Where do I find out the basics of filing a T visa?
The best places to start learning about T visas are as follows:
- The USCIS Policy Manual sections on T nonimmigrant status, Vol. 3, Part B, and on waivers for T applicants, Vol. 9, Part O (both first released in October 2021).
- The T visa regulations are located at 8 CFR § 214.11. The regulations provide guidelines on the eligibility and evidentiary requirements.
- The Preamble to the 2016 interim regulations, which provides useful background and context to help interpret the regulations.
- The T visa statute, INA § 101(a)(15)(T), which lays out the statutory requirements.
- The I-914 Instructions on USCIS's webpage. The instructions include some general information on the eligibility requirements and a list of initial evidence.
We also recommend reviewing our free T visa resources here: https://casttta.nationbuilder.com/t_visa_intro. On this page, you will find a complete list of our advisories, e-learning courses, and webinars.
CAST has put together a robust and free list of resources for you to file effective T visa applications. When you watch one of our e-learning courses and pass the accompanying self-assessment, you gain access to our Box drive with additional samples and practice advisories on comprehensive legal remedies for trafficking survivors with topics covering anything from immigration to victims rights.
These resources are intended for legal practitioners only.
FREE ONLINE COURSES
- E-Learning Courses (Course Description)
- Webinars (Webinar Description)
- T Visa FAQs
- CAST Practice Advisory on Human Trafficking Analysis
- Physical Presence Practice Advisory
- General T Visa General Tips Practice Advisory
- T Visa Checklist
- T Visa AOS Checklist
- LEA Reporting Practice Advisory
- T Visa Risk Assessment
- CAST & ASISTA Advisory on USCIS's T Visa Policy Manual
- EMP Model includes a worksheet to develop the legal theory of your severe form of trafficking in persons analysis.
- T Visa Declaration Rubric provides attorneys with a framework to help review declarations and assess where they may need to be strengthened. The goal of the rubric is to minimize instances where the declaration could be misinterpreted and result in a negative outcome for the T visa applicant.
In addition to all of CAST's free resources, be sure that you have read through the following:
- T Visa Regulation Preamble (2016 interim regulations)
- T Visa Regulations 8 CFR § 214.11
- T Visa Waiver Regulations 8 CFR § 212.16
- T Visa Adjustment Regulations 8 CFR § 245.23
- T AOS Waiver Regulations 8 CFR § 212.18
- USCIS T Visa Policy Manual Chapters--Volume 3, Part B & Volume 9, Part O
ANY CREDIBLE EVIDENCE STANDARD
Lastly, whenever you are filing an initial T visa application, remember that the standard of evidence is "any credible evidence." 8 CFR § 214.11(d)(2)(ii). This does not mean to include all and every piece of evidence; rather, this generous standard indicates that VSC has the obligation to accept any relevant and credible evidence in recognition of the fact that trafficking survivors often do not possess evidence of their trafficking. Remember that in the initial T visa filing, less is often more. CAST practice is to only include the required evidence listed on this T visa checklist at the initial T visa phase. To learn more about the any credible evidence standard, review ASISTA's practice pointer, Ensure Your Evidence is Credible.
Do you have a T visa screening guide?
Prior to performing your first trafficking screening, we recommend taking the time to learn the nuances of the severe form of trafficking legal definition. Our Human Trafficking Defined e-learning course goes over the legal definition of trafficking in depth and is a great place to start.
CAST's T Visa Client Interview Questions are available to download here for free. Note that this is not an exhaustive list of questions to assess for T visa eligibility, but will help guide attorneys and legal advocates on a framework for the interview. Once you have completed the interview, we recommend plugging the facts into the EMP model to see whether there is enough to rise to the level of a severe form of trafficking in persons.
How do I know if my client is a victim of a severe form of trafficking in persons for purposes of a T visa?
The definition of trafficking for T visa purposes is the same as the definition of “severe form of trafficking in persons” found 22 U.S.C. § 7102(11). Our Human Trafficking Defined e-learning course goes over the legal definition of trafficking in depth. Understanding the federal definition of trafficking will help you determine whether your client meets the first eligibility requirement for the T visa.
USCIS has historically interpreted the “physical presence” requirement for the T visa to mean that (1) the trafficking occurred in the U.S. and (2) the victim has not left the U.S. since the trafficking occurred (with limited exceptions). In other words, USCIS wants to know why the applicant is still in the U.S. after they escaped their victimization. Physical presence for T visa purposes does not simply involve showing that the victim was brought to the U.S. by their traffickers. Additionally, T visa applicants are not required to demonstrate that their initial entry was connected to trafficking at all!
The T visa regulations require that an applicant demonstrate that they are physically present in the U.S. on account of trafficking which means articulating how the client’s current presence in the U.S. is connected to the trafficking. 8 CFR § 214.11(g) USCIS's Policy Manual provides helpful context to the physical presence requirement in Volume 3, Part B, Ch. 2.C & Ch. 3.C.6.
Sample physical presence arguments or explanations include that the survivor:
- is currently receiving trafficking-specific victim services;
- is currently cooperating with law enforcement;
- is experiencing trafficking-related trauma that delayed their ability to come forward; and
- lacked an opportunity to depart due to barriers related to the trafficking.
The strongest physical presence arguments are those that are directly related to the trafficking experience. Presenting explanations that are unrelated to the trafficking victimization can minimize or undermine the strength of the argument.
For more information, check out these additional resources:
My client left the U.S. - is the T visa still an option for them?
A foreign national’s departure from the U.S. causes a break in the physical presence requirement unless the applicant is able meet one of the exceptions listed in 8 CFR. § 214.11(g)(2). There are only 3 exceptions to the departure from the U.S. by an applicant: (1) continued victimization; (2) new incident of trafficking; or (3) the applicant was allowed re-entry to the U.S. to participate in an LEA investigation or judicial process related to the trafficking.
Although there is no definition of “continued victimization,” the Vermont Service Center has historically interpreted this to encompass situations where the trafficker forced the victim to depart and return to the U.S. while still in the trafficking situation. Administrative Appeals Office (AAO) opinions have also suggested that the term “continued victimization” does not require that the T applicant be currently a victim of trafficking, and instead, may include ongoing victimization that directly results from past trafficking (Matter of A-M-M-B, July 2019). There has not been consistent interpretation of this particular exception.
In instances when the victim has departed the U.S. after their escape from the trafficking, the applicant for the T visa would need to demonstrate that they experienced a new incident of trafficking or their participation is required for a law enforcement investigation or prosecution related to the trafficking.
When raising the exception of new incident of trafficking, the applicant needs to show that this new incident meets the definition of severe form of trafficking. In other words, the new incident requires its own independent analysis that it falls within the legal definition of trafficking.
If the applicant is trying to meet the exception under the law enforcement investigation or judicial proceeding exception, the client’s participation in this investigatory or judicial process will need to be close in time to the re-entry or the applicant should have evidence that they are actively participating in the investigation or judicial process.
For additional insight, review:
My client's case is really old - can they still show physical presence on account of trafficking?
There is no filing deadline or time limit for filing the T visa, no matter how long it has been since the survivor escaped their trafficking victimization.
However, an applicant may face challenges when the date of filing the application is more than 5 years after the escape from trafficking. Over the past few years, attorneys have reported that the Vermont Service Center (the office within USCIS that adjudicates T visa applications) has increased its scrutiny on trafficking cases when the date of escape is more than 5 years prior to the date of filing.
If the gap of time between the date of escape and the filing of the T visa is significant, the applicant will have to demonstrate how the trafficking victimization caused them to remain in the U.S. and how their delay in coming forward is reasonable. The applicant will need to show the trafficking-related barriers that contributed to the delay in coming forward, such as lack of self-identification, fear of retaliation, or trauma.
The larger the gap of time between the escape and the filing, the more challenging it is to demonstrate that the applicant has remained in the U.S. on account of the trafficking. For that reason, it’s important to identify all the barriers the client faced in coming forward. It also becomes critical to enroll the applicant in trafficking-specific services to address the trauma that contributed to the delay in reporting their victimization.
Additionally, it may be harder to find a law enforcement agency willing to accept a report for an older case. We suggest contacting local advocates regularly working on trafficking cases to get a sense of how law enforcement is treating these cases. The links here can help you identify non-profit legal services providers in your area.
For more information, check out these additional resources:
To which law enforcement agency should I report the trafficking my client experienced?
The regulations do not specify the law enforcement agencies where one must report. Instead, the regulations broadly describe that, for the purposes of the T visa, a survivor can report to any federal, state, or local law enforcement agency that has the power to detect, investigate, or prosecute trafficking. 8 CFR § 214.11(a).
CAST recommends reaching out to legal advocates who regularly work with trafficking survivors for assistance identifying law enforcement partners that have human trafficking training, are trauma-informed and victim-centered, and with whom their clients have had positive experiences with in the past. Non-profit organizations are often specifically funded to represent trafficking survivors and may have a good idea of who the best law enforcement partners may be.
If you are not sure which local non-profits to contact or there are none in your area, you can contact the National Human Trafficking Hotline (NHTH) for a referral to law enforcement, but you must follow up with the law enforcement agency that they refer the case to. Remember, the National Human Trafficking Hotline is NOT a law enforcement agency and reporting to this hotline alone will not be sufficient to meet the T visa eligibility requirements.
For more tips on how to report for T visa purposes, check out CAST's Law Enforcement Cooperation Guide.
What happens if my client’s case triggers an investigation?
If reporting the trafficking triggers an interview or investigation, it means that the client will need assistance with victims’ rights advocacy. If you are assisting your client with reporting, you will need to be prepared that the client may need assistance with enforcement of their rights. This means assisting the client in enforcing statutory or constitutional victims’ rights such as the right to fairness and respect, privacy, and notice.
For example, if your client has to participate in an interview, as their attorney, you would need to accompany them to the interview to make sure that the client's statements are consistent, that their safety and privacy is enforced (e.g., redacted name or pseudonym in police reports, criminal protective orders if necessary), and that the client’s compliance with reasonable law enforcement requests is documented. If the case moves beyond the interview phase, the client may also need additional assistance with notice of future criminal hearings or of the release of their perpetrator from jail, among other victims' rights needs.
For more information on Victims’ Rights Advocacy, please review these additional resources:
Do I need a law enforcement certification for my T visa application?
Unlike the U visa, a law enforcement certification ("I-914B") is not required for T visas. 8 CFR § 214.11(d)(3)(i); USCIS Policy Manual Vol. 3, Part B, Ch. 3.C.3. If you are unable to obtain an I-914B, it does not mean that your client is less likely to be approved. In fact, a majority of approved applications for T nonimmigrant status do not include a signed I-914B.
If you cannot obtain an I-914B, you can submit an attorney declaration explaining the good faith efforts you've taken on behalf of your client to report the trafficking. For more tips on how to report trafficking for T visa purposes and to see an attorney sample declaration, check out our Law Enforcement Cooperation Guide.
What is extreme hardship for T visa cases? How does it differ from other the hardship standard in other immigration remedies?
Extreme hardship for T visas is a higher standard than most other forms of hardship in immigration law and has its own specific factors delineated in 8 CFR § 214.11(i)(2). USCIS's Policy Manual expands upon these factors and clarifies that hardship to a family member may be considered to the extent that it constitutes hardship to the applicant. USCIS Policy Manual Vol. 3, Part B, Ch. 2.E.2. A finding of extreme hardship cannot be based solely on loss of financial or economic opportunities. 8 CFR § 214.11(i)(1).
For a strong extreme hardship argument, consider arguing at least three factors listed in the regulations. The strongest factors are those that are directly related to the trafficking victimization, while factors relying on country conditions, customs, or beliefs may be less strong.
For more information, see:
My client is inadmissible. Can their grounds of inadmissibility be waived?
Two statutory waivers of inadmissibility are available to T visa applicants--INA §§ 212(d)(3) and 212(d)(13). The (d)(13) waiver is a generous waiver available only to applicants for T nonimmigrant status, while the (d)(3) waiver is the general nonimmigrant waiver. 8 CFR § 212.16 discusses how an applicant for T nonimmigrant status may request a waiver of inadmissibility as well as the discretionary analysis undertaken by adjudicators in reviewing such waiver requests.
USCIS instructs adjudicators to first consider (d)(13) waiver eligibility and then to consider eligibility for a waiver under (d)(3), if it determines that the applicant is not eligible for the trafficking-specific waiver. USCIS Policy Manual Vol. 9, Part O, Ch. 3.A, 3.C, & 4.A. Advocates should therefore first argue eligibility for the (d)(13) waiver, when available, and then argue for the (d)(3) waiver in the alternative.
To demonstrate eligibility for the (d)(13) waiver, except for health-related inadmissibility, the applicant needs to demonstrate how the grounds are connected to the trafficking and should discuss any national interest factors meriting approval, as discussed in the Policy Manual. CAST recommends that attorneys consider arguing expansively for (d)(13) waiver eligibility whenever possible.
To demonstrate eligibility for a (d)(3) waiver, the applicant should indicate how waiver is in the national interest. The waiver request should also demonstrate how the social and humanitarian factors outweigh the risk of harm to society and the seriousness of the inadmissibility or any adverse factors. USCIS Policy Manual, Vol. 9, Part O, Ch. 4.B.
Please see the following resources for more information:
How much evidence should I include in a T visa application?
The evidentiary standard in T visas is the “any credible evidence” standard, meaning that USCIS must consider any credible evidence submitted for each of the required elements. The adoption of this more liberal evidentiary standard is Congress’ recognition of the barriers victims face in providing primary or corroborative evidence of their trafficking.
Often the only evidence trafficking survivors have of their victimization is their personal statement, making it the most important evidence in support of the T visa. It is important to note that T visa applicants are under no obligation to supply additional evidence to corroborate the trafficking victimization and cannot be denied for failure to submit any particular piece of evidence. T visa applications are regularly approved with the client declaration serving as the only evidence of the trafficking victimization.
Legal advocates should be very mindful of which evidence they include in the applicant's T visa filing. While there may be an inclination to want to include as much information as possible, supporting evidence may not actually address the T visa eligibility requirements. For example, in considering whether to submit an employment contract, the attorney should evaluate whether the contract serves as evidence of the trafficking, or whether it is simply evidence of the victim’s employment and therefore, unnecessary. Additionally, trafficking survivors are not required to show harm in the same way that applicants for other forms of relief may have to. As a result, trafficking survivors do not need to submit medical evidence or records. Prior to submitting medical evidence, attorneys should evaluate whether that evidence actually addresses one of the T visa eligibility requirements.
Note that including additional, unrequired information and evidence with the T visa filing could end up drawing focus away from the trafficking, undermining the legal arguments, or causing undue scrutiny. CAST's T Visa checklist includes the general evidence that we recommend submitting with an initial T visa filing. Requests for evidence (RFEs) or notices of intent to deny (NOIDs) provide an opportunity to submit additional supporting evidence that specifically addresses the adjudicator's concerns with the case.
For more guidance, we suggest reviewing these additional resources:
- USCIS Policy Manual, Vol. 3, Part B, Ch. 3.1 (on any credible evidence)
- USCIS's I-914 Instructions (which include a list of required evidence)
- ASISTA's Practice Pointers on "Any Credible Evidence"
- 1998 INS Memorandum discussing any credible evidence in self-petitions filed by victims of abuse
- CAST T Visa Checklist
Should I include a psychological evaluation with my client's initial T visa application?
CAST does not recommend including a psychological evaluation in an initial T visa filing as the purpose of a psychological evaluation in the T visa context is limited. Psychological evaluations serve two main purposes in a T visa application:
- To corroborate the applicant's physical presence on account of trafficking. A psychological evaluation can be used to show how trauma impacted the victim’s ability to come forward sooner and how their day-to-day life has been impacted by the trafficking trauma, keeping them in the U.S.
- To support the applicant's extreme hardship argument. An evaluation could be used to show the hardship that would result if the victim were to lose access to supportive services (e.g., case management or counseling) if they were removed from the U.S.
An overly broad psychological evaluation could weaken or undermine the survivor's T visa application. For instance, psychological evaluations often include extensive information regarding the client’s background, medical history, and history of prior abuse or other victimization. Sometimes this extensive history can raise potential inadmissibility issues related to harm to self or others. An overly broad psychological evaluation that highlights unrelated victimization may distract the adjudicator and undermine the applicant's trafficking argument, in addition to increasing the chances of containing inconsistent information.
CAST recommends waiting until receipt of a request for evidence (RFE) or notice of intent to deny (NOID) to submit a psychological evaluation, rather than submitting one with the initial application. In waiting for an RFE, you can assist the psychologist or therapist to tailor the evaluation to the issues raised by USCIS, whether physical presence, an exception to law enforcement cooperation, credibility, or extreme hardship. Affirmatively including a psychological evaluation in the initial application can be problematic because it is hard to anticipate with certainty the issues that USCIS may have during the adjudication of the case.
Remember that a psychological evaluation is not a substitute for trafficking-specific victim services or ongoing counseling.
For a more in-depth explanation on psychological evaluations, see CAST's Psychological Evaluations Advisory.
For more information on physical presence, see CAST's Physical Presence Advisory.
Should I include letters of support from friends/family/members of the community?
As with other forms of supporting evidence, attorneys should consider whether a letter of support addresses the T visa eligibility requirements. Generally, CAST does not recommend including affidavits or letters of support from friends or family members in support of the principal’s T visa application. First, third parties usually do not possess direct knowledge or have not witnessed the trafficking victimization. Second, including third party letters may open up the friends or family to have to testify in court proceedings outside of the immigration process.
There may be instances where including a letter of support can potentially be helpful, such as where the applicant has significant inadmissibility or criminal issues and needs to demonstrate that they merit a favorable exercise of discretion. Absent those circumstances, letters of support are generally neither necessary nor useful.
For a list of recommended evidence, see CAST's T Visa Checklist.
Which family members can the principal T visa applicant apply for?
The T visa principal is allowed to petition for eligible family members pursuant to 8 U.S.C. § 1101(a)(15)(T)(ii) if accompanying or following to join the principal. The eligibility of family members can be broken down into two categories:
- Based on the age of the principal applicant:
- If the principal is under the age of 21, the eligible family members are:
- Spouse (T-2)
- Child (T3)
- Parent (T-4)
- Unmarried siblings under the age of 18 (T-5)
- If the principal is over the age of 21, the eligible family members are:
- Spouse (T-2)
- Child (T-3)
- If the principal is under the age of 21, the eligible family members are:
- Based on a present danger of retaliation as a result of principal’s escape or cooperation with LEA, regardless of the age of the applicant, can petition for:
- Parents (T-4)
- Unmarried siblings under the age of 18 (T-5)
- Adult or minor child of a derivative beneficiary of the principal (T-6)
Can I apply for a spouse after the T visa is approved? Is there an equivalent to the U Visa I-929?
The T visa does not have an exception for an after-acquired spouse. The relationship of a family member must have existed at the time of filing. 8 CFR §214.11(k)(5)(iv) states: “If a T-1 marries subsequent to filing the application for T-1 status, USCIS will not consider the spouse eligible as a T-2 eligible family member.”
Is there an age-out protection for derivative family members in T Visa cases?
Yes. The age-out protections will be in place as long as the T visa is filed prior to the derivatives’ age cut off. 8 CFR § 214.11(k)(5)(ii) & (iii).
For additional information, see USCIS Interoffice Memo Re: Trafficking Victims Protection Reauthorization Act of 2003.
How do we demonstrate present danger of retaliation?
Present danger of retaliation allows the principal applicant to apply for derivative status for certain family members who would otherwise be ineligible based on their age if that family member is currently facing a present danger of retaliation. 8 CFR § 214.11(k)(1)(iii). The present danger of retaliation must be a direct result of the principal’s escape or cooperation with law enforcement. USCIS evaluates each present danger derivative application on a case-by-case basis. The principal and derivatives must be able to articulate and describe the present danger that resulted from the principal escaping or cooperation with LEA. The principal’s affidavit alone is generally insufficient as evidence of present danger of retaliation. They must provide additional evidence in the form of third party affidavits, police reports, news articles, court documents, and others in order to prove their claim for present danger.
When describing the present danger it is important to:
- Explicitly relate the danger the family is experiencing abroad to the trafficking that occurred in the U.S.;
- Provide an account of how the principal’s disclosure of the trafficking victimization has affected the family members; and
- Describe the steps the family has taken in order to protect themselves from the retaliation (e.g., reports to local law enforcement in home country or efforts to relocate to a safe location to escape retaliation).
For additional information, review DHS Policy Memorandum “New T Nonimmigrant Derivative Category and T and U Nonimmigrant Adjustment of Status for Applicants from the Commonwealth of the Northern Mariana Islands.”
My client wants to travel on their approved T visa. Can they?
The T visa is not a travel document allowing re-entry to the U.S. and for the reasons that follow, we generally advise against traveling until the T visa holder has been granted permanent residence.
Although a T visa holder may obtain Advance Parole to re-enter the U.S. and resume T nonimmigrant status, we generally recommend against travel abroad as it may require the assumption of unnecessary risk and re-entry is not guaranteed. For example, U.S. Customs and Border Protection (CBP) may hold a T nonimmigrant at a port-of-entry or may deny the entry due to unfamiliarity with the T visa or unwaived grounds of inadmissibility.
Additionally, travel outside of the U.S. may impact a T-1 nonimmigrant's ability to adjust by undermining the applicant's extreme hardship argument or breaking their continuous physical presence. Keep in mind that at the initial T visa phase, a T-1 applicant had to prove that they would suffer extreme hardship involving unusual and severe harm upon removal. At adjustment, a T-1 holder may need to re-establish extreme hardship. 8 CFR § 245.23(a)(6)(ii). Additionally, any single absence of more than 90 days will break a T-1 applicant's continuous physical presence required under 8 CFR § 245.23(a)(3).
Legal representatives should discuss these risks with T visa holders ahead of a decision to travel and should prepare clients for potential issues at re-entry before departure. Additionally, legal representatives should be sure to advise T holders that advance parole must be obtained prior to departure from the U.S. 3 USCIS-PM B.12.B.
My client’s T visa was denied, what do I do next?
In light of the Notice to Appear (NTA) memo issued on June 28, 2018, we recommend filing a Motion to Reopen and/or Motion to Reconsider (MTR) to exhaust all administrative steps in order to prevent or delay the issuance of an NTA to the T visa applicant rather than filing an immediate appeal.
The benefit of filing the MTR rather than directly appealing is to have the opportunity to reframe arguments and evidence for the Administrative Appeals Office (AAO). It also gives the applicant one more time to address the issues raised in the Request for Evidence (RFE) phrase.
We have provided guidance on MTRs in our blog post here.
If you need assistance in addressing the concerns raised by USCIS, CAST can provide you with individualized technical assistance.
How do I request a letter from the U.S. Department of Justice for early adjustment of a T visa holder?
The Department of Justice (DOJ) Civil Rights Division reviews on a case-by-case basis requests to provide a letter indicating that a criminal case is no longer open and that the victim has been helpful in the investigation against their trafficker (if applicable) so that a trafficking survivor may apply for early adjustment under 8 CFR § 245.23(a)(3). The letter may be requested by emailing the DOJ's dedicated email address: [email protected].
For more information and troubleshooting tips, download CAST's guide on how to request an early adjustment letter from DOJ.