(2) Physical Presence. Physical presence on account of trafficking in persons includes aliens who were allowed entry into the United States for participation in investigative or judicial processes associated with an act of perpetrator of trafficking. INA § 101(a)(15)(T)(i)(II).
(3) Compliance with Reasonable Requests. In its discretion, USCIS may determine that a trafficking victim, due to psychological or physical trauma, is unable to cooperate with a request for assistance in an investigation or prosecution. In that case, the victim remains eligible for T nonimmigrant status. INA § 101(a)(15)(T)(iii). To establish eligibility for this exception, an applicant may submit an affirmative statement describing the trauma, along with any other credible evidence. An applicant's statement alone may be sufficient to establish eligibility for the exception. However, USCIS encourages applicants to submit other evidence along with their statement. One example of suggested evidence is a signed statement on official letterhead from a professional who makes determinations of this type in the course of his or her job, such as a medical professional or social worker or victim advocate, and can attest to the victim's mental state. USCIS reserves the right to contact the law enforcement agency involved in this case, if appropriate. See 8 CFR 214.11(h)(1).
(A) Fee Waiver. USCIS can waive any fees associated with the filing of an application for T nonimmigrant status through final adjudication of the adjustment of status applications. INA § 245(l)(7). USCIS will accept a request for fee waiver for any form that an applicant for T nonimmigrant status may file, including any applications that a T nonimmigrant may file before the final adjudication of an adjustment of status application.
(C) Applicants with Final Orders of Removal, Deportation, or Exclusion. DHS may grant an administrative stay of a final order of removal to an applicant for T nonimmigrant status in the United States if USCIS determines that the applicant has set forth a prima facie case for approval. INA § 237(d)(1). The administrative stay will remain in effect until the application for T nonimmigrant status is approved or there is a final administrative denial.
(f) Derivative Status of Immediate Family Members.
(A) Regardless of the T nonimmigrant applicant's age, USCIS may grant derivative T nonimmigrant status to the applicant's parents or unmarried siblings under 18 years of age who USCIS determines face a present danger of retaliation as a result of the applicant's escape from the severe form of trafficking or cooperation with law enforcement. It is the applicant's burder to establish that a family member faces a danger of retaliation. An applicant may submit an affirmative statement describing the danger the family member faces and how the danger is linked to the victim's escape or cooperation with law enforcement. An applicant's statement alone is not sufficient to establish that a family member faces a danger of retaliation. An applicant may submit any other credible evidence. A non-exhaustive list of evidence includes previous grants of advanced parole to family members, a signed statement from a law enforcement official describing the danger of retaliation, trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits from other witnesses. USCIS also reserves the right to contact the law enforcement agency involved in the case, if appropriate.
(g) Duration of T Nonimmigrant Status.
(A)In its discretion, USCIS may extend T nonimmigrant status in three circumstances (INA § 214(o)(7)(B)):
- If the law enforcement official investigating or prosecuting the activity related to human trafficking certifies that the presence of the T nonimmigrant is necessary to assist in the investigation or prosecution.
- If the T nonimmigrant is eligible to apply for adjustment of status under section 245(l) of the INA, but is unable because the regulations have not been issued to permit T nonimmigrants to adjust status.
- If USCIS determines that an extension of the period of nonimmigrant status is warranted due to exceptional circumstances.
(B) USCIS will extend T nonimmigrant status during the pendency of an application for adjustment of status under section 245(l) of the INA. INA § 214(o)(7)(C).
- The extension of status based on the pendency of an application for adjustment of status is automatic when the applicant files Form I-485.
- To request an extension of status based on law enforcement request or exceptional circumstances, the applicant files Form I-539.
- In general, when granting an extension of status, USCIS will issue a Form I-797, Notice of Action.
- The applicant continues in valid T nonimmigrant status with all the rights, privileges, and responsibilities provided to a T nonimmigrant.
- Extensions of status based on a pending application for adjustment of status will be valid until USCIS makes a final decision on the application for adjustment of status.
- Extensions of status based on exceptional circumstances or a law enforcement need will be valid for a period of one year beginning on the date the T nonimmigrant status did or would end.
- Any EAD issued with the Form I 485 pending shall be issued using the (c)(9) eligibility code.
- Any EAD issued with the Form I 539 shall be issued using the (a)(19) or (a)(20) eligibility code, as applicable.
- Derivatives who file Form I 485, or when a principal files a Form I 539 requesting extension for derivatives in writing, will also be issued a Form I 797 in the same manner as the principal.
- If seeking an extension of status due to law enforcement need, an applicant must submit a document from law enforcement, including a new Form I 914 Supplement B, certifying the presence of the T nonimmigrant is necessary to assist in the investigation or prosecution relating to human trafficking.
- If seeking an extension of status due to exceptional circumstances, an applicant may submit an affirmative statement and any other credible evidence.