Rule2024-09022
Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status
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Published
April 30, 2024
Effective
August 28, 2024
Issuing agencies
Homeland Security Department
Abstract
On December 19, 2016, the Department of Homeland Security (DHS) published an interim final rule (2016 interim rule) amending its regulations governing the requirements and procedures for victims of a severe form of trafficking in persons seeking T nonimmigrant status. The 2016 interim rule amended the regulations to conform with legislation enacted after the publication of the initial regulations and to codify discretionary changes based on DHS's experience implementing the T nonimmigrant status program since it was established in 2002. DHS is adopting the 2016 interim rule as final with several clarifying changes based on USCIS experience implementing the interim rule, in response to comments received, and due to an organizational change to move the regulations to a separate subpart as explained in the SUPPLEMENTARY INFORMATION section below. This final rule is intended to respond to public comments and clarify the eligibility and application requirements so that they conform to current law.
Full Text
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[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34864-34943]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09022]
[[Page 34863]]
Vol. 89
Tuesday,
No. 84
April 30, 2024
Part IX
Department of Homeland Security
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8 CFR Parts 212, 214, 245, et al.
Classification for Victims of Severe Forms of Trafficking in Persons;
Eligibility for ``T'' Nonimmigrant Status; Final Rule
Federal Register / Vol. 89 , No. 84 / Tuesday, April 30, 2024 / Rules
and Regulations
[[Page 34864]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 212, 214, 245, and 274a
[CIS No. 2507-11; DHS Docket No. USCIS-2011-0010]
RIN 1615-AA59
Classification for Victims of Severe Forms of Trafficking in
Persons; Eligibility for ``T'' Nonimmigrant Status
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security.
ACTION: Final rule.
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SUMMARY: On December 19, 2016, the Department of Homeland Security
(DHS) published an interim final rule (2016 interim rule) amending its
regulations governing the requirements and procedures for victims of a
severe form of trafficking in persons seeking T nonimmigrant status.
The 2016 interim rule amended the regulations to conform with
legislation enacted after the publication of the initial regulations
and to codify discretionary changes based on DHS's experience
implementing the T nonimmigrant status program since it was established
in 2002. DHS is adopting the 2016 interim rule as final with several
clarifying changes based on USCIS experience implementing the interim
rule, in response to comments received, and due to an organizational
change to move the regulations to a separate subpart as explained in
the SUPPLEMENTARY INFORMATION section below. This final rule is
intended to respond to public comments and clarify the eligibility and
application requirements so that they conform to current law.
DATES: This rule is effective August 28, 2024.
Comments on the Paperwork Reduction Act section of this final rule
must be submitted by July 1, 2024.
FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, Office of
Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, by mail at 5900 Capital Gateway Dr,
Camp Springs, MD 20529-2140; or by phone at 240-721-3000 (this is not a
toll-free number). Individuals with hearing or speech impairments may
access the telephone numbers above via TTY by calling the toll-free
Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Changes Made in the Final Rule
1. Definitions
2. Bona Fide Determination Process
3. Evidence of Extreme Hardship
4. Technical Changes
C. Costs and Benefits
II. Background and Legislative Authority
III. Response to Public Comments on the 2016 Interim Final Rule
A. Summary of Public Comments
B. General and Preliminary Matters
1. General Support for the Rule
2. Additional Comments
C. Terminology
D. Definitions
1. Involuntary Servitude
b. Reasonable Person Standard
c. Involuntary Servitude Induced by Domestic Violence
d. Mixed Motives
2. Law Enforcement Agency (LEA)
3. Law Enforcement Involvement
4. Reasonable Request for Assistance
5. Commercial Sex Act
6. Severe Form of Trafficking in Persons
E. Evidence and Burden and Standard of Proof
1. Reasonable Person Standard
2. Credibility of Evidence
3. Opportunity To Respond to Adverse Information
4. Requests for Evidence (RFE)
F. Application
1. Applicant Statements
2. Interviews of Applicants
3. Notification to the Department of Health and Human Services
(HHS)
4. Notification of Approval of T Nonimmigrant Status
G. Law Enforcement Declarations
1. Declaration Signature
2. Withdrawn Declarations and Revoked Continued Presence (CP)
3. Requirement To Sign Law Enforcement Declaration
H. Bona Fide Determination (BFD)
I. Evidence To Establish Trafficking
J. Physical Presence
1. Applicability of Physical Presence Requirement
2. Passage of Time Between Trafficking and Filing the T Visa
3. LEA Liberation and LEA Involvement
4. Presumption of Physical Presence
5. Continuing Presence and Nexus to Trafficking
6. Effect of Departure or Removal
7. Trafficking That Occurs Outside the United States, and
Traveling Outside the United States Following Victimization
8. Opportunity To Depart
9. Presence for Participation in Investigative or Judicial
Process
10. Evidence To Establish Physical Presence
K. Compliance With any Reasonable Request for Assistance
1. Requirement To Comply With Reasonable Request
2. Incompetence and Incapacity
3. Minimum Contact With Law Enforcement
4. Determining the Reasonableness of a Request
5. Trauma Exception
6. DHS Contact With Law Enforcement
7. Age Exemption
L. Extreme Hardship
M. Family Members Facing a Present Danger of Retaliation
N. Marriage of Principal After Principal Files Application for T
Nonimmigrant Status
O. Relationship and Age-Out Protections
P. Travel Abroad
Q. Extension of Status
R. Revocation Procedures
S. Waivers of Inadmissibility
T. Adjustment of Status
U. Applicants and T Nonimmigrants in Removal Proceedings or With
Removal Orders
1. Principal Applicants, T-1 Nonimmigrants, and Derivative
Family Members
2. Immigration Judges
3. Automatic Stays of Removal
4. Unrepresented Applicants
5. Detained Applicants
6. Reinstatement of Removal
7. Issuances of Notices to Appear (NTAs)
V. Notification to ICE of Potential Trafficking Victims
W. Fees
X. Restrictions on Use and Disclosure of Information Relating to
T Nonimmigrant Status
Y. Public Comment and Responses on Statutory and Regulatory
Requirements
Z. Biometrics
AA. Trafficking Screening, Training, and Guidance
1. Screening
2. Training
3. Guidance
BB. Miscellaneous Comments
1. Cases Involving Multiple Victims
2. Social Security Cards
3. Victim-Blaming
4. Processing Times
5. Motions To Reopen and Reconsider
6. HHS Notification
7. Program Integrity
8. Annual Cap
9. Continued Presence Adjudication
10. Comment Period
CC. Out of Scope Comments
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866, 13563, and 14094
1. Summary
2. Background and Population
3. Updates to the Economic Analysis Since the 2016 Interim Rule,
Pre-IFR Baseline
4. Costs, and Benefits of the Final Rule
5. Final Costs of the Final Rule
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. Family Assessment
J. National Environmental Policy Act
[[Page 34865]]
K. Paperwork Reduction Act
1. Comments on the Information Collection Changes to Form I-914
and Related Forms and Instructions Published With the 2016 Interim
Rule
2. Comments on Information Collection Changes to Form I-914,
Application for T Nonimmigrant Status, and Related Forms and
Instructions Published With Final Rule (60 Day Notice)
3. Changes to Form I-914, Form I-765, and Related Forms and
Instructions Published With Final Rule
I. Executive Summary
A. Purpose of the Regulatory Action
The T nonimmigrant status regulations--which include the
eligibility criteria, application process, evidentiary standards, and
benefits associated with the T nonimmigrant classification (commonly
known as the ``T visa'' \1\)--have been in effect since a 2002 interim
rule. New Classification for Victims of Severe Forms of Trafficking in
Persons; Eligibility for ``T'' Nonimmigrant Status, 67 FR 4783 (Jan.
31, 2002) (2002 interim rule). Since the publication of that interim
rule, the public submitted comments on the regulations, and Congress
enacted numerous pieces of related legislation. DHS published a 2016
interim rule to respond to the public comments, clarify requirements
based on statutory changes and its experience operating the program for
more than 14 years, and amend provisions as required by legislation.
Classification for Victims of Severe Forms of Trafficking in Persons;
Eligibility for ``T'' Nonimmigrant Status, 81 FR 92266 (Dec. 19, 2016).
In July 2021, DHS reopened the public comment period for the interim
rule for 30 days, and subsequently extended the deadline for comments.
This final rule adopts the changes in the 2016 interim rule, with some
modifications. The rationale for the 2016 interim rule and the
reasoning provided in the preamble to the 2016 interim rule remain
valid with respect to many of those regulatory amendments, and DHS
adopts such reasoning to support this final rule. In response to the
public comments received on the 2016 interim rule, DHS has modified
some provisions in the final rule. DHS has also made some technical
changes in the final rule. The changes are summarized in the following
section I.B. Responses to public comments, and substantive changes
being made in response, are discussed in detail in section III.
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\1\ Although T nonimmigrant status is known as the ``T visa''
colloquially, such a classification is not entirely accurate. T-1
applicants must be physically present in the United States or at a
port of entry on account of the trafficking in persons to be
eligible for T-1 nonimmigrant status, so they do not obtain a ``T
visa'' to enter the United States. T-1 nonimmigrants may seek
derivative T nonimmigrant status for certain family members. See new
8 CFR 214.211(a). Some of these family members may reside outside
the United States and, if eligible, can join the T-1 nonimmigrant in
the United States. Before family members with approved applications
for derivative T nonimmigrant status can enter the United States,
the family members must first undergo processing with the Department
of State (DOS) at a U.S. Embassy or Consulate to obtain a T visa
abroad. This is known as consular processing. USCIS will decide
based on the application filed by the T-1 nonimmigrant whether an
overseas family member qualifies for derivative T nonimmigrant
status. DOS will then separately determine that family member's
eligibility to receive a visa to enter the United States. A family
member outside of the United States is not a derivative T
nonimmigrant until they are granted a T-2, T-3, T-4, T-5, or T-6
visa by the DOS and are admitted to the United States in T
nonimmigrant status. See new 8 CFR 214.211(a).
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B. Summary of Changes Made in the Final Rule
1. Definitions
In the final rule, DHS has updated several definitions to clarify
them and ensure that they are consistent with those in the Trafficking
Victims Protection Act of 2000 (TVPA), as amended. See 22 U.S.C. 7102;
new 8 CFR 214.201. The rule strikes language from the definition of
``involuntary servitude'' which had been derived from the United States
v. Kozminski, 487 U.S. 931 (1988), decision. DHS has also added
definitions of the terms ``serious harm'' and ``abuse or threatened
abuse of the legal process.'' Additionally, DHS has added a definition
of ``incapacitated or incompetent.'' DHS has clarified in the
definition of law enforcement agency several additional examples of
what may constitute such an agency. In addition, DHS has amended the
definition for ``Law Enforcement Agency declaration.'' DHS has also
included a new definition for the term ``law enforcement involvement.''
Finally, DHS has struck repetitive language from the definition of
``reasonable request for assistance.''
2. Bona Fide Determination Process
DHS has moved the definition of ``bona fide determination,'' (BFD)
to define the process in the relevant provision of the regulations for
clarity. See new 8 CFR 214.204(m), 214.205.
DHS has also amended provisions regarding BFDs, which reflect a
modified process. See new 8 CFR 214.204(m), 214.205, and
274a.12(c)(40). The new streamlined process will include case review
and background checks. Once an individual whose application has been
deemed bona fide files a Form I-765, Application for Employment
Authorization under new 8 CFR 274.a12(c)(40), USCIS will consider
whether an applicant warrants a favorable exercise of discretion and
will be granted deferred action and a BFD employment authorization
document.\2\
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\2\ Persons seeking or granted T nonimmigrant status pay no fee
for Form I-765. See 8 CFR 106.3(b)(2)(viii).
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3. Evidence of Extreme Hardship
In response to comments, DHS is clarifying the regulations to state
that hardship to persons other than the applicant will be considered
when determining whether an applicant would suffer the requisite
hardship, only if the evidence specifically demonstrates that the
applicant will suffer hardship upon removal as a result of hardship to
a third party. New 8 CFR 214.209(c)(2).
4. Technical Changes
a. Reorganization of 8 CFR Part 214
This rule moves the regulations for T nonimmigrant status to a
separate subpart of 8 CFR part 214 to reduce the length and density of
part 214 and to make it easier to locate specific provisions. In
addition to the renumbering and redesignating of paragraphs, the rule
has reorganized and reworded some sections to improve readability, such
as in new sections 8 CFR 214.204(d)(1) (discussing the law enforcement
agency (LEA) declaration) and 8 CFR 214.208(e)(1) (discussing the
trauma exception to the general requirement of compliance with any
reasonable law enforcement requests for assistance). The rule also
divides overly long paragraphs into smaller provisions to improve the
organization of the regulations.
The Administrative Procedure Act (APA) exempts from the prior
notice and opportunity for comment requirements, ``. . . rules of
agency organization, procedure or practice.'' 5 U.S.C. 553(b)(A).
Restructuring the regulations and moving them to a separate subpart
resulted in no substantive changes to program requirements. This rule's
changes to renumber paragraphs and improve readability affects rules of
agency organization, procedure or practice, and those portions of the
rule are exempt from the notice-and-comment requirements under 5 U.S.C.
553(b)(A).
Table 1 lists where provisions of 8 CFR 214.11 that were codified
in the 2016 interim rule have been moved to in this final rule.
[[Page 34866]]
[GRAPHIC] [TIFF OMITTED] TR30AP24.036
b. Terminology Changes
USCIS is making technical clarifications throughout the regulation
in amending the use of the term ``alien'' and replacing it with
``victim,'' ``applicant,'' ``survivor,'' or ``noncitizen'' where
appropriate. USCIS is also updating terminology to be gender neutral
throughout.
Throughout the regulations, DHS has made revisions to reference
``detection, investigation, or prosecution'' rather than just
``investigation or prosecution'' for consistency and accuracy.
DHS has also removed the term ``principal T nonimmigrant'' from the
regulations and replaced it with the term ``T-1 nonimmigrant.'' The
term ``principal T nonimmigrant'' did not appear elsewhere in the CFR,
whereas ``T-1 nonimmigrant'' is used consistently to describe a victim
of a severe form of trafficking in persons who has been granted T-1
nonimmigrant status.
c. Definition of Eligible Family Member
DHS has made a technical clarification to the definition of
``eligible family member.'' The 2016 Interim Rule defines this term as
a family member who may be eligible for derivative T nonimmigrant
status based on their relationship to a noncitizen victim and, if
required, upon a showing of a present danger or retaliation; however,
the statute indicates that the derivative must face a present danger of
retaliation as a result of escape from the severe form of trafficking
or cooperation with law enforcement. INA sec. 101(a)(15)(T)(ii)(III).
As such, DHS has made a technical revision to the regulatory text to
comply with Congressional intent. See new 8 CFR 214.201.
d. Clarification To Address T Visa Evidentiary Standard and Standard of
Proof
DHS is also clarifying the evidentiary standard and standard of
proof that apply to the adjudication of a T visa application. This rule
retains the standard that applicants may submit any credible evidence
relating to their T visa applications for USCIS to consider. See new 8
CFR 214.204(l).
e. Interview Authority
DHS is removing the interview provision at former 8 CFR
214.11(d)(6) to avoid redundancy. This section indicated that USCIS may
require an applicant for T nonimmigrant status to participate in a
personal interview. USCIS is removing this provision, because USCIS
authority to require any individual filing a benefit request to appear
for an interview is already covered at 8 CFR 103.2(b)(9).
f. USCIS Review
DHS has stricken ``de novo'' from 8 CFR 214.11(d)(5) and (8)
(redesignated as 8 CFR 214.204(l)(2) and (n)) to reflect that USCIS
conducts an initial review, not a ``de novo'' review.
g. Travel Authority
DHS has clarified that a noncitizen granted T nonimmigrant status
must apply for advance parole to return to the United States after
travel abroad pursuant to section 212(d)(5) of the INA, 8 U.S.C.
1182(d)(5). Compliance with advance parole procedures is required to
maintain T nonimmigrant status upon return to the United States and
remain eligible to adjust status under section 245(l) of the INA, 8
U.S.C. 1255(l). See new 8 CFR 214.204(p), 214.211(i)(4); 8 CFR
245.23(j).
h. Departure From the United States as a Result of Continued
Victimization
DHS wishes to clarify that the ``continued victimization'' criteria
referenced at 8 CFR 214.207(b)(1) does not require that the applicant
is currently a ``victim of a severe form of trafficking in persons.''
Instead, continued victimization can include ongoing victimization that
directly results from past trafficking. For example, if an applicant
experienced harm such as abduction, abuse, threats, or other trauma
that resulted in continuing harm, that applicant's reentry could be a
result of their continued victimization, even though they were not
trafficked upon reentry. As such, the applicant may be able to satisfy
the physical presence requirement if they establish that their reentry
into the United States was the result of continued victimization tied
to ongoing or past trafficking. See new 8 CFR 214.207(b)(1).
[[Page 34867]]
i. Severe Form of Trafficking in Persons
DHS has revised the regulatory text so that references to
``trafficking'' and ``acts of trafficking'' are consistent with the
INA, for consistency and clarity. These changes are intended to clarify
for applicants when ``a severe form of trafficking in persons'' applies
to a particular eligibility requirement and when instead
``trafficking'' or ``acts of trafficking'' apply to an eligibility
requirement. For example, applicants must demonstrate that they have
complied with reasonable requests for assistance in the investigation
or prosecution of ``acts of trafficking'' or the investigation of crime
where ``acts of trafficking'' are at least one central reason for the
commission of the crime, pursuant to section 101(a)(15)(T)(i)(III)(aa)
of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa), as distinct from a
``severe form of trafficking in persons'' that applies to other
eligibility requirements, such as section 101(a)(15)(T)(i)(I) of the
INA, 8 U.S.C. 1101(a)(15)(T)(i)(I). See, e.g., new 8 CFR 214.201,
214.204(c), 214.208(a) and (c) through (e), 214.209(b), 214.211(a),
214.212(a) and (e), 214.215(b) (addressing ``acts of trafficking'');
214.201, 214.202(a) and (e), 214.204(g), 214.206(a), 214.207(a) and
(b), 214.208(b), 214.209(b), 214.215(a) (discussing ``severe form of
trafficking in persons'').
j. Extreme Hardship Involving Unusual and Severe Harm
DHS has amended previous 8 CFR 214.11(i)(1) because the previous
citation at 8 CFR 240.58 no longer exists. See new 8 CFR 214.209(a).
k. Waiting List
DHS has revised previous 8 CFR 214.11(j) for clarity, and
reorganized the provision at new 8 CFR 214.210, to reflect how the
waiting list works in conjunction with the amended bona fide
determination process.
l. Appeal Rights and Procedures
USCIS has clarified appeal rights and procedures at new 8 CFR
214.213(c). See 8 CFR 103.3. USCIS has further clarified the existing
practice that an automatic revocation cannot be appealed. See new 8 CFR
214.213(a).
m. References to Forms
The phrase ``form designated by USCIS'' has been replaced in
several places with an official form name. Form numbers have also been
removed throughout and replaced by form names.
n. Law Enforcement Endorsement
DHS has updated references to ``Law Enforcement Endorsement'' to
instead refer to ``Law Enforcement Declaration.'' This update more
effectively captures the declaration process in the T visa program. In
addition, DHS has deleted the requirement under 8 CFR 214.11(d)(3)(i)
that a law enforcement agency (LEA) declaration must include ``the
results of any name or database inquiries performed'' because the
information is redundant, as USCIS conducts background checks on the
applicant as part of its adjudication.
o. Assistance in the Investigation or Prosecution for Adjustment of
Status
Prior to TVPRA 2008, the INA referenced the Attorney General at INA
section 245(l)(1)(C), 8 U.S.C. 1255(l)(1)(C), which describes the
requirement of assisting in an investigation or prosecution of acts of
trafficking. TVPRA 2008 amended the INA so that the Secretary of
Homeland Security is now only required to consult with the Attorney
General as appropriate. See INA sec. 245(l)(1)(C), 8 U.S.C.
1255(l)(1)(C). As a result of TVPRA 2008, DHS has sole jurisdiction
over the entire T nonimmigrant adjustment of status process, including
the determination of whether an applicant complied with any reasonable
requests for assistance in the investigation or prosecution of acts of
trafficking, and DHS consults the Attorney General as it deems
appropriate.\3\ The regulations state that the Attorney General has
jurisdiction to determine whether an applicant received any reasonable
request for assistance in the investigation or prosecution of acts of
trafficking, and, if so, whether they complied with that request. See
previous 8 CFR 245.23(d). This required applicants for adjustment of
status to submit a document issued by the Attorney General (or their
designee) certifying the applicant had complied with any reasonable
requests for assistance. See previous 8 CFR 245.23(f). After TVPRA
2008, however, an applicant was no longer required to obtain a
certification from the Attorney General to demonstrate compliance with
any reasonable requests in the investigation or prosecution of acts of
trafficking, and immigration officers were no longer required to deny
an application for lack of an Attorney General certification.\4\
Instead, officers were required to determine whether the applicant had
met the statutory requirement to comply with any reasonable request for
assistance. Therefore, consistent with DHS' longstanding practice, and
the changes made to the INA by TVPRA 2008, DHS amends 8 CFR 245.23(d)
and (f) in this rule to indicate that an applicant is not required to
provide a certification letter from the Attorney General regarding
their compliance with any reasonable request for assistance in the
investigation or prosecution of acts of trafficking. DHS has stricken
any reference to the Attorney General in these sections; applicants
must establish their compliance with any reasonable request for
assistance to the satisfaction of USCIS only.
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\3\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008: Changes to T and U
Nonimmigrant Status and Adjustment of Status Provisions; Revisions
to Adjudicator's Field Manual (AFM) Chapters 23.5 and 39 (AFM Update
AD10-38)'' (2010), <a href="https://www.uscis.gov/sites/default/files/document/memos/William-Wilberforce-TVPRAct-of-2008-July-212010.pdf">https://www.uscis.gov/sites/default/files/document/memos/William-Wilberforce-TVPRAct-of-2008-July-212010.pdf</a>
(TVPRA Memo).
\4\ See TVPRA memo.
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C. Costs and Benefits
As discussed further in the preamble below, this final rule adopts
the changes from the 2016 interim final rule (IFR), with some
modifications. The rationale for the 2016 interim rule and the
reasoning provided in the preamble to the 2016 interim rule remain
valid with respect to these regulatory amendments; therefore, DHS
adopts such reasoning to support this final rule. In response to the
public comments received on the 2016 interim rule, DHS has modified
some provisions for this final rule. In addition, DHS has also made
some technical changes in the final rule.
This final rule clarifies some definitions and amends the bona fide
determination (BFD) provisions to implement a new process. This final
rule also clarifies evidentiary requirements for hardship and codifies
the evidentiary standard of proof that applies to the adjudication of
an application for T nonimmigrant status. Lastly, DHS made technical
changes to the organization and terminology of 8 CFR part 214.
For the 10-year period of analysis of the rule using the post-IFR
baseline, DHS estimates the annualized costs of this rule will be
$807,314 annualized at 3 and 7 percent. Table 1 in section IV provides
a more detailed summary of the final rule provisions and their impacts.
II. Background and Legislative Authority
Congress created T nonimmigrant status in the TVPA. See Victims of
Trafficking and Violence Protection Act
[[Page 34868]]
of 2000, div. A, TVPA, Public Law 106-386, 114 Stat. 1464 (Oct. 28,
2000). Congress has since amended the TVPA, including the T
nonimmigrant status provisions, several times: Trafficking Victims
Protection Reauthorization Act (TVPRA) of 2003, Public Law 108-193, 117
Stat. 2875 (Dec. 19, 2003); Violence Against Women Act (VAWA) 2005,
Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006); Technical
Corrections to VAWA 2005, Public Law 109-271, 120 Stat. 750 (Aug. 12,
2006); TVPRA 2008, Public Law 110-457, 122 Stat. 5044 (Dec. 23, 2008);
VAWA 2013, Public Law 113-4, titles viii, xii, 127 Stat. 54 (Mar. 7,
2013); Justice for Victims of Trafficking Act (JVTA), Public Law 114-
22, 129 Stat 227 (May 29, 2015). The TVPA may be found in 22 U.S.C.
7101-7110; 22 U.S.C. 2151n, 2152d.
The TVPA and subsequent reauthorizing legislation provide various
means to detect and combat trafficking in persons, including tools to
effectively prosecute and punish perpetrators of trafficking in
persons, and protect victims of trafficking through immigration relief
and access to Federal public benefits. T nonimmigrant status is one
type of immigration relief available to victims of a severe form of
trafficking in persons who assist LEAs in the investigation or
prosecution of the perpetrators of these crimes.
The Immigration and Nationality Act (INA) permits the Secretary of
Homeland Security (Secretary) to grant T nonimmigrant status to
individuals who are or were victims of a severe form of trafficking in
persons and have complied with any reasonable request by an LEA for
assistance in an investigation or prosecution of crime involving acts
of trafficking in persons (or are under 18 years of age or are unable
to cooperate due to physical or psychological trauma), and to certain
eligible family members of such individuals.\5\ See INA sec.
101(a)(15)(T)(i)(I), (III), (ii), 8 U.S.C. 1101(a)(15)(T)(i)(I), (III),
(ii). Applicants for T-1 nonimmigrant status must be physically present
in the United States, American Samoa, or the Commonwealth of the
Northern Mariana Islands, or at a port-of-entry to the United States,
on account of a severe form of trafficking in persons. This includes
being physically present on account of having been allowed to enter the
United States to participate in investigative or judicial processes
associated with an act or a perpetrator of trafficking. See INA sec.
101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II). In addition, an
applicant must demonstrate that they would suffer extreme hardship
involving unusual and severe harm if removed from the United States.
See INA sec. 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV). T
nonimmigrant status allows eligible individuals to: remain in the
United States for a period of not more than four years (with the
possibility for extensions in some circumstances), receive work
authorization, become eligible for certain Federal public benefits and
services, and apply for derivative status for certain eligible family
members. See INA sec. 214(o), 8 U.S.C. 1184(o); INA sec. 101(i)(2), 8
U.S.C. 1101(i)(2); 22 U.S.C. 7105(b)(1)(A); TVPA 107(b)(1); section 431
of the Personal Responsibility and Work Opportunity Reconciliation Act
of 1996, as amended, 8 U.S.C. 1641(c)(4); INA sec. 101(a)(15)(T)(ii), 8
U.S.C. 1101(a)(15)(T)(ii). T nonimmigrants who qualify may also be able
to adjust their status and become lawful permanent residents. INA sec.
245(l), 8 U.S.C. 1155(l).
---------------------------------------------------------------------------
\5\ The primary applicant who is the victim of trafficking may
also be referred to as the ``principal T nonimmigrant'' or
``principal applicant'' and receives T-1 nonimmigrant status, if
eligible. The principal applicant may be permitted to apply for
certain family members who are referred to as ``eligible family
members'' or ``derivative T nonimmigrants'' and if approved, those
family members receive T-2, T-3, T-4, T-5, or T-6 nonimmigrant
status. The term derivative is used in this context because the
family member's eligibility derives from that of the principal
applicant.
---------------------------------------------------------------------------
III. Response to Public Comments on the 2016 Interim Final Rule
A. Summary of Public Comments
On December 19, 2016, DHS published an interim final rule (IFR) in
the Federal Register and received 17 public comments. 81 FR 92266 (Dec.
19, 2016). On July 16, 2021, DHS reopened the public comment period for
the IFR rule for 30 days to provide the public with further opportunity
to comment on the interim final rule. 86 FR 37670 (July 16, 2021). DHS
received multiple requests from stakeholders to extend the deadline for
submitting public comments during the reopened public comment period.
In response to that request, DHS extended the reopened comment period
for an additional 30 days, to provide a total of 60 days for the public
to submit comments. DHS received an additional 41 comments on the IFR
during the reopened comment period. In total, between the two comment
periods, DHS received 58 comments. DHS has reviewed all the public
comments and addresses them in this final rule.
B. General and Preliminary Matters
Most comments came from representatives of nonprofit legal service
providers who provided detailed recommendations based on their
experience advocating for and providing services to trafficking
victims. Commenters also included members of the public and individual
law practitioners.
1. General Support for the Rule
Comment: Most commenters were generally in favor of the 2016
interim rule. Several commenters supported DHS's decision to issue
detailed regulations that reflect statutory changes since the initial
2002 interim rule; some commenters mentioned the confusion that has
been caused by having outdated regulations that did not reflect
subsequent statutory changes. Some commenters expressed concern about
the growing epidemic of human trafficking in the United States and
globally. Commenters expressed support for the following:
<bullet> Eliminating the requirement that applicants for T
nonimmigrant status provide three passport-sized photographs with their
applications, which saves victims and assisting nonprofit organizations
time and money;
<bullet> Removing the filing deadline for applicants whose
trafficking occurred before October 28, 2000, recognizing that there
was no statutory requirement for the deadline;
<bullet> Clarifying that if a T nonimmigrant cannot file for
adjustment of status within the 4-year filing deadline and can show
exceptional circumstances, they may be eligible to receive an extension
of status and may potentially be able to adjust status to a lawful
permanent resident;
<bullet> Updating regulatory language to reflect statutory changes
to the categories of eligible family members and clarifying age-out
protections for family members who are eligible at the time of filing
but exceed the required age before USCIS adjudicates the application;
<bullet> Clarifying that T nonimmigrant applicants are exempted
from the public charge ground of inadmissibility;
<bullet> Revising the waiver authority for grounds of
inadmissibility during the T nonimmigrant application stage and the T
adjustment of status stage;
<bullet> Providing additional guidance that an individual need not
actually perform labor, services, or commercial sex acts to meet the
definition of a ``victim of a severe form of trafficking in persons'';
<bullet> Clarifying the ``any credible evidence'' standard;
[[Page 34869]]
<bullet> Referencing the confidentiality provisions that apply to
applicants for T nonimmigrant status under 8 U.S.C. 1367(a)(2) and (b);
<bullet> Exempting applicants who, due to trauma, are unable to
comply with any reasonable request by a law enforcement agency;
<bullet> Clarifying that presence in the Commonwealth of the
Northern Mariana Islands after being granted T nonimmigrant status
qualifies towards meeting the requisite physical presence requirement
for adjustment of status;
<bullet> Conforming the regulatory definition of sex trafficking to
the revised statutory definition in section 103(10) of the TVPA, 22
U.S.C. 7102(10), as amended by section 108(b) of the JVTA, 129 Stat.
239;
<bullet> Expanding the definition of ``Law Enforcement Agency'' to
include State and local agencies, as well as those that detect and
investigate trafficking;
<bullet> Removing the requirement that an applicant establish they
had no ``opportunity to depart'' the United States and clarifying the
circumstances in which an applicant who has left the United States can
establish physical presence in the United States on account of
trafficking;
<bullet> Clarifying that ``involuntary servitude'' encompasses
``the use of psychological coercion''; and
<bullet> Removing the extreme hardship requirement for overseas
derivative family members.
Response: DHS acknowledges and appreciates commenters' support of
the rule. DHS agrees with the substance of these comments and believes
these changes provide greater clarity and further align the T visa
program with its statutory purpose.
2. Additional Comments
Commenters also requested that DHS modify certain provisions in the
2016 interim rule. Although there was some variation in the proposed
changes, there was also significant overlap in their comments. DHS
considered the comments received and all other material contained in
the docket in preparing this final rule. This final rule does not
address comments beyond the scope of the 2016 interim rule, including,
for instance, those that express general opinions, those that include
personally identifying information, or those that request that USCIS
establish a regular timeline for regulatory updates. All comments and
other docket material are available for viewing at the Federal Docket
Management System (FDMS) at <a href="http://www.regulations.gov">www.regulations.gov</a> and searching under
Docket Number USCIS-2011-0010.
Many commenters wrote about several subjects. Comments are
summarized for clarity and combined with other comments on the same
subject matter. The substantive comments received on the 2016 interim
rule and DHS responses are discussed in depth below.
C. Terminology
Comment: Several commenters requested terminology changes to the
regulation, including replacing ``victim'' with ``survivor,'' using
gender neutral language throughout, and replacing ``alien'' with a more
appropriate term.
Response: DHS agrees with these recommendations and has made
technical clarifications throughout the regulation in amending the use
of the term ``alien'' and replacing it with ``victim,'' ``applicant,''
``survivor,'' or ``noncitizen'' where appropriate, while recognizing
that ``alien'' is the statutorily-defined term used by Congress in INA
sec. 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T) and INA sec. 214(o), 8
U.S.C. 1184(o).\6\ DHS has also updated terminology to be gender
neutral throughout.
---------------------------------------------------------------------------
\6\ See INA sec. 101(a)(3), 8 U.S.C. 1101(a)(3) (The term
``alien'' means any person not a citizen or national of the United
States).
---------------------------------------------------------------------------
D. Definitions
DHS added U.S. Code citations to the regulations that will be
afforded due regard throughout subpart B of 8 CFR part 214 based on
amendments to subsequent reauthorizing legislation.
1. Involuntary Servitude
Comment: Commenters wrote that they supported DHS removing the
citation to United States v. Kozminski, 487 U.S. 931 (1988), from the
definition of ``involuntary servitude'' and made several suggestions
for further clarifying the definition. Several commenters requested
that DHS delete language derived from the Kozminski decision to avoid
confusion and promote consistency with the statutory definition of
``involuntary servitude'' at 22 U.S.C. 7102, which codifies section 103
of the TVPA and subsequent amendments.
Response: DHS agrees to delete the language derived from the
Kozminski decision from the rule's involuntary servitude definition
that is inconsistent with the TVPA's definition at 22 U.S.C. 7102(8).
As stated in the preamble to the 2002 interim rule, Congress intended
to expand the definition of involuntary servitude that was used in
Kozminski by broadening the types of criminal conduct that could be
labeled ``involuntary servitude.'' 67 FR 4786.
a. Abuse of the Legal System and Serious Harm
Comment: One commenter wrote that DHS should acknowledge that
traffickers may specifically traffic individuals to force them to
commit crimes for the benefit of the trafficker, force victims to
commit crimes as a control mechanism, and target individuals with
criminal histories for trafficking due to that person's reluctance or
inability to seek redress from law enforcement agencies.
Response: DHS acknowledges that traffickers target individuals for
these reasons, but does not feel it appropriate or necessary to include
references to such practices in the regulations.
Comment: Multiple commenters proposed that the definitions section
of the regulation adopt the current terms of ``abuse or threatened
abuse of the legal process'' and ``serious harm'' from the criminal
provisions related to ``forced labor'' in 18 U.S.C. 1589 and ``sex
trafficking'' in 18 U.S.C. 1591, respectively. The commenters stated
that these additional definitions would clarify for attorneys, LEAs,
and advocates that ``serious harm'' is not based on subjective severity
but broadly encompasses the surrounding circumstances, including
financial and reputational harm. They commented further that many
practitioners do not realize that ``abuse or threatened abuse of legal
process'' can include administrative or civil processes and that the
inclusion of these two definitions would be consistent with
Congressional intent regarding how these terms should be interpreted in
the trafficking context.
Response: DHS agrees with these proposed changes and the
commenters' stated rationale. As stated in the preamble to the 2002
interim rule on T nonimmigrant status, the TVPA defines ``a severe form
of trafficking in persons'' to include ``involuntary servitude.'' For
purposes of T nonimmigrant status, this inclusion and other relevant
definitions from section 103 of the TVPA, as amended, 22 U.S.C. 7102,
apply. See 67 FR 4783, 4786. In defining ``severe form of trafficking
in persons,'' the TVPA ``builds upon the Constitutional prohibition on
slavery, on the existing criminal law provisions on slavery and peonage
(Chapter 77 of title 18, U.S. Code, sections 1581 et seq.), on the case
law interpreting the Constitution and these statutes (specifically
United States v. Kozminski, 487 U.S. 931, 952 (1988)), and on the new
criminal law prohibitions contained in the TVPA.''
[[Page 34870]]
Id. Furthermore, ``[t]he statutory definition of involuntary servitude
[in the TVPA] reflects the new Federal crime of `forced labor'
contained in section 103(5) of the TVPA, and expands the definition of
involuntary servitude contained in Kozminski.'' Id. Thus, DHS agrees
that it is appropriate to draw from the definition of ``serious harm''
in the statute that criminalizes forced labor, 18 U.S.C. 1589.
Accordingly, DHS incorporates these definitions in new 8 CFR 214.201.
b. Reasonable Person Standard
Comment: One commenter requested that the Department state within
the involuntary servitude definition that the reasonable person
standard applies to those with mental, cognitive, and physical
disabilities or those who have been trafficked by a family member.
Response: DHS acknowledges that these factors are considered in
individual cases but declines to adopt this language within the
definition of involuntary servitude, as DHS does not feel it is
necessary or prudent to address every possible scenario within the
regulations and that such factors are best addressed in sub-regulatory
guidance.\7\
---------------------------------------------------------------------------
\7\ For example, see U.S. Citizenship and Immigr. Servs., U.S.
Dep't of Homeland Security, ``Volume 3, Humanitarian Protection and
Parole, Part B, Victims of Trafficking, Chapter 2, Eligibility
Requirements, Section B, Victim of Severe Form of Trafficking in
Persons, Subsection 3, Definition of Coercion,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-chapter-2 (discussing
analyzing coercion using a ``reasonable person'' standard) (last
updated Oct. 20, 2021). As discussed elsewhere, DHS also applies a
victim-centered approach in its adjudications, which takes into
consideration all relevant factors in the case, including a victim's
individual circumstances. See, e.g., U.S. Citizenship and Immigr.
Servs., U.S. Dep't of Homeland Security, ``Volume 3, Humanitarian
Protection and Parole, Part B, Victims of Trafficking, Chapter 7,
Adjudication, Section A, Victim-Centered Approach,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-chapter-7 (last updated
Oct. 20, 2021).
---------------------------------------------------------------------------
c. Involuntary Servitude Induced by Domestic Violence
Comment: One commenter requested that the Department codify within
the definition of involuntary servitude that the trafficker could be
the victim's ``paramour or relative.'' Other commenters stated that
USCIS inaccurately characterizes domestic relationships and presumes
that the presence of domestic violence negates the possibility of
trafficking.
Response: DHS acknowledges that trafficking can occur alongside
intimate partner abuse, and involuntary servitude and domestic violence
may coexist in some situations; however, DHS declines the commenter's
suggestion. DHS believes that the regulations are not intended to
explicitly capture every possible situation, and that this degree of
specificity would not be helpful, and may inadvertently preclude
scenarios that are not explicitly described in the regulation.
In determining whether threats, abuse, or violence create a
condition of involuntary servitude that constitutes a severe form of
trafficking in persons, DHS evaluates a number of factors, including
but not limited to whether the situation involves compelled or coerced
labor or services and is induced by force, fraud, or coercion. Although
domestic violence and trafficking may intersect, not all work that
occurs as the result of domestic violence constitutes involuntary
servitude. To distinguish between domestic violence and labor
trafficking resulting from domestic violence, an individual must
demonstrate that the perpetrator's motive is or was to subject them to
involuntary servitude.
d. Mixed Motives
Commenter: Several commenters wrote that DHS has incorrectly
suggested that a trafficker's sole purpose must be involuntary
servitude, and that a trafficker's intent cannot also be extortion or
for monetary gain. They request DHS clarify that an applicant may meet
the definition of a severe form of trafficking in persons if at least
one purpose of the perpetrator's force, fraud, or coercion is to
subject the person to involuntary servitude, peonage, debt bondage,
slavery, or a commercial sex act. Commenters also request that DHS
specify in the preamble of the final rule that a severe form of
trafficking in persons may occur during smuggling even if the smugglers
also have the purpose of subjecting the victim or their families to
other crimes such as extortion, if they also have the purpose of
subjecting them to, inter alia, involuntary servitude or commercial
sex.
Response: DHS agrees that a trafficker may simultaneously have
multiple motivations, including a desire to subject the victim to
involuntary servitude and a desire for monetary gain through extortion.
DHS acknowledges, as commenters note, that human trafficking rarely
occurs in a vacuum. In the process of exerting force, fraud, and/or
coercion on their victims, perpetrators may commit other crimes during
the scheme to initiate and maintain control over the victim, including
false imprisonment, assault, sexual assault, domestic violence, and
extortion.
A perpetrator's motivations can be multifaceted. For example,
smugglers who intend to extort an individual during a smuggling
arrangement may also intend to compel forced labor or services that
place the person into a condition of servitude, even where the forced
labor or services end upon completion of the smuggling arrangement.
Nonetheless, DHS recognizes that not all smuggling arrangements can or
will qualify as a severe form of trafficking in persons, particularly
where smugglers force a person to perform an act or multiple acts
outside of a condition of servitude during a smuggling operation. For
example, a person may be forced to perform certain labor during a
smuggling arrangement to facilitate the smuggling operation or avoid
detection at the border, which would not qualify as involuntary
servitude and therefore would not constitute trafficking or a severe
form of trafficking in persons. In addition, there may be situations
where an individual is forced to perform labor for another purpose, and
not for the purpose of involuntary servitude, peonage, debt bondage, or
slavery. As with any T visa application, DHS considers all the evidence
on a case-by-case basis before making a final determination on an
application.
Although DHS agrees with the commenter, no changes have been made
to the regulatory text in response to this comment given DHS'
consideration of these factors when evaluating evidence in cases
involving smuggling, as detailed in existing USCIS policy guidance.\8\
---------------------------------------------------------------------------
\8\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Volume 3, Humanitarian Protection and Parole,
Part B, Victims of Trafficking, Chapter 2, Eligibility Requirements,
Section B, Victim of Severe Form of Trafficking in Persons,
Subsection 7, Difference Between Trafficking and Smuggling,''
<a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-chapter-2 (last
updated Oct. 20, 2021).
---------------------------------------------------------------------------
2. Law Enforcement Agency (LEA)
Comment: One commenter suggested using the term ``law enforcement
agency'' (LEA) consistently throughout the regulation to provide
clarity.
Response: DHS agrees with this comment and has amended the
regulation to use the term ``law enforcement agency'' consistently
throughout, rather than ``law enforcement'' or ``law enforcement
officer.''
Comment: Multiple commenters expressed support for DHS expanding
the definition of an LEA. Some commenters stated support for the rule's
clarification that LEAs can provide
[[Page 34871]]
Form I-914, Supplement B, Declaration of Law Enforcement Officer for
Victim of Trafficking in Persons,\9\ even when there is no formal
investigation or prosecution. Several commenters requested that the
rule further expand the LEA definition to include additional agencies,
which would help inform victims of their reporting options and identify
similar local and state counterpart agencies that would meet the LEA
definition. Commenters wrote that employees of some Federal agencies
have expressed confusion over their certification authority because
they are explicitly designated as certifying agencies in the
regulations for U nonimmigrant status but not in this regulation. See 8
CFR 214.14(a). Several commenters also requested DHS add tribal
authorities to the list of authorized LEAs.
---------------------------------------------------------------------------
\9\ The title of the Form I-914, Supplement B, is being changed
in this rule to ``Declaration for Trafficking Victim.''
---------------------------------------------------------------------------
Response: Although the list of agencies included is not exhaustive,
DHS agrees that expanding the list will provide clarity to victims,
stakeholders, and the LEAs themselves, and has updated the definition
accordingly. DHS has also amended the definition to include tribal
authorities. Including a more expansive list will assist certifiers and
will be an operational efficiency, as adjudicators will not need to
evaluate in each case whether a specific agency meets the definition of
an LEA.
3. Law Enforcement Involvement
Comment: DHS received comments related to the term ``law
enforcement involvement,'' which is a concept used to analyze whether
an applicant is physically present in the United States on account of
trafficking (``physical presence''). Commenters requested additional
clarification regarding the physical presence requirement, discussed in
further detail in section J, below.
Response: DHS has defined ``law enforcement involvement'' under new
8 CFR 214.207(c)(4) to mean LEA action beyond simply receiving the
applicant's reporting of victimization, to include the LEA interviewing
the applicant, liberating the applicant from their trafficking, or
otherwise becoming involved in detecting, investigating, or prosecuting
the acts of trafficking. Liberation of an applicant from their
trafficking will suffice to establish law enforcement involvement where
the record indicates that the LEA detected the applicant's trafficking
as part of this process. This definition will provide clarity to
adjudicators and stakeholders as to the extent of involvement required
for physical presence under new 8 CFR 214.207(c)(4).
4. Reasonable Request for Assistance
Although DHS did not specifically receive comments on this topic,
as a technical edit DHS has removed the term ``reasonable'' from the
definition of the term ``reasonable request for assistance,'' because
the initial inquiry for DHS is to determine whether a request was made.
After the threshold determination that a request was made by the LEA,
the reasonableness of that request is analyzed. Accordingly, the
reasonableness is assessed using the list of factors at new 8 CFR
214.208(c) (formerly 8 CFR 214.11(h)(2)). DHS retained ``reasonable
request for assistance'' in other sections to reflect this analysis.
DHS removed the paragraph at 8 CFR 214.11(a) describing the factors to
consider the reasonableness of a request, because this language was
duplicative of the language contained at 8 CFR 214.11(h)(2)
(redesignated as 8 CFR 214.208(c)). Several revisions were made to the
language at 8 CFR 214.208(c), which are discussed further below.
5. Commercial Sex Act
Comment: Commenters requested DHS interpret the term ``commercial
sex act'' broadly, beyond what the commenters understood the current
definition of ``anything of value'' may encompass, to avoid confusion
and maintain consistency with the statute and legal precedent.
Response: DHS acknowledges that the term ``anything of value'' has
been interpreted very broadly and encompasses things other than
monetary or financial gain. ``Anything of value'' may include a range
of activity that does not always have an exact monetary value attached
to it, including but not limited to safety, protection, housing,
immigration status, work authorization, or continued employment. Given
Congressional intent and the significant precedent interpreting the
term broadly, DHS has determined that it is not necessary to
specifically reflect this range of activity in the regulatory text.
6. Severe Form of Trafficking in Persons
Comment: One commenter wrote that DHS should clarify that attempted
trafficking may constitute a severe form of trafficking in persons by
adding the following language to the definition of ``severe form of
trafficking in persons'': ``This definition does not require a victim
to have actually performed labor, services, or a commercial sex act.''
Response: DHS agrees that it is not necessary for the victim to
actually perform the labor or commercial sex act(s) to be eligible for
T nonimmigrant status. For example, a victim may be recruited through
force, fraud, or coercion for the purpose of performing labor or
services but be rescued or have escaped before performing any labor or
services; however, DHS declines to adopt the commenter's suggestion to
state this directly in the definition of a severe form of trafficking
in persons, as the fact that attempted trafficking may qualify as
trafficking is already clarified at 8 CFR 214.206(a) (formerly 8 CFR
214.11(f)).
E. Evidence and Burden and Standard of Proof
USCIS has historically considered ``any credible evidence'' when
evaluating T visa applications. T nonimmigrant applicants are
instructed to submit any credible, relevant evidence to establish that
they have been a victim of a severe form of trafficking in persons, and
that they have complied with any reasonable request for assistance from
law enforcement. To this end, DHS has included new language in 8 CFR
214.204(f) indicating that all evidence demonstrating cooperation with
law enforcement will be considered under the ``any credible evidence''
standard, for consistency with the remainder of the rule, which states
that applicants may submit any credible evidence relating to their T
applications for USCIS to consider. See new 8 CFR 214.204(l).
The ``preponderance of the evidence'' standard of proof is distinct
from the evidentiary requirements and standard set by regulation.
Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). USCIS has historically
applied a ``preponderance of the evidence'' standard when determining
whether the T applicant has established eligibility and has included
that standard at new 8 CFR 214.204(l). To meet this standard, the
applicant must prove that facts included in their claim are ``more
likely than not'' to be true. Id. at 369. To determine whether an
applicant has met their burden under the ``preponderance of evidence''
standard, DHS considers not only the quantity, but also the quality
(including relevance, probative value, and credibility) of the
evidence. Id. at 376.
This standard of proof should not be confused with the burden of
proof. The burden of proving eligibility for the
[[Page 34872]]
benefit sought remains entirely with the applicant. Id. at 375.
1. Reasonable Person Standard
Comment: One commenter requested DHS acknowledge in the preamble or
regulation that individuals with cognitive, mental, and physical
impairments are at greater risk for trafficking and face greater
barriers to escape trafficking. The commenter stated that this should
be acknowledged so that whenever a reasonableness standard is used, it
should be interpreted as a reasonable person with the cognitive,
mental, and physical impairments of the specific applicant.
Response: DHS acknowledges that individuals with impairments are at
greater risk for exploitation. DHS does not believe that this is
necessary or appropriate to include in the regulation. DHS considers
all relevant evidence in adjudicating each case, including the
circumstances and any vulnerabilities of an individual applicant when
determining reasonableness.\10\ Despite the existence of certain
vulnerabilities, however, each applicant retains the burden of proof to
establish eligibility by a preponderance of the evidence.
---------------------------------------------------------------------------
\10\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Volume 3, Humanitarian Protection and Parole,
Part B, Victims of Trafficking, Chapter 3, Documentation and
Evidence for Principal Applicants,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-chapter-3 (discussing ``any credible
evidence'' and the nature of victimization) (last updated Oct. 20,
2021).
---------------------------------------------------------------------------
2. Credibility of Evidence
Comment: Commenters suggested that DHS amend provisions regarding
initial evidence at 8 CFR 214.11(d)(2) and (3) (redesignated here as 8
CFR 214.204(c) and (e)) to state that a victim's statement alone may
prove victimization.
Response: DHS declines to amend 8 CFR 214.11(d)(2) and (3)
(redesignated here as 8 CFR 214.204(c) and (e)) to explicitly state
that a victim's statement alone may prove victimization. While DHS may
determine, based on the facts and circumstances of a particular case,
that a personal statement alone may be sufficient to prove
victimization, in such a scenario, the victim's statement would have to
be sufficiently detailed, plausible, and consistent in order to satisfy
evidentiary requirements. With all T visa applications, DHS makes an
individualized determination of whether trafficking has been
established based on the evidence in each particular case. DHS notes
that it has revised the requirements for a victim's personal statement
included in the list of evidence in redesignated 8 CFR 214.204(c)
(Initial evidence). These additions are intended to clarify what is
expected to be included in a victim's personal statement to establish
eligibility and will reduce barriers for victims of trafficking. The
revisions in Sec. 214.204(c)(1) are intended to align with
longstanding USCIS policy guidance and practice, and are consistent
with the program's evidentiary standards.
Comment: One commenter requested DHS clarify that evidence is not
rendered less credible because of the amount of time that has elapsed
between an applicant's eligibility for T nonimmigrant status and when
they filed their application. The commenter also requested DHS clarify
that evidence, including personal statements and psychiatric
evaluations, is not less credible because it was generated in response
to a Request for Evidence.
Response: DHS acknowledges there may be legitimate reasons why
significant time elapses between an applicant's trafficking and when
they file for T nonimmigrant status. DHS also acknowledges that
individuals produce evidence that was not initially submitted with
their application in response to Requests for Evidence (RFEs) for
various reasons. DHS emphasizes that any credible evidence will be
evaluated in determining an applicant's eligibility but declines to
include this level of specificity within the regulation. DHS
acknowledges that due to the nature of victimization, victims may be
unable to provide information or documentation that would otherwise be
available to establish eligibility. USCIS instructs adjudicators to be
mindful of the ways trauma may impact victims, including their
recollection of traumatic experiences, which may shift over time.\11\
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\11\ As of the time of the publication of this regulation,
further policy guidance describing USCIS' interpretation of the T
nonimmigrant regulation can be found in the USCIS Policy Manual. See
U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``Volume 3, Humanitarian Protection and Parole, Part B,
Victims of Trafficking,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a> (last updated Oct. 20, 2021).
---------------------------------------------------------------------------
3. Opportunity To Respond to Adverse Information
Comment: Multiple commenters discussed RFEs \12\ that require
applicants to explain inconsistencies identified by adjudicators in the
applicant's administrative record to which the applicant is not privy.
The commenters stated that the inconsistent evidence typically is found
within records of other agencies and that attorneys often cannot obtain
this information in a timely manner through requests under the Freedom
of Information Act (FOIA), 5 U.S.C. 552, as amended. The commenters
also wrote that advocates have reported that U.S. Customs and Border
Protection (CBP) interviews were conducted without the use of trauma-
informed techniques and did not lead to accurate identification of
trafficking victims. The commenters wrote that statements taken during
these interviews can later appear to be inconsistent statements. The
commenters stated that the full content of the CBP interviews is not
released in response to a FOIA request and that the applicant is not
able to correct the inconsistent statements.
---------------------------------------------------------------------------
\12\ 8 CFR 103.2(b)(8)(ii) (``If all required initial evidence
is not submitted with the benefit request or does not demonstrate
eligibility, USCIS in its discretion may deny the benefit request
for lack of initial evidence or for ineligibility or request that
the missing initial evidence be submitted within a specified period
of time as determined by USCIS.'').
---------------------------------------------------------------------------
The commenters requested that DHS change the regulation to state
that DHS will consider the totality of the evidence submitted along
with the administrative record in evaluating the T visa application,
and that if information contained in the administrative record could
result in an unfavorable determination, the applicant must be given a
copy of the information and must be provided an opportunity to
meaningfully respond to such adverse evidence.
Response: DHS agrees that all evidence should be assessed in its
totality. DHS also agrees that it is important for applicants and their
advocates to understand derogatory information on which the decision
will be based; however, other regulatory provisions currently address
this issue. Specifically, under 8 CFR 103.2(b)(16)(i), when a decision
will be adverse and is based on derogatory information ``of which the
applicant or petitioner is unaware, [they] shall be advised of this
fact and offered an opportunity to rebut the information and present
information in [their] own behalf before the decision is rendered.''
Accordingly, when there is derogatory information of which the
applicant is unaware and upon which an adverse decision will be based,
USCIS will comply with existing laws and regulations in advising an
applicant of the derogatory information and offer them an opportunity
to rebut such information through an RFE, Notice of Intent to Deny, or
other formal notice under 8 CFR 103.2(b)(8)(iii), (b)(16)(i) and
214.205(a)(1), except as otherwise provided in 8 CFR 103.2(b)(16).
[[Page 34873]]
4. Requests for Evidence (RFE)
Comment: Some commenters expressed concern about a trend of
increasing RFEs from USCIS. They indicate that the RFEs do not indicate
what evidence is lacking, are boilerplate, and create unnecessary work
for practitioners and anxiety for survivors. The commenters state that
issuance of RFEs has increased processing times, leaving survivors
vulnerable. Finally, the commenters state that these RFEs have resulted
in unprecedented denial rates.
Response: DHS acknowledges the concerns stakeholders are raising
regarding RFE trends in the program. USCIS strives to apply a victim-
centered, trauma-informed approach in each adjudication while also
ensuring that the statutory requirements for T nonimmigrant status are
met. In addition, USCIS has recently issued significant guidance in the
Policy Manual aimed at clarifying evidentiary requirements for both
applicants and adjudicators and reducing the need for RFEs.\13\ Along
with these updates, USCIS included training to adjudicators on the
updates. Adjudicators also receive ongoing training on this and other
issues. In addition, USCIS reviews trends in the program and revises
any guidance if necessary. For example, if USCIS notices patterns in
inquiries or questions asked at stakeholder engagements, it prompts
review and potential revision of internal procedures.
---------------------------------------------------------------------------
\13\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``Volume 3, Humanitarian Protection and Parole, Part B,
Victims of Trafficking, Chapter 3, Documentation and Evidence for
Principal Applicants,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-chapter-3 (last updated Oct. 20, 2021).
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F. Application
1. Applicant Statements
Comment: One commenter proposed that 8 CFR 214.11(d)(2)(i)
(redesignated here as 8 CFR 214.204(c)(1)), which requires applicants
to provide a written statement describing their victimization, include
an exemption for victims who are minors and victims who invoke the
trauma exception from the requirement to comply with reasonable LEA
requests. They wrote that DHS could determine on a case-by-case basis
whether to waive the requirement of a signed statement. They noted that
preparing a statement can re-traumatize victims, even when the victim
is assisted by trauma-informed service providers. The commenter stated
that the statement may not be necessary when the victimization is
apparent from other evidence.
Response: DHS understands that applicants could be re-traumatized
by retelling their experience of victimization. Nevertheless, the
information provided in the victim's personal statement is very
important for USCIS. It allows USCIS to fully understand the facts of
the case from the victim's perspective and helps USCIS determine
whether the eligibility requirements are met. In addition, it would not
be efficient and would cause unnecessary processing delays for USCIS to
determine on a case-by-case basis whether a statement was necessary
and, when necessary, request one after reviewing the initial filing.
Therefore, DHS maintains the requirement that applicants provide a
written statement describing their victimization in this final rule. 8
CFR 214.204(c)(1).
2. Interviews of Applicants
Comment: Commenters suggested that 8 CFR 214.11(d)(6) explicitly
state that interviews of applicants for T nonimmigrant status are not
required, and that DHS could request an interview. They asserted that
this change would encourage victims who have faced high levels of
trauma to come forward to apply for immigration relief.
Response: DHS is sympathetic to the issues victims face and applies
a victim-centered and trauma-informed approach but declines to adopt
this recommendation. DHS still reserves the discretion to require an
interview for all immigration benefits, including applicants for T
nonimmigrant status, as it deems necessary. In such circumstances,
interviews can be an important method of obtaining further information
when determining eligibility for T nonimmigrant status. As discussed
above, DHS has removed the interview provision at 8 CFR 214.11(d)(6) to
avoid redundancy with 8 CFR 103.2(b)(9).
3. Notification to the Department of Health and Human Services (HHS)
Comment: One commenter wrote to welcome the addition of a provision
indicating that upon receiving an application for T nonimmigrant status
from a minor under the age of 18, USCIS will notify HHS to facilitate
interim assistance. Multiple commenters discussed the automatic nature
of USCIS's notification to HHS upon receiving an application for T
nonimmigrant status from a minor. See 8 CFR 214.11(d)(l)(iii)
(redesignated here as 8 CFR 214.204(b)(4)). These commenters wrote
that, in some instances, a referral to HHS can result in premature
termination of some State-funded benefits that may be more
comprehensive than the Federal interim assistance obtained through HHS.
The commenters requested that the rule be amended to include an
exception to the provision mandating automatic notification of HHS upon
receiving an application for T nonimmigrant status from a minor.
Response: DHS understands the commenters' concerns and appreciates
why minor applicants may want to access more expansive State-funded
benefits. DHS is unable to change the regulations in response to these
concerns, however, because TVPRA 2008 section 212(a)(2), 22 U.S.C.
7105(b)(1)(H), requires that DHS notify HHS no later than 24 hours
after discovering that a person who is under 18 years of age may be a
victim of a severe form of trafficking in persons.
4. Notification of Approval of T Nonimmigrant Status
The rule at 8 CFR 214.11(d)(9) (redesignated as 8 CFR 214.204(o))
states that upon approving an application for T-1 nonimmigrant status,
USCIS may notify others ``as it determines appropriate, including any
LEA providing an LEA endorsement and the HHS Office of Refugee
Resettlement, consistent with 8 U.S.C. 1367.''
Comment: Commenters requested that DHS clarify in the rule which
agencies or bodies that it considers appropriate to receive information
about applicants for T nonimmigrant status or to limit the language to
the entities listed in the rule.
Response: DHS has maintained the current broader language because
it provides USCIS and applicants with more flexibility in implementing
these provisions than an exhaustive list would. USCIS may identify
other entities that are appropriate to receive this information and
instances in which the notification would be beneficial to the T-1
nonimmigrant and/or an LEA and its efforts to combat trafficking. The
final rule continues to require that the disclosure of any information
must be consistent with the restrictions on information sharing in 8
U.S.C. 1367. USCIS has issued guidance and training to those who
adjudicate applications for T nonimmigrant status to ensure there is no
inappropriate sharing of applicant information, and to ensure any
information sharing action is consistent with 8 U.S.C. 1367.
G. Law Enforcement Declarations
As noted in new 8 CFR 214.204(e), applicants may wish to submit
evidence
[[Page 34874]]
from LEAs, including an LEA declaration, to help establish their
eligibility. Although an LEA declaration is an optional form of
evidence and does not have any special evidentiary weight, it may
support a T nonimmigrant application by providing detailed, relevant
information about the applicant's victimization and compliance with
reasonable requests for assistance. DHS received several comments on
LEA declarations, discussed below.
1. Declaration Signature
Comment: One commenter supported the clarification that a formal
investigation or prosecution is not required for an LEA to complete the
declaration, and stated that the requirement that a law enforcement
declaration be signed by a supervising official may add an unnecessary
step to this more flexible approach.
Response: DHS declines to adopt this recommendation. First, the Law
Enforcement Declaration is an optional form of evidence. Second,
maintaining the status quo in requiring a supervisor's signature adds a
level of review to DHS's flexible approach, which acknowledges that
whether an investigation or prosecution occurs is outside of a victim's
control.
2. Withdrawn Declarations and Revoked Continued Presence (CP)
DHS has updated terminology at new 8 CFR 214.204(h). DHS has
replaced the term ``revocation'' relating to law enforcement
declarations with ``withdrawal'' for accuracy and to avoid any
confusion that status is being revoked.
a. Withdrawn Declarations
Comment: Commenters requested that DHS delete the language in 8 CFR
214.11(d)(3)(ii) (redesignated here as 8 CFR 214.204(h)) that provides
that disavowed or withdrawn LEA declarations will no longer be
considered evidence. Commenters suggested that rather than leaving it
to the discretion of the LEA to provide a written explanation of its
reasons for disavowing or withdrawing the declaration, the LEA should
be required to do so. Commenters stated that an application should not
be rejected based solely on one factor or one piece of evidence. They
wrote that USCIS must provide a T nonimmigrant the opportunity to
review and respond to the documentation from the LEA. Commenters also
suggested adding language to 8 CFR 214.11(d)(3)(ii) (redesignated here
as 8 CFR 214.204(h)) and 8 CFR 214.11(m)(2)(iv) (redesignated here as 8
CFR 214.213(b)(4)) to state that before revoking T nonimmigrant status
due to a revocation or disavowal of an LEA declaration, USCIS would
review the application and reassess the applicant's eligibility for T-1
nonimmigrant status in light of the LEA's explanation for the
revocation, and consider all other evidence provided by the applicant
under the ``any credible evidence'' standard. Finally, they stated that
if USCIS determines that the application no longer meets the
requirements, USCIS should issue a Notice of Intent to Revoke or a
Request for Evidence.
Response: The rule at 8 CFR 214.213(b)(4) provides that USCIS may
revoke T nonimmigrant status based on withdrawal by the LEA, but does
not require USCIS to automatically revoke T nonimmigrant status upon a
disavowal or withdrawal of the Supplement B. DHS recognizes that a
Supplement B may be withdrawn or disavowed for reasons unrelated to the
applicant's cooperation with the LEA's reasonable request for
assistance. For example, an LEA may receive additional information
indicating the initial Supplement B was issued in error. The law
enforcement declaration is one piece of evidence that USCIS considers
in determining whether an applicant meets the eligibility requirements
for T nonimmigrant status based on the totality of the evidence. See,
e.g., new 8 CFR 214.204(c) and (l). Furthermore, 8 CFR 214.213(b)(4)
indicates that the LEA must provide an explanation for any withdrawal
or disavowal for it to serve as the basis for revocation. Therefore,
DHS clarifies in this rule that a disavowed or withdrawn Supplement B
will not be completely disregarded. After withdrawal or disavowal, the
LEA declaration will generally no longer be considered as evidence of
the applicant's compliance with requests for assistance in the LEA's
detection, investigation, or prosecution; however, a disavowed or
withdrawn Supplement B may be considered for other eligibility
requirements (such as evidence of victimization) along with any other
credible evidence relevant to the application. See new 8 CFR 214.204(f)
and (h). DHS will determine whether the disavowed or withdrawn
Supplement B will be considered as evidence of compliance by assessing
the reasons for the disavowal or withdrawal. Once the Supplement B is
disavowed or withdrawn, DHS will determine the reason for the disavowal
or withdrawal and then determine what purpose, if any, for which it may
be used. DHS notes that if there is an explanation from the LEA for the
withdrawal or disavowal, adjudicators should consider that explanation
in determining whether to still consider the declaration as evidence of
compliance with requests for assistance.
DHS acknowledges that even if a declaration is disavowed or
withdrawn, an individual may still meet the eligibility requirements
for T nonimmigrant status, and a withdrawal or disavowal will not
always lead to revocation of T nonimmigrant status. In addition, prior
to issuing a Notice of Intent to Revoke (NOIR) based on the withdrawal
or disavowal of the Supplement B, DHS would reassess an applicant's
eligibility based on all available evidence. If DHS intends to revoke T
nonimmigrant status following the withdrawal or disavowal of a
Supplement B, DHS will issue a NOIR to inform the individual of the
agency's intent to revoke T nonimmigrant status and the basis for
intended revocation. The individual would then be able respond to the
NOIR with additional evidence to overcome any noted deficiencies or
discrepancies. The NOIR would detail or summarize the reasons for
withdrawal or disavowal from the LEA and any other bases for intended
revocation, but DHS declines to codify a requirement that USCIS provide
a copy to the individual.
b. Revoked Continued Presence
DHS has similarly clarified that if the DHS Center for Countering
Human Trafficking (CCHT) revokes a grant of Continued Presence (CP),
generally the CP grant will no longer be considered as evidence of the
applicant's compliance with the corresponding LEA investigation or
prosecution but may be considered for other purposes. See new 8 CFR
214.204(i). If DHS determines that the revocation of the CP grant was
unrelated to an applicant's compliance, for example revocation based on
departing without advance parole or for subsequent criminal conduct, it
may continue to consider the grant of CP as evidence of the applicant's
compliance with the LEA investigation or prosecution.
3. Requirement To Sign Law Enforcement Declaration
Comment: One commenter stated DHS should clarify in the regulations
that immigration judges and ICE counsel should be required to sign law
enforcement declarations. The commenter wrote that a directive to
immigration judges and ICE attorneys should indicate that they, and not
just Homeland Security Investigations (HSI),
[[Page 34875]]
should be able to detect trafficking and certify in the process.
Response: DHS declines to adopt this recommendation. DHS cannot
require any certifying agencies to certify a case, as signing the LEA
Declaration is at the discretion of the LEA and the LEA Declaration is
not a required piece of initial evidence. However, DHS agrees that
immigration judges and ICE attorneys may submit declarations upon
detection of trafficking consistent with applicable law and agency
policy. However, DHS may accept declarations from immigration judges
and ICE attorneys should such declarations be permissible under
applicable law and agency policy.
H. Bona Fide Determination (BFD)
By statute, a determination that an application for T nonimmigrant
status is bona fide (T BFD) enables trafficking survivors to obtain
certain stabilizing benefits, including access to Federal services and
benefits via the issuance of Certification Letters from HHS,\14\ and
the ability to obtain an administrative stay of removal.\15\ The
preamble to the 2016 IFR provided that USCIS may grant deferred action
if the application for T nonimmigrant status is deemed bona fide, and
the applicant could request employment authorization based on the grant
of deferred action.\16\ Although an extensive BFD process was codified
in the 2016 IFR, such a process has not been implemented in the last
decade outside of litigation cases due to resource constraints and the
inefficiencies of the prior process. Under the extensive BFD review
process set forth in the IFR, USCIS generally adjudicated the merits of
T nonimmigrant applications in the same amount of time that it would
take to issue a BFD. Therefore, it has generally been more efficient to
adjudicate the T visa application alone than to conduct both a BFD
review and full adjudication of the same application.
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\14\ 22 U.S.C. 7105(b)(1)(E)(i)(II)(aa).
\15\ INA sec. 237(d)(1); 8 U.S.C. 1227(d)(1). This statutory
provision authorizes the Secretary of Homeland Security to grant an
administrative stay of removal to an individual whose Application
for T Nonimmigrant Status sets forth a ``prima facie case for
approval,'' until the application is approved or there is a final
administrative denial on the application after the exhaustion of
administrative appeals. A determination that the application is
``bona fide'' is also sufficient to establish that the applicant has
established a ``prima facie case for approval'' within the meaning
of section 237(d)(1) of the INA, 8 U.S.C. 1227(d)(1). ``Prima
facie'' means that the application appears sufficient on its face,
which is encompassed by the bona fide determination described at 8
CFR 214.205.
\16\ See 81 FR 92279.
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The revised BFD process codified in this rule at 8 CFR 214.205 is
as follows: USCIS will conduct an initial review of the T nonimmigrant
status application filed on or after the effective date for
completeness and conduct and review the results of background checks to
determine if the application is bona fide and the applicant merits a
favorable exercise of discretion to receive a grant of deferred action
and employment authorization. Applicants must file a Form I-765,
Application for Employment Authorization, under proposed 8 CFR
274a.12(c)(40) to receive a BFD Employment Authorization Document
(EAD), even if they have indicated on Form I-914, Application for T
Nonimmigrant Status that they are requesting an EAD. If an applicant
has not already filed a Form I-765, they will be notified in writing
that they may do so, to receive a BFD EAD under 8 CFR 274a.12(c)(40).
DHS strongly recommends that applicants file a Form I-765, Application
for Employment Authorization, simultaneously with their T nonimmigrant
status application to facilitate expeditious case processing.\17\ If
DHS issues a request for evidence in a case filed before the effective
date of the final rule, DHS will automatically convert previously filed
applications for employment authorization filed under 8 CFR
274a.12(a)(16) and (25), to applications for the newly created BFD EAD
classification. This will limit the need for applicants to submit new
requests or information, and enable DHS to focus on the adjudication,
rather than the process of issuing multiple notices, including first
notifying the applicant that they have a pending bona fide application,
and then notifying the applicant that they are eligible for employment
authorization. If initial review does not establish that the
application is bona fide, USCIS will conduct a full T nonimmigrant
status eligibility review. If the full review establishes eligibility
and the statutory cap has been reached, the application will be
considered bona fide.
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\17\ There is no fee for a Form I-765 filed by an applicant
seeking T nonimmigrant status. 8 CFR 106.3(b)(2)(viii).
---------------------------------------------------------------------------
In the situation where DHS is issuing a request for evidence and
thus conducts a bona fide determination on an application filed before
the effective date of this rule, if an applicant with a pending bona
fide application has not previously filed an application for employment
authorization, DHS will issue a notice of eligibility to apply for a
BFD EAD, indicating that the individual should designate category
``(c)(40)'' on the application. See new 8 CFR 274a.12(c)(40).
After receipt of the Form I-765, USCIS will then consider whether
the applicant warrants a favorable exercise of discretion to be granted
deferred action, and if granted deferred action, whether they will be
granted a discretionary employment authorization document.
In the interim rule, DHS provided that employment authorization for
a bona fide T nonimmigrant applicant to whom USCIS grants deferred
action would be requested under category ``(c)(14),'' 8 CFR
274a.12(c)(14). 81 FR 92285. DHS has decided to record T BFD EADs as a
separate category from other EADs that are based on a grant of deferred
action. Accordingly, in this rule DHS amends 8 CFR 274a.12 to establish
a specific eligibility category for applicants for T nonimmigrant
status whose applications have been deemed bona fide. These BFD EADs
will be issued under category (c)(40). See new 8 CFR 274a.12(c)(40).
DHS notes that a bona fide determination, or an initial grant or
renewal of a BFD EAD and deferred action does not guarantee that DHS
will approve the principal applicant or their derivative family members
for T nonimmigrant status.
Comment: Several commenters wrote that USCIS has justified its
operational practice of fully adjudicating the T visa application
rather than initiating the BFD review process by claiming that because
there is no T visa application backlog, it is more efficient to conduct
a full adjudication. Commenters urged USCIS to uphold the regulatory
mandate to provide BFDs. They emphasized that BFDs provide work
authorization, which allows survivors to be self-sufficient and help
reduce the risk of revictimization as well as provide access to
federally funded public benefits. Commenters also wrote that BFDs are
much more important given increased processing times, especially as
applicants lose access to time-limited social services benefits.
Commenters indicated that USCIS' failure to conduct BFDs has had a
negative impact on trafficking survivors in removal proceedings and has
led to survivors being removed while their applications were pending.
Multiple commenters noted that applicants are forced to proceed with
other forms of relief in removal proceedings while awaiting a decision
on their T visa application, which wastes administrative resources and
inflicts needless trauma.
Response: DHS acknowledges that processing times have increased in
recent years. DHS also understands the important stabilizing benefits
the BFD
[[Page 34876]]
can provide to trafficking survivors, and that a lack of a viable BFD
process can have negative impacts on victims. DHS is committed to
implementing a streamlined and operationally efficient BFD process
through the final rule and has codified a new BFD process at new 8 CFR
214.205, consistent with DHS's victim-centered approach. Pursuant to
new 8 CFR 214.204(m), USCIS will conduct a BFD review for applicants in
the United States once they have applied for principal or derivative T
nonimmigrant status. DHS has also amended 8 CFR 214.11(d)(7)
(redesignated as 8 CFR 214.204(m)) to state that USCIS will conduct an
initial review of an eligible family member's Application for
Derivative T Nonimmigrant Status once the principal's application has
been deemed bona fide. However, as a matter of discretion, USCIS
generally will not grant deferred action and employment authorization
to an eligible family member based on a bona fide determination unless
the principal applicant has received a positive bona fide
determination.
Comment: Several commenters stated that the IFR's inclusion of an
inadmissibility determination as part of the BFD is contrary to
Congressional intent. They recommended that either the filing of a
waiver of inadmissibility constitute prima facie evidence of
eligibility, or that USCIS implement the same procedures used in the U
visa BFD context, which eliminates the requirement that USCIS assess an
applicant's admissibility as part of the BFD process. Some commenters
further recommended that DHS amend the standard for finding an
application to be bona fide to mirror the requirements to establish a
prima facie case in an application for benefits available under VAWA.
See 8 U.S.C. 1641; 8 CFR 204.2(c)(6).
Response: DHS agrees with the commenters' suggestion to remove the
inadmissibility determination from the BFD process. The BFD process is
an initial review, and an assessment of the applicant's admissibility
is not necessary to determine whether an application is bona fide. In
addition, as commenters noted, considering admissibility twice during
adjudication would be inefficient and burdensome and would delay the
BFD process. Accordingly, DHS has eliminated the requirement that USCIS
analyze an applicant's admissibility as part of the BFD process, but
will implement other safeguards, including background checks, to ensure
the applications are bona fide, that the applicants merit a favorable
exercise of discretion and do not present a threat to national
security, and to maintain the integrity of the program.
Comment: Commenters also requested DHS eliminate 8 CFR
214.11(e)(1)(ii), which requires a T visa applicant to demonstrate that
their application ``does not appear to be fraudulent,'' because the
fraud assessment is superfluous to the other BFD requirements.
Response: DHS agrees with the commenters' rationale. Because USCIS
considers an applicant's compliance with initial evidence requirements
and background checks in the T visa BFD process, as well as whether the
applicant merits a favorable exercise of discretion, it is unnecessary
to separately analyze whether the application appears to be fraudulent.
DHS has removed consideration of whether an application appears to be
fraudulent from the BFD review process. An applicant who attempts to
gain an immigration benefit through fraud is inadmissible,\18\ and
would not be granted deferred action or a BFD EAD.
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\18\ See INA 212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i).
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Comment: Commenters urged DHS to implement a BFD review process for
T derivative applicants, applying the standards set forth in the Policy
Manual for eligible family members of U visa applicants.
Response: DHS understands the importance of BFDs not just for
principal applicants, but for their eligible family members. Conducting
BFD reviews and providing initial benefits to eligible family members
is also consistent with a victim-centered approach, as it provides
victims needed support from stabilized family members. DHS will conduct
BFDs for eligible family members who are in the United States at the
time of review, if the principal has already received a BFD.
Comment: Several commenters requested that USCIS commit to a 30- or
90-day timeline for making a bona fide determination and notifying
applicants of the outcome in 8 CFR 214.11(e)(2) (redesignated here as 8
CFR 214.205(c)).
Response: Although DHS recognizes that being without work
authorization or Federal benefits may be a hardship for applicants, it
declines to mandate that USCIS conduct a BFD within a certain number of
days. USCIS strives to process all immigration benefits in a reasonable
and timely manner; however, USCIS cannot guarantee that the
determination will be completed within any set number of days. The
volume of applications to be reviewed will vary over time, each
application is unique, and some may be complex. In addition, there are
aspects of the determination beyond USCIS' control (for example,
background checks) that may take longer than 90 days.
Comment: Some commenters recommended that qualified trafficking
survivors on the waiting list should be granted BFDs and should have
access to employment authorization and Federal benefits to ensure their
safety, and so they are not vulnerable to exploitation or trafficking.
Response: DHS acknowledges the importance of these benefits for
trafficking survivors, which is why USCIS will initiate the BFD process
upon initial review of the application. After considering the comments
on the interim final rule and our recent experience with the program,
DHS has added 8 CFR 214.205(a)(3), which provides that USCIS will
conduct a full T nonimmigrant status eligibility review of any
applications that do not initially receive a favorable BFD. Applicants
who are determined eligible following the T nonimmigrant status
eligibility review will then be issued a BFD if the statutory cap has
been met. In addition, applicants with a favorable BFD may be
considered for deferred action and may request employment authorization
based on a grant of deferred action. 8 CFR 214.205(d)(1).
DHS notes that the T visa waiting list has never been utilized in
the history of the program due to the statutory cap never being
reached. However, if the statutory cap is met, USCIS will place all
applications that have been issued a BFD on the waiting list, including
those that are deemed eligible for a BFD following a T nonimmigrant
status eligibility review. 8 CFR 214.210(b). This revision will allow
BFD recipients to be on the waiting list without having to provide
additional information, avoid USCIS having to perform additional
processing of cases with a BFD to place them on the waiting list, and
provide all applications on the waiting list equal status of BFD,
instead of some receiving a BFD and others being deemed approvable but
for the unavailability of a visa.
This change will not affect the order in which applications are
processed. The following fiscal year, when a new statutory cap becomes
available, the oldest pending applications that are on the waiting list
and have been granted a BFD will be processed first. The oldest
application may not necessarily be approved in date-received order
depending on updates and additional evidence that may be needed to
adjudicate the application to a final decision. The date that
applicants receive a BFD will generally not affect
[[Page 34877]]
the order in which their application will be processed for cap
adjudication.
Comment: Several commenters encouraged DHS to add language to the
final rule that requires ICE to take affirmative steps to seek a BFD
from USCIS for detainees with pending applications for T nonimmigrant
status, which commenters note would lead to a stay of removal.
Response: DHS declines to add this language to the final rule as
unnecessary, because all applications filed after the effective date of
the final rule will receive a BFD review. In addition, in August 2021,
ICE issued a Directive that addresses using a victim-centered approach
with noncitizen crime victims, including applicants for T nonimmigrant
status.\19\ The ICE directive specifies that ICE will coordinate with
USCIS to ``seek expedited adjudication of victim-based immigration
applications and petitions'' and that in the cases of a detained
individual with a pending application for a victim-based immigration
benefit, ICE will request USCIS expedite the decision.\20\ USCIS will
continue to coordinate with ICE on this process.
---------------------------------------------------------------------------
\19\ U.S. Immigr. & Customs Enforcement, U.S. Dep't of Homeland
Security, ``ICE Directive 11005.3: Using a Victim-Centered Approach
with Noncitizen Crime Victims'' (2021), <a href="https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf">https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf</a> (ICE Directive).
\20\ Id.
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I. Evidence To Establish Trafficking
Comment: Several commenters wrote that they appreciate that 8 CFR
214.11(f)(1) (redesignated here as 8 CFR 214.206(a)) includes examples
of evidence that may be submitted to demonstrate a trafficker's purpose
in cases where no commercial sex act or forced labor occurred. They
also stated that they approve of the non-exhaustive list at 8 CFR
214.11(f)(1) (redesignated 8 CFR 214.206(a)) of examples of evidence
that may be submitted to demonstrate the trafficker's purpose in this
type of scenario. However, these same commenters also recommended that
DHS expand the list of possible evidence and expressed that trafficking
victims may not be able to supply the types of evidence in the list.
They suggested DHS add additional types of evidence; clarify that all
forms of evidence are acceptable; and clarify that no form of evidence
is preferred over another. Specifically, commenters wrote that DHS
should clarify that a law enforcement declaration or grant of Continued
Presence are not required or preferred forms of evidence. The
commenters also requested that 8 CFR 214.11(f)(l) (redesignated here as
8 CFR 214.206(a)) be revised to state that a victim's statement alone
could be sufficient in proving attempted victimization.
Response: DHS agrees with the commenters' rationale and has amended
the list of evidence in new 8 CFR 214.206(a). Although the list is not
intended to be exhaustive, the regulation may have unintentionally
emphasized certain types of evidence. In amending this list, DHS
emphasizes that alternate forms of evidence can be submitted to
establish an individual is a victim of a severe form of trafficking, or
to establish the trafficker's purpose. DHS acknowledges there are some
types of evidence that victims are more likely to have. Each form of
evidence alone may be sufficient under the any credible evidence
standard, and no form of evidence is preferred over another. As noted
above, DHS declines to amend the regulatory text to explicitly state
that a victim's statement alone may prove victimization. While DHS may
determine, based on the facts and circumstances of a particular case,
that a personal statement alone may be sufficient to prove
victimization, in such a scenario, the victim's statement would have to
be sufficiently detailed, plausible, and consistent in order to satisfy
evidentiary requirements. With all T visa applications, DHS makes an
individualized determination of whether trafficking has been
established based on the evidence in each particular case. However, DHS
encourages applicants to submit any additional credible evidence that
could help establish their claim.
Comment: One commenter wrote that they were concerned about the
statement in the Preamble to the 2016 IFR that a victim can submit any
credible evidence from any reliable source that shows the purpose for
which the victim was recruited, transported, harbored, provided, or
obtained. See 81 FR 92272. That commenter requested that DHS clarify
that reliable sources could include not only direct evidence, but also
circumstantial evidence as well as the victim's own statement. The
commenter asked that DHS assess the purpose or motivation of the
trafficker in the same way it assesses the motive of a persecutor in
asylum cases.
Response: DHS declines to specify in the regulation that
circumstantial evidence and the applicant's affidavit can be submitted
to establish the trafficker's purpose or motive. The evidentiary
standards that DHS applies to all T nonimmigrant status eligibility
requirements are based on an understanding that victims of severe forms
of trafficking in persons often have difficulty acquiring evidence and
that the best available evidence may include circumstantial evidence.
But, as noted above, under the regulations an applicant's affidavit may
be sufficient if it is sufficiently detailed, plausible, and consistent
in order to satisfy evidentiary requirements. DHS declines to adopt
asylum standards, as trafficking and asylum are distinct and involve
unique forms of relief.
J. Physical Presence \21\
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\21\ DHS also received comments regarding physical presence and
law enforcement involvement, which are addressed above in Section D,
Definitions.
---------------------------------------------------------------------------
1. Applicability of Physical Presence Requirement
Comment: One commenter requested DHS replace the language in 8 CFR
214.11(g)(1) (redesignated here as 8 CFR 214.207(a)) that reads ``The
requirement reaches an alien who'' with ``An applicant must demonstrate
one of the following requirements.'' The commenter stated the wording
was confusing for applicants and practitioners.
Response: DHS agrees that the language in 8 CFR 214.11(g)(1) caused
confusion. DHS revised this section (new 8 CFR 214.207) to make it
active tense and clarified the applicability of the physical presence
standard, such that it reads: ``An applicant must demonstrate that they
are physically present under one of the following grounds . . . .''
2. Passage of Time Between Trafficking and Filing the T Visa
Comment: Commenters stated that DHS has imposed a de facto deadline
for physical presence, leading adjudicators to erroneously conclude
that the mere passage of time signifies that an individual's physical
presence in the United States is unrelated to their trafficking. The
commenters claim this excludes many bona fide victims, who may file for
T nonimmigrant status long after their trafficking. Commenters also
recommended DHS explicitly consider when a survivor learned of their
status as a victim of trafficking, by modifying Sec. 214.11(g)(4)
(redesignated here as 8 CFR 214.207(c)).
Response: DHS acknowledges the commenters' concerns and has
clarified in the text of multiple provisions of the regulation that
physical presence may be established regardless of the length of time
that has passed between the trafficking and filing of the application.
For example, DHS has clarified that under 8 CFR 214.207(a)(2) and (3),
the applicant may satisfy the physical
[[Page 34878]]
presence requirement if they were liberated from a severe form of
trafficking in persons by an LEA at any time prior to filing their T
visa application. This is intended to clarify that there is no de facto
deadline for filing. DHS has also already clarified its interpretation
via policy guidance, consistent with the legislative intent behind the
program.\22\ In addition, under 8 CFR 214.207(a)(4), DHS has added that
the current presence may be directly related, ``regardless of the
length of time that has passed between the trafficking and filing'' of
the applicant's T visa application.
---------------------------------------------------------------------------
\22\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Volume 3, Humanitarian Protection and Parole,
Part B, Victims of Trafficking, Chapter 2, Eligibility
Requirements,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-
chapter-2 (stating that an individual may satisfy the physical
presence requirement regardless of the time that has passed since
liberation from the initial trafficking and filing the T visa
application) (last updated Oct. 20, 2021).
---------------------------------------------------------------------------
DHS acknowledges that survivors of trafficking experience serious
consequences because of their victimization that can delay filing,
including lack of access to legal representation, trauma, lack of
support, and even lack of knowledge that they are a victim of
trafficking. DHS emphasizes that the passage of time alone does not
negate an applicant's ability to establish physical presence on account
of the trafficking. In addition, DHS has clarified in the regulation
that when analyzing physical presence, it will consider when and how an
applicant learned that they were a victim of human trafficking.\23\ DHS
acknowledges that many survivors may delay filing for legitimate
reasons; however, the applicant still bears the burden of establishing
that their current presence in the United States is on account of
trafficking.
---------------------------------------------------------------------------
\23\ See new 8 CFR 214.207(c)(1)(i).
---------------------------------------------------------------------------
3. LEA Liberation and LEA Involvement
Comment: Many commenters requested DHS remove 8 CFR
214.11(g)(1)(ii) and (iii) (redesignated here as 8 CFR 214.207(a)(2)
and (3)) because there has been no guidance clarifying the practical
distinction between these provisions versus paragraph (g)(1)(iv)
(redesignated here as 8 CFR 214.207(a)(5)), and adjudicators have
required applicants claiming physical presence under paragraph
(g)(1)(ii) or (iii) to also demonstrate their continuing physical
presence.
Response: DHS declines to remove the language at new 8 CFR
214.207(a)(2) and (3), as these provisions are important ways
applicants can establish their physical presence. DHS acknowledges
there has been confusion surrounding these provisions. To establish
physical presence under new 8 CFR 214.207(a)(2), an individual must
demonstrate that law enforcement assisted in liberating them from their
trafficking situation. To satisfy physical presence under new 8 CFR
214.207(a)(3), an individual must demonstrate that law enforcement
became actively involved in detecting, investigating, or prosecuting
the acts of trafficking. To establish physical presence under new 8 CFR
214.207(a)(5), regardless of where the trafficking occurred, an
individual must establish that they have been allowed entry into the
United States for the purpose of participating in the detection,
investigation, prosecution, or judicial processes associated with an
act or perpetrator of trafficking. DHS has retained these provisions as
additional means by which an applicant can establish physical presence;
however, as discussed above, DHS has updated these sections to clarify
that physical presence can be satisfied if the LEA liberated the
applicant from the trafficking situation or was involved in detecting,
investigating, or prosecuting the acts of trafficking the case at any
point prior to the application process.
4. Presumption of Physical Presence
Comment: Several commenters urged DHS to adopt a broader
interpretation of ``physical presence on account of trafficking'' such
that a presumption of physical presence could apply in various
scenarios, including physical presence at the time of filing.
Response: DHS appreciates the commenters' concerns but declines to
codify any generalized presumptions of physical presence in the
regulations. The applicant bears the burden of establishing that they
satisfy each eligibility criteria for T nonimmigrant status, including
physical presence on account of trafficking at the time of filing and
adjudication. Each application for T nonimmigrant status will be
evaluated on its own merits. Although DHS declines to formally codify
any presumptions of physical presence, DHS has clarified how physical
presence may be satisfied, consistent with many of the commenters'
requests. For example, the regulations have expanded the evidence
applicants may submit to establish physical presence or overcome the
effect of a prior departure. DHS notes that generally, where the
applicant provides evidence that they are receiving services in the
United States as a trafficking victim or pursuing civil,
administrative, or criminal remedies because of the trafficking, this
will be considered favorably in the physical presence assessment.
Because DHS cannot enumerate all circumstances under which an applicant
may satisfy physical presence, DHS declines to codify any presumption.
5. Continuing Presence and Nexus to Trafficking
Comment: Many commenters suggested revising 8 CFR 214.11(g)(1)(iv)
(redesignated here as 8 CFR 214.207(a)(4)) to refer to ``current
presence'' rather than ``continuing presence.'' One commenter stated
that DHS ignores, discounts, or improperly analyzes the impacts of
trafficking victimization in analyzing continuing presence. The
commenter recommended DHS provide a non-exhaustive list of factors that
USCIS will consider in determining whether an applicant has
demonstrated continuing presence.
Response: DHS agrees that the ``continuing presence'' terminology
at 8 CFR 214.11(g)(1)(iv) has caused confusion for adjudicators and
stakeholders. DHS has replaced the phrase with ``current presence.''
This change is intended to clarify that the focus of the evaluation is
on the applicant's presence at the time of filing and adjudication,
rather than their presence prior to that time. See new 8 CFR
214.207(a)(4). DHS has also revised the regulation to include a non-
exhaustive list of factors USCIS will consider in analyzing the
physical presence requirement, at redesignated 8 CFR 214.207(c)
(discussed further below). These updates clarify expectations regarding
timeline requirements and bring this provision into present tense.
Commenter: One commenter requested the rule clarify that for an
applicant's continuing presence in the United States to be directly
related to their original trafficking, it is sufficient that if the
applicant were to depart the United States, they would suffer hardship
as a result of circumstances caused by their trafficking, regardless of
whether such hardship constitutes extreme hardship. The commenter also
requested the rule clarify that whether the applicant's continuing
presence in the United States is directly related to their original
trafficking, and whether the applicant would suffer extreme hardship
upon removal are separate requirements that may be supported by the
same evidence.
Response: DHS declines to adopt this recommendation. Physical
presence is a current assessment of an applicant's experience, whereas
extreme hardship
[[Page 34879]]
is a prospective assessment of hardship the applicant may face.
Although DHS acknowledges that the same evidence may be presented to
satisfy multiple eligibility requirements, an applicant must explain
how the evidence satisfies each eligibility requirement. The applicant
bears the burden of establishing each eligibility requirement and
clearly explaining how the evidence presented addresses each
eligibility criteria.
Comment: Another commenter stated that if DHS retains the
requirement that certain victims demonstrate that their continuing
presence is directly related to trafficking, the rule should provide
explicit guidance as to what sort of nexus is and is not required to
meet this test. Another commenter indicated that USCIS practice
suggests that if a survivor becomes stable at any point after their
trafficking victimization, they are no longer present in the United
States on account of their trafficking. The commenter emphasized that
progress in a victim's life does not negate the ongoing impact of the
trafficking victimization.
Response: DHS has revised the regulations to include a more
expansive list of scenarios that can establish physical presence on
account of trafficking. DHS has also provided significant guidance for
adjudicators in its Policy Manual on analyzing whether an applicant's
ongoing presence is directly related to their trafficking.\24\ The
Policy Manual provides that if the applicant has repeatedly traveled
outside the United States since the trafficking, and their departures
are not the result of continued victimization; or the applicant lacks
continued ties to the United States or has established an intent to
abandon life in the United States; this may support a finding that
their current presence is not directly connected to the original
trafficking. On the other hand, developments in an applicant's life
following the trafficking do not prevent an applicant from establishing
ongoing presence on account of trafficking. An applicant may still
demonstrate that their current presence in the United States is
directly related to the initial victimization and should not be
penalized for stabilizing themselves following their victimization.
---------------------------------------------------------------------------
\24\ See U.S. Citizenship and Immigr. Servs., U.S. Dep't of
Homeland Security, ``Volume 3, Humanitarian Protection and Parole,
Part B, Victims of Trafficking, Chapter 2, Eligibility
Requirements,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-
chapter-2 (last updated Oct. 20, 2021).
---------------------------------------------------------------------------
USCIS will assess the specific impacts of trafficking on the
applicant's life at the time of application. The applicant may not
establish eligibility if the evidence of the ongoing impact of trauma
on the applicant's life does not sufficiently establish the connection
between the trafficking and the applicant's presence in the United
States at the time of filing.
6. Effect of Departure or Removal
Comment: Commenters asked DHS to eliminate the ``departure from the
United States'' language at 8 CFR 214.11(g)(2) (redesignated here as 8
CFR 214.207(b)). Commenters indicated that the departure language
prevents trafficking victims from obtaining benefits simply by virtue
of their removal, even if they have a pending T application. They
requested that DHS update the final rule to clarify that if an
individual was in the United States on account of trafficking when they
filed the application, subsequent departure or removal should not bar
relief.
Response: DHS appreciates the concerns the commenters have raised
but declines to eliminate the language describing the effect of
departure or removal on physical presence. Instead, DHS has codified
additional scenarios by which victims who have departed the United
States following their victimization and subsequently re-entered may
establish physical presence (including returning to the United States
to pursue remedies against their trafficker or returning to seek
treatment or services related to victimization they cannot obtain
elsewhere). See new 8 CFR 214.207(b)(4) and (5). In addition, although
DHS appreciates the sensitivities and unique impact removal has on
applicants for T nonimmigrant status, T visa applicants must
demonstrate physical presence in the United States pursuant to the
statute.
Comment: Other commenters suggested that the rule should identify
scenarios that may demonstrate that a victim's reentry to the United
States is the ``result of continued victimization'' under Sec.
214.11(g)(2)(i) (new 8 CFR 214.207(b)(1)) and would satisfy the
physical presence requirement. The commenters proposed the following
scenarios be included in the regulations: reentry into the United
States (1) due to current fear of the traffickers in the victim's home
country or last place of residence; (2) to seek treatment for
victimization from trafficking which cannot be provided in the victim's
home country or last place of residence; or (3) to pursue civil and
criminal remedies against the traffickers in the victim's home country
or last place of residence.
Response: DHS agrees with the second and third suggestions and has
updated the regulations accordingly, such that both suggestions are
encompassed in the new language at 214.207(b)(3)-(5). DHS declines to
adopt the first suggestion, as a reentry to the United States due to
current fear of the traffickers in the victim's home country or last
country of residence would already fall under the ``continued
victimization'' scenario articulated in 8 CFR 214.11(g)(2)
(redesignated 8 CFR 214.207(b)).
Comment: One commenter requested that if DHS did not remove the
departure language from the regulation, it should substantially alter
the language found in 8 CFR 214.11(g)(2) (redesignated 8 CFR
214.207(b)), such that the regulation: acknowledges the possibility
that a trafficker may have played a role in the survivor's departure
from the United States; clarifies that a new incident of trafficking or
new attempted incident of trafficking is not required; makes explicit
that reentry related to fear of retaliation or re-victimization by the
traffickers allows an applicant to meet this requirement; and clarifies
that applicants may meet this requirement if, after their return to the
United States, regardless of the exact motivation of the reentry, they
are actively cooperating with an investigation or prosecution of
trafficking.
Response: DHS has clarified how an applicant may establish physical
presence after departure from and reentry to the United States by
adding additional scenarios that can allow an applicant who has
departed and returned to establish physical presence at 8 CFR
214.207(b)(4) and (5). These new provisions aim to provide clarity and
reduce barriers for victims. Under new 8 CFR 214.207(b)(4), an
applicant may establish physical presence after departure if their
current presence in the United States ``is on account of their past or
current participation in investigative or judicial processes associated
with an act or perpetrator of trafficking, regardless of where such
trafficking occurred.'' An applicant may satisfy this provision
``regardless of the length of time that has passed between their
participation in an investigative or judicial process associated with
an act or perpetrator of trafficking'' and the filing of their
application for T nonimmigrant status. See new 8 CFR 214.207(b)(4).
These new provisions allow individuals who have participated in
investigative or judicial processes to establish physical presence
following a prior departure, regardless of their manner of entry or
where such trafficking occurred. Under new 8 CFR 214.207(b)(5), an
applicant may establish physical presence following a
[[Page 34880]]
previous departure if they returned to the United States and received
treatment or services related to their victimization that cannot be
provided in their home country or last place of residence. These
additions support the dual purpose of the T visa, acknowledge there may
be various reasons an individual may depart the United States, are
consistent with a victim-centered approach to combatting trafficking,
and do not require an individual to be revictimized to establish
physical presence following a departure.
7. Trafficking That Occurs Outside the United States, and Traveling
Outside the United States Following Victimization
Comment: Various commenters wrote that DHS interprets the physical
presence requirement too narrowly for victims whose trafficking
occurred outside the United States or who traveled outside of the
United States after suffering trafficking. They stated that trafficking
victims may be present in the United States on account of trafficking
in various situations, including those in which they were trafficked in
a neighboring country that failed to protect them before fleeing to the
United States for protection. Some commenters stated that Congress did
not specifically require that the trafficking occur in the United
States or have violated U.S. law to qualify for the T visa. One
commenter wrote that presence in the United States at the time of
filing the application for T nonimmigrant status should be sufficient
to meet the requirement, regardless of where the trafficking occurred
or the circumstances of the applicant's reentry. Commentors also
encouraged DHS to ensure definitions and interpretations acknowledge
the global nature of trafficking, such as international child
pornography rings and international sex trafficking rings, often with
perpetrators based in the United States even if the trafficking
occurred abroad.
Response: First, DHS acknowledges that trafficking may have a
global nature and include a nexus to the United States even if the
trafficking occurred abroad; however, DHS declines to interpret the
TVPA to encompass trafficking situations in which a trafficking victim
seeks protection in the United States for a trafficking situation that
occurred fully outside U.S. borders and for which there is no nexus to
the United States--either through presence at a United States port of
entry on account of the trafficking or cooperation with U.S. law
enforcement.
Congress created T nonimmigrant status with a dual purpose: to
protect victims of a severe form of trafficking in persons and to
encourage and facilitate assistance to U.S. law enforcement to
prosecute and combat human trafficking. See generally, TVPA section
102, 22 U.S.C. 7101. Congress provided an incentive for victims of a
severe form of trafficking in persons to report their victimization by
providing for an immigration benefit contingent upon complying with
reasonable requests for assistance to LEAs. Id.; new 8 CFR 214.202(c).
If DHS adopted the commenters' suggested interpretation of the physical
presence requirement, victims who were trafficked anywhere in the world
could seek T nonimmigrant status in the United States, although a U.S.
law enforcement agency would not necessarily have jurisdiction to
investigate or prosecute the trafficking. This result would not be
consistent with the dual purposes for which Congress created T
nonimmigrant status.
DHS appreciates the difficult circumstances facing victims
trafficked outside of the United States, particularly when an applicant
is unable to find protection elsewhere; however, DHS does not believe
that Congress intended to offer protection in the form of T
nonimmigrant status in the United States to victims who suffer
trafficking in other countries, who flee to the United States for
protection, and whose trafficking has no nexus to the United States.
DHS acknowledges, however, there may be situations in which trafficking
could have occurred abroad that would make an applicant eligible for T
nonimmigrant status; as indicated in the Policy Manual, applicants
whose trafficking ended outside of the United States may be able to
satisfy physical presence if they can demonstrate that they are now in
the United States or at a port of entry on account of trafficking or
were allowed valid entry into the United States to participate in a
trafficking-related investigation or a prosecution or other judicial
process. Cases where trafficking occurred abroad require an
individualized and nuanced consideration. Consistent with this
interpretation, DHS has amended 8 CFR 214.11(g)(1)(v) (redesignated 8
CFR 214.207(a)(5)) to indicate that an applicant may be deemed
physically present under this provision regardless of where such
trafficking occurred. See new 8 CFR 214.207(a)(5)(i). DHS has
consolidated the language at 8 CFR 214.11(g)(3) at new 8 CFR
214.207(a)(5)(ii) and (b)(3) to instruct applicants how they may
demonstrate physical presence, by showing documentation of valid entry
into the United States for purposes of an investigative or judicial
process associated with an act or perpetrator of trafficking.
Comment: Another commenter requested that DHS address situations
where trafficking occurred abroad, but the applicant can satisfy
physical presence because the trafficking is directly the result of
U.S. immigration policy.
Response: DHS emphasizes that applicants who are physically present
in the United States or at a port of entry on account of trafficking
can demonstrate eligibility for T nonimmigrant status even if the
trafficking occurred abroad; however, the requirement that an applicant
be physically present in the United States or at a port of entry is a
statutory requirement that cannot be waived. Eligibility may be
established where there exists a nexus between the trafficking and
presence in the United States.
8. Opportunity To Depart
Comment: Commenters also requested DHS strike the reference to the
``applicant's ability to leave the United States'' at 8 CFR
214.11(g)(4) because such evidence is unnecessary, and DHS had already
removed the requirement for an applicant to prove they had no
``opportunity to depart'' the United States. Another commenter
indicated that DHS imposes a de facto ``opportunity to depart''
requirement.
Response: DHS agrees that striking the ``ability to leave''
language is consistent with the prior removal of the ``opportunity to
depart'' language and has revised the regulation accordingly. DHS
clarifies that an applicant need not show they had no opportunity to
depart the United States to establish physical presence.
9. Presence for Participation in Investigative or Judicial Process
Comment: Commenters stated that DHS incorrectly interprets the
language in 8 CFR 214.11(g)(3), redesignated as Sec. 214.207(a)(5)(ii)
and (b)(3) to require a victim's entry through lawful means. See 81 FR
92274. The commenters claim the statute does not indicate that only
lawful reentries or those arranged by the government can be used to
demonstrate physical presence. The commenters noted that the
regulations are not structured to include non-criminal processes, and
it is likely that LEAs will not be involved in such proceedings, making
it unlikely that a victim would be able to enter the United States
through lawful means. The commenters
[[Page 34881]]
also stated that it would be unlikely for a victim to have a visa
authorized for the purpose of pursuing civil remedies.
Response: DHS maintains that the current interpretation requiring a
lawful entry to establish physical presence based on ``having been
allowed entry into the United States for participation in investigative
or judicial processes associated with an act or a perpetrator of
trafficking,'' remains the best legal reading of the statutory language
added by TVPRA 2008, as explained in detail in the 2016 IFR preamble.
Where the regulatory provisions focus on the purpose of the entry, for
example at 8 CFR 214.11(g)(2)(iii) (new 8 CFR 214.207(b)(3)), the
statutory authority comes from the ``allowed entry'' language found in
section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C.
1101(a)(15)(T)(i)(II), which includes physical presence on account of
an individual ``having been allowed entry.'' DHS therefore is retaining
the provisions as drafted, striking 8 CFR 214.11(g)(3), and moving the
language to new 8 CFR 214.207(a)(5)(ii) and (b)(3). However, having
been allowed entry to participate in investigative or judicial
processes is just one example of how an individual can establish they
are physically present on account of trafficking, and DHS acknowledges
that the requirement of a lawful reentry in 8 CFR 214.11(g)(3) has had
unintentional limitations, such that victims of trafficking who
departed the United States and reentered unlawfully, but are present in
order to participate in an investigative or judicial process associated
with the trafficking, were unable to establish eligibility due to their
manner of reentry. DHS believes it is consistent with Congressional
intent to recognize that such victims may be able to establish that
they are physically present on account of trafficking, regardless of
the manner of reentry or the time that has passed between cooperation
and filing of the T visa application. Accordingly, DHS has added new 8
CFR 214.207(b)(4), which focuses on the reason for the victim's current
presence rather than the purpose or means of their entry. DHS maintains
that ``allowed entry'' as used in section 101(a)(15)(T)(i)(II) of the
INA, 8 U.S.C. 1101(a)(15)(T)(i)(II), signifies a ``lawful entry'' for
purposes of initial entry and reentry after departure.
Comment: Another commenter requested that DHS revise the language
in 8 CFR 214.11(g)(3) (consolidated into 8 CFR 214.207(a)(5)(ii) and
(b)(3)) to include civil or administrative investigations,
prosecutions, or judicial processes associated with acts or
perpetrators of trafficking.
Response: DHS declines to make this edit, as the new language at 8
CFR 214.207(b)(5) encompasses these processes. ``Investigative or
judicial processes'' covers all the suggested language from the
commenter, and includes criminal, civil, administrative, or other
investigations, prosecutions, or judicial processes.
10. Evidence To Establish Physical Presence
Comment: One commenter requested that in determining whether
trafficking survivors are present on account of trafficking, DHS should
consider the ability or inability of survivors to access legal and
social services after escaping a trafficker.
Response: DHS emphasizes that adjudicators consider all evidence
presented, including the applicant's ability to access services
following victimization. DHS has made several clarifications and
amendments to redesignated 8 CFR 214.207(c) to address this concern;
however, DHS cannot specifically agree to such a broad request to
acknowledge consideration of an applicant's inability to access
services if this information is not presented via evidence relevant to
a particular case.
Commenter: Another commenter proposed significant revisions to 8
CFR 214.11(g)(4) (redesignated as 8 CFR 214.207(c)). The commenter
stated that Requests for Evidence appear to require mental health
diagnoses, which places survivors in rural areas at great disadvantage;
and current emphasis on law enforcement evidence reinforces that
evidence from law enforcement is considered primary evidence and
encourages misinterpretation that there is a statute of limitations to
file for a T visa.
Response: DHS has updated the evidentiary requirements for how
applicants may establish that they are physically present in the United
States on account of trafficking in redesignated 8 CFR 214.207(c). The
amended section codifies a non-exhaustive list of evidence with the
intent of providing clarity to stakeholders and adjudicators around
evidentiary expectations. DHS acknowledges that the prior regulation
may have inadvertently created confusion surrounding what types of
evidence are preferred, rather than underscoring that any credible
evidence will be considered in determining whether an applicant has
established physical presence in the United States on account of
trafficking. Although the list at 8 CFR 214.207(c) has been
significantly expanded, DHS again emphasizes that there is no preferred
or required type of evidence, and victims may be more likely to have
access to certain types of evidence.
K. Compliance With Any Reasonable Request for Assistance
1. Requirement To Comply With Reasonable Request
Comment: One commenter requested DHS rephrase, reconsider, or
remove the requirement that an applicant for a T visa cooperate with
law enforcement, particularly because of safety considerations for
relatives abroad and continued victimization. The commenter also stated
that LEAs deport individuals who refuse to cooperate.
Response: DHS declines to adopt this recommendation. Although DHS
is sympathetic to these concerns, the statute requires compliance with
a reasonable request for assistance in order to be eligible to receive
T nonimmigrant status. DHS notes that there is a trauma exception and
an age exemption to this eligibility requirement to account for
circumstances that may impact an applicant's ability to comply with
reasonable requests for assistance. In addition, as discussed above,
DHS endeavors not to remove trafficking victims and applicants for T
nonimmigrant status outside of exigent circumstances.\25\ Moreover, as
discussed further below, the statute and regulations provide
eligibility for T nonimmigrant status to family members facing a
present danger of retaliation as a result of the principal T
nonimmigrant's escape from the severe form of trafficking or
cooperation with law enforcement. See 8 CFR 214.211; INA sec.
101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III).
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\25\ The White House, ``The National Action Plan to Combat Human
Trafficking,'' (2021) <a href="https://www.whitehouse.gov/wp-content/uploads/2021/12/National-Action-Plan-to-Combat-Human-Trafficking.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/12/National-Action-Plan-to-Combat-Human-Trafficking.pdf</a>
(National Action Plan); U.S. Dep't of Homeland Security,
``Department of Homeland Security Strategy to Combat Human
Trafficking, the Importation of Goods Produced with Forced Labor,
and Child Sexual Exploitation'' (Jan. 2020), <a href="https://www.dhs.gov/sites/default/files/publications/20_0115_plcy_human-trafficking-forced-labor-child-exploit-strategy.pdf">https://www.dhs.gov/sites/default/files/publications/20_0115_plcy_human-trafficking-forced-labor-child-exploit-strategy.pdf</a> (DHS Strategy); ``ICE
Directive 11005.3,'' <a href="https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf">https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf</a>.
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2. Incompetence and Incapacity
Comment: Commenters requested DHS expand the exceptions for
compliance with a reasonable request for assistance, including lack of
capacity/competency found in the U visa regulations. The commenters
proposed including the same exception for individuals lacking capacity
or competency even if it is not linked to the trafficking because it
often prevents
[[Page 34882]]
victims from complying with reasonable requests from law enforcement.
Response: DHS appreciates and shares these concerns about
individuals who lack capacity or competency; however, the age exemption
and trauma exception are both statutory. There is no statutory
authority for an incapacity or incompetence exemption or exception.
Instead, DHS has included consideration of an individual's capacity,
competency, or lack thereof as factors to be considered when
determining whether a request was reasonable. Moreover, the existing
age exemption and trauma exception cover incapacity or incompetence due
to age or trauma suffered. The existing exemption and exception,
coupled with DHS's addition of capacity/competency as a factor to
consider will have the same intended effect as a specific exception for
incapacity and incompetency.
3. Minimum Contact With Law Enforcement
To meet the requirement that an applicant comply with reasonable
LEA requests for assistance, 8 CFR 214.11(h)(1) (redesignated 8 CFR
214.208(b)) mandates that an applicant, at a minimum, has contacted an
LEA regarding an act of a severe form of trafficking in persons, unless
an exemption or exception applies.
Comment: One commenter requested DHS clarify that an applicant
under 18 years of age who reports the trafficking to the National Human
Trafficking Hotline or Office of Trafficking in Persons meets the
requirement that the person report to LEAs and comply with reasonable
requests, including if they make an anonymous report.
Response: DHS emphasizes that applicants who are under the age of
18 at the time of victimization are, by statute, exempt from the
requirement to cooperate with any reasonable requests for assistance
from law enforcement. Additionally, reports to the National Human
Trafficking Hotline or the Office of Trafficking in Persons would
generally satisfy the reporting requirement, if the person making the
report requested or provided permission for the report to be referred
to law enforcement; however, anonymous reports generally do not satisfy
the requirement, as they do not meet the required evidentiary standard
of proof.
Comment: Some commenters supported DHS' removal of regulatory
provisions describing how to obtain an LEA declaration when the victim
has not had contact with an LEA. See 81 FR 92276. Commenters stated
that adjudicators apply inconsistent standards as to what type of
contact with an LEA is sufficient. They wrote that some applicants have
documented in their T visa applications that they reported to law
enforcement, but received no LEA response, and then received RFEs
requesting additional documentation of law enforcement contact
including a Supplement B or proof of Continued Presence. The commenters
recommended that DHS amend 8 CFR 214.11(h)(1) (redesignated 8 CFR
214.208(b)) to provide that a single contact with law enforcement by
telephone or electronic means documented by the applicant is sufficient
to meet the eligibility requirement. They also recommended that in this
same section, DHS repeat aspects of the definition of an LEA to speed
responses to RFEs, clarify the minimum amount of LEA contact required,
and clarify that it is not necessary that law enforcement respond to
the contact. Commenters also requested DHS explicitly clarify in the
regulations that participation in civil, family, juvenile, criminal,
administrative or any type of court proceedings involving human
trafficking or where the victim reveals facts of the trafficking to the
court meets the ``contact with an LEA'' requirement.
Response: DHS agrees to adopt this recommendation regarding
clarifying what constitutes minimum conduct and has revised the
regulation to state that a single contact through telephonic,
electronic, or other means may suffice. The means of contact can vary
depending on the agency and the facts of the case. Applicants may
document whether the LEA responded, and the type of response received.
DHS encourages applicants to document all interactions they have had
with law enforcement. DHS also clarified that the LEA to which the
applicant reports must have jurisdiction over the reported crime. DHS
emphasizes that there is no requirement that an individual provide a
Supplement B or evidence of a Continued Presence grant, that an
investigation or prosecution has been initiated, or that law
enforcement respond to the applicant. While an investigation or
prosecution is not necessary, the LEA's response to the report of
trafficking is helpful to understand LEA involvement in the criminal
case and determine whether the applicant meets the requirement to
comply with any reasonable LEA requests. DHS does not consider it
necessary to repeat the definition of an LEA or to specify every type
of contact or the context of that contact that would suffice, given
that redesignated 8 CFR 214.201 (defining an LEA) clearly specifies the
types of agencies that qualify as LEAs.
4. Determining the Reasonableness of a Request
Comment: Multiple commenters suggested eliminating language in 8
CFR 214.11(a) (redesignated here as 8 CFR 214.201) and 8 CFR
214.11(h)(2) (redesignated as 8 CFR 214.208(c)) referencing the
presence of an attorney. The commenters stated that the presence of an
attorney should not be evaluated as a factor in whether an LEA request
was reasonable and doing so may lead to victims with an attorney being
held to higher standards in complying with LEA requests than those
without an attorney present. The commenters wrote that the presence of
an attorney does not make the law enforcement request more or less
reasonable.
Response: DHS declines to adopt this recommendation. Whether an
attorney was present during an LEA request is just one of the
potentially many factors that DHS considers in examining the totality
of the circumstances. Applicants may feel pressured to comply with an
LEA request in the absence of an attorney, so DHS believes that it is
appropriate to include it as a relevant factor. Furthermore, including
an attorney's presence as a factor does not create a higher standard
for victims who have attorneys present when requests are made, nor does
it put such victims at a relative disadvantage. The presence or absence
of an attorney generally will not be dispositive, but is a relevant
factor in determining the reasonableness of a request, and will be
analyzed on a case-by-case basis.
Comment: Several commenters requested that a ``qualified
interpreter'' be added into 8 CFR 214.11(h)(2) (redesignated as 8 CFR
214.208(c)), as language access during LEA interactions is critical to
victim protections and is legally required by the Civil Rights Act.
Response: DHS agrees that language access during such interaction
is important for victims and has updated the language at new 8 CFR
214.208(c)(11) accordingly.
Comment: Commenters requested DHS add additional factors in
determining the reasonableness of a request, including: the
circumstances in which a request was made, the ability and health of an
applicant, and the nature of trauma suffered. Commenters stated it was
critical to understand the context in which requests are made of
victims, as well as the circumstances of the victim themselves. The
commenters also requested striking ``severe'' from
[[Page 34883]]
``severe trauma'' at 8 CFR 214.11(h)(2) (redesignated as Sec.
214.208(c)) because all trauma should be considered.
Response: DHS generally agrees with these comments and has amended
the list of factors to consider, by adding the victim's capacity,
competency, or lack thereof; removing ``severity'' of trauma; adding
``qualified'' to interpreters; adding the ``health'' of the victim; and
adding ``any other relevant circumstances surrounding the request.''
See new 8 CFR 214.208(c). DHS believes that these clarifying changes
will improve determinations of the applicant's compliance with a
reasonable LEA request.
5. Trauma Exception
Comment: Several commenters expressed support for provisions
clarifying the types of supporting evidence that applicants can submit
to establish that they meet the trauma exception from the general
eligibility requirement of compliance with any reasonable LEA request
for assistance in 8 CFR 214.11(h)(4)(i) (redesignated here as 8 CFR
214.208(e)(1)). Commenters suggested DHS consider the circumstances of
the victim while they were being victimized and the surrounding
circumstances, which may have exacerbated the trauma. They also
recommended including additional examples of types of evidence that
could be submitted to establish that an applicant meets the trauma
exception.
Response: DHS has revised the regulations to include additional
examples of evidence that may be submitted to establish the applicant
qualifies for the trauma exception, to benefit adjudicators and
applicants, give applicants additional information, and allow for
consistency in adjudications. The updated provision clarifies that an
applicant's statement should explain the circumstances surrounding the
trauma and includes additional types of credible evidence that may be
submitted. See 8 CFR 214.208(e)(1).
Comment: One commenter recommended DHS define what constitutes
physical or psychological trauma to help applicants determine what
evidence to submit when claiming the exception.
Response: DHS declines to include a definition of trauma in the
regulatory text, as it could have the unintended effect of restricting
access to benefits for victims.
Comment: One commenter stated that requiring an applicant to prove
trauma to qualify for the exception risks re-traumatization, and that
implicit in the definition of trafficking is some element of trauma.
The commenter stated that requiring survivors to retell their
experiences could hinder healing, and this could be mitigated by
mandating a signed attestation to the psychological trauma from a
qualified individual. The commenter stated that not requiring an
applicant's affidavit would reduce the risk of re-traumatization.
Response: DHS declines to adopt this recommendation. DHS is
sympathetic to the risks of re-traumatization for survivors of
trafficking, but the trauma exception is statutory. The personal
statement is and will continue to be initial required evidence because
it is one of the most important sources of information for adjudicators
in determining whether an individual meets the eligibility requirements
for T nonimmigrant status. The personal statement also allows an
applicant to provide credible evidence of their experiences in their
own words, without requiring them to provide other evidence that may be
more difficult to obtain. In addition, adjudicators consider the impact
of trauma and victimization when evaluating the personal statement.\26\
DHS declines to mandate a signed attestation from a medical or other
qualified professional, as this would be inconsistent with the ``any
credible evidence'' standard and would create a limitation on types of
evidence that may be submitted under this standard.
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\26\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security ``Volume 3, Humanitarian Protection and Parole, Part B,
Victims of Trafficking, Chapter 3, Documentation and Evidence for
Principal Applicants,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-chapter-3 (last updated Oct. 20, 2021).
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6. DHS Contact With Law Enforcement
Comment: Several commenters requested that DHS amend 8 CFR
214.11(h)(4)(i) (redesignated here as 8 CFR 214.208(e)(1)) to provide
that, in cases where an applicant has invoked the trauma exception and
is unable to comply with reasonable LEA requests, USCIS will only
contact an LEA if the applicant has already had initial contact. These
commenters stated that maintaining this provision might discourage
applicants who fear that USCIS' discretion to contact an LEA could
potentially endanger applicants or their family members. Multiple
commenters also requested clarification to ensure adjudicators
understand that applicants who qualify for the exception are not
required to have any contact with any LEA.
Response: DHS appreciates the sensitivities of applicants who are
seeking an exception due to trauma and acknowledges that individuals
who qualify for the trauma exception are not required to have had
contact with any LEA. However, DHS feels it is important to retain the
authority to contact law enforcement agencies for any information that
may be necessary to adjudicate an application, in certain limited
circumstances, even where an applicant has not already contacted an
LEA. This is especially true for T nonimmigrant status, which requires
cooperation with law enforcement unless the trauma exception or age
exemption applies. See 8 CFR 214.208. DHS has stricken the reference to
contacting law enforcement in relation to the trauma exception and has
created a new section at 8 CFR 214.208(f) indicating that USCIS
reserves the authority and discretion to contact an LEA involved in a
case where an applicant previously contacted an LEA or when otherwise
permitted by law. See, e.g., 8 U.S.C. 1367.
7. Age Exemption
Comment: Several commenters commended DHS for updating its
regulations to reflect the statutory provision that minors under 18
years of age are not required to comply with any reasonable law
enforcement requests. See INA sec. 101(a)(15)(T)(i)(III). Multiple
commenters requested that DHS clarify its interpretation of the
exemption by amending 8 CFR 214.11(h)(4)(ii) (redesignated here as 8
CFR 214.208(e)(2)) to specify that the relevant age for determining
whether this exemption is met is the age at the time of victimization,
not the age at the time of application. Commenters stated this change
is important because child trafficking victims in particular suffer
long-term trauma that may limit their ability to cooperate with law
enforcement and to confide in their attorneys. Additionally, commenters
noted that attorneys may not identify applicants who suffered
trafficking as a minor until after they have turned 18. One commenter
requested that DHS consider increasing the age for the minor exemption.
Another commenter stated there should be no requirement to comply with
reasonable requests for assistance from law enforcement regardless of
age, considering that brains are not fully developed until the age of
25. One commenter requested DHS clarify that any credible evidence
related to a minor's age be included. The commenter indicated they work
with many children who do not have access to birth certificates,
passports, or certified medical opinions; whose documents have been
withheld by their legal guardians; or do not know their
[[Page 34884]]
own birthdates or exactly where they were born.
Response: DHS agrees that suffering human trafficking as a child
can be particularly traumatizing and has significant and negative
impacts on development. DHS has revised the regulation to clarify that
the exemption for minors applies based on the age of the applicant at
the time of victimization. An applicant is exempt from the requirement
to comply with reasonable law enforcement requests if the applicant was
under 18 years of age at the time at least one of the acts of
trafficking occurred. This is consistent with longstanding DHS policy
and practice. DHS declines to increase the age for the minor exemption
above age 18, as this exemption is provided in the statute. Moreover,
DHS declines to remove the requirement to comply with reasonable
requests for assistance, as it is a statutory requirement, and
individuals who were under the age of 18 at the time of at least one of
the acts of trafficking or may not be able to comply with reasonable
requests for assistance due to trauma qualify for an exemption or
exception.
DHS also acknowledges that minors may have difficulty obtaining
certain types of evidence to establish their age and has revised the
regulation to emphasize that any other credible evidence regarding age
will be considered.
L. Extreme Hardship
Comment: One commenter requested DHS remove the extreme hardship
requirement altogether. Another commenter wrote that the standard for
``unusual and severe harm'' in 8 CFR 214.11(i) (redesignated here as 8
CFR 214.209) for purposes of evaluating whether an applicant would
suffer extreme hardship if removed from the United States is
unnecessarily narrow and should include considerations of hardship
inflicted on individuals other than the applicant. The commenter also
recommended that DHS revise this section to take greater account of
economic detriment and financial harm as factors in assessing hardship,
particularly when those factors create a risk of re-victimization. The
commenter requested DHS add language to 8 CFR 204.11(i) (redesignated
here as 8 CFR 214.209) ``indicating that current or economic detriment
may be considered as one factor in assessing hardship, particularly
when it creates a risk of re-victimization.'' Another commenter
supported the broad list of factors that should be considered, but also
requested to include financial and support issues, and encouraged DHS
to provide a greater list of possible, but not exhaustive factors to be
considered.
Response: DHS declines to fully adopt these recommendations. DHS
cannot remove the extreme hardship eligibility requirement, as it is
required by statute. See INA sec. 101(a)(15)(T)(i)(IV), 8 U.S.C.
1101(a)(15)(T)(i)(IV) (``the alien would suffer extreme hardship
involving unusual and severe harm upon removal''). The statute is clear
that the extreme hardship eligibility requirement refers to hardship
that the applicant would suffer and does not include hardship to anyone
other than the applicant as a factor. See INA sec. 101(a)(15)(T), 8
U.S.C. 1101(a)(15)(T). Accordingly, USCIS will not consider hardship to
family members unless the evidence demonstrates specific harms that the
applicant will suffer upon removal as a result of hardship to a family
member. DHS has amended redesignated 8 CFR 214.209(c)(2) to provide
this clarification.
DHS has revised 8 CFR 214.209 to include economic harm as an
extreme hardship factor. Economic harm has always been considered a
factor; the prior regulation indicated that economic detriment alone
could not be the sole basis for a finding of extreme hardship involving
unusual and severe harm. Although the revised regulations do not bar
economic hardship as the sole basis for such a finding, it must rise to
the level of extreme hardship involving unusual and severe harm, and
thus, generally, economic hardship alone may not suffice. However,
adjudicators will consider the totality of the circumstances and all
relevant factors in making an extreme hardship determination. Each case
will require an analysis based on the specific facts and circumstances
present.
Comment: One commenter requested that DHS clarify whether the
hardship must be directly related to trafficking and that it does not
need to rise to the level of extreme hardship.
Response: As discussed above, DHS has not removed the reference to
extreme hardship in the regulation. DHS clarifies that an applicant's
hardship does not need to be directly related to their trafficking. See
8 CFR 214.209.
M. Family Members Facing a Present Danger of Retaliation
The regulations at 8 CFR 214.11(k) (redesignated here as 8 CFR
214.211) implement section 101(a)(15)(T)(ii)(III) of the INA, 8 U.S.C.
1101(a)(15)(T)(ii)(III), to provide that T nonimmigrant status may be
available for a parent, unmarried sibling under the age of 18, or the
adult or minor child of a derivative of the principal facing a present
danger of retaliation as a result of the T-1 nonimmigrant's escape from
the severe form of trafficking or cooperation with law enforcement. One
commenter expressed support for allowing principal applicants under 21
years of age to apply for derivative T nonimmigrant status for
unmarried siblings under 18 years and parents as eligible derivative
family members.
Comment: Commenters requested that DHS mandate an expedited
adjudication process for these applications, which would protect family
members at risk and encourage victims of trafficking to report their
victimization. Some commenters recommended a specific 30-day timeline.
Response: DHS shares the commenters' concerns about family members
at risk; however, it declines to impose processing deadlines on itself
given staffing resources and the case-by-case review required in
adjudicating T visa applications. DHS notes that there is already a
process in place to request expedited processing based on urgent
humanitarian reasons. Guidance for requesting expedited processing can
be found on the USCIS website.\27\
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\27\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``How to Make an Expedite Request,'' <a href="https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request">https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request</a>
(last updated Oct. 20, 2022).
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Comment: Commenters also wrote that section 101(a)(15)(T)(ii)(III)
of the INA, 8 U.S.C. 1101(a)(15)(T)(ii)(III), does not provide an
opportunity to request T nonimmigrant status for a principal's adult
children who face a present danger of retaliation. Some commenters
indicated they understood that DHS had limited ability to address this
statutory gap, while others stated that DHS could construe the statute
more broadly to include these adult children but did not provide legal
support for this assertion.
Response: DHS acknowledges that the statute omits a principal's
adult children who face a present danger of retaliation. However, the
statutory language is not ambiguous on this point and a change in the
law to include a principal's adult children would be necessary to
include adult children of a T-1 nonimmigrant as eligible family
members. INA sec. 101(a)(15)(T)(ii)(III), 8 U.S.C.
1101(a)(15)(T)(ii)(III).
Comment: Commenters wrote that family members at risk of
retaliation from traffickers have difficulty securing evidence listed
in 8 CFR 214.11(k)(6) (redesignated here as 8 CFR 214.211(f)) to prove
a present danger of retaliation. They requested that DHS indicate that
a victim's statement describing the present danger of retaliation alone
would be sufficient or, at a minimum,
[[Page 34885]]
clarify that police reports filed in the home country and affidavits
from witnesses in the home country would meet the evidentiary standard.
Several commenters requested that DHS consider any credible evidence of
the danger of retaliation.
Response: DHS appreciates the difficulties that trafficking victims
and their family members may have in obtaining evidence. For this
reason, the rule is clear that applicants may submit any credible
evidence related to all the eligibility requirements for both principal
applicants and derivative applicants. See, e.g., 8 CFR 214.204(c) and
(l). The standard also applies specifically to the evidentiary standard
for proving that an eligible family member faces a present danger of
retaliation. See 8 CFR 214.211(a)(3). In cases where the LEA has not
investigated the trafficking, USCIS will evaluate any credible evidence
demonstrating derivatives' present danger of retaliation. The types of
evidence listed at 8 CFR 214.211(f) are non-exhaustive examples, and
the inclusion of ``and/or'' at the end of the list before the inclusion
of ``any credible evidence'' clarifies that USCIS will consider any
credible evidence.
An applicant's personal statement alone could be sufficient to
establish a present danger of retaliation, in accordance with the ``any
credible evidence'' standard. See new 8 CFR 214.211(f). DHS has not
specifically revised the rule to state that a statement describing the
present danger of retaliation alone would be sufficient, as this is
already permitted by the ``any credible evidence'' standard, and
referencing one particular piece of evidence in the regulatory text
could unintentionally discourage applicants from submitting additional
relevant, credible evidence that would assist in the adjudication. DHS
encourages applicants to submit additional credible evidence whenever
possible to provide USCIS adjudicators with as complete an
understanding of the facts of the case as possible.
The ``any credible evidence'' standard also encompasses evidence
originating from a family member's home country; however, DHS has
clarified that evidence may be from the United States or any country in
which an eligible family member faces retaliation at new 8 CFR
214.211(f).
Comment: One commenter requested DHS revise the T-6 regulation to
eliminate the policy of requiring that a derivative beneficiary of a T-
1 nonimmigrant have already secured T nonimmigrant status before their
adult or minor children facing present danger of retaliation become
eligible for T-6 status. They stated that DHS's interpretation of
``derivative beneficiary'' is overly narrow, that the interpretation
that the term means someone who has ``derived status'' and
``benefited'' from the qualifying relationship has no basis, and that
it is inconsistent with DHS's own use of the term ``beneficiary''
elsewhere.
Response: DHS appreciates the commenter's concerns; however, it
maintains that its interpretation as presented in the 2014 Policy
Memorandum \28\ regarding T derivatives (T Derivative Memo) is the
correct legal reading of the statute. The commenter's contention that a
``derivative beneficiary'' may include someone who merely ``stands to
benefit,'' but has not, at minimum, sought such a benefit, lacks
statutory support. DHS maintains that the phrase ``adult or minor
children of a derivative beneficiary'' plainly requires the T-6 family
member to establish their eligibility through their relationship to the
derivative beneficiary of the principal. A plain language reading of
``derivative beneficiary'' is someone who has derived a benefit; that
is, an individual who has derived their nonimmigrant status as a family
member, as defined at section 101(a)(15)(T)(ii) of the INA, 8 U.S.C.
1101(a)(15)(T)(ii), and who has benefited from the qualifying
relationship to the principal. As noted in the T Derivative Memo, this
means that a ``derivative beneficiary'' is a family member described in
section 101(a)(15)(T)(ii)(I) and (II) of the INA, 8 U.S.C.
1101(a)(15)(T)(ii)(I) and (II), who has been granted derivative T
nonimmigrant status. Accordingly, a ``derivative beneficiary'' must
have been granted T-2, T-3, T-4, or T-5 nonimmigrant status through the
principal in order for the derivative beneficiary's adult or minor
child to be eligible for T-6 nonimmigrant status. This conclusion is
further supported by the requirement under section 101(a)(15)(T)(ii) of
the INA, 8 U.S.C. 1101(a)(15)(T)(ii) that any derivatives be
``accompanying, or following to join'' the principal T-1 applicant.
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\28\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``New T Nonimmigrant Derivative Category and T and U
Nonimmigrant Adjustment of Status for Applicants from the
Commonwealth of the Northern Mariana Islands'' (2014), <a href="https://www.uscis.gov/sites/default/files/document/memos/Interim_PM-602-0107.pdf">https://www.uscis.gov/sites/default/files/document/memos/Interim_PM-602-0107.pdf</a> (T Derivative Memo).
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As noted in the T Derivative Memo, Congress created the T-6
classification through a relationship to a derivative, instead of
directly to a principal, as it is in other immigration benefits.
Therefore, establishing a qualifying relationship between the T-6
family member and their parent is insufficient to derive eligibility as
a T-6, if the T-6's parent never held T nonimmigrant status as a T
derivative beneficiary. To be eligible for T-6 classification, the
adult or minor child must establish the qualifying relationship to
their parent who actually derived T nonimmigrant status through the
principal beneficiary. Accordingly, DHS declines to make any changes in
response to this comment.
N. Marriage of Principal After Principal Files Application for T
Nonimmigrant Status
The regulation at redesignated 8 CFR 214.211(g)(4) states that if
an applicant marries after filing the application for T-1 nonimmigrant
status, USCIS will not consider the spouse eligible for derivative T-2
nonimmigrant status.
Comment: Several commenters wrote that this limitation on eligible
derivatives relies on an unnecessarily narrow interpretation of section
101(a)(15)(T)(ii) of the INA, 8 U.S.C. 1101(a)(15)(T)(ii), by requiring
that a spousal relationship exist at the time of filing. They suggested
that the spouse from a marriage that occurs after the principal
applicant applies for T-1 nonimmigrant status should be able to be
considered as a T-2 derivative spouse.
Response: The U.S. Court of Appeals for the Ninth Circuit, in
Medina Tovar v. Zuchowski, held that the regulatory requirement at 8
CFR 214.14(f)(4) that a spousal relationship must exist at the time a
Petition for U Nonimmigrant Status is filed for the spouse to be
eligible for classification as a derivative U-2 nonimmigrant was
invalid.\29\ As a matter of policy, DHS applies this decision
nationwide to spousal and stepparent relationships arising in
adjudications of derivative U nonimmigrant status petitions, as well as
derivative T nonimmigrant status applications.\30\ Accordingly, DHS has
amended the regulations in the final rule to adopt the holding in
Medina Tovar for T nonimmigrant adjudications and has stricken the
following language: ``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.'' DHS has
[[Page 34886]]
added language that principal applicants who marry while their
Application for T Nonimmigrant Status is pending may file an
Application for Family Member of T-1 Recipient on behalf of their
spouse, even if the relationship did not exist at the time they filed
their principal application. See new 8 CFR 214.211(e). DHS has also
included language allowing for a principal applicant to apply for a
stepparent or stepchild if the qualifying relationship was created
after they filed their principal application but before it was
approved. Finally, DHS has clarified that it will evaluate whether the
marriage creating the qualifying spousal relationship or stepchild and
stepparent relationship exists at the time of adjudication of the
principal's application and thereafter.
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\29\ Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir. 2020).
\30\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``Volume 3, Humanitarian Protection and Parole, Part B,
Victims of Trafficking, Chapter 4, Family Members, Section D, Family
Relationship at the Time of Filing,'' <a href="https://www.uscis.gov/policy-manual/volume-3-part-b">https://www.uscis.gov/policy-manual/volume-3-part-b</a>-chapter-4 (last updated Oct. 20, 2021).
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Comment: One commenter requested that principal applicants should
be permitted to apply for derivative T status for the parent of the
principal's derivative children, as many individuals may not formalize
their committed relationships through marriage.
Response: Although DHS sympathizes with these situations, the
family relationships giving rise to derivative T nonimmigrant status
eligibility are set forth at section 101(a)(15)(T)(ii) of the INA, 8
U.S.C. 1101(a)(15)(T)(ii). Thus, DHS declines to add a new standard for
derivative benefits for a committed relationship in the T visa context.
O. Relationship and Age-Out Protections
DHS has amended new 8 CFR 214.211(e)(1) to state that if the
principal applicant establishes that they have become a parent of a
child after filing, the child will be deemed an eligible family member.
This new language replaces ``had a child'' because it is more inclusive
and accurate, and mirrors similar regulations in the U visa context.
DHS has also amended new 8 CFR 214.211(e)(3) to state that the age-
out protections apply to a child who may turn 21 during the pendency of
the principal's application for T nonimmigrant status. The prior text
erroneously referred to age-out protections for children of principals
who were 21 years of age or older.
P. Travel Abroad
Comment: Commenters encouraged DHS to provide advance parole for T
nonimmigrants in recognition of the fact that victims' families may
remain abroad. They wrote that victims would feel safer and be able to
return to the United States without immigration consequences.
Response: DHS notes that T nonimmigrants are already permitted to
apply for advance parole, as clarified in both the Form I-914 and Form
I-131 form instructions and Policy Manual. Applications for advance
parole are evaluated on a case-by-case basis pursuant to section
212(d)(5) of the INA, 8 U.S.C. 1182(d)(5). In addition, DHS has
clarified that a noncitizen granted T-1 nonimmigrant status or an
eligible family member must apply for advance parole to return to the
United States after travel abroad. The T nonimmigrant must comply with
advance parole requirements to maintain T nonimmigrant status upon
return to the United States and remain eligible to adjust status under
section 245(l) of the INA, 8 U.S.C. 1255(l). 8 CFR 245.23(j). See new 8
CFR 214.204(p), 214.211(i)(4).
Q. Extension of Status
DHS provides in this rule that a derivative T nonimmigrant may file
for extension of status independently, if the T-1 nonimmigrant remains
in status, or the T-1 nonimmigrant may file for an extension of their
own status and request that the extension be applied to their
derivative family members. This codifies the current process for
derivatives to seek extensions of status. See new 8 CFR 214.212(b). In
administering the T nonimmigrant program, USCIS found, and stakeholders
expressed, that there was a lack of clarity with the extension of
status process for T nonimmigrants. USCIS issued a Policy Memorandum in
2016 to clarify requirements for extension of status for T and U
nonimmigrants (T/U Extension Memo).\31\ DHS is codifying some of the
policies in the T/U Extension Memo at new 8 CFR 214.212(f). First, this
rule provides that USCIS may approve an extension of status for
principal applicants based on exceptional circumstances. Second, when
an approved eligible family member is awaiting initial issuance of a T
visa by an embassy or a consulate and the principal's T-1 nonimmigrant
status will soon expire, USCIS may approve an extension of status for a
principal applicant based on exceptional circumstances. See new 8 CFR
214.212(f).
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\31\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``Extension of Status for T and U Nonimmigrants (Corrected
and Reissued)'' (2016), <a href="https://www.uscis.gov/sites/default/files/document/memos/2016-1004-T-U-Extension-PM-602-0032-2.pdf">https://www.uscis.gov/sites/default/files/document/memos/2016-1004-T-U-Extension-PM-602-0032-2.pdf</a> (T/U
Extension Memo).
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Finally, DHS has clarified in the evidence section for extension of
status that it will consider affidavits from individuals with direct
knowledge of or familiarity with the applicant's circumstances, rather
than affidavits of ``witnesses.'' See new 8 CFR 214.212(g)(2)(v).
R. Revocation Procedures
DHS has clarified the existing practice that an automatic
revocation cannot be appealed. See new 8 CFR 214.213(a). DHS has also
clarified at Sec. 214.213(c) that if an applicant appeals a (non-
automatic) revocation, the decision will not become final until the
appeal is decided. See 8 CFR 103.3. DHS has revised the language at new
8 CFR 214.213(b)(1) which previously referenced errors that affected
the ``outcome'' and now refers to errors that led to an ``approval'' of
a case.
Comment: Some commenters expressed concern that 8 CFR 214.11(m)
(redesignated here as 8 CFR 214.213)) eliminates a step in the process
of revocation, stating that under the prior rule at 8 CFR 214.11(s)(2),
a notice of intent to revoke (NOIR) would initiate a 30-day window for
the applicant to submit a rebuttal that a district director would then
consider as evidence. They proposed that the rule include this prior
process and provide individuals with an opportunity of rebuttal.
Response: The removal of this language in the interim rule does not
reflect a change in USCIS' revocation procedures. T nonimmigrants who
are issued a NOIR are provided 30 days to respond with evidence to
rebut the grounds stated for revocation in the notice. These grounds
and the deadline to respond are stated in all NOIRs. USCIS will
consider all evidence presented in deciding whether to revoke the
approved application. The reference to the district director in the
2002 interim rule is outdated, as district offices are no longer
involved in revoking T nonimmigrant status. DHS has codified the
current procedures for NOIRs, including the time period during which an
individual may submit rebuttal evidence at 8 CFR 214.213(c).
S. Waivers of Inadmissibility
DHS has the authority to waive grounds of inadmissibility on a
discretionary basis under section 212(d)(3)(A)(ii) or (d)(13) of the
INA, 8 U.S.C. 1182(d)(3)(A)(ii), (d)(13).
Comment: Commenters requested that DHS clarify in the regulation
that immigration judges have jurisdiction over waiver applications,
referencing court decisions in the U visa context.
Response: DHS declines to adopt this recommendation. In the 2002
interim rule, DOJ delegated T-related waiver authority exclusively to
the Immigration
[[Page 34887]]
and Naturalization Service (INS), and INS's adjudicative authority
transferred to USCIS with the Homeland Security Act.\32\
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\32\ 6 U.S.C. 271(b).
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Comment: In cases involving violent or dangerous crimes, 8 CFR
212.16 specifies that USCIS will only exercise favorable discretion
toward the applicant in extraordinary circumstances unless the criminal
activities were caused by or were incident to the victimization. See 8
CFR 212.16(b)(3). Several commenters wrote that this provision is too
stringent in its application. They stated that this language is not
statutorily required, that victims of trafficking often have
unfavorable criminal histories that are not directly tied to their
victimization but are related to their vulnerability that led to their
exploitation, and that this provision could have a chilling effect on
victims coming forward to report crimes.
Other commenters encouraged DHS to require consideration of the
effects and circumstances of the trafficking as they relate to criminal
issues. They suggested DHS determine whether the crime occurred before
the trafficking situation or is related to the trafficking, including
trauma or vulnerabilities in the wake of trafficking. They requested
DHS focus not on the seriousness or number of crimes and instead focus
on a victim-centered approach using a balancing test.
Response: DHS declines these edits, while recognizing nuances in
evaluating an applicant's criminal history and the potential for unique
factors related to victimization. DHS believes that 8 CFR 212.16
appropriately informs the exercise of discretion and is fundamental to
maintaining the integrity of the T nonimmigrant status program and the
ability to adjudicate T visa applications on a case-by-case basis. DHS
has broad waiver authority to waive most grounds of inadmissibility
under section 212(d)(3)(A)(ii) and (d)(13) of the INA, 8 U.S.C.
1182(d)(3)(A)(ii), (d)(13) (if in the national interest for section
212(a)(1) of the INA, 8 U.S.C. 1182(a)(1), or if in the national
interest and caused by or incident to the victimization for most other
provisions of subsection 212(a) of the INA, 8 U.S.C. 1182(a)
inadmissibility grounds). DHS reserves the ability to evaluate
inadmissibility grounds in each individual case to ensure that the
waiver is in the national interest and considers a broad variety of
factors in doing so. Moreover, DHS already considers all positive and
negative factors in the exercise of discretion.
T. Adjustment of Status
DHS has made several changes to the adjustment of status
regulations for T nonimmigrants. DHS has stricken from 8 CFR
245.23(a)(3) the requirement that an applicant accrue 4 years in T-1
nonimmigrant status and file a complete application prior to April 13,
2009, as all such applications have been adjudicated.
In addition, DHS has removed the word ``first'' before ``date of
lawful admission'' in 8 CFR 245.23(a)(4) to clarify the agency's
interpretation of re-accrual of physical presence following a break in
presence. This edit clarifies an outstanding legal and policy concern
in the program and eliminates barriers for victims of trafficking. The
statutes and regulations permit T nonimmigrants to restart the clock
after a break in continuous physical presence after the first admission
as a T nonimmigrant (including, but not limited to, restarting after a
subsequent admission as a T nonimmigrant, or restarting after returning
with advance parole after a break in continuous physical presence).
This interpretation treats T nonimmigrant adjustment of status
applicants and U nonimmigrant adjustment of status applicants the same
regarding the requirements for continuous physical presence.
Comment: Commenters encouraged DHS to take a broader approach to
adjustment of status eligibility, including allowing derivative family
members to adjust independently of the T-1 nonimmigrant, and to
evaluate each application on its own merits. One commenter recommended
incorporating the policies outlined in the T/U Extension Memo, because
it allowed derivatives to adjust independently of principals.
Response: Section 245(l) of the INA, 8 U.S.C. 1255(l), provides
that if a T-1 nonimmigrant has been continuously physically present for
three years since admission as a T-1 nonimmigrant (or during the
investigation or prosecution of trafficking which is complete);
establishes good moral character; and has complied with any reasonable
request for assistance in the trafficking investigation or prosecution,
would suffer extreme hardship involving unusual and severe harm upon
removal, or was under age 18 at the time of victimization, the
Secretary may adjust the status of the T-1 nonimmigrant and any person
admitted under section 101(a)(15)(T)(ii) of the INA, 8 U.S.C.
1101(a)(15)(T)(ii). Thus, a precondition for a derivative T
nonimmigrant to adjust status under section 245(l) of the INA, 8 U.S.C.
1255(l) is that the T-1 nonimmigrant has met the above specified
requirements (continuous physical presence, good moral character,
etc.). For all practical purposes, a derivative T nonimmigrant
generally cannot demonstrate that the T-1 nonimmigrant meets the
requirements for adjustment of status in the absence of USCIS
adjudicating an application for adjustment of status from the T-1
nonimmigrant themself. Therefore, DHS declines to adopt the commenter's
recommendation to permit T derivatives to adjust independent of the T-1
principal.
DHS also notes that the T/U Extension Memo says derivative family
members with T nonimmigrant status do not lose their status when the T-
1 nonimmigrant adjusts status, allowing the derivative to adjust status
later. DHS has codified this longstanding policy at 8 CFR 245.23(b)(5).
Comment: Commenters also requested changes to 8 CFR 245.23(a)(6)
such that it includes an exemption for trafficking victims under the
age of 18 at the time of victimization, to be consistent with the
statute at 8 U.S.C. 1255(l)(1)(C).
Response: DHS agrees that Congress intended to exempt trafficking
victims who were under the age of 18 at the time of their victimization
from being required to contact law enforcement. This exemption should
apply at the adjustment of status stage; accordingly, DHS has made this
change to the regulation as a technical edit. Similarly, DHS has added
reference to the trauma exception, consistent with the statute and
congressional intent. See new 8 CFR 245.23(a)(7)(iii) and (iv).
Comment: Other commenters requested changes be made to the minimum
3-year continuous physical presence requirement because it punishes
trafficking victims by forcing them to wait, and conditions early
adjustment eligibility on things outside the victim's control, such as
the conclusion of the investigation or prosecution.
Response: DHS is sympathetic to the difficulties victims may face
in waiting to adjust status; however, the continuous physical presence
period is statutory and cannot be changed by regulation.
Comment: Commenters also requested that DHS implement a process by
which principal applicants who obtain lawful permanent residence and
subsequently marry may file the equivalent of a Form I-929, Petition
for Qualifying Family Member of a U-1 Nonimmigrant on behalf of
eligible family members.
[[Page 34888]]
Response: DHS is sympathetic to the concerns raised in these
comments but declines to adopt a process for certain relatives to apply
to adjust status if they have never held T nonimmigrant status.
Commenters noted the ability of U-1 nonimmigrants to file for spouses
they subsequently marry after receiving U nonimmigrant status; U-1
nonimmigrants are able to do so under 8 U.S.C. 1255(m)(3); however,
there is no equivalent statutory basis to create such a process in the
T visa context under 8 U.S.C. 1255(l)(1).
U. Applicants and T Nonimmigrants in Removal Proceedings or With
Removal Orders
Commenter: One commenter requested DHS acknowledge that trafficking
survivors often escape trafficking through arrest or contact with
Immigration and Customs Enforcement (ICE), who may later prosecute them
without investigating whether they have been trafficked. The commenter
requested that special protections be extended to survivors placed in
removal proceedings and detention, to ensure survivors have access to
due process in requesting a T visa.
Response: DHS acknowledges that many survivors may escape their
trafficking through encounters with ICE. Understanding the concern that
trafficking victims may require additional protection, DHS has made
several changes to the regulation (discussed below) to further its
victim-centered approach. In addition, DHS has made significant
accomplishments of Priority Actions within the Department of Homeland
Security Strategy to Combat Human Trafficking, the Importation of Goods
Produced with Forced Labor, and Child Sexual Exploitation (DHS
Strategy). For example, in October 2020, DHS launched the Center for
Countering Human Trafficking (CCHT), a DHS-wide effort comprising 16
supporting offices and components, led by U.S. Immigration and Customs
Enforcement (ICE) Homeland Security Investigations (HSI). The CCHT is
the first unified, intercomponent coordination center for countering
human trafficking and the importation of goods produced with forced
labor. In October 2021, the Secretary directed DHS components to
incorporate a victim-centered approach into all policies, programs, and
activities governing DHS interactions with victims of crime. Finally,
in August 2021, ICE issued Directive 11005.3: Using a Victim-Centered
Approach with Noncitizen Crime Victims, which sets forth ICE policy
regarding civil immigration enforcement actions involving noncitizen
crime victims, including victims of trafficking and Continued Presence
recipients.\33\ This Directive emphasizes the duty to protect and
assist noncitizen crime victims.
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\33\ ``ICE Directive 11005.3,'' <a href="https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf">https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf</a>.
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Comment: Another commenter requested that in cases where applicants
can make a credible showing that they were placed in removal
proceedings through retaliatory actions of their trafficker or due to
their trafficking, DHS should automatically join in a motion to
administratively close or to terminate the removal proceeding for the
pendency of the T nonimmigrant application, including through any
appeals, and overcoming any applicable time and numerical limitations.
Response: DHS declines to adopt this recommendation. DHS is
cognizant that individuals may be placed in removal proceedings because
of their trafficking experience and implements a victim-centered
approach for all individuals it encounters. DHS believes that the
following changes (listed in the subsequent seven numbered paragraphs)
made to the regulation will address many of the commenter's concerns.
1. Principal Applicants, T-1 Nonimmigrants, and Derivative Family
Members
Comment: Commenters indicated that their clients have faced
unnecessary hurdles and additional trauma when seeking to reopen and
terminate a prior removal order due to opposition by ICE. Commenters
also stated that ICE ``rarely'' joins applicants' motions to
administratively close, continue, or terminate proceedings. They
emphasized that removal from the United States can render a victim
ineligible for a T visa and vulnerable to re-trafficking or retaliation
from the trafficker. The commenters suggested that the regulations be
amended to mandate ICE's participation in joint motions to reopen upon
a grant of T-1 or T derivative nonimmigrant status in these
circumstances, or at the respondent's request, ICE should agree to a
motion to administratively close, terminate or continue proceedings (if
proceedings are ongoing).
Response: DHS values the need to conserve government resources and
maintain coordination across the department; however, DHS declines to
codify limitations on ICE's ability to make case-by-case
determinations. In line with the victim-centered approach, we have
revised the regulation to provide that ICE will maintain a policy
regarding the exercise of discretion toward all applicants for T
nonimmigrant status, and all T nonimmigrants. See new 8 CFR 214.214(b).
To that end, DHS has also revised the regulation at new 8 CFR
214.204(b)(1)(ii), 214.205(e), and 214.211(b)(2)(ii) to state that ICE
may exercise prosecutorial discretion as appropriate.
Comment: Other commenters stated that if DHS disagreed with
mandating ICE to join such motions, DHS should add permissive language
to this effect, making clear that the language set forth at 8 CFR
214.11(d)(1)(ii) and (k)(2)(i) (redesignated as 8 CFR 214.204(b)(2) and
214.211(b)(2)) applies both to T-1 nonimmigrants as well as T
derivatives in pending removal proceedings. Other commenters also
requested the regulation address derivative family members in removal
proceedings.
Response: DHS agrees with the commenter's suggestion, and as
described above, has amended the regulation to state that ICE may
exercise prosecutorial discretion, including in cases of T derivatives
or eligible family members. See new 8 CFR 214.211(b)(2)(ii).
2. Immigration Judges
Comment: Several commenters requested DHS add language to the
regulation specifically stating that an immigration judge may terminate
removal proceedings once T nonimmigrant status is granted. They
requested DHS add language clarifying that an immigration judge can
administratively close removal proceedings while USCIS adjudicates an
application for T nonimmigrant status.
Response: This rule amends DHS regulations only and is not a joint
Department of Justice (DOJ) rule. Accordingly, comments related to the
authority of an immigration judge to terminate or administratively
close removal proceedings are outside the scope of this rule, which
cannot bind DOJ.
Comment: Commenters also suggested that the regulation direct
immigration judges to terminate or administratively close proceedings
for all T nonimmigrant status applicants and recipients on their own
accord without a motion or request from the parties.
Response: DHS declines to adopt this recommendation. This rule
amends DHS regulations only and is not a joint Department of Justice
(DOJ) rule. Thus, DHS cannot bind DOJ in this rule.
3. Automatic Stays of Removal
Comment: One commenter urged DHS to automatically stay removals of
[[Page 34889]]
applicants whose applications are deemed to be properly filed. They
request in the alternative that DHS expedite bona fide determinations
for applicants with final orders of removal. Other commenters requested
that DHS issue a stay of removal to applicants with pending T visa
applications until a bona fide determination is made.
One commenter stated that if an application is found to be bona
fide, DHS should extend an administrative stay of a final order until a
final decision is made on the application for T nonimmigrant status.
Response: DHS declines to adopt these recommendations. DHS
acknowledges the commenters' concerns regarding the removal of
applicants with pending T visa applications. As a matter of policy, DHS
generally will not remove applicants with pending T nonimmigrant status
applications; however, there may be situations where it is prudent for
DHS to execute removal orders prior to adjudication, and DHS does not
intend to limit DHS discretion in this manner. DHS feels that the
regulation's language at 8 CFR 214.204(b)(2)(i) and (ii) is sufficient
to address these commenter's concerns by providing that, once granted,
a stay of removal will remain in effect until a final decision is made
on the application for T nonimmigrant status.
4. Unrepresented Applicants
Comment: One commenter requested that in cases where an applicant
is unrepresented in proceedings, DHS should be mandated to move for
termination, dismissal, administrative closure, or a continuance. The
commenter stated that actively pursuing removal cases against survivors
of trafficking is inconsistent with ICE's goal of prioritizing limited
resources.
Response: DHS declines to adopt these recommendations. Generally,
relief from removal has been historically requested by the noncitizen
and is not initiated by DHS. DHS does not wish to limit ICE's
discretion by mandating specific actions, as each case will present
different circumstances. However, DHS agrees that prioritizing the
removal of trafficking survivors is generally inconsistent with the
victim-centered approach to which DHS adheres.
5. Detained Applicants
Comment: Commenters requested DHS be required to release a detained
applicant once a bona fide determination has been made. Some commenters
requested that DHS add a provision to the regulation requiring ICE to
seek expedited processing for all detained T visa applicants
(principals and derivatives). They also stated that ICE should be
required to check DHS systems for VAWA confidentiality flags that
indicate a pending or approved T, U, or VAWA application or petition
for every detainee within 24 hours of detention. Finally, they state
the regulation should specify how quickly ICE should make this request
and how long USCIS should generally take to respond to the expedite
request.
Response: DHS declines to adopt this recommendation. DHS
appreciates the commenter's concerns. Existing USCIS and ICE processes
already flag protected records via secure methods for information
sharing, including through the USCIS Central Index System, which, among
other things, includes flags for individuals whose records are
protected under 8 U.S.C. 1367.
In addition, there is already a process in place to request
expedited processing based on urgent humanitarian reasons, which can be
found on the USCIS website.\34\ ICE also will request expedited
adjudication when necessary and appropriate, including when noncitizens
are detained so adjudication of applications for T nonimmigrant status
is prioritized. ICE then exercises discretion to defer decisions on
enforcement action in compliance with their directives and
processes.\35\ Finally, although DHS understands the commenter's
concerns about detained T applicants, it declines to impose processing
deadlines on itself given resource needs and shifting priorities.
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\34\ U.S. Citizenship and Immigr. Servs., U.S. Dep't of Homeland
Security, ``How to Make an Expedite Request,'' <a href="https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request">https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request</a>
(last updated Oct. 20, 2022).
\35\ See ``ICE Directive 11005.3,'' <a href="https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf">https://www.ice.gov/doclib/news/releases/2021/11005.3.pdf</a>.
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6. Reinstatement of Removal
Comment: One commenter requested DHS create a presumption that
reinstatement of removal would not occur in cases of T, U, and VAWA
eligible victims, to avoid victims being removed from the United
States.
Response: DHS declines to adopt this recommendation. This comment
is partially out of scope, as DHS can make no changes to VAWA or U
regulations in this rule because we made no changes to those programs
in the interim rule. In addition, relief from removal has been
historically requested by the noncitizen and is not initiated by DHS.
Operationally, it would take many resources and considerable
infrastructure to create a process in which DHS could actively seek out
noncitizens with pending T applications, and who have a prior removal
order, just to ensure a reinstatement would not be issued. Furthermore,
DHS declines to limit ICE's discretion in this manner, but emphasizes
that ICE uses a victim-centered approach in which all relevant
circumstances are considered.
7. Issuances of Notices To Appear (NTAs)
Comment: Commenters suggest codifying DHS statements from the 2016
Interim Final Rule preamble language regarding not issuing NTAs to
individuals with pending applications for T nonimmigrant status.
Response: DHS agrees to adopt this suggestion and has introduced a
new provision at 8 CFR 214.204(b)(3) clarifying that USCIS does not
have a policy to refer applicants for T nonimmigrant status for removal
proceedings absent serious aggravating circumstances, such as the
existence of an egregious criminal history, a threat to national
security, or where the applicant is complicit in trafficking. Issuing
NTAs to survivors of trafficking outside of these circumstances
undermines both the humanitarian and law enforcement purposes of the
statute. The new provision at 8 CFR 214.204(b)(3) is consistent with
several of the Priority Actions outlined in the White House's 2021
National Action Plan to Combat Human Trafficking \36\ as well as
several objectives laid out in the DHS Strategy.\37\
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\36\ ``National Action Plan,'' <a href="https://www.whitehouse.gov/wp-content/uploads/2021/12/National-Action-Plan-to-Combat-Human-Trafficking.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/12/National-Action-Plan-to-Combat-Human-Trafficking.pdf</a>. In particular, this aligns with ``Priority Action
2.2.2: Provide human trafficking victims protection from removal''
and ``Priority Action 2.3.2: Provide immigration protections to
ensure eligible victims are not removed.''
\37\ ``DHS Strategy,'' <a href="https://www.dhs.gov/sites/default/files/publications/20_0115_plcy_human-trafficking-forced-labor-child-exploit-strategy.pdf">https://www.dhs.gov/sites/default/files/publications/20_0115_plcy_human-trafficking-forced-labor-child-exploit-strategy.pdf</a>. Specifically, the new regulation is consistent
with the priority actions ``Develop Victim-Centered Policies and
Procedures for DHS Personnel'' and ``Improve Coordination of
Immigration Options for Victims of Human Trafficking.''
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V. Notification to ICE of Potential Trafficking Victims
8 CFR 214.11(o) (redesignated here as 8 CFR 214.215) addresses the
duty of USCIS employees who encounter potential victims of trafficking
to consult with the appropriate ICE officials to initiate law
enforcement investigation and assistance to victims.
Comment: Commenters requested that DHS reconsider whether USCIS
employees should be making referrals to consult with ICE officials.
They wrote
[[Page 34890]]
that interaction with ICE may put trafficking survivors at risk for
criminal liability and potential deportation and that these
interactions may harm applicants eligible for the trauma exception or
who do not feel comfortable cooperating with LEAs. Commenters suggested
instead that USCIS employees should advise potential victims of their
possible immigration remedies and provide a referral to the National
Human Trafficking Hotline. Some commenters suggested that such a
referral would defeat the purpose of the confidentiality protections at
8 U.S.C. 1367. They wrote that USCIS should be especially cautious of
such consultations when the potential victim
[…truncated; see source link]Indexed from Federal Register on April 30, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.