She knew she needed help to escape. She borrowed $3,000 to pay for a guide to America. Money for safe passage, right? An agreement for an opportunity. If only it was that simple.
Forty others and her, fighting the sun and sand through the desert. She didn’t know what to expect, but it wasn’t this.
A ride to a “safe house,” but get ready to pay for that “safety” with your body. Men with guns threaten her, say clean after me, sleep with me, or we’ll kill your family. You will sleep in a locked basement. You will clean. You will cook. You will be mine, and his, and his, and his, too. You will sleep in a locked basement, you will clean, you will cook.
This wasn’t the deal. She didn’t agree to this, but there’s no one there to care. For them, she’s just a spare. The morgue will testify that she’s one of the lucky ones. But even when she escapes, she’s locked with permanent cuffs cutting tightly into her mind.
What was bought before – a guide – changes to what she must pay for later – a severe form of human trafficking.
It’s not what you look at, it’s what you see. When immigration practitioners look at reports of a “border crisis” for those seeking asylum in the United States, we should see not only the human suffering caused by powerful geopolitical forces, but also the possible eligibility for a T nonimmigrant visa for survivors of human trafficking. Many types of victimization lead to T-visa eligibility, but a commonly overlooked scenario is known as “smuggling-turned-trafficking.” This usually involves an agreement that starts as a voluntary arrangement but turns into forced labor or unwanted sex in exchange for safety, life, or liberty. For survivors of this dehumanizing practice, a T visa is an effective alternative or supplement to asylum or a U nonimmigrant visa petition. Asylum and U-visa practitioners can and should enhance their own awareness of trafficking and relevant laws that could impact their clients.
A Congressional Creation and A Game Changer: The 2021 USCIS Policy Manual
Congress created the T nonimmigrant visa in 2000 to protect victims of trafficking and strengthen the ability of law enforcement to combat trafficking. See Trafficking Victims Protection Act (TVPA) part of the Victims of Trafficking and Violence Protection Act of 2000. There are 5,000 T visas available for eligible victims of trafficking each fiscal year though United States Citizenship and Immigration Services (USCIS) has never reached the cap. To establish eligibility for a T visa, the applicant must demonstrate that they:
1) have been a victim of a severe form of trafficking in persons;
2) are physically present in the United States, American Samoa, or at a U.S. port of entry on account of such trafficking;
3) have complied with any reasonable request for assistance in a federal, state, or local investigation or prosecution into acts of trafficking or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime, except when the applicant was under 18 years of age at the time of victimization or is unable to cooperate with a request due to physical or psychological trauma;
4) would suffer extreme hardship involving unusual and severe harm upon removal from the United States; and
5) are admissible to the United States or qualify for a waiver of any applicable grounds of inadmissibility.
The 2021 revisions to the USCIS Policy Manual, specifically in Volume 3, Part B – Victims of Trafficking, helped clarify how very broad the definition of trafficking is, and that has also helped more people win T-visa cases without requests for evidence or the need for litigation. These manual revisions are a surprisingly good starting point for lawyers to read about possible trafficking scenarios and develop tailored screening mechanisms since traumatized clients may not know that what they were subjected to was in fact trafficking. As much as one might want to criticize USCIS for not understanding trauma and victimhood, at least the plain language of the Policy Manual now provides attorneys clear guidelines on how to pursue T status for their clients.
Knowing the common “T visa flags” for those who are likely to be asylum seekers is a step in the right direction, and the Policy Manual provides several relevant guidelines. It acknowledges both that involuntary servitude and other forms of trafficking can arise within a smuggling arrangement, and that multiple trafficking-eligible crimes can be committed against one victim by a trafficker. The revised Policy Manual reminds USCIS adjudicators that voluntarily paying a smuggler does not make a person ineligible for a T visa. The rapid settlement of lawsuits contesting Trump-era T-visa denials is especially relevant to asylum practitioners in that it has made it unacceptable to blame the victim for “knowingly undertaking the dangerous journey to the US.” That victim-blaming language from Trump-era Requests for Evidence had a chilling effect on attorneys, but the 2021 T visa policy manual has redirected the adjudicators at USCIS to eliminate victim-blaming from their T-visa adjudications.
Benefits of the T-Visa: Faster Processing and Wraparound Services
There are tens of thousands of people already living inside the United States who have been victims of severe forms of trafficking. Many have applied for asylum or U-visa status but remain unaware of the expedited opportunities a T visa presents. A T visa provides a survivor of trafficking four years of valid status to live and work in the United States, and a path to permanent residency. Usually when T-1 status is approved, a T-status holder will be able to move forward with a permanent residency application, either through the “early adjustment of status” process in the same year the T-1 is approved, or at some later date before T status expires.
T-visa processing times are currently around 9 to 18 months for an approval, making this one of the more expeditious options to obtain stability and security. Also, unlike U visas, T visas don’t require a signed certification by law enforcement, which reduces the administrative burden upon applicants. T visa holders can apply for permanent residency without having to go to a green card interview, and they are not subject to public charge rules. In January 2023, USCIS proposed a filing fee exemption for T-visa applicants to remove barriers to filing for T status, and the proposal also includes a plan to remove the government filing fee requirement for T-based green card applicants. Asylum seekers who are in removal proceedings can request and may receive administrative closure while seeking the T visa and remove from these vulnerable survivors the additional burden of waiting for their day in court. USCIS also has sole jurisdiction over granting adjustment of status for T visa holders.
Beyond this, the T visa has broad derivative categories for family members, which can help safely bring parents, siblings and even nieces or nephews, to the US. The possibility for the T-1 applicant’s family to safely travel to, live, and work in the US through the T-visa program is an important benefit for immigration attorneys to explain to asylum clients who may feel pressure to send money to smugglers to bring in family. Entering on T-6, or other derivative status, avoids the need for others who need to flee their country, from entering smuggling arrangements. How many times has an asylum seeker talked about the horrific suffering of their family, not knowing that the trauma and pain they personally experienced might be the key to safely bringing their family to the US ?
Perhaps the most impactful opportunity that a T visa provides is the prospect for substantive support prior to and during the application process. The Trafficking Victims Assistance Program (TVAP) funded by the US Department of Health and Human Services allows victims to receive approximately $3600 to $4800 in assistance for paying for therapy, groceries, gas or other necessities, even if they are represented by private practitioners. Immigration attorneys often lament how they wish their traumatized clients had more support before or during an immigration case. However, for T-visa applicants, a simple email referral to the TVAP program can lead to exactly the kind of financial and wraparound services that immigrants need while planning to file for a T visa.
Screening Asylum seekers is Key! Check for a T!
T nonimmigrant visas represent an opportunity to essentially pluck any point in time from the client’s immigration or life history where unwilling labor or sex can be found and see if it fits the definition of trafficking. The biggest barrier to facilitating people to apply for T visa status is that their advocates do not recognize their eligibility. Lawyers may not be specifically screening clients for T visas, or perhaps not “poking” hard enough on difficult memories, instead believing that their clients are not “victim enough” to qualify. Asking the right questions can point an advocate in the right direction, and clients with asylum and U cases pending can and should be re-screened annually to keep up with the new circumstances and challenges of their life. Advocates can start with a general open-ended inquiry such as – “Has anyone ever paid you late for work, even for a day? Tell me about that job. Did you ever have to go to work even when you were really sick? Tell me about that day.” – and continue to narrow down the story, guided by the Policy Manual. Look for unreported crime, listen to a person’s journey to the US, and ask about their problems at home or at work. Spend time and focus on gaps in work history as well – that’s often when people are vulnerable and made to do the worst of things.
Asylum and U-visa practitioners are especially well-positioned to find the trafficking within the trauma their client endured. Asylum seekers (and immigrants generally) are particularly vulnerable to trafficking, both leading up to and after their entry into the United States. Advocates should be cognizant of these emotional factors to recognize the coercive powers of a trafficker’s actions upon the survivor. Since asylum seekers have a deep fear of returning to their home country, any threat of deportation – implied or direct – makes them suffer in silence. It is common for asylum seekers and other immigrant travelers to be trafficked by coyotes (smugglers) on the way to the US or after entry, and re-trafficked again at unskilled or skilled labor jobs while waiting on their asylum process. Their financial desperation makes them more vulnerable to coercion or threats or unsafe work.
Listen for all the “Firsts”
Practitioners can implement simple screening processes to check for red flag elements in their unique clients’ stories that may trigger T-visa eligibility. Note that trafficking does not have to begin only at the border; it can in fact be triggered by any number of qualifying actions days, months, or years into the survivor’s life within the United States. Certain points in time, however, are extremely relevant and should be carefully considered by asylum advocates. “Firsts” are especially relevant – the first job, the first housing, the first relationship, the first church, the first breakup, the first time a person tried to quit, the first time they began to work for themselves. When asylum seekers are most vulnerable, looking for work and a hot meal, traffickers jump in to exploit them. Because asylum seekers often arrive without work authorization, it may be that the first place they live or first job they hold, is the one that they are trafficked in.
Labor trafficking can be something so incredibly common the victim doesn’t realize they are a victim – like construction workers who time and time again are told to work faster, forgo safety equipment, show up to work regardless of sickness or injury, and put up with late or incomplete payments or overtime violations. Other relevant “firsts” are based in the social circle the survivor develops as they try to build a life in the United States. Trafficking may be relationship-based, like an intimate partner who treats a woman like property, or it may be a “friend” who found work for a person but is taking their cut or holding onto the victim’s passport for “safekeeping.” Immigrants can also especially fall victim to faith-based coercion, leading to sex or labor trafficking through religious organizations.
Asylum or T Visa? T-Visa Adjudication & Smuggling
In the past, USCIS adjudicators mistakenly believed that an agreement to be smuggled precludes that travel arrangement from being classified as trafficking, either during or after the smuggling. Not anymore! In the last two years, litigation has reversed many agency denials entered because USCIS officers concluded that victims who “buy now” for safe passage and “pay later” through a severe form of human trafficking are ineligible for a T nonimmigrant visa. In every case, the reversals led to agency approvals of the visas. Based on the strength of the complaints, the government has agreed to settle the complaints and has not contested them before the court. Fortunately, the ability to proceed under a pseudonym and sealing files, allowed for T-visa applicants to litigate more confidently.
For example, in the sealed case of one victim from Central America, the government originally denied the T-1 case where the victim had been made to help carry drugs into the US in the 1990s. The government first decided that death threats by the traffickers forcing the man to carry packages that were likely full of drugs, did not mean the victim was trafficked. However, the APA challenge to this denial in federal court resulted in a reopening and remand of the application, and within months the T-1 approval and work authorization were issued. Although the person was trafficked decades ago, the victim had participated in therapy for his PTSD diagnosis which had resulted from the coyotes’ abuse during the smuggling-turned-trafficking victimization. Consistent therapy or recent reporting to law enforcement, make it easier to show a person is in the US on account of trafficking, even when the victimization happened decades ago. The pushback on smuggling-turned-trafficking cases by USCIS got pushback from litigators, and the Policy Manual updated in 2021 helped a lot with backing up litigators’ arguments on T-denial lawsuits. Success in litigation has been encouraging for T-visa lawyers.
In several unpublished AAO cases, USCIS finally determined that a “thing of value” offered for unwanted sex could include the victim’s life. Threatening to kill a woman or threatening to repeatedly rape her for not submitting to sexual assault, was determined to be sex trafficking. This sexual assault was correctly reframed as trafficking using coercion or force to get sex, and the “thing of value” offered was the victim’s life or some safer smuggling path. This reframing has opened T-visa eligibility to thousands of men and women who unwillingly paid with their bodies when trying to seek asylum. Unreported sexual assault on the border is something to screen for carefully, as it may provide “immigration justice” to the survivor, where criminal justice is unavailable. The perpetrators of trafficking may never be caught, or their names may remain unknown, but the survivors have an opportunity to obtain T status, along with psychological support and trafficking-related services to help them recover.
The T visa is a lifesaver and life-rearranger for trafficking survivors. There are thousands of unused T visas, and it is not for a lack of victims. It is for a lack of survivor identification or misunderstanding of how very broad and protective the laws against labor and sexual exploitation are. While political battles rage over the border and asylum, let’s use the T-visa program as it was intended: to protect those who were victimized.
Do you want to learn more about T visas, updates, and trends? AILA members, access the FREE upcoming live roundtable scheduled for March 10, 2023 at 2 pm (ET) to learn more LIVE from expert practitioners! Register for the free event on Agora.