’s interactions with the perpetrators and their treatment of her).

[5] 8 CFR § 214.11(d)(2)(ii); 3 USCIS-PM B.3.C.1. Though an applicant’s declaration alone can provide sufficient evidence of the trafficker’s purpose, the Preamble to the 2016 Interim T Visa Regulations notes that the following evidence can be submitted to demonstrate the trafficker’s purpose: “[c]orrespondence with the trafficker, evidence from an LEA, trial transcripts, court documents, police reports, news articles, and affidavits.” Preamble to 2016 Interim T Visa Regulations at 92272. It also states that “[t]he clearest evidence of [the trafficker’s] purpose would be that the victim did in fact perform labor, services, or commercial sex acts.” This evidence would be available in cases where the victim had been previously subjected to trafficking, whether abroad or in the U.S. prior to a departure. Id.