Identifying Trafficking
I am not sure if my client is a trafficking victim. What should I be looking for?
Identifying a trafficking victim is complicated, particularly because of the misconceptions about human trafficking. The following is the definition of a severe form of trafficking in persons under the Trafficking Victims Protection Act (TVPA):
- Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age.
- The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
Following this definition, keep in mind how this definition contradicts some common myths. Trafficking need not be across borders as there is no requirement of movement in the definition. The definition does not reference immigration status or prohibitions and therefore, a person from another country may have entered the country lawfully or unlawfully. Many other victims know what type of work or commercial sex awaits them upon entry, but knowledge of the situation does not preclude a person from being a victim if s/he is later subject to force, fraud, or coercion in that labor or commercial sex. Furthermore, there is no gender or immigration distinction. Men and women, boys and girls, U.S. Citizens and non-Citizens alike can be victims of human trafficking. Victims also come from a variety of countries and those trafficked into labor participate in a broad range of work. Most victims do not self-identify and many are too scared to be forthcoming to service providers or law enforcement. Look for factors that might indicate the individual’s lack of autonomy (e.g. not being able to communicate with friends and family, lacking freedom to move, having someone else hold his or her passport or other papers, owing a debt, or receiving threats of harm and deportation).
Reporting a Trafficking Case
I believe that my client is a trafficking victim and s/he wants to report the trafficking to law enforcement. My client is undocumented and I am worried that if we approach the wrong person, that person will be unfamiliar with trafficking and she will receive a Notice to Appear in immigration court and/or be taking into immigration detention. What should I do?
If you have never reported a case of human trafficking to law enforcement, you will want to do two things. First, consult with local experienced anti-trafficking advocates who will help you ascertain whether or not your client’s situation falls within the parameters that law enforcement generally consider to be a sever form of trafficking in persons. You may also contact Legal Momentum to get a second opinion on whether or not the case sounds like human trafficking. Second, find out from an experienced advocate if there is an anti-trafficking point of contact in your area. This person may be an ICE or FBI agent, a contact through a BJA (Bureau of Justice Assistance) Trafficking Taskforce, or a local law enforcement agent. The advocate can probably advise you of any reporting protocol. If there is no such contact in your area, contact Antoinette Aqui at the Human Trafficking Prosecution Unit antoinette.aqui@usdoj.gov.
Derivative Family Members Outside the U.S.
My client just received a T-visa. Her children, who also received T-visas as derivatives, are outside the U.S. What do I do next to facilitate the children’s entry?
Within approximately one month of the T-visa approval, your client’s children should receive notification of papers to fill out and ultimately, a consular appointment. There may be consular fees separate from those covered under any T-visa fee waiver. You may want to consider advocating for a waiver of these consular fees as well. If the derivatives are not contracted within two months of approval, contact Vermont Service Center of USCIS (U.S. Citizenship and Immigration Services).
Non-derivative Family Member Eligibility
What if a family member of a trafficking victims does not qualify as a T-visa derivative (which is only available to a spouse, children under 21, certain parents and unmarried siblings under age 18) and is significant danger in the home country?
Try filing humanitarian parole for the family member. While it only provides temporary protection in the U.S., once the family member comes to the U.S., s/he may be eligible to apply for asylum or another form of immigration relief. If applying for humanitarian parole, send the application with Form I-131 (Application for Travel Document), filing fee, and Form I-134 (Affidavit of Support) to USCIS (U.S. Citizenship and Immigration Services), PO Box 660865, Dallas, TX. 75266. Document the urgency. If there is a criminal investigation and you have a sense of any pressing dates, include those. Mark any urgency in red pen on the envelope. Highlight the information in your cover letter. Draw attention to the urgency in any way you can. Seek evidence from an investigator or prosecutor about any fear’s the victim has based on these family members that might affect a case going forward. This unit receives fewer applications based on trafficking, so you should include some background on human trafficking in general. You may also want to contact Vermont Service Center and ask them to reach out to the Humanitarian Parole Unit since they are the subject matter experts on human trafficking at USCIS.
Adjustment and Pending Derivatives
What if a T-visa approved derivative has not arrived in the U.S. and it is time for the principal (and derivative to adjust to lawful permanent residence)?
As long as a derivative T-visa has been granted, a principal may adjust even if the derivatives have not yet entered the country. T-visa derivatives can adjust along with the principal and do not have to wait three years. If the principal T-visa holder applies to adjust status to lawful permanent residence before the derivatives enter the U.S., the derivative T-visa holders can apply to adjust status to lawful permanent residence once they arrive in the U.S.
Historical Trafficking Cases
I am working with a trafficking victim who was trafficked several years ago. The investigators say that the statute of limitations has passed. Can my client still be certified?
In order to be certified, law enforcement must find that the trafficking victim has provided reasonable cooperation with a trafficking investigation and prosecution. A T-visa certification (Form I-914 Supplement B) is not required to provide cooperation but may be used as evidence. In other words, if your client has been cooperative but law enforcement will not sign the certification, this should not prevent you from filing. The statute of limitations passing may prevent an investigation from proceeding. However, that does not factor into a determination of victimization or reasonable cooperation. As such, you should advocate for law enforcement to sign the certification in spite of a statute of limitations issue.
Order of Removal
My client has a final order of removal. We have filed her T-visa. What do I do now?
By order of law, a T-visa approval dissolves the final order of removal. While the T-visa is pending, make sure your client carries a copy of the T-visa receipt and your contact information to evidence his or her filed application in case s/he is apprehended by ICE (Immigration and Customs Enforcement) or local law enforcement officers who are making an ICE referral.
Appeal
A new client came to me after s/he had her first T-visa application denied. Can I appeal?
Yes, if you meet the filing deadline. However, USCIS (U.S. Citizenship and Immigration Services) reviews all T-visa applications de novo (from the beginning) and sometimes it is better to simply re-file the T-visa application. Get a copy of the original and subsequent filings and any correspondence from USCIS including the Request for Additional Evidence, Notice of Intent to Deny, and the Denial. If it’s possible to correct the deficiencies in the earlier filing, you may want to re-file another T-visa application.
Continuous Presence and Adjustment
For people who have had T-visa status for over three years while the adjustment rule was pending, do they have to demonstrate continuous presence for the most recent three years before filing to adjust or the entire duration of T-status?
Yes. USCIS (U.S Citizenship and Immigration Services) requires proof of continuous presence for the entire duration from the T-visa grant to the filing of adjustment of status (for lawful permanent residence).
Accruing Three Years and Continued Presence
I read the Immigration and Nationality Act section 245(1)(1)(A) to say that continued presence counts towards the three years required before a T-visa holder can apply for adjustment of status (for lawful permanent residence). If my client does not qualify under the exception to the three year rule for those with a complete investigation or prosecution, can my client apply for adjustment of status before accruing three years in T-visa status?
No. USCIS (U.S. Citizenship and Immigration Services) interprets that language to refer to “continuous presence” in the United States and not “continued presence” that victims may receive while waiting for their T-visas. In order for a T-visa holder to adjust, s/he must wither have three years in T-visa status or demonstrate that the investigation or prosecution is complete.
Local Law Enforcement and Continued Presence
I am working with a local law enforcement agent who thinks he cannot request continued presence for my client. How should I direct them?
Only federal law enforcement officials can request continued presence on a victim’s behalf. However, if the local law enforcement agent contacts Immigration and Customs Enforcement (ICE), ICE will make that request on their behalf. If you have problems with local ICE agents being unwilling to request continued presence on local law enforcement investigations, please contact Erik Breitzke at ICE’s Human Trafficking and Smuggling Unit (erik.breitzke@dhs.gov).