Where do I find out the basics of filing a T visa?
The best resources to start understanding the basis of the T visa are by looking at:
- The T visa regulations are located at 8 CFR § 214.11. The regulations provide guidelines on the eligibility and evidentiary requirements.
- The I-914 Instructions on the USCIS Web Page. The instructions include some general information on the eligibility requirements and a list of initial evidence.
- The 2016 Preamble which gives context to the regulations
- The T Visa Statute - INA § 101(a)(15)(T) which lays out the statutory requirements:
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.
Do you have a T Visa Screening guide?
We recommend also taking the time to learn the legal nuances of the “severe form of trafficking” prior to performing a screening. Our “Human Trafficking Defined” e-learning course goes over the legal definition of trafficking in depth.
Our T Visa Client Interview Questions are available for free to download here. This list is not an exhaustive list of questions to assess whether someone is T visa eligible, but will assist in guiding attorneys and legal advocates on a framework for the interview. Once you have performed your interview, we recommend plugging the facts into the EMP model to see whether there is enough to show “severe form of trafficking in persons.”
How do I know if my client is a victim of “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 to be able to understand whether you client meets the first eligibility requirement for the T visa.
United States Citizenship and Immigration Services (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. In other words, USCIS wants to know why the applicant is still in the U.S. after they escaped their victimization. Physical presence does not only focus on how the victim was brought to the U.S. by the trafficking.
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 the primary reasons why the client’s current presence in the U.S. is due to the trafficking. 8 CFR § 214.11(g).
Sample arguments or explanations can include:
- That the survivor is currently receiving trafficking specific victim services
- The survivor is currently cooperating with law enforcement
- The survivor is experiencing trafficking related trauma that delayed their ability to come forward,
- The survivor lacked an opportunity to depart due to barriers related to the trafficking.
The arguments for the survivor’s current physical presence should be directly related to the trafficking experience in order to present the strongest physical presence argument. Presenting explanations that are unrelated 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 the T Visa Regulation Preamble.
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, there are some challenges in applying for the T visa when the date of escape of the trafficking was more than 5 years from the date of the filing of the application.
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.
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’s also becomes critical to enroll the applicant in trafficking-specific services to address the trauma that contributed in the delay to report their victimization.
Additionally, it may be harder to find a law enforcement agency willing to accept a report for an older case. You should contact local non-profit agencies working on trafficking cases to get a sense of how law enforcement is treating these cases.
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). Remember, the National Human Trafficking Hotline (NHTH) is NOT a law enforcement agency and reporting to this hotline will not be sufficient to meet the T Visa eligibility requirements.
We recommend reaching out to local non-profits for assistance in obtaining contacts to 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. If you are not sure who the local non-profits are, you can contact the NHTH for a referral to law enforcement, but you must follow up with the law enforcement agency that they refer the case to.
For more tips on how to report for T visa purposes, check out our LEA reporting for T visa purposes advisory.
What happens if my client’s case triggers an investigation?
If reporting the case triggers an 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 victims’ rights enforcement. 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 do an interview, as their attorney, you would need to accompany them to the interview to make sure the client has consistent statements, their safety and privacy is enforced (e.g., redacted or pseudonyms in police reports, criminal protective orders if necessary), and make sure your client’s compliance with reasonable requests are documented.
If the case moves beyond the interview phase, it’s also likely that the client might need additional assistance with notice of future criminal hearings or releasing of their perpetrator from jail.
For more information on Victims’ Rights Advocacy, review these additional resources:
Do I need a law enforcement certification for my T visa application?
Unlike the U visa, a law enforcement certification is not required for T visas. 8 CFR § 214.11(d)(3). In fact, in most cases, T visa certifications can be extremely difficult to obtain for a variety of reasons. However, if you are unable to obtain a T Visa Supplemental B certification, it does not mean that your client is less likely to receive a T visa approval. If you cannot get a certification, you can submit an attorney declaration delineating that you client has reported and the client made good faith efforts in order to obtain a signed certification.
For more tips on how to report for T visa purposes and an attorney sample declaration, check out our LEA reporting for T visa purposes advisory.
What is extreme hardship for T visa cases? How does it differ from forms of immigration relief?
The 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). The regulations specify that the principal applicant needs to demonstrate their own unusual or severe hardship and is not based on the hardship to derivatives or other family members, and it cannot be based on loss of financial or economic opportunities. 8 CFR § 214.11(i)(3). For a strong extreme hardship argument, consider arguing at least three factors listed in the regulations. The strongest factors are those are directly related to the trafficking victimization and the weaker factors are the ones that tend to rely on country conditions, customs, or beliefs.
For more information see:
My client gathered inadmissibility grounds caused by the trafficking. Do they qualify for a waiver of inadmissibility?
The statutory waivers that are available to T visa applicants are under INA §212(d)(3) and (d)(13). Under the (d)(3) waiver, a nonimmigrant must show that a waiver of inadmissibility is necessary because it is in the national interest to waive the ground. Under the (d)(13) waiver, the applicant is requesting a waiver because the inadmissibility ground was “caused by or incident” to the trafficking. The regulation standards for the T visa waivers can be found at 8 CFR § 212.16. While the grounds caused by the trafficking can be waived under both the (d)(3) and (d)(13) ground, the most generous waiver for inadmissibility grounds at the T visa phase are for those grounds that are “caused by or incident to the trafficking.” USCIS reviews the waiver grounds in an order of operations by first analyzing the waiver under the (d)(13) and then (d)(3) ground. As a result, it becomes important to make sure attorneys attempt to connect all inadmissibility grounds back to the trafficking.
For all other grounds that are not related to the trafficking, attorneys can still raise the (d)(3) waiver and argue that it is in the public and national interest to waive the inadmissibility ground for the trafficking survivor.
How much evidence should I include in a T visa?
The evidentiary standard in T visas is the “any credible evidence” standard which is the kind the standard for the kind of evidence that is supplied. The adoption of this more liberal evidentiary standard is Congress’ recognition of the barriers that victims face to provide primary or corroborative evidence of their trafficking, such as the traffickers confiscating their passports, lack of contracts, or other evidence.
Often the only evidence trafficking survivors have of their victimization is their client declaration, making it the most important evidence in support of the T visa. The T visa applicant is under no obligation to find additional evidence to corroborate the trafficking victimization and cannot be denied for failure to submit particular evidence. Many T visa cases are consistently approved with the client declaration as the only form of evidence of the trafficking victimization.
Attorneys should be very mindful of which evidence they include. While there may be an inclination to want to send as much information as possible, supporting evidence may not address the T visa eligibility requirements. For example, in considering whether to submit a contract, the attorney needs to evaluate whether it is evidence of the trafficking or just evidence of victim’s employment.
Additionally, trafficking survivors are not required to show harm in the same way that others may have to. As a result, trafficking survivors do not have to submit medical evidence. Prior to submitting medical evidence, attorneys should evaluate whether that evidence actually addresses one of the T visa eligibility requirements.
Our T Visa checklist includes the general evidence that we recommend submitting in an initial T visa packet in order to set the tone for adjudicators. Requests for additional evidence (RFEs) or denials may require the submission of additional supporting evidence.
For more information, review these additional resources:
Should I include a psychological evaluation in the initial T visa application?
We do 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. In T visas, psychological evaluations serve two main purposes:
- Physical presence on account of trafficking – Psychological evaluations would be used to show how trauma impacted the victim’s ability to come forward sooner.
- Extreme hardship – In this case, the evaluation would be used to show that the victim is accessing supportive services (e.g., case management or counseling) and loss of those services result in severe and usual harm of the victim if they were removed from the U.S.
An overly broad psychological evaluation can pose additional risks to the T visa applicant or minimize the strength of the application. For instance, many times, the evaluations can include extensive information regarding the client’s background, medical history, history of prior abuse or other victimization. Sometimes this extensive history can raise inadmissibility issues related to harm to self or others. In cases where the trafficking victimization is unclear because of polyvictimization, the psychological evaluation can inadvertently highlight victimization that undermines the trafficking argument if it is too broad.
If you decide to include a psychological evaluation, we recommend waiting until the issuance of a Request for Additional Evidence (RFE) from USCIS 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 immigration whether it is physical presence, an exception to law enforcement cooperation, credibility, or extreme hardship. Affirmatively including the 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.
The psychological evaluation should not be a substitute for trafficking-specific victims services or ongoing counseling. For a more in-depth explanation on psychological evaluations see our Psychological Evaluation Advisory here.
For more information on physical presence, check out our 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 be considerate of whether a letter of support addresses the T visa eligibility requirements. Generally, we do 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 generally 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 exceptions as to whether these letters should be included, but those exceptions should be limited to cases where the applicant may have an unfavorable inadmissibility or criminal history.
For a list of recommended evidence see our 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. 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 experience 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,
- 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 and therefore, we highly advise against traveling until the T visa holder has received their green card or adjustment of status.
Although a client can obtain Advance Parole or a Re-Entry permit to travel on a T visa, we highly recommend against travel as it can cause unnecessary risks and there is no guaranteed re-entry to the U.S. For example, U.S. Customs and Border Protection (CBP) may hold a T nonimmigrant at a port-of-entry or may deny the re-entry due to unfamiliarity with the T visa.
Additionally, travel outside of the U.S. may affect the strength of T visa adjustment application by minimizing the extreme hardship arguments. Keep in mind that at the initial T visa phase, the applicant had to prove that they would suffer extreme hardship if removed to their home country – an argument that needs to be re-established at the adjustment phase.
However, if your client decides to travel despite these risks, we recommend taking some safety planning efforts in advance, which include preparing them for being held at a port of entry and what they may do if they are denied entry into the U.S.
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 T-Visa Adjustment?
The Department of Justice (DOJ) Civil Rights Division reviews on a case-by-case basis their ability 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. You request this letter by emailing the DOJ's dedicated email address: [email protected].
For more information, download our guide on how to request the DOJ letter here.