Chapter 3 - Documentation and Evidence for Principal Applicants

To apply for T nonimmigrant status, the principal applicant must file an Application for T Nonimmigrant Status (Form I-914).^[1]

A. Burden of Proof

The applicant bears the burden of establishing eligibility for T nonimmigrant status.^[2] The applicant must meet all the eligibility requirements from the time of filing the application through adjudication.^[3]

B. Standard of Proof

The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. USCIS evaluates applications for T nonimmigrant status under the preponderance of the evidence standard. The applicant has the burden of demonstrating eligibility by a preponderance of the evidence.^[4]

C. Evidence

USCIS reviews all evidence and may investigate any aspect of the application. Officers may use evidence previously submitted by the applicant for any immigration benefit or relief in evaluating the eligibility of an applicant for T nonimmigrant status. USCIS is not bound by previous factual determinations made in connection with a prior application or petition for any immigration benefit or relief. USCIS determines, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence.^[5]

In reviewing the application, officers consider the statements, arguments, and assertions of attorneys and accredited representatives, but they do not constitute evidence and are not entitled to evidentiary weight.^[6]

1. Any Credible Evidence Provision

An officer must consider any credible evidence an applicant submits to establish eligibility. The “any credible evidence” provision applies to the type or form of evidence officers must consider or may require. However, the standard of proof for each eligibility requirement remains a preponderance of the evidence. For each eligibility requirement, applicants must submit sufficient relevant, probative, and credible evidence to establish that the claim is “more likely than not” or “probably” true.^[7]

Inability to Obtain Documentation and Evidence

In establishing eligibility for T nonimmigrant status, an applicant may submit “any credible evidence” for consideration.^[8] USCIS recognizes the difficulties trafficking victims may experience in obtaining primary or secondary evidence relevant to establishing their eligibility, and therefore allows applicants to submit any credible evidence.

Due to the nature of their victimization (including possible loss of control of personal possessions as a tactic to further force, fraud, or coercion), trafficking victims may be unable to obtain certain personal information that would otherwise be available to support a determination of eligibility. The trafficker may control access to, confiscate, or destroy relevant documentation, including identification, travel, employment, or immigration documentation.

Applicants are not required to demonstrate the unavailability of primary and secondary evidence; however, when an applicant fails to submit evidence sufficient to establish eligibility, officers may request that the applicant demonstrate or explain the unavailability of a specific document or specific types of documents if they are necessary to establish eligibility. Although USCIS allows submission of any credible evidence and assesses the credibility of all evidence submitted, an explanation from the applicant regarding the unavailability of specific documents assists officers in determining eligibility.

Factual Inconsistencies

In evaluating the credibility and sufficiency of an applicant’s personal statement and other evidence submitted, officers must consider the impact of trauma and victimization. Officers should also be mindful of the complex ways in which trauma may present for survivors of trafficking, including cognitive, emotional, sensory, and physical impacts.

Because trauma impacts every person differently, what is traumatizing to one person may not be traumatizing to another. In some cases, trauma may result in the applicant being unable to recollect or express all details of the victimization in a linear fashion. Officers must review inconsistencies in the applicant’s story over the course of the applicant’s immigration journey in light of this fact, particularly if the applicant has established that the applicant is a victim of a severe form of trafficking in persons.

A person’s recollection of traumatic experiences may shift over time. As such, inconsistencies in the applicant’s account of victimization may not necessarily be indicators of fraud or lack of credibility but may instead be the result of a fragmented recollection due to trauma.

In addition, trafficking survivors may experience fear or mistrust of authorities, including law enforcement or immigration authorities, that may lead them to provide inconsistent information.

USCIS considers the totality of the circumstances in evaluating any inconsistencies in the record, including but not limited to:

Any potential physical or mental effects of trauma;
Where it appears the applicant has a fear or mistrust of authorities;
The applicant’s background and individual circumstances; and
Any other relevant factors.

If, after considering the totality of the circumstances, USCIS believes the inconsistencies in the evidence raise eligibility concerns, USCIS provides written notice of the issues in a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), giving the applicant the opportunity to respond and resolve the inconsistencies.

2. Weighing and Determining the Credibility of Evidence

Officers should not require the applicant to submit particular types of evidence and may not deny applications for T nonimmigrant status due to the applicant’s failure to do so. However, officers may deny an application for T nonimmigrant status where evidence lacks credibility, and the credibility concerns are not overcome by other evidence, such that the applicant has not met their burden of proof to establish eligibility by a preponderance of the evidence. Officers must examine each piece of evidence individually and within the context of the totality of the evidence for relevance, probative value, and credibility.^[9]

The determination of what evidence is credible and the weight given to each type of evidence is within the sole discretion of USCIS and determined on a case-by-case basis.^[10] Evidence that is relevant includes specific facts that address the eligibility criteria for T nonimmigrant status. Probative value speaks not to the quantity of evidence but instead to its quality. Evidence that is credible is plausible, sufficiently detailed, and internally and externally consistent regarding each eligibility requirement.^[11]

When an officer determines the applicant has failed to meet their burden of establishing an eligibility requirement by a preponderance of the evidence, the officer may issue an RFE or NOID requesting additional evidence to establish eligibility.

Any RFE or NOID must be tailored to address credibility or evidentiary issues as they relate to the applicant’s eligibility and refrain from retraumatizing a potential victim. For example, officers should not issue an RFE or NOID that expresses skepticism or disbelief about the applicant’s claim, but instead should focus on the need for additional detail, explain the lack of probative value of the evidence submitted, or highlight inconsistencies in the record.

After requesting an explanation or additional information from an applicant whose case presents credibility or evidentiary concerns, an officer determines whether their explanation is reasonable or they have submitted sufficient evidence to establish eligibility by a preponderance of the evidence.

USCIS makes determinations of credibility based on the particular facts and circumstances of the case, taking into account the limitations on the particular applicant’s ability to obtain evidence and the general considerations that pertain to victim-based cases, including the impact of trauma and victimization discussed above.

3. Initial Filing and Accompanying Evidence

When filing the Application for T Nonimmigrant Status (Form I-914), the applicant should submit:

Any credible evidence demonstrating that the applicant meets the eligibility requirements;^[12]
The applicant’s signed personal statement describing the facts of the victimization, the applicant’s physical presence in the United States as it relates to the trafficking, the hardship the applicant fears if they are removed from the United States, compliance with reasonable requests for assistance from law enforcement (or a basis for why the applicant has not complied), and any other eligibility requirements;^[13]and
If the applicant is seeking a waiver of inadmissibility, an Application for Advance Permission to Enter as a Nonimmigrant (Form I-192),^[14] must be submitted with supporting evidence.^[15]

The applicant must also submit biometrics at a local Application Support Center after receipt of an appointment notice.^[16]

4. Evidence from Law Enforcement Agency

An applicant may wish to submit evidence from a law enforcement agency (LEA) to help establish eligibility requirements, including victimization and compliance with reasonable requests for assistance.^[17] Evidence from an LEA is optional, and USCIS does not give it any special evidentiary weight.^[18]

Law Enforcement Agency Declaration

An applicant may provide evidence from an LEA by submitting a Declaration for Trafficking Victim (Form I-914, Supplement B). The Supplement B must be signed by a supervising official responsible for the investigation or prosecution of severe forms of trafficking in persons.

The LEA completing the Supplement B should attach the results of any name or database inquiries performed and describe the victimization (including dates where known) and the cooperation of the victim. USCIS, not the LEA, determines if the applicant was or is a victim of a severe form of trafficking in persons and otherwise meets the eligibility requirements for T nonimmigrant status. Under federal law, the decision of whether to complete a Supplement B is within the discretion of the LEA.^[19] A formal investigation or prosecution is not required to complete a Supplement B.^[20]

An LEA may disavow or withdraw the contents of a previously submitted Supplement B in writing.^[21] After disavowal or withdrawal, USCIS generally no longer considers the Supplement B as evidence of the applicant’s compliance with requests for assistance in the LEA’s detection, investigation, or prosecution. However, USCIS may consider a disavowed or withdrawn Supplement B for other eligibility requirements along with any other credible evidence relevant to the application.^[22]

USCIS determines whether to consider the disavowed or withdrawn Supplement B as evidence of compliance by assessing the stated reasons for the disavowal or withdrawal. If there is an explanation from the LEA for the withdrawal or disavowal, officers should consider that explanation in determining whether to still consider the declaration as evidence of compliance with requests for assistance.

Continued Presence Documentation

An applicant granted Continued Presence (CP) by the DHS Center for Countering Human Trafficking should submit documentation of the grant of CP.^[23] DHS may revoke CP if the recipient commits a crime, absconds, departs without obtaining advance parole, receives an immigration benefit, or is determined not to be a trafficking victim. Once CP is revoked, USCIS generally no longer considers CP as evidence of the applicant’s compliance with requests for assistance in the LEA’s investigation or prosecution, but it may be considered for other purposes.^[24]

If USCIS determines that the revocation of the CP was unrelated to an applicant’s compliance (for example, revocation due to the applicant departing without advance parole or for subsequent criminal conduct), USCIS may continue to consider the grant of CP as evidence of the applicant’s compliance with the LEA investigation or prosecution.

5. Evidence of Immigration History

An applicant may also submit any evidence regarding entry, admission into, or permission to remain in the United States, or note that such evidence is contained within an applicant’s immigration file.^[25]

6. Evidence of Severe Form of Trafficking in Persons

The applicant must submit evidence that demonstrates that the applicant is or has been a victim of a severe form of trafficking in persons. The applicant’s evidence should establish that the trafficker:

Used a particular action (recruitment, transportation, harboring, provision, obtaining, or in the case of sex trafficking, also patronizing or soliciting);
Employed a particular means (force, fraud, or coercion), except in instances of sex trafficking involving victims under 18 years of age; and
Acted with the purpose of achieving an actual or intended end (commercial sex act, involuntary servitude, peonage, debt bondage, or slavery).^[26]

If an applicant has not performed labor or services or a commercial sex act, the applicant must establish that they were recruited, transported, harbored, provided, or obtained (or in the case of sex trafficking, patronized or solicited) for the purpose of a commercial sex act or subjection to involuntary servitude, peonage, debt bondage, or slavery.^[27]

The applicant may satisfy this requirement by submitting the following types of evidence:^[28]

The applicant’s personal statement, which should describe the circumstances of the victimization suffered;
Form I-914, Supplement B;
For applicants who are children under 18 years old, a letter from the U.S. Department of Health and Human Services certifying that the child is a victim of trafficking;
Documentation of a grant of CP;^[29] or
Any other credible evidence, including but not limited to:
- Trial transcripts;
- Court documents;
- Police reports or other documentation from an LEA;
- News articles;
- Copies of reimbursement forms for travel to and from court;
- Affidavits from case managers, therapists, medical professionals, witnesses, or other victims in the same trafficking scheme;
- Correspondence or other documentation from the trafficker;
- Documents used in furtherance of the trafficking scheme, such as recruitment materials, advertisements, pay stubs, logbooks, or contracts; and
- Photographs or images.^[30]

Applicants should describe the steps they have taken to report the crime to an LEA and indicate whether any criminal records relating to the trafficking crime are available.^[31] If there has been civil litigation related to the trafficking, applicants may include this evidence as well.

7. Evidence of Physical Presence on Account of Trafficking

Evidence of Physical Presence in the United States

The applicant must submit evidence demonstrating that the applicant is physically present in the United States or at a port-of-entry on account of trafficking in persons. Because the regulatory language about the physical presence requirement is phrased in the present tense, USCIS considers the victim’s current situation, and whether the victim can establish current presence in the United States on account of trafficking.

USCIS considers any credible evidence presented to determine physical presence, including the applicant’s responses on the application for T nonimmigrant status regarding when they escaped from the trafficker, what activities they have undertaken since that time, including any steps taken to deal with the consequences of having been trafficked, and the applicants’ ability to leave the United States.^[32]

Applicants may establish physical presence by submitting the following types of evidence:

Form I-914, Supplement B;
Documentation of a grant of CP;^[33]
Documentation of entry into the United States or permission to remain in the United States, such as parole,^[34] or a notation that such evidence is within the applicant’s immigration records; or
Any other credible evidence, including a personal statement from the applicant, stating the date and place (if known) and the manner and purpose (if known) for which the applicant entered the United States and demonstrating that the applicant is now present on account of the trafficking.^[35]

Evidence to Establish the Direct Relationship between the Applicant’s Ongoing Presence and the Original Trafficking in Persons

An applicant may support the claim that the applicant’s continuing presence in the United States is directly related to the original trafficking in persons by providing any credible evidence. Officers should consider all evidence describing the ongoing impacts of trafficking on the applicant’s life at the time of application using a victim-centered approach.

The applicant cannot satisfy the physical presence requirement ^[36] unless the evidence sufficiently establishes the connection between the specific impact of trauma on the applicant’s life at the time of filing and the applicant’s ongoing presence in the United States.

Evidence that USCIS may consider includes, but is not limited to:

A narrative within the personal statement explaining the physical effects or psychological trauma the applicant has suffered as a result of the trafficking and a description of how this trauma impacts the applicant’s life at the time of filing;
Affidavits, evaluations, diagnoses, or other records from the applicant’s service providers (including therapists, psychologists, psychiatrists, and social workers) documenting the therapeutic, psychological or medical services the applicant has sought or is currently accessing as a result of victimization and that describe how the applicant’s life is being impacted by the trauma at the time of filing;
Documentation of any additional stabilizing services and benefits, including financial, language, housing, or legal resources, the applicant is accessing or has accessed as a result of being trafficked. For those services and benefits not currently being accessed, the record should demonstrate how those past services and benefits related to trauma the applicant is experiencing at the time of filing;
Evidence demonstrating the applicant’s ability to access services in the United States or in the applicant’s home country;
Form I-914, Supplement B or other statements from LEAs documenting the cooperation between the applicant and the law enforcement agency; and
Copies of news reports, law enforcement records, or court records.

Evidence of Reentry for or Physical Presence on Account of Participation in Investigative or Judicial Processes

There is a general presumption that victims who have traveled outside of the United States at any time after the act of trafficking and then returned are not present on account of trafficking. To overcome this presumption, applicants must show that their reentry into the United States was the result of continued victimization or that they are a victim of a new incident of a severe form of trafficking in persons.^[37] This presumption also may be overcome when the applicant is allowed reentry in order to participate in investigative or judicial processes associated with an act or a perpetrator of trafficking.^[38]

This presumption may also be overcome when the applicant’s current presence is directly related to their past or current participation in investigative or judicial processes associated with an act or perpetrator of trafficking, regardless of where such trafficking occurred.^[39]

To establish that they were allowed entry or reentry into the United States to participate in an investigative or judicial process associated with an act or a perpetrator of trafficking, applicants must show documentation of entry through a legal means such as parole and must submit evidence that the entry is for participation in investigative or judicial processes associated with an act or perpetrator of trafficking.^[40]

To establish that they are physically present on account of their participation in investigative or judicial processes associated with an act or perpetrator of trafficking, applicants need not show documentation of their entry through a legal means, but must submit evidence of their participation in the investigative or judicial processes. This is distinct from establishing physical presence after departure based on having been allowed entry for participation in investigative or judicial processes associated with the trafficking.

Such evidence may include:

Form I-914, Supplement B;
Other evidence from an LEA to describe the victim’s participation;
A personal statement from the victim; or
Any other credible supporting documentation showing that the applicant’s entry was for participation in the investigative or judicial processes relating to the applicant’s trafficking.

Evidence of Presence Based on Receipt of Treatment or Services Related to Victimization

An applicant may also overcome the general presumption that they are not present on account of trafficking due to a departure and be considered physically present on account of their trafficking in cases where:

The applicant reentered the United States (by any means); and
The applicant’s physical presence is related to their receipt of treatment or services related to their victimization that cannot be provided in their home country or last place of residence outside the United States.^[41]

To satisfy this ground, the applicant must provide evidence of the treatment or services they received in the United States, as well as evidence that such treatment or services are not available in their home country or last place of residence outside the United States.

Such evidence may include:

Medical or psychological records of the applicant’s treatment;
Country conditions information regarding the availability of treatment or services in an applicant’s home country or last place of residence outside the United States;
A personal statement from the victim; or
Any other credible supporting documentation showing that the applicant’s entry was to receive treatment or services related to their victimization and such treatment or services cannot be provided in the applicant’s home country or last place of residence outside the United States.

If the applicant meets the physical presence requirement, the applicant must still satisfy all the other requirements for T nonimmigrant status, including compliance with reasonable requests for assistance from the LEA.

8. Evidence of Compliance with Law Enforcement Requests

Evidence to Establish Compliance

In determining whether an applicant complied with reasonable LEA requests for assistance, USCIS examines the totality of the circumstances, including several specific factors,^[42] and considers any credible evidence submitted.

To establish compliance with LEA requests for assistance, the applicant may submit a variety of evidence, including but not limited to:

Form I-914, Supplement B;
Documentation of a grant of CP;^[43]
Email and letter correspondence showing reporting or communication between the applicant or the applicant’s attorney and an LEA;
Copies of phone and fax logs or email and letter correspondence showing contact with an LEA to report the victimization or offer assistance, and evidence of any response received from the LEA;
A personal statement explaining the applicant’s efforts to report to an LEA and the response or lack of response from the LEA; and
Any credible evidence demonstrating the victim’s willingness to assist in the detection, investigation or prosecution of a severe form of trafficking in persons, such as:
- Trial transcripts;
- Court documents;
- Police reports;
- News articles;
- Copies of reimbursement forms for travel to and from court;
- Affidavits from the victim and other witnesses; and
- Any other credible evidence.

The applicant should describe in their personal statement ^[44] what they have done to report the crime to an LEA and indicate whether criminal records relating to the trafficking crime are available.^[45] The applicant’s statement should also show that an LEA with the responsibility and authority for the detection, investigation, or prosecution of severe forms of trafficking in persons has information about such trafficking in persons, and that the applicant has complied with any reasonable request for assistance in the investigation or prosecution of such acts of trafficking.

If the applicant did not report the crime, the applicant must provide an explanation to demonstrate that they qualify for an exemption due to age or an exception for trauma.^[46]

The absence of a Supplement B generally does not adversely affect an applicant who can meet the evidentiary burden with the submission of other evidence of sufficient reliability and relevance. Though an LEA declaration is not required, USCIS considers it to be a useful and convenient form of evidence, among other types of credible evidence.^[47] Even in the absence of an LEA declaration, USCIS may, at its discretion, contact the LEA that is involved in the case.^[48]

Evidence to Establish Physical or Psychological Trauma Exception

To establish the trauma-based exception to the requirement to comply with reasonable LEA requests, an applicant may provide the following evidence:

A personal statement describing the trauma and explaining the circumstances surrounding the trauma experienced;^[49]
A signed statement from a qualified professional (such as a medical professional, mental health professional, social worker, or victim advocate) attesting to the victim’s mental state or medical condition;^[50]
Medical or psychological records documenting the trauma or its impact;^[51]
Witness statements;^[52]
Photographs;^[53]
Police reports;^[54]
Court records and court orders;^[55]
Disability determinations;^[56]
Government agency findings;^[57] or
Any other credible evidence.^[58]

To establish that the person providing the signed attestation is qualified to make such a determination, the applicant should provide a description or evidence of the person’s qualifications, credentials, or education, or provide a detailed description of the person’s contact and experience with the applicant.^[59]

Although a victim’s affidavit alone may satisfy this evidentiary burden, USCIS strongly encourages applicants to submit additional relevant evidence.^[60]

Evidence of Age-Based Exemption

If an applicant was under the age of 18 at the time of victimization and is therefore exempt from the requirement to comply with reasonable law enforcement requests, the applicant must submit credible evidence of their age, including an official copy of their birth certificate, a passport, or a certified medical opinion, if available.^[61] The applicant may also submit other evidence of their age.

9. Evidence of Extreme Hardship

Applicants must submit evidence that demonstrates they would suffer extreme hardship involving unusual and severe harm if removed from the United States. When evaluating whether removal would result in extreme hardship involving unusual and severe harm, USCIS considers several factors.^[62]

The applicant may document extreme hardship through a personal statement or other evidence, including evidence from relevant country condition reports and any other public or private sources of information. The applicant may include evidence of hardship arising from circumstances surrounding the victimization and any other circumstances.^[63] USCIS does not consider evidence of hardship to persons other than the applicant unless the evidence specifically demonstrates hardship to the applicant as a result of hardship to another person.

Applicants under the age of 18 are not exempt from the extreme hardship requirement. However, USCIS considers an applicant’s age, maturity, and personal circumstances (among other factors) when evaluating the extreme hardship requirement.^[64]

Footnotes

[^ 1] See the Form I-914 webpage for more information on filing.

[^ 2] See INA 291.

[^ 3] See INA 291. See 8 CFR 103.2(b)(1) and 8 CFR 214.204(l). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 4] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of Martinez (PDF), 21 I&N Dec. 1035, 1036 (BIA 1997). See Volume 1, General Policies and Procedures, E, Adjudications, Chapter 4, Burden and Standards of Proof, Section B, Standards of Proof [1 USCIS-PM E.4(B)].

[^ 5] See 8 CFR 214.204(l)(3).

[^ 6] See Matter of Obaigbena (PDF), 19 I&N Dec. 533, 534 n.2 (BIA 1988).

[^ 7] See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010).

[^ 8] See 8 CFR 214.204(l).

[^ 9] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010).

[^ 10] See 8 CFR 214.204(l)(3).

[^ 11] Internal consistency refers to consistency within the same document as the evidence in question. External consistency refers to consistency between the evidence in question and other pieces of evidence in the record.

[^ 12] See 8 CFR 214.204(c)(2).

[^ 13] See 8 CFR 214.204(c)(1).

[^ 14] See Fee Schedule (Form G-1055).

[^ 15] See 8 CFR 214.204(d).

[^ 16] See 8 CFR 103.16.

[^ 17] See 8 CFR 214.204(e).

[^ 18] See 8 CFR 214.204(e)(1) and 8 CFR 214.204(e)(2).

[^ 19] See 8 CFR 214.204(e)(5).

[^ 20] See 8 CFR 214.204(e)(6).

[^ 21] If a certifying official discovers information regarding a victim, crime, or Supplement B that the agency believes USCIS should be aware of, or if the official wishes to withdraw the certification, the official should contact USCIS using the directions outlined in the Instructions for Form I-914, Supplement B.

[^ 22] See 8 CFR 214.204(h).

[^ 23] See 8 CFR 214.204(i) and 28 CFR 1100.35 (U.S. Immigration and Customs Enforcement’s authority to grant Continued Presence).

[^ 24] See 8 CFR 214.204(i).

[^ 25] See 8 CFR 214.204(j).

[^ 26] See 8 CFR 214.206(a)(1).

[^ 27] See 8 CFR 214.206(a)(2).

[^ 28] See 8 CFR 214.206(a)(3).

[^ 29] See 8 CFR 214.204(i).

[^ 30] See 8 CFR 214.206(a)(3)(ii).

[^ 31] See 8 CFR 214.206(a).

[^ 32] See 8 CFR 214.207.

[^ 33] See 28 CFR 1100.35.

[^ 34] See INA 212(d)(5).

[^ 35] See 8 CFR 214.207(c).

[^ 36] See 8 CFR 214.207(a)(4).

[^ 37] See 8 CFR 214.207(b).

[^ 38] See 8 CFR 214.207(b)(3).

[^ 39] See 8 CFR 214.207(b)(4).

[^ 40] See 8 CFR 214.207(b)(3).

[^ 41] See 8 CFR 214.207(b)(5).

[^ 42] See Chapter 2, Eligibility Requirements, Section D, Requests for Law Enforcement Assistance, Subsection 2, Totality of the Circumstances Test [3 USCIS-PM B.2(D)(2)].

[^ 43] See 28 CFR 1100.35.

[^ 44] See Section C, Evidence, Subsection 3, Initial Filing and Accompanying Evidence [3 USCIS-PM B.3(C)(3)].

[^ 45] See 8 CFR 214.206(a)(2)(i). See 8 CFR 214.208(a) (requiring that the applicant has had contact with an LEA regarding the acts of a severe form of trafficking in persons).

[^ 46] See 8 CFR 214.208(e)(1) and 8 CFR 214.208(e)(2).

[^ 47] See 81 FR 92266, 92276 (PDF) (Dec. 19, 2016).

[^ 48] See 81 FR 92266, 92276 (PDF) (Dec. 19, 2016).

[^ 49] See 8 CFR 214.208(e)(1)(i).

[^ 50] See 8 CFR 214.208(e)(1)(ii).

[^ 51] See 8 CFR 214.208(e)(1)(iii).

[^ 52] See 8 CFR 214.208(e)(1)(iv).

[^ 53] See 8 CFR 214.208(e)(1)(v).

[^ 54] See 8 CFR 214.208(e)(1)(vi).

[^ 55] See 8 CFR 214.208(e)(1)(vii).

[^ 56] See 8 CFR 214.208(e)(1)(viii).

[^ 57] See 8 CFR 214.208(e)(1)(ix).

[^ 58] See 8 CFR 214.208(e)(1)(x).

[^ 59] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).

[^ 60] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).

[^ 61] See 8 CFR 214.208(e)(2). A certified medical opinion may include medical evaluations, dental assessments, and x-ray records.

[^ 62] See Chapter 2, Eligibility Requirements, Section E, Extreme Hardship, Subsection 2, Factors [3 USCIS-PM B.2(E)(2)].

[^ 63] See 8 CFR 214.209(a). See Volume 9, Waivers and Other Forms of Relief, Part O, Victims of Trafficking, Chapter 3, INA 212(d)(13) Waivers, Section A, Waiver Eligibility [9 USCIS-PM O.3(A)].

[^ 64] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).

Resources

22 CFR 41.84 - Victims of trafficking in persons

22 U.S.C. 7105(b)(1) - Assistance for victims of trafficking in the United States

28 CFR 1100.35 - Authority to permit continued presence in the United States for victims of severe forms of trafficking in persons

8 CFR 103.16 - Collection, use and storage of biometric information

8 CFR 103.2 - Submission and adjudication of benefit requests

8 CFR 212.16 - Applications for exercise of discretion relating to T nonimmigrant status

8 CFR 214 Subpart C - Noncitizen Victims of Severe Forms of Trafficking in Persons

8 CFR 214.11 - Victims of severe forms of trafficking in persons

8 CFR 274a.12(a)(16) - Employment authorization

8 CFR 274a.12(c)(25) - Employment authorization

8 U.S.C. 1367 - Penalties for disclosure of information

INA 101(a)(15)(T) - Definitions, T visa criteria

INA 101(i) - Referral to nongovernmental organizations and employment authorization

INA 212(d)(13); 8 CFR 212.18 - Waivers of inadmissibility

INA 212(d)(3)(A)(ii); 8 CFR 212.18 - Waivers of inadmissibility

INA 214(o) - Nonimmigrants guilty of trafficking in persons, numerical limitations, and length and extension of status

INA 237(d) - Administrative stay of final order of removal

INA 291 - Burden of proof upon alien

AR-11, Change of Address

G-1055, Fee Schedule

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-912, Request for Fee Waiver

I-914, Application for T Nonimmigrant Status

How to Use the USCIS Policy Manual Website

Appendices

The following cases may be relevant to T nonimmigrant status eligibility issues and adjudications.

Threats of harm or serious harm:

United States v. Dann (PDF), 652 F.3d 1160, 1170 (9th Cir. 2011) (Threats should be considered from the vantage point of a reasonable person in the place of the victim and must be sufficiently serious to compel that person to remain.).

United States v. Farrell, 563 F.3d 364, 372 n.3 (8th Cir. 2009) (“Jury Instruction 16 defined ‘involuntary servitude’ as follows: ‘[A] condition of compulsory service in which the alleged victim is compelled to perform labor or services against the alleged victim's will for the benefit of another person due to the use or threat of physical restraint or physical injury, or by the use or threat of arrest, prosecution, or imprisonment. . . The use or threat of a civil lawsuit does not make the labor involuntary.’”).

United States v. Djoumessi (PDF), 538 F.3d 547 (6th Cir. 2008) (“The term ‘involuntary servitude’ necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process. This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion.”) (quoting United States v. Kozminski, 487 U.S. 931, 952 (1988)).

United States v. Bradley (PDF), 390 F.3d 145, 153 (1st Cir. 2004), cert. granted, judgment vacated, 545 U.S. 1101 (2005) (The use of “physical restraint; such as, the use of chains, barbed wire, or locked doors,” is not required in order to establish the offense of forced labor.).

United States v. Warren (PDF), 772 F.2d 827, 834 (11th Cir. 1985) (“That the worker had the opportunity to escape is of no moment, if the defendant has placed him in such fear of physical harm that he is afraid to leave.”).

United States v. Udeozor (PDF), 515 F.3d 260, 265 (4th Cir. 2008) (in upholding conviction for involuntary servitude, finding that sexual abuse of the victim was one of the forms of force used to keep the minor victim in the condition of involuntary servitude).

Abuse or threatened abuse of legal process:

Clyatt v. United States (PDF), 197 U.S. 207 (1905) (victim was coerced by threat of legal sanction to work off a debt to a master).

United States v. Reynolds (PDF), 235 U.S. 133 (1914) (when breach of the labor contract is criminalized, requiring a misdemeanor offender to work for a surety who would, in turn, pay the convict’s fine to the state, the condition of peonage is created).

Pollock v. Williams (PDF), 322 U.S. 4 (1944) (“[The State] must respect the constitutional and statutory command that it may not make failure to labor in discharge of a debt any part of a crime. It may not directly or indirectly command involuntary servitude, even if it was voluntarily contracted for.”).

Bailey v. Alabama (PDF), 219 U.S. 219 (1911) (subjecting debtors to prosecution and criminal punishment for failing to perform labor after receiving an advance payment).

United States v. Kozminski (PDF), 487 U.S. 931, 945 (1988) (recognizing that threatening an incompetent with institutionalization or an immigrant with deportation could constitute the threat of legal coercion).

United States v. Kaufman (PDF), 546 F.3d 1242, 1265 (10th Cir. 2008) (recognizing that a variety of methods of coercion including threats of institutionalization were used to compel victim who suffered serious mental illness to perform farm work in the nude).

United States v. Farrell, 563 F.3d 364, 372-73 (8th Cir. 2009) (in upholding conviction for peonage, finding that employers used threats of arrest and imprisonment based on the victim’s lack of immigration status).

United States v. Djoumessi (PDF), 538 F.3d 547, 553 (6th Cir. 2008) (upholding involuntary servitude conviction when coercion involved threats of deportation to Cameroon which victim considered the greatest threat against her because of the conditions there and her desire to help her family through opportunities in the United States).

United States v. Veerapol, 312 F.3d 1128, 1130-31 (9th Cir. 2002) (upholding involuntary servitude conviction and noting that the employer maintained control over Thai restaurant workers through a variety of methods of coercion, including threats of imprisonment based on the workers’ lack of immigration status).

United States v. Calimlim, 538 F.3d 706, 713 (7th Cir. 2008) (finding that the employer’s actions of keeping victim’s passport, never admitting they were violating law, or offering to try and regularize the worker’s presence in the United States and implicit threats that she may be subject to deportation proceedings constituted “abuse of law”).

United States v. Calimlim, 538 F.3d 706, 713 (7th Cir. 2008) (rejecting employer’s arguments that threatening deportation was not an “abuse of law” because worker was here without immigration status and thus subject to deportation and finding employers’ threats were directed to an end different from those envisioned by the law and were thus an abuse of legal process).

Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd., 790 F. Supp. 2d 1134, 1144 (C.D. Cal. 2011) (citing principle that abuse of legal process occurs when objective for threats is to intimidate and coerce forced labor).

Ruiz v. Fernandez, 949 F. Supp. 2d 1055, 1077 (E.D. Wash. 2013) (rejecting defendants’ arguments that threats to report H2A Chilean sheepherders were justified because, if workers left the ranch without being assigned to another member ranch, they would be in violation of their temporary work visas. Workers testified that threats were made almost daily and were apparently made in relation to victims' general willingness to do specific work on the ranch rather any sort of expressed intent to leave the ranch without obtaining a transfer.).

Elat v. Ngoubene (PDF), 993 F. Supp. 2d 497, 526 (D. Md. 2014) (citing Camayo v. John Peroulis & Sons Sheep, Inc., Nos. (D. Colo. Sept. 24, 2012)) (Threats of deportation can constitute an abuse of the legal process if they are an abuse of the process).

Debt bondage:

United States v. Farrell, 563 F.3d 364, 372-73 (8th Cir. 2009) (The workers’ relationship with their employers was more akin to one of debt bondage rather than simple debt. Given the continually mounting expenses, at no point was the value of the workers' labor sufficient to liquidate the debt and there was, in effect, no limit to the length of the services required to satisfy the obligation or even a limit on the amount owed.).

Compensation for labor:

United States v. Bradley (PDF), 390 F.3d 145, 153 (1st Cir. 2004), cert. granted, judgment vacated, 545 U.S. 1101 (2005). (“If a person is compelled to labor against his will by any one of the means prohibited by the forced labor statute, such service is forced, even if he is paid or compensated for the work.”).

Non-traditional types of work:

United States v. Kaufman (PDF), 546 F.3d 1242, 1263 (10th Cir. 2008) (noting that involuntary servitude and forced labor statutes do not apply only to coerced “work in an economic sense” and would include coerced acts such as requiring patients to engage in compelled sexual activity, including masturbation, genital shaving, and frequent nudity, much of which was videotaped).

United States v. Marcus (PDF), 487 F.Supp.2d 289 (E.D.N.Y. 2007), vacated on other grounds, 538 F.3d 97 (2d Cir. 2008) (Enslavement can arise even if the initial participation in the labor was part of a consensual alternative sexual relationship.).

Duration of victimization:

United States v. Pipkins, 378 F.3d 1281, 1297 (11th Cir. 2004), cert. granted, judgment vacated, 544 U.S. 902 (2005), and opinion reinstated, 412 F.3d 1251 (11th Cir. 2005). (“Section 1584 requires that involuntary servitude be for ‘any term,’ which suggests that the temporal duration can be slight.”).

United States v. Djoumessi (PDF), 538 F.3d 573, 552-53 (6th Cir. 2008) (“Even assuming there were moments during [victim’s] stay when she had an opportunity to escape […] Djoumessi's argument still falls short because a rational trier of fact could conclude that [victim’s] labor was involuntary for at least some portion of her stay. And that involuntary portion would suffice to sustain the conviction.”).

United States v. Dann (PDF), 652 F.3d 1160, 1167 (9th Cir. 2001) (The charge of forced labor need not apply to the entire duration of the victim’s services or labor. It could be applied to only a portion of the time.).

Updates

This technical update replaces all instances of the term “noncitizen” with “alien” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”], and makes other technical and conforming changes.

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole

4 USCIS-PM - Volume 4 - Refugees and Asylees

5 USCIS-PM - Volume 5 - Adoptions

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to incorporate changes from the Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status Final Rule (T Final Rule), including updated citations, new definitions, and clarifications.

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