CAST attended an August 15, 2024 stakeholder engagement on the T visa final rule where representatives from the USCIS Office of Policy & Strategy (OP&S), Service Center Operations Directorate (SCOPS), USCIS Contact Center, and Public Engagement Division presented on the final rule and answered pre-submitted and live questions. Except where otherwise indicated as CAST commentary, the notes below have been paraphrased from USCIS’s engagement comments and slides.[1]

The final rule goes into effect on August 28, 2024. For more information on the changes relating to T nonimmigrant status and T adjustment of status, review CAST’s advisory, Overview of the 2024 T Visa Final Rule, which will be updated as new information becomes available.

Background & applicability of the final rule

• T nonimmigrant status was created with a dual purpose: 1) to encourage trafficking victims to come forward, regardless of immigration status, to law enforcement to aid in investigations and prosecutions and 2) to help stabilize victims. Many of the final rule changes support that dual purpose.
• The final rule applies to all T and T adjustment applications pending on or after August 28, 2024. The final rule will not be applied retroactively to those who already received T nonimmigrant status except for changes related to T adjustment of status at 8 CFR § 245.23. An I-290B for an I-914 or I-914A that was filed prior to the effective date of the final rule will be adjudicated based on the regulations in effect when the I-914/I-914A was adjudicated, regardless of when the I-290B was filed.
• No application filed prior to the effective date will be made ineligible by the final rule; if a pending case would have been granted under the interim regulations but the final rule would make the applicant ineligible, the provision of the final rule causing ineligibility will not be applied.
• The final rule did not change the documents required for submission; the rights, benefits, and services T nonimmigrants receive; or the duration of status or eligibility for permanent residence (other than minor changes that reduce barriers and align with the statute).

Evidence & eligibility requirements for T nonimmigrant status

• The final rule retained and emphasized the “any credible evidence” standard. There is no preference for one form of evidence over another. An applicant’s evidence (regardless of the form) may be sufficient if it is detailed, plausible, consistent, and probative.
• Reporting to law enforcement:
  • Reports must be made to a law enforcement agency with proper jurisdiction over the crime. A single contact to report the trafficking may be enough. Applicants must provide credible and probative evidence of their report. Anonymous reports generally do not satisfy the reporting requirement as they do not meet evidentiary standards or support law enforcement efforts. Reports to the National Human Trafficking Hotline may be sufficient if the caller requests or consents to the sharing of information with law enforcement.
• Physical presence:
  • The final rule clarifies in various places that a T-1 applicant can establish their physical presence regardless of the time that has passed since their trafficking. 8 CFR §§ 214.207(a)(2)-(4).
  • The rule also adds several provisions allowing an individual who has departed the U.S. after their trafficking and reentered to establish physical presence. 8 CFR §§ 214.207(b)(4)-(5).
    • 8 CFR § 214.207(b)(4): The timing of the participation in an investigative or judicial process is not dispositive or conclusive. The most important factor is that the current presence is directly related to the participation. It will likely be difficult (although not impossible) to demonstrate physical presence related to participation in an investigative or judicial process associated with the trafficking if the participation occurs exclusively before the departure and reentry.
    • 8 CFR § 214.207(b)(5): To establish eligibility under this provision, applicants are generally expected to provide evidence of inability to access treatment or services in the relevant country. The evidence should be credible, relevant, and probative, such as country conditions evidence or evidence from a subject matter expert and the applicant’s statement. The applicant should also submit evidence that they actually received treatment or services in the U.S.
      • More on evidence in T visa cases may be found in CAST’s FAQ, Evidentiary Requirements for T Visas.

Bona fide determinations

• The BFD process laid out in the final rule will generally only apply to T nonimmigrant status applications filed on or after August 28, 2024, the effective date of the rule. However, cases filed prior to the effective date may receive a BFD if USCIS issues an RFE and finds the case bona fide at that time.
• USCIS may only grant a BFD for a derivative if a BFD is granted for the principal applicant; if the I-914 is referred for secondary review, the derivative’s I-914A will also be referred for secondary review. Adjudication for a T derivative must follow the same adjudicative path as the principal.
• The BFD process involves two steps:
  • Bona fide review: The first step is an initial case review to evaluate the bona fides of the application, including whether the application is complete and review of initial background checks. An application is bona fide if it is properly filed and complete, it includes a signed personal statement, and the results of initial background checks are complete and do not present national security concerns.
  • Discretionary decision: When an individual whose application has been deemed bona fide files a category (c)(40) I-765, USCIS will then consider whether the individual warrants a favorable exercise of discretion and if so, may issue deferred action and a BFD EAD.
• Completeness: A “complete” application is one that: 1) has been filed in accordance with form instructions and 8 CFR § 103.2(b); 2) includes forms that have been filled out and contain the applicant’s valid signature; and 3) contains all initial evidence required by applicable regulations and other USCIS instructions.
• Discretion: Negative discretionary factors that could lead to a negative BFD would be those that present national security and public safety concerns.
  • Examples of such factors include arrests or convictions relating to certain acts, including:
    • murder, rape, or sexual abuse;
    • aggravated assault;
    • offenses involving firearms, explosive materials, or destructive devices;
    • offenses related to child pornography;
    • offenses related to the manufacture, distribution, or sale of drugs or narcotics; and
    • offenses relating to trafficking in persons.
  • Factors beyond the above might weigh against a favorable exercise of discretion. USCIS could also decide to exercise discretion favorably despite the presence of one of the above factors if warranted based on the totality of circumstances.
  • Policy Manual guidance that will provide additional detail is forthcoming.
• National security: The “national security concerns” relevant to BFD issuance are those listed in INA § 212(a)(3) and will be addressed in forthcoming Policy Manual guidance.
• Timing of filing I-765:
  • Applicants filing for T nonimmigrant status after the effective date of the final rule should concurrently file an I-765 with their I-914 or I-914A. Not filing an I-765 concurrently will delay processing of the discretionary component of the two-step BFD process.
    • CAST COMMENT: Note that only derivative applicants in the U.S. should file an I-765.
  • Applicants who have already filed an I-914/I-914A (prior to 8/28/24) and receive an RFE and notice stating they are eligible to apply for a BFD EAD should respond timely with the I-765, following the filing instructions.
  • CAST COMMENT: Note that USCIS previously stated that it will not accept any BFD-based I-765s for T nonimmigrant status applications that are pending prior to the effective date of the final rule unless an RFE is issued, a BFD is conducted, and the applicant is sent a notice of eligibility indicating they can apply for a BFD EAD.
• USCIS strongly advised against refiling applications for T nonimmigrant status in order to access a BFD, indicating that doing so will result in an increase in processing times for all applicants and could cause the applicant to lose their place in line for a final adjudication. Additionally, USCIS advised against filing an application for T nonimmigrant status to get a BFD.
• Applicants in removal or with final orders of removal:
  • The fact that an individual is in removal proceedings or has a final order will not prevent them from receiving deferred action and an EAD under the BFD process.
  • When ICE requests that USCIS expedite an application for T nonimmigrant status in accordance with ICE Directive 11005.3, Using a Victim-Centered Approach with Noncitizen Victims, USCIS will first conduct a BFD review. If USCIS determines the application is not bona fide, we will refer the case for secondary review, which will address all the deficiencies in the record.
• USCIS is unable to provide an estimated timeframe for conducting T-based BFDs. It will begin conducting BFDs when the rule is effective and will continue to adjudicate pending applications.
• A biometrics appointment for fingerprint collection at an ASC is required for individuals over 14 or under 79. If a child is under 14 but is issued a BFD, they may still be required to attend an appointment at an ASC to submit a photo.

Communication with USCIS

• Hotline response times for I-914-related inquiries are approximately 120 calendar days.
  • CAST COMMENT: Except for time-sensitive inquiries, CAST recommends that legal representatives wait to follow up with a hotline inquiry until after the 120-period has passed to allow USCIS to most efficiently use its resources. Sending repeat emails increases the customer service workload and, relatedly, response times for all.
• Contact Center:
  • Applicants may utilize the USCIS Contact Center services after they meet enhanced identity verification requirements. Applicants should have available the receipt notice for each form or a copy of the relevant pending or approved application or petition.
  • The Contact Center can help with case status updates, delivery issues, address changes, expedite requests, ASC appointment rescheduling, and other requests.
  • While the Contact Center is adjusting to the new workload, services will only be available to benefit requestors themselves, not their legal representatives. Attorneys and accredited representatives should utilize the appropriate hotline accounts for now. USCIS stressed that attorneys should not duplicate inquiries made by applicants via the Contact Center. Doing so will significantly delay hotline response times for all.
    • CAST COMMENT: For more information on Contact Center availability for T applicants and recipients, as well as the I-914 hotline email address, see the USCIS Contact Us webpage and look under the header for VAWA, T, and U filings. More information on customer services for protected persons may be found in the policy alert here. 
  • There has been no further discussion of creating a dedicated 914 hotline account.
  • Additional questions may be sent to [email protected]. Policy manual feedback may be sent to [email protected].

Miscellaneous

• USCIS hopes to have the T visa & T visa waiver sections of the Policy Manual (Vol. 3, Part B & Vol. 9, Part O, respectively) updated by the effective date of the final rule and plans to publish a T adjustment section (Vol. 7, Part J) soon.
• DHS’s T Visa Law Enforcement Resource Guide is currently being updated.
• In response to a question about whether 8 CFR § 214.211(b)(1)(ii) means that a previously admitted T derivative whose status has lapsed may not be readmitted into T nonimmigrant status if the T principal has already adjusted status, USCIS responded that a T derivative whose status has lapsed can file for an extension of status if the T-1 nonimmigrant remains in valid T nonimmigrant status, citing 8 CFR § 214.212(b).
  • CAST COMMENT: Once an individual has adjusted to permanent residence, they no longer hold T nonimmigrant status.
• USCIS advised that individuals seeking help with their case be wary of scams, false promises, and other unscrupulous behavior, and encouraged reporting of scams. More information on how to report a scam can be found on USCIS’s webpage, Avoid Scams (see under the “Did You Get a Suspicious Email?” tab).

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[1] USCIS's slides and answers to pre-submitted questions are available in its Electronic Reading Room. Note that the Q&A document shared at Q22 that the Vermont Service Center has recently trained 10 additional officers on T nonimmigrant cases, bringing the total number to 44.