DHS amends T nonimmigrant regulations

Last Updated

March 29, 2017

The Department of Homeland Security amended its regulations governing the requirements and procedures for T nonimmigrant status for victims of human trafficking on Dec. 19, 2016. The regulations were amended to comply with several legislative changes, respond to public comments, and reflect U.S. Citizenship and Immigration Services experience adjudicating T nonimmigrant applications. The interim rule took effect Jan. 18, 2017. This article summarizes the main changes to the regulations.

The Victims of Trafficking and Violence Protection Act of 2000, or VTVPA, created T nonimmigrant status to provide protection to victims of human trafficking who assist law enforcement in the investigation or prosecution of traffickers. To qualify for T status, the applicant must: (1) be a victim of a severe form of trafficking as defined in the law; (2) be physically present in the United States on account of the trafficking; (3) comply with any reasonable request for assistance in the federal, state or local investigation or prosecution of the crime where acts of trafficking are at least one central reason for commission of the crime or the applicant is under 18 years of age or unable to cooperate due to physical or psychological trauma; and (4) evidence that he or she would suffer extreme hardship involving unusual and severe harm upon removal from the United States. See INA § 101(a)(15)(T).

The VTVPA, including the T nonimmigrant status provisions, have been amended several times since its enactment. Apart from minor changes, the T regulations, at 8 CFR § 214.11, have not been amended since an interim rule was published on Jan. 31, 2002. This is the first major revision of the regulations since the 2002 rule. The regulations outline the eligibility requirements, application procedures, evidentiary standards, benefits for derivative family members and include definitions of key terms used in the law.

Updates to the regulations to conform to changes in INA § 101(a)(15)(T) include:

  • Expanding the definition of law enforcement agency to include state and local law enforcement agencies. 8 CFR § 214.11(a).
  • Conforming the definition of sex trafficking to the revised statutory definition. 8 CFR § 214.11(a).
  • Raising the age at which the applicant must comply with any reasonable request by a law enforcement agency for assistance in an investigation or prosecution from 15 years to 18 years of age. 8 CFR §§ 214.11(b)(3)(i) and (h)(4)(ii).
  • Adding the exception to comply with any reasonable request by a law enforcement agency, where the applicant is unable to cooperate due to physical or psychological trauma. 8 CFR § § 214.11(b)(3)(ii) and (h)(4)(i).
  • Expanding the definition of physical presence on account of trafficking to include those whose entry into the United States was for participation in the trafficking investigation or judicial process. 8 CFR §§ 214.11(b)(2) and (g)(1).
  • Adding the rule allowing principal applicants under age 21 to apply for derivative status for unmarried siblings under 18 and parents, in addition to spouse and children. 8 CFR § 214.11(k)(1)(ii).
  • Providing age-out protection for derivative family members of a T principal under age 21. If the T principal was under 21 when he or she filed for T status, a parent or unmarried sibling will remain eligible for derivative T status even if the principal turns 21 before adjudication. An unmarried sibling will remain eligible even if the sibling is over 18 at the time of adjudication of the T application, the derivative application or entry into the United States, as long as the unmarried sibling was under 18 when the principal’s T application was filed. 8 CFR § 214.11(k)(5)(ii).
  • Providing age-out protection for the child of a T principal over age 21. If the child was under 21 at the time the principal filed the T application, the child will remain eligible even if over 21 at the time of adjudication of the T application, the derivative application or entry into the United States. 8 CFR § 214.11(k)(5)(iii).
  • Clarifying that children and unmarried siblings under 18 must remain unmarried to be eligible for derivative T status. 8 CFR § 214.11(k)(5)(v).
  • Allowing principal applicants of any age to apply for derivative status for unmarried siblings under 18 and parents, and for children (adult or minor) of the principal’s derivative family members, if the family member faces a present danger of retaliation as a result of the principal’s escape from a severe form of trafficking or cooperation with law enforcement. 8 CFR § 214.11(k)(1)(iii).
  • Removing the requirement that derivative family members must face extreme hardship if not allowed to accompany or follow to join the principal. [8 CFR § 11(o)(1)(ii) removed].

In addition to the regulatory changes to conform to the statute, DHS made discretionary changes and clarifications that include:

  • Removing the primary and secondary evidence distinction and replacing it with an “any credible evidence” standard to meet the eligibility requirements for T nonimmigrant status. Under the new regulations, USCIS will accept any credible evidence that the applicant is a victim of a severe form of trafficking, including but not limited to a law enforcement agency endorsement or grant of continued presence. The rules note that a law enforcement agency endorsement is not mandatory, but merely one form of possible evidence, and will not be given any special evidentiary weight. 8 CFR §§ 214.11(d)(2)(ii) and (3) and 8 CFR § 214.11(f).
  • Clarifying that the definition of “severe form of trafficking in persons” does not require an applicant to have performed labor, services or a commercial sex act to be considered a victim for T eligibility purposes. In these situations, the victim must establish that he or she was recruited, transported, harbored, provided, or obtained for the purposes of subjection to sex trafficking, involuntary servitude, peonage, debt bondage or slavery. 8 CFR § 214.11(f)(1).
  • Removing the “opportunity to depart” regulatory requirement for those who escape traffickers before law enforcement involvement. 8 CFR § 214.11(g)(2).
  • Changing the standard for exercising waiver authority over criminal grounds of inadmissibility when the criminal activity was not caused by or incident to the trafficking. Under the old regulations, USCIS would exercise its discretion to waive the criminal grounds only in “exceptional circumstances.” In the new rule, in exercising its discretion USCIS will consider the number and seriousness of the criminal offenses and convictions. In cases involving violent or dangerous crimes, USCIS will only exercise favorable discretion in “extraordinary circumstances.” 8 CFR § 212.16(b)(3).
  • Removing the filing deadline for applicants victimized before Oct. 28, 2000, the date the VTVPA was enacted. USCIS will now accept applications regardless of when the applicant was victimized. 8 CFR § 214.11(d)(4).
  • Removing the requirement that the applicant submit three passport style photographs. 8 § CFR 214.11(d)(4).

The new T nonimmigrant regulations can be found in 81 Fed. Reg. 92266 (Dec. 19, 2016): https://www.federalregister.gov/documents/2016/12/19/2016-29900/classification-for-victims-of-severe-forms-of-trafficking-in-persons-eligibility-for-t-nonimmigrant.