T Visas: A Critical Immigration Option for Survivors of Human Trafficking [1 ed.]

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ILRC.TVisas.1stEdition.newlayout.qxp_Layout 2 2/20/19 6:01 PM Page 1

• A thorough and comprehensive overview of the requirements for T nonimmigrant status and numerous examples of trafficking cases that qualify • A step-by-step guide for completing and submitting Form i-914 T nonimmigrant status applications • A thorough and comprehensive overview of the requirements for T adjustment of status and numerous sample materials • The latest information for assisting T nonimmigrants or their family members who seek to travel or enter the United States on a T visa • An overview of representing clients in removal proceedings and many sample motions and practice tips • Guidance for recognizing secondary trauma and tips for ensuring self-care

T Visas A Critical Immigration Option for Survivors of Human Trafficking

T Visas: A Critical Immigration Option for Survivors of Human Trafficking is a comprehensive resource to guide you through the entire process of representing a survivor of human trafficking in their immigration case. From preparing your agency to represent human trafficking survivors, to completing T nonimmigrant status and adjustment applications, to assisting derivative family members, to representing survivors in removal proceedings, to ensuring you can recognize signs of secondary trauma and plan for self-care, this publication provides a thorough explanation of the requirements and processes for all of these immigration situations as well as practice pointers, sample materials and more. This first edition of T Visas: A Critical Immigration Option for Survivors of Human Trafficking includes:

T Visas A Critical Immigration Option for Survivors of Human Trafficking

TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

SAN FRANCISCO, CA 94103

T 415.255.9499 / F 415.255.9792

WWW.ILRC.ORG

1st Edition

1458 HOWARD STREET

1st Edition

Immigrant Legal Resource Center

T Visas A Critical Immigration Option for Survivors of Human Trafficking 1st Edition The Immigrant Legal Resource Center

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Copyright 2018 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 415.255.9499 www.ilrc.org

The Immigrant Legal Resource Center (ILRC) is a national, nonprofit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights. Since 1979, the mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. WHAT WE DO Legal Professionals & Advocates •

Trainings: Throughout the year, the ILRC staff attorneys provide classroom seminars and webinars on a wide range of topics that affect the immigrant community.

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Publications: ILRC publishes some of the top reference manuals on immigration law.

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Leadership Training: ILRC trains immigrant leaders how to be more effective advocates for their communities.

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Know Your Rights Presentations: ILRC attorneys regularly conduct “know your rights” trainings with immigrant-based organizations to inform immigrants about their rights under the immigration laws and the United States Constitution, how to protect themselves from becoming victims of immigration fraud, changes in immigration law and policy, and a host of other issues that affect the lives of immigrants. Laws, Policies & Practice •

Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration law, and keep abreast of the frequent changes in immigration case law and policy so that we can inform our constituents of those changes as soon as they occur.

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Policies: ILRC conducts ongoing dialogues between Immigration Service officials and the community agency representatives to help ensure that government policies and procedures are more reasonable and fair, and to make sure that information about these policies is provided to the immigrant advocacy community in a timely manner.

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Advocacy: ILRC advocates for reasonable changes in immigration law to get closer to our ideal of a system that will recognize the contributions immigrants make to our society, respect their dignity, and insure a workable, secure, and humane immigration system. How to Contact Us •

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• Website: www.ilrc.org How to Support Our Work Please visit our website www.ilrc.org to make a tax-deductible contribution.

T Visas November 2018

ACKNOWLEDGEMENTS The Immigrant Legal Resource Center (ILRC) would like to thank and acknowledge the many organizations and individuals who contributed to our work in creating this manual. Our biggest thanks goes to the amazing attorneys who together helped co-author this manual and without whom this resource would not be available. Thank you so much to Evangeline Abriel (Clinical Professor of Law at Santa Clara University School of Law), Ariel Brown (Law Fellow, Immigrant Legal Resource Center), Cindy Liou (Deputy Director of Legal Services, Kids in Need of Defense), Nikki Marquez (Special Projects Attorney, Immigrant Legal Resource Center), Lynette Parker (Associate Clinical Professor, Katharine and George Alexander Community Law Center), Rachel Prandini (Staff Attorney, Immigrant Legal Resource Center), Leah Chen Price (Senior Staff Attorney, Tahirih Justice Center), Karen Schulz (Managing Attorney, Step Forward Foundation), and Sara Van Hofwegen (Supervising Senior Staff Attorney – Immigrants’ Rights Project, Public Counsel). In addition to representing human trafficking survivors and other noncitizens in their immigration cases, these incredible women generously shared their time, experience and expertise to ensure that as much knowledge was included in this manual as possible to help build the field of T visa advocates. We are tremendously grateful for their camaraderie, wisdom, mutual support, and generosity. This manual would not have been possible without them. We would also like to acknowledge and thank those who helped by producing and contributing content from our other co-produced resource, Representing Survivors of Human Trafficking: A Promising Practices Handbook, sharing sample materials and resources, providing critical input, editing and cite-checking, and providing background information and research. They include Ainsley McMahon (KIND), Ivy Lee (formerly at Asian Pacific Islander Legal Outreach), Carolyn Kim (Coalition to Abolish Slavery & Trafficking), Sarai Chavarria (Step Forward Foundation), Veronica Garcia (Immigrant Legal Resource Center), and Caleb Stewart (Rocky Mountain Immigrant Advocacy Network). And thank you to our Publication and Program Coordinator Tim Sheehan who so patiently made sure all of the details were in place to make this book possible. The ILRC is extremely proud to be producing this manual with this amazing group of people. Sally Kinoshita Deputy Director Immigrant Legal Resource Center November 2018

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T VISAS: A CRITICAL IMMIGRATION OPTION FOR SURVIVORS OF HUMAN TRAFFICKING 1ST EDITION INDEX OF APPENDICES Chapter 1

Introduction

§ 1.1 § 1.2 § 1.3 § 1.4

Overview of Benefits and Eligibility for T Nonimmigrant Status ......................... 1 How to Use This Manual........................................................................................ 2 Contents of This Manual ........................................................................................ 3 Resources ............................................................................................................... 5

Chapter 2

Agency Preparation for Human Trafficking Cases

§ 2.1 § 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8 § 2.9

Understanding the Complexity of Human Trafficking and T Visa Cases ........................................................................................................... 7 Considerations before a Trafficking Survivor Is First Encountered....................... 9 Safety Concerns.................................................................................................... 11 Protecting Shelter Anonymity .............................................................................. 12 Considerations When a Trafficking Survivor Is Identified .................................. 14 Reporting to Law Enforcement ............................................................................ 16 Intake .................................................................................................................... 18 Working with Trauma Survivors .......................................................................... 18 Client Interviewing ............................................................................................... 22

Chapter 3

T Nonimmigrant Status Eligibility

§ 3.1 § 3.2 § 3.3 § 3.4 § 3.5

T Nonimmigrant Status Eligibility Requirements Overview ............................... 25 Element One: Victim of a Severe Form of Human Trafficking ........................... 27 Element Two: Physical Presence on Account of Trafficking .............................. 38 Element Three: Compliance with Any Reasonable Request for Assistance Made by Law Enforcement ................................................................ 41 Element Four: Extreme Hardship upon Removal ................................................ 50

Chapter 4

T Nonimmigrant Status Process

§ 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7

Screening for Eligibility ....................................................................................... 55 The T Nonimmigrant Status Packet ..................................................................... 57 Cover Letter.......................................................................................................... 60 Completing Form I-914 ........................................................................................ 61 Filing Fees ............................................................................................................ 65 Filing Fee Waiver Requests ................................................................................. 65 Working with Law Enforcement to Request and Complete the Form I-914 Supplement B .................................................................................... 67 Documentation of Human Trafficking ................................................................. 71 Documentation of Cooperation with Law Enforcement....................................... 71 Applicant’s Declaration........................................................................................ 73

§ 4.8 § 4.9 § 4.10

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§ 4.11 § 4.12 § 4.13 § 4.14 § 4.15 § 4.16 § 4.17 § 4.18 § 4.19

Documentation of Extreme Hardship upon Removal .......................................... 74 Assembling and Submitting a T Nonimmigrant Status Application .................... 74 Notices from USCIS ............................................................................................. 75 Requests for More Evidence (RFEs) .................................................................... 76 Approvals ............................................................................................................. 77 Denials.................................................................................................................. 78 Duration and Extension of Status ......................................................................... 80 Revocation of T Nonimmigrant Status ................................................................. 81 Appeals and Motions to Reopen or Reconsider Appeals ..................................... 82

Chapter 5

Inadmissibility Grounds and Waivers

§ 5.1 § 5.2 § 5.3

§ 5.10

Overview of Inadmissibility and Waivers ............................................................ 85 Inadmissibility Grounds and Waivers at the T Nonimmigrant Stage ................... 87 Inadmissibility Grounds and Waivers at the T Adjustment of Status Stage .......................................................................................................... 88 Identifying an Applicant’s Grounds of Inadmissibility to Be Waived ................. 89 Addressing Inadmissibility on the Form I-914 ..................................................... 94 Completing Form I-192 ........................................................................................ 95 Documenting That the Applicant Merits a Waiver .............................................. 96 Filing Fees and Fee Waivers ................................................................................ 98 Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) ................................................................................................................ 98 Waiver Denials and Resubmissions ..................................................................... 98

Chapter 6

T Nonimmigrant Adjustment of Status Eligibility

§ 6.1 § 6.2 § 6.3

§ 6.7

Introduction .......................................................................................................... 99 Overview of Eligibility Requirements for T Adjustment of Status ...................... 99 Granted T Nonimmigrant Status and Continue to Hold T Nonimmigrant Status ...................................................................................... 102 Continuous Physical Presence in T Nonimmigrant Status ................................. 102 Person of Good Moral Character During T Nonimmigrant Status and Adjustment of Status Process ............................................................................. 104 Assistance in the Investigation or Prosecution or a Showing of Extreme Hardship ............................................................................................... 107 Inadmissibility and Discretionary Issues ............................................................ 109

Chapter 7

Adjustment of Status Process

§ 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8

Documentation Requirements for T Adjustment of Status ................................ 112 Completing Form G-28 ...................................................................................... 114 Completing Form I-485 ...................................................................................... 115 Form I-765/Work Permit Application ................................................................ 116 Filing Fees and Fee Waivers .............................................................................. 116 Passport .............................................................................................................. 117 Medical Exam .................................................................................................... 118 Proving Continuous Physical Presence .............................................................. 121

§ 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9

§ 6.4 § 6.5 § 6.6

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§ 7.9 § 7.10 § 7.11 § 7.12 § 7.13 § 7.14 § 7.15

Evidence of Good Moral Character.................................................................... 123 Establishing Compliance with Reasonable Requests for Assistance or Extreme Hardship ............................................................................................... 124 Form I-601/Inadmissibility................................................................................. 126 Evidence That Discretionary Approval Is Warranted ........................................ 127 Filing the Adjustment of Status Application ...................................................... 128 Biometrics .......................................................................................................... 129 Approvals and Denials ....................................................................................... 130

Chapter 8

Assisting Family Members

§ 8.1 § 8.2 § 8.3 § 8.4 § 8.5

§ 8.11 § 8.12

Overview of Qualifying Family Members ......................................................... 133 Family Members Defined under Immigration Law............................................ 134 “Qualifying Family Member” Relationships for T Derivative Status ................ 136 Documenting the Family Relationship ............................................................... 138 T Nonimmigrant Application Timing and Procedure for Derivative Family Members ................................................................................................ 141 Admissibility ...................................................................................................... 142 Employment Authorization ................................................................................ 143 T Derivative Approvals in the United States...................................................... 144 T Derivative Approvals Outside the United States (Consular Processing)......................................................................................... 144 Adjustment Procedure for T Nonimmigrant Derivative Family Members ................................................................................................ 147 Qualifying Family Members with Removal Issues ............................................ 149 Revocation of Derivative Status ......................................................................... 149

Chapter 9

T Visas and Removal Issues

§ 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8

Applicants Currently in Removal Proceedings .................................................. 151 Continuances ...................................................................................................... 152 Administrative Closure....................................................................................... 152 Termination ........................................................................................................ 153 Detained Applicants ........................................................................................... 155 Waivers of Inadmissibility ................................................................................. 156 Applicants with Prior Orders of Removal .......................................................... 157 T Visas for Lawful Permanent Residents ........................................................... 158

Chapter 10

T Travel Issues

§ 10.1 § 10.2 § 10.3 § 10.4 § 10.5 § 10.6 § 10.7

Introduction ........................................................................................................ 159 Bringing Derivatives from Abroad..................................................................... 160 Travel Before Approval Notice Issued ............................................................... 161 Approval Notices for Derivatives Abroad.......................................................... 162 Decision to Travel .............................................................................................. 162 Consular Processing ........................................................................................... 163 Border Entry with CBP ...................................................................................... 167

§ 8.6 § 8.7 § 8.8 § 8.9 § 8.10

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§ 10.8 § 10.9

Entering the United States .................................................................................. 167 Parole for Adjustment of Status Applicants ....................................................... 167

Chapter 11

Working with Children and Youth

§ 11.1 § 11.2 § 11.3 § 11.4 § 11.5

Introduction ........................................................................................................ 169 General Practice Tips for Working with Children and Youth ............................ 169 Understanding Trauma in Children and Avoiding Re-Traumatization .............. 175 Legal and Ethical Issues in Representing Children ............................................ 177 Special Agencies and Programs for Children or Youth Trafficking Survivors ......................................................................................... 178

Chapter 12

Practical Client Considerations

§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7 § 12.8

Housing and Shelters .......................................................................................... 183 Case Management .............................................................................................. 185 Health Services ................................................................................................... 186 Government Agencies ........................................................................................ 187 Working with Interpreters .................................................................................. 188 Funders ............................................................................................................... 190 Keeping and Sharing Confidential Information Professional Obligations and Privileged Relationships .......................................................... 191 Civil Cases.......................................................................................................... 197

Chapter 13

Secondary Trauma and the Importance of Self-Care

§ 13.1

Concepts of Secondary Trauma (Vicarious Trauma, Compassion Fatigue) .......................................................................................... 205 Symptoms of Secondary Trauma ....................................................................... 206 Assessing the Possibility of Re-Traumatization or Secondary Trauma ............. 206 Awareness of the Effects of Working with Trauma Survivors .......................... 207 Issues Unique to Legal Representatives ............................................................. 207 Issues Unique to Staff......................................................................................... 208 Issues Unique to Interpreters .............................................................................. 208 Self-Care: Why It’s Important ............................................................................ 209 Self-Care: Prevention of Secondary Trauma ...................................................... 209

§ 13.2 § 13.3 § 13.4 § 13.5 § 13.6 § 13.7 § 13.8 § 13.9

INDEX OF APPENDICES Appendix A

Resources for Human Trafficking and T Visa Cases

Appendix B

Sample Attorney-Client Retainer Agreement

Appendix C

Sample Joint Representation Disclosure and Consent Form

Appendix D

Release of Information Form

Appendix E

Initial Letter to Law Enforcement.

Appendix F

Intake Forms

Appendix G

Sample Trafficking Questionnaire

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Appendix H

Continued Presence Information

Appendix I

ICE HSI Directive 10075.2: Continued Presence, 2 (Oct. 6, 2016)

Appendix J

Sample Screening Tool

Appendix K

Action-Means-Purpose Chary

Appendix L

Sample Completed Form I-914 Packet

Appendix M

Spanish Translation of I-914 Questions

Appendix N

Sample FOIA Requests

Appendix O

Sample Form G-1054 Fee Waiver Denial

Appendix P

Sample Request to Law Enforcement

Appendix Q

Sample Motion to Quash a Subpoena

Appendix R

Sample Application Support Center Appointment Notice

Appendix S

Information for Derivative Family Member on Fingerprints and Photographs

Appendix T

Sample RFEs and Responses

Appendix U

T Nonimmigrant Status Employment Authorization Document

Appendix V

Sample Approval and Denial Notices

Appendix W

Sample FBI Background Check Request Letter

Appendix X

Sample Police Report Request Form

Appendix Y

Sample Letter to Clients Regarding Adjustment Eligibility

Appendix Z

Sample Adjustment of Status Packet

Appendix AA

Sample Adjustment Approval Notice

Appendix BB

Sample Client Closing Letter

Appendix CC

Sample T Nonimmigrant and T Derivative Checklist

Appendix DD

Interim Policy Memorandum PM 602-0107, Oct. 2014

Appendix EE

Interim Policy Memorandum PM 602-0032.2, Oct. 2016.

Appendix FF

International Organization for Migration Family Reunification Brochure

Appendix GG

Sample Cover Letter for a Derivative Who Entered on a T Visa

Appendix HH

Sample Motion to Continue

Appendix II

Sample Motion for Administrative Closure

Appendix JJ

Sample Motion to Terminate Removal Proceedings

Appendix KK

Information on Requesting OCC to Join or Non-Oppose a Motion

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Appendix LL

Sample Motion to Reopen and Terminate Proceedings

Appendix MM

Sample DS-160 Worksheet

Appendix NN

Sample Letter to Social Services

Appendix OO

Sample Interpreter Confidentiality Agreement

Appendix PP

Sample Common-Interest Agreement

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CHAPTER 1 INTRODUCTION This chapter includes: § 1.1 § 1.2 § 1.3 § 1.4

Overview of Benefits and Eligibility for T Nonimmigrant Status ......................... 1 How to Use This Manual........................................................................................ 2 Contents of This Manual ........................................................................................ 3 Resources ............................................................................................................... 5

§ 1.1

Overview of Benefits and Eligibility for T Nonimmigrant Status

T nonimmigrant status 1 is a nonimmigrant (temporary) status that allows noncitizen survivors of a severe form of human trafficking to stay in the United States, obtain employment authorization, apply for lawful permanent resident status, and help certain family members obtain immigration status as well. It was created by the Victims of Trafficking and Violence Prevention Act (hereinafter VTVPA 2000). 2 The T nonimmigrant status discussed in this manual is often colloquially referred to as a “T visa” by attorneys and community members alike. However, it is important to note that most clients in the United States who benefit from this immigration option will not have a T visa. Instead, they will be approved for T nonimmigrant status. This is an important distinction to make to clients and to understand as immigration practitioners. PRACTICE POINTER: The importance of the distinction between T visas and T nonimmigrant status. The terms “T visa” and “T nonimmigrant status” are often used interchangeably; however, there is an important distinction between the two. Nonimmigrant status is a form of immigration status granted to your client when they are already in the United States or they arrive in the United States. It is usually indicated on an approval notice from U.S. Citizenship and Immigration Services (USCIS) and a Form I-94 and will include an expiration date. It allows your client temporarily to remain legally in the United States as a T nonimmigrant. A visa is a document placed in your client’s passport by a U.S. consular official. It permits your client to enter the United States and travel into and out of the United States. T nonimmigrants may obtain a multiple entry visa that can be used to repeatedly enter the United States. Therefore, the T visa allows your client to enter the United States. T nonimmigrant status allows your client to remain in the United States.

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The terms “T visa” and “T nonimmigrant status” are often used interchangeably by attorneys and advocates. However, there is an important distinction between the two. See the Practice Pointer on the next page for more details on this distinction. 2 Pub. L. 106-386, 114 Stat. 1464 (Oct. 28, 2000) [VTVPA].

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Although these two terms are colloquially used interchangeably, there is an important distinction. For more information on travel issues and the T visa, see Chapter 10 of this manual. There is a statutory annual limit of 5,000 T visas or approved T nonimmigrant status that can be granted per fiscal year. 3 This numeric limit applies only to principal applicants, and not to derivative cases. 4 As of this manual’s writing (November 2018), the statutory cap on T visas has never been reached. 5 The duration of the T nonimmigrant status is for up to four years. 6 However, this period of status may be extended in certain situations. 7 T nonimmigrants may also be able to adjust status in the United States to obtain lawful permanent residence (a green card).8 There are also provisions to grant derivative T nonimmigrant status, T visas and lawful permanent resident status to certain family members of T nonimmigrants. 9 The Department of Homeland Security (DHS) first published T nonimmigrant status regulations in 2002 as an interim rule, which included eligibility criteria, the application process, evidentiary standards, and benefits associated with the T visa. On December 19, 2016, DHS published a subsequent interim rule after related legislation was enacted and after reviewing submitted comments on the regulations. This interim rule became effective on January 18, 2017 and are the current regulations as of this manual’s writing (November 2019). Because the current T nonimmigrant regulations are interim, they may change when final regulations are issued. Sometimes, interim regulations are in place for many, many years before the regulations become final. On December 12, 2008, USCIS published interim regulations on adjustment of status for T nonimmigrants. 10 They became effective on January 12, 2009. They are also interim regulations and therefore subject to change upon issuance of the final regulations. Some implementing provisions have been issued in policy guidance memoranda. USCIS policy memoranda regarding T nonimmigrants may also be found on the CIS website at www.uscis.gov. § 1.2

How to Use This Manual

This manual is designed for attorneys, advocates, paralegals and other staff at nonprofit organizations, government agencies, shelters, law enforcement agencies, schools, social service agencies, health care providers and other organizations who serve immigrant communities and 3

INA § 214(o)(2). INA § 214(o)(3)(B). 5 USCIS data on application, approval, and denials rates for immigration forms can be found online at https://www.uscis.gov/tools/reports-studies/immigration-forms-data. 6 INA § 214(o)(7)(A). 7 INA § 214(o)(7)(B) and (C). See Chapter 3 for more detail about extending T nonimmigrant status past the four-year initial period. 8 INA § 245(l). 9 INA § 101(a)(15)(T)(ii). See Chapter 8 for a detailed discussion on assisting family members of T nonimmigrants in obtaining immigration status. 10 73 FR 75540. 4

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immigrant survivors in search of help. Through this manual, we will guide you through the entire process of handling an immigration case for a T nonimmigrant status applicant—from screening for eligibility to adjusting status to lawful permanent residency and assisting eligible family members and T nonimmigrants who wish to travel outside the United States. In addition to providing a thorough explanation of the requirements and process, this manual includes numerous sample materials that may be helpful to you in putting together your client’s case. The included appendices include sample versions of the immigration forms you will need, sample checklists, sample declarations, samples of the receipt notices and other correspondence you can expect to receive from USCIS, sample motions to submit to the immigration court, and more. Numerous sample materials are found at the back of this manual in the appendix and are referenced throughout the manual. Some of the processing procedures for T nonimmigrants are in flux. As of this manual’s writing (November 2018), the T nonimmigrant and adjustment implementing regulations are still interim (although may remain in this state for years or become final in the same form) and more draft and final policy guidance memoranda are expected. We therefore encourage you to follow the organizations listed in the Resources for Human Trafficking and T Visas Cases page found at Appendix A. PRACTICE POINTER: Where to find the law, regulations, and policy on the T Visa. Most of the policy and procedure related to the T visa are contained in one of three places: the statute, the regulations, or policy guidance issued by USCIS. The statute is the Immigration & Nationality Act (INA), and the relevant sections are at: • • • •

INA § 101(a)(15)(T): T nonimmigrant status eligibility requirements INA § 214(o): Miscellaneous T nonimmigrant requirements INA § 212(d)(13): T nonimmigrant inadmissibility waivers INA § 245(l): T nonimmigrant adjustment provisions

Much of the policy and procedure are outlined in the regulations, the relevant sections of which are: • •

8 CFR §§ 212.16, 214.11: T nonimmigrant status 8 CFR § 245.23: T nonimmigrant adjustment of status

Finally, as is often the case with immigration policy and procedure, some of important issues related to T nonimmigrant status are addressed in USCIS policy guidance memoranda. Some of these memoranda are available on the USCIS website at www.uscis.gov. § 1.3

Contents of This Manual

This manual contains thirteen chapters and an extensive appendix at the end of the manual. Please refer to these chapters for substantive coverage of the following topics: Chapter 1, Introduction, covers an overview of benefits and eligibility for T nonimmigrant status, the contents of this manual and how to use it, and resources to assist you in navigating this topic.

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Chapter 2, Agency Preparation for Human Trafficking Cases, provide an overview of things to consider before taking on a T visa cases including background on the complexity of human trafficking cases, safety concerns, working with trauma survivors and client interviewing. Chapter 3, T Nonimmigrant Status Eligibility, covers eligibility for T nonimmigrant status including a detailed discussion of the eligibility requirements for the visa, screening tips and practice pointers. Chapter 4, T Nonimmigrant Status Process, details step-by-step how to apply for T nonimmigrant status, including details on how to fill out and document the Form I-914, what to expect from the process, how to obtain work authorization, and how and when to communicate with USCIS about your client’s case. It also describes issues that arise after T nonimmigrant status is approved, including requesting an extension of status or the possibility of a revocation of status. Chapter 5, Inadmissibility Grounds and Waivers, provides information about the various grounds of inadmissibility applicable to the T nonimmigrant status applicant, the standard for overcoming them with a waiver, and strategies for how to apply for the inadmissibility waiver. Chapter 6, T Nonimmigrant Adjustment of Status Eligibility, details the requirements for T nonimmigrants to obtain lawful permanent residence, as well as how jurisdictional issues, inadmissibility grounds, and prior removal orders may affect your client’s case. Chapter 7, Adjustment of Status Process, is another step-by-step chapter providing details to guide you through completing the adjustment packet, including the I-485 and supporting documentation, for a T nonimmigrant. Chapter 8, Assisting Family Members, is dedicated to providing information on how to help family members obtain immigration status—either as derivative family members at the T nonimmigrant status phase, the T visa phase, or at the adjustment phase. Chapter 9, Removal Issues, discusses issues impacting clients who are currently in removal proceedings and those with prior removal or deportation issues, including information on motions and stays. Chapter 10, T Travel Issues, is dedicated to providing practical information for helping T nonimmigrant status holders who wish to travel, and approved T derivatives in their home countries who wish to travel to the United States and will need to go through consular processing. Chapter 11, Working with Children and Youth, covers general practice tips for working with children and youth as well as special considerations when helping children and youth survivors of trafficking with the T visa eligibility. Chapter 12, Practical Client Considerations, is a chapter on the other agencies and issues that may come up in a T visa case, including ones related to housing, health, interpreters, funding, civil cases, and more. Chapter 13, Secondary Trauma and the Importance of Self-Care, covers the concepts of secondary trauma, how to recognize its symptoms, things to keep in mind in working with trauma survivors, and ideas for self-care.

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The Appendix found at the end of this manual provides numerous sample materials, screening sheets, checklists, USCIS memoranda and other materials that advocates may find useful in helping a client successfully obtain T nonimmigrant status. § 1.4

Resources

Those of us who work with T nonimmigrant status applicants are fortunate that a universe of resources exists to help advocates and attorneys with these cases, and there are numerous excellent attorneys who are willing to share the resources they’ve created. Attached to this manual at Appendix A please find a list of resources for immigration forms, fees and updates, technical assistance, websites, trainings, webinars, seminars, listservs, and other written materials.

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CHAPTER 2 AGENCY PREPARATION FOR HUMAN TRAFFICKING CASES This chapter includes: § 2.1

§ 2.1

Chapter 2

§ 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8 § 2.9

Understanding the Complexity of Human Trafficking and T Visa Cases ........................................................................................................... 7 Considerations before a Trafficking Survivor Is First Encountered....................... 9 Safety Concerns.................................................................................................... 11 Protecting Shelter Anonymity .............................................................................. 12 Considerations When a Trafficking Survivor Is Identified .................................. 14 Reporting to Law Enforcement ............................................................................ 16 Intake .................................................................................................................... 18 Working with Trauma Survivors .......................................................................... 18 Client Interviewing ............................................................................................... 22

Understanding the Complexity of Human Trafficking and T Visa Cases

Human trafficking cases can be challenging because there are so many aspects to representing a trafficking survivor. Among the challenges is that there may be many individuals involved in the case as part of a larger team. 1 Besides the immigration attorney, the survivor might have a civil attorney, a worker’s rights attorney, and/or a criminal defense attorney; and/or they may be working with law enforcement and/or a district attorney as a victim in a criminal case. Each attorney is focused on their particular legal issues and claims. The attorneys may require the same information and similar documents, but questions arise as to how much information to share, especially if the various legal claims are handled by separate law offices. At the very least, the legal services team should be in communication on process, if authorized in writing by the survivor. Rarely will human trafficking survivors have funds to pay a private attorney, unless the trafficker hires the private attorney on behalf of the survivor. The process for representing a survivor of human trafficking is complex and does not lend itself to the casual representation. Example: Jane was trafficked into the United States to provide childcare for her cousin’s daughter. Upon arriving in the United States, the cousin advised Jane that she needed to work in her cleaning business as well, in order to repay the cost of travel and housing and food in the United States. Jane’s cousin took Jane’s passport for “safekeeping” and told Jane not to leave the house without her, or the police would arrest Jane for being a foreigner. In time, Jane’s cousin began threatening Jane’s family if she did not do the 1

Working from a team-based approach goes beyond the scope of this manual. For a handbook containing lessons learned and promising practices tips in the context of a team-based approach to serving human trafficking survivors, see Representing Survivors of Human Trafficking: A Promising Practices Handbook available at https://www.ilrc.org/publications.

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cleaning work well, or if Jane complained of being tired. After a year, Jane was able to slip out of the house to go to a neighbor’s house. The neighbor tried to help Jane get resources and a place to stay. The cousin reported Jane missing and called ICE on Jane. At some point, the neighbor took Jane to a community legal services office.

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The legal services office screened Jane and determined she was a human trafficking survivor. They also learned that she’d been placed in removal proceedings for overstaying her visa. The legal services attorney told Jane to go to the local police station to report that she was a human trafficking victim. The attorney said it could help with her immigration case in court if she could get a law enforcement certification. The attorney gave the survivor the law enforcement paperwork to give the police to fill out. The survivor did as she was told and went to the police station. At the station, she told the police that she wanted to report she was a victim of human trafficking and that she wanted them to fill out some paperwork because it would help with her immigration case. The police were suspicious, and while they followed up with a local Trafficking Task Force they expressed concern that Jane was just using the system to find a way to remain in the United States. Example: Niko was brought to the United States at the age of 17 to do construction work, be a handyman, babysitter, and domestic worker for his uncle and his uncle’s two young children. Although Niko’s uncle promised him he could go to school, learn how to drive, and he would help him petition for papers, over three years, he never paid Niko or followed through on his promises. When Niko dared to complain, his uncle threatened to deport him. Niko finally found a non-profit immigration attorney experienced in U visas. This attorney instructed him to report his case to the local police department as an incident of domestic violence and human trafficking, as the attorney normally did with his other clients applying for U visas. Niko went to the police station and did as told, stating that he was a victim of domestic violence and human trafficking. The police officer looked at him skeptically and asked Niko what his uncle forced him to do. Niko started by describing the amount of time he spent doing housework and babysitting his uncle’s two young children. The police officer cut Niko off and called ICE. ICE officers came and told Niko that his uncle had already reported that Niko was out of status and had been threatening his children. ICE handcuffed Niko and issued him a Notice to Appear. They all scoffed that a young man like him was forced to be a babysitter and kept asking him, “Who taught you to say that you were a human trafficking victim? Who taught you to say that so you could stay here in the United States?” In the examples above, the result of the immigration legal service’s attempt to represent human trafficking survivors by sending them on their own to a law enforcement agency could result in confusion on the part of law enforcement at best, or disbelief and discounting the survivor at worst. Many immigration legal representatives work as a team with law enforcement. In those cases, it is rare that the attorney would send a client to local or federal law enforcement on their own to report a case of human trafficking. In some cases, the law enforcement agent or officer decides not to complete the LEA certification or delays completing the certification for reasons specific to that department’s policies or assessment of the case. Fortunately, for purposes of a T visa, the absence of a LEA certification does not preclude the filing of a T visa, as discussed further in this manual. 8

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PRACTICE POINTER: Ensuring a coordinated response through a team-based approach. Unlike most areas of immigration law practice, representing human trafficking survivors requires a coordinated response among law enforcement, case managers, health care providers, and different types of legal representatives. It is extremely difficult to effectively serve human trafficking survivors in a vacuum. A team-based perspective to serving human trafficking survivors is vital to this area of immigration practice but goes beyond the scope of this manual. For more detail about team-based approaches in human trafficking cases, see the ILRC manual, Representing Survivors of Human Trafficking: A Promising Practices Handbook available at www.ilrc.org. See also Chapter 12 of this manual for more information on the myriad practical considerations around housing, case management, civil cases and more that arise in human trafficking cases. Considerations before a Trafficking Survivor Is First Encountered

A new trafficking case may be very resource-intensive, and your agency should be realistic when staffing a case. If the survivor is in the emergency or crisis stages, you will have to take into consideration that, for all practical purposes, your time will be wholly occupied by this new client for the next several weeks. Your capacity for accepting new clients, cases, or tasks will be severely curtailed. Moreover, if you have already scheduled meetings, hearings, or other events for this same time-period, these may need to be rescheduled or re-assigned to other staff until the client is out of their emergency or crisis phase. These dynamics can create a great deal of tension within your agency, but you can try to preempt or minimize the negative repercussions by preparing your agency before a trafficking case arises. Being in consensus about who will staff a case, how existing or future cases will be handled, etc., is critical since the last thing you want to deal with while you are in the middle of a trafficking case is conflict within your own agency. Some clients will come to you after having already achieved some stability in their lives. They may not be in need of shelter and other emergency services. Nonetheless, many issues may arise. You must determine the scope of the services that you will be provide to trafficking survivors clients and be able to communicate this to them. Your agency should have a predetermined range of services that you are able to provide to eligible clients in trafficking cases and which are clearly understood by the other agencies and entities that are a part of the anti-trafficking network. One tool you should use to clearly delineate the scope of services you will provide is a written service agreement, such as an attorney-client agreement, that lays out the details of what you will be doing for a client, what you expect of a client, what a client can expect of you, and the terms of this relationship. For example, you may want to emphasize what would make you terminate your services, such as a client who fails to cooperate with their case, or the fact that the services you are providing will be free of charge until a decision is rendered on the client’s application for a T visa with follow-up services available on a sliding scale, etc. See Appendix B: Sample Attorney-Client Retainer Agreement. If you are agreeing to represent a spouse, sibling, or other derivative of the primary client, you should strongly consider also having a form that details the joint representation, including possible options if a conflict arises between the primary client and the derivative. See Appendix C: Sample Joint Representation Disclosure and Consent Form. You may also want to be specific about the scope of legal work, that you

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may not necessarily be assisting your client with both the T visa and adjustment, and your ability to serve them, especially for either free or a reduced amount, based on where they live.

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Also critical are documents that cement the way that you will communicate with other agencies that are also providing services to the same client, such as a written inter-agency agreements that outline which agency is responsible for which services, and that allows you to exchange information with the agencies that are a part of the service team. A written agreement between you and the client that allows you to obtain and release information to further the interests of the client should be a part of your service agreement. See Appendix D: Release of Information Form. It is very useful to establish in advance a set of protocols for responding to human trafficking cases when a survivor is identified by law enforcement or non-law enforcement. If a roadmap and rules are created in advance, the chances of someone falling through the cracks and/or of miscommunication are minimized. These protocols also allow your agency and partner agencies to clearly define role and responsibilities. The myriad of interviews and intakes can be confusing, duplicative, and exhausting to the survivor. For this reason, it is best to identify all of the internal and external partners involved in a trafficking case (the team) and have an agreement among all parties as to the process and priority for conducting intakes after a law enforcement identification of survivors. Even with an agreement, someone will need to be in charge of coordinating the logistics of intakes, making sure as much as possible that the survivors understand why they are being asked the same or similar questions more than once. Coordinating logistics also means arranging times for various intakes. As a legal advocate, ideally you would be present during the first interviews with the survivors in order to assess legal rights and remedies from the very beginning. You may believe that someone is a survivor with legal rights, while your law enforcement partner may not see the person as a human trafficking survivor. Example: The holiday weekend was fast approaching when Annie Advocate received a call on her cell. Remember when we talked about the hypothetical raid that might uncover a few victims? asked the federal prosecutor. Well, it was no hypo, it’s real, it’s happened, and we actually have a little over a dozen women and girls in custody right now. How soon can you and your colleagues be available to start the interviews? Annie was speechless as her mind started to tick off the list of tasks that she’d need to get rolling immediately to address a case this big: She needed to call the designated leads for language/cultural support, legal intake, housing coordination, and case management to alert them of the situation and to start rounding up the necessary staff that would be critical to handling such a large number of potential survivors. Someone would need to get the supplies ready for a multi-day intake process: food and drinks for the staff, multilingual informational cards for the potential survivors, intake forms, a laptop to keep all the information organized on-site, the list went on. Annie started peppering the prosecutor with questions. Do you have a list of the languages spoken by the survivors? And how many are minors versus adults? And when and where can we meet them? The federal prosecutor let out a breath over the phone before she responded. Okay, here’s what I know.…

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Less than 24 hours later, Annie and other members of the Anti-Trafficking Task Force are driving in a caravan of cars to the detention site where the authorities have the women and girls housed. As they exit their cars and walk towards the entrance, they call a quick meeting, so they can review their “script,” which includes an explanation of who they were, what they are doing, and why they are present. They confirm again the procedures that they have agreed to follow for the intake and review process to go smoothly, assign teams of interviewers composed of a case manager to conduct a social services needs assessment and language support if needed, and confirm the shift assignments and break times. A moment of tension arises when several of the case managers state that they have their own written materials to hand out, but they get through it by explaining the fact that the coalition of service providers had agreed to use the materials created by the coalition and that in order to keep all the information consistent for survivors, they should stick to this agreed upon plan. When Annie looks up, the federal prosecutor is walking towards them with her team of agents, a clipboard gripped in her hands, and a tired but welcoming smile on her face. Thanks for being here. I’ll show you where I have some rooms set aside for your group. Please make sure you all wear your ID badges at all times on these premises. Let’s get started. Safety Concerns

Your agency may also want to review your internal safety protocols when a new trafficking case begins. The universe of anti-trafficking advocates and service providers is relatively small. Your staff may have memorable or unique surnames that make them easy targets to locate online or that make their personal or work information easily discoverable. You should review the safety concerns of your staff and discuss reasonable and practical ways of minimizing potential safety risks, such as: • • • • • •

Having a code word that the front desk or receptionist may use to signal for help if there is a suspicious individual(s) attempting to seek entry to your workplace Locking office doors after, or even during, work hours and having a buzzer system in place to allow secure entry and exit of office staff Having a post office mailing address for all communications instead of using your office’s physical location Avoiding having full names of staff listed online and reminding staff to keep their home contact information private Ensuring that private information for all staff is kept private and not shared with anyone outside of the office, including clients, opposing counsel, etc. Using a buddy system so that no staff person is ever left in the office alone or forced to exit the workplace after dark alone

PRACTICE POINTER: Assessing the possibility of re-traumatization or secondary trauma. Before taking cases or working on cases involving trauma survivors, you should assess your susceptibility to re-traumatization or secondary trauma. If you or your staff have survived a traumatic experience, exposure to a client with trauma may re-traumatizing. Repeated exposure to

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trauma can increase the possibility of experiencing secondary trauma. Certain types of cases may have more effect than others. For some, cases involving children have more of an impact. Although this does not mean you cannot or should not take a trafficking case, you may want to be extra sensitive to the effects on you of working on the case. Put in place self-care procedures early, and consider working with a colleague on the case, so that if you need to step out or away there is someone else who can take over.

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This type of assessment requires self-honesty. It is better for you and your client to determine your limits on working on these cases in advance. It is no different from assessing potential conflicts of interest. Ultimately, it will benefit you, your client, and future cases. For more information on secondary trauma and self-care, see Chapter 13 of this manual. § 2.4

Protecting Shelter Anonymity

The success of domestic violence shelters has been the strict enforcement of rules regarding nondisclosure of shelter locations. For some human trafficking cases, the anonymity of shelter is crucial. Human trafficking is a crime committed not only by individuals but also large criminal organizations. In many cases of human trafficking, the traffickers are well-organized and ruthless. The minimal value they place on human life is obvious from their willingness to buy and sell human beings. Thus, anonymous shelters are vital to the safety of some survivors. State and federal laws protect shelter anonymity and what type of actions may be enforced at a shelter. Both the 1984 Family Violence Prevention and Services Act (FVPSA) and the 1994 Violence Against Women Act (VAWA) bar any shelter, rape crisis center, domestic violence program, or other victim service program that receives its funding from disclosing any information to anyone about a victim receiving services, including information about the location of the victim. 2 Enforcing shelter anonymity may be especially critical in cases where your client may be at risk of detention by ICE or the police due to some misunderstanding. Example: Lali connected with a confidential domestic violence shelter where she went to stay. At the shelter, she met a caseworker who spoke her language. She began to divulge why and how she had come to the United States, and how her trafficker, a diplomat, was looking for her. The diplomat called the Department of State, who asked ICE to assist in finding the supposed “domestic worker that had made death threats, stole $5000 in jewelry, and ran away.” Before the shelter could connect Lali with an attorney, Lali received a call on her cell phone from the diplomat and an ICE agent. Lali gave the phone to the caseworker at the shelter, and the diplomat and ICE demanded to know the shelter location so they could come “talk” to Lali.

2 Family Violence Prevention and Services Act (“FVPSA”) Pub. L. No. 98-457, § 303(a)(2)(E), 42 USC § 10402(a)(2)(E) (1984). In California, California Penal Code 273.7 explicitly makes it a misdemeanor if anyone “maliciously publishes, disseminates, or otherwise discloses the location of any trafficking shelter or domestic violence shelter or any place designated as a trafficking shelter or domestic violence shelter, without the authorization of that trafficking shelter or domestic violence shelter.”

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VAWA confidentiality laws prohibits immigration enforcement actions at specified locations, including but not limited to domestic violence shelters, rape crisis centers, victim services program, family justice center, courthouses where an individual is appearing for a civil or criminal case related to domestic violence, sexual assault, trafficking, or stalking. 3 Any immigration enforcement action at these locations must be disclosed as a fact in the Notice to Appear and in immigration court proceedings, and must certify that such action did not violate § 384 of IIRIRA (hereinafter referred to as “enforcement limitations”). 4 VAWA 2005 also extended other VAWA Confidentiality and Immigrant Victim Safety Protections to eligible Tvisa applicants. 5

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Although it may be frustrating for members of the trafficking team to have no information on the exact location of a client or witness, the rules of nondisclosure of a shelter’s location must apply to the team as well. Arrangements to meet with a client can be made through the case manager, and correspondence can be routed through the shelter program’s post office box or main office address. In cases of insistence by law enforcement that it have the location of the survivor, the response should be to insist, as in domestic violence cases, that this information remain confidential. In time, this can become an accepted and expected practice. Example: As the first interview between Shiori’s client and law enforcement personnel concluded, the FBI agent directed the client to write down her address where she was currently living. When Shiori reminded the agent that she was staying in a confidential location that could not be divulged, the agent was dismissive and ordered the client to provide her address. Immediately, Shiori interrupted: As you know, she is residing in a domestic violence shelter. The shelter’s location is confidential, but you can always reach her through me—you have my cell phone number, my email, and my work phone number. Shiori tried levity to break the increasing tension, joking that she was sure the FBI really wouldn’t want her to commit a criminal act by divulging the address of a confidential shelter. The agent found Shiori’s attempt at wit undesirable to say the least. The agent’s eyes widened, and her voice was an explosion of incredulity and frustration: We can’t just have her on the loose, not knowing where she is! We need to know her exact location, for her own safety! She’s still a flight risk as well, and we can have her designated as a material witness and detained in custody if you would prefer! The tension in the room was increasing, and Shiori’s client looked frightened at the escalation of the discussion. Shiori asked her to have the prosecutor join the discussion and repeated that she was confident that they could find a workable solution that would satisfy the prosecutor’s need to account for her client’s whereabouts without compelling anyone to give up the location of the shelter. Subsequently, Shiori offered, and the prosecutor and agent accepted, a scheduled daily telephone call that they could have with 3

8 U.S.C. § 1229(e). 8 USC § 1229(e). If these laws are violated by a Department of Homeland Security employee, a complaint can and should be filed with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL). For more information on the process of filing a complaint, see instructions at http://www.dhs.gov/violence-against-women-act-vawa-confidentiality-provisions-dhs. 5 Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA 2005”), Pub. L. No. 109-162, Title VIII, Subtitle B, § 817 (2006). 4

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the agent at the agent’s convenience but continued to state flatly that the location of the shelter was confidential—even Shiori had no idea what the address was, and she had been working with the shelter for over six years. As they walked out of the federal building, Shiori patted her client on the arm and reassured her calmly that no one was angry with her, her case was not hurt or harmed in any way by this discussion, and that they had worked it out.

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Not all survivors will need to be housed in anonymous shelters for their safety. As noted above, some may be comfortably placed in transition shelters, religious homes, apartments, and homes of foster families. These options for housing survivors will not require such rigorous security procedures, but all individuals and institutions housing survivors should be aware of any recommended safety precautions. Some families or agencies may request that correspondence not be sent to their homes or shelters, but instead be sent to the case manager’s office or a post office box. Similarly, they may request that their address not appear on any paperwork. In this situation, the immigration attorney may list their agency’s address for correspondence, and the case manager’s address as the residence. § 2.5

Considerations When a Trafficking Survivor Is Identified

If you become aware of a human trafficking survivor through your own intake with the survivor, another agency referral, or a referral from a Good Samaritan, find out if there is a local antitrafficking coalition or task force with a service provider point person if you haven’t identified one already. That point person will request basic information about the survivor such as gender, age, language/culture and safety concerns. The point person will begin to activate the network of service providers, putting agencies and resource providers on notice of the identification of a new human trafficking case. At some point either the point person or you will need to report the trafficking incident to law enforcement. Please note that it is crucial that if the point person is not an attorney and whose communications are not protected by an absolute privilege such as the one protecting attorney/client communications, the point person should conduct only a minimal screening. The screening as to the facts of the trafficking should be very limited, since case managers are covered only by very limited confidentiality protections. More important than screening for facts of the trafficking is assessing the survivor’s needs and activation of the service providers’ network, as well as identifying qualified interpreters to assist the team. If the survivor has emergent needs, such as housing or health care needs, the network should address these first. Simultaneous with the assessment and activation of the services network, the point person should contact you as legal immigration advocates. You are able to more thoroughly screen the survivor regarding the circumstances of his trafficking. You can also inform survivors about any statutes of limitations and resources for other legal representation (e.g., civil or criminal representation), as well as advocate on behalf of your client. The point person may choose to contact law enforcement immediately upon identification of a potential human trafficking survivor, especially in cases where others are being held, where the survivor or others are in danger, and when minors are involved. Outside exigent circumstances, you may wish to wait to contact law enforcement and report the trafficking until after you have had an opportunity to meet with the survivor, establish some level of trust and explain the role of

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law enforcement and the process of reporting to your client. In these circumstances, you have an opportunity to de-mystify and de-stress the process of reporting the trafficking, which allows the survivor to feel more comfortable with notifying law enforcement.

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This latter process also permits a survivor to decide if and when to report their trafficking to law enforcement. In a “victim-centered approach” the survivor’s ability to control their life and to make decisions is crucial. Information is key to that decision, and you as their advocate can provide detailed information on what to expect from reporting the incident. Remember that you should not make promises you cannot keep or statements you may have to retract. For example, you cannot promise your client that they will not have to testify as a witness in a criminal trial. While many human trafficking prosecutions end in a plea, some cases do go to trial and do require the survivor to take the stand and testify. Thus, you can explain the general process, but avoid making any promises. PRACTICE POINTER: Separating survivors from traffickers. Traffickers exert significant emotional and psychological influence over survivors. Some survivors feel obligated to traffickers, especially in debt bondage situations. Traffickers frequently instill fear and terror in survivors by harming and/or threatening them, by threatening family members, by isolating and demeaning them, and by creating an “us” versus “them” scenario. Through this latter control mechanism, survivors are made to believe that the only people in their present world whom they can trust are the traffickers themselves. Often the traffickers are from the same community in their country of nationality, so the traffickers speak the same language, follow many of the same traditions, and know many of the same superstitions and taboos. Traffickers tell their workers that the outside world wants to harm the survivors or at the very least will not understand them. Thus, the survivors are made to both fear and depend on their traffickers. Because the emotional and psychological ties that bind the trafficker and survivors are very strong, 6 the team members who first encounter survivors of human trafficking should make sure that the survivors are separated from their traffickers. Keep in mind that it may be difficult to distinguish traffickers from survivors, especially when they appear to be in similar circumstances—perhaps appearing to do the same work, be from a similar background, speak the same language. The separation should occur as soon as the distinction can be determined. Observation of the dynamics can assist in not only identifying the traffickers, but also any workers/survivors who have been assigned responsibility by the traffickers for keeping the others in line and for reporting to the trafficker the conversations and actions of the other survivors. Example: The local police department received a tip about five women in a hotel involved in commercial sex work through on-line advertising. Several vice police officers 6

Note: The Stockholm Syndrome is not uncommon to situations of human trafficking. In her groundbreaking book, Loving to Survive: Sexual Terror, Men’s Violence, and Women’s Lives, Dr. Dee Graham, one of the earliest Stockholm Syndrome researchers, identified four characteristics that typify those suffering from the syndrome: 1) Perceived threat to survival, and belief that the captor is able to carry out the threat at any time; 2) A captor carries out a small act of kindness, and the captive perceives it as redemptive; 3) The captive is isolated for a significant amount of time, such that the victim can only see through the captor’s perspective; 4) Perceived impossibility of escape. See more at http://center4familydevelop.blogspot.com/2010/02/stockholm-syndrome-what-it-is.html.

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responded to the hotel with two case managers and interpreters. The initial interviews and assessment determined that the traffickers were not present at the hotel. The women were taken to a room where the case managers and interpreters began to talk with them. During the conversations, one of the case managers noticed that four of the five women frequently looked to the fifth woman before answering. The fifth woman would speak to the others in a very low voice or eye the others meaningfully. The case manager immediately stopped the process, contacted the officers and asked that the fifth woman be removed from the room. Unfortunately, it was too late. Even after the fifth woman was removed, the other four became less talkative and insisted they were working voluntarily. The case managers provided rights and resource information to the remaining four women, before leaving the premises. In the above example, the separation of the woman in charge did not occur before she was able to scare or warn the others not to talk. Sometimes it is difficult to identify the person in charge, especially if they are a worker themselves. In these cases, information from undercover operations may make the process easier. Otherwise, observation of group dynamics may be the only clue. Even though the person in charge may be a survivor themselves, they should be separated from the other survivors. They should be provided services as a survivor, but should be assisted separately, housed separately and not allowed to interact with other survivors in order to prevent their exercise of influence over the others. § 2.6

Reporting to Law Enforcement

If your client has not already been in contact with law enforcement, the decision to report a trafficking incident to law enforcement will ultimately be your client’s decision. Many clients are fearful or concerned about reporting the incident. Traffickers use the threat of detention by law enforcement as a mechanism to control the survivor. Some of your clients only want out of the trafficking situation, but do not want to get the trafficker in trouble, especially if the trafficker is a respected person in their community, the trafficker is family or a family friend, or your client is fearful of retaliation to themselves and/or family members. When you discuss reporting the trafficking incident to law enforcement with your client, explain that human trafficking in the United States is a crime, that the U.S. government including the police wants to prevent this from happening to others, and that the criminal process (investigation and prosecution) may be very different in the United States than in the survivor’s country of origin. Explain the process and differentiate between criminal, civil, and immigration processes, and that they may affect each other. Let your client know that they are being asked to help law enforcement. Do not make promises over which you have no control, for example that the case will settle and they will not have to testify or that they are only a victim/witness and will not be charged themselves. There will be survivors who will not want to report their trafficking, for a variety of reasons— fear, a sense of obligation, or a desire not to be involved in a legal proceeding, are just some of these reasons. There will also be cases that may pose significant risks to survivors if the trafficking is reported to law enforcement. You will want to discuss these risks with your client and respect their decision to report or not report their trafficking to law enforcement. Let them also know the effect of lapsed time in reporting—the ability for a client to pursue certain legal

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remedies or see certain outcomes may be affected by their willingness to report a case later (e.g., one year from now versus reporting one month from now).

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If your client chooses to report the incident, the next step is to contact local or federal law enforcement. At this point you will need to decide which law enforcement agency to contact and how to contact that agency. If your area has a local anti-trafficking task force, it may be that the task force has designated a point person who will triage the case and forward it to the appropriate law enforcement agency. If not, then you may decide to contact the law enforcement agency most familiar with human trafficking cases in your area. If you have an established relationship with the U.S. Attorney’s office or FBI or local police department human trafficking unit, then you may feel most comfortable reporting the case to that agency. You may want to report to civil law enforcement instead of criminal law enforcement, especially since certain agencies such as the Department of Labor and Equal Employment Opportunity Commission have the ability to certify certain immigration visas and take legal action against the traffickers as well. Unless the case has already been reported to a law enforcement agency and you want to continue to work with that agency, it might make sense to report cases consistently to the agency most familiar with human trafficking cases and/or with which you have a professional relationship. You also need to understand the protocols of reporting cases based on the jurisdiction of where the criminal activity may have occurred. If you are working with a client in Connecticut, for example, but the crime occurred in Houston, Texas, you may want to ask your local task force contacts or national networks (such as members of coalitions like the Freedom Network) 7 for law enforcement contacts in Houston. The method for reporting cases may vary. The agency may have a form it needs completed and sent by facsimile or email. If you have developed a working relationship with a law enforcement agency, you might be able to pick up the phone and call to report the incident. If possible, create a short letter with very minimal information to report the trafficking incident. See Appendix E: Initial Letter to Law Enforcement. If you do report the trafficking incident in written form (email, facsimile or letter), remember to keep the information minimal. Law enforcement is required to turn documents over to the attorney for the accused and many of these documents may also be turned over in civil discovery, so you will want to avoid unnecessary information. Because of this, currently, in San Francisco, preliminary law enforcement reports are made by telephone calls by the attorney to the officers or agents briefly summarizing the case. The attorney then sends an email and/or letter to the law enforcement individual memorializing and tracking that the report was made to set up an interview with the client if law enforcement is interested in the case. If law enforcement on the telephone declines to interview the case, the email and/or letter will contain further details tracking that a report was made. This is to help support evidence later in an immigration T visa

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Freedom Network USA (www.freedomnetworkusa.org) is a national alliance and the largest coalition of experts and advocates providing direct services to survivors of human trafficking in the United States. They influence federal and state policy through action and advocacy, develop policies, procedures and programs, work directly with survivors, increase awareness of human trafficking, and provide training and technical assistance.

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application and for records that a report to law enforcement was made without over-divulging in details § 2.7

Intake

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You will need to assess the practical needs of the client: what do they need and when do they need it? A natural follow-up question is whether these needs can be met by your agency or if alternative resources are needed. Many agencies have created a modified intake form that is specific to trafficking cases and clients to answer these preliminary questions. This intake form likely already includes a list of the eligibility criteria and whether or not a potential client meets these criteria. The intake form also probably incorporates an assessment of the potential client’s needs and matches those needs to the services provided by the agency. We would strongly suggest modifying the intake form for any potential trafficking client to minimize the amount of detailed narrative. In other words, make the intake form more of an eligibility and needs “checklist” rather than an in-depth narrative report. There are multiple reasons for this recommendation. The details that a trafficked person can provide about their trafficking situation may, and often do, change as time passes. They may not remember clearly at first, or they may start to recall more details more accurately later on. For many reasons, the story can change. Therefore, you do not want to have in-depth details in the very first intake, especially if the intake is conducted by a non-attorney who does not have a legally privileged relationship with the client and whose work product may be discoverable in a legal proceeding. This kind of potentially contradictory information can be used by traffickers in a legal proceeding to impeach the survivor’s credibility or can even be used by law enforcement to question your client’s truthfulness or cooperation. You also may not want to dig so deeply into a survivor’s experience, which is typically extremely traumatic, in your preliminary interview. You need some information that is critical to determining if the individual is a trafficked person and if they can be assisted by your agency, but there are ways of obtaining that information in a less traumatic fashion. A sample of a preliminary intake form is attached as Appendix F: Intake Forms. Any in-depth intake questions would then be asked and answered by an attorney in a follow-up interview using an intake form designed specifically for a longer and more detailed follow-up consultation with the client, thereby protecting the confidentiality of those details for the benefit of the client. See a sample legal intake form and sample immigration intake form at Appendix F: Intake Forms. For more in-depth interviews with a potential survivor, you may find it useful to have a trafficking questionnaire prepared to cover the key elements that will determine if the individual might qualify for trafficking-related legal relief. See Appendix G: Sample Trafficking Questionnaire. Please again note, however, that this type of in-depth information gathering should be conducted by an attorney in order to protect the confidentiality of the information collected. § 2.8

Working with Trauma Survivors

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witnessing human violence, such as war, rape, torture, and human trafficking. Because humaninduced trauma implies intentionality, many clinicians believe the trauma caused by these events is more profound. Human-induced trauma is divisive and can produce feelings of shame or blame, leaving the trauma survivors feeling isolated. In contrast, natural disasters are viewed as beyond the control of any human, and thus unify communities.

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Psychological trauma emanates from experiencing an act or event which is outside the norm and which is emotionally painful, distressful, or shocking. This experience creates a psychological wound that is difficult to heal. The impact on someone’s physiological, psychosocial and family systems can be devastating. Post-Traumatic Stress Disorder (PTSD) is one of the psychological diagnoses of trauma. The Diagnostic Manual published by the American Psychiatric Association states that PTSD may occur when “a person [has] experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of others; and the person’s response involved intense fear, helplessness or horror.” Survivors of traumatic events can experience various phases of psychological trauma, including an intrusive phase and a numbing or avoidance phase. The survivor may alternate between the phases or may experience first one and then the other phase in sequence. The length of time the survivor remains in one phase is individual and depends on whether the survivor has access to appropriate treatment. While in the various phases of psychological trauma, the survivor will exhibit some common symptoms. Recognizing these symptoms can assist you in providing better services to your client, as well as avoiding or minimizing re-traumatization of your client. Intrusive phase and symptoms While in the intrusive phase, the survivor will frequently and sometimes unexpectedly reexperience or re-live the traumatic event through thoughts, memories and flashbacks that are triggered by sights, smells or sounds connected with the traumatic event. A room with a particular type of lighting, or the smell of cologne or food, or the tenor of a voice may transport the survivor back into the most terrifying or horrific moments of their trafficking experience. They may experience nightmares in which they re-live the events and their feelings of terror and entrapment. They will be extremely sensitive and on guard and may easily startle. You may be working with your client and notice that they cry easily, or they are restless and cannot sit still, or they keep looking over their shoulder at the door, or they jump at little noises. These behaviors can range in degree from mild to severe. Example: Becky was brought to the United States through false promises. On arriving she was held hostage for several weeks in a container, and repeatedly raped by her trafficker and his friends. After several weeks she was told that she would need to work as a prostitute for her trafficker. He kept her earnings saying she owed him a debt for bringing her to the United States. Eventually, she was released and allowed to live in hotel rooms. Her trafficker moved her from place to place, and he threatened to harm her family if she tried to escape. When Becky came to interviews with her attorney, she would fidget in her chair and then get up and pace the room. She said she felt as if she were back in the container.

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Example: When the prosecutor brought out a box of items, Denali’s eyes began to widen. He told her, “Now, we just want you to identify some of these items that we took from your employer’s house.” As he pulled out the first item, Denali transformed into a wild woman. She jumped out of the chair, ran over to the knife, and began to talk hysterically about how her employer used the knife handle to beat her in the head. Sobbing, we all watched in shock while Denali began to mime the movements of beating on her head with the knife over and over again.

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In Denali’s example, it very likely that she is in this phase of psychological trauma and can be very fragile. Your client in this stage may have difficulty testifying, may avoid appointments that make them recount the details of the traumatic events, or may become vulnerable to depression, illness and in some cases thoughts of suicide. Being aware of these symptoms and knowing they are connected to your client’s psychological trauma will help you seek appropriate resources for your client. It will also help you adjust your work to try to minimize re-traumatizing your client. When your client is in this phase of trauma, it is important for you to set and maintain boundaries. If you are clear about your role as their legal counselor, you will be less tempted to try to also be their counselor and case manager. They may need you to listen because they trust you, and they may seek your help in a crisis with a need such as housing. In these situations, you can call on the members of your team whose role it is to address these needs. From experience, if you try to take on too many roles, you will burn out or resent your client. Furthermore, you may not be trained to assist your client with their other needs. Relying on the services of the team will benefit you and your client. Numbing or avoidance phase and symptoms The intrusive stage of psychological trauma is generally easier to recognize and understand than the numbing or avoidance phase. When the survivor is in the numbing or avoidance phase of trauma, they may appear distant, unemotional, and unfeeling. In this phase, the survivor’s mind is protecting itself from the vivid memories and overwhelming emotions caused by the traumatic event. To an outside observer, it may appear as if the survivor is speaking of a third person when they recount their trafficking experiences. They may not cry or show any emotion, as if they are completely detached. It may appear like they are lying or inventing the facts, because they show no emotion when describing even horrific torture. Example: When asked questions about her horrific experience being forced into prostitution, Ju-young would speak with a flat voice and show zero emotion. She would not make eye contact, and many of her answers were single-words without any explanation or detail. “How many men were you forced to have sex with in a day?” “About 35.” “That’s a lot. Was that difficult for you?” “Yes.” “Did you want to leave the situation?” “Yes.” It was as if she had swallowed all of her feelings of pain, anger, anxiety, and fear. You may find it easier or more frustrating to work with someone who appears so detached. Nonetheless, you must avoid doubting or disbelieving your client. If you register your doubt, they may shut down. Trafficking and trauma survivors carefully assess those to whom they relate their

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story, because they are often fearful the person will not believe them, will judge them, or will not be able to handle hearing the details. In the numbing or avoidance phase, your client may also avoid appointments that require them to talk about the traumatic event, avoid answering questions directly, talk around the question or change the subject, and relate events cryptically without any emotion.

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Example: Miguel often would sit back in his chair and cross his arms while speaking. He deflected any specific questions about harm he suffered while being forced to work long hours without breaks for his traffickers with short answers or with answers that had nothing to do with the question. He seemed distant and would focus on the opposite wall when talking. It took repeated questions, phrasing the questions in different ways, and explaining the purpose of the questions to get any specifics from Miguel. Outside of these interviews, he was friendly and engaging, but the interviews became a painful process for him and required much patience. As noted in the example above, you may need to repeatedly explain the process and purpose of the questions to your client. You may need to call your client’s attention to the fact that they are not answering your questions and changing the subject. It may be helpful to reassure your client that you know this subject is a difficult one to cover, and that you do believe them. By monitoring your own reactions to their manner, you can avoid sending subconscious messages or making judgments about the credibility of their statements. Memory and testimony Survivors of trauma can frequently experience changes in memory. Trauma can cause someone to forget a major event, as well as fail to retain the information in the first place. This is referred to as dissociative amnesia and can mean that survivors of trauma are unable to remember not only details of their trafficking experience but also such innocuous information as their children’s birth dates or names of cities where they resided. This memory loss or alteration has been proven and is well-documented. 8 Memory loss can affect the extent of information obtained in an interview. Major events may not be disclosed initially if at all. Your client may remember some detail in one interview and have no recollection in another interview. This memory loss can impact your client’s testimony in law enforcement interviews and court hearings. It will be important to explain these memory losses or failure to retain information so that the officials do not doubt the credibility of your client. Survivors may tend to relate information in a circular rather than linear fashion. Thus, events may seem jumbled to an interviewer expecting a chronological account. At least initially you may need to let your client relate events and details in the order they remember them, and then later place the events in chronological order. If you try to force your client to relate the story in chronological order, they may struggle even more with memory. Sometimes it is also helpful to

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See, Bessel A. van der Kolk, “Trauma and Memory,” In: B.A. van der Kolk, A. McFarlane, & L. Weisaeth, eds. (1996). Traumatic Stress: The effects of overwhelming experience on mind, body, and society. New York: Guilford.

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ask clients questions based on dates and events that frame their reference in life, such as what season it was, holidays, birthdays of children, etc. § 2.9

Client Interviewing

There are a number of strategies that can help minimize re-traumatizing your client during interviews. For example, you may want to meet with them in a less formal setting if the lighting or desks trigger flashbacks. Bright lights and loud noises can be stressful, so reducing these if possible may reduce the stress levels for your client.

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Before an interview, it is helpful to prepare as much as possible. If there are police reports or brief case management intake sheets, you can become familiar with what your client has already told others and thus avoid making them repeat all the details again. Your client’s case manager may be able to give you other information such as your client’s interests, their stressors, and their nickname or what name they prefer to be called. When first meeting with your client, it is helpful to take some time to explain your role and the purpose of your involvement. By providing them information about your office and the role of people on your team (e.g., interpreter, law student, legal representative, etc.), they have a context for the persons involved in their immigration case. Beginning an interview slowly by seeking background information such as date and place of birth and family information and then working slowly up to the more difficult or painful information is generally less stressful than immediately asking your client to talk about the trafficking. If you have more than one appointment scheduled, you can advise your client in advance that they will need to talk about the details of their trafficking at the next appointment. This will give them time to mentally prepare. You can also give them reasons for why you need to ask specific questions. Although it may not make the recounting easier, it will provide a context for the questions. Before an interview where you will be asking your client to recount details of their trafficking or where law enforcement may be asking detailed questions, you may want to contact your client’s counselor or case manager to let them know. The counselor or case manager can check in with your client before and after the interview to make sure they are processing the experience and not suffering from anxiety or flashbacks as a result of talking about their trafficking. Giving your client some control over the interview process by telling them you can take a break whenever they want, or you can end the interview and finish it another day if they want will reduce the feeling of powerlessness that they may connect to their time with their trafficker. You can also preface questions with reasons for asking the questions. Provide your client with as much information as possible, so they can make choices. Acknowledging that the information your client has to relate is difficult to talk about is important. Staying focused on the details your client is relating will confirm that what they are saying is important. If your client expresses that you might not believe them or thinks that you believe that they were stupid to find themselves in this situation, remind them that they have been brave in coming to talk with you about it.

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Sometimes having snacks and water available during the interview provides a welcome excuse to break. Food and drink will also bring someone out of their head and into their body. It can also provide a feeling of comfort. If possible, choose foods that would be familiar and comforting to your client.

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Minimize the number of people involved in the interview if possible. The more interviewers (including interpreters) the more the interview may feel overwhelming and intimidating to your client. If your client is female, it might make sense to have at least one female in the interview— whether legal representative or interpreter. If your client is transgender, you may want to ask your client if they have preferences in whom they would prefer to work with, especially if their case involves sexual assault. It may also help to know the gender and ages of the traffickers in order to avoid recreating a power dynamic similar to the traffickers. In some cases of young women, it may be difficult to speak of sexual exploitation even in front of a woman if the woman is older. Out of respect, the young girl may feel she cannot be explicit about her exploitation. Thus, the makeup of your interviewing team may be important. However, be careful about making assumptions. It might be possible to speak with your client’s case manager or counselor to determine what would be easier for your client. Otherwise, you might want to be observant, and adjust where possible. Example: Aaron shifted in the chair uncomfortably. To be honest with you, I would rather talk with a man about when I was raped. Aaron’s attorney, Jessica, was surprised. Although Aaron had recently transitioned from a female to a male, Jessica had assumed that he would be more comfortable discussing his rape with a woman because the rape occurred when he was still identified as a woman. Aaron continued, please don’t be offended. Not everyone feels the way I do, I just think that will be easier for me. Jessica quickly made plans with Aaron to meet with her male colleague to see if he would be more comfortable talking to him instead. In ending the interview, it may be helpful to ask resourcing questions, which encourage and allow the client to remember that they are strong, resilient, survivors. After you complete your interview, it is helpful to spend some time in small talk with your client. Giving them a chance to come back to the present and to feel safe again will help them minimize the effects of remembering painful events. It can be dangerous for your client to leave your office still re-living their trauma. They could have an accident, spiral into depression, or consider suicide. As much as possible you will want to give them time, so offering them water or a soda to drink or a magazine to read or just talking about their current interests and activities can help. Also avoid ending the interview abruptly, as your client may have unanswered questions and fears that may trigger massive anxiety, insomnia, and other problems.

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CHAPTER 3 T NONIMMIGRANT STATUS ELIGIBILITY This chapter includes: § 3.1 § 3.2 § 3.3 § 3.4 § 3.5

T Nonimmigrant Status Eligibility Requirements Overview ............................... 25 Element One: Victim of a Severe Form of Human Trafficking ........................... 27 Element Two: Physical Presence on Account of Trafficking .............................. 38 Element Three: Compliance with Any Reasonable Request for Assistance Made by Law Enforcement ................................................................ 41 Element Four: Extreme Hardship upon Removal ................................................ 50

§ 3.1

T Nonimmigrant Status Eligibility Requirements Overview

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The Trafficking Victims Protection Act (TVPA) created T nonimmigrant status, more commonly referred to as the “T visa,” allowing victims of severe forms of trafficking to live, receive services, and work legally in the United States for up to four years. 1 There are no filing deadlines for T nonimmigrant status, and USCIS will accept applications regardless of when the applicant was victimized. 2 Only 5,000 T primary trafficking survivor applicants can be granted T nonimmigrant status per fiscal year. 3 There are no limits on the visas available for qualifying derivative applications. To date, the annual cap has never been reached, and T visas remain extremely underutilized. 4 T nonimmigrants may apply for lawful permanent residency if they meet the eligibility requirements. 5 PRACTICE POINTER: The importance of the distinction between T nonimmigrant status and T nonimmigrant status. The terms “T visa” and “T nonimmigrant status” are often used interchangeably by attorneys and advocates. However, there is an important distinction between the two. Nonimmigrant status is a form of immigration status granted to your client when they are already in the United States or they arrive in the United States. It is usually indicated on an approval notice from U.S. Citizenship and Immigration Services (USCIS) and a Form I-94 and will include

1

TVPA, § 107(e)(1); 8 USC § 1101(a)(15)(T)(2000). Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,278 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 3 INA § 214(o)(2). 4 From Fiscal Year 2008 until Fiscal Year 2017, 5,727 T visas total were granted out of 50,000 available— meaning that only a mere 11.45% of T visas available were used. U.S. Citizenship and Immigration Services [hereinafter USCIS], Data Set: Form I-914 T Nonimmigrant Status: Fiscal Year 2018, 1st Quarter, http://www.uscis.gov/tools/reports-studies/immigration-forms-data/data-set-form-i-914application-t-nonimmigrant-status. 5 INA § 245(l); 8 USC § 1255(l). 2

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an expiration date. It allows your client temporarily to remain legally in the United States as a T nonimmigrant. A visa is a document placed in your client’s passport by a U.S. consular official. It permits your client to enter the United States and travel into and out of the United States. T nonimmigrants may obtain a multiple entry visa that can be used to repeatedly enter the United States. Therefore, the T visa allows your client to enter the United States. T nonimmigrant status allows your client to remain in the United States. Although these two terms are colloquially used interchangeably, there is an important distinction. For more information on travel issues and the T visa, see Chapter 10 of this manual. To be eligible for T nonimmigrant status, a non-citizen trafficking survivor must show that they meet four required elements: •

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•

•

•

Element One: They are or have been a victim of a severe form of trafficking (as defined in 22 USC § 7102 (section 103 of the TVPA); Element Two: They are physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry on account of trafficking, including physical presence based on the applicant having been allowed to enter the United States to participate in investigative or judicial processes associated with an act or a perpetrator of trafficking; 6 Element Three: They can demonstrate that they have met one of the following criteria: 1) complied with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of 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; or 2) they are under 18 years of age; or 3) they are unable to cooperate with a request due to physical or psychological trauma; and Element Four: They would suffer extreme hardship involving unusual and severe harm upon removal from the United States. 7

“Any Credible Evidence” Standard The T nonimmigrant status applicant must prove the above criteria by a preponderance of the evidence. USCIS will accept “any credible evidence” supporting the eligibility requirements. 8 The 2016 regulations state that “under the ‘any credible evidence’ standard, the absence of a law enforcement agency (LEA) certification will not adversely affect an applicant who can meet the evidentiary burden with the certification of other evidence of sufficient reliability and

6

The TVPA defines the United States as including “the fifty states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Mariana Islands, and the territories and possessions of the United States.” TVPA, § 103(12); 22 USC § 7102(12). 7 INA § 101(a)(15)(T); 8 USC § 1101(a)(15)(T); 8 CFR § 214.11(b). 8 8 CFR § 214.11(d)(2)(ii); 214.11(d)(5).

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relevance.” 9 The applicant may satisfy their burden by submitting: a LEA certification (Form I914 Supplement B); documentation of a grant of Continued Presence (CP); or any other evidence, including but not limited to, “trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and/or affidavits.” 10 Other evidence could include medical records, psychological evaluations, expert statements, academic articles, pay stubs, evidence of “debts” or debt ledgers, airplane tickets, text messages, emails, social media communication, photographs, contracts, other witness affidavits, letters and affidavits from case managers and social workers, arrest records, Internet records demonstrating that traffickers and their addresses exist—anything to show that your client’s case is credible and that the place and people described are real. PRACTICE POINTER: New T nonimmigrant status regulations published in December 2016. In December of 2016, USCIS issued revised regulations governing T nonimmigrant eligibility criteria, the application process, evidentiary standards, and benefits. These revised regulations at 8 CFR § 214.11 bring the regulations into sync with the statutes governing T nonimmigrant status and must be reviewed closely when filing an application for T nonimmigrant status. The December 2016 regulations are the ones to reference for current policy. § 3.2

Element One: Victim of a Severe Form of Human Trafficking

“Severe form of trafficking” as defined in the TVPA

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Element One requires that the applicant demonstrate that they are or have been a victim of a severe form of trafficking (as defined in 22 USC § 7102 (section 103 of the TVPA). The TVPA defines a “severe form of trafficking” as: • •

Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 11

Three elements must be present in adult and minor labor trafficking cases and adult sex trafficking cases to qualify for a “severe form of trafficking” in persons.” • • •

First, there is the process through which the labor is attained: was it done by recruiting, harboring, transporting, providing, or obtaining a person for labor? Second, what means was used to procure the labor: force, fraud, or coercion? Third, what was the end purpose in procuring the labor or service: involuntary servitude, peonage, debt bondage, slavery, or commercial sex act?

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Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,276 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 10 8 CFR § 214.11(f)(1). 11 TVPA, § 103(8)); 22 USC § 7102(9).

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Below are charts that have been created by legal scholars summarizing a “severe form of human trafficking” in adult or minor labor trafficking cases or adult sex trafficking cases versus minor sex trafficking cases. Three prongs of “a severe form of trafficking in persons” for an adult or minor labor trafficking case or an adult sex trafficking case 1. Process To… Recruit or Harbor or Transport or Provide or Obtain A Person



2. Means By… Force or Fraud or Coercion

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3. End For the purposes of… Involuntary servitude or Peonage or Debt bondage or Slavery or Commercial sex

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For cases involving sex trafficking of minors under the age of 18, force, fraud, or coercion is not required. A commercial sex act is any sex act on account of which anything of value (money, drugs, shelter, food, clothes, etc.) is given to or received by any person. 12 Note that labor trafficking involving minors still requires force, fraud, or coercion (see chart above). Two prongs of “a severe form of trafficking in persons” for sex trafficking of minors cases 1. Process & Means Inducing a minor



2. End For the purposes of a commercial sex act

Process: Recruitment, harboring, transportation, provision, or obtaining To show this first prong, you need only show the process through which the labor was attained: recruiting, harboring, transporting, providing, or obtaining a person for labor. For example, you can show this in several ways: • • •

The trafficker sent emails or text messages or called the trafficking survivor to come to the United States or made false promises of a job or situation to the trafficking survivor. The trafficker hired a smuggler to bring the trafficking survivor to the United States. The trafficker bought airplane tickets, arranged for false papers and coached the trafficking survivor on how to obtain a visa to enter the United States. Example: Ama’s trafficker recruited her by email to work for her as a domestic worker in the United States, promising her a great salary and help getting a green card. Ama’s trafficker paid for Ama’s visa application and airplane ticket and coached her on what to

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22 USC § 7102(4).

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say during her interview at the U.S. embassy. After Ama entered the United States, she was trafficked and not paid anything for her work. To explain the process by which Ama was trafficked, the legal representative should focus on her trafficker’s recruitment by email, role in obtaining documents, paying for Ama’s transportation to the United States, and harboring Ama at her house. There is no requirement to cross an international border in any of these definitions. A trafficker can recruit or obtain someone who is already in the United States for reasons unrelated to the trafficking. Please note that trafficking and smuggling are distinct crimes that may or may not overlap. Smuggling is the process whereby an individual contracts with a transporter (sometimes called a “coyote” or “snakehead”) to be brought into the United States illegally. In addition to being subjected to unsafe conditions on the smuggling journeys, smuggled individuals may be subjected to physical and sexual violence. Sometimes traffickers arrange for the smuggling of individuals, but other times, people facilitate their own smuggling and are subsequently trafficked in the United States.

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Example: Liliana came to the United States to escape her abusive boyfriend. She crossed into the United States through the border without inspection. She then began working on a farm. The farm’s owner eventually began threatening to deport her if she tried to quit the job and leave the situation. The legal representative should focus on the farm owner’s recruitment, harboring, and obtaining of Liliana as the process in which she was trafficked after entering the United States. Means: Force, fraud, or coercion The means is the second prong of a trafficking case. Means can be facilitated through force, fraud or coercion. Force is physical restraint, and fraud is when the traffickers use deception and alter the agreed-upon terms. Again, Congress explicitly passed the TVPA to encapsulate how nonviolent and non-physical forms of coercion can still facilitate unfree labor. Although some trafficking cases do involve the use of physical violence, many people are trafficked without the use of any physical force, violence, or restraint. For that reason, “coercion” remains one of the most crucial terms in the TVPA because most trafficking cases turn on whether the person can prove coercion. Coercion is defined in other parts of the statute.

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“Coercion” in 22 U.S.C. § 7102(2) (A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of the legal process.

  

Serious Harm “… any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.” 21 USC § 1589(c); 18 USC § 1591(e) Abuse of Legal Process “use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed … to exert pressure … to cause that person to take some action or refrain from taking some action.” 21 USC § 1589(c); 18 USC § 1591(e)

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The House Conference Report on the TVPA noted that the term “serious harm,” is intended to cover physical violence and legal coercion, as well as more subtle methods of coercion, “such as where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence.” Specifically, threats of deportation or threats to send one back to their home country have been found to be threats that constitute “abuse or threatened abuse of law or legal process” and/or a “serious threat.” 13 The TVPA does not limit the range of situations that could constitute nonphysical coercion. Rather, the TVPA’s coercion standard depends on the particular circumstances of the trafficking survivor and recognizes that coercion can operate situationally. 14 TVPRA 2008 states that reasonableness should be judged against the survivor’s background, experiences, and all the surrounding circumstances. 15 The House Conference Report examples also pay special attention to the individual circumstances, including age, disability, legal status, and the economic and social pressures of each trafficked person. Furthermore, the House Conference Report cites how children are trafficked into forced labor by means of “nonviolent and psychological coercion,” including “isolation, denial of sleep, and other punishments.” 16 These examples describe broader conduct, rather than specific threats, where individuals are coerced into submission by stripping personal dignity and sense of normalcy and by fear of negative consequences other than bodily harm. Sometimes survivors may have been previously trafficked or exploited in their country of 13

H.R. Rep. No. 106-939, at 101 (2000); see also, DOJ, Civil Rights Division, Criminal Section: Involuntary Servitude, Forced Labor, and Sex Trafficking Statutes Enforced, http://www.justice.gov/crt/about/crm/1581fin.php (“Section 1584 also prohibits compelling a person to work against his/her will by creating a ‘climate of fear’ through the use of force, the threat of force, or the threat of legal coercion [i.e., If you don’t work, I’ll call the immigration officials.] which is sufficient to compel service against a person’s will”). 14 Kathleen Kim, The Coercion of Trafficked Workers, 96 Iowa L.R. 409, 452-453 (2011). 15 Id. at 457. 16 H.R. Rep. No. 106-939, at 101 (2000); see also Kathleen Kim, Psychological Coercion in the context of Modern-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking, 38 U. of Toledo L. Rev. 3, 966-967 (2007).

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origin. This may make the survivor more vulnerable to future forms of trafficking and exploitation, or “normalize” these conditions for the survivor. It is important to explain these factors so that the standard of coercion can be considered from this survivor’s perspective and experience. Example: Madhuri was sent to work for a family as a maid at the age of ten in India. She was sent there so she could have a place to eat and sleep, and so she could send some money home to her parents and five siblings. Her employer was mean and often beat Madhuri when she didn’t prepare the tea the way her employer liked it, didn’t clean thoroughly enough, or couldn’t get the stains out of her employer’s shirt. Her own parents also yelled at her when Madhuri complained. As Madhuri got older, she was trafficked in the United States for domestic work for another employer and did not leave the situation for over a year. Madhuri’s attorney should include information about her experiences in India as an exploited domestic servant as a young child, discuss how the past trauma she suffered shaped her idea of what constituted serious harm, and how her parents’ rebuffing of her past requests for help shaped her mindset of how futile it was to complain about her employer’s abusive behavior. The following are examples of non-violent and non-physical ways of inflicting trauma on others that have been used against trafficking survivors that you can use as guidelines for interviewing questions.

• • • • • • • • • • • •

Conditions that destroy the survivor’s sense of autonomy Use of culture and linguistic shock and shame Various conditions of restriction of movement, including denial of privacy and cramped living or working spaces Economic deprivation creating a dependence on the trafficker for food and shelter, with survivors unable to find other viable options, including withholding money and adding debts Overcrowded and confined spaces, solitary confinement, and sensory deprivation Feelings of helplessness, shame, humiliation, shock, denial, or disbelief Physical impairment or exhaustion from working unreasonable hours, heavy work, or disturbance of sleep Deprivation of social contacts, isolation, and loss of contact with the outside world Deprivation of physiological needs such as restriction of nutritious food, water, sleep, toilet, facilities, bathing, motor activities, and medical care Deprivation of basic necessities, such as adequate and nutritious food, water, clothing, shelter, toiletries, privacy, exercise, and sleep Threats of being reported to the police, prosecuted, sued, detained, or deported Exposure to ambiguous situations or contradictory messages Lack of medical care Being forced to betray or harm others Psychological trauma from daily mental abuse and torture

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• • •

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• • •

Being forced to witness atrocities and violence performed on others 17 Stripping survivors of their basic sense of being, dignity, and identity, including forcibly changing survivors’ names Compulsory violation of taboos or religious beliefs

End: Commercial sex act, slavery, involuntary servitude, peonage, and debt bondage After understanding the process and means, it is important to describe the third prong in proving a trafficking case, which is the end purpose of procuring the labor or service: involuntary servitude, peonage, debt bondage, slavery, or commercial sex act. Below is a description of these various qualifying crimes. Commercial sex act. A commercial sex act is any sex act on account of which anything of value (money, drugs, shelter, food, clothes, etc.) is given to or received by any person. 18 Remember that minors only need to show that they were induced—persuaded or put into the situation—into a commercial sex act and do not need to demonstrate force, fraud, or coercion.

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Example: Starting at age 16, Anita’s girlfriend began selling her to men for sex in exchange for $50 turning a trick. Her girlfriend would sometimes give her drugs to help ease her into the work. Over time, Anita turned 18 and became addicted to drugs. Over the last two years her girlfriend or the customers would sometimes “pay” Anita with meth in exchange to turn a trick. When Anita didn’t want to do meth or turn a trick, her girlfriend threatened to out Anita as transgender to the world, strangled her a few times, and threatened to deport her. For her T nonimmigrant status application, Anita’s attorney can argue that Anita was first considered a trafficking survivor as a minor who was induced by her girlfriend into having sex with customers in exchange for money. Anita’s attorney can also argue that after Anita turned 18, she was physically forced and coerced through drugs and threats of serious harm based on her gender identity and the possibility of deportation to continue to provide commercial sex acts in exchange for money and drugs. Example: When Rani was three, her mother passed away. Her father sexually abused her and then abandoned her to his younger sister to care for her when Rani was six. By 17, Rani was not getting along with her aunt and felt less loved and cared for in comparison to her cousins. After constantly being berated for being a drain on finances, she decided to leave home to work. She began engaging in sex work in an area that tourists frequented. When she was 19, she was given the opportunity to obtain a tourist visa to go to the United States. She was told she would be able to make a lot of money there. She calculated based on their promises from the recruitment fees that she could go to the United States and engage in sex work there for just about three months and still earn quite a bit of cash to live off of back home in Thailand. When she arrived in the United States, everything was different than promised. She was threatened with deportation and having her passport taken from her if she did not do more sex work at the massage parlor for another two months. In this case, although Rani had previously voluntarily engaged in 17 18

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Id. at 187–188. 22 USC § 7102(4).

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sex work, due to the changed terms and circumstances, her attorney should approach this T nonimmigrant status case with the legal argument that Rani was coerced into providing commercial sex acts. Slavery. The Thirteenth Amendment and Chapter 77 of the U.S. Code criminalizes slavery and its facilitation. The U.S. Supreme Court has also otherwise defined slavery to be “a state of compulsory service to another.” 19 The international legal definition of slavery may also be useful: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” 20 The most traditional form of slavery is chattel slavery, where people are treated under a legal or economic system as personal property. However, given that nearly every country in the world has rendered chattel slavery illegal and that such practices are rare nowadays, 21 it is likely that most T nonimmigrant status applications will not be arguing slavery as an end. Rather, the focus will likely be on slave-like practices such as involuntary servitude, peonage, and debt bondage.

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Involuntary servitude. The definition of coercion is itself incorporated into the TVPA’s definition of involuntary servitude as “a condition of servitude induced by means of any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or the abuse or threatened abuse of the legal process.” 22 In determining involuntary servitude, it makes no difference that the person may have initially agreed, voluntarily, to render the service or perform the work. If a person willingly begins work but later expresses the desire to stop rendering the service or performing the work and is then forced to remain and perform work against their will, that individual’s service becomes involuntary. Whether or not an individual is paid is not singularly determinative to whether that person has been held in involuntary servitude. Example: Jiachiang left Fujian province in China with a smuggler, known as a “snakehead,” with the understanding that he would have work in New York City. He began to work at a Chinese restaurant in New York City, where he slept in the back. The owners demanded long hours and only paid him $100 a week. When he said he wanted to quit, they threatened to hurt his family members back in China if he left and throw him in jail if he said anything to anyone. Although he paid a fee to be smuggled into the United States, began his work voluntarily, and was even paid $100 a week, he became subject to involuntary servitude once he was coerced into staying at the job because of the threats made to him and his family. Example: Noor met her husband Omar in Jordan as he was there visiting relatives. Over three months, they fell in love, and he promised to bring her to the United States to be with him. Upon arriving to the United States on a tourist visa, she realized that he was 19

United States v. Booker, 655 F.2d 562, 566 (1981) (citing United States v. Ingalls, 73 F.Supp.76, 79 (1947), which cites the U.S. Supreme Court decision in United States v. Hodges, 203 U.S. 1, 16 (1905)). However, note that this definition is closer to the definition of involuntary servitude in 18 USC § 1584. 20 Slavery Convention, art. 1. 21 Office of the U.N. High Commissioner on Human Rights, David Weissbrodt & Anti-Slavery International, Abolishing Slavery and its Contemporary Forms, 7, U.N. Doc. HR/PUB/02/4 (2002), http://www.ohchr.org/Documents/Publications/slaveryen.pdf. 22 22 USC § 7102(6).

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already married to another woman. She was told to sleep in the garage and asked to cook and clean for Omar, his wife, and their two young children. Omar would also take Noor to his law office and make her clean the office and do other work around the office, such as shredding paper and moving boxes. At night, he would rape her, telling her that she had to submit to him as her husband. Omar’s first wife would also yell at Noor and throw things at her. When Noor tried to escape, she had no idea where in the suburbs she was, and only managed to flee four blocks before Omar caught her. Her attempts to leave notes and ask for help from the neighbors also didn’t catch anyone’s attention, as they ignored her and signaled that they didn’t understand the language she was speaking in. Noor’s legal representative should argue that not only was Noor subject to domestic violence by Omar, but she was also subject to force, fraud, and coercion into involuntary servitude. Peonage and debt bondage. U.S. federal law criminalizes as a form of trafficking in persons all forms of bonded labor through debt bondage and peonage by force, threat of force, or threat of legal coercion to compel a person to work against her will. 23 Peonage is “a status or condition of involuntary servitude based upon real or alleged indebtedness. 24 The amount of the debt or the means is largely irrelevant. 25

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Example: Lili has been told that because her father has died, the debt he owed to the local loan shark has passed to her. Lili never consented to owing this debt. The local loan shark demanded that she start coming over to his house to cook and clean. Lili’s situation, regardless of whether or not she actually owed money to the loan shark, would be recognized as peonage and she may be eligible to apply for T nonimmigrant status. Federal statute defines “debt bondage” to mean “the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.” 26 Similar to peonage, debt bondage is a circumstance where the debt seemingly can never be paid off. Example: Upon arrival to Miami, Sra. Garcia told Hana that she now owed her $6,000 instead of the agreed-upon $5,000 for the airplane ticket and visa fee because of alleged taxes. Over the next three months, Sra. Garcia steadily increased the amount of money Hana owed for rent, food, and clothing. Despite all the hours Hana spent caretaking for Sra. Garcia around the clock, Hana’s debt increased to an amount she could never pay off. Hana’s situation is recognized as debt bondage because regardless of the amount of work she does, she is unable to pay off any of the ever-growing debt, and she may be eligible for T nonimmigrant status.

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18 USC § 1581. 8 CFR § 214.11(a); see also Bailey v. Alabama, 219 U.S. 219, 242 (1911) (quoting Clyatt v. United States, 197 U.S. 207, 215 (1905)). 25 Pierce v. United States, 146 F.2d 84, 86 (5th Cir. 1944). 26 22 USC § 7102(5). 24

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No consent to being trafficked The story for most immigrant trafficking survivors begins with some kind of consent to enter into a situation that subsequently devolves into a trafficking situation. However, the TVPA’s practical effect is that a trafficked individual’s initial consent is irrelevant to whether or not someone has been “trafficked” due to the trafficker’s coercive or deceptive conduct and the subsequent exploitation. 27 Anecdotally, many service providers and law enforcement have failed to identify trafficking survivors because there is a perception that their initial consent renders them guilty and ineligible to be considered a trafficking survivor.

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Example: Hye Young calculated that if she agreed to do the sex work for eight months, she would make enough money to pay off the transportation fee and her credit card debts. However, her trafficker confiscated her passport and told her that she also now owed him money for things that he had said before were going to be free—for every condom used, the rent for the room that she was using with the customers, food, and clothing. He threatened that if she tried to leave, she would get arrested and deported. Even though Hye Young initially consented to do the sex work, she was trafficked and unable to leave the situation at will when her passport was taken and she was coerced with threats of arrest and deportation if she did not pay off her never-ending debt to her trafficker. Hye Young’s legal representative should work with her to demonstrate that she is a victim of a severe form of trafficking by pinpointing the fraudulent and coercive actions the trafficker took to turn her initial consent to do sex work into involuntary servitude, peonage, and debt bondage. Example: Zoila was recruited by her friend Jenny to come to the United States to come work for her as a nanny and take care of Jenny’s two children. Zoila worked with Jenny to arrange for a tourist visa and represent to the U.S. Department of State that she was coming to the United States just for vacation. Zoila and Jenny also signed a contract together. Two months after Zoila arrived, Jenny began to treat her terribly, made her sleep in the spare room’s closet, only paid her for the first month as promised, and made her work around the clock. Jenny also would begin every morning talking about how ICE was going to round everyone up who had ever lied to the government. Fortunately, Jenny said, she had two U.S. citizen children, so she would be safe. Although Zoila and Jenny had signed a contract, and Zoila even participated in providing material misrepresentations to the U.S. Department of State, Zoila never consented to being subject to fraud and coercion into involuntary servitude. Example: Rachel’s boyfriend Joe asked her to start turning tricks for him. Rachel, 19 years old, started engaging in sex work. Eventually Rachel and Joe broke up. Rachel started dating Roger, who also asked her to sleep with some of his friends for money. When Rachel refused, Roger threatened to out her on social media as a whore. Rachel then did as Roger asked and slept with his friends, while he collected money from all of them. Although Rachel willingly engaged in sex work in the past on her own and also willingly entered into this relationship with Roger, her legal representative should argue 27

Kathleen Kim, Psychological Coercion in the context of Modern-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking, 38 U. of Toledo L. Rev. 3, 963 (2007).

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that she was subject to coercion from serious threats related to her reputational harm and other factors into sex trafficking. Specifically for minors, this concept of consent usually hinges on the fact that they have limited ability to consent legally to labor agreements, especially for sex acts. Different states have different ages of consent, usually ranging from 16 to 18. However, for all types of trafficking, like adults, minors cannot consent to being trafficked. Finding the shift between voluntariness to subsequent coercion is difficult, especially in cases where the coercion is nonphysical. However, this shift is important to identify and will be critical to differentiate in order to put together a successful T nonimmigrant status application. 28

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Example: Karina, 16 years old, says that she started having sex with her mother’s 34year old boyfriend in exchange for money, a cell phone, and some jewelry. She tells you as her attorney that she was entirely willing to do this on her own. You find out later that her mother has also told Karina that she needs to pay her $6000 plus interest for paying for the trip to come to the United States. Although Karina is currently indicating that she has willingly engaged in a commercial sex act in exchanging sex for money and items, she may still qualify as a minor trafficked for commercial sex because she needs to be merely induced into the commercial sex act. Her legal representative should also work with her to explore whether or not she may be subject to peonage or debt bondage related to the debt she owes in coming to the United States, or whether or not her mother also has played a role in trafficking her daughter for sex and/or labor in other ways. Example: Seventeen-year old Mario wanted to be able to support his younger siblings and pay for books and his uniform to attend school. He had been approached several times by other kids at school about learning to be a guide to help people cross from Mexico into the United States. He finally decided to give it a try. His first experience went terribly, and he was terrified. He didn’t successfully help anyone cross and was caught by border patrol. He decided he didn’t want to do the work anymore, but the cartels kept showing up at his door, demanding that now that he had seen the route once, he had to work for them and learn how to help more people cross. Mario told them he didn’t want to do the work anymore. When they threatened to force his younger brother to do the work instead, Mario reluctantly began working for the cartels cross people into the United States as a guide again. His legal representative should argue that Mario is a victim of a severe form of trafficking because although Mario had willingly tried to be a guide the first time, after he had tried to quit the work, the cartel continually harassed and threatened him and his brother, and coerced him into involuntary servitude into working for them again. “Attempted” trafficking and conspiracy to commit trafficking There are certain cases where an individual need not have actually performed labor, services, or a commercial sex act to meet the definition of a “victim of a severe form of trafficking in

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Kathleen Kim, The Coercion of Trafficked Workers, 96 Iowa L.R. 409, 415 (2011).

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persons.” 29 This would include “attempted trafficking” and trafficking conspiracy situations 30 where the survivor was recruited and came to the United States or a port of entry through force, fraud or coercion for the purpose of subjecting them to trafficking, but the survivor was rescued or escaped before being trafficked to performing labor, services, or commercial sex act. The law requires demonstration of intent to traffic by defining a “severe form of trafficking persons” as the “recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” 31 The December 2016 T nonimmigrant status regulations specifically point out that “the concept of ‘for the purpose of’ speaks to the process of attaining an object or end or the intention to attain something, but not the end result. The inclusion of the ‘‘for the purpose of’’ language may reasonably be construed as encompassing situations where labor or commercial sex act has not occurred.” 32 Examples of evidence that may be submitted to demonstrate the trafficker’s intent to subject someone to trafficking include, but are not limited to: correspondence with the trafficker, evidence from a law enforcement agency, trial transcripts, court documents, police reports, news articles, and affidavits. 33

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Example: Tatiana met a man online named Russell who said that he was in love with her, and that if she came to the United States on a tourist visa, he would marry her and they could be together. Upon arrival in the United States, she found him to be controlling and different from his online personality. Two months into the relationship, she began to suspect that he had no intention of marrying her and found out that Russell had plans to coerce her to work as a waitress at his strip club. Despite her fears from Russell’s threats, she was able to escape Russell and seek help from a domestic violence shelter. She found out four months later that Russell had been arrested, and that four other women he recruited from Russian and Albania had been coerced to work as waitresses at the strip club and also provide sexual services for Russell and clientele of the strip club. Screening questions As described above, trafficking can take many different forms. Legal workers should be vigilant in screening their immigrant clients for potential trafficking. In addition to vetting for physical, psychological, sexual abuse, and physical forms of inducing force, fraud, or coercion, legal workers should also ask more general questions about clients’ employment and living situations.

29

8 CFR § 214.11(f)(1). The 2016 regulations specifically point out that Congress amended the federal criminal code to punish attempts to violate any trafficking-related crimes in the “same manner as a complete act of trafficking would be punished…. thus specifically allow[ing] for attempts and conspiracy to commit trafficking to be prosecuted.” Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,271 (Dec. 19, 2016) (citing TVPA section 112; 18 USC § 1594). 31 22 USC § 7102(9)(B) (emphasis added). 32 Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,271 (Dec. 19, 2016). 33 8 CFR § 214.11(f)(1). 30

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§ 3.3

Element Two: Physical Presence on Account of Trafficking

Element Two requires that the applicant demonstrate that they are physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry on account of trafficking, including physical presence based on the applicant having been allowed to enter the United States to participate in investigative or judicial processes associated with an act or a perpetrator of trafficking. 34 Has the T visa applicant left the United States since the last act of trafficking?

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As discussed earlier, crossing borders is not a requirement to demonstrate that someone is a victim of a severe form of human trafficking. Some trafficking survivors may smuggle themselves into the United States and then be trafficked; other trafficking survivors may enter the United States legally and later be trafficked. The requirement that the applicant be physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry on account of trafficking, as narrowly defined by the regulations, is to assess whether or not the applicant has physically left the United States since the last act of trafficking or has some jurisdictional tie of the trafficking crime to the United States. Thus, while discussing how your client’s recruitment or entry into the United States was linked to the trafficker’s actions may help prove that your client is a victim of a severe form of human trafficking, it is not required to fulfill this element of physical presence in the United States on account of trafficking. However, once the T applicant physically leaves the United States after the last incident of trafficking, this requirement cannot be met unless the applicant can demonstrates: 1) reentry based on the continued victimization of the person, 35 2) the person being subjected to a new incident of trafficking upon return to a port of entry or within the United States, 36 or 3) law enforcement bringing the person back into the United States to participate in investigative or judicial processes 37 associated with an act or perpetrator of trafficking. 38 A person who was allowed initial entry or reentry into the United States for participation in investigative or judicial

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INA § 101(a)(15)(T)(i)(II); 8 USC § 1101(a)(15)(T)(i)(II); 8 CFR § 214.11(g). 8 CFR § 214.11(g)(2)(i). 36 8 CFR § 214.11(g)(2)(ii). 37 DHS does not interpret the phrase “judicial processes” as referring only to criminal investigations or prosecutions, nor will DHS require LEA “sponsorship” to enter the United States, such as Significant Public Benefit Parole (although this parole may be the most common form of entry into the United States for these types of applicants). For example, if DHS were to parole a victim to pursue civil remedies associated with their trafficking, the applicant may potentially meet this physical presence requirement. Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,274 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 38 8 CFR § 214.11(g)(2)(iii) and 8 CFR § 214.11(g)(3). The regulations require the applicant to demonstrate entry through a lawful means and of how they entered to participate in an investigative or judicial process associated with their trafficking. Evidence could include a Form I–914 Supplement B, other evidence from a law enforcement agency to describe the applicant’s participation, or any other credible evidence, such as a personal statement, or other supporting documentation. Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,274 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 35

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processes is deemed physically present in the United States on account of trafficking, regardless of where the trafficking occurred. 39 USCIS will consider all evidence presented to determine whether the applicant has met the physical presence requirement. This may include, for example, the applicant’s responses to questions on the T nonimmigrant status application, a certification from a law enforcement agency (e.g. Form I-914 or Form I-918 Supplement B), documentation of a grant of Continued Presence (CP), documentation of entry into the United States such as parole under INA § 212(d)(5), or any other credible evidence, including the applicant’s personal statement. 40 Example: Josie’s parents brought her to the United States from the Philippines when she was three years old, and she has never left the United States since. Growing up, she witnessed her father beating up her mother, and her mother in turn would drink heavily. Josie began to run away from home a lot. She met a boy named Danny who seemed to like her. Danny began to pressure her to have sex with other men to earn money for him to use. She turned a few tricks for him but was then arrested. Even though Josie was not trafficked to the United States, she can still qualify for T nonimmigrant status because she remains physically present in the United States on account of her trafficking, and because she has not left the United States since the last incident of her trafficking.

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Example: Jane’s aunt told her that if she came to the United States, she could stay indefinitely, live with her, and go to school. All she had to do was help her aunt with her aunt’s baby for three to four hours a day. Jane’s aunt told her to lie and tell the U.S. embassy that she was just coming to visit her aunt and planned to stay for two weeks during her summer vacation. The U.S. embassy granted Jane her B-2 tourist visa, and Jane flew to the United States on January 1, 2017. Once she got to the United States, Jane was trafficked by her aunt into domestic servitude. Jane was finally able to escape on May 4, 2017 and has not left the United States since then. Jane can qualify for T nonimmigrant status because her aunt, who is also her trafficker, arranged and obtained for her to enter the United States, trafficked her in the United States, and Jane has not left the United States since she escaped her trafficking situation. Example: Neema calls you crying, saying that her mother is sick and dying. She insists on returning to India regardless of your advice that if she leaves the United States, she will abandon her chance to file her T nonimmigrant status application. Law enforcement refuses to provide a U visa certification for her case, so that visa isn’t an option for her. Neema leaves for India and calls you six months later. She tells you that her trafficker found her in her home village in India and forced her to come back to the United States to work for him again. She tells you that she managed to escape and wants to know if she can apply for T nonimmigrant status again. Now that Neema has re-entered the United States on account of being trafficked, she may be able to apply for a T. Example: Sofia is sex trafficked with many other girls from her hometown while she is in Florida and becomes pregnant by one of her traffickers. She flees back to her hometown in Colombia and is later contacted by the FBI and U.S. Attorney’s Office, who 39 40

8 CFR § 214.11(g)(4). 8 CFR § 214.11(g)(4).

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is investigating and prosecuting her traffickers. Some of the other trafficked girls had given the FBI Lupe’s name and contact information, and convinced Lupe to come back to the United States with her baby to testify against their traffickers. Civil attorneys also offer to represent her pro bono to bring a civil lawsuit on the basis of violation of Florida state and U.S. federal law. Lupe agrees to return, and the FBI arrange to parole her back into the United States. Upon re-entry with this lawful parole to participate in the criminal investigation and civil case, she is now physically present again on account of trafficking. Establishing physical presence for cases of “attempted trafficking”

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As discussed earlier, there are certain cases where an individual need not have actually performed labor, services, or a commercial sex act to meet the definition of a “victim of a severe form of trafficking in persons.” 41 This would include “attempted trafficking” situations and trafficking conspiracy situations. There are certain cases where to demonstrate that the survivor meets this physical presence requirement, you must argue that the survivor arrived to the United States border on account of their trafficking. You will have to highlight that the statutory definition of “physically present on account of trafficking” includes those who are “physically present in the United States … or at a port of entry thereto on account of such trafficking” and were “subject[ed] to a severe form of trafficking in persons at some point in the past and whose continuing presence in the United States is directly related to the original trafficking in persons.” 42 Again, this means that people who were brought to the United States border or other port of entry (such as an airport or harbor) to be trafficked or are in the midst of their trafficking situation can still apply for T nonimmigrant status. If this is the case, you should emphasize all indicators that your client was already being trafficked or that the traffickers intended to subject your client to commercial sex and/or some kind of unfree labor. 43 Example: Hana was sold by her father to a coyote, a paid guide who brings people to the United States. The coyote raped her and told her that she had to go to Eastern Washington state with him, where she would have to be his wife and work at a farm picking apples to earn him back some of the money he spent on her. At the U.S-Mexico border, CBP pulls her aside to question her. The coyote runs off, and she is brought into the Office of Refugee Resettlement’s (ORR) custody. Hana may still qualify for T nonimmigrant status on account of attempted trafficking based on the argument that her trafficker brought her to the United States port of entry with the plan to force her into involuntary servitude to pick apples and maybe to provide domestic services for him in the household as his wife. Example: Maria, a native of the Philippines, worked in Saudi Arabia as a domestic servant, where she was forced to work around the clock and was prohibited from returning to the Philippines, even though she begged for permission to leave. Maria’s employers demanded that she travel with them to continue her work as caretaker for their children while they were on vacation in California for a few months. She knew the work would be even worse in California where she would do the work of three servants. At the 41

8 CFR § 214.11(f)(1). 8 CFR § 214.11(g)(1) (emphasis added). 43 8 CFR § 214.11(f)(1). 42

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airport in Los Angeles, the wife pinched Maria badly when Maria used the restroom for too long. Maria could not take it anymore and begged the airport officials for help. You would argue that Maria was at the port of entry in Los Angeles on account of her employers attempting to continue their trafficking of her into the United States. Establishing physical presence when trafficking occurs in another country The 2016 regulations outline limited types of cases when trafficking occurred outside the United States that USCIS deems could lead to eligibility for T nonimmigrant status. One example is when criminal activities occur outside the United States, but U.S. statutes provide for extraterritorial jurisdiction generally having some nexus between the criminal activity and the United States’ interests, and the activity involved would meet the federal definition of “severe forms of trafficking in persons.” 44 For example, under 18 USC § 2423(c), the United States has jurisdiction to investigate and prosecute sex tourism cases involving U.S. citizens or nationals who engage in illicit commercial sexual conduct with minors outside of the United States. If the survivor is allowed valid entry into the United States in order to participate in investigative or judicial processes associated with trafficking or can establish that they have been brought to a U.S. port of entry to be further trafficked in the United States, the survivor may be able to establish physical presence on account of trafficking.

§ 3.4

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Example: Johnny tells you that after his mother died when he was 12 years old, his aunt decided that she only wanted to support him until he turned 15. Homeless, he eventually finds work and lives in a small back room at an Internet café, where he met a 40-year old woman called Auntie May who tells him that she is from the United States. She is nice to him and starts buying him small gifts and food, eventually suggesting to him that she would like him to be her “special friend.” Johnny, hungry and without any support, begins having sex with Auntie May in exchange for food, a bed, a cell phone, and other basic necessities. She tells him that she wants to bring him back to her home in the United States where he can continue to have a romantic relationship with her while attending school. She helps pay for and obtain a passport, visa, and airplane ticket for him. They board the airplane together, but he does not see where she sits, as she sits apart from him. Upon arriving to San Francisco International Airport, Auntie May finally gives Johnny his passport and instructs him to get into another line from her to have his passport inspected. He is detained by the U.S. Department of Homeland Security and taken into ORR custody after it is determined that he is an unaccompanied child; in the meantime, Auntie May disappears, and Johnny realizes that Auntie May was likely not her real name. Element Three: Compliance with Any Reasonable Request for Assistance Made by Law Enforcement

Element Three requires the applicant to demonstrate that they have met one of the following criteria: 1) complied with any reasonable request for assistance in the Federal, State, or local investigation or prosecution of acts of trafficking or the investigation of a crime where acts of 44

Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,273 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a).

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trafficking are at least one central reason for the commission of that crime; or 2) is under 18 years of age; or 3) is unable to cooperate with a request due to physical or psychological trauma. Compliance with reasonable requests made by law enforcement for applicants not trafficked as minors If the T nonimmigrant status applicant was trafficked when they were 18 years of age or older, they must demonstrate that they complied with any reasonable requests for assistance made by law enforcement officials regarding the investigation or prosecution of the trafficking. 45 The “reasonableness” of the request “depends on the totality of the circumstances.” A nonexhaustive list of factors to consider is set forth in 8 CFR § 214.11(h)(2), including but not limited to the safety of the survivor or their family, whether any interpreter or attorney was present to help the survivor understand the request, and the age and maturity of the survivor.

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Evidence of cooperation may include any of the following: a law enforcement agency certification (Form I-914 Supplement B); documentation of a grant of Continued Presence; or any other evidence, including but not limited to police reports, 911 call transcripts, business cards from law enforcement, printed emails from interaction or information reporting the case to law enforcement (preferably with a written response from law enforcement confirming receipt of the report or an interview date with the trafficking survivor), and affidavits from the trafficking survivors, witnesses, or attorney or advocate who assisted with the reporting to law enforcement. 46 For those who do not fall under the exception and were not trafficked as minors, at a bare minimum, the applicant needs to show that they have made contact and reported the trafficking crimes to some type of law enforcement 47—this could be achieved through the survivor’s direct contact with law enforcement, or indirectly by their attorney, social worker, or case manager acting on a survivor’s behalf. Regardless of whether or not law enforcement considers your client a trafficking survivor, the requirement is to report and cooperate with law enforcement. This means that even if law enforcement does not consider your client a trafficking survivor, your client may still be eligible to apply for T nonimmigrant if they reported the trafficking and cooperated with law enforcement. PRACTICE POINTER: Communicating with law enforcement. To protect your client and maintain consistency, it is best that the attorney directly facilitates all communication between the client and law enforcement, including requests for Continued Presence and Form I-914 Supplement B and reports of the trafficking incident. Do not include overly factual details of your client’s case in written form to law enforcement. This can be re-traumatizing for the client to have to explain, and it may even hurt the client legally because it may be inconsistent with information they have or will present in conjunction with any related criminal or civil investigation. The current regulations, issued in 2016, expanded the definition of a law enforcement agency to include a “Federal, State, or local law enforcement agency, prosecutor, judge, labor agency, children’s protective services agency, or other authority that has the responsibility and authority

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8 CFR § 214.11(h). 8 CFR § 214.11(h)(3). 47 8 CFR § 214.11(h)(1). 46

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for the detection, investigation, and/or prosecution of severe forms of trafficking in persons.” 48 In addition to local, state, and federal criminal law enforcement, it is important to consider other agencies that may qualify as law enforcement where your client can report the trafficking, particularly civil law enforcement agencies who may be able to “detect” the crime of trafficking. 49 For example, in the past, T nonimmigrant status has been granted on the basis of reporting the case to the U.S. Department of Labor, Equal Employment Opportunity Commission, National Labor Relations Board, and other state and local offices such as divisions within a state Attorney General’s office, the California Department of Labor Standards Enforcement, California Department of Fair Employment and Housing, and New York Department of Labor. If the agency only has an articulated U visa certification policy but not T nonimmigrant status certification policy, practitioners have pointed out that the list of qualifying criminal activities for U visas include involuntary servitude, peonage, and trafficking, which are all related and included within the definition of the crime of “a severe form of trafficking” as required for T nonimmigrant status. As a result, some practitioners have argued successfully that certain certifying agencies for purposes of the U visa should also be able to certify for T visas.

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Example: Beno was recruited by a friend’s cousin to come to the United States to work as a caregiver. Although college educated, he was unable to find work in Indonesia to support his family. He worked with his friend’s cousin to obtain an H2-B visa to come to the United States to work for this caregiving facility. At the facility, he was never given proper training on how to work with the residents, many of whom had mental illness. He was also never given a bed to sleep on and would sleep in the hallway bench or on empty resident beds. Working around the clock, his pay was nothing like he was promised. When he complained, he was threatened to have his visa canceled. His employer also hinted that he knew many powerful people in the town where Beno was from, and all it took was one word to hire someone to hurt him and his family if he kept complaining. Beno also felt shame and embarrassment—instead of being able to send money home, he had only to date spent money to pay for the ticket and visa to come to the United States. He also witnessed other caregivers physically abuse some of the residents. Beno finally filed a complaint with the local county ombudsman’s office about the physical abuse he saw being inflicted on the residents—he could not take the violence anymore. Initially, he was too scared to talk about his own situation, but he was eventually connected to an attorney, who helped him report his case with both the Department of Labor and California Department of Labor Standards Enforcement.

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8 CFR § 214.11(a). The regulations further specify: “Federal LEAs include but are not limited to the following: U.S. Attorneys' Offices, Civil Rights Division, Criminal Division, U.S. Marshals Service, Federal Bureau of Investigation (Department of Justice); U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP); Diplomatic Security Service (Department of State); and Department of Labor.” Id. 49 Department of Homeland Security regulations at (8 CFR § 214.14(a)(2)) expressly list certain federal law enforcement agencies that may certify U visa applications, recognizing that investigators from civil agencies such as the Department of Labor may “detect” evidence of qualifying criminal activity during the course of investigating violations of workplace laws. The Department of Labor’s authority to complete U visa certifications (Form I-918, Supplement B) is based on its role as a law enforcement agency that has detected the crimes.

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The easiest way to demonstrate that a trafficking survivor has cooperated with law enforcement is the Form I-914 Supplement B Law Enforcement Agency certification form or evidence of Continued Presence. Form I-914 Supplement B is a certification form found at www.uscis.gov. However, unlike the Form I-918 Supplement B Law Enforcement Agency for the U visa, the Form I-914 Supplement B is not a mandatory part of the T nonimmigrant status application. 50 Again, the absence of a law enforcement certification will not adversely affect an applicant who can meet the evidentiary burden with the submission of other evidence of sufficient reliability and relevance. 51 It is thus important to remember that many T nonimmigrant status applications have been submitted and approved without Continued Presence or a Form I-914 Supplement B. Conversely, DHS is clear that submission of a law enforcement agency certification alone does not grant T nonimmigrant status, nor does it lead to automatic approval. 52

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Example: Victor left Honduras because of gang violence. At the U.S.-Mexico border, the coyotes told him that it would cost him $3,000 for them to cross him into the United States. Victor agreed but was then locked up inside of a house with 30 other migrants. His captors took all of his belongings, called his mother, and threatened that if she didn’t pay an additional $2,000, they would kill him. Meanwhile, for the next three weeks, Victor was forced to cook and clean for the 30 other rotating captives held for ransom and the 15 captors keeping him in the house by gunpoint. Victor overheard some of his captors also talking about selling off some of the younger girls held captive into prostitution in Los Angeles. Victor may be eligible for T nonimmigrant status for the forced labor he was required to do. Victor may also be eligible for a U visa because he is also a survivor of kidnapping, extortion, trafficking, and false imprisonment; however, practitioners have had difficulty in obtaining U visa Form I-918 Supplement B certifications in cases like these. The other younger girls are also survivors of false imprisonment and potential survivors of attempted or conspiracy to be sex trafficked, and they should be screened for being subjected to other forms of sexual assault and trafficking-relief based on forced labor as well. In lieu of submitting a Form I-914 Supplement B, you can include other evidence to satisfy the requirement of compliance with reasonable requests made by law enforcement. 53 At the very least, you will need to include your client’s declaration, stating when and to whom they reported their case, that they have complied with any reasonable requests for assistance, and if the crime was not previously reported, the reasons they did not previously do so. Other types of evidence may include: emails of correspondence between the applicant or their attorney with law enforcement, photocopies of business cards of law enforcement agencies, a record of the attorney’s telephone calls, a copy of the attorney’s faxes, declaration by the attorney of interactions and efforts to cooperate with law enforcement, declarations by case managers and other witnesses of efforts to cooperate with law enforcement, police reports, and call logs by your client to 911. Remember to consider these other forms of evidence of your client’s cooperation 50

8 CFR § 214.11(d)(3)(i). Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,276 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 52 Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,276 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 53 8 CFR § 214.11(h)(3). 51

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because if your client has reported their case and complied with reasonable requests for assistance with law enforcement, they are eligible to submit the T nonimmigrant status application even without a Form I-914 Supplement B. PRACTICE POINTER: Evidence demonstrating case was reported to law enforcement. Practitioners have found that it is important to have evidence demonstrating that you reported the case to law enforcement. Therefore, work with law enforcement and ask them to confirm receipt of your emails and requests for Continue Presence and/or a Form I-914 Supplement B in short written responses, such as “I confirm that I have received your requests and reporting of your client’s case.” Do not confuse the legal standard on this element—the legal standard is to demonstrate that your adult client reported their case and/or cooperated with law enforcement, not whether law enforcement actually deems your client to be a trafficking survivor. Work with law enforcement to avoid generating any documentation that might confuse USCIS on this legal standard. For example, explain to law enforcement why statements like “I do not think your client is a trafficking victim” or “We will not be issuing an I-914 Supplement B” is not helpful via email or written form and ask them to inform you of their decision by telephone.

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You do not need to wait for a criminal investigation or prosecution to be complete before submitting the T nonimmigrant status application. While there may be benefits for your working relationship with law enforcement or other particular reasons for your client to do so, it is not required. You and your client should make a judgment together on whether and when to submit the T nonimmigrant status application. The survivor must comply with any reasonable request by a law enforcement agency from the time of the initial application through the time the survivor applies for adjustment of status, or by the survivor meeting an exception to the compliance requirement. 54 Failure to comply with any reasonable request from the law enforcement agency (LEA) can result in revocation of the T nonimmigrant status. 55 However, if the LEA chooses not to pursue an investigation or prosecution, that decision will not affect the applicant’s eligibility so long as the applicant complied with any reasonable LEA request. Applicants trafficked as minors are exempt from law enforcement compliance Under the Trafficking Victims Protection Reauthorization Act of 2003, minors under the age of 18 are exempt from demonstrating compliance with reasonable requests for cooperation. 56 Practitioners have successfully advocated for this legal standard to be interpreted to consider the

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8 CFR § 214.11(h)(1) and 8 CFR § 214.11( (m)(2)(ii)–(iii); 8 CFR § 245.23(a)(6)(i). Note that for cases where the survivor entered the United States to participate in a judicial process, the reasonable request for assistance requirement will not be met simply by law enforcement’s support of a lawful entry of a survivor into the United States with the intent to assist the law enforcement agency. The survivor in this case must also comply with reasonable requests for cooperation through the course of adjustment of status, unless they fall under an exception. Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,274 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 55 8 CFR § 214.11(m)(2)(ii)–(iii). 56 TVPRA, § 4(b)(1)(A); INA § 101(a)(15)(T)(III); 8 USC § 1101(a)(15)(T)(i)(III); 8 CFR 214.11(h)(4)(ii).

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age of the victim at the age of victimization, not the age at the filing or adjudication of the T nonimmigrant status application. 57 Example: Duc was trafficked on a fishing boat for six months and then rescued when he was 17 years old. You meet him two weeks after he turns 18 years old, interview him, deem him eligible for T nonimmigrant status, and file his T nonimmigrant status application with documents with his birth date and the date that the Coast Guard found him and took him into custody. He was too scared at the time to tell the Coast Guard anything. You should apply for him as an individual who was trafficked as a minor and who is thus exempt from the requirement to report his case to law enforcement. In addition to your client’s declaration, you should submit proof of your client’s age, such as an official copy of the birth certificate, a passport, or a certified medical opinion. If you do not have an official document, you can submit other evidence of age, such as church or school records. 58

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PRACTICE POINTER: If your client is a minor, it is wise to state upfront in your cover letter your client’s age and their exemption from this requirement to report the case to law enforcement. Practitioners have seen Requests for Evidence (RFEs) improperly asking minor T nonimmigrant status applicants to demonstrate cooperation with law enforcement, Continued Presence, and/or a I-914 Supplement B in contradiction of this exemption. If this happens to you, resubmit a cover letter emphasizing the clear statutory exemption for minors, point out the evidence you have already submitted, and where necessary, file a case with the USCIS Ombudsman’s Office pointing out this erroneous application of law. Many trafficking survivors, particularly minors, are very hesitant to report their cases to law enforcement. They may not want to get anyone in trouble, especially if their traffickers are family members or a boyfriend. They may distrust law enforcement due to previous interactions with the police either in their home country or here. They may have suffered harassment from law enforcement because of some form of discrimination (e.g., ethnicity, sexual orientation, or gender identity), or due to their trafficking situation (e.g., arrested for prostitution or selling drugs). They may have personal safety concerns for themselves or their family members in the United States or abroad who could be targeted. For these reasons, many minors may not want to report their case to law enforcement once they learn that they are not required to. Example: Like he was instructed by the travel agency, at the age of 16, Rahul left India for Mexico, and then walked up to Customs and Border Patrol at the U.S.-Mexico border. He was taken into custody by the Office of Refugee Resettlement (ORR) and later released to his aunt in Illinois. He was told that his asylum hearing was delayed and would not be scheduled for at least another eight months. His aunt began to get 57

At the 2017 Freedom Network USA Annual Conference, on the USCIS Vermont Services Center panel, Officers with Office of Policy and Strategy for USCIS noted that the standard was based on the age of the survivor when victimization occurred. T visas have been approved where the applicants were no longer 18 years of age, but experienced the trafficking when they were a minor, and they did not report their case to law enforcement until they were over the age of 18. As of November 2018, it is still unclear whether or not the first or last act of trafficking needed to have occurred when the applicant was a minor to satisfy this requirement. 58 8 CFR § 103.2(b)(2)(i).

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exasperated by having to pay and care for him. She would not let him attend school and began keeping him in the back of her restaurant working long hours. He slept on a mattress in the kitchen at night. When he complained, his uncle threatened to deport him. He is extremely reluctant to report his case to law enforcement because he does not want to get his aunt and uncle in trouble, as he still views them as family and is worried about how his parents will react. He is also worried about his aunt and uncle’s two young children and does not want them to be negatively affected by anything that might happen to his aunt and uncle. His attorney can file a T nonimmigrant status application for him based on the forced labor, even though his asylum case is pending, and pursue both options of relief for him.

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You should counsel your client on the benefits and limitations in engaging law enforcement. Your client should understand that they do not control the criminal processes—they are victimwitnesses in a case, and criminal processes and decisions are decided by law enforcement. Law enforcement may be able to provide your client with Continued Presence (CP), but given the low numbers of CP that have been granted, this is not something you can guarantee your client. Additionally, while working with law enforcement sometimes means greater security and safety options in the United States, law enforcement may or may not be able to or be interested in protecting your client’s family members abroad. If your client was trafficked as a minor but has chosen to or has already been cooperating with law enforcement, it does not hurt to highlight this in the T nonimmigrant status application and the client’s declaration. If your client does decide to cooperate and work with law enforcement, strategies on what agency to report the case to, how to negotiate parallel legal processes, and other tips can be found in Chapter 5 of Representing Survivors of Human Trafficking A Promising Practices Handbook. 59 Example: Cristian is 17 years old. He tells you as his attorney that although he has been able to run away from his stepfather who was forcing him to work, he is conflicted about whether or not he wants to report his stepfather to the police. He is trying to maintain a relationship with his mother, who is still living with his stepfather and has his passport and important documents. Since he is still considered a minor under Honduran law until he is 21 years old, he cannot obtain a new passport on his own. He is also afraid that if he reports his stepfather to the police, child protective services will take his younger brothers away. He is also concerned that maybe his stepfather will start to make his younger brother work now that he has run away. He decides that for now he does not want to report his case to the authorities but will try to maintain a good relationship with his mother from a distance and maintain contact with his younger brothers. He wants to monitor the situation and decides that if there is any threat or worry that his younger brother is being forced to work, he will reconsider reporting his case to the authorities. His legal representative should explain to Cristian that he is still eligible to apply for T nonimmigrant status and is not required to report his case to law enforcement because he was a minor when he was trafficked. Even if he turns 18 years old, because he was trafficked as a minor, he should still qualify under the exception to report his case to law enforcement. Should Cristian decide to later report his case to law enforcement or to the 59

This publication is available at https://www.ilrc.org/publications/representing-survivors-humantrafficking.

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authorities, his legal representative can help him with this process and amend information in his filed T application as necessary. Trauma exception to reporting case to law enforcement The Violence Against Women Act’s (“VAWA”) Reauthorization in 2005 created another exception for T nonimmigrant status applicants to the requirement of reporting their case to law enforcement. This exception exempts an applicant who can establish that physical or psychological trauma impedes their ability to cooperate with law enforcement.60 The applicant must submit evidence of the trauma, which may include a the applicant’s affidavit alone describing the trauma. However, USCIS encourages submission of “any other credible evidence,” 61 which may include: “a signed statement from a qualified professional, such as a medical professional, social worker, or victim advocate, who attests to the victim’s mental state, and medical, psychological, or other records which are relevant to the trauma.” 62

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Example: Gina was trafficked when she was 19 years old and suffered regular and brutal beatings by her traffickers. In addition to repeated sexual assault, she witnessed her traffickers murder multiple people, including burning a girl alive for trying to escape. The few times you talk to Gina about her trafficking situation, she starts to cry uncontrollably and tear her hair out. You also find out that a few weeks ago, she tried to commit suicide due to the trauma from her trafficking. She is adamant that she does not want to talk to law enforcement because her traffickers have told her that they’ll kill her and her family if she says anything to anyone. You work with Gina’s psychologist to generate a detailed report about her trauma and how interviews and discussion with law enforcement would deeply traumatize her further and perhaps trigger more suicide attempts. You then submit this report with her T nonimmigrant status application. Continued presence (CP) The TVPA also created an interim immigration remedy called “Continued Presence” (CP) for trafficking survivors. CP is a temporary legal immigration status and does not lead to any permanent legal status. CP ensures that trafficked persons can work, live, and receive certain benefits and services while they remain in the United States during the course of the investigation and prosecution of the trafficking. Typically CP is granted for one to two years and can be extended as needed. 63 To receive CP, the trafficking survivor only has to be a “potential witness” in a trafficking case. 64 CP is not required to be eligible to apply for T nonimmigrant status but can help demonstrate cooperation with law enforcement.

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See INA § 101(a)(15)(T)(iii); 8 USC § 1101(a)(15)(T)(iii); 8 CFR § 214.11(h)(4)(i). Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,277 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 62 Id. 63 See ICE HSI Directive 10075.2: Continued Presence, 2 (Oct. 6, 2016), reprinted at Appendix I. 64 28 CFR § 1100.35; see also U.S. Immigration and Customs Enforcement [hereinafter ICE], Continued Presence: Temporary Immigration Status for Victims of Human Trafficking (Aug. 2010), http://www.ice.gov/doclib/human-trafficking/pdf/continued-presence.pdf. 61

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CP can only be requested by federal law enforcement and sent to the ICE Law Enforcement Parole and Law Enforcement Programs Unit for approval. 65 However, local and state law enforcement may request that federal law enforcement partners submit CP requests to be sent to ICE for approval. 66 If approved, HHS produces a certification letter, and the adjudicating government body, the Vermont Service Center (VSC), produces a Form I-94 (Arrival-Departure Record) and an Employment Authorization Document (EAD) for the trafficking survivor. With this, your client can travel around the United States domestically. However, leaving the United States can break physical presence and harm your client’s chances of obtaining T nonimmigrant status. Certain family members of CP recipients can be paroled into the United States at the request of law enforcement. 67 Law enforcement can also revoke CP if your client is later 1) determined not to be a survivor of trafficking, 2) is no longer a potential witness, or 3) is deemed uncooperative. Historically, the number of CP grants has been dismal. 68 This means that you cannot count on your client receiving CP and even if you think your client is a good CP candidate, you should still be diligent in finding other forms of immigration relief. This is particularly true because even if your client is granted CP, it is temporary and could be revoked at any time. Nevertheless, you should always advocate and request for CP if your client is already in contact with law enforcement.

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However, just as it is unnecessary to wait, obtain, and submit a Form I-914 Supplement B law enforcement certification with a T nonimmigrant status application, it is similarly important not to delay the filing of a T application simply to await the potential issuance of CP. If CP is granted, include a copy of the documentation in the T nonimmigrant status application to demonstrate cooperation with law enforcement, and to add to evidence that the applicant is a victim of a severe form of trafficking. PRACTICE POINTER: Requesting continued presence (CP). To save time and avoid errors, it is highly advisable to prepare the CP application and submit it to law enforcement for their review and signature, instead of waiting for them to complete it themselves. For Continued Presence

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Id. If the Department of Homeland Security [hereinafter DHS] does not grant CP, it may grant an alternative form of temporary immigration relief for the trafficking survivor, such as: 1) Deferred Action (8 CFR § 274a.12(c)(14)); 2) Parole (8 CFR § 212.5); 3) Voluntary Departure (8 CFR § 240.25); or 4) Stay of Removal (8 CFR § 241.6). Note that “[d]eferred action should never be used in place of [CP].” 28 CFR § 1100.35(b); see ICE HSI Directive 10075.2: Continued Presence, 2 (Oct. 6, 2016), reprinted at Appendix I. 66 22 USC § 7105(c)(3)(C)(i). 67 The qualifying family relationship must have existed at the time the trafficking survivor was granted CP. 22 USC § 7105(c)(3)(B); 8 USC § 1229(b)(6). If the holder of CP is under 21, their spouse, children, parents and unmarried siblings under 18 are eligible. If the holder of CP is 21 or older, their spouse, children and parents or siblings in present danger of retaliation are eligible. See ICE HSI Directive 10075.2: Continued Presence, 9 (Oct. 6, 2016), reprinted at Appendix I. 68 The State Department’s 2018 Trafficking In Persons report notes that in Fiscal Year 2017, Continued Presence was only granted to 160 trafficking survivors, and 113 extensions of Continued Presence to trafficking survivors granted Continued Presence from a previous time period. See DOS, 2018 Trafficking in Persons Report 445 (June 2018), https://www.state.gov/j/tip/rls/tiprpt/countries/2018/282776.htm.

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Information, see Appendix H. No fee waiver request or fees are needed because the application is being submitted by law enforcement to DHS. § 3.5

Element Four: Extreme Hardship upon Removal

For the fourth element, a T nonimmigrant status applicant must also establish that they would suffer “extreme hardship involving unusual and severe harm upon removal from the United States.” 69 This standard is higher than extreme hardship as described in 8 CFR § 240.58. 70 “Factors that may be considered in evaluating whether removal would result in extreme hardship involving unusual and severe harm should include both traditional extreme hardship factors and factors associated with having been a victim of a severe form of trafficking in persons.” 71 As “hardship” is a factor that is required to show eligibility for many forms of immigration relief, such as cancellation of removal and many waivers of grounds of inadmissibility, it is important to consider guidance around demonstrating hardship in other contexts (although the degree of hardship required for each form of relief varies). Like in other forms of relief requiring hardship, the hardship determination for T nonimmigrant status is highly discretionary. There is no one particular factor that guarantees satisfaction of this requirement. 72 Please see the ILRC’s manual, Hardship in Immigration Law (ILRC, 2017), for an in-depth analysis of how to prove hardship.

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In order to prove hardship for T nonimmigrant status, your client bears the burden of proof and will need to explain in detail in their declaration what hardship they will suffer if removed. They should also submit corroborating evidence of the hardship they would suffer, which could include additional affidavits or records from other witnesses, law enforcement, medical personnel, mental health personnel, experts, case managers, social workers, or family members. Other evidence may also include academic literature, such as articles on the difficulties trafficking survivors face reintegrating, news reports, and the U.S. Department of State’s annual Trafficking in Persons reports. The regulations include the following non-exhaustive list of potential hardship factors. 73 •

Age, maturity and personal circumstances of the applicant. DHS has indicated that minors are not exempt from the extreme hardship requirement from simply being minors. 74 However, if your client is a minor or was trafficked as a minor, you should highlight the client’s young age. Are there other personal circumstances and maturity of your client that make them vulnerable? For example, are they illiterate, do they have disabilities, do they come from a home with violent parents, or were they sexually abused as a child?

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Physical or psychological issues of the applicant that necessitate medical or psychological care not reasonably available in the foreign country. What are your client’s physical and psychological symptoms that are either related to the trafficking, or

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8 CFR § 214.11(i). 8 CFR § 214.11(i)(1). 71 8 CFR § 214.11(i)(2). 72 Id. 73 8 CFR § 214.11(i)(2). 74 Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,277 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 70

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have been exacerbated by the trafficking? Is your client depressed, suffering anxiety, fear, nightmares, psychosomatic pains, unable to sleep, or angry? Does your client require physical therapy and/or treatment for injuries incurred on the job, or treatment for sexually transmitted diseases? Can your client afford to pay for medicine or treatment? Are there cultural issues, especially related to mental health treatment, that would prevent full treatment in the client’s home country? 75 Example: Franne says that she will not be able to get a job if she is removed to her home country. When you ask for details, Franne says that without a job, she will not be able to afford her daily medication for her thyroid condition. She would also have to take lowpaying jobs again doing the same kind of work she was initially trafficked into. In this way, the economic hardship that Franne faces is also a medical hardship. Franne’s T nonimmigrant status application should document her thyroid condition and the ways that she would suffer medically without the financial means to pay for her thyroid medication. It should also highlight that if removed, she would be placed back in a similar situation and could be re-trafficked. Nature and extent of the physical and psychological consequences of the trafficking. How severe are the physical injuries and trauma your client has suffered? Is there a psychological evaluation, letter from a case manager, or statement from your client to support this?

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Impact of the loss of access to the United States courts, including criminal and civil redress for acts of trafficking in persons, criminal prosecution, restitution, and protection. Is your client a potential victim-witness to a criminal case or a plaintiff or claimant in a civil legal case in the United States? Does your client have a protective order that would protect them here but without which they would be vulnerable again in their home country?

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Example: Sakda was trafficked on a H2-A visa to work in the fields and subject to debt bondage and involuntary servitude. He has joined a few other workers who were trafficked with him to file civil suit against his traffickers. The civil case is currently stayed while the federal government finishes their criminal prosecution against his traffickers. His attorneys should indicate the difficulty in Sakda’s ability to participate in the criminal prosecution as a victim-witness and to assert restitution in that case, as well as a plaintiff in the civil case, were he required to return to his home country. He would not be able to easily communicate with his attorneys and the prosecutors and would not be able to go to court were he required to go back to Thailand, where he lives in the countryside. •

Reasonable expectation that the existence of laws, social practices, or customs in the foreign country to which the applicant would be returned would penalize the applicant severely for having been trafficked. Is your client going to suffer any stigma

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Note that if your client has substance abuse issues or suicidal ideation and this has been noted in other documentation and records and revealed to USCIS, your client can explain its cause or exacerbation by the trafficking and the hardship they might experience in receiving treatment in the home country. You may also want to note if they are getting medical or mental health treatment or any plans to do so.

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or shame for having been trafficked, abused, or exploited? Are there stigmas around those who do not economically contribute to the family? Do family dynamics create a situation that would be psychologically traumatic for your client to return to? What are the expectations of those who go abroad to work to support their families, especially for men who are expected to be breadwinners? Example: Jenny is arrested in her home country for telling a friend that she is a lesbian. Without any supportive family members, she decided to take an offer to travel abroad to study. Instead, she was forced to work at a bar and pressured to provide sexual services for customers. She tells you that if she were to return home, she would probably be arrested again by the police, and that her family does not want her around anyways. She is worried that everyone in her village knows she identifies as a lesbian and that she will be bullied at school and unable to get a job. She has also recently been diagnosed as HIVpositive and is receiving intensive therapy. You should work with Jenny to document the hardship that she would suffer if she were removed on account of her sexual orientation, social isolation, HIV status, inability to receive medical and mental health treatment in her home country, and potential persecution by the police.

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Likelihood of re-victimization and the need, ability, or willingness of foreign authorities to protect the applicant. Did your client initially leave the home country because of poverty, discrimination, corruption, violence, or incompetence of foreign authorities to protect them in the first place? Would your client face these same push factors upon return to the home country? How capable and willing are foreign authorities to help your client? Example: Nathalie was trafficked by a diplomat from her home country, Cameroon. She is fearful of returning home because of how powerful she thinks the diplomat is compared to her. Her family in Cameroon had to flee and relocated to another country after they were threatened by the diplomat because Nathalie finally reported her case to law enforcement. So far there seems to be no willingness from other Cameroonian officials to assist Nathalie or her family, as they are defending the diplomat and claiming that Nathalie is making up her claims for monetary gain.

•

Likelihood of harm that the trafficker or others acting on the trafficker’s behalf would cause the applicant. Does your client fear retaliation? Does your client’s trafficker know where your client lives or how to find them in the home country? Does the trafficker have connections that would make retaliation against your client very easy? Does the trafficker have connections to criminal organizations overseas? Would anyone be able to protect your client? Have there been any recent threats made to your client or about them? Example: Myrna fled Guatemala in part because of her inability to obtain assistance from the government to protect her from her abusive husband. Not once was her husband arrested even after he beat her numerous times, broke her arm, and tried to run her down with a car and set her on fire. He has vowed to kill her no matter where she goes. She fled to the United States, where she was then trafficked by another woman from her village to clean houses. She is fearful that if returns to Guatemala, her husband will go after her again, and the government will once again do nothing to assist her. She is also fearful that

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her trafficker will follow through on her threat to pay and bribe corrupt police officers and officials in Guatemala to throw her in jail because she reported her trafficker to the Department of Labor. Example: Jorge, who is from a border town in Mexico, tells you that he is afraid to go home because his traffickers, who are part of the cartels, have threatened to kill him if he doesn’t work for them again. They went to his mother’s house three weeks ago and smashed the windows looking for him. He scoffs at your question about whether the police in Mexico will help him. In the past he has been deported from the United States to Mexico three times. One time, he asked to be deported to a federal youth shelter far from his home town, yet his traffickers still managed to track him down and “sign” him out of the shelter and force him back to working for them. You should work with Jorge to document the hardship he would suffer if he were removed to Mexico on account of the likelihood of re-victimization, the inability or unwillingness of Mexican authorities to help him, and the likelihood of being re-trafficked. •

Likelihood that the applicant’s individual safety would be seriously threatened by the existence of civil unrest or armed conflict. Did your client leave their country because they were scared of the government or organized crime?

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The regulations specify that hardship to people other than the applicant, such as derivative T nonimmigrant status applicants, will not be considered. 76 If your client mentions harm that her family members will suffer on account of her removal, think of a way to frame that hardship as hardship to the applicant. If your client also has children, T nonimmigrant status applicants may also seek to demonstrate extreme hardship by providing evidence of the “traditional” and “VAWA-related” types of extreme hardship typically used in VAWA suspension of deportation and VAWA cancellation of removal cases. The regulations also specify that “current or future economic detriment, or the lack of, or disruption to, social or economic opportunities” is insufficient by itself to establish extreme hardship involving unusual and severe harm. 77 If your client mentions economic harm, think of a way that the economic harm might be related to or cause a type of hardship that will be given more weight by the adjudicator. PRACTICE POINTER: Carefully crafting your client’s declaration. Your client’s declaration is a mandatory part of their T nonimmigrant status application and will often be the crux of your client’s eligibility for T nonimmigrant status. Nevertheless, consider how detailed the statement has to be. Interviewing trafficking survivors in particular can be re-traumatizing and triggering for the survivor as well as for you as the interviewer. Evidence is very important in your working relationship and for the mental health of your client, but consider what other evidence can lift some of the burden off of you and your client to provide a long, detailed declaration? Is there a parent, social worker, school counselor, therapist, or someone else that can provide a detailed statement supporting your client? Are there extensive medical records and psychological

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8 CFR § 214.11(i)(3). 8 CFR § 214.11(i)(1).

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evaluations that support your case? Is there documentation of a grant of Continued Presence or a Form I-914 Supplement B that can also serve as evidence for this case?

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Specifically, when beginning work on a child’s case, always determine whether there is a U.S. Department of Health and Human Services (HHS) Eligibility Letter that may have been requested and obtained for the child while they were in Office of Refugee Resettlement (ORR) custody. HHS Eligibility Letters allow minors who may have or have experienced human trafficking, and meet certain eligibility rules, to apply for the same benefits and services as refugees. If a child has an Eligibility Letter, it is important to assess the child’s case for trafficking, given that both a service provider and HHS indicated indicia of trafficking in the case. Clarifying and building off of this information may help open the conversation with a trafficked minor to develop their case. If you are working with other social service providers and case managers on a case in which no Eligibility Letter has been issued, coordinate who will be submitting a request for an Eligibility Letter and take care to avoid inconsistent information or information that may later be considered incriminating for the child in the Request for Assistance for an Eligibility Letter. Information on this form may be sent to federal law enforcement, made available to USCIS, or could somehow make its way to criminal, civil, and/or immigration court.

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CHAPTER 4 T NONIMMIGRANT STATUS PROCESS This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11 § 4.12 § 4.13 § 4.14 § 4.15 § 4.16 § 4.17 § 4.18 § 4.19

Screening for Eligibility ....................................................................................... 55 The T Nonimmigrant Status Packet ..................................................................... 57 Cover Letter.......................................................................................................... 60 Completing Form I-914 ........................................................................................ 61 Filing Fees ............................................................................................................ 65 Filing Fee Waiver Requests ................................................................................. 65 Working with Law Enforcement to Request and Complete the Form I-914 Supplement B .................................................................................... 67 Documentation of Human Trafficking ................................................................. 71 Documentation of Cooperation with Law Enforcement....................................... 71 Applicant’s Declaration........................................................................................ 73 Documentation of Extreme Hardship upon Removal .......................................... 74 Assembling and Submitting a T Nonimmigrant Status Application .................... 74 Notices from USCIS ............................................................................................. 75 Requests for More Evidence (RFEs) .................................................................... 76 Approvals ............................................................................................................. 77 Denials.................................................................................................................. 78 Duration and Extension of Status ......................................................................... 80 Revocation of T Nonimmigrant Status ................................................................. 81 Appeals and Motions to Reopen or Reconsider Appeals ..................................... 82

§ 4.1

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This chapter will walk you through the practical steps for filing a T nonimmigrant status application. The previous chapter discussed the requirements for eligibility; now that you and your client have decided to move forward with applying, this chapter will instruct you on the practicality of doing so. There are many pitfalls for an application due to the complexity of the eligibility laws and less familiarity with this immigration option by immigration officers. Screening for Eligibility

Human trafficking survivors rarely self-identify. They frequently present as survivors of other related crimes or have general immigration questions. Sometimes clients are already aware of the U visa and ask for it by name, identifying a particular crime of which they were a victim, such as domestic violence, sexual assault, kidnapping, or wage theft. These crimes may also overlap with human trafficking; such cases with overlapping crimes are referred to as intersection cases. Often you must delve deeper into the client’s story to reveal the elements of human trafficking. This is why it is critical to screen thoroughly using the federal Trafficking Victims Protection Act (TVPA) definition of trafficking in persons (human trafficking). Attached at Appendix J is a

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Sample Screening Tool, and Appendix K is the Action-Means-Purpose Chart to assist you with identifying forms of coercion and control in human trafficking cases. For example, a domestic violence survivor may also be a survivor of human trafficking if they are induced to perform some sort of labor, or service, due to the coercion inherent in these abusive relationships. One way to uncover human trafficking is to question why the abuser became violent. Sometimes it is out of jealousy and perceived infidelity; sometimes it is a result of intoxication and without provocation. If the client describes the violence as a retaliation for not doing something specific, this is a red flag to search deeper. A trafficker will have used force, fraud, or coercion to get services from their partner, such as domestic work (acting as a housekeeper and/or cook), sexual (non-consensual sex), or even work outside the home. Working outside the home could be either at the trafficker’s own business or an unrelated workplace and the trafficker controls the survivor’s paycheck. Many survivors of domestic violence will not identify the forced labor as separate from the abuser’s overall controlling behavior. They often view the forced labor as an expectation of the marriage or relationship and may not even feel forced. Spouses may believe they are performing their household obligations by cleaning, cooking, having sex, or earning money, but in reality, decisions about the household chores are not within their control. Sometimes the survivor describes themselves as a servant or maid rather than a spouse. You should ask what they believe will happen if they stop providing those services or tries to leave the house altogether. Often, they will respond that the abuser would become violent or threatening. Threats can include threats of physical, psychological, financial, or reputational harm. It can even include threats to call the police or immigration. This can satisfy the prongs of involuntary servitude induced or maintained by force, fraud, or coercion. 1

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Example: Natasha lived in a small town in Croatia. One of her high school classmates returned from the United States and contacted her, regaling her with stories of the United States. He began courting her and encouraging her to come to the United States with him. He told her about his house and that he would petition for her to get her status. She already had a multiple-entry tourist visa and decided to move to the United States with him. He set her up in a small house and he lived there with her for several weeks. Then he began coming home less and less often. She then learned he was already married with children. When confronted, he told her he was never going to divorce his wife. He often forced her to have sex with him without protection, so she became pregnant. She knew she had overstayed her visa and if she left, she could not return to the United States, and now had a U.S. citizen child. The trafficker told her that if she ever called the police or told anyone about him, she would be deported because she had no papers to remain in the United States. He also told her that he would get full custody of their U.S. citizen child. She was only able to escape when neighbors called the police and gave her resources about a domestic violence shelter. Similar issues arise out of straight-forward wage theft cases. While many human trafficking cases involve wage theft, not all wage theft rises to the level of human trafficking. The key to determining human trafficking is the client’s consent to do the work; whether the worker would 1

There are several resources online to support intersection domestic violence and human trafficking arguments, such as Polaris Project, Coalition to Abolish Slavery and Trafficking (CAST), Freedom Network, and the Human Trafficking Legal Center.

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face some consequences if they wanted to leave the employment. As with a spouse, an employee may be working willingly but still be exploited. In a case of human trafficking, the same questions apply: Why was their paycheck withheld? What would happen if they tried to quit? In a classic wage dispute, the employer will not try to prevent the worker from quitting but may not pay the legally-required paycheck. A trafficker will induce continued servitude through threats, false promises, and/or violence. The most common type of threat is to report someone to ICE and have them deported. This is an abuse of the legal process 2 and is a form of coercion and a component of involuntary servitude for T nonimmigrant purposes. 3 For in depth discussion of T nonimmigrant status eligibility, see Chapter 3. Example: Mario met a man in El Salvador who told him he could work in his restaurant in the United States for $1,000 per month. Believing this to be a good offer, he travelled to the United States with the man. He began working the next day and was invited to stay at the owner’s house with his wife and children. After one month, Mario requested his paycheck from the owner. The owner told him that he had to pay for room and board at his house, so he would only be paid $200 for the month. Mario expressed his anger at this because he could not afford to send money back to his family in El Salvador. The owner told him that if he tried to leave or file a complaint, he would tell his children to report to police that Mario molested them. PRACTICE POINTER: Considerations when both the U visa and the T visa are options. Because of the severe backlog for U nonimmigrant status applications, applying for T nonimmigrant status is a much faster path to permanent residence.4 According the USCIS, as of this manual’s writing, processing times for a U nonimmigrant status application is estimated between 49 and 50 months 5 because more than 218,000 applications for U nonimmigrant status are pending and there is an annual cap of 10,000 U principal visas that can be granted a year. Alternatively, processing times for a T nonimmigrant status application is estimated between 14.5 and 22.5 months. 6 While there are also drawbacks to filing for T nonimmigrant status, often the client qualifies for both U nonimmigrant status and T nonimmigrant status, and it may be in their best interest to file both concurrently. § 4.2

The T Nonimmigrant Status Packet

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Applicants for T nonimmigrant status must submit a completed Form I-914 Application for T Nonimmigrant Status with supporting evidence. The standard of review is any credible evidence. 7 A Sample Completed Form I-914 is at Appendix L. Although not required, you should also include a detailed cover letter briefing the applicant’s eligibility for T nonimmigrant status. The applications are often intensely scrutinized since the proof may principally consist of

2

8 CFR § 214.14(a). 8 CFR § 214.14(a). 4 Processing times for an application for T nonimmigrant status is estimated between 14.5 and 22.5 months. 5 USCIS case processing times can be found online at https://egov.uscis.gov/processing-times/. 6 Id. 7 8 CFR § 214.11(d)(5). 3

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the applicant’s credible testimony (declaration) without much further proof. Sample Cover Letters can be found at Appendix L. The only required forms for T nonimmigrant status are the Form I-914 and the Form G-28, but often clients require a waiver of inadmissibility. The packet must also include other supporting documentation. The filing requirements are very similar to the U nonimmigrant status application. Generally speaking, documentation that can corroborate any part of the applicant’s story should be included, as it supports the applicant’s overall credibility even if the documents don’t directly speak to the elements of trafficking. For example, if the applicant claims they worked for a particular company for several years prior to being trafficked, you can include pay stubs from that company. Ideally, documentation will corroborate the trafficking itself, such as wire transfer receipts or police reports. The following list includes both the required documents for submitting an application, which are marked in bold, as well as suggested supporting documentation: • • • • •

•

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8

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Form G-28 Notice of Entry of Appearance for Attorney Form I-914 Application for Nonimmigrant Status Addendum to Form I-914 if any questions require additional explanation Form I-914 Supplement B, Declaration of Law Enforcement Office for Victim of Trafficking in Persons (this form is not required, but extremely helpful) Government-issued identification o Passport biographical page o Birth certificate for applicant o Consular ID o Voter ID Family Background o Birth certificates for derivative children o Birth certificates for non-derivative children o Marriage certificate for derivative spouse o Divorce certificate(s) Signed declaration from the applicant describing victimization and cooperation with law enforcement.8 The declaration must be in English or accompanied by an English translation. Corroborating documentation of trafficking (examples) o Photos of trafficking site (such as from the applicant’s phone) o Pay stubs from workplace o Text messages or call logs with traffickers o Facebook posts by the trafficker o Joint residence or assets with trafficker

8 CFR § 214.11(d)(2)(i).

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•

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o Affidavits from eye witnesses or to whom applicant disclosed the trafficking o Newspaper articles General documentation of trafficking o U.S. Department of State Trafficking in Persons report for country of origin and/or where trafficking occurred o Human Rights report for country of origin and/or where trafficking occurred Corroborating documentation of cooperation o Police reports o Other communication with law enforcement agency (like emails) Corroborating documentation of hardship o Letters of support from nonprofits from which the applicant sought assistance o Letters from family back home o Country conditions reports o Travel advisories from U.S. Department of State

If the client has triggered grounds of inadmissibility that require a waiver, you must also include the following documents: • • • • •

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Form G-28 Notice of Entry of Appearance for Attorney (can be a copy of the original if all of the forms are listed) Form I-192 Application for Advance Permission to Enter as Non-Immigrant Filing Fee or Form I-912 Request for Fee Waiver Copies of any documents related to criminal history, immigration violations, or other grounds of inadmissibility (if applicable) Copies of any documents (if applicable) showing that it is in the national interest to exercise discretion to waive an applicable ground of inadmissibility; that the activities triggering the inadmissibility ground were caused by, or were incident to, the victimization as a result of the severe human trafficking; and/or extraordinary circumstances in the case of violent or dangerous crimes triggering an inadmissibility ground; Copies of any documents showing remorse and rehabilitation (if applicable).

As discussed further in Chapter 8, the principal applicant can apply for qualifying family members as derivatives. The applicant must include the following for each derivative family member: • •

Form G-28 Notice of Entry of Appearance for Attorney 9 Form I-914 Supplement A, Application for Family Member of T-1 Recipient (signed by both the applicant and derivative, unless the derivative is abroad)

9

The principal applicant signs the Form I-914 Supplement A on behalf of their family member, and therefore requires your G-28. If the derivative is in the United States and you are also representing them, you should file a second G-28 for them.

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• • • • • •

Addendum to Form I-914 Supplement A if any questions require additional explanation 10 Form I-765 Application for Work Authorization in category (c)(25), with two passportstyle photos if the derivative is in the United States Filing Fee or Form I-912 Request for Fee Waiver Government-issued identification Proof of relationship between principal and derivative (ex. birth certificate, marriage certificate, etc.) Declaration regarding hardship if the derivative is not granted status.

As with the principal applicant, if any of the family members require a waiver of inadmissibility, they too must file the same documents required for the waiver: • • • • •

•

Form G-28 Notice of Entry of Appearance for Attorney (can be a copy of the original if all of the forms are listed) Form I-192 Application for Advance Permission to Enter as Non-Immigrant Filing Fee or Form I-912 Request for Fee Waiver Copies of any documents related to criminal history, immigration violations, or other grounds of inadmissibility (if applicable) Copies of any documents (if applicable) showing that it is in the national interest to exercise discretion to waive an applicable ground of inadmissibility; that the activities triggering the inadmissibility ground were caused by, or were incident to, the victimization as a result of the severe human trafficking; and/or extraordinary circumstances in the case of violent or dangerous crimes triggering an inadmissibility ground; Copies of any documents showing remorse and rehabilitation (if applicable).

Each of these documents, as well as additional optional documentation, is described in this and the following chapters. § 4.3

Cover Letter

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The cover letter functions like a legal brief for the T nonimmigrant status application because you are arguing both that the incidents occurred and that they meet the definition of a severe form of trafficking in persons. T nonimmigrant status applications often do not have robust supporting documentation and need to fit into a narrow legal definition. The legal arguments should be structured in the most straightforward manner possible, allowing the officer to easily follow the legal theory without being condescending. A Sample Cover Letter is at Appendix L. There are four requirements for eligibility: 1) being a victim of a severe form of trafficking in persons, 2) presence on account of trafficking, 3) compliance with all reasonable requests from law enforcement, and 4) showing will suffer extreme hardship upon removal. Each of these

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The Form I-914 Supplement A is in the principal applicant’s “voice” (“Has the family member for whom you are filing…”) and therefore both the principal and derivative should sign the addendum, if they both signed the Form I-914 Supplement A.

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requirements should be analyzed individually. In addition, the definition of severe form of trafficking in persons can be broken down even further. When organizing the cover letter, try to make your argument as easy to follow as possible. Begin each subsection with a complete heading and conclusion in the form of a topic sentence. Then, cite to the regulatory definition, followed by the analysis of the facts. Quote relevant information from background documentation, as the officers likely do not have time or interest in reading the long reports and should not be expected to pull out the importance of the report on their own. Finish each section with the conclusion again. The cover letter should make it easy for the officer to understand the case and approve it as quickly as possible. Additionally, you should write the legal arguments with a future appeal in mind. As T nonimmigrant status applications become more popular, they will become more heavily scrutinized. That intense scrutiny, along with general misconceptions about human trafficking and its elements, lead to denials and RFEs. Under the current administration, denial rates have been rising. § 4.4

Completing Form I-914

Applicants file Form I-914 to apply for T nonimmigrant status. The form is available at http://www.uscis.gov/i-914. USCIS updates forms frequently. Although USCIS often provides significant warning before an expired version is no longer accepted, you must always use only the version(s) of the form that is currently being accepted. Always check the USCIS website to ensure you have the most up to date version, or else it will be rejected. As with all immigration forms, the expiration dates in the top right corner are not dispositive.

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The questions on the form determine prima facie eligibility, the basic requirements for T nonimmigrant status, as well as a host of questions concerning potential grounds of inadmissibility. For questions that require explanation, USCIS has accepted such explanations in the applicant’s declaration, as opposed to the addendum. These explanations are often detailed and complex and are better contained in the first-person narrative. Given the legal nature of the questions, the applicants will usually not be able to address the question directly, but rather the facts contained in the declaration will be analyzed in your cover letter. For example, most clients will not be able to explain why they are “present on account of trafficking” but will be able to articulate the underlying reasons for entering and/or remaining in the United States as a result of being trafficked. Even with sufficient translation, most clients will need the technical aspects of the questions explained to them. A Spanish Translation of Form I-914 Questions are included in Appendix M. The forms are signed under penalty of perjury, and under strict interpretation, an unclear answer could be considered an inconsistency (affecting credibility), or even a misrepresentation. With a generous waiver attached to T nonimmigrant status, best practice is to disclose innocent facts to avoid any potential negative inference. Do not leave any of the questions blank, write “none” or “not applicable,” or “see addendum” as needed. If the PDF form does not allow you to fill in the space on the computer, you can hand-write the answer after you print it. Some of the most common questions are addressed in this section.

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Part B. General Information “Home address” and “safe mailing address.” Applicants should list their home address on the form but are allowed to also list an alternate safe mailing address due to the sensitive nature of human trafficking. If the physical address is either not safe from the abuser, or is a confidential shelter, you may want to only provide a safe mailing address. Leaving the home address section blank has not resulted in rejection of the application. Most often, clients will want to you use your office address as the safe mailing address.11 To date, USCIS has allowed this and will mail all notices, including both the official notices and the courtesy notices, to the attorney’s address. Clients may feel uncomfortable giving their address to USCIS, especially when they have the option of leaving it out. The USCIS Humanitarian Unit at the Vermont Service Center has historically not shared this information with ICE, but this protection is not in the regulations or statute and therefore not guaranteed. However, leaving out the client’s physical address will not protect them from being served with a Notice to Appear should the case be ultimately denied.12 The NTA can be served on the attorney of record to initiate removal proceedings. Notices to Appear and other issues surrounding removal proceedings and T nonimmigrant status applicants are discussed in depth in Chapter 9. PRACTICE POINTER: Addresses on Form I-916 and biometrics appointments. The address listed on the Form I-914 will determine the application’s jurisdiction for biometrics purposes. This means that if your client is physically located far away from your office, but you listed only your address, the biometrics will be scheduled for the jurisdiction of your office. Many Application Support Centers will accept biometrics appointments for other jurisdictions, but this could become a problem if this policy changes or is not accepted in your area. Make sure if you have a client who moves and/or changes addresses at any time after providing the addresses above to USCIS, that they file a Form AR-11 change of address online or by mail. Best practice is to also email it to the USCIS Humanitarian Unit at the Vermont Service Center at [email protected].

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Social security number. Only the applicant’s valid social security number issued to them by the Social Security Administration should be included here. If they used someone else’s number, or a fake number, do not include it. As best practice, if the client has a valid social security number but no legal status (hence why you are applying for the T nonimmigrant status), be sure to probe deeper into how they got the number. Traffickers may have fabricated documents, or the client may have other claims to legal status, unbeknownst to the client. Place of last entry. This can either be a port of entry or the nearest one to where the client entered without inspection. Although the client may only remember the Mexico-side city, include 11

For these kinds of humanitarian cases, the G-28 form also allows you to put the safe mailing address rather than the applicant’s physical address. The latest G-28 form also allows you to indicate that you want all documents sent to the attorney of record by checking the three boxes above the signature lines. 12 DHS Policy Memorandum, PM-602-0050.1, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, Jun. 28, 2018, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-6020050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf.

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only the U.S.-side city. For example, the client may say they crossed through Mexicali, but you should list Calexico as the place of entry. Form I-94 number. If the applicant entered the United States lawfully, they may still have their I-94 card. If they entered through a port of entry within the last five years, you may be able to retrieve the information online at https://i94.cbp.dhs.gov/I94/. However, it may not contain land border arrivals/departures. PRACTICE POINTER: Obtaining complete travel history. Travel history can be crucial to the applicant’s eligibility, depending on the type and timing of trafficking, due to the requirement of being “present on account of” the trafficking. This is even more reason to ensure the applicant’s history is accurate. As part of your assessment, you should file multiple FOIA requests for the applicant’s records with USCIS, CBP, and OBIM. Sample FOIA requests are available at Appendix N. Sometimes CBP will return results that nothing is found, even when you are certain records exist. By requesting documents from multiple agencies, you can leverage information from one against another. For example, if CBP closes a request with no records found, but OBIM shows a border apprehension, you can provide the OBIM information to CBP to appeal their determination and sometimes they will sometimes find additional documents. Part C. Additional Information This part of the Form I-914 lays out the basic eligibility requirements for T nonimmigrant status. If any of the answers to questions 1, 3, 4, 5, or 7 are “No,” then you need to revisit the client’s eligibility for this status. Question 2. This question asks whether the Form I-914 Supplement B certification by law enforcement is being included with the submission. This form is not required. However, the applicant must still show that they complied with law enforcement. If you do not have a certification, explain in the addendum the applicant’s efforts to obtain one. Additional supporting documentation can include communication between counsel and the law enforcement agency regarding cooperation and/or counsel’s request for certification. Part D. Processing Information

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Each question in this section roughly relates to a ground of inadmissibility and is the USCIS’ means to quickly screen for grounds. These questions get broader with each revision to encompass more activity for officers to scrutinize. For this reason, you must be vigilant in answering each question, and ensuring that your client understands the question completely. With broad questions, innocuous facts may warrant a “yes” answer but will not trigger a ground of inadmissibility. Because grounds of inadmissibility generally stem from violations of the law, whether it is an immigration violation or a crime, applicants should explain their actions in their declarations. They should express remorse and emphasize their rehabilitation following the acts. Grounds of inadmissibility and the waiver are discussed in depth in Chapter 5. Question 1. Remind applicants that these questions apply to anything that has happened anywhere in the world, not just the United States.

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Question 1.a. This question concerns whether a client has committed a crime for which they have not been arrested. The instinctual answer is no but examine the client’s declaration for crimes they have unwittingly committed, such as bringing their children to the United States without inspection. 13 In some cases, trafficking survivors were forced to commit crimes under duress as a part of their victimization. These crimes should also be included here. For example, a survivor of sex trafficking who was forced to work as a prostitute committed the crime of prostitution, even if they were never arrested or charged with prostitution. 14 PRACTICE POINTER: California’s juvenile confidentiality laws. If you are working with juvenile clients, or clients with delinquency records, be aware that some states have laws protecting juvenile records from disclosure. In California, pursuant to the Welfare and Institutions Code §§ 827 and 828, juvenile court information and files can be shared only with certain listed individuals. These include, for example, agencies working within the juvenile and child welfare systems, the minor, and the minor’s parents. There is also an exception for attorneys and judges, but only for those attorneys or judges that are actively involved in juvenile proceedings involving the minor. Notably, there is no exception for immigration attorneys or even for the federal government. California passed a law in 2015 that clarified that juvenile court files and information cannot be shared with immigration officials absent prior juvenile court approval. Under these laws, even if the juvenile or parent obtains the records lawfully, they will violate the law if they then disseminate the records to an unauthorized party, such as USCIS, without first obtaining court permission to do so. The request is filed on Form JV-570, Request for Disclosure of Juvenile Case File, along with the accompanying required forms. Immigration practitioners representing individuals who have a delinquency history must be careful to abide by these laws when submitting immigration applications to USCIS or the immigration court. 15

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Question 2.c. This question regarding “alien smuggling” is easily overlooked, sandwiched between questions about illegal gambling and drug trafficking. However, it is very common for clients to have brought their children or spouses to the United States without inspection. This also includes paying someone to bring their children, such as a coyote, or another family member. They need to list this ground of inadmissibility on Form I-192 and explain their involvement in the declaration. Question 8. As best practice, always answer “Yes” to these questions if the client was the victim of the activities described, even if the applicant was the only one “present or nearby.” In group trafficking situations, they may have even witnessed other victims be trafficked, which warrants a definite “Yes.” You should explain that the applicant is the victim of, and not a participant in, the illegal activity.

13

This question is asked directly as Question 2.c. This question is asked directly as Question 2.a. 15 For additional guidance on California’s confidentiality laws, visit ILRC’s “Remedies for Immigrant Children & Youth” page, found at http://www.ilrc.org/info-on-immigration-law/remedies-for-immigrantchildrenand-youth. 14

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§ 4.5

Filing Fees

There is no fee to file the Form I-914, nor the Form I-914 Supplement A for derivatives. There is also no fee for biometrics, if needed. When the client and their derivatives require a waiver of inadmissibility, they must either pay the fee or apply for a fee waiver. Fees can be paid by personal check or money order. 16 As of this writing, (November 2018), the fee for the waiver of inadmissibility is $930. The principal applicant for T nonimmigrant status does not need to file Form I-765 for work authorization because it is automatically included. However, derivatives who want and qualify for work authorization must file Form I-765 with their packet. As of this writing, the fee for this is $410. You should always check the USCIS website for the current fees at https://www.uscis.gov/fees. Checks or money orders should have the client’s name (and “alien number” if they have one) written on it, be attached to the forms with which they are associated and be payable to “U.S. Department of Homeland Security.” Make sure to spell out U.S. Department of Homeland Security; do not use the initials “USDHS” or “DHS.” § 4.6

Filing Fee Waiver Requests

Filing fees for any applications related to T nonimmigrant status can be waived using Form I-912. Fee waivers are based on economic need,17 by showing that the head of household receives public benefits, the household is at or below 150% of the federal poverty guideline, and/or has a financial hardship. The principal applicant can file one form to include all derivative family members, but you should include a copy of the packet with each form that requires a fee waiver. Each family member included in the Request for Fee Waiver must sign on page 6, and also on page 7. If there are several family members, use as many page 7s as you need. Any subsequently filed forms will need to include an additional fee waiver request. The fee waiver should be based on recent financial information and be signed no more than three months before the underlying application is submitted to USCIS, or it may be rejected.

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Beginning September 2018, the Vermont Service Center is adjudicating fee waiver requests much more harshly and denying requests that were previously approved. As of this writing (November 2018), there is no official memo from the Department of Homeland Security stating this policy, but it has been experienced by practitioners throughout the country. When a fee waiver is denied, the forms requiring a fee (Form I-192 and Form I-765) will be rejected and returned. 18 USCIS provides Form G-1054 Request for Fee Waiver Denial Letter, stating the reason for denial of the request as either “inability to pay” or insufficient information. The rejection will take a few weeks to be returned. A Sample Form G-1054 is included as Appendix O. This means you should prepare clients to provide a lot of documentation to prove need for a fee waiver. It may take several tries before a fee waiver is approved. Alternatively, the client can pay the fee.

16 Although some forms allow you to pay by credit card, this only applies to some forms filed with a Lockbox; all forms connected to T nonimmigrant status are filed with the Vermont Service Center. 17 Form I-912 is available on the USCIS website at https://www.uscis.gov/i-912. 18 Because the Forms I-914 and I-914A will be accepted, you can still meet deadlines related to derivative age-out and law enforcement certification expiration.

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PRACTICE POINTER: Public benefits and fee waiver requests. One basis on which you can request a fee waiver is if the applicant, applicant’s spouse, or the head of household is receiving a means-tested benefit. This means that person is receiving government benefits, also called welfare, based on being low-income. Not all government programs are means-tested. Examples of means-tested programs are Medicaid, Supplemental Nutrition Assistance Program (SNAP, formerly called Food Stamps), Temporary Assistance to Needy Families (TANF, generally cash aid), and Supplemental Security Income (SSI, generally monetary assistance based on a disability). These are the federal programs, but any local or state program that is also meanstested is acceptable for the fee waiver purpose. However, you should name the federal program in the form, even if it is being provided by the state under a different name. You can explain on page 11 what the actual benefit is. You also should provide a current Benefits Verification Letter; the Benefits ID Card is not enough to prove the applicant is currently receiving benefits. Benefits generally expire after one year. In California, benefits letters do not have an expiration date listed on the verification form, but typically need to be recertified annually.

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PRACTICE POINTER: Proposed changes to fee waiver request processing. On September 28th, 2018 DHS issued a notice of proposed rulemaking to propose changes to the way they will process fee waiver requests. These proposed changes include: • • • •

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removing receipt of means-tested benefits as a basis for qualifying for the fee waiver; requiring exclusive use of the I-912 for fee waiver requests (as of November 2018 statements requesting a fee waiver are also accepted in lieu of a Form I-912 request); requiring each person requesting a fee waiver to submit their own I-912; requiring individuals with no income or who cannot prove income to provide a detailed explanation of their situation AND to submit a Verification of Non-Filing from the IRS for every household member with no income; and

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requiring that to prove that income is at or below 150% of the federal poverty guidelines, the person would be required a submit a tax transcript, which must be requested from the IRS, rather than a copy of a tax return. 19

The public comment period on this proposed rule closed on November 27, 2018. As of this manual’s writing (November 2018) there were on final changes to the rule. Practitioners should be sure to check the regulations, and the USCIS form, instructions and guidance to ensure proper fee waiver requests. 20 § 4.7

Working with Law Enforcement to Request and Complete the Form I-914 Supplement B

Because T nonimmigrant status requires that the applicant cooperate with reasonable requests for assistance from law enforcement, the agency to whom they reported the trafficking to can sign this form. Unlike for U nonimmigrant status, this certification is not required. However, the certification serves as one piece of evidence and is not dispositive nor afforded special weight. 21 The requirements must still be supported with or without this certification. Form I-914 Supplement B Federal regulations outline who can sign a certification for T nonimmigrant status. 22 The certification must come from a federal, state, or local law enforcement agency, prosecutor, or court that detected, investigated, is investigating, prosecuted or is prosecuting the criminal activity. 23 Child Protective Services, Department of Labor, California Department of Fair Employment and Housing (DFEH), and others may also qualify as a certifying agency if they have criminal investigative jurisdiction in their respective area of expertise. In some cases, these investigative duties may refer to the detection of qualifying criminal activity, instead of the prosecution, which would still appear to qualify under the regulations. The Form I-914 Supplement B has two places for signatures by a law enforcement agency. Ask the law enforcement official to sign the Form I-914 Supplement B in blue ink. This helps USCIS ensure that the form you are submitting is an original—which is an important requirement and can result in a request for evidence if USCIS thinks the signature is a copy.

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Part C. Statement of Claim. This part involves the basis on which the trafficking claim is based. The questions in this section cover the details of the crime(s) being investigated. If you are providing a draft of the form to the law enforcement agency, you have the opportunity to ensure that the most critical details that meet the trafficking elements are included on the certification.

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You can read the complete notice of proposed rulemaking at https://www.uscis.gov/news/alerts/proposed-i-912-fee-waiver-form-revision. 20 You can follow the proposed rulemaking on fee waiver requests at https://www.uscis.gov/news/alerts/proposed-i-912-fee-waiver-form-revision. 21 8 CFR § 214.11(d)(3)(i). 22 8 CFR § 214.11(a). 23 Id.

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Question 1. In this question, you need to identify which form of human trafficking occurred, choosing from sex trafficking of an adult, sex trafficking of a minor, or labor trafficking. Not surprisingly, the language mirrors the regulatory definition of each. Question 2. This section contains details regarding the applicant’s victimization in relation to the investigation or prosecution. An example of this is that she was forced to provide domestic and sexual services to her husband or else he would beat her. However, the law enforcement agency may be investigating domestic violence, and thus she would be listed as a victim of domestic violence. Question 3. The applicant may or may not express to the law enforcement agency any fear of retaliation or revenge if removed from the United States. This will be extremely fact-specific, particularly if the traffickers are not from the same country as the applicant; removal to her home country may be irrelevant in relation to the traffickers; and this section might be empty. However, the risk of extreme hardship upon removal can be met in ways unrelated to the trafficking. Working with law enforcement to request and complete the Supplement B Many law enforcement agencies are largely unaware of the T nonimmigrant status, even if they are aware of the U nonimmigrant status and are familiar with the U nonimmigrant Form I-918 Supplement B. Often law enforcement agencies are not trained on working with trafficking survivors and will not recognize the crimes as human trafficking, rather as other lesser-included crimes. For example, where a wife is trafficked by her husband, law enforcement is much more likely to identify the domestic violence but not the human trafficking elements. This means it is rare for a police report or criminal complaint to actually list the crime of human trafficking. 24 Certifiers often need the attorney to explain how the fact pattern fits the definition of human trafficking before they will consider certifying. If you are dealing with a state or local agency, they will automatically look to their state law to determine whether the crime is human trafficking, but you can also direct them to the federal definition, which is what is required to obtain T nonimmigrant status. The certifier may be willing to accept that the facts fit under the federal definition, even if not under the state definition.

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Another hurdle is when law enforcement declines to certify because they did not charge the defendant with human trafficking due to lack of evidence. This may mean that the prosecutors charged a different crime, such as domestic violence, or declined to prosecute at all. The prosecutors must prove their case beyond a reasonable doubt for a conviction, which is a very high standard of proof, and therefore will only charge what they believe they can prove. However, USCIS requires a much lower standard of proof than criminal proceedings, 25 meaning a 24

In California, human trafficking is PC § 236.1, but domestic violence is PC §§ 273.5 or 242-243(e). “The standard of proof applied in most administrative immigration proceedings is the “preponderance of the evidence” standard. Thus, even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).” USCIS Adjudicator’s Field Manual, 11.1(c); see also, “The burden is on the applicant to demonstrate eligibility for T-1 nonimmigrant status. The applicant may submit any 25

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person can still qualify for T nonimmigrant status even if charges are not filed, or the perpetrator is not convicted. Law enforcement may abide by this lower standard for purposes of certifying. A Sample Request to Law Enforcement is included as Appendix P. More hostile agencies may rely on the assertion that certifying a case falls within their sole discretion. 26 Sometimes referring to the DHS U and T Visa Law Enforcement Certification Guide 27 can reorient the law enforcement agency because the Certification Guide is provided by DHS, and they may give it more weight than suggestions from an advocate or attorney. Practices regarding how to approach law enforcement agencies for a signature on the I-914 Supplement B will vary by agency. Some law enforcement agencies prefer to complete the form themselves. Others prefer trusted nonprofits or attorneys to complete the form with information contained in the law enforcement agency’s records. Regardless of their policy, it is important to make their job as easy as possible. In light of this, a best practice is to provide a completed certification as well as a blank one if you do not know the preference of a given law enforcement agency. Also, always include a copy of the police report unless you are unable to obtain it, or none exists. If you cannot obtain the police report, because for example your client was a minor, explain that fact in your cover letter. 28 Approaching law enforcement will also depend on the stage of the criminal case. Due to the lack of awareness of human trafficking, it is more likely that the trafficking survivor and/or attorney will be the first to raise the possibility to law enforcement. This may mean that the trafficking survivor is reporting the incidents for the first time, or the attorney is reframing the facts of the completed crimes to include human trafficking which was not previously considered. Keep reporting to a minimum of the facts since anything you provide is discoverable by the defendant during the criminal proceedings. In the case where an investigation or prosecution is opened or ongoing, law enforcement will likely want to conduct a review of the facts to determine whether human trafficking occurred before agreeing to certify.

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There are both benefits and risks to requesting a certification while an investigation or prosecution is open. The relevant law enforcement staff may be more likely to be available and knowledgeable about the case and have an interest in seeing the victim obtain protection and independence. However, the prosecutor in the criminal case will be required to disclose materials you submit in order to comply with constitutional obligations. 29 This can include statements about or statements by a witness that demonstrate an ulterior motive for testifying. Defendants and criminal defense attorneys may argue that the applicant is alleging a crime solely for the purpose of obtaining immigration status. Although they often make this argument even without a request for certification, they can point to the request as evidence of the defendant’s innocence. credible evidence relating to a T nonimmigrant application for consideration by USCIS.” 8 CFR § 214.11(d)(5). 26 8 CFR § 214.11(d)(3)(i). 27 This guide can be found online at https://www.dhs.gov/sites/default/files/publications/U-and-T-VisaLaw-Enforcement-Resource%20Guide_1.4.16.pdf. 28 For more information on dealing with juvenile records in California, see PRACTICE POINTER above. 29 Often called “Brady disclosure” after a seminal U.S. Supreme Court case, Brady v. Maryland, 373 U.S. 83 (1963), the prosecutor is required to turn over any material that is exculpatory or could be used for impeachment to the defendant.

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Because of this, some agencies will automatically deny requests for certifications while a criminal case is open, to avoid the perception of motive on behalf of the applicant trafficking survivor. Best practice is thus to submit only what is absolutely necessary to obtain a certification (often times a cover letter, the I-914 Supplement B, and the police report), and not to submit any extra documents in your certification request that might have to be disclosed, such as a declaration from the trafficking survivor, a copy of the T nonimmigrant status application, or other evidence about the crime. Once the prosecution has disclosed this material to the defense, the defense may use it to cross-examine your client. PRACTICE POINTER: Subpoenas for records and motions to quash. In addition to the possibility that the prosecutor might have to disclose part or all of the certification request you submit, the defense in a criminal case may also seek more information from you directly. The defense may subpoena your client’s T nonimmigrant status application or cross-examine their intentions in applying. Criminal defendants and their attorneys sometimes use this approach to imply to the jury that the T nonimmigrant status applicant had an ulterior motive in reporting the crime or cooperating with the police. In other words, the defense may want to imply that your client is exaggerating or fabricating the allegations in order to obtain legal status. One way of addressing this is to file a motion to quash to avoid having to comply with the subpoena. A Sample Motion to Quash a Subpoena is at Appendix Q. However, motions to quash may not be successful. Because of this, it is important to take additional steps to protect your client’s privacy. Ensure you and your client maintain confidentiality when discussing your client’s application. Have a conversation with your client to make sure they understand who they can talk to and about what. Carefully label your files and documents so that in responding to a subpoena you can show the judge that certain files are confidential and should not be turned over to the defense.

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You as the attorney may be required to appear in state court to produce the records even if you are not subpoenaed personally to testify, called a subpoena duces tecum. While you have already argued that the subpoena ought to be quashed entirely, it is possible the judge will want to review your file in chambers, known as an in camera review, to decide what, if anything, should be released to the defense. You should organize your file between what is discoverable and with a cover page for each privilege you are asserting: federal protection privilege for documents filed with or received from USCIS (completed application packet, receipt notices, biometrics notice, etc.), attorney-client privilege, work product privilege, and other unprotected documents that presumably the defense could obtain themselves. Hopefully the judge will decide to not release any of your file to the defense, but you should be prepared to appear regardless. If an applicant is cooperating against the perpetrator in an ongoing prosecution and is concerned about the possibility of the T nonimmigrant status certification request or application getting in the hands of the perpetrator, they can wait to ask for a certification request until the prosecution has ended. Waiting may delay the applicant’s immigration case, but it will not affect their eligibility. An investigation or prosecution does not have to be ongoing in order for law enforcement to certify that the applicant has complied with reasonable requests for assistance in the investigation or prosecution.

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It is also worth reminding the applicant that her obligation to cooperate with law enforcement does not end with the signature on the certification because the agency can revoke the certification at any time. This means the applicant must continue to comply with reasonable requests to assist with the investigation or prosecution, including up until they adjust to permanent resident. § 4.8

Documentation of Human Trafficking

With or without a certification from law enforcement, the Vermont Service Center will conduct a review of whether the alleged incidents actually occurred and whether those facts constitute human trafficking. While having the certification is extremely helpful, and serves as one piece of evidence, it is not dispositive. For this reason, you should provide as much corroborating evidence as possible. The more supporting documentation you can provide that proves parts of the client’s story, the more credibility they will have overall. Keep in mind that the applicant will not be interviewed, and so her declaration is her sole opportunity to tell her story and provide the facts of the trafficking. If the officer disregards this declaration, the case will likely be denied. Due to the involvement of money in trafficking cases, whether sex or labor trafficking, there is a higher likelihood of a paper trail. Unfortunately, the USCIS does not provide advocates with any sort of subpoena power, so we are left to our own devices in finding evidence. This is your opportunity to get creative and mentally walk through the client’s ordeal to think of possible attainable evidence. Example: Helena was forced into domestic servitude by family that posted an ad in Hungary for a live-in nanny in the United States. The traffickers brought her to the United States, telling her to commit fraud using her multiple-entry tourist visa. When she arrived, they bought Helena a phone to keep track of her because her Hungarian phone did not work in the United States. She was able to provide several pieces of evidence: flights from Hungary to the United States; T-Mobile cell phone service contract and receipt showing the trafficker’s payment on the phone; trafficker’s ad for a new live-in nanny (since Helena had already escaped); photos of Helena and the child that she babysat; and photos of her cot in the child’s bedroom.

§ 4.9

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Example: Lovelie worked in a residential care home and was never allowed to leave, in addition to failing to be paid properly for her hours. She was threatened with deportation if she filed any sort of complaint or tried to leave. A former coworker tipped off law enforcement who helped Lovelie escape. She can provide a falsified timesheet, her home care license, and text messages between her and the traffickers. Documentation of Cooperation with Law Enforcement

Because T nonimmigrant status applications do not require a law enforcement certification, you must pay extra attention to proving cooperation by the applicant when a certification is not available. Though not technically required, you should provide proof of your attempts to obtain a certification, such as an email requesting certification. For example, the U.S. Department of Labor is a certifying agency for T nonimmigrant status and will conduct an interview with the trafficking survivor in order to make the determination of whether or not to certify. Due to high demand, interviews may not be scheduled for a year, but the certifier will usually respond to your

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request with an acknowledgement of receipt of your request. You should submit a copy of this email as supporting evidence. Other times, law enforcement may decline to interview your client at all. In these cases, it is necessary to provide documentation of your client’s attempts to report the crime, even if no investigation was initiated. For example, the FBI often declines to interview potential trafficking survivors, in which case you can provide the email chain showing willingness to cooperate. Remember that the standard for cooperation is not refusing to comply with reasonable requests for assistance. If the law enforcement makes no requests once the applicant reports their trafficking, the applicant has met the burden of cooperation. The applicant must provide a description of cooperation in their declaration. 30 Additional evidence may include trial transcripts, court documents, news articles, police reports, orders of protection, affidavits of other witnesses (such as medical or social services personnel), photographs, and medical records. Keep in mind even when certification is available from law enforcement, USCIS considers it only one piece of evidence showing cooperation, and it is not dispositive. 31 PRACTICE POINTER: Documenting cases where cooperation with law enforcement is not required. Applicants who are minors under the age of 18, 32 and applicants who can establish that physical or psychological trauma impedes their ability to cooperate with law enforcement 33 are exempt from demonstrating compliance with reasonable requests for cooperation. For minor clients, you should submit your client’s declaration and proof of your client’s age, such as an official copy of the birth certificate, a passport, or a certified medical opinion. If you do not have an official document, you can submit other evidence of age, such as church or school records. 34

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For clients who can establish that physical or psychological trauma impedes their ability to cooperate with law enforcement applicant must submit evidence of the trauma, which may include the applicant’s affidavit alone describing the trauma. However, USCIS encourages submission of “any other credible evidence,” 35 which may include: “a signed statement from a qualified professional, such as a medical professional, social worker, or victim advocate, who attests to the victim’s mental state, and medical, psychological, or other records which are relevant to the trauma.” 36 See Chapter 3 for information on situations that apply for this exemption.

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8 CFR § 214.11(d)(2)(i). 8 CFR § 214.11(d)(3)(i). 32 TVPRA, § 4(b)(1)(A); INA § 101(a)(15)(T)(III); 8 USC § 1101(a)(15)(T)(i)(III); 8 CFR 214.11(h)(4)(ii). 33 See INA § 101(a)(15)(T)(iii); 8 USC § 1101(a)(15)(T)(iii); 8 CFR § 214.11(h)(4)(i). 34 8 CFR § 103.2(b)(2)(i). 35 Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for ‘‘T’’ Nonimmigrant Status, 81 Fed. Reg. 92,266 at 92,277 (Dec. 19, 2016) (codified at 8 CFR Pts. 212, 214, 245, and 274a). 36 Id. 31

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§ 4.10 Applicant’s Declaration Due to the hidden nature of human trafficking, the applicant’s declaration may be the only evidence available; it is also required by the regulations. 37 This means that its importance cannot be overstated. However, the declaration must still be in your client’s own words. It is best to think about the declaration as a piece of primary evidence, from which you will piece together the legal argument for eligibility. With that in mind, you need to ensure it encompasses all of the elements: that the incidents constituted human trafficking; the applicant is present on account of human trafficking; the applicant complied with reasonable requests in the investigation or prosecution; and that they would suffer extreme hardship if they were removed from the United States. If the applicant meets an exception to the requirement to comply with reasonable requests, this should also be explained here. It must include enough details to be found credible, such as dates and descriptions of events. If you have corroborating evidence, the declaration should also not contradict that evidence; or if there is an inconsistency, the applicant needs to explain why. If you have a certification from law enforcement, the declaration can be shortened. Example: Tonantzin was trafficked from within Mexico and was brought to the United States by her trafficker. The group was apprehended by Customs and Border Patrol just inside the Texas border. A couple of days later she was released on her own recognizance. A CBP FOIA reveals that she told the CBP officer that she was pregnant on the day she was released. The Vermont Service Center notes in a Request for Evidence that in her declaration Tonantzin said she did not know she was pregnant, but that she told a CBP officer she was two months pregnant. Her supplemental declaration explains that she found out she was pregnant while in detention during a routine medical check. This shows that she was not actually inconsistent, because she did not know she was pregnant at her first interview with CBP but did know at the second interview.

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Because of the complexity of human trafficking incidents, best practice is to work closely with the client to develop her declaration. This is because human trafficking survivors will likely not know which facts are most critical to include in order to fit the narrow definition of human trafficking. It is most likely that if the client attempts to write a declaration herself, much more information will still need to be included and take several revisions. To minimize the back and forth, attorneys should come to the meeting prepared to guide the client through their story and touch on every element. As with any traumatized individual, facts about the victimization will surface during a discussion and usually require more than one review. Advocates have varying approaches to the applicant’s declaration, and there is no one right way. Logistically, assuming the client is not comfortable in English, the attorney or advocate can transcribe the declaration in the client’s native language or directly into English. As with all documents submitted to USCIS, an English language version must be provided. If the declaration is written in English but was not dictated in English, the interpreter must certify that they read the declaration to the applicant in the applicant’s native language. Though not required, you can also provide that declaration in the native language to ensure that the applicant can read the declaration that they are signing under penalty of perjury and that it was read to the applicant in their language. For example: “I declare under penalty of perjury that the foregoing was read to me 37

8 CFR § 214.11(d)(2)(i).

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in Spanish and is true and correct to the best of my knowledge.” If the declaration is provided in the native language, a translator must certify an English translation. For example: “I attest to my competency to translate from [language] to English, and I certify that this is a true and correct English translation of all pertinent information from the [language] language original.” § 4.11 Documentation of Extreme Hardship upon Removal As discussed in Chapter 3, an applicant’s requirement to prove they will suffer extreme hardship upon removal is not limited to circumstances related to the trafficking. 38 The federal regulations suggest supporting this element by providing a personal declaration and country conditions reports. 39 As you work through the factors of extreme hardship provided in the regulations, 40 consider how to corroborate each assertion that you are making in your legal argument. For example, if you are arguing that your client will suffer because they are a minor, be sure that you have proof of her age, like a birth certificate or passport. It is also usually helpful to have the applicant evaluated by a psychologist, if they have not been previously diagnosed with any mental health concerns. 41 If relevant, you can look to country conditions reports to show a lack of mental health care in the home country. Country reports include the U.S. Department of State report, but also non-governmental organizations provide these, such as Human Rights Watch and Amnesty International. Often there are specialized reports on particular conflicts or issues. If the applicant has been diagnosed, or has some other sort of hardship, academic journals may provide additional information. For example, medical journals may have more specific articles regarding the availability of psychiatric hospitals in a particular country. Local libraries often provide free access to these types of research journals. Because academic articles contain professional jargon, be sure to literally highlight the key points in the article, and also quote the passages in your cover letter. § 4.12 Assembling and Submitting a T Nonimmigrant Status Application

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The best way to assemble a packet for USCIS is to make it as easy as possible for the officer to understand and adjudicate. The packet you submit will inevitably be reorganized by the mail room before it reaches the officer, but all the documents will still be reviewed by the officer. As laid out above, your cover letter should include a list of everything that you are submitting, not just for the officer’s sake but also for yours. Some tips for submitting the T nonimmigrant Immigrant status application include: • • • •

Two-hole punch at the top of the entire packet Single-sided pages Signatures must be original and signed in blue ink If submitting passport photos, place them in a small clear plastic bag and staple to the corresponding form

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8 CFR § 214.11(b)(4); 8 CFR § 214.11(i). 8 CFR § 214.11(i)(3). 40 8 CFR § 214.11(i)(2). 41 When the client is being evaluated for mental health purposes, you also need to be careful not to trigger a ground of inadmissibility related to being a danger to self or others. 39

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Make a copy of the Form G-28 and/or Form I-912 Fee Waiver for each packet that contains a different application (for example, Forms I-914, I-192, and I-765) Include dividers between exhibits using colored paper, but not tabs that protrude beyond a letter-size piece of paper Do not submit electronic media (e.g. CDs, USB drives, etc.); if you have them, print out photos, screenshots, or transcriptions of the audio Do not submit originals, unless instructed to do so (e.g. original signatures on forms, but copies of birth certificates) Do not submit anything you expect to be returned, unless instructed to do so (e.g. passport) Send via trackable courier: USPS Priority Mail, FedEx, or UPS § 4.13 Notices from USCIS

Receipt notices Between two and four weeks after the T nonimmigrant status application is filed, USCIS will mail the I-797C Notice of Action receipt for each form for each applicant. These receipts are evidence that the application has been filed and can be useful for several reasons. First, in states that grant public benefits to applicants for T nonimmigrant status, applicants can use these receipts to prove eligibility for the benefits. Second, applicants in removal proceedings may, depending on the case, be able to use these receipt notices as a basis to ask ICE or the court to continue, administratively close, or even terminate the case. Finally, some applicants carry the receipts as evidence that they are in the process of obtaining legal status in case they are picked up by immigration authorities. Biometrics appointment

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Between two and four weeks after the receipt arrives, the applicant will get a notice to have her biometrics taken at a USCIS “Application Support Center.” Biometric information is physical, identifying information that the immigration authorities will take to verify the identity of the applicant in their database as well as to check against other entries in their database and other centralized databases. In this way, the biometric information is essentially used by the government to do a background check to see if the applicant has triggered any grounds of inadmissibility or had any prior immigration problems. The principal applicant’s biometrics are usually taken in the form of fingerprints, a signature, and a digital photo. Derivative applicants’ biometrics do not include photos, so they still need to submit two photos with their Form I-765 EAD application if they are in the United States. There is no longer a fee charged for biometrics. Each applicant who applies for T nonimmigrant status (both principal and derivative applicants) from within the United States will receive a separate notice to appear at an Application Support Center to have their biometrics taken if they are 14 years old or older. Applicants who are younger than 14 or older than 79 do not have to submit their fingerprints, although they may be called in for a photograph if that is needed. A Sample Application Support Center Appointment Notice is at Appendix R. Applicants are asked to fill out a simple form including

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their address at the biometrics appointment, so it is important to remind applicants not to disclose a confidential address at their biometrics appointment. Instead they should use your office address if that is the address you listed on the forms. If a T nonimmigrant applicant is detained and needs assistance in obtaining photographs, they should reach out to her Deportation Officer at ICE Enforcement and Removal Operations (ERO) or Homeland Security Investigations (HSI) officials in her district. Derivatives who are outside the United States will be instructed to submit fingerprints in their country of residence. The instructions, in the form of a Request for Evidence Form, are sent to the principal applicant, with fingerprint cards. Information for Derivative Family Members can be found at Appendix S. Fingerprints may be taken at the closest USCIS office, U.S. consulate, U.S. embassy, or military installation. To find an office near the applicant, look for “immigration overseas offices” on the USCIS website. Practitioners have noted that many of these offices are still unfamiliar with the fingerprint requirements or process for T nonimmigrant applicants, so you should be prepared to do some advocacy, education, or searching for an appropriate place to fulfill this requirement. You can also check the shared document, “Consulates: Fingerprints and U Visa” on the U Visa Zoho database administered by the Immigration Center for Women and Children (ICWC). 42 You can also reach out to the DOS liaison, or Congressional Representative’s office for assistance. § 4.14 Requests for More Evidence (RFEs)

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If USCIS has any questions or concerns about a T nonimmigrant status application that has been submitted, they may send a Request for Evidence (RFE) specifying what additional information, documentation, or clarification is needed. On July 13, 2018, the Department of Homeland Security issued a memorandum giving USCIS broader authority to deny cases that lack required initial evidence, without issuing an RFE. This memo went into effect on September 11, 2018 and applies to applications submitted after that date. USCIS has also updated their website www.uscis.gov to include a tab that lists the required initial evidence. At a public stakeholder conference held with USCIS on September 6, 2018, USCIS offered that the policy is intended to discourage unsupported “skeletal” applications, not to punish innocent mistakes. 43 This policy replaces the “no possibility” guidelines that denials would be issued without RFE only if there was no possibility that the defect could be cured, such as an application for a nonexistent benefit. Although the lists are provided on the website, they are the bare minimum required for the submission to not be rejected by USCIS, they are not necessarily enough for approval of an application. As of this manual’s writing (November 2018), an RFE is printed on white paper, with a barcode in the upper third of the page intended to alert advocates to a notice with a deadline (note that RFEs were printed on blue or yellow paper in the past). RFEs typically give the applicant the

42

Information about this database is available at https://www.icwclaw.org/icwc-u-visa-zoho-database/. USCIS Policy Update on Issuing RFEs and NOIDs, Sep. 6, 2018, available at https://www.uscis.gov/sites/default/files/files/nativedocuments/USCIS_Policy_Update_on_Issuing_RFEs_ and_NOIDs.pdf. 43

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maximum 87 days to respond. 44 USCIS will not grant requests for additional time to respond to an RFE unless the applicant resides outside the United States, to allow for additional mailing time. Only one RFE will be issued in a case unless the response to the RFE opens up a new line of inquiry. 45 Sample RFEs and Responses can be found at Appendix T. It is critical to respond to any RFE received in a case, even if it appears to be requesting documents that were previously submitted and even if your response is just to tell VSC that no other documentation is available. Failure to respond will lead to denial of the application either on the record submitted or due to abandonment of the process. 46 It is also important to return your response to the RFE with the original RFE on top of your submission so that the RFE response is recognized as such in the mailroom and promptly routed to the correct file. VSC receives thousands of pieces of correspondence each day. If the coversheet is not on the top of the response it will be placed in “general” correspondence at VSC and not sorted as a priority, which may delay the case, or worse, be routed to the wrong place and result in your case being denied for abandonment. PRACTICE POINTER: Amending an application before receiving an RFE. Sometimes applicants may wish to send additional information to supplement their application before they receive an RFE. VSC does not recommend submitting supplemental documentation to a pending T nonimmigrant status application before the issuance of an RFE, as such documentation may not be properly matched with the file and can be lost. If you do submit additional documentation before receiving an RFE, write the receipt number in large font on the first page of the cover letter to try to help get your submission into the file. Unfortunately, however, there is still no guarantee that the supplemental information will make it into the applicant’s file, and there is no way to track whether it was received by USCIS. § 4.15 Approvals

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If the T nonimmigrant status is approved, the notice of approval and an employment authorization document (EAD) valid for the entire four-year period of T nonimmigrant status will be mailed to the advocate with a G-28 on file and to the applicant. The applicant has the option of having all documents mailed to the attorney or advocate by checking the appropriate boxes on the G-28. The T nonimmigrant status approval document is Form I-797A, Notice of Action with a Form I-94, “Arrival-Departure Record,” incorporated into the bottom of the approval notice indicating T nonimmigrant status. The employment authorization document (EAD) is an identification card with the applicant’s picture, indicating the holder’s ability to work legally in the United States, and a validity period of four years. A copy of a T Nonimmigrant Status Employment Authorization Document can be found at Appendix U. If the applicant was not previously certified as a victim of human trafficking by the Office of Refugee Resettlement, Department of Health and Human Services, the advocate with a G-28 on file will be contacted by email by the Office on Trafficking in Persons of the Office of the Administration for Children and Families (ACF) indicating that a client has been identified as 44

8 CFR § 103.2(b)(8)(iv); see also Adjudicator Field Manual 10.5(b)(3). Adjudicator Field Manual 10.5(a)(2). 46 Adjudicator Field Manual 10.5(b)(6)(iii). 45

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eligible for benefits and services. You must fill out the “CM ID” form which is to identify the case manager assigned to the client. USCIS may also notify the law enforcement agency that provided certification, if applicable.47 Derivative applicants who are outside the United States will not receive an EAD until they have been admitted to the United States. They must file Form I-765, with fee or fee waiver and two passport photos, upon entry in order to receive an employment authorization document. See Chapter 10 for a discussion of issues impacting derivative applicants. If the applicant has a prior removal order, it should have been disclosed in the waiver of inadmissibility. If the removal order was issued by DHS, such as an expedited removal at the border, it is automatically rescinded by operation of law as of the date of the T nonimmigrant status approval. 48 If the order was issued by an immigration judge, you will need to move the court to reopen the removal proceedings and terminate. 49 The ICE Office of Chief Counsel may join in your motion to reopen and terminate given the approval, but they are not required to do so. 50 If you are time-barred 51 or numerically-barred 52 from filing a motion to reopen, you can file it requesting sua sponte, meaning the court will do it on their own. A Sample Motion to Reopen and Terminate is included in Appendix JJ. It is extremely important to counsel your client about the procedures following the T nonimmigrant status approval, including the risks involved in leaving the United States, the expiration date of the T nonimmigrant status, the date of eligibility for permanent resident status, the obligation of continued reasonable cooperation with law enforcement, and keeping presence documents for future adjustment of status. For a thorough discussion of travel options and risks, see Chapter 10. For a thorough discussion of T adjustment of status, see Chapter 6 and Chapter 7. § 4.16 Denials

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In the first half of Fiscal Year 2018, the denial rate of T nonimmigrant cases at the Vermont Service Center (VSC) was about 18% of cases. 53 USCIS is required to provide the reasons for the denial in writing. 54 If a T nonimmigrant status application is denied, the applicant is only given 33 days from the date on the denial notice to (1) file a motion to reopen, (2) file a motion to reconsider, or (3) appeal the denial. 55

47

8 CFR § 214.11(d)(9). 8 CFR § 214.11(d)(9)(i). 49 8 CFR § 214.11(d)(9)(ii). 50 Id. 51 Orders of removal must be appealed or reopened within a certain time. 52 Immigrants in removal proceedings are only allowed to request to reopen their case once, unless other exceptions apply. 53 USCIS, Number of I-914 Petitions for T Nonimmigrant Status by Fiscal Year, Quarter, and Case Status 2008-2018, available at https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20St udies/Immigration%20Forms%20Data/Victims/I914t_visastatistics_fy2018_qtr2.pdf. 54 8 CFR § 214.11(d)(10), 8 CFR § 103.3(a)(1)(i). 55 8 CFR § 214.11(d)(10); 8 CFR § 103.3(a)(2); 8 CFR § 103.8(b). 48

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USCIS can deny either the Form I-914 T nonimmigrant status application or the Form I-192 waiver of inadmissibility; however, when one is denied, the other will also be denied. The VSC will typically review the Form I-914 for eligibility first, and if the status is denied on that basis, the waiver is subsequently denied as essentially unnecessary. If the applicant is eligible for T nonimmigrant status, but the VSC declines to grant the waiver of inadmissibility, the Form I914 will be denied because the applicant is not admissible. If the VSC denies T nonimmigrant status, the I-914 denial letter will state something along the lines of “You have not established your eligibility for the desired classification, and USCIS cannot reach a favorable decision.” The waiver of inadmissibility will state something along the lines of “Because the Form I-914 was denied, you are not eligible to receive a waiver of inadmissibility.” When it is the reverse, that the applicant is eligible for T nonimmigrant status but the waiver was denied, the I-914 denial will state something like “Because Form I-192 was denied, the stated ground of inadmissibility has not been overcome” and the waiver denial will state “You have not provided sufficient evidence to establish that granting a waiver would be in the national or public interest.” Sample Approval and Denial Notices are attached as Appendix V. The distinction of which form was denied is critical because a denial of Form I-914 can be appealed, whereas a denial of a Form I-129 waiver of inadmissibility cannot be appealed. See § 4.19 for more information about how to appeal a denial. Under the current presidential administration, new policies have drastically increased the risks of applying for any sort of status. On January 25, 2017, President Trump signed Executive Order 13768, Enhancing Public Safety in the Interior of the United States. 56 As a result, on June 28, 2018, USCIS issued new policy guidance regarding when they will refer cases to immigration court for removal proceedings. 57 Though previously the risk of a denied case being issued a Notice to Appear was very low, that protection has been removed. The current policy states that NTAs will only be issued by the Humanitarian Unit at VSC after the case has been denied, as opposed to while the case is pending. The policy was implemented at the Humanitarian Unit of VSC as of November 19, 2018. USCIS also indicated that they will not issue NTAs prior to the expiration of the time to file an appeal, meaning an NTA shouldn’t be issued before 33 days. 58 Practitioners also must keep in mind that although you can provide a safe address on the forms to protect the applicant, NTAs can be lawfully served on the attorney of record.

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White House, Executive Order 13768, Enhancing Public Safety in the Interior of the United States, Jan. 25, 2017, available at https://www.whitehouse.gov/presidential-actions/executive-order-enhancing-publicsafety-interior-united-states/. 57 DHS Policy Memorandum, PM-602-0050.1, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens, Jun. 28, 2018, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-6020050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf. 58 DHS USCIS, USCIS Teleconference on Notice to Appear (NTA) Updated Policy Guidance, Sep. 27, 2018, available at https://www.uscis.gov/sites/default/files/files/nativedocuments/USCIS_Updated_Policy_ Guidance_on_Notice_to_Appear_NTA.pdf.

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§ 4.17 Duration and Extension of Status Applicants with an approved Form I-914 will be granted T nonimmigrant status for up to four years. 59 Derivative family members may also receive status up to the period initially approved for the T-1 principal nonimmigrant. 60 The period of status will be indicated on the approved T nonimmigrant holder’s Form I-94 card. 61 The T nonimmigrant status cannot be extended except in specific circumstances. The INA was amended in 2008 to allow an extension if: •

A law enforcement agency certifies that the presence of the T nonimmigrant in the United States is necessary for an investigation or prosecution of the trafficking. 62

•

Exceptional circumstances warrant an extension. 63 Another part of the statute describes “exceptional circumstances (such as battery or extreme cruelty to the alien [sic] or any child or parent of the alien [sic], serious illness of the alien [sic], or serious illness or death of the spouse, child, or parent of the alien [sic], but not including less compelling circumstances)” as “beyond the control of the alien [sic].” 64 This definition is used specifically in the sections of the statute codifying removal proceedings and cancellation of removal requirements. The USCIS policy memorandum released on April 19, 2011 65 did not provide more guidance for exceptional circumstances, other than examples of consular processing and special derivative circumstances. However, on a Vermont Service Center stakeholder call held on February 15, 2012, VSC adjudicators indicated that “exceptional circumstances” would be evaluated on a case-by-case discretionary basis and something like “being in the hospital in a coma” might qualify.

One common reason to file an extension is to allow derivatives to process their T nonimmigrant status. T derivatives must adjust their status with the principal, and therefore if the principal adjusts before the derivative(s), those derivatives will not be able to enter the United States on a T visa to obtain T nonimmigrant status at all. 66

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To file an extension of status for one of these reasons, use Form I-539 Application to Extend/Change Nonimmigrant Status. As of November 2018, the cost is $370, or you can request a fee waiver. You will also likely want to submit a new Form I-765 Application for Work Authorization along with the request for extension. The current fee for Form I-765 is $410, or fee waiver, and requires two passport photos. Always check the USCIS website at https://www.uscis.gov/fees or current fee information, as fees are changed regularly.

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8 CFR § 214.11(c)(1). 8 CFR § 214.11(c)(2). 61 8 CFR § 214.11(c)(3). 62 INA § 214(o)(7)(B)(i). 63 INA § 214(o)(7)(B)(iii). 64 INA § 240(e)(1). 65 USCIS Policy Memorandum, PM-602-0032.1, Extension of Status for T and U Nonimmigrants; Revisions to Adjudicator’s Field Manual (AFM) Chapter 39.1(g)(3) and Chapter 39.2(g)(3) (AFM Update AD11-28), Apr. 19, 2011, available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2 011/April/exten.status-tandu-nonimmigrants.pdf. 66 8 CFR §§ 214.11(c)(2), (k)(1)(iv). 60

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USCIS must extend T nonimmigrant status while a T adjustment of status application is pending under INA § 245(l). 67 See Chapter 6 and Chapter 7 for more information about T adjustment of status. § 4.18 Revocation of T Nonimmigrant Status USCIS may revoke an approved T nonimmigrant status for the principal and/or derivatives. When USCIS chooses to revoke the principal’s T-1 nonimmigrant status, they must follow the regulatory guidelines applicable to all revocations. 68 This means that USCIS must first issue a notice of intent to revoke (NOIR) stating the reasons for intended revocation and allow the applicant time to respond. The reasons that USCIS can revoke a principal’s approved application are: the approval was issued in error during the preparation, procedure, or adjudication that affects the outcome; a law enforcement agency notifies USCIS in writing that the applicant has refused to comply with reasonable requests for assistance (as required for eligibility); or the law enforcement agency that signed the certification on Form I-914 Supplement B withdraws or rescinds its certification in writing. 69 The reasons that USCIS can revoke a derivative’s approved application are: the derivative notifies USCIS that they will not seek admission to the United States; the principal’s nonimmigrant status is revoked; or the qualifying relationship is terminated (specifically, the T-2 holder is divorced from the T-1 holder). 70 USCIS may automatically revoke a derivative’s status for the first two reasons; they will not receive a NOIR. You must respond to the NOIR by the date listed on the notice with any additional evidence to rebut the intent to revoke. This is usually 30 days from the date of the notice. If USCIS revokes the T-1 principal’s nonimmigrant status, all derivatives are automatically revoked as well. 71 This also revokes any approved waiver of inadmissibility submitted in conjunction with the T nonimmigrant status application. 72 USCIS may refer the applicant to removal proceedings following revocation if the applicant committed acts making them removable following the approval, or failed to disclose prior conduct in the application that has not been waived. 73 USCIS may also notify other agencies of the revocation, including the law enforcement agency that signed the certification, a consular officer having jurisdiction over the applicant, or the Office of Refugee Resettlement.74

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Revocations follow the same appeal procedures as denials, discussed in § 4.16. They can be appealed to the Administrative Appeals Office within 30 days of the decision, or 33 days if the decision was mailed.

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INA § 214(o)(7)(C). 8 CFR § 214.11(m)(3); 8 § CFR 103.3. 69 8 CFR § 214.11(m)(2)(i), (iii), (iv). 70 8 CFR § 214.11(m)(1), (2)(i), (2)(ii). 71 8 CFR § 214.11(m)(3). 72 8 CFR § 214.11(m)(3). 73 8 CFR § 214.11(n). 74 8 CFR § 214.11(m)(3). 68

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§ 4.19 Appeals and Motions to Reopen or Reconsider Appeals Advocates across the country have been reporting that denials are becoming more common due to heightened scrutiny by the VSC officers. An appeal is when a higher adjudicative body, the Administrative Appeals Office (AAO), reviews the record on file to determine if the decision was made properly under the law. 75 This request is made on Form I-290B. 76 A filing fee or a fee waiver must be submitted with the filing. An appeal is considered in a two-step process. The appeal is filed with VSC, which will take the first look. Per 8 CFR § 103.3(a)(2)(iii), an appeal to the AAO includes a review by the adjudicating officer to decide whether favorable action is warranted before forwarding the case to the AAO. VSC will review the case within 45 days. 77 If it fails to take favorable action, it will forward the entire file onto the AAO. 78 Because of this, the appeal should be written as if it were an appeal to the AAO 79 but filed with VSC. Advocates report that they have been able to submit new evidence with the appeal and USCIS will consider it. The VSC will first determine whether they will reopen or reconsider the decision. Then they will adjudicate the case again, and either approve or deny the T Status. If the AAO is also going to review the appeal, they will sustain or dismiss the appeal. If they sustain the appeal, they will remand the case to VSC, meaning they will send the file back so that VSC can officially approve the status. If the appeal is dismissed, the review process ends, and the status remains denied. Motions to reopen and motions to reconsider Denials of the Forms I-192 waiver cannot be appealed, so only a motion to reconsider or a motion to reopen can be filed for those denials. These motions are also filed on Form I-290B and have the same fee. A motion to reopen must be accompanied by new facts and/or documentary evidence that establish eligibility at the time of the T nonimmigrant status application filing. 80 A motion to reconsider must establish that the decision was based on an incorrect application of law or policy, and that the decision was incorrect based on the evidence of record at the time of decision. A motion to reconsider must provide citations to the statute, regulations, or precedent decisions that serve as the basis for the motion. 81

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PRACTICE POINTER: Appeal or motion? Most attorneys faced with a denial of T nonimmigrant status encounter the same problem: whether two forms need to be filed because technically two applications were denied (the Form I-914 and Form I-192). 82 Advocates report that, based on their experience, once you have determined which form was the root cause of the denial (see the Denials subsection § 4.16), that is the form that you either move to reopen and reconsider or

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USCIS Policy Manual Ch. 3.4. 8 CFR § 214.11(d)(10); 8 CFR 103.3(a)(2). 77 8 CFR § 103.3(a)(2)(iii). 78 8 CFR § 103.3(a)(2)(iv). 79 8 CFR § 103.5(a)(6). 80 8 CFR § 103.5(a)(2); USCIS Policy Manual Ch. 4.2. 81 8 CFR § 103.5(a)(3); USCIS Policy Manual Ch. 4.3. 82 Some T nonimmigrant status applicants do not require a waiver of inadmissibility and did not have to file a Form I-192. 76

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appeal, depending on the situation. If the motion or appeal is sustained, the other corresponding denial should be remanded to VSC for consideration. For example, if the T nonimmigrant status application was denied, but the appeal is sustained, the waiver of inadmissibility will be remanded back to VSC for consideration. A T nonimmigrant status application can be re-filed following a denial because there is no statute of limitations or time limit, nor a limit on reapplying. In such cases, any deficiencies or inconsistencies in the previously submitted application should be explicitly addressed and explained. Remember that the officer will have the entire previously-filed application in the applicant’s A-file, meaning they will know exactly why the previous one was denied and can scrutinize and compare the two applications. Form I-290B packet The Form I-290B can only have one box checked, so you must choose whether you are only filing a motion to reopen, motion to reconsider, motion to reopen or reconsider, or an appeal. You must also check the box that indicates whether you are filing a brief and/or additional evidence with the form or no additional documents. If you are filing an appeal, you also have the option of having an additional 30 days to submit a brief and/or supporting documentation. A motion to reconsider will rest almost entirely on your legal argument, so few documents are required to accompany the Form I-290B. They include: • • • •

Form G-28 Notice of Entry of Appearance for Attorney Form I-290B Filing fee or Form I-912 Request for Fee Waiver Legal brief or cover letter supporting appeal/motion if you need more space than provided on the Form I-290B

If you are filing an appeal or including a motion to reopen, you will also have additional documentation. Remember that any non-English documents must be accompanied by a certified English translation, or else they will not be considered.

• • • • • •

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Additional tips for filing an appeal or Motion to Reopen or Reconsider with either the VSC or AAO are similar to those for an initial submission: Two-hole punch at the top of the entire packet Single-sided pages Signatures must be original and signed in blue ink Do not submit originals, unless instructed to do so (Ex. original signatures on forms, but copies of birth certificates) Do not submit anything you expect to be returned, unless instructed to do so (Ex. passport) Send via trackable courier: USPS Priority Mail, FedEx, or UPS

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Finally, if you do not prevail in your motion or appeal, you may also want to explore whether you could petition for a writ of mandamus in federal court. Because a writ of mandamus can set legal precedent (and be time- and resource-intensive), do not proceed with this option without first seeking the counsel of national advocates who are tracking requests for mandamus. In particular, contact Coalition to Abolish Slavery & Trafficking (CAST) at https://www.castla.org/trainingresources/.

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CHAPTER 5 INADMISSIBILITY GROUNDS AND WAIVERS This chapter includes: § 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10

Overview of Inadmissibility and Waivers ............................................................ 85 Inadmissibility Grounds and Waivers at the T Nonimmigrant Stage ................... 87 Inadmissibility Grounds and Waivers at the T Adjustment of Status Stage .......................................................................................................... 88 Identifying an Applicant’s Grounds of Inadmissibility to Be Waived ................. 89 Addressing Inadmissibility on the Form I-914 ..................................................... 94 Completing Form I-192 ........................................................................................ 95 Documenting That the Applicant Merits a Waiver .............................................. 96 Filing Fees and Fee Waivers ................................................................................ 98 Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) ................................................................................................................ 98 Waiver Denials and Resubmissions ..................................................................... 98

§ 5.1

Overview of Inadmissibility and Waivers

All applicants for T nonimmigrant status, including derivative family members of T principal applicants, are subject to the grounds of inadmissibility in § 212(a) of the Immigration and Nationality Act (INA). These grounds could bar an applicant from eligibility for a T visa, T nonimmigrant status, or adjustment of status to lawful permanent residence. Some of the more common inadmissibility grounds are those related to: •

•

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health grounds, including o communicable diseases, INA § 212(a)(1)(A)(i); o physical or mental disorders that may pose a threat to the applicant or public, INA § 212(a)(1)(A)(iii); o drug abuse or drug addiction, INA § 212(a)(1)(A)(iv); immigration violations, including o being present in the United States without admission or parole (also known as entering without inspection or EWI), INA § 212(a)(6)(A); o failure to attend removal proceedings, INA § 212(a)(6)(B); o misrepresentation or fraud for an immigration benefit, INA § 212(a)(6)(C)(i); o false claim to U.S. citizenship after September 30, 1996, INA § 212(a)(6)(C)(ii); o alien smuggling, INA § 212(a)(6)(E); o civil document fraud, INA § 212(a)(6)(F); o prior removals, INA § 212(a)(9)(A);

unlawful presence of more than 180 days or more than a year followed by a departure from the United States, INA § 212(a)(9)(B); o unlawful entry to United States after more than one year in unlawful presence or after prior removal, INA § 212(a)(9)(C)(i); criminal acts or convictions, including o crimes involving moral turpitude, INA § 212(a)(2)(A)(i)(I); o controlled substance (illegal drug) convictions, INA § 212(a)(2)(A)(i)(II); o the Department of Homeland Security (DHS) has “reason to believe” the applicant trafficked (sold or transported) drugs, INA § 212(a)(2)(C)(i); o prostitution, INA § 212(a)(2)(D)(ii); security or terrorism issues, INA § 212(a)(3); public charge, INA § 212(a)(4); polygamy, INA § 212(a)(10)(A); unlawful voting, INA § 212(a)(10)(D); and no passport, or expired passport, INA § 212(a)(7)(B)(i). o

•

• • • • •

Under INA § 212(d)(13), USCIS has broad discretionary authority to waive grounds of inadmissibility for T nonimmigrants, making them eligible for some of the most generous waivers in all of immigration law. USCIS may waive INA § 212(a)(1) (health-related grounds), if USCIS considers it to be in the national interest to grant a waiver.1 USCIS may also waive almost any other ground of inadmissibility if USCIS considers it to be in the national interest to grant a waiver and determines that the activities rendering the applicant inadmissible were caused by, or were incident to, the trafficking victimization.2 USCIS, however, may not waive INA § 212(a)(3) [security and related grounds], INA § 212(a)(10)(C) [international child abduction], or INA § 212(A)(10)(E) [former U.S. citizens who renounced citizenship to avoid taxation]. 3 The public charge ground of inadmissibility under INA § 212(a)(4) does not apply to an applicant for T nonimmigrant status; therefore no waiver of that ground is necessary4 and no separate waiver form is required. 5 According to the statute, the public charge ground of inadmissibility does appear to apply at the time of adjustment of status to lawful permanent resident.6 A waiver for public charge is available, 7 and arguments may be made that the public charge ground should not apply to T adjustment of status at all. 8

1

INA § 212(d)(13)(B)(i). INA § 212(d)(13)(B)(ii). 3 INA § 212(d)(13)(B)(ii). 4 INA § 212(d)(13)(A). 5 8 CFR § 212.16(b). 6 INA § 245(l)(2)(A). 7 INA § 245(l)(2). 8 To follow this evolving issue and for technical assistance on arguing against the application of public charge to T adjustment of status, contact the Coalition to Abolish Slavery & Trafficking (CAST) at https://www.castla.org/about/services/#training.

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Individuals who have perpetrated human trafficking are not eligible for admission as a T nonimmigrant under a separate section of the statute and are therefore ineligible for a waiver. 9 The ILRC publishes a manual entitled, Inadmissibility & Deportability (www.ilrc.org) which discusses in detail the grounds of inadmissibility and the general (not T-specific) waivers available to overcome them. 10 The rest of this chapter focuses on ways to gather information about whether your client might be inadmissible and how to file for a waiver of inadmissibility for T nonimmigrant applicants. § 5.2

Inadmissibility Grounds and Waivers at the T Nonimmigrant Stage

An applicant for T nonimmigrant status must be admissible to the United States, or otherwise obtain a waiver of any grounds of inadmissibility. Under INA § 212(d)(13), T nonimmigrant applicants may apply for a waiver of any inadmissibility ground except those in INA § 212(a)(3) [security and related grounds], INA § 212(a)(10)(C) [international child abduction], and INA § 212(a)(10)(E) [former U.S. citizens who renounced citizenship to avoid taxation]. 11 The public charge ground of inadmissibility under INA § 212(a)(4) does not apply to an applicant for T nonimmigrant status (but does apply at the time of adjustment of status to lawful permanent resident), therefore no waiver of that ground is necessary 12 and no separate waiver form is required. 13 Waiver requests are subject to a determination of national interest, connection to victimization, or extraordinary circumstances. 14 National interest. USCIS, in its discretion, may grant a waiver of inadmissibility request if it determines that it is in the national interest to exercise discretion to waive the applicable ground(s) of inadmissibility. 15 Connection to victimization. An applicant requesting an inadmissibility waiver under any ground other than the INA § 212(a)(1) health-related grounds must establish that the activities rendering them inadmissible were caused by, or were incident to, the victimization described in INA § 101(a)(15)(T)(i)(I) [victim of a severe form of trafficking in persons]. 16 Extraordinary circumstances. In exercising its discretion to waive criminal grounds, USCIS will consider the number and seriousness of the criminal offenses and convictions that make the applicant inadmissible under the criminal and related inadmissibility grounds. In cases involving violent or dangerous crimes, USCIS will exercise favorable

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This applies to individuals for whom there is substantial reason to believe that have committed an act of a severe form of trafficking in persons. INA § 214(o)(1). 10 Like all ILRC manuals, this can be ordered online at http://www.ilrc.org/publications. 11 8 CFR § 212.16(b). 12 INA § 212(d)(13)(A). 13 8 CFR § 212.16(b). 14 8 CFR § 212.16(b). 15 8 CFR § 212.16(b)(1). 16 8 CFR § 212.16(b)(2).

discretion only in extraordinary circumstances, unless the criminal activities were caused by, or were incident to, the victimization described in INA § 101(a)(15)(T)(i)(I) [victim of a severe form of trafficking in persons]. 17 There is no appeal of a decision to deny a waiver request. However, an applicant can try re-filing a request for a waiver of a ground of inadmissibility. 18 They may also consider filing a motion to reconsider. 19 USCIS, at any time, may revoke a previously granted waiver. There is no appeal of a decision to revoke a waiver. 20 § 5.3

Inadmissibility Grounds and Waivers at the T Adjustment of Status Stage

The regulations clarify that any inadmissibility ground waived at the time USCIS grants T nonimmigrant status will be considered waived for purposes of adjustment of status under INA § 245(l) and that any inadmissibility grounds that an applicant acquires while in T nonimmigrant status require a new waiver. 21 This applies to both principal T nonimmigrants 22 and their derivative family members at the time of adjustment. 23 A T nonimmigrant is not eligible for adjustment of status if at the time of adjustment they are inadmissible under INA § 212(a)(3) [security and related grounds], INA § 212(a)(10)(C) [international child abduction], and INA § 212(a)(10)(E) [former U.S. citizens who renounced citizenship to avoid taxation], since these grounds cannot be waived, or if they are inadmissible under any other inadmissibility ground that has not been waived. 24 Unlawful presence under INA § 212(a)(9)(B) is not applicable to T nonimmigrants at the time of adjustment if the T nonimmigrants can establish that the victimization was a central reason for their unlawful presence. 25 Therefore, a waiver of unlawful presence is not needed. 26 However, the T nonimmigrant must submit the Form I-485 adjustment of status application with sufficient evidence to demonstrate that the victimization suffered was a central reason for the unlawful presence in the United States. To qualify for this exception, the victimization need not be the sole reason for the unlawful presence, but the nexus between the victimization and the unlawful presence must be more than tangential, incidental, or superficial. 27

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8 CFR § 212.16(b)(3). 8 CFR § 212(c). 19 8 CFR § 103.5. 20 8 CFR § 212(d). 21 8 CFR § 245.23. 22 8 CFR § 245.23(a)(4). 23 8 CFR § 245.23(b)(4). 24 8 CFR § 245.23(c)(2)–(3). 25 8 CFR § 245.23(c)(3). 26 8 CFR § 245.23(c)(3). 27 8 CFR § 245.23(c)(3).

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Although INA § 212(a)(4) public charge does not apply to an applicant for T nonimmigrant status, it may apply at the time of adjustment of status to lawful permanent resident. 28 T nonimmigrants who trigger the public charge ground of inadmissibility at the time of adjustment will need to qualify for a waiver. 29 Advocates should also follow evolving arguments that public charge should not apply at all to T nonimmigrants at the time of adjustment. 30 If the application for adjustment of status or the application for a waiver of inadmissibility is denied, USCIS will notify the applicant in writing of the reasons for the denial and of the right to appeal the decision to the Administrative Appeals Office (AAO). 31 Denial of the T-1 principal applicant’s application will result in the automatic denial of a derivative family member’s application. 32 NOTE: Are inadmissibility grounds that were waived at the T nonimmigrant phase waived if my client adjusts through a family member? No. The regulations clarify that any grounds of inadmissibility waived at the time USCIS grants T nonimmigrant status will be considered waived for purposes of adjustment of status under INA § 245(l). 33 If your client ends up adjusting status under any other section in the INA, they must qualify for any inadmissibility waivers applicable to that section of the statute. Example: Juan Pablo has a false claim to U.S. citizenship that he was able to waive when he applied for T nonimmigrant status. He is also married to a U.S. citizen, Desiree, and would like to adjust status through her I-130 family-based petition, so he can get his green card now rather than wait the three years he must be in T nonimmigrant status to adjust as a T nonimmigrant. Juan Pablo will not be able to adjust through Desiree’s petition for him. To adjust under her petition, he would adjust under INA § 245(a) instead of under INA § 245(l) for T nonimmigrants. Only a very limited waiver of the false claim to U.S. citizenship is available to those adjusting status under INA § 245(a), and Juan Pablo does not meet the requirements for that waiver. He can only adjust under INA § 245(l). § 5.4

Identifying an Applicant’s Grounds of Inadmissibility to Be Waived

The two main ways that advocates and applicants identify what inadmissibility factors may apply in the applicant’s circumstances are (1) an intake interview and background check that identify inadmissibility grounds; and (2) completing the I-914 application form with the client. Many advocates also request FBI background checks and/or Freedom of Information Act (FOIA) requests from USCIS, ICE, and/or Customs and Border Protection (CBP).

28

8 CFR § 212.16(b). INA § 245(l)(2)(A); 8 § CFR 245.23(a)(4). 30 To follow this evolving issue and for technical assistance on arguing against the application of public charge to T adjustment of status, contact the Coalition to Abolish Slavery & Trafficking (CAST) at https://www.castla.org/about/services/#training. 31 8 CFR § 245.23(i). 32 8 CFR § 245.23(i). 33 8 CFR § 245.23. 29

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Intake interview During intake, many practitioners find it useful to ask questions several different ways, because applicants may not recognize that they were arrested or charged when in fact they were, or clients may be otherwise confused by some of the more complicated legal questions. Practitioners also ask questions that alone may not mean something bad happened (for example, have you ever had your fingerprints taken?) because a “yes” answer may indicate that the client had a problem that they were not aware of. Some of the questions include: • • • • • • • • • •

Have you ever been stopped by immigration authorities? Have you ever been stopped by any law enforcement officer? Have you ever been in front of a judge? Have you ever had an attorney? Have you ever signed any immigration forms? Have you ever had your fingerprints taken? Have you ever helped someone come to the United States without papers? Have you ever used false documents to come to the United States? Have you ever claimed to be a U.S. citizen? Have you ever told a lie or hid the truth to get a visa or to come into the United States?

Many people with criminal or immigration violations may be reluctant to share information. They may be embarrassed, ashamed, or unclear why this information is important. For this reason, it is critical to explain why you’re asking these questions and emphasize the importance of getting accurate, thorough information from a client. DHS will take fingerprints from T nonimmigrant status applicants after the I-914 is submitted and run them through numerous databases to identify criminal and immigration violations, so it is almost impossible to hide any violations. The advocate should convey to the client that it is therefore essential that the advocate know the applicant’s criminal and immigration history before submitting a T nonimmigrant status application for the client to avoid submitting false or inconsistent information, to ensure that everything applicable is waived, and to have the best chances for approval. Disclosing all relevant information is also important to preserve the applicant’s credibility, because if something is not disclosed and comes out later, USCIS will wonder what else the person has tried to hide. In addition to soliciting this information directly from the client, many service providers do background checks as well, as detailed below. Note that background checks, such as an FBI background check or a Freedom of Information Act (FOIA) request, may take several months. Clients who need to submit their applications immediately will need to give accurate information as best they can without these background checks; if the clients have criminal histories, they could get documentation more quickly through a Live Scan request or through court-specific records requests (but see warning below under Court Dispositions).

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The I-914 application form The questions in Part D of the Form I-914 T nonimmigrant application have been included to determine an applicant’s admissibility. However, it is important to note that not every ground of inadmissibility is addressed in these questions, and the I-914 questions may need to be

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supplemented with one or more of the additional inadmissibility checks (intake questionnaire, FBI report, or FOIA request) described here. Most advocates and applicants will want to get started on the T nonimmigrant application and inadmissibility waiver on Form I-192 before the results of an FBI background check or FOIA come back, and that is why it is also useful to ask questions in the Intake Interview process. Some practitioners will not submit a T application until the FBI check comes back. Others submit the I-192 with the I-914, providing evidence to support a discretionary determination based on what they already know about the applicable inadmissibility issues. Criminal and immigration background checks FBI (Federal Bureau of Investigation). If your client has ever been arrested or detained by federal law enforcement, including by immigration authorities at the border, the FBI may have a record of it. The FBI also has access to some state criminal records. An FBI check based on an applicant’s fingerprints can thus provide a summary of an applicant’s interactions with federal and state law enforcement. This can be especially helpful if an applicant has criminal histories from multiple states. Unfortunately, FBI checks are often inaccurate or incomplete. 34 However, they are a good starting place. Even where the FBI summary is not complete, it will generally provide dates, locations, and case numbers for the applicant’s arrest history and possible other names the applicant used when arrested. This information may, in turn, help the applicant request criminal history dispositions from courts with jurisdiction over the location where the applicant was arrested. The FBI check may often, but not reliably, provide an account of any prior removals of the applicant from the United States. Even where it is not complete, if it shows some kind of immigration enforcement process, it often shows the applicant’s A (alien registration) number, which can be used on a FOIA request or case status inquiry to the Executive Office for Immigration Review (EOIR) telephonic information line (1-800-898-7180). To request an FBI background check, the applicant must submit 1) a completed and signed FBI background check request form; 35 2) a completed set of ten fingerprints on a FD-258 card available at most fingerprint locations; 3) appropriate payment; and 4) cover letter (although the cover letter is optional). Many fingerprint agencies require official government identification to take the prints, and an advocate may need to call a local fingerprinting site to explain why an applicant does not yet have official identification and essentially vouch for the applicant. Send the fingerprint card with an $18 signed money order payable to Treasury of the United States. It is also best practice to include a cover letter to the FBI requesting a background check, signed by the person getting the background check. See Appendix W for a Sample FBI Background Check Request Letter. When you submit an FBI check request, you should use your office address rather than the client’s home address for their protection.

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National Employment Law Center, Wanted: Accurate FBI Background Checks for Employment (July 2013) (finding that fifty percent of FBI records fail to include information on the final disposition of a criminal case), available at http://www.nelp.org/content/uploads/2015/03/Report-Wanted-Accurate-FBIBackground-Checks-Employment.pdf. 35 FBI Record Request Form, I-783, available at https://forms.fbi.gov/identity-history-summary-checksreview/q384893984839334.pdf.

Mail the request to: Federal Bureau of Investigation Criminal Justice Information Service Division Special Correspondence Unit 1000 Custer Hollow Road Clarksburg, West Virginia 26306 As of this manual’s writing (November 2018), it generally takes about 13–15 weeks to get the results of an FBI background check, but hopefully this is a temporary backlog and the processing times will soon go back to the usual eight-week timeframe. State background checks. If an applicant has criminal history in only one state, or if you are looking for a summary of criminal history in a particular state, you can request a background check from that state. Many state departments of justice will provide an applicant’s state criminal history within just a few days if the applicant submits the request through a Live Scan digital fingerprint process. It can cost around $50. Remember that this reports only contacts with law enforcement in that state—not border detentions or removal processes (other than detentions by ICE in a state jail)—and so is often a good complement, not substitute, for an FBI background check. Note that Live Scan providers, even private ones such as UPS stores, often insist on U.S. identification documents, so it may be challenging for your client to obtain a Live Scan check with only an ID from the client’s home country. FOIA (Freedom of Information Act). Applicants who have had any interaction with immigration authorities, such as having been removed, having been ordered removed, or having applied for other immigration relief in the past, may also choose to submit a Freedom of Information Act (FOIA) request. DHS keeps an immigration file (also known as an “A-file”) on all immigrants with whom it comes into contact. Fortunately, a person is entitled under FOIA to request a copy of the A-file, as well as other immigration records, from any of the DHS agencies—USCIS, CBP, ICE, or U.S. Office of Biometrics Identity Management (OBIM, formerly US-VISIT)—that may hold immigration records. A person can also file a FOIA request with the Executive Office for Immigration Review (EOIR) at the Department of Justice, the consulates at the Department of State, or any other federal agency. Many states have state FOIA laws that similarly mandate disclosure of information from state agencies pursuant to a request. Because each department is responsible for responding to FOIA requests for its own records, it is important that before submitting your FOIA request, you determine which department is likely to have the records you are seeking and direct your request to that department. Each agency, and each component of each agency, also has different requirements for how and where to submit a FOIA request. 36 The ILRC also has available an entire manual on this topic, entitled FOIA Requests and Other Background Checks: A Practical Guide to Filing Records Requests in Immigration Cases. 37

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Please see a “Step-by-Step Practice Advisory on Filing a FOIA Request with DHS,” including information on USCIS, ICE, CBP and OBIM, applicable fees and expedited requests, available on the ILRC website at https://www.ilrc.org/step-step-guide-completing-foia-requests-dhs. 37 This manual is available at https://www.ilrc.org/publications.

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It is often difficult for government agencies to locate records based solely on the client’s name, so if time is not an issue, it can be a good practice to file the FBI request first. If the FBI request comes back with an A (alien registration) number, then you can file the FOIA request with the Anumber listed, so that you are more likely to get a fruitful response. Important: When you file a FOIA request, you should use your office address, a safe address, or a P.O box rather than the client’s home address, for the client’s protection. Immigration case status information from the Executive Office for Immigration Review (EOIR). If you have your client’s A-number, you can call the EOIR case information line at 1800-898-7180 and follow the prompts to enter the A (alien registration) number to find out if the case is in the system. If it is, you can choose option 1 to find out if a hearing is scheduled, or option 3 to find out what the final decision was in the case. The information helps you know whether the case is currently pending or whether a removal order has been issued. If the case is over or has been administratively closed, an attorney or DOJ accredited representative may be able to reopen (or re-calendar) and terminate removal proceedings after the applicant is approved for T nonimmigrant status. For more information on terminating removal proceedings after grants of T nonimmigrant status, please read Chapter 9. Court dispositions or “no record” memoranda. If a client has prior law enforcement detentions, arrests, charges or convictions, it is often necessary to get copies of the records (often called the disposition), or a letter from the court with jurisdiction over the place where the arrest occurred that states that there is no record or that the record has been destroyed. It can be faster and more efficient if your client goes to the court to make the request. However, it is essential that your client be certain that there are no warrants for the client’s arrest, because the client could be arrested when they go to the court. Many people have warrants issued by the court (frequently called “bench warrants”) without realizing it, because they were released after being booked for shoplifting, failed to complete DUI classes, or have numerous unpaid traffic tickets. Anyone who believes there might be such a risk should call the court clerk to ask whether there is a warrant or contact the person’s criminal defense attorney. If the individual is unable to rule out the possibility of a warrant, they should make the request for the record by mail. See a Sample Police Report Request Form at Appendix X. The criminal proceedings disposition is much more detailed than the FBI report and is the final authority on what the person was arrested for, charged with, and/or convicted of. Having a copy of the disposition is often crucial in order to analyze what happened and whether it makes your client inadmissible. If your client has any prior arrests or convictions, the disposition or a “no records” memorandum from the court should be included with the T nonimmigrant status application; if it is not, VSC will likely request it later in a Request for Evidence (RFE). There are special rules and considerations for juvenile records, which should not be automatically provided to USCIS. Many states protect juvenile records as confidential, and it can be against the law to release these records to USCIS, even if you are able to get them. Generally, juvenile adjudications are not considered convictions under immigration law, but if an I-192 is needed to waive something else, USCIS can consider a juvenile history as a negative discretionary factor.

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Analyzing your client’s inadmissibility issues If it appears that your client might be inadmissible under a particular statutory ground, the first line of defense is to analyze whether the inadmissibility ground really applies. Does the act meet the definition and requirements of the inadmissibility ground? For example, even if your client has a criminal arrest or conviction in the past, can you make the argument that it does not meet the definition of a “conviction” under immigration law? 38 Can you argue that it is not a crime involving moral turpitude under the case law in your jurisdiction? Even if it is a conviction, is there an exception to the ground of inadmissibility such that your client is exempt? For example, does the offense qualify for an exception, such as the juvenile or petty offense exceptions for crimes of moral turpitude? 39 Example: Barbara admits to you that she has a criminal conviction from her past. She was previously arrested and convicted of shoplifting. Crimes that involve stealing can often trigger a crime involving moral turpitude ground of inadmissibility. However, in Barbara’s case, she has committed only one crime involving moral turpitude, the sentence she received was less than six months, and the offense carries a maximum possible sentence of less than one year in the state in which she was convicted. Under INA § 212(a)(2)(A)(II), Barbara is eligible for the petty offense exception and her conviction will not trigger a ground of inadmissibility. § 5.5

Addressing Inadmissibility on the Form I-914

One way to address whether or not your client has triggered a ground of inadmissibility is by simply filling out the questions asked on Form I-914 Part D. 40 Many of these questions have been included to determine your client’s admissibility. However, it is important to note that not every ground of inadmissibility is addressed in these questions. For example, there is no question on the form that asks about whether the applicant has ever made a false claim to U.S. citizenship (which would trigger an inadmissibility ground under INA § 212(a)(6)(C)(ii)) or whether the client entered the United States without inspection (which would trigger an inadmissibility ground under INA § 212(a)(6)(A)). Therefore, you may have to disclose some inadmissibility grounds only on the I-192 waiver application. NOTE: Answering questions on the Form I-914. Sometimes you might not know for sure if a client has triggered an inadmissibility ground and you therefore do not know how to accurately answer a question on the form. For example, Question 9c asks, “Have you EVER been removed, excluded or deported from the United States?” Your client might not know exactly what happened if the client was stopped at the border before, had an interaction with border patrol, was

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Generally, a conviction is required to trigger the criminal inadmissibility or deportability grounds. Even where a conviction is not required, it is harder for the government to prove that a certain act triggers one of these grounds where there is no conviction. The ILRC produces numerous resources designed to help advocates determine the immigration consequences of certain criminal conduct, arrests or convictions, and partners with others to provide support on these issues. For more details, check the ILRC website at http://www.ilrc.org/crimes. 39 INA § 212(a)(2)(A)(i)–(ii). 40 Please check the USCIS website at www.uscis.gov to ensure that you are using the most current version of any USCIS form.

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not allowed to enter the United States and/or was told to go back when the client reached the border. The client might not know if that encounter resulted in an expedited removal order, a voluntary return, or something else. In such cases—where there is a possibility that an applicant triggered an inadmissibility ground, but you are not certain, or you do not think it is your job to make the determination that your client did trigger an inadmissibility ground—consider placing an asterisk (*) near the question, along with a note that says “see attached,” “see attached explanation,” or “see attached declaration” instead of answering the question with a “yes” or a “no”; you can also go ahead and answer “yes” or “no,” but then explain on an attachment. The key is to disclose any potential ground so that USCIS believes that your client is being truthful and not hiding anything. Attorneys who take this approach then include a description of what happened, to let USCIS decide if an inadmissibility ground was triggered. Some clients feel more comfortable with this approach because they can disclose everything, but the consequences may potentially be less rigid than with a “yes” answer. See the section on Filling Out the Form I-192 below for more tips on addressing this situation. § 5.6

Completing Form I-192

The inadmissibility waiver request must be filed on a Form I-192, “Application for Advanced Permission to Enter as a Nonimmigrant,” along with its filing fee—which is currently (as of November 2018) $930—or a fee waiver request. 41 The Form I-192 waiver request should include a statement explaining the discretionary grounds for granting the waiver, details of the national interest, victimization, and/or extraordinary circumstances, the reasons and circumstances for needing the waiver, and any supporting documentation. In most cases, this can all be addressed in one single declaration that supports both the Form I-914 T nonimmigrant application and the Form I-192 inadmissibility waiver application. Similarly, documentation submitted in support of the Form I-914 can also be considered in support of the Form I-192. As it is a discretionary waiver, it will be adjudicated on a case-by-case basis. If there are criminal inadmissibility grounds, additional discussion of rehabilitation, responsibility, and remorse should be included in the declaration, and additional documents showing rehabilitation and positive equities should be included in the application packet. Form I-192 includes a number of questions that are confusing or irrelevant for T nonimmigrant clients. This is in part because the form is normally used by applicants for nonimmigrant visas who are outside the country, whereas T nonimmigrant status applicants may be using it to apply from within the United States. You may write “Not Applicable—T visa applicant” in those sections of the form that are not relevant to a T application. There may be instances where you do not know if an inadmissibility ground was triggered, or do not want to assume which inadmissibility ground was triggered. Example: Julia tells you she attempted to cross the border but was stopped by border patrol and told to go back. In her attempt to cross, she knows she showed false documents that were given to her by a coyote, but she cannot remember if what she showed was a green card, a U.S. birth certificate, a U.S. passport, or some other kind of document. She also cannot remember what year it happened or if she had her fingerprints or photo taken. 8 CFR § 103.7(c)(5). See Chapter 4 for more information about an application for a fee waiver.

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She cannot remember if she gave her real name or if she was told she could not return to the United States for a certain period of time. Although you have done an FBI background check and a FOIA request to CBP and OBIM, you are still not sure whether or not she made a false claim to U.S. citizenship. Even if she did, you do not know if she made the false claim before or after September 30, 1996. 42 Therefore, you are not sure whether or not to ask to have this ground waived on Form I-192. Attorneys should always list all of the grounds that they know the client has triggered. List each ground by name and statute, for example, “EWI, INA § 212(a)(6)(A),” or by behavior, for example, “I entered without inspection twice and accrued a year of unlawful presence in between, so please waive INA§ 212(a)(9)(C).” Best practice is often also to include language to the effect of “plus any and all other inadmissibility grounds deemed to apply by the U.S. Department of Homeland Security” in order to cover any additional grounds that may apply. Unfortunately, however, it may not be possible to know whether a potential ground was triggered—or if it was, whether it was waived. USCIS currently does not issue an I-192 approval notice with a list of the inadmissibility grounds that were waived, so the only way to know if something was waived is to see if it was listed on a granted I-192 waiver. Because of this, USCIS urges advocates to list any ground they think might apply in order to protect their client. 43 Once Form I-192 has been received, USCIS will send you a receipt notice. If the inadmissibility waiver is approved you will receive notice of the approval. If the inadmissibility waiver application is denied, there is no appeal available. 44 However, nothing prevents the applicant from simply re-filing a request for a waiver with additional documentation or a new declaration after the waiver has been denied. 45 A motion to reopen or reconsider may also be filed. § 5.7

Documenting That the Applicant Merits a Waiver

On its website, USCIS provides a list of recommended documents to include with an inadmissibility waiver application. 46 In addition to anything required in the statute, regulations or form instructions, USCIS recommends including: • •

A written statement from the client, signed under penalty of perjury, explaining why your client is inadmissible and why the client should be admitted if they are inadmissible under any provision of INA §§ 212(a)(3)(A)(i)(II), (B), (E)(iii), or (F); A detailed description of the health-related inadmissibility grounds, if the client is inadmissible because of health-related grounds;

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INA § 212(a)(6)(C)(ii) applies only to false claims made on or after September 30, 1996. IIRIRA § 344(a). False claims made before that date would only trigger the misrepresentation ground of inadmissibility under INA § 212(a)(6)(C)(i). 43 Vermont Service Center Stakeholder Meeting, Essex, VT (Sept. 18, 2015). 44 8 CFR § 212(c). 45 8 CFR § 212(c). 46 See https://www.uscis.gov/i-192.

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• •

A written statement from the client, signed under penalty of perjury, if the client is inadmissible because of conviction of one or more crimes anywhere in the world. Include the official record of each criminal conviction and all court dispositions; and A written statement from the client, signed under penalty of perjury, for any other grounds of inadmissibility.

Do not send original documents. If any of the supporting documents are written in a foreign language, include a full English translation along with a certification from the translator verifying that the translation is complete and accurate and that the translator is competent to translate from the foreign language to English. As inadmissibility waivers are discretionary, USCIS will adjudicate them on a case-by-case basis. USCIS may consider the following factors in making positive discretionary determinations in T nonimmigrant status and other immigration benefit applications: • • • • • • • • •

The applicant’s loss of access to U.S. courts and justice system if the waiver is not granted; The nature and extent of the applicant’s physical or mental abuse; The likelihood that the perpetrator or people acting on his behalf in the home country would harm the applicant or the applicant’s children; The willingness of authorities in the home country to protect the applicant and the applicant’s children; The applicant’s need for social, medical, mental health, or other services; Law and social practices in home country that punish the applicant or children for leaving the abuser; Political and economic conditions in the home country; The applicant’s family ties (or lack thereof) to the home country; and The applicant’s contributions to the U.S. community.

Importantly, USCIS can consider all negative factors in the discretionary determination as well. For example, some behaviors or actions listed on the I-914 that may not themselves make an applicant inadmissible may nevertheless be considered as negative factors by USCIS in exercising discretion. These negative factors can include driving under the influence, shoplifting, arrest warrants due to failure to appear in court, and criminal offenses committed as a juvenile. (Although advocates caution against sending juvenile records to USCIS, and in some states those records may be confidential, the offenses may still appear on a background check.) Many advocates encourage applicants to explain in an attachment the circumstances of the offense, acknowledge responsibility, and describe how they have been rehabilitated.

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Different advocates have taken different approaches to providing supporting documentation for inadmissibility waiver requests. In some cases, applicants may have many documents in support of the waiver request. In other cases, attorneys have just asked that all of the documentation submitted in support of the Form I-918 also be considered in support of the Form I-192. Others, especially in situations where the applicant has a lengthy criminal history, include a separate declaration for the waiver and substantial evidence of rehabilitation. How much documentation you submit really depends on the grounds of inadmissibility that your client has triggered. If your

client has triggered criminal grounds of inadmissibility, especially if the crime involved is a violent one, be prepared to submit substantial evidence of rehabilitation and positive equities. Some practitioners recommend that applicants with inadmissibility issues submit proof that they have volunteered in their communities to demonstrate rehabilitation or general positive equities. The issue of how much documentation to include may be evolving (see § 5.9 Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) below), so advocates should be prepared to submit more documentation than was required in the past. § 5.8

Filing Fees and Fee Waivers

The filing fee for Form I-192 is, as of September 2018, $930; however, a fee waiver is available. 47 If the I-192 is submitted without the fee or an application for a fee waiver, it will be rejected. 48 USCIS will determine whether the applicant qualifies for a fee waiver. For more information on requesting a fee waiver, see Chapter 4. § 5.9

Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs)

In July 2018, USCIS authorized adjudicators’ discretion, effective September 11, 2018, to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility. 49 Relevant to waiving inadmissibility issues, USCIS in its discretion may deny a waiver or adjustment application without sending an RFE when a waiver application is submitted with little to no supporting evidence. Therefore, take care to ensure initial filings are complete and well-documented. If you do receive an RFE, make sure to timely respond. If you do not respond to an RFE, USCIS will likely deny the waiver request and T nonimmigrant application. Even if you have no additional documentation to submit, you should at a minimum respond to the RFE with a letter to that effect and summarizing again your argument on why the waiver should be granted, to avoid an automatic denial for failure to respond. § 5.10 Waiver Denials and Resubmissions If VSC denies a required I-192 waiver, it will also deny the I-914, because approval of the I-914 requires a finding that the applicant is admissible or that any applicable inadmissibility grounds have been waived. A denial of Form I-192 is not appealable; however, a new I-192 may be submitted. 50

47

8 CFR § 103.7(c)(5)(iii). 8 CFR § 103.7(c)(5)(iii). 49 USCIS PM-602-0163 (July 13, 2018). 50 8 CFR § 212(c).

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CHAPTER 6 T NONIMMIGRANT ADJUSTMENT OF STATUS ELIGIBILITY This chapter includes: § 6.1 § 6.2 § 6.3

Introduction .......................................................................................................... 99 Overview of Eligibility Requirements for T Adjustment of Status ...................... 99 Granted T Nonimmigrant Status and Continue to Hold T Nonimmigrant Status ...................................................................................... 102 Continuous Physical Presence in T Nonimmigrant Status ................................. 102 Person of Good Moral Character During T Nonimmigrant Status and Adjustment of Status Process ............................................................................. 104 Assistance in the Investigation or Prosecution or a Showing of Extreme Hardship ............................................................................................... 107 Inadmissibility and Discretionary Issues ............................................................ 109

§ 6.4 § 6.5 § 6.6 § 6.7

§ 6.1

Introduction

T nonimmigrants are eligible to obtain lawful permanent residence under § 245(l), a special section in the Immigration and Nationality Act (INA) that applies only to those who have received T nonimmigrant status. Unlike U nonimmigrant status, there is a numerical cap of 5,000 T-based adjustments that can be granted annually. 1 Once the cap has been reached, otherwise eligible adjustment applicants will be placed on a waiting list.2 However, this cap applies only to principal applicants and not their derivatives. 3 T-based adjustment applications are handled on a first in, first out basis. 4 USCIS has sole jurisdiction over the adjudication of T adjustments. Therefore, adjudications and denials of adjustment applications cannot be reviewed by an immigration judge, and challenges to denials must be brought before the Administrative Appeals Office or litigated in federal court. This process for T nonimmigrants to adjust status is discussed in further detail in Chapter 7. NOTE: Although it has not been published yet, the USCIS Policy Manual, Volume 7, Part J will focus on adjustments for individuals in T nonimmigrant status. Be sure to check the USCIS Policy Manual for updates as this could be a useful resource once it has been published. § 6.2

Overview of Eligibility Requirements for T Adjustment of Status

The statute at INA § 245(l) and the regulations at 8 CFR § 245.23(a) outline the requirements for a T nonimmigrant to adjust status to get a green card. The requirements are:

1

INA § 245(l)(4). 8 CFR § 245.23(k)(2). However, as of 2018 the cap has never been reached for T-based adjustments. 3 INA § 245(l)(4). 4 See Preamble at Federal Register, Vol. 73, No. 240, p. 75555 (Dec. 12, 2008). 2

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• • •

• • •

Apply for such adjustment of status; Granted T nonimmigrant status and continue to hold T nonimmigrant status; Continuous physical presence in the United States through one of the following methods (whichever is shorter): o Been physically present in the United States for a continuous period of three years since obtaining T nonimmigrant status; or o Been physically present in the United States for a continuous period during the trafficking investigation or prosecution, and the Attorney General has determined the investigation or prosecution is now complete; Admissible or have been granted a waiver inadmissibility; Have been a person of good moral character since obtaining T nonimmigrant status and while the adjustment application is pending; and One of the following: o Have complied with any reasonable requests for assistance in the investigation or prosecution of trafficking acts since obtaining T nonimmigrant status and while the adjustment application is pending; or o Would suffer extreme hardship involving unusual and severe harm upon removal from the United States.

Whether the applicant was younger than 18 years old at the time of the trafficking act does not affect these requirements. 5 Remember that a child who was trafficked prior to their 18th birthday is not required to cooperate with law enforcement. If your client never reported the crime against them to law enforcement or made themselves available to cooperate in the investigation, they will have to wait three years before adjusting status and will have to show extreme hardship. Example: Lana received her T nonimmigrant status three years ago. Her status is valid for another year, but she is now ready and eligible to obtain lawful permanent residence. She has complied with requests for assistance in the criminal investigation and prosecution. Since she received her T nonimmigrant status, she has not had any trouble with law enforcement, has been attending school, goes to church regularly, and can otherwise demonstrate she has been a person of good moral character. She can now apply to adjust status. Important exception. Applicants are not eligible for adjustment if their T nonimmigrant status has been revoked. Example: Kara received her T nonimmigrant status three years ago. However, six months ago the District Attorney’s office (DA) contacted Kara to appear as a witness in the trial of her trafficker. Kara ignored the DA’s calls. Since she had already received her T nonimmigrant status, she did not think she had to be helpful in the prosecution, and she wanted to put all of this behind her. Kara can still adjust status by showing how she would suffer extreme hardship involving unusual and severe harm upon removal from the United States. For example, Kara could document how if forced to return to her home 5

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country, she would face severe discrimination as a single mother and likely retaliation from her traffickers. It is important that Kara is able to articulate, and provide supporting evidence, that the hardship she would face is greater than the hardship generally associated with deportation. See Chapter 7 for a more detailed discussion on how to prove extreme hardship involving unusual and severe harm. PRACTICE POINTER: T derivatives and adjustment. Important: The T nonimmigrant status derivative adjustment process is different from the U nonimmigrant status derivative adjustment process. Unlike with U derivatives, T derivatives remain dependent on the principal T-1 nonimmigrant in order to adjust. Family members who have been granted a derivative T visa or derivative T nonimmigrant status may also adjust status if they meet the following requirements: 1. The principal T nonimmigrant applied to adjust status and is qualified; 2. The derivative family member was lawfully admitted and continues to maintain their qualifying family relationship with the principal T nonimmigrant; 3. The derivative has applied to adjust status; 4. The derivative is admissible or granted an inadmissibility waiver, if needed; and 5. The principal T nonimmigrant has not become a lawful permanent resident, has not lost their T nonimmigrant status because of expiration, and has not terminated their T nonimmigrant status before the derivative could file for adjustment. 6 If the principal T nonimmigrant dies, the derivative can still adjust status.7 The derivative must show they resided in the United States at the time of the principal’s death and continue to reside in the United States. The derivative’s application to adjust status shall be approved unless it is deemed to not be in the public interest. At the end of the principal’s four-year T nonimmigrant status period, the derivative’s status will expire unless they adjust status or law enforcement certifies their presence is necessary and their status is extended. 8 The derivative’s T nonimmigrant status is automatically revoked if they notify USCIS they do not plan to adjust status. 9 Each of the T nonimmigrant adjustment requirements is described in greater detail below. Chapter 7 provides a detailed discussion on the process to apply for adjustment of status for a T nonimmigrant.

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Policy Memo PM 602-32.1 Extension of status for T and U nonimmigrants at p. 7. But see Matter of __ (VSC, AAO Dec. 22, 2014) (finding derivative T nonimmigrant who entered the United States after principal T nonimmigrant became LPR was eligible to adjust). 7 INA § 204(l)(2)(E). 8 Federal Register, Vol. 73, No. 240, p. 75543 (Dec. 12, 2008). 9 8 CFR § 214.11(m)(1).

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§ 6.3

Granted T Nonimmigrant Status and Continue to Hold T Nonimmigrant Status

In order to adjust status under INA § 245(l), the T nonimmigrant applicant must have been granted T nonimmigrant status. Furthermore, the applicant must continue to be in current T nonimmigrant status at the time they apply to adjust status. All T applicants must file a complete adjustment application before the expiration date of their T nonimmigrant status. You can find the expiration date on their I-914 approval notice and on their I-94 card. 10 If the T nonimmigrant status is set to expire while their application to adjust status is pending, their T nonimmigrant status will be extended automatically without having to submit a separate application or evidence. 11 USCIS may also extend T nonimmigrant status beyond the four years if law enforcement certifies their presence is necessary for the investigation or prosecution of the trafficking activities or if DHS determines an extension is warranted due to exceptional circumstances. 12 PRACTICE POINTER: Preparing your client to adjust status. When your client’s T nonimmigrant status is approved, be sure to send a letter specifically outlining when they are eligible to apply for adjustment of status and when their T nonimmigrant status expires. Emphasize both in the letter and directly to your client that they must apply for permanent residence before their T nonimmigrant status expires. See Sample Letter to Clients in Appendix Y, and have a conversation explaining the contents of the letter. Also advise your client of the need to maintain and document their continuous physical presence and suggest that they start collecting a document a month in a file that they can bring to you in three years or once the trafficking case is complete. Maintain a list of approved T clients in your office and schedule a reminder to yourself in three years to notify them when they are almost eligible to apply for adjustment. A T nonimmigrant can apply to adjust after three years or if they obtain certification from the U.S. Attorney General stating that the investigation or prosecution is complete. See § 6.4 below for more information about eligibility. § 6.4

Continuous Physical Presence in T Nonimmigrant Status

The first step in determining if a T nonimmigrant is eligible to adjust status is to determine if they have maintained continuous physical presence in the United States one of two ways. First, they must have been physically present in the United States for a continuous period of three years since obtaining T nonimmigrant status if they applied within the United States or since entering 10

In addition to the I-914 approval notice and I-94 card, you can also look at other documents to find out the expiration date, such as an employment authorization document. If you are unable to locate the T nonimmigrant status through any of these documents, you can also file a Freedom of Information Act (FOIA) request with the Department of Homeland Security (DHS) to obtain your immigration file. For more information on how to complete a FOIA request with DHS, see ILRC’s Step-by-Step Guide available here: https://www.ilrc.org/step-step-guide-completing-foia-requests-dhs, or ILRC’s manual entitled FOIA Requests and Other Background Checks. 11 8 CFR § 214.11(l)(7). 12 8 CFR § 214.11(l)(1).

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the United States on a T visa. Second, they can establish continuous physical presence if they have been physically present in the United States for a continuous period during the trafficking investigation or prosecution and the U.S. Attorney General has determined the investigation or prosecution is now complete. The applicant can demonstrate continuous physical presence through either method, and they can use whichever method is shorter.13 Both ways are discussed in more detail below. Continuous period of three years First, a T nonimmigrant can establish continuous physical presence if they have been in the United States for a continuous period of three years since obtaining T nonimmigrant status if they applied within the United States or since entering the United States on a T visa. Departures from the United States for more than 90 days or for any periods exceeding 180 days in the aggregate will cut off continuous physical presence. 14 The regulations do not provide an exception for absences to assist investigation or prosecution, or otherwise justified by a law enforcement agency for T nonimmigrants. 15 However, INA § 245(l)(3) explicitly provides for an exception. Additionally, both the USCIS website and the I-485 instructions indicate there is an exception available. Absences of less than 90 days in one trip or 180 days in the aggregate will not detract from an applicant’s accrual of three years’ continuous physical presence. Traveling on advance parole does not alter the start of the continuous physical presence period.16 PRACTICE POINTER: T nonimmigrant who seek to travel. T nonimmigrants with a pending adjustment application can only travel on advance parole. If a client wants to travel, they must be strongly warned about the risks of traveling without advance parole, traveling to their home country, or leaving the United States for more than 90 days or more than 180 days in the aggregate. Clients who have already stayed out of the United States too long should be warned that they may not be able to adjust, although it is still worth trying to extend status and/or adjust status in case solutions can be found. See Chapter 7 for more information about how to make these arguments in the adjustment application, and Chapter 10 for more information on travel risks. Continuous physical presence during a now complete investigation The second way a person can establish continuous physical presence is if they have been in the United States for a continuous period during the trafficking investigation or prosecution and the U.S. Attorney General has determined the investigation or prosecution is now complete. USCIS will deny the adjustment application before three years in T nonimmigrant status unless the applicant submits a certification from the U.S. Attorney General stating that the investigation or prosecution is complete. To find out more about obtaining this certificate, see Chapter 7.

13

INA § 245(l)(1)(A). INA § 245(l)(3). 15 8 CFR § 245.23(a)(3). 16 Federal Register, Vol. 73, No. 240, p. 75541 (Dec. 12, 2008). 14

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§ 6.5

Person of Good Moral Character During T Nonimmigrant Status and Adjustment of Status Process

In order to adjust status, a T nonimmigrant must show good moral character (GMC) from the time they were lawfully admitted as a T nonimmigrant until the adjustment of status process is complete. 17 The GMC requirement can be confusing. One of the reasons for this confusion is that there is no actual statutory definition of what GMC means. The INA only defines what GMC does not mean and when individuals will not be allowed to establish GMC. 18 If someone has committed acts that fall within the bars outlined in the INA, they cannot establish GMC at that time. However, it is important to note that this bar is not absolute. There is a waiver for good moral character disqualification under INA § 101(f) if the acts were caused by or due to the trafficking. 19 Thus, even if the applicant appears barred from establishing good moral character, they may be able to overcome the disqualification and adjust status. If someone is not statutorily barred from establishing GMC, however, they can still be denied as a matter of discretion. USCIS is required to balance any negative acts the person may have committed against any positive acts or equities in making this discretionary determination.20 This balancing test is a critical opportunity for advocacy. You can help your client offset any criminal arrests, failure to file taxes, or other negative acts by showing mitigating circumstances, rehabilitation, and positive equities. For more information on how to advocate for your client and present a case for their GMC, see Chapter 7. Although there is no bright line about what necessarily constitutes GMC, a person does not have to demonstrate moral excellence or perfection.21 Instead, USCIS takes the position that in determining GMC, the “standards of average citizens of the community in which the applicant

17

8 CFR § 245.23(a)(5). INA § 101(f); AFM 23.5(n)(1)(C). 19 INA § 245(l)(6). 20 12 USCIS-PM F.2(B); see also Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986) (“Where … [the] petitioners have not committed acts bringing them within [§ 101(f)]’s enumerated categories, the Board must consider all of petitioner’s’ evidence on factors relevant to the determination of good moral character.”); Matter of Sanchez-Linn, 20 I&N Dec. 362, 365 (BIA 1991) (evaluating good moral character involves evaluating “both favorable and adverse” evidence); Matter of B-, 1 I & N Dec. 611, 612 (BIA 1943) (“We do not think [good moral character] should be construed to mean moral excellence, or that it is destroyed by a single lapse.”). 21 See, e.g., Matter of T, 1 I&N Dec. 158 (BIA 1941) (“Good moral character does not mean moral excellence”); Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961) (“We do not require perfection in our new citizens”). 18

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resides” will be applied. 22 Since “community standards” change over time, the definition of GMC also changes over time. 23 The USCIS Policy Manual states that officers should look to the following factors in assessing an applicant’s current moral character and reformation of character: “families ties and background; absence or presence of other criminal history; education; employment history; other law-abiding behavior (for example, meeting financial obligations, paying taxes); community involvement; credibility of the applicant; compliance with probation; and length of time in the United States.” 24 If the applicant is under the age of 14, there a presumption of GMC and the applicant does not need to submit evidence unless USCIS has reason to believe otherwise and require evidence to establish GMC. 25 Permanent and temporary statutory bars to establishing good moral character under INA § 101(f) A person who, during the time for which good moral character (GMC) must be proved, comes within any of the categories set out in INA § 101(f) is barred from establishing GMC, and thus cannot adjust status. 26 The § 101(f) categories are referred to as the “statutory bars” to establishing GMC. Some bars are permanent, and a person will never be able to naturalize if they have: • • •

a conviction for murder; a conviction for an aggravated felony on or after November 29, 1990; assisted in Nazi persecution, genocide, torture, or severe violations of religious freedom.

22

8 CFR § 316.10; see Matter of T, 1 I&N Dec. 158 (BIA 1941) (“A good moral character is one that measures up as good among the people of the community in which the party lives; that is, up to the standard of the average citizen. Moral standards differ from time to time and place to place. In the determination of an alien’s moral character, we apply the standard of the average American citizen as it exists today. Reputation that will pass muster with the average man is required. It need not rise above the level of the common mass of people”). 23 INS Interpretations 316.1(e)(1). For example, prior to the repeal of INA § 101(f)(2) on December 29, 1981, adultery was a mandatory bar to establishing good moral character. INS Interpretations 316.1(f)(6). Today, adultery is no longer a mandatory bar, but USCIS may find a lack of good moral character where adultery destroys a viable marriage, unless there are extenuating circumstances. 12 USCIS-PM F.5(L). 24 12 USCIS-PM F.2(B). This section of the USCIS Policy Manual applies to naturalization applications, which is where GMC also arises. GMC in the naturalization context and the adjustment of status for T nonimmigrants are both governed by INA § 101(f). As a result, for T nonimmigrant adjustment of status applications, we can look to the naturalization context for guidance. 25 8 CFR § 245.23(g)(4); Federal Register, Vol. 73, No. 240, p. 75542 (Dec. 12, 2008). 26 Some of the bars to establishing good moral character incorporate certain grounds of inadmissibility relating to crimes, alien smuggling, and polygamy. Someone who during the period for which good moral character must be shown is “a member of one or more of the classes of persons, whether inadmissible or not, described in” these inadmissibility grounds cannot establish good moral character. INA § 101(f)(3). Other bars to establishing good moral character are not related to inadmissibility grounds.

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Some bars exist only for the period GMC is required. An individual comes within the statutory bars if, during the period that GMC is required, the person has: • • • • • • • • •

been convicted of, or admitted committing, a drug offense (except relating to a single possession of 30 grams or less of marijuana); been convicted of, or admitted committing, a crime involving moral turpitude 27 (other than a purely political offense), 28 with important exceptions; 29 spent 180 days or more in jail as a result of one or more convictions (other than for a purely political offense), no matter when the offenses were committed; been convicted of two or more offenses (other than purely political offenses) for which the applicant received a total sentence of five years or more; 30 came to the United States to engage in prostitution or has engaged in or profited from the business of prostitution; engaged in alien smuggling; been a habitual drunkard; 31 given false testimony (referring to sworn statements or testimony under oath) to get or retain immigration benefits; lived off of, or had two or more convictions for, illegal gambling; 32

27

A crime involving moral turpitude does not have a statutory definition, but it has been defined by case law to refer to “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” See Matter of Danesh, 19 I&N Dec. 669, 670 (BIA 1988). In general, courts will rule that a crime involves moral turpitude if the crime, as it is defined in the criminal statute, involves intent to commit fraud; intent to commit theft where there is an intent to permanently deprive; intent to do great bodily harm; lewd intent in some sex offenses, or in some cases recklessness or malice. See Chapter 5 for a more in-depth discussion on the various grounds of inadmissibility and their waivers. 28 12 USCIS-PM F.2(F). 29 A person who has committed a crime involving moral turpitude will not be barred from showing good moral character if the person committed only one crime and either: a) the person was under 18 when the crime was committed, and both the crime was committed and the person was released from confinement more than five years before the date he applies for naturalization; OR b) it was the person’s only crime involving moral turpitude, the maximum sentence possible for the crime was one year or less, and the sentence given (regardless of time served) was six months or less. INA § 212(a)(2)(A)(ii). 30 “Sentence” is defined in INA § 101(a)(48) and means any period of incarceration or confinement ordered by a court even if execution of the sentence is suspended, such that a defendant who does not actually spend time in jail or prison could still fall under this category if the requisite sentence is imposed by the court. 31 Merely being someone who drinks a lot is not sufficient. ILRC argues that one must be found to be a habitual drunkard by a medical professional. See Matter of H-, 6 I&N Dec. 614 (BIA 1955) (relying on psychiatrist testimony that on the basis of hospital records that stated that petitioner escaped the hospital several times and began drinking heavily, petitioner was a habitual drunkard). 32 The person’s primary source of income has to come from illegal gambling activities. See Matter of S-KC-, 8 I&N Dec. 185 (BIA 1958) for more information on what activities would trigger this statutory bar.

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came to the United States (or is coming) to practice polygamy, 33 and USCIS has acquired “reason to believe” they are or were a drug trafficker.

As you can see, the GMC statutory bars cover many different kinds of behavior and violations, including prostitution and commercialized vice. As defined in INA § 212(a)(2)(D), the period under consideration for GMC is 10 years from the date of application. However, the GMC period under INA § 245(l) is three years. As a result of this ambiguity, USCIS has determined that, in keeping with the purpose of this statute, the shorter temporal scope, or three years, will apply to INA § 101(f)(3) in this context. 34 For example, if an applicant engaged in prostitution or commercialized vice after they were lawfully admitted as a T nonimmigrant, USCIS will consider the applicant to be statutorily barred from being able to establish GMC under INA § 101(f)(3). If, on the other hand, the applicant engaged in prostitution or commercialized vice before they were first lawfully admitted as a T nonimmigrant (which in many cases will be related to the trafficking of that individual), USCIS will not consider the applicant to be statutorily precluded under INA § 101(f)(3) from establishing good moral character because the applicant’s activities did not occur during the period for which good moral character is required to be established for purposes of INA § 245(l). 35 Disqualification under INA § 101(f) may be waived if the acts were caused by or due to the trafficking. 36 Thus, even if the applicant appears barred from establishing good moral character, they may be able to overcome the disqualification and adjust status. § 6.6

Assistance in the Investigation or Prosecution or a Showing of Extreme Hardship

The final requirement for a T nonimmigrant who seeks to adjust status is that they either complied with reasonable requests for assistance from law enforcement or would suffer extreme hardship involving unusual and severe harm upon removal. 37 The applicant only needs to meet one of these requirements. Complied with reasonable requests for assistance from law enforcement T nonimmigrants who seek to adjust status must not have unreasonably refused to provide assistance to a federal, state, or local criminal investigation or prosecution. 38 As discussed in Chapter 3, in order to receive a T nonimmigrant status, an applicant must comply with reasonable requests for assistance in the investigation into acts of trafficking, unless they were under 18 at the time of trafficking or qualify for the trauma exception to cooperation. 39 However, there are no similar age or trauma-related exemptions in the adjustment of status process. As a 33

Polygamy does not include someone who failed to get a divorce from the first spouse, has since remarried, and, some would claim, has thus (usually secretly) committed bigamy. It refers to the belief and practice that people should have multiple spouses. Matter of G, 6 I&N Dec. 9 (1953). 34 Federal Register, Vol. 73, No. 240, p. 75542 (Dec. 12, 2008). 35 See Preamble at Federal Register, Vol. 73, No. 240, p. 75542 (Dec. 12, 2008). 36 AFM 23.5(n)(1)(C). 37 INA § 245(l)(1)(C). 38 8 CFR § 245.23(f)(1). 39 8 CFR § 214.11(h)(1).

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result, all applicants, regardless of age must demonstrate compliance with law enforcement requests or that they would suffer extreme hardship involving unusual and severe harm upon removal. 40 As previously discussed in Chapter 3, the determination as to whether or not an applicant’s refusal was reasonable or not will be based on the totality of circumstances. Factors to consider include, but are not limited to: • • • • • • • • • • • • •

General law enforcement, prosecutorial, and judicial practices; The nature of the victimization; The specific circumstances of the victim; Severity of the trauma suffered (both mental and physical) or whether the request would cause further trauma; Access to support services; The safety of the victim or the victim’s family; Compliance with previous requests and the extent of such compliance; Whether the request would yield essential information; Whether the information could be obtained without the victim’s compliance; Whether an interpreter or attorney was present to help the victim understand the request; Cultural, religious, or moral objections to the request; The time the victim had to comply with the request; and The age and maturity of the victim. 41

Evidence is required to prove that the applicant did not unreasonably refuse to assist in the criminal investigation or prosecution. This is discussed in further detail in Chapter 7. The simplest form of evidence to satisfy this requirement is a statement from the client in their declaration that they did not unreasonably refuse to provide ongoing assistance to law enforcement. If the client is adjusting based on the Attorney General’s certification that the investigation or prosecution is complete, the certification may also be used as evidence that the applicant cooperated with reasonable requests for assistance, especially since the certification usually includes a statement of cooperation. You may also submit other evidence that the criminal case was complete by the time the I-914B was signed. (Evidence of this may include a copy of the original Form I-914 Supplement B with the completed box in Part C(7) checked to indicate that the status of the case was already closed at the time the initial certification was signed.) A new, signed Form I-914 Supplement B can also document this requirement. However, many practitioners prefer to submit documentation other than a new I-914 Supplement B, such as the client’s signed declaration, in order to lower the burden on law enforcement agencies and preserve those resources for certifying new cases. See Chapter 7.

40 41

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Would suffer extreme hardship involving unusual and severe harm upon removal In the alternative, a T-based adjustment applicant can establish they would suffer extreme hardship involving unusual and severe harm upon removal. 42 The hardship determination is evaluated on a case-by-case basis by USCIS in accordance with 8 CFR § 214.11(i), 43 and it entails a higher standard than extreme hardship in 8 CFR § 240.58.44 A finding of extreme hardship involving unusual and severe harm may not be based solely on current or future economic harm, or lack of or disruption to social or economic opportunities. 45 Factors that may be considered in evaluating extreme hardship involving unusual and severe harm upon removal include, but are not limited to: • • • • • • • •

Age, maturity, and personal circumstances of the applicant; Physical or psychological issues which necessitates medical or psychological care not reasonably available in the country of return; Nature and extent of the physical and psychological consequences of having been a victim of a severe form of trafficking; The impact of the loss of access to U.S. courts and the criminal justice system for reasons related to the trafficking activities; The reasonable expectation that the laws, social practices, or customs of the country of return would penalize the applicant for having been a trafficking victim; The likelihood of re-victimization and the need, ability, and willingness of foreign authorities to protect the applicant; The likelihood of harm that the trafficker could cause the applicant, either directly or indirectly; or The likelihood that the applicant’s individual safety would be threatened by civil unrest or armed conflict. 46

If the basis for the hardship claim is a continuation of the hardship claimed in the T nonimmigrant status application, the applicant does not need to re-document their entire claim. The applicant only needs to submit evidence that shows the previously established hardship is ongoing. However, USCIS is not bound by its previous hardship determination. 47 § 6.7

Inadmissibility and Discretionary Issues

T nonimmigrants must be admissible or have been granted a waiver of inadmissibility by USCIS when they apply to adjust status. 48 If not, the applicant is not eligible to adjust status.

42

INA § 245(l)(1)(C). 8 CFR § 245.23(f)(2). 44 8 CFR § 214.11(i)(2). 45 Id. However, economic hardship can be relevant to the other factors. For examples, it may leave the applicant vulnerable to re-trafficking or other harm. 46 Id. 47 8 CFR § 245.23(f)(2). 48 8 CFR § 245.23(a)(4). 43

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Non-waivable grounds of inadmissibility There are certain grounds of inadmissibility for which there is no available waiver. If one of these grounds applies to the applicant, they will be unable to adjust status. These non-waivable grounds of inadmissibility are: • • •

Inadmissibility due to security and related grounds, including terrorist activities, INA § 212(a)(3); Inadmissibility due to international child abduction, INA § 212(a)(10)(C); and Inadmissibility due to renunciation of citizenship for tax purposes, INA § 212(a)(10)(E). 49

Waivable grounds of inadmissibility There are also a number of grounds of inadmissibility for which the applicant can obtain a waiver. This includes any of the inadmissibility grounds found in INA § 212(a) that are waivable, for example INA § 212(h) or INA § 212(i) waiver. 50 In addition, USCIS may grant a waiver if it determines that it is in the national interest to do so for the health-related grounds in INA § 212(a)(1). Finally, USCIS may waive any other provision (except those non-waivable grounds of inadmissibility discussed above) if it determines that the activities that rendered the applicant inadmissible were caused by or incident to the victimization arising out of severe trafficking and it is in the national interest to do so. 51 While a T nonimmigrant may be able to obtain a waiver for certain grounds of inadmissibility, it is also important to recognize that DHS can also revoke a waiver subject to procedures outlined in the regulations. 52

49

8 CFR § 245.23(c)(2). 8 CFR § 245.23(c)(3). 51 8 CFR § 212.18(b). 52 8 CFR § 212.18(d). 50

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CHAPTER 7 ADJUSTMENT OF STATUS PROCESS This chapter includes:

§ 7.11 § 7.12 § 7.13 § 7.14 § 7.15

Documentation Requirements for T Adjustment of Status ................................ 112 Completing Form G-28 ...................................................................................... 114 Completing Form I-485 ...................................................................................... 115 Form I-765/Work Permit Application ................................................................ 116 Filing Fees and Fee Waivers .............................................................................. 116 Passport .............................................................................................................. 117 Medical Exam .................................................................................................... 118 Proving Continuous Physical Presence .............................................................. 121 Evidence of Good Moral Character.................................................................... 123 Establishing Compliance with Reasonable Requests for Assistance or Extreme Hardship ............................................................................................... 124 Form I-601/Inadmissibility................................................................................. 126 Evidence That Discretionary Approval Is Warranted ........................................ 127 Filing the Adjustment of Status Application ...................................................... 128 Biometrics .......................................................................................................... 129 Approvals and Denials ....................................................................................... 130

Chapter 7

§ 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9 § 7.10

The adjustment of status procedure for T nonimmigrants varies in significant ways from other adjustment procedures such as for family-based beneficiaries, U nonimmigrants and VAWA selfpetitioners. First, T nonimmigrants will file their Form I-485 with the Vermont Service Center (VSC), regardless of the applicant’s place of residence. Second, they will typically not attend an immigration interview in order to adjust status. Instead, the adjustment application will be adjudicated by the Vermont Service Center, not a local USCIS office. Third, USCIS has sole jurisdiction over all applications for adjustment of status for T nonimmigrants; 1 T nonimmigrants may not adjust status in proceedings in front of an immigration judge. In other ways, the process is similar. For example, Form I-485 is the application to adjust status and a medical exam must be submitted. A fee waiver is available if the client is sufficiently low income, receives a means-tested benefit, or faces other economic hardships. The T nonimmigrant adjustment of status process is similar to the adjustment of status process for U nonimmigrants, although there are important differences. As discussed in Chapter 6, T nonimmigrants may adjust status before they have accrued three years of continuous presence in certain circumstances. In addition, derivative T nonimmigrants can file for adjustment of status at the same time as the principal T nonimmigrants, regardless of the length of time they have held

1

8 CFR § 245.23(d); USCIS Adjudicator’s Field Manual 23.5(n)(2)(A).

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their T nonimmigrant status, and their applications may be submitted as part of the same application packet as the principal T nonimmigrant.

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This chapter provides an overview of the forms and supporting documentation in the adjustment of status application, the purpose of each, and anything special you might need to know. Before preparing the adjustment of status packet for your T nonimmigrant client, it is important to familiarize yourself with the eligibility requirements as discussed in Chapter 6, and to check the USCIS website to ensure that you are using the required version of the forms and following the most up-to-date instructions for Form I-485, which includes unique instructions for T nonimmigrant holders. The relevant forms and their instructions can be found on the USCIS website. 2 A sample cover letter can be found in the Sample Adjustment of Status Packet at Appendix Z. § 7.1

Documentation Requirements for T Adjustment of Status

The primary documentation a T nonimmigrant needs to submit as part of their adjustment of status packet is prescribed in 8 C.F.R. § 245.23(e) and the instructions to Form I-485. Before submitting an adjustment of status application on behalf of your client, you should review USCIS’s most current instructions to Form I-485 to ensure that you are submitting all of the required evidence. As of November 2018, the following documents should be submitted as part of a principal T-1 nonimmigrant’s adjustment of status packet: • • • • • •

•

Form G-28 Notice of Entry of Appearance as Attorney or Accredited Representative Form I-485 Application to Register Permanent Residence or Adjust Status 3 Filing Fee 4 or Form I-912 Request for Fee-Waiver Form I-693 Report of Medical Examination and Vaccination Record Passport photographs: Must include two recent, passport-style, 2-inch by 2-inch, color photographs Copy of birth certificate: A birth certificate is typically required as part of an adjustment application packet and while some T adjustments have been approved without the submission of a birth certificate, in other cases an RFE has been issued for the birth certificate. We recommend submitting a copy of your client’s birth certificate, if available, with an English translation, if needed. Copy of all pages of current passport: If your client does not have a current passport, they should submit an affidavit describing their attempts to obtain one.

2

See the USCIS website at https://www.uscis.gov/i-485. Note that Form G-325A is no longer required. You do not need to submit a separate Form G-325A with Form I-485. Parts 1 and 3 of Form I-485 meet the requirements of 8 § CFR 245.3(a)(3)(i) by collecting the biographical information formerly required on Form G-325A. USCIS, Instructions for Form I-485 (12/13/2017), p. 4, available at https://www.uscis.gov/i-485. 4 Current filing fees for Form I-485 are available at https://www.uscis.gov/i-485. 3

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Evidence of T nonimmigrant status: o Photocopy of Form I-797 Notice of Action, for approval of T nonimmigrant status (issued when the T nonimmigrant status application was approved) o Photocopy of Form I-94 Arrival-Departure Record Evidence of continuous physical presence (this is not required for derivative applicants): o Photocopy of every page of passport(s) (or equivalent travel document) valid during period that individual was in T nonimmigrant status o Documentation regarding any departure from and reentry to the United States o Other evidence of physical presence in the United States, such as documentation issued by governmental or nongovernmental authority, tax records, school records, college transcripts, employment records, income tax returns, monthly rent receipts, utility bills, documents from Department of Homeland Security (DHS) file, and declarations from other people attesting to their physical presence Evidence of good moral character (this is not required for derivative applicants or applicants under age 14): o Local police clearance or criminal background check covering every place the applicant has lived within the last three years and/or FBI background check o Declarations attesting to good moral character Evidence of one of the following (this is not required for derivative applicants): o Compliance with reasonable requests for assistance in the investigation or prosecution of acts of trafficking  Letter issued by U.S. Attorney General or their designee certifying that the applicant has complied with any reasonable request for assistance in the investigation or prosecution of trafficking of persons  Other evidence can include re-signed and dated Form I-914B, Supplement B, affidavits describing how the applicant continues to comply with reasonable requests, statement from law enforcement, trial transcripts, court documents, police reports, or news articles o Extreme hardship involving unusual and severe harm upon removal  Evidence includes a declaration from the applicant, U.S. Department of State Country Report or U.S. Department of State annual Trafficking in Persons Report, other country conditions documents o Trafficking victim was under 18 at the time of trafficking and was exempt from cooperating and reporting case to a law enforcement agency, if relevant: Can establish through applicant’s declaration and I-914 approval notice o Trafficking victim qualified under VAWA trauma exception and was exempt from cooperating and reporting case to a law enforcement agency, if relevant: Evidence includes applicant’s declaration and documents from original T nonimmigrant status application

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Applicant’s declaration (this is not required for derivative applicants): The principal applicant should submit a declaration addressing the eligibility requirements, including continuous physical presence in the United States, good moral character, cooperation with law enforcement, hardship upon return and discretion Form I-131 Application for Travel Document: Submit this form with two recent, passport-style, 2-inch by 2-inch color photographs to request an advance parole document if the applicant needs to travel outside of the United States while the adjustment application is pending Form I-601 Application for Waiver of Grounds of Inadmissibility, if needed Form I-765 Application for Employment Authorization, if needed

PRACTICE POINTER: Adjustment of status for derivative T nonimmigrants. Unlike in the U nonimmigrant context, adjustment of status for derivative T nonimmigrants remains dependent on the principal T nonimmigrant’s application. Derivative T nonimmigrants must apply for adjustment of status at the same time as the principal T nonimmigrant or while the principal’s adjustment of status application is pending. If the principal adjusts status before the derivative T nonimmigrant enters the United States with their T visa or before the T nonimmigrant submits an application for adjustment of status, the derivative T nonimmigrant will lose their T visa and their opportunity to adjust status. Because derivative applications are tied to principal applications, derivative T nonimmigrants applying for adjustment of status are not required to submit all of the same evidence as principal applicants. As noted above, derivative T nonimmigrants are not required to submit evidence of continuous physical presence in the United States, evidence of cooperation with law enforcement or extreme hardship, evidence of good moral character, or a declaration. See Chapter 8 for more information on derivatives. § 7.2

Completing Form G-28

The Form G-28 Notice of Entry of Appearance as Attorney or Accredited Representative provides notice that an attorney or accredited representative of a religious, charitable, social service or similar organization will appear before USCIS on behalf of the applicant. If you are including derivatives in the adjustment of status application, you must submit separate Forms G28 for the principal T nonimmigrant and each derivative seeking to adjust status. Make certain that both you as the attorney or accredited representative and the applicant (or if the applicant is younger than 14, their parent or legal guardian if they prefer to have an adult sign for them) sign the G-28. Although not required, G-28s have typically been filed on blue paper to make them easier to locate in the A file. It is best to file the G-28 along with the application to ensure that USCIS recognizes you as the attorney or accredited representative for the application, mails you copies of all official correspondence, and will communicate with you about the application. Note that if you are completing the most recent version of Form G-28 on a computer, the data that you enter will be captured using 2D barcode technology. A unique barcode will appear on the bottom of the form, based on the information that you enter. Accordingly, it is important not to damage the barcode (for example by puncturing, stapling or writing on the barcode) as USCIS will use it to extract data from the form.

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There is no fee for this form and no supporting materials are required. PRACTICE POINTER: Applicant’s address. T nonimmigrants are not required to provide their physical addresses to USCIS. You should consult with your client to see if they would prefer to use a safe mailing address (i.e. their attorney’s address) instead of their physical address on the adjustment of status forms. For questions asking for the applicant’s physical address, you can write “Confidential.” We recommend providing the client’s zip code but not street address so that they will be scheduled for a biometrics appointment close to their current residence.

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§ 7.3

Completing Form I-485

The Form I-485 Application to Register Permanent Residence or Adjust Status is used to apply to adjust the T nonimmigrant’s status to that of a permanent resident of the United States. Take care to review Form I-485 carefully with your client and answer each question accurately. Notice that you need to answer the laundry list of inadmissibility questions on Form I-485 that are similar to those that were already answered on the Form I-914. Unless conditions have changed substantially or there are updates in significant events, the applicant’s answers on Form I-485 should generally be consistent with the answers on the Form I-914 and in the T visa application, including any arrests, address history, and any prior fraud or misrepresentation in the applicant’s immigration history. Any “yes” answers that were previously disclosed and waived can be covered in an attachment to the I-485, noting that those inadmissibility grounds were previously disclosed and waived as part of the T nonimmigrant status application. Any new “yes” answers to these inadmissibility questions should be addressed in an attachment, and additionally in the applicant’s declaration if more explanation is required. It is essential to ask your client all these inadmissibility questions again when applying for adjustment. If you discover that your client triggers inadmissibility based on new circumstances since the approval of their T nonimmigrant status, you will need to file Form I-601 to request a waiver of that ground of inadmissibility. You should consult with an experienced T visa practitioner and assess the risks to your client if they apply for adjustment of status and trigger a new ground of inadmissibility. It is also best practice to obtain a copy of the initial T nonimmigrant status application so that you know what was and was not previously disclosed. If you determine that the adjustment applicant failed to disclose a material fact, you should consult with an experienced T visa practitioner to discuss the best way to disclose and address the fact in the adjustment of status application. Even if the fact does not trigger a ground of inadmissibility, you may still be required to disclose it and should explain the previous oversight and express contriteness for it in the declaration. If the disclosed information is very negative, be sure to include information and documentation of positive equities to outweigh the negative history and the fact that it was not previously disclosed. If the previously undisclosed information would have triggered a ground of inadmissibility that was not waived in the T nonimmigrant status application due to the failure to disclose, it is a good idea to include a Form I-601 to enable USCIS to now waive the triggered ground if it deems it necessary. PRACTICE POINTER: Applicant’s last “entry” into the United States. The Form I-485 requests information regarding the applicant’s last entry to the United States. Some practitioners have

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interpreted the term “entry” to mean physical entry to the United States, and others interpret it to mean the date an applicant’s status was changed to that of a T nonimmigrant. If you choose to put the date of last physical entry into the United States, an applicant should include the same information about date and manner of entry on the I-485 as they listed about their last entry on the I-914, if they have not left the United States since their initial application. Where the Form I-485 asks for an I-94 number and the client initially entered lawfully, you can include both the I-94 number from the initial entry and the I-94 number from the I-914 or I-914A approval notice. If you choose to use the date the applicant received T nonimmigrant status, you should use the information on the client’s I-94 card. Include any additional explanation needed in an attachment to the Form I-485. To answer question 22 of Form I-485, regarding manner of entry, check 22.d (other) and write in “granted T nonimmigrant status by the Vermont Service Center.” § 7.4

Form I-765/Work Permit Application

The Form I-765 Application for Employment Authorization is used to apply for an Employment Authorization Document (EAD or work permit). Filing this form is optional; however, you may way want to file Form I-765 along with Form I-485 if your client’s current EAD expires within six months of the date the adjustment application is submitted. You may also file Form I-485 at any time the applicant’s adjustment application is pending before USCIS. There is no fee for this form if it is filed with, or after, an I-485. 5 In support of the I-765 you must submit two additional photographs, a copy of the client’s current EAD approval notice and card, and a copy of the applicant’s government-issued identity document showing the applicant’s picture, name and date of birth. When completing the application form, you should indicate that the applicant is entitled to employment authorization under category (c)(9). § 7.5

Filing Fees and Fee Waivers

As of November 2018, the filing fee for the Form I-485 is $1,140 plus a biometrics fee of $85, for a total of $1,225. Applicants that are under 14 years of age or 79 years of age and older are not required to pay the biometrics fee. Additionally, applicants under 14 years of age who are filing along with a parent are only required to pay $750. You should always check the USCIS website (www.uscis.gov) for the current filing fee amounts. The filing fee for the Form I-485 may be waived for T nonimmigrants. You may use Form I-912 to request for a fee waiver. As of November 2018, an applicant may qualify for a fee waiver by showing that their household income is below 150% of the federal poverty guidelines, that they receive a means-tested benefit, or that they have a financial hardship. If available, you should submit documentation showing that your client qualifies for the fee waiver. You can demonstrate that the applicant is currently receiving a means-tested benefit such as Medicaid, Supplemental Nutrition Assistance Program (SNAP also formerly known as Food Stamps), Temporary Assistance to Needy Families (TANF), or Supplemental Security Income

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See USCIS, Instructions for I-765, Application for Employment Authorization (May 31, 2018), available at https://www.uscis.gov/i-765.

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(SSI) through a letter, notice, or other agency documents that indicate that the benefit is being received.

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PRACTICE POINTER: Changes to fee waivers based on means-tested benefit. As of November 2018, an applicant may qualify for a fee waiver by showing they receive a means-tested benefit. Traditionally, the Vermont Service Center approved fee waiver requests based solely on statements from applicants that they receive a means-tested benefit, their household income is at or below 150% of the poverty guideline, or that they experience financial hardship. However, advocates have reported an increase in the denial of fee waiver requests, particularly those submitted without supporting documentation. In order to minimize the risk that your client’s fee waiver request is denied, we recommend submitting supporting documentation whenever possible. In September 2018, USCIS published a proposed rule in the Federal Register, seeking to eliminate receipt of a means-tested benefit as way to qualify for a filing fee waiver. 6 If it becomes final, the proposed rule will make it more difficult for T nonimmigrants seeking to adjust their status to receive a fee waiver. Before submitting a fee waiver application on your client’s behalf, take care to check the USCIS website at www.uscis.gov to ensure that you are using the required edition of any form and consult the form instructions to determine whether you can still establish eligibility for a fee waiver by showing your client receives a means tested benefit. To establish household income below 150% of the poverty line, you should provide documentation of annual income with a copy of the applicant’s most recent federal tax return. If your client does not have their most recent tax return, you can provide consecutive pay statements (stubs) for minimum of the past month, recent Form W-2, Form SSA-1099, or statements from employers on business stationery showing salary or wages paid. In order to establish financial hardship, you should include a statement from the applicant regarding hardship. You should also include documentation comparing the applicant’s monthly income to the client’s monthly expenses, including copies of monthly bills and payments and documentation for monthly expenses. You can also submit evidence such as medical bills and other evidence further showing financial hardship and extenuating circumstances. The I-485 filing fee or fee waiver request also covers the Form I-765 and Form I-131 fees, so there is no need to separately pay for those fees or to submit a separate fee waiver request with those forms. If you are submitting Form I-601 on behalf of your client, you will need to submit the Form I-601 fee ($930 as of November 2018) or request that the fee be waived by indicating on the fee waiver form that you are also requesting waiver of the I-601 filing fee. § 7.6

Passport

Under the regulations, a T nonimmigrant applying to adjust status must submit photocopies of all pages of their current, unexpired passport. 7 If the applicant does not have a current passport, they

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USCIS, Proposed I-912 Fee Waiver Form Revision (9/27/2018), available at https://www.uscis.gov/news/alerts/proposed-i-912-fee-waiver-form-revision. 7 8 CFR § 245.23(e)(1)(v).

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must provide an explanation of why they do not have a passport. 8 This explanation is typically provided in the applicant’s declaration. Typical reasons that a T nonimmigrant may be unable to obtain a passport include a lack of birth certificate or other required identity document, inability to obtain approval from both parents if the applicant is a minor, or lack of funds to pay for a passport.

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It may be best to also include a photocopy all pages of all previous passports that the applicant held during the period of the validity of T nonimmigrant status. This may help demonstrate continuous physical presence, as explained below in § 7.8. § 7.7

Medical Exam

In support of the Form I-485, you must include a Form I-693, Medical Examination Report, in a sealed envelope. This can be submitted with the Form I-485, or later upon USCIS request. A doctor specially approved by USCIS (often referred to as a “civil surgeon”) must complete the Form I-693. The purpose of the Form I-693 is to inform USCIS whether the applicant falls into any of the health-related grounds of inadmissibility. These grounds of inadmissibility are found at INA § 212(a)(1) and discussed in detail in Chapter 5. To find a USCIS-approved doctor, go to www.uscis.gov, click on “Tools,” and then “Find a Doctor,” and search using the applicant’s zip code. You will be given the names, addresses, and phone numbers of authorized civil surgeons who either are located in that zip code or may serve that area. The list may be quite extensive. You can also obtain this information through the USCIS National Customer Service Center phone service (1-800-375-5283). Note, however, that the list you obtain on the phone may be shorter than the list you can obtain online. Once you have obtained a list of authorized civil surgeons, you or your client may want to call around and compare prices. USCIS does not regulate the cost of the medical examinations, and they may cost upwards of $200.00. Once you have settled on a civil surgeon and scheduled an appointment for the applicant, we suggest that you download the Form I-693 from the USCIS website, complete Part One for the applicant consistent with how you have completed their other immigration applications and print a full copy. You should also download and read the instructions for the Form I-693 so that you are familiar with the process the applicant will go through. The Form I-693 you prepare should be provided to the civil surgeon for their completion. Preparing for the medical examination. Before the medical examination, meet with the applicant and explain what the medical examination is for and what will happen at the appointment—namely, that the doctor will ask them questions, review their medical documents, and perhaps perform some tests. Make sure to tell your client that it is important that they answer the doctor’s questions honestly. Be certain that the applicant takes the Form I-693 you have created as well as their complete vaccination record and government-issued photo identification to the appointment. If the applicant does not have this form of identification, a birth certificate with translation or a declaration should suffice. See the Form I-693 instructions at www.uscis.gov

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for more details. Do not have the applicant sign the Form I-693; they will do so at their medical appointment.

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The medical examination. At the medical exam the doctor will take tests and ask questions to see if the applicant has certain conditions. These include, among other things, chronic alcoholism, mental disorders accompanied by harmful behavior, drug addiction, venereal disease, Hansen’s disease, and tuberculosis. The doctor will also check to see if all required immunizations have been provided. 9 The doctor will recommend follow-up steps if needed, such as getting further evaluation or treatment for tuberculosis, obtaining a psychological or psychiatric evaluation for a suspected medical condition, or obtaining needed vaccinations. All of these things may come with additional fees. Note that to determine whether the applicant is a drug abuser or addict, the doctor may simply begin by asking the applicant if they have taken any drugs or medicines within the last few years. Make the applicant aware of this issue. Under the 2017 Center for Disease Control instructions, “diagnoses of substance-related disorders are to be made in accordance with existing medical standards as determined by the current edition of the DSM.” Currently, doctors must screen for both substance use disorders and substance-induced disorders. If the doctor suspects such a disorder exists, the applicant may be required to obtain a psychiatrist’s evaluation or other testing. At that point, advocates should obtain expert advice about USCIS standards and what is required. PRACTICE TIP: Talking to your client about drug use. You must have a frank conversation with your client about the impact that drug use could have on their immigration case, including a possible diagnosis of drug abuse or addiction and the possibility of a drug-related arrest and adjudication or conviction that may render your client inadmissible. This is particularly important as it relates to recreational and medicinal marijuana use, which is now legal in many states but continues to be unlawful under federal law. For more information about talking to clients about the risks of marijuana use, even in states where it is legal, see ILRC, Warning for Immigrants About Medical and Legalized Marijuana (Jan. 8, 2018), https://www.ilrc.org/warningimmigrants-about-medical-and-legalized-marijuana. USCIS requires a re-examination by a civil surgeon if there are alcohol-related driving incidents that were not considered by the civil surgeon during the original medical evaluation. A reexamination for alcoholism will be required if the applicant has: • •

One or more arrests or convictions for alcohol-related driving incidents while the driver’s license was suspended, revoked, or restricted at the time of the arrest due to a previous alcohol-related driving incident; One or more arrests or convictions for alcohol-related driving incidents where personal injury or death resulted;

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Certain vaccines may not be appropriate for your client because of age, pregnancy, or a medical condition. In that case, the civil surgeon should note in the I-693 that the vaccines are not appropriate for the applicant, and USCIS will waiver the vaccine requirement. 9-USCIS-PM C.3(D). Your client may also have a personal or religious objection to receiving vaccines and may seek a waiver of the requirement. Id. at C.3(E).

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• • •

One or more convictions for alcohol-related driving incidents that resulted in a felony conviction or sentence of incarceration; A single alcohol-related arrest or conviction within the last five years; or Two or more alcohol-related arrests or convictions within the last ten years.

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This standard shows that the government is taking alcohol-related offenses much more seriously. Nevertheless, a person should not be found inadmissible for a record of drunk driving arrests or convictions unless a civil surgeon has made two findings: (1) that there is a diagnosis or mental disorder (alcohol abuse) and (2) current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future, such as drunk driving or domestic violence. You should work with your client to explore whether these might be concerns before they go for the Form I-693 medical examination. Once the doctor has completed the Form I-693, they should provide the applicant with a complete copy of the Form I-693 as well as the original form in a sealed envelope. Instruct the applicant and any staff in your office who may come into contact with this document to not open the envelope. Instead, carefully review the copy of the Form I-693 and make certain that the Form I693 is filled out completely and accurately. If the Form I-693 is lacking something—such as the doctor’s signature—ask the applicant to return to the doctor to have this corrected. If the Form I693 indicates that a ground of inadmissibility is present (that is, a Class A or Class B condition as described on the Form I-693) you will need to complete and submit a Form I-601 waiver as discussed above if the applicant wants to go forward with the case. Note that all health-related grounds of inadmissibility can be waived for applicants adjusting status as T nonimmigrants. If you have concerns about your client’s health-related inadmissibility, seek expert assistance. PRACTICE POINTER: When to file Form I-693. An applicant is not required to submit Form I693 at the time they file their adjustment application but may do so. In October 2018 USCIS extended the validity of Form I-693 so that it is valid for two years from the date of the civil surgeon’s signature. 10 Additionally, Form I-693 must be submitted to USCIS within 60 days of the civil surgeon’s signature. 11 Prior to October 2018, many attorneys chose not to submit the Form I-693 with the I-485 packet and instead would wait for an RFE if ordered to repeat the immigration medical examination.12 However, the two-year validity period makes it more likely USCIS will adjudicate your clients adjustment of status application before the medical exam expires. If your client has been unable to obtain the medical exam in time, do not miss the filing deadline of the expiration date of the applicant’s T nonimmigrant status; you will have the opportunity to submit the medical exam at a later date. 13

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8-USCIS-PM B.4(C)(4). Id. 12 USCIS, Instruction for Form I-485 (12/13/2017), p. 12, available at https://www.uscis.gov/i-485. 13 Id. 11

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§ 7.8

Proving Continuous Physical Presence

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Only the principal T-1 nonimmigrant is required to show continuous presence in the United States. 14 Derivative T nonimmigrants need not separately prove this continuous physical presence requirement and are eligible to adjust upon entry in T derivative status into the United States when the principal T-1 nonimmigrant is eligible to adjust. 15 As discussed in Chapter 6 if the applicant has documentation from the Attorney General or the Attorney General’s designee attesting that the applicant cooperated with the law enforcement investigation and the investigation is now closed, the applicant may apply to adjust status before they have accrued three years of physical presence.16 This applicant is only required to show continuous physical presence in the United States during the time of the investigation.17 Applicants without documentation from the U.S. Attorney General supporting law enforcement compliance will need to show three years continuous physical presence from the date the T nonimmigrant status was granted. 18 The process for obtaining documentations from the U.S. Attorney General is discussed in § 7.10. Documentation of continuous physical presence must include the applicant’s declaration attesting to the required three years of continuous physical presence in T-1 nonimmigrant status. 19 However, the applicant’s statement alone will not be sufficient to establish the required three years of continuous physical presence. 20 The instructions to Form I-485 provide other evidence an applicant should submit in order to establish continued presence, including but not limited to: •

• • • •

Documentation issued by any governmental or nongovernmental authority, provided the documentation contains the applicant’s name, was dated at the time it was issued, and contains the normal signature, seal, or other authenticating instrument of the authorized representative of the issuing authority Educational documents Employment records Federal or state income tax returns College transcripts, employment records, or federal or state income tax returns to show that the individual went to school or worked throughout entire continuous physical presence period

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See 8 C.F.R. § 245.23(b). Id. Note that this is different that the adjustment of status process for U-1 nonimmigrants and derivative U nonimmigrants, where U-1 nonimmigrants and all derivative U nonimmigrants need to separately establish three years of continuous presence in the United States after entering into U nonimmigrant status in the United States. This means that it is common for U-1 nonimmigrants to be eligible to adjust before derivative U nonimmigrants, whereas T-1 nonimmigrants and all derivative T nonimmigrants are eligible to adjust simultaneously. 16 INA § 245(l)(1)(A); 8 CFR § 245.23(e)(2)(i)(B). 17 Id. 18 INA § 245(l)(1)(A); 8 CFR § 245.23(a)(2)(iii). 19 8 CFR § 245.23(1)(2)(i). 20 Id. 15

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•

Documents showing installment periods such as series of monthly rent receipts or utility bills 21

If none of this evidence is available, the applicant must explain why in a declaration or affidavit and provide additional statements from others who can attest with first-hand knowledge and specific facts regarding the applicant’s continuous physical presence in the United States. 22

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If you believe USCIS already has documentation in its files establishing the applicant’s physical presence—for example a written copy of a sworn statement given to a DHS officer, a document from a law enforcement agency attesting to the fact that the applicant has continued to comply with requests for assistance, transcripts of formal hearings, a Record of Deportable/Inadmissible Alien, Form I-213, etc.—then you may simply list those documents, giving the type and date of the document. 23 You may also have copies of documents signed by the applicant in your own records, and you may submit those copies to show that the applicant was in the United States on the date the document was signed. Although the applicant does not need to show presence in the United States for every day during the required three-year period, any absences or chronological gaps should be explained as USCIS will be looking for absences that, in the aggregate, add up to 180 days and would therefore bar the applicant from showing three years of continuous physical presence. A good goal is to submit something for each month, but in many cases, something for each quarter will suffice. A variety of sources of documentation is best (rather than just three years of utility bills). If the applicant has left the United States at any point during the period of continuous residence, the applicant must submit documentation showing the date of departure; place of departure; length of departure; manner of departure (plane, boat, etc.); date of return; and place of return. 24 The applicant should also submit a copy of the Form I-94, Arrival-Departure Record, that the applicant received when they entered on the T visa or when the T nonimmigrant status was approved. Note that if the applicant was in the United States when the T nonimmigrant status was approved and has never departed, the I-94 is part of the I-914 approval notice. PRACTICE POINTER: Adjustment considerations for T nonimmigrants who wish to travel. Applicants with a pending adjustment application who wish to travel outside the United States may be able to do so but must obtain advance parole to travel. This can be requested on Form I131 before departing the United States. There is no fee for the Form I-131 for those T nonimmigrants who have paid for the Form I-485 filing fee or had that filing fee waived. The Form I-131 can be submitted to VSC along with or after the filing of the Form I-485. If there is an emergency, the Form I-131 can be submitted to a local USCIS district office with proof of the emergency. In those cases, make an InfoPass appointment if there is one available in time; otherwise try to walk in without an appointment. For non-emergency advance parole based on the pending adjustment, there is no need to have a specific or urgent reason for the travel. Please be 21

USCIS, Instruction for Form I-485 (12/13/2017), p. 26, available at https://www.uscis.gov/i-485. See also 8 CFR § 245.22. 22 USCIS, Instruction for Form I-485 (12/13/2017), p. 26, available at https://www.uscis.gov/i-485. 23 Id. 24 8 CFR § 245.23(e)(2)(i)(A).

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aware that travel to the applicant’s country of citizenship should be avoided as it will make it more difficult for the applicant to show extreme hardship upon return. Additionally, travel will pose additional risk to the applicant if they are subject to a new ground of inadmissibility that has been triggered since approval of their T nonimmigrant status or if it was never waived by USCIS. See Chapter 10 for more information on travel and how to advise your client. § 7.9

Evidence of Good Moral Character

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Only the principal T-1 nonimmigrant applicant for adjustment of status must demonstrate that they have been a person of good moral character, and they must establish good moral character for the period since first being lawfully admitted as a T-1 nonimmigrant through and until USCIS adjudicates their adjustment of status application. 25 As discussed in Chapter 6 claims of good moral character are evaluated on a case by case-basis, taking into account INA § 101(f) and the standards of the community. 26 An applicant under 14 years of age is generally presumed to be a person of good moral character and not required to submit evidence of good moral character. 27 However, if USCIS thinks there is reason to believe that an applicant under 14 is not a person of good moral character, the USCIS may request evidence of good moral character. 28 In order to establish good moral character, an applicant must submit an affidavit attesting to their good moral character and a local police clearance letter or state-issued criminal background check from each locality or state where the applicant has resided for six or more months since they received T-1 nonimmigrant status. 29 You should contact the police department for each locality where your client has resided for more than six months to inquire about their specific procedures for providing police clearance letters. If your client has resided in several cities, it may be easiest to obtain a state background check or Live Scan (technology used by law enforcement agencies and private facilities to capture fingerprints and palm prints electronically instead of ink and paper). 30 Information about state background check procedures is typically found online, and you may want to speak to an experienced practitioner about the process. Please be aware that, depending on the location, it can take several months to obtain results of a background check and cost upwards of $100. You should speak to your client early about this requirement and begin working on the background check in advance of when you plan to file the adjustment application. If a background check is not available, the applicant may include an explanation and submit other evidence of good moral character. 31 Other evidence of good moral character includes affidavits attesting to the applicant’s good moral character and involvement in the community, 32 such as documentation of volunteer service or involvement in a church or community group.

25

INA § 245.23(l)(1)(B); 8 CFR § 245.23(g). Id. 27 8 CFR § 245.23(g)(4). 28 Id. 29 8 CFR § 245.23(g)(1). 30 Some attorneys submit FBI background checks and have reported that USCIS generally accepts FBI background check in lieu of state or local criminal records searches. 31 8 CFR § 245.23(g)(2). 32 8 CFR § 245.23(g)(3). 26

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PRACTICE POINTER: Good moral character waiver. An applicant who cannot show good moral character may receive a waiver of their disqualification if “the disqualification was caused by, or incident to, the trafficking.” 33 Common issues that may disqualify an applicant include alcohol addiction, controlled substance convictions, or engaging in commercial sex after the T nonimmigrant status was approved. 34 In order to establish that your client’s disqualification should be waived, the applicant should address the disqualification in their declaration. You should also submit other evidence supporting the connection between the client’s trafficking and inability to establish good moral character, such as a mental health evaluation or an expert’s report providing an expert opinion that the act disqualifying your client from establishing good moral character was caused by their trafficking. § 7.10 Establishing Compliance with Reasonable Requests for Assistance or Extreme Hardship As discussed in Chapter 6, a T-1 nonimmigrant applying for adjustment must show one of the following: 1. They complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking; 2. They were under 18 years of age at the time of the victimization that qualified them for T nonimmigrant status; or 3. They would suffer extreme hardship involving unusual and severe harm if removed from the United States. 35 Cooperation with reasonable requests for assistance. According to the regulations, in order to meet this requirement, the applicant “must submit a document issued by the U.S. Attorney General or his designee certifying that the applicant has complied with any reasonable requests for assistance in the investigation or prosecution” of their trafficking. 36 This document should not be confused with the Form I-914 Supplement B, Declaration of Law Enforcement Officer for Trafficking in Persons. The Department of Justice has created a procedure for T-1 nonimmigrants to request a letter stating that they cooperated with law enforcement in the investigation of acts of trafficking and that the investigation is closed. As of November 2018, advocates seeking a letter should contact the Department of Justice’s Human Trafficking Prosecution Unit via email at [email protected]. The email should include the client’s full name, alien number, date the T nonimmigrant status was granted, location and dates of trafficking, contact information of law enforcement the case was reported to, and information about the investigation or prosecution. Advocates have been successful in obtaining a letter from the Department of Justice even when law enforcement declined to interview the applicant and no investigation was conducted.

33

INA § 245(l)(6). INA § 101(f). 35 INA § 245(l)(1)(C); 8 CFR § 245.23(f)(1). 36 8 CFR § 245.23(f)(1). 34

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PRACTICE POINTER: Sample E-mail to the DOJ. Below is a sample email that has been successful in requesting a DOJ letter documenting cooperation in a trafficking case.

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To: [email protected] Subject: Trafficking Victim Adjustment of Status Letter (A:xxx-xxx-xxx) I represent xxxxx xxxxx xxx xxxxx (A: xxx-xxx-xxx), a victim of a severe form of trafficking in persons and T visa holder. I write to request a DOJ letter confirming that XXXX cooperated in the investigation into her trafficking and that the investigation is now closed. Client Name: XXXXX XXXXX XXX XXXXX Client Alien Number: xxx-xxx-xxx Date T Visa Granted: 11/23/2016 Location of Trafficking: Texas near Mexican border Approximate Dates of Trafficking: about March 2015 Law Enforcement Contact Where Case was Reported: Dana Scully, Federal Bureau of Investigation ([email protected]) Information About Prosecution (if any): no interviews requested, no prosecution Thank you for your attention to this request. Please email the letter to me and do not hesitate to contact me if I can provide you with any additional information. Although the regulations are clear that an applicant “must” submit U.S. Attorney General documentation to establish cooperation with reasonable requests for assistance, the instructions for Form I-485 allow other evidence of cooperation. 37 According to the instructions, evidence of cooperation includes: 1) the applicant’s own affidavit describing how they continue to comply with any reasonable requests for assistance; 2) a statement from a Federal, state, or local law enforcement official describing how the applicant complied with any reasonable requests; 3.) a re-signed and dated Form I-914, Supplement B; 4) trial transcripts; 5) court documents; 6) police reports; and 7) news articles. 38 If the applicant has not continued to assist law enforcement, the instructions allow the applicant to submit an affidavit explaining why they are no longer assisting law enforcement and provide valid reasons including: 1) the investigation or prosecution is complete; 2) the T-1 nonimmigrant status is based on willingness to assist but the applicant has not been needed by law enforcement despite a continued willingness to cooperate; 3) the applicant was not asked to assist after being granted T-1 nonimmigrant status; or 4) A request for assistance was not reasonable. 39 T derivative nonimmigrants need not seek a separate letter from the U.S. Attorney General, as their ability to adjust relies on the eligibility of the T-1 nonimmigrant to adjust. Under 18 at the time of victimization. The applicant should address their age at the time of victimization in their affidavit. Additionally, if the applicant received their T-1 nonimmigrant status prior to turning 18, you can point to the T-1 approval notice and I-94 as evidence the applicant was under 18 when the victimization occurred. You can also point to the client’s 37

USCIS, Instruction for Form I-485 (12/13/2017), p. 17, available at https://www.uscis.gov/i-485. Id. 39 Id. 38

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affidavit in support of their T visa application or other evidence from the T application packet to establish they were under 18 when their trafficking occurred. Extreme hardship involving unusual or severe harm. USCIS evaluates extreme hardship on a case-by-case basis, according to the factors in 8 CFR § 214.11(i). 40 The factors are discussed in Chapter 6. If the applicant is facing a continuation of the extreme hardship established in their T application, they may submit evidence to establish that their hardship is ongoing and do not need to re-document the entire claim. 41

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The T nonimmigrant may be able to establish extreme hardship by showing a risk of retaliation at the hands of the trafficker, likelihood of re-trafficking in their home country, likelihood of harm, and/or the ongoing need for mental health treatment in the United States as a result of the psychological harm of the trafficking, among other factors. You should review the extreme hardship factors carefully and present evidence of each factor that may apply to your client. In order to establish this hardship, the applicant’s affidavit should explain to the adjudicator what they will face if removed to their country of origin. A Sample Affidavit is included in Appendix Z. You may also want to submit country conditions documentation, such as the U.S. Department of State Trafficking in Persons Report or U.S. Department of State Human Rights Report, to corroborate the client’s fear of re-trafficking or other harm in their country of origin. Other evidence of extreme hardship may include a mental health evaluation or caseworker declaration, documenting the applicant’s ongoing need for services in the United States. § 7.11 Form I-601/Inadmissibility The Form I-601 Application for Waiver of Grounds of Inadmissibility is used to excuse, or “waive,” the grounds of inadmissibility that would otherwise bar the applicant’s adjustment of status. For a detailed discussion of the grounds of inadmissibility as they relate to T-based adjustment of status, see Chapter 5. If there is any doubt about whether the applicant falls into a waivable ground of inadmissibility, you can but do not need to file the Form I-601 with the Form I-485. Some practitioners wait until the applicant receives an RFE and file the Form I-601 only if it is needed. Other practitioners choose to file the Form I-601 with the adjustment packet because it can be easier to obtain a fee waiver for the Form I-601 when it is filed along with the other forms. Submitting the Form I-601 together with the Form I-485 may be especially prudent in light of USCIS’s recent policy change allowing adjudicators to deny applications without issuing an RFE, discussed in Chapter 4. 42 40

8 CFR § 245.23(f)(2). Id. 42 On July 13, 2018, USCIS issued a new Policy Memorandum that makes it easier for adjudicators to deny adjustment of status applications without first providing the applicant the opportunity to respond to the adjudicator’s concerns. See USCIS, Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b) (7/13/2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_N OIDs_FINAL2.pdf [hereinafter, RFE Memo]. Since the I-601 is not “required initial evidence” in support of the I-485, it is likely that USCIS will continue to issue RFEs in cases where it finds that a waiver is necessary. However, since the RFE Memo is new and implementation is just beginning at the time of this writing, we suggest this cautionary approach until additional clarity on USCIS’s new policy is provided. 41

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Note that the judgment whether the applicant falls into a ground of inadmissibility is not yours alone. For example, a USCIS-approved civil surgeon, not you, must decide whether the applicant falls into a health-related ground of inadmissibility. This process is described in § 7.7. If the doctor finds that the applicant triggers a health-related ground of inadmissibility, you must file the Form I-601 for the applicant. Similarly, you should file a Form I-601 if the adjudicating USCIS officer determines that a Form I-601 is required on another ground of inadmissibility. The failure to file the Form I-601 will lead, in all likelihood, to the Form I-485’s denial.

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Be aware that USCIS has made clear that an approved Form I-601 waives only the grounds of inadmissibility identified on the Form I-601 itself. If the applicant falls into a ground of inadmissibility that is not formally waived before the Form I-485 is approved, the government might later find that the applicant was not eligible to adjust their status, take away their green card, and place them into removal proceedings. For protection, you can list a number of grounds of inadmissibility in the Form I-601, but you need to submit evidence for all of the grounds. The current fee for the I-601 form is $930.00. This fee is waivable for applicants seeking T nonimmigrant-based adjustment of status. See § 7.4 for information on fee payment and fee waivers. Remember that to qualify for an inadmissibility waiver, the applicant must either establish that the acts making the applicant inadmissible “were caused by, or were incident to the victimization” or in the public interest, depending on the ground of inadmissibility triggered. 43 The instructions for the Form I-601 specifically address the waiver standard for T nonimmigrants and generally set forth the types of evidence that USCIS typically considers in assessing waiver applications. Be sure to include evidence that the applicants’ inadmissibility was caused by, or incident to, their victimization. The applicant should address the inadmissibility in their declaration and describe how it was caused by their trafficking. You should also submit other evidence supporting the connection between the client’s trafficking and inadmissibility, such as a mental health evaluation or an expert’s report providing an expert opinion that the act disqualifying your client from establishing good moral character was caused by their trafficking. § 7.12 Evidence That Discretionary Approval Is Warranted Adjustment of status is always a discretionary benefit, and the burden is on applicants to show that they merit a favorable exercise of discretion.44 Normally, applicants without adverse factors are not required to submit documentation specifically to support a favorable exercise of discretion. 45 A short statement in the applicant’s affidavit regarding family ties, hardship, and length of residence in the United States may be sufficient. However, if there are adverse factors present, USCIS weighs the negative and positive factors, and you should submit evidence of positive discretion factors, including: eligibility; immigration status and history; family unity; length of residence in the United States; business and employment; and community standing and moral character. 46 Moreover, the regulations provide 43

INA § 245(l)(2). 8 CFR § 245.23(e)(3); 7 USCIS Policy Manual A.10(B). 45 7-USCIS-PM A.10(B)(2) (“Absent compelling negative factors, an officer should exercise favorable discretion and approve the application”). 46 Id. 44

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that “only the most compelling positive factors would justify a favorable exercise of discretion in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns.” 47

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If there are adverse factors present, you will want to work closely with the applicant to document the positive factors and build your case that your client merits a favorable exercise of discretion. Evidence you may want to submit includes, but is not limited to, birth certificates of U.S. citizen children and evidence of other family lawfully in the United States; employment records and letters from employers; and documentation of volunteer work and community involvement, including letters of support. PRACTICE POINTER: Inadmissibility and discretion. Even when USCIS has waived a ground of inadmissibility, advocates have reported Requests for Evidence (RFEs) issued by USCIS that raise the underlying act as a negative factor weighing against a favorable exercise of discretion. If you receive a similar RFE, you should remind USCIS that the ground of inadmissibility has been waived and that, by granting a waiver, USCIS has already found that the act was caused by or incident to the trafficking or that waiver was in the public interest. You should nonetheless provide evidence of positive factors and argue that they outweigh the negative factors. § 7.13 Filing the Adjustment of Status Application Once you have completed the forms and gathered your supporting evidence, you need to put together the adjustment packet for submission to USCIS. You should prepare a cover letter, explaining why your client meets the criteria for adjustment of status, and include a table of contents. If you are requesting a fee waiver, you may want to indicate as such towards the top of the cover letter. A Sample Cover Letter and Adjustment of Status Packet is available at Appendix Z. You can access USCIS’s most up-to-date packet assembly instructions by going to www.uscis.gov/forms/forms-and-fees/general-tips-assembling-applications-mailing. USCIS does not have hard and fast rules governing the order in which you must assemble the documents or how they must be bound. We suggest that you compile the forms first, beginning with Form G-28, and then the supporting evidence, organized by the eligibility requirement the evidence supports. You can clip all of the documents and materials, including the cover page, together with a binder clip. If you are paying the filing fee, attach the fee by paper clip in the upper left corner of the I-485. USCIS recommends using clips (or ACCO fasteners if the filing is bulky) and discourages the use of heavy-duty staples, binders or folders that cannot be easily disassembled. USCIS also recommends two-hole punching the documents at their tops and using bottom, not side, tabs to separate them. Avoid submitting oversized documentation when possible; shrink 8-1/2 by 14 inches or larger documents down to 8-1/2 by 11 inches. Submit the originals of all of the immigration forms, photographs, medical exam, applicant’s declaration with the original signature, as well as your cover letter and case summary. Submit photocopies of all other original documents because USCIS does not require these documents in the original, and indeed discourages their submission. Generally, USCIS will not return an 47

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8 CFR § 245.23(e)(3).

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original to you if you submit it. This means you should submit a photocopy of any birth certificate, or foreign passport or identity document. However, you should include original signatures for forms, declarations, and support letters. Note that a copy certified by a government office in the child’s home country is considered an original (i.e., a photocopy with an original government stamp on it is acceptable as an “original”). You do not need to certify that the photocopy you are submitting is an accurate copy. USCIS views the signing of the application form as certification that the copy is accurate.

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Once you have assembled the adjustment filing, make a complete copy set for yourself. You should also make a copy for the applicant and review it with them. Then place the adjustment packet within an envelope and mark the outside “Fee Waiver Requested” if applicable. USCIS also recommends marking the envelope with the type of case you are filing. Make sure to include the proper USCIS filing address on the envelope. Be certain that you prepare it for mailing in a way that can be tracked—either overnight mail, certified mail with a return receipt, or some other type of tracking and delivery confirmation—so that you can keep tabs on the adjustment filing. Current USCIS procedure is that regardless of where the T nonimmigrant resides in the United States, you mail the adjustment packet to the Vermont Service Center at: USCIS: Vermont Service Center 75 Lower Welden St. St. Albans, VT 05479 USCIS changes filing procedures and addresses from time to time. Before filing the adjustment packet, consult the USCIS website at www.uscis.gov to make sure this information is still correct. You may want to indicate the filing receipt number in a cover letter attached to submission of additional documentation that you submit for the file. PRACTICE POINTER: Tracking the progress of the application. To find out approximate estimates for processing times, you can go to the USCIS website at https://egov.uscis.gov/processing-times, select Form as “I-485—Application to Register Permanent Residence or Adjust Status,” and then for Field Office or Service Center, select “Vermont Service Center.” While this estimate may be extremely rough, you may use it to set some minimum expectations for your client and determine whether or not a Form I-765 to renew their work authorization should be submitted. To check your client’s case status, you may go to the USCIS website enter the filing receipt number at https://egov.uscis.gov/casestatus/landing.do. You may also want to sign up for email alerts on that page for changes in the application’s case progress. If possible, you may also want to show your client how to look up the case status of the filed case on the USCIS website to check case progress. These are all helpful tools and measures to not only help you roughly track progress of the case but help manage the applicant’s expectations and ability to track their case progress on their own. § 7.14 Biometrics Applicants for adjustment of a status as T nonimmigrants will need to have their biometrics taken. Biometrics is a standard procedure employed by immigration authorities to check the criminal

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and immigration record of an individual and ensure that there are no red flags that may affect the application or case.

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Shortly after USCIS issues the filing receipts for the I-485 packet—usually within a month— USCIS will mail the applicant’s biometrics appointment notice. At the biometrics appointment, USCIS takes data including fingerprints, a photo and a signature. The FBI then will inform USCIS of any criminal record or record of prior deportation or removal. Only children 14 and older must pay the biometrics fee and have complete biometrics taken. USCIS has, however, been scheduling many children under age 14 for appointments even if full biometrics are not required. Until further notice, we suggest that children attend all scheduled appointments regardless of their ages. Failure to attend an appointment may result in denial of the child’s applications. USCIS should schedule the biometrics appointment at the Application Support Center (ASC) closest to the applicant’s home. (For a listing of ASCs, go to www.uscis.gov, click on “Tools,” then click on “Office Locator,” and finally click on “Application Support Centers.”) Before the appointment, consider going to the local ASC and obtaining a copy of the data form used there. You can then create a “biometrics packet” for the applicant to use at their biometrics appointment. This is optional, but it prevents your client from inadvertently filling out the biometrics packet incorrectly and creating identity issues. This packet can include a cover letter with instructions on the appointment, the original appointment notice, and the data form completed consistently with the applicant’s adjustment packet. Be sure the applicant brings their government-issued photo identification, such as a passport or consular ID card, to be allowed into their appointment. If the applicant lacks this type of identification, reach out to local practitioners with T nonimmigrant experience. Find out what alternative forms of identification, like a birth certificate or school ID, are accepted at the local ASC. If you have concerns, you can go to the appointment with the applicant. Each ASC has its own USCIS officer on site; ask to speak with that person or their supervisor if the applicant is denied access to their appointment. Once the applicant completes their biometrics appointment, USCIS will stamp their appointment notice. Keep this stamped copy in the applicant’s file. PRACTICE POINTER: Missed biometrics appointments. If the applicant misses their biometrics appointment, they should go to the ASC as soon as possible and request that their biometrics be taken. Many ASCs will take an applicant’s biometrics after the appointment date. You could also contact the Vermont Service Center and request a new biometrics appointment. If the client moves and cannot attend the appointment, you can request that the appointment be rescheduled to the office closest to your client’s residence. You can contact VSC at [email protected]. Be sure to include your client’s name, A number, and receipt number in the e-mail, and you may also want to attach Form G-28 and the appointment notice. § 7.15 Approvals and Denials After your client attends their biometrics appointment, the next step will be to receive a request for evidence (RFE), approval, or denial from the Vermont Service Center. Although USCIS typically issues an RFE or Notice to Intent to Deny (NOID) for an application before issuing a 130

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denial, please note that under the a recent USCIS memo, it is easier for an adjudicator to issue a denial without first issuing an RFE or NOID. 48 If you receive an RFE or NOID, you should consult with an experienced practitioner to discuss how to best respond.

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Approvals. T adjustment approvals will come in the form of an approval notice and the lawful permanent resident card should arrive by mail shortly afterwards. See Appendix AA for a Sample Adjustment Approval Notice. Lawful permanent resident status will be recorded as of the date of the adjustment approval. Once the applicant’s case is approved and their green card arrives at your office, examine it to make sure that all of the information is correct. If it is not, you will need to file a Form I-90 to obtain a corrected card. Please note, however, that incorrect information on the green card does not change your client’s status as a lawful permanent resident. When you have an accurate green card, set up a time for your client to come in and pick it up personally. Before that meeting, review your client’s file, extract all original documents, and prepare a closing letter for the client. A Sample Client Closing Letter is found at Appendix BB. It is critical that you advise your client of their rights and responsibilities as a permanent resident and that you warn them of the ways they might place their permanent residency in jeopardy. This should include warnings on what may constitute abandoning a green card, such as extensive travel abroad. You may also want to give them some basic advice or resources related to their ability to naturalize. When you meet with your client, give them all originals, the green card, a USCIS “Welcome to the United States” guide (found at www.uscis.gov), an ILRC “Living in the United States: A Guide for Immigrant Youth” pamphlet (found at www.ilrc.org), and the closing letter. Congratulate yourself on a job well done. Denials. T adjustment denials will come in the form of a written decision and will include the reasons for the denial. 49 Note that denial of the principal T-1 nonimmigrant’s application will lead in the automatic denial of the applications of any derivative T nonimmigrant holders. 50 Please note that as November 19, 2018, USCIS may also issue a Notice to Appear based on a denial of Form I-485 for a T nonimmigrant. 51 If USCIS denies your client’s application, review USCIS’s written decision carefully. You should consider promptly filing a Form I-290B Motion to Reopen or Motion to Reconsider the denials as well as an appeal of the denial to the Administrative Appeals Office (AAO). Follow the appeal instructions on your denials carefully. Generally, a Motion to Reopen, Motion to Reconsider, and/or an appeal must be filed on Form I-290B within thirty calendar days of service of the adverse decision (thirty-three calendar days if the decision is mailed). Form I-290B is available on the USCIS website at www.uscis.gov and, as of November 2018, its fee is $675.00. You 48

On July 13, 2018, USCIS issued a new Policy Memorandum that makes it easier for adjudicators to deny adjustment of status applications without first providing the applicant the opportunity to respond to the adjudicator’s concerns. See USCIS, Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b) (7/13/2018), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AFM_10_Standards_for_RFEs_and_N OIDs_FINAL2.pdf [hereinafter, RFE Memo]. 49 8 CFR § 245.23(i). 50 Id. 51 USCIS PM-602-0050.1 (June 28, 2018) and USCIS website announcement at https://www.uscis.gov/legal-resources/notice-appear-policy-memorandum.

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should look at your denials, the Form I-290B instructions, and 8 CFR § 103.3 for more details, including information on additional evidence, briefs, and oral argument before the AAO. Be sure to consult with a practitioner who has pursued AAO appeals in similar cases for guidance. You may also consider filing a federal court action under the Administrative Procedures Act (APA). Federal court litigation is beyond the scope of this manual; you should consult with experienced T visa practitioners and federal litigators before filing an APA action.

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If you choose to pursue an appeal to the AAO or federal court litigation, please keep in mind that a precedent decision in your case might affect other T nonimmigrants besides your client. Reach out to practitioners with T visa expertise for guidance and support to make certain your appeal helps, rather than hurts, the chances for others to obtain this immigration relief.

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CHAPTER 8 ASSISTING FAMILY MEMBERS This chapter includes: § 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 § 8.7 § 8.8 § 8.9 § 8.10

§ 8.1

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§ 8.11 § 8.12

Overview of Qualifying Family Members ......................................................... 133 Family Members Defined under Immigration Law............................................ 134 “Qualifying Family Member” Relationships for T Derivative Status ................ 136 Documenting the Family Relationship ............................................................... 138 T Nonimmigrant Application Timing and Procedure for Derivative Family Members ................................................................................................ 141 Admissibility ...................................................................................................... 142 Employment Authorization ................................................................................ 143 T Derivative Approvals in the United States...................................................... 144 T Derivative Approvals Outside the United States (Consular Processing)......................................................................................... 144 Adjustment Procedure for T Nonimmigrant Derivative Family Members ................................................................................................ 147 Qualifying Family Members with Removal Issues ............................................ 149 Revocation of Derivative Status ......................................................................... 149

Overview of Qualifying Family Members

T nonimmigrant status applicants and T nonimmigrant status holders may include a broad category of family members in the T status. The T nonimmigrant status applicant is known as the “principal applicant,” and family members for whom the principal applicant may apply are known as “derivative beneficiaries.” An adult victim of human trafficking who has applied for or been granted T-1 nonimmigrant status may apply for admission of their spouse and children. A victim who is under 21 at the time of the application may apply for admission of a larger group of relatives: their spouse, children, parents, and unmarried siblings who are under 18 when the victim applies for their T nonmmigrant status. 1 In addition, both principal applicants over 21 and principal applicants under 21 may apply for a category of relatives that is unique in immigration law—“any parent or unmarried sibling under 18 years of age or any adult or minor children of a derivative beneficiary of the [principal applicant], who … faces a present danger of retaliation as a result of the alien’s [sic] escape from the severe form of trafficking or cooperation with law enforcement.” 2 This chapter will explain the qualifying derivative categories and how to establish eligibility for them, the process for applying for T nonimmigrant status for derivative beneficiaries, and the process of applying for permanent resident status for those beneficiaries.

1 2

INA § 101(a)(15)(T)(ii)(I). INA § 101(a)(15)(T)(ii)(III).

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PRACTICE POINTER: Deciphering the T nonimmigrant codes. T-1 is the principal applicant. T-2 through T-6 are derivative beneficiaries. • • • • •

T-2 is the principal applicant’s spouse. T-3 is the principal applicant’s minor, unmarried child. T-4 is the parent of a principal applicant who is under 21 at the time of the principal application. T-5 is the unmarried sibling under 18 at the time of the principal application. T-6 is the adult or minor child of a derivative beneficiary who faces danger of retaliation as a result of the principal applicant’s escape from trafficking or cooperation with law enforcement. § 8.2

Family Members Defined under Immigration Law

In order to qualify as the spouse, child, sibling, or parent for an immigration benefit, the family member must meet the definition of the particular relationship under immigration law. This section will address those definitions, and § 8.9 will address how to document them.

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Spouses. Individuals are considered “spouses” under immigration law if the marriage creating the spousal relationship was legally valid in the place where it was performed and celebrated. 3 The marriage must also have been entered into in “good faith” and not simply to obtain an immigrant benefit. 4 Same-sex marriages are recognized under the immigration laws. 5 Spousal relationships are most easily proven with a marriage certificate, but they should also include other documentation to meet the good faith requirement, such as photos of the couple, birth certificates of children, and evidence of shared expenses and residence. In addition, include documentation of the termination of any prior marriages. Children. A “child” under immigration law is a person who is unmarried and under the age of 21 years. 6 This definition also includes stepchildren, adopted children, and children born outside of wedlock when certain other criteria are met. In order to qualify as a step-child for immigration purposes, the parent and step-parent must have married before the stepchild’s eighteenth birthday. 7 In order to qualify as an adopted child, the adoption must have occurred before the child turns sixteen. 8 The natural sibling of an adopted child also meets the definition of “child,” if the sibling is adopted by the same adopting parents before reaching age eighteen. 9 A child born out of wedlock is a child for immigration purposes if seeking or providing a status or benefit 3

Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982). Lutwak v. United States, 344 U.S. 604 (1955). 5 Matter of Zeleniak, 26 I & N Dec. 158 (BIA 2013); see also “Same Sex Marriages,” https://www.uscis.gov/family/same-sex-marriages (last visited Oct. 20, 2018). 6 INA § 101(b)(1)(A). 7 INA § 101(b)(1)(B). 8 INA § 101(b)(1)(E)(i), (F)(i), and (G)(i). 9 INA § 101(b)(1)(E)(ii), (F)(ii), and (G)(iii). 4

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through the mother or, when seeking or providing a status through the father, if the father has or had a bona fide parent-child relationship with the person. 10 Parents. The terms “parent,” “father,” and “mother” are defined in relation to the definition of “child.” 11 In the context of T nonimmigrants, biological parents, adoptive parents, and stepparents qualify as “parents” if the principal applicant is under age twenty-one at the time they file the principal T application. Siblings. Siblings are persons who were once “children” with at least one parent in common. 12 Step-siblings and adopted siblings can also qualify as long as both step-siblings were under the age of eighteen when their parents were married or the adopted sibling was under age sixteen when adopted.

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“Unmarried.” Both derivative children and derivative siblings must be unmarried to qualify for T derivative status. The term “unmarried” means that the individual is not currently married, whether or not they were previously married. 13 To ensure continued eligibility, they should remain unmarried until their I-914 Supplement A (and ideally adjustment of status) has been approved. The derivative child or sibling is certainly not eligible for derivative nonimmigrant status if they marry before approval of the Form I-914 Supplement A, and it is not yet clear whether marriage after approval of derivative status might make the derivative ineligible for adjustment. Thus, the best practice is to remain unmarried until after the adjustment of status is approved. PRACTICE POINTER: Dual representation and possible conflict of interest between principal and derivative applicants. Unfortunately, there is the potential for conflicts of interest between principal T applicants and their derivative beneficiaries. For example, there may be a falling out between them, or the principal may do something to become ineligible for T nonimmigrant status, both of which would jeopardize the derivative’s eligibility for status. In addition, the T nonimmigrant process may uncover information about immigration, marriage, or criminal history that one of the applicants did not want the other to know. Being in the middle of the conflict raises legal ethical problems for attorneys as well as possible logistical problems. Most practitioners contend that the advocate is representing both the principal and the derivative jointly, and therefore owes both applicants a duty of loyalty. Practitioners representing more than one member of a family should inform all parties that conflicts of interest are possible and what conflicts would mean to each person. In particular, you should advise both clients that, should a conflict of interest arise, you may need to withdraw from both of their cases (depending on your state bar’s rules on conflict of interest). It is best practice to ask each client to acknowledge in writing receipt and understanding of the dual representation conflict of interest warning and risks. The writing should also include an

10

INA § 101(b)(1)(D). INA § 101(b)(2). 12 Matter of Garner, 15 I & N Dec. 215 (BIA 1975). 13 INA § 101(a)(39). 11

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affirmative statement that the client wishes to be jointly represented, notwithstanding the risk of conflict of interest. Note that while DOJ-accredited representatives may not be strictly required to follow state bar ethical rules if they are not supervised by an attorney, the standards are there for a reason and serve as ethical guidance for non-lawyers as well. § 8.3

“Qualifying Family Member” Relationships for T Derivative Status

The qualifying family relationship between the principal applicant and the derivative must exist throughout the application and adjudication process. More specifically, it must exist when the principal files their I-914 T application, when that principal application is adjudicated, when the principal applicant applies for the qualifying family member, when the I-914 Supplement A is adjudicated and, if applicable, when the qualifying family member is admitted to the United States. 14 There is an exception for children born to the principal T-1 applicant after filing the T-1 application. Those children are deemed to be qualifying family members. 15

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For qualifying relatives who must be unmarried, that is, children and siblings, the relative must remain unmarried when the principal files an application for T-1 status, when USCIS adjudicates the T-1 application, when the eligible family member files for derivative status, when USCIS adjudicates the derivative application, and when the family member is admitted to the United States. 16 Thus, it is a good practice to remind T derivative children and siblings that they should not marry until the derivative application is decided and, if the derivative will receive a visa through consular processing, until the derivative enters the United States on that visa. Protection against “aging out.” Some qualifying relationships depend on the qualifying relative being under a certain age. With the time required for adjudicating applications, the qualifying family member may well no longer be under the specified age when the application is adjudicated or when the derivative enters the United States on a T nonimmigrant visa. There are special provisions to protect against aging out of T derivative beneficiaries. Under these provisions, the age in question is fixed as of the time the principal T-1 nonimmigrant visa petition is filed. Thus, if a T-1 principal applicant was under 21 years of age when they filed Form I-914, they remain a child for immigration purposes even after reached age 21 and thus their parents and unmarried siblings remain qualifying derivative relatives. 17 Similarly, the principal applicant’s unmarried siblings remain qualifying relatives, even after turning 19. 18 In regard to derivative children, they remain qualifying relatives even after turning 21, as long as they were under 21 at the time the principal T-1 nonimmigrant visa petition was filed. 19 The T-6 derivative. This category significantly expands the list of family members for whom a T-1 may seek derivative status. The complete language of the category is the following:

14

8 CFR § 214.11(k)(4). 8 CFR § 214.11(k)(5). 16 8 CFR § 214.11(k)(5)(iv). 17 8 CFR § 214.11(k)(5)(ii). 18 Id. 19 8 CFR § 214.11(k)(5)(iii). 15

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If accompany, or following to join, the alien [sic] described in clause i [the T-1 principal beneficiary],… any parent or unmarried sibling under 18 years of age, or any adult or minor children of a derivative beneficiary of the alien [sic], as of an alien [sic] described in subclause (I) or (II) who the Secretary of Homeland Security, in consultation with the law enforcement officer investigating a severe form of trafficking, determines faces a present danger of retaliation as a result of the alien’s [sic] escape from the severe form of trafficking or cooperation with law enforcement. 20 Simply put, this complex provision allows any T-1, regardless of age, to apply for derivative status for their own parents (T-4s) and unmarried siblings under 18 (T-5s) and, in addition, for adult and minor children of the T-1’s derivatives (T-6s), if the derivative faces a “present danger of retaliation” as a result of the T-1’s escape from trafficking or cooperation with law enforcement. 21 The USCIS has provided guidance on this category, summarized below, by regulation and policy memo. USCIS has determined that the phrase “adult or minor child” for purposes of T-6 status includes persons of any age and any marital status. 22

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In regard to the relationship between the T-6 derivative and their parent, USCIS emphasized that the adult or minor child must establish the qualifying relationship to the principal’s derivative, that is, the adult or minor child’s parent who derived T nonimmigrant derivative status through the principal beneficiary. 23 For this reason, the T-6 application cannot be approved until the parent’s application is approved. 24 Nonetheless, the principal beneficiary may apply for T derivative status for the T-6 category concurrently with applications for the “direct” derivatives (T-2, T-3, T-4, and T-5). 25 The T-6’s parent must have held derivative status at some point in order for their adult or minor child to qualify for T-6 status. 26 USCIS provides the following example: If a T-1 was not married to the mother or father of a child who is over the age of 21, that mother or father is not eligible for T-2 status. Therefore, there is no derivative T-2 through which the adult or minor child can derive status, and they would not be eligible for T-6 status. Additionally, if the T-1 principal’s parent is deceased and never held T-4 status, then the parent’s child (who is not eligible in some other way as the T-1’s sibling) would not be eligible for T-6 status. 27

20

INA § 101(a)(15)(T)(ii)(III). 8 CFR § 214.11(k)(1)(iii). 22 USCIS Policy Memorandum PM-602-0107, “New T Nonimmigrant Derivative Category and T and U Nonimmigrant Adjustment of Status for Applicants from the Commonwealth of the Northern Mariana Islands,” effective Oct. 30, 2014, at 3. This memorandum is available at Appendix DD. 23 Id. at 5. 24 Id. at 8. 25 Id. at 6. 26 Id. at 7. 27 Id. 21

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Nonetheless, as long as the T-6’s parent held derivative status at some point, that parent does not have to hold derivative status at the time of the T-6 application. 28 USCIS provides the following example: If the principal’s spouse held T-2 status but then died before the principal files for T-6 status of the spouse’s adult child, the adult child may still be eligible for T-6 status. Additionally, if a parent who had obtained T-4 status allowed their status to lapse without extending it, the principal could still file for T-6 status for the T-parent’s adult or minor child if they face a present danger of retaliation. 29 USCIS also clarified that there is no statutory authority to extend derivative status to children or other family members of the adult or minor child who is granted T-6 status. 30 In terms of establishing the T-6 applicant’s present danger of retaliation resulting from the principal’s escape from trafficking or cooperation with law enforcement, USCIS will evaluate this on a case-by-case basis. 31 The regulations provide that an applicant may satisfy the present danger of retaliation by submitting the following:

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• • • •

Documentation of a previous grant of advance parole to an eligible family member; A signed statement from a law enforcement official describing the danger of retaliation; An affirmative statement form the applicant describing the danger the family member faces and how the danger is linked to the victim’s escape or cooperation with law enforcement; Any other credible evidence, including trial transcript, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits from other witnesses.32

An applicant’s statement alone is not ordinarily sufficient to establish the present danger requirement. 33 USCIS also notes that it may contact the LEA involved in the criminal case, if appropriate, although it would use its discretion in determining whether to contact an LEA in cases where the principal applicant was not required to cooperate with an LEA. 34 § 8.4

Documenting the Family Relationship

The principal applicant must file a separate Form I-914 Supplement A for each family member the principal wishes to include as a derivative T nonimmigrant. The following chart shows the documentation required by USCIS to establish the family relationship between the principal and the specific derivative family members.

28

Id. Id. 30 Id. 31 Id. at 9. 32 8 CFR § 214.11(k)(6). See also, USCIS Policy Memo PM 602-0107, at 9. 33 8 U.S.C. § 214.11(k)(6); USCIS Policy Memo PM 602-0107, at 9. 34 USCIS Policy Memo PM-602-0107, at 9. 29

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Spouse

Copy of marriage certificate issued by civil authority. If either spouse was married before, must submit documents to show termination of that marriage, for example, a death or divorce certificate.

Child for whom mother is applying

Copy of the child’s birth certificate, showing the child’s name and the mother’s name, issued by a civil authority.

Child for whom father is applying

Copy of child’s birth certificate, issued by a civil authority, showing both parents’ names and their marriage certificate. If the child was born out of wedlock, give proof that (1) the child was legitimated under the law of the child’s or father’s residence or domicile before the child turned 18 and proof that the child was at that time in the custody of the legitimating parent OR (2) a parentchild relationship exists or existed, for example, evidence that the father has supported the child financially. A blood test may be required to prove parentage.

Mother

Submit a copy of the principal applicant’s birth certificate issued by a civil authority showing the principal and the derivative beneficiaries’ names.

Father

Submit a copy of the principal applicant’s birth certificate showing the names of both parents, a copy of the parents’ marriage certificate showing marriage before the principal applicant’s birth, and copies of documents showing that any prior marriages of the parents were legally terminated. If the principal beneficiary was born out of wedlock, submit evidence that the child was legitimated under the law of the child’s or fathers domicile before the child reached age 18 and the child was then in the legal custody of the legitimating parent OR evidence that a bona-fide parent-child relationship exists or existed.

Sibling

Submit a copy of each sibling’s birth certificate, showing that they have at least one common parent. If there is a common father but different mothers, submit copies of the father’s marriage certificates to each mother and copies of documents showing that any prior marriages of either the father or his spouses were legally terminated. If the siblings are related by adoption, submit documents showing that the adoption occurred before age 16 (or, for a natural sibling of the adopted child who was also adopted, before age 18.) If the siblings are related through a stepparent, submit evidence showing that the parent and stepparent’s marriage occurred before the child’s 18th birthday and that any prior marriages were legally terminated.

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Stepparent/stepchild

Submit a copy of the marriage certificate of the stepparent to the child’s mother showing that the marriage occurred before the child’s 18th birthday and that any prior marriages were legally terminated.

Adoptive parent/adopted child

Submit a copy of the adoption decree showing that the adoption took place before the child turned 16 or before age 18, if the adopted child was the natural sibling of a child adopted before age 16. Also submit evidence that the child was in the legal custody (granted by the appropriate court) of and resided with the adoptive parent for some time within two years before or after the adoption.

Unmarried siblings under 18 years of age

Submit a certified copy of each sibling’s birth certificate showing that they have at least one common parent. See the preceding sections of this chart for additional requirements to show sibling relationship where the relationship is one of stepsiblings or adopted siblings.

Documents not in English must be accompanied by a translation into English. In addition, if names have changed between documents, there must be documentation of the change.

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If the original documents listed above are not obtainable, the Form I-914 instructions provide the following alternatives: • • • •

Church record: A certificate under the seal where the baptism, dedication, or comparable rite occurred within two months after the birth, showing the date and place of the child’s birth, date of the religious ceremony, and the names of the child’s parents. School record: A letter from the authority of the school attended (preferably the first school) showing dates of admission to the school, child’s date and place of birth, and the names and birthplaces of both parents if shown in the school records. Census records: Federal or State census records showing the names place of birth and date of birth or age of the person listed. Affidavits: Written statements sworn to or affirmed by two persons who were living at the time and who have personal knowledge of the event you are trying to prove. (Example: the date and place of birth, marriage, divorce, or death.) The persons making the affidavits need not be citizens of the United States. Each affidavit should contain the following information: o The relationship, if any, between the applicant and the affiant; o Full information concerning the event; and o Complete details concerning how the person acquired knowledge of the event.

The alternative documentation should also include an explanation of why the primary documents were not available. The Form I-914 Instructions note that USCIS may require a statement from the appropriate civil authority certifying that the necessary document is unavailable. Additional documentation is required for derivatives who are parents, unmarried siblings under 18 years of age, and/or the adult minor child of another derivative who have a present danger of retaliation based on your escape from the severe form of trafficking in persons or cooperation

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with law enforcement. For those derivatives, the principal beneficiary should include the following: • • •

A description of the danger the family member faces and how the danger is linked to your escape or cooperation with law enforcement; Documentation of a previous grant of advance parole to a family member, if available; and Any other credible evidence describing the danger of retaliation, including a signed statement from a law enforcement official, trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits from other individuals. § 8.5

T Nonimmigrant Application Timing and Procedure for Derivative Family Members

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The application for derivative status is filed by the principal T nonimmigrant applicant, rather than the derivative. The application is made on Form I-914 Supplement A. 35 The principal beneficiary must sign the form, and the derivative must also sign if the derivative is in the United States and is aged fourteen years or older. The application may be filed with the principal applicant’s Form I-914 or separately, 36 but the granting of derivative status is dependent on the principal applicant being granted status and maintaining status. 37 If approved, the derivative beneficiary is granted T-2, T-3, T-4, T5, or T-6 nonimmigrant status for an initial period that does not exceed the expiration date of the T-1’s initial approved period. 38 A separate Form I-914 Supplement A must be filed for each qualifying relative, with supporting documentation for each. The application should contain the following documents: • • • • • •

Cover letter; Index of contents; Form I-914 Supplement A; If the principal applicant’s Form I-914 is not filed contemporaneously with the derivative’s I-914 Supplement A, a copy of the principal applicant’s Form I-914, clearly marked as “Duplicate submitted with T derivative application”; If the principal applicant’s Form I-914 is not filed contemporaneously with the derivative’s I-914 Supplement A, a copy of the I-797 notice of receipt or approval notice of principal applicant’s I-914; Documentation of relationship for each qualifying relative (see previous section of this chapter);

35

8 CFR § 214.11(k)(1) and (2). 8 CFR § 214.11(k)(2). 37 Id. 38 8 CFR § 214.11(c)(2). 36

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• • • •

A short declaration from the T-1 principal applicant, explaining the hardship that the principal applicant would suffer if their derivative is not granted T status and allowed to stay in the United States; A complete copy of the derivative beneficiary’s passport, valid for at least six months (if not obtainable, the derivative may request a waiver of this requirement on Form I-192); Form I-192, if the derivative falls under an inadmissibility ground, with supporting documents and fee or request for fee waiver; Form I-765, request for employment authorization, if the derivative is in the United States and aged fourteen or older.

Please see Appendix CC for a Sample T Nonimmigrant and T Derivative Checklist. Biometrics. All T nonimmigrant derivative applicants who are between 14 and 79 years of age must submit biometrics as part of the T nonimmigrant application process. Those who are in the United States will receive a notice to go to an appointment at an Application Support Center (ASC).

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Form I-914 Supplement A may be submitted concurrently with the principal applicant’s I-914 or at a later date. The Form I-914 instructions say that, if the I-914 Supplement A is submitted after the principal application, the applicant should check the boxes in Part A of the form (the family relationship) and attach a copy of the principal applicant’s Form I-914 (but copies of the supporting documentation for the Form I-914 are not required). 39 Be sure to mark the copy of the I-914 as a duplicate, submitted in support of a derivative application, to ensure that it is not erroneously treated as a new filing. There is no filing fee for Form I-914 Supplement A. All Form I-914 forms are filed with the Vermont Service Center, whether the derivative family member is in the United States or abroad. The address is: USCIS Vermont Service Center 5 Lower Welden Street St. Albans, VT 05479-0001 The VSC will send a receipt notice for the application. Following its review of the application, the VSC may send a Request for Evidence (RFE) if it requires additional evidence or has concerns about the application. See Chapter 4 of this manual for information about the T nonimmigrant status process, RFEs and responding to them. That chapter also includes information about administrative appeals of denials of T nonimmigrant status. § 8.6

Admissibility

To be eligible for T nonimmigrant status, both the principal and the derivative beneficiaries must be admissible to the United States. This means that they cannot fall under the inadmissibility

39

Form I-914 Instructions, at 4, https://www.uscis.gov/sites/default/files/files/form/i-914instr.pdf (last visited Oct. 21, 2018).

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grounds under section 212 of the Immigration and Nationality Act or, if they do, that there is a waiver available under INA § 212(d)(13) or INA § 212(d)(3) for that inadmissibility ground. T nonimmigrants are specifically excepted for one inadmissibility ground at the nonimmigrant stage—that of being likely to become a public charge, under INA § 212(a)(4). 40 In addition, T nonimmigrants are eligible for special waivers of other inadmissibility grounds. USCIS may also waive all of the health-related inadmissibility grounds if the waiver is in the national interest. 41 In addition, if the applicant’s inadmissibility is caused by or incidental to the victimization, and if it is in the national interest to do so, USCIS may waive any other inadmissibility grounds, except for the security and related grounds, international child abduction, and renunciation of citizenship by a former citizen to avoid taxation. 42 There is also a general nonimmigrant waiver, found at INA § 212(d)(3) under which it may be possible to waive any inadmissibility ground other than the security and related ones under INA § 212(a)(3). The inadmissibility provisions and waivers apply to “nonimmigrant[s] described in section 101(a)(15)(T)” and are thus applicable to T derivative beneficiaries as well as to T-1 principal applicants. 43

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The inadmissibility grounds are addressed in Part E of Form I-914 Supplement A, euphemistically entitled “Processing Information.” If the answer is “yes” to one or more of the questions in Part E, then the derivative may be inadmissible and ineligible for T nonimmigrant status unless USCIS waives the ground of inadmissibility. Note, however, that the questions in Part E do not cover all of the inadmissibility grounds and other may need to be addressed and/or waived even if not included on the form’s questions. Applicants seeking a waiver of inadmissibility must submit Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. A separate fee or request for fee waiver must be filed with Form I-192. Form I-192 should be filed concurrently with Form I-914. Note that all waivers are decided in the exercise of USCIS’s discretion, so that documentation supporting the waiver application should include evidence of strong discretionary factors, as well as of connection to the victimization. These factors vary depending on the individual, but common ones include good moral character, family ties, community involvement, employment, service to others, and, for criminal offenses, rehabilitation and remorse. See Chapter 5 of this manual for more detailed on inadmissibility grounds, waivers, and preparing the waiver application. § 8.7

Employment Authorization

A T derivative beneficiary may apply for employment authorization. For derivatives in the United States, the application may be filed concurrently with the application for derivative nonimmigrant 40

INA § 212(d)(13)(A). INA § 212(d)(13)(B)(i). 42 INA § 212(d)(13)(B)(ii). The security and related inadmissibility grounds are found at INA § 212(a)(3), the international child abduction ground is found at INA § 212(a)(10)(C), and the ground of renunciation of citizenship by a former citizen to avoid taxation is found at INA § 212(a)(10)(E). 43 INA § 212(d)(13)(B). 41

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status or later. Check the box on Form I-914 Supplement A that asks whether the derivative is applying for employment authorization. For derivatives outside the United States, an application for employment authorization may be filed only after admission to the United States in T nonimmigrant status. See Appendix GG for a Sample Cover Letter for a Derivative Who Entered on a T Visa. The derivative’s employment authorization category is 8 CFR § 274a.12(c)(25). Employment authorization is granted for the “period remaining in derivative T nonimmigrant status.” § 8.8

T Derivative Approvals in the United States

T derivative beneficiaries are not subject to the annual 5,000 cap for T principal nonimmigrants.44 However, USCIS will not approve applications for derivative T nonimmigrant status until USCIS has approved the principal T-1 beneficiary’s nonimmigrant status. 45 When USCIS approves T derivative status for derivatives who are in the United States, it will send notice of the approval to the principal beneficiaries (T-1) and also provide evidence of the derivative T status to the derivative. 46 USCIS will send the approval notice on Form I-797 that will include a form I-94 indicating the type of T nonimmigrant status. § 8.9

T Derivative Approvals Outside the United States (Consular Processing)

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Please see Chapter 10 for more detailed information on T travel issues and approvals issued abroad. The following is a summary. Approved T derivatives who are outside the United States will need a T nonimmigrant visa to enter the United States, through a process known as consular processing. If there is some emergency requiring entry to the United States before the T derivative visa can be processed and approved, the applicant may apply for humanitarian parole, although this may be difficult to obtain under the current administration. For approved T derivatives who are outside the United States, USCIS will notify the principal applicant of the Form I-914 Supplement A approval by sending a Form I-797 Notice of Action and will forward the approved Form I-914 Supplement A to the Department of State’s Kentucky Consular Center for uploading into the Petitioned Information Management system (PIMS) database so that the U.S. embassy or consulate with jurisdiction over the derivative’s residence will be able to access the approval for confirmation of the derivative’s eligibility. PRACTICE POINTER: Timing of the derivative application. In order for a qualifying family member to obtain derivative status, the T-1 principal must still hold T nonimmigrant status. If the T-1 principal has already adjusted from T nonimmigrant to lawful permanent resident status, the qualifying family member will not be able to obtain derivative status.47 For this reason, if the 44

8 CFR § 214.11(k)(9). Id. 46 8 CFR § 214.11(k)(9)(i). 47 USCIS Policy Memorandum PM-602-0032.2, Extension of Status for T and U Nonimmigrants (Corrected and Reissued) (Oct. 4, 2016), at 1. This memorandum is available at Appendix EE. 45

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approved derivative of a principal T nonimmigrant is waiting for initial issuance of a T visa by a consulate and the principal’s nonimmigrant status is soon to expire, the principal is strongly encouraged to seek an extension of status based upon exceptional circumstances, using Form I539, and then wait for the derivative to enter the United States before applying for adjustment of status. This step will prevent the derivative from being ineligible for initial admission of the United States on a derivative T visa due to the expiration of the principal’s T nonimmigrant status. 48 The approved T derivative will need to go to the U.S. embassy or consulate that has jurisdiction over their place of residence to apply for the T nonimmigrant visa. Procedures for requesting T nonimmigrant visas vary among consulates, so the derivative or counsel should check with the specific embassy or consulate to confirm whether the post requires additional information or documents. For example, some posts require applicants to bring a photograph or two to the nonimmigrant visa interview. 49 The derivative will need to complete Form DS-160 and pay the fee for the visa issuance ($160 as of this writing). Form DS-160 is fillable and submittable on-line at https://ceac.state.gov/genniv/. Be sure to read it over carefully before hitting “submit,” as the form cannot be edited after submission. Print out a copy of the completed form and the confirmation page. Refer to the embassy website for instructions on how to pay the visa fee. The applicant should print out and retain the proof of payment.

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Request a consular interview by emailing the appropriate embassy, using the link listed in the footnotes below. The derivative should take a packet of documents to the consular interview: • • • • • •

A copy of the completed Form DS-160 and a print-out of the confirmation page, with proof of payment of fee or request for fee waiver (although it may be difficult to obtain a fee waiver); The I-797 approval notice of the derivative’s application; The I-192 approval notice, if a waiver of inadmissibility was requested and approved for the derivative; A cover letter explaining the derivative’s eligibility for the T derivative visa; A copy of the principal beneficiary’s approval notice; Proof of relationship to the principal beneficiary or, if the derivative is the adult or minor child of a derivative and faces present danger of retaliation, evidence of the derivative’s relationship to the derivative’s parent, evidence of the parent’s T derivative status, and evidence of the parent’s relationship to the principal beneficiary;

48

Id. at 8. Information for contacting the various consulates may be found at the Department of State’s website, at https://www.usembassy.gov/. Information about consular processing for T derivatives is also available at https://www.uscis.gov/archive/archive-news/consular-processing-overseas-derivative-t-and-unonimmigrant-status-family-members-questions-and-answers. 49

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• •

A valid passport; An original birth certificate.

Documents in a language other than English must be accompanied by a translation into English. It is possible that the consulate may also require DNA testing to establish the relationship to the principal beneficiary or derivative parent. PRACTICE POINTER: Passports and accompanying adults for minor derivatives. If the derivative family member is a minor child, they will likely need both parents’ permission to obtain a passport. For most countries, this will require your client to execute a power of attorney in the home country permitting the child to obtain a passport. This can sometimes be a problem if the parents are estranged or otherwise not in communication. In addition, it is a good idea to appoint an adult to accompany the child to the consular interview. 50 The parent should execute a power of attorney authorizing the person to accompany the child to the interview. Send the packet of documents mentioned above to the accompanying adult, with a letter explaining that the accompanying adult should take the packet to the visa interview. Include the date, time, and location of the interview in the cover letter.

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At the consular interview, the consular official does not need to review the underlying eligibility of the principal or the derivative for T nonimmigrant status. The consular officer will make an admissibility determination after conducting the interview, however, and will then check the online system to confirm that any inadmissibility grounds the officer identifies have been waived by the Vermont Service Center during the nonimmigrant process. Consulates generally require some period of time after the interview, often 48 hours, to process the visa. The consulate will mail the derivative beneficiary’s passport and visa to the derivative beneficiary or the designated pick-up location. Check the embassy website to see if the website provides any further information on this point. The derivative T visa will generally be a multiple entry visa, valid for four years or the petition expiration date, whichever is less. Once the derivative receives the visa, they should make plans to travel to the United States. If the derivative is a minor child, the child’s parent may need to execute a power of attorney authorizing the child to leave the country and authorizing any accompanying adult to care for the child. 51 Upon arrival in the United States, the derivative will go through Customs and Border Patrol inspection upon arrival.

50 If there is no relative or friend who can serve as an accompanying adult for the child, the International Organization for Migration (IOM) may be able to assist. Please see Appendix FF for an International Organization for Migration Family Reunification Brochure. The U.S. telephone number for the IOM is (202) 862-1826, and the website is at https://www.iom.int/countries/united-states-america. 51 The International Organization for Migration may also be able to assist with accompanying the child. See more information in Footnote 50.

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Once admitted to the United States as a T nonimmigrant, the derivative family member may apply for employment authorization. § 8.10 Adjustment Procedure for T Nonimmigrant Derivative Family Members After a certain period of time in T nonimmigrant status, the principal and derivative T beneficiaries may apply to adjust their status from nonimmigrant to lawful permanent resident. In general, the principal nonimmigrant must have been physically present in the United States for the lesser of a continuous period of at least three years since the date of admission as a T nonimmigrant, or a shorter continuous period of time during the investigation or prosecution of the acts of trafficking, if, in the opinion of the Attorney General, the investigation or prosecution is complete. 52

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The adjustment of status procedure for derivative family members in lawful T derivative status is the same procedure used for the principal beneficiary. 53 This procedure is covered in more detail in Chapters 6 and 7 of this manual. In brief, the same form (Form I-485) is used for both principal and derivative beneficiaries, with each applicant submitting a separate form, and the same exceptions and waivers of inadmissibility grounds are available to both principal and derivative beneficiaries.54 There is a filing fee for Form I-485, but USCIS may waive that fee for persons who are not financially able to pay. 55 See Appendix Z for a Sample T Adjustment of Status Packet that includes adjustment of status materials for both the principal and derivative T nonimmigrant. There is a limit of 5,000 on the number of T principal nonimmigrants who may adjust status, but that limit does not apply to the spouses, sons, daughters, siblings, or parents of the principal T nonimmigrants. 56 In terms of timing, the derivative T nonimmigrant is not eligible to adjust status to lawful permanent resident until the T-1 principal adjusts. 57 Thus, the derivative beneficiary may apply to adjust status contemporaneously with, or after, the principal beneficiary applies, but not before. 58 On the other hand, the T derivative does not lose derivative status when the principal adjusts status. 59 In addition, the derivative family member must have been lawfully admitted to the United States in derivative T nonimmigrant status and continue to hold such status at the time of application for adjustment. 60 In planning adjustment applications, remember the practice pointer on timing, in § 8.9 of this manual, warning that in order to obtain derivative T status, the T-1 principal must still hold 52

INA § 245(l)(1)(A). INA § 245(l)(1)(C)(ii). 54 INA § 245(l)(2). 55 INA § 245(l)(7). 56 INA § 245(l)(4). 57 8 CFR § 245.23(b)(1). 58 USCIS Policy Memorandum PM-602-0032.2, at 3. 59 Id. at 1. 60 8 CFR § 245.23(b)(2); see also UCIS Policy Memorandum PM-602-0032.2, at 8. 53

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T nonimmigrant status. Thus, once the T-1 has adjusted status, the derivative is no longer eligible to obtain T nonimmigrant status as an initial matter. Example: Connie is from Honduras and holds T-1 nonimmigrant status. She would like to apply for T-3 nonimmigrant derivative status for her 16-year old daughter, Emilia. Connie may do so as long as she remains a T-1 nonimmigrant (and as long as Emilia remains a minor and unmarried). Once Connie adjusts status from T-1 nonimmigrant to lawful permanent resident, however, she may no longer apply for T nonimmigrant status for Emilia. Instead, Connie would have to apply for Emilia under the regular familybased second preference immigrant category. Now assume Connie has successfully applied for T-3 nonimmigrant status for Emilia and that Emilia has entered the United States as a T nonimmigrant. Connie may now apply to adjust status without affecting Emilia’s T nonimmigrant status, even though Emilia does not apply to adjust status until some later time (but prior to the expiration of her nonimmigrant status).

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The T nonimmigrant may continue with an adjustment of status application even if the T-1 principal passes away. In such a case, the provisions of INA § 204(l) apply. 61 Under those provisions, the derivatives of a deceased T-1 principal, if they have been admitted to the United States in T nonimmigrant status, are residing in the United States at the time of the principal’s death, and continue to reside in the United States, may have an application for adjustment of status adjudicated, regardless of the principal’s death. The T adjustment applicant, whether the principal beneficiary or a derivative, must again establish admissibility under INA § 212. However, the same waivers of the inadmissibility grounds available for T nonimmigrants also apply for T adjustment applications. USCIS or the immigration judge may waive INA § 212(a)(1) [health-related grounds] and INA § 212(a)(4) [public charge] and, if it is in the national interest to do so, may also waive any other inadmissibility ground, other than INA § 212(a)(3) [security and related grounds], INA § 212(a)((10)(C) [international child abduction], and INA § 212(a)(10)(E) [former citizens who renounce citizenship to avoid taxation], if the inadmissibility was caused by or incident to the trafficking victimization. 62 Be aware, however, that the applicant may have fallen under new inadmissibility grounds since being granted nonimmigrant status. Applicants who have new inadmissibility grounds or inadmissibility grounds that were not waived during the nonimmigrant process must file an application for waiver of those grounds. Filing Form I-485 also serves as a request for extension of nonimmigrant T status. If the T nonimmigrant files Form I-485 while still in valid T nonimmigrant status, there is no need to file Form I-539 Application to Extend/Change Nonimmigrant Status. 63 Upon receiving a properly filed Form I-485, USCIS will issue two new Forms I-797, Notice of Action: a receipt notice for the application for adjustment of status and a notice of extension of the T nonimmigrant status. 64 The Form I-797 Notice of Action indicating an extension of status can be used to verify the 61

8 CFR § 214.11(k)(2). INA § 245(l)(2). 63 USCIS Policy Memorandum PM-602-0032.2, at 5. 64 Id. 62

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beneficiary’s employment authorization on Form I-9 [Employment Eligibility Verification] for one year from the expiration of the applicant’s previous period of T nonimmigrant status, unless the Form I-485 is denied or withdraw. 65 Nonetheless, applicants may prefer to apply for a renewed Employment Authorization Document (EAD), because that is a more familiar document. The applicant may apply for an EAD with the adjustment application, on Form I-765. An EAD issued based upon a filed adjustment application will show the (c)(9) verification code. 66 § 8.11 Qualifying Family Members with Removal Issues If the derivative family member is currently in removal, exclusion, or deportation proceedings, the principal T nonimmigrant must still file the application for derivative T status directly with the U.S. Citizenship and Immigration Services. The derivative relative who is in proceedings may ask Immigration and Customs Enforcement (ICE) to join in a motion to continue or to administratively terminate the proceedings without prejudice while USCIS adjudicates the derivative application, and ICE may agree in its discretion. 67 Current policies of the Executive Office for Immigration Review and the immigration courts may make such a process difficult, however. If the derivative family member already has a final order of removal deportation, or exclusion, the principal T nonimmigrant’s filing of the application for T derivative status does not preclude removal, unless the derivative family member applies for and is granted an administrative stay of removal. 68

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§ 8.12 Revocation of Derivative Status T derivative status may be revoked in certain circumstances. These include a T-2 derivative spouse’s divorce from the T-1 principal beneficiary. 69 Revocation of the principal beneficiary’s T-1 status also automatically terminates the derivative’s T nonimmigrant status for all derivatives. 70 In addition, the grant to T-1 or derivative nonimmigrant status does not preclude DHS from instituting removal proceedings for conduct committed after admission or for conduct or a condition that was not disclosed prior to the granting of the T nonimmigrant status. 71 There are special policies for determining whether revocation of derivative T nonimmigrant’s status affects that of a T-6 derivative nonimmigrant. Such a revocation may or may not affect the T-6’s status. Where the revocation ground relates to the T-6’s parent’s eligibility for derivative T nonimmigrant status, the adult or minor child of that parent would not be eligible for T-6 nonimmigrant status because that status requires that the parent have obtained valid derivative T nonimmigrant status. 72 On the other hand, if the revocation ground is not related to the parent’s

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Id. Id. 67 8 CFR § 214.11(k)(2)(i). 68 8 CFR § 214.11(k)(2)(ii). 69 8 CFR § 214.11(m)(2)(ii). 70 8 CFR § 214.11(m)(4). 71 8 CFR § 214.11(n). 72 USCIS Policy Memo PM-602-0107, at 7. 66

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eligibility, the adult or minor child may still be eligible for T-6 nonimmigrant status. 73 USCIS provides the following example:

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If the T-1 spouse held T-2 status, but then the couple divorced and the T-2 status was revoked under 8 CFR § 214.11(s)(iii), the adult or minor child of the T-2 may still be eligible for T-6 status. This is because the divorce ground does not relate to the eligibility when the derivative’s application was approved. 74

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Id. at 8. Id.

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CHAPTER 9 T VISAS AND REMOVAL ISSUES 1 This chapter includes: § 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8

Applicants Currently in Removal Proceedings .................................................. 151 Continuances ...................................................................................................... 152 Administrative Closure....................................................................................... 152 Termination ........................................................................................................ 153 Detained Applicants ........................................................................................... 155 Waivers of Inadmissibility ................................................................................. 156 Applicants with Prior Orders of Removal .......................................................... 157 T Visas for Lawful Permanent Residents ........................................................... 158

§ 9.1

Applicants Currently in Removal Proceedings

The U.S. Citizenship & Immigration Service (USCIS) has sole jurisdiction over T nonimmigrant status applications. Applicants in removal proceedings under INA § 240, or in exclusion or deportation proceedings under former INA § 236 or former INA § 242 must apply for T nonimmigrant status directly with USCIS. 2 Therefore, T applicants in removal proceedings will not submit their applications to the immigration court (Executive Office for Immigration Review, or EOIR). For those in removal proceedings, the interactions of the two immigration agencies, USCIS and EOIR, can be confusing for applicants and practitioners alike. This chapter will address how to manage interacting with both agencies as it relates to applying for T nonimmigrant status. T applicants will submit Form I-914, 3 any required supporting evidence, and if necessary Form I192, Application for Advance Permission to Enter as a Nonimmigrant (Waiver of Inadmissibility) to waive any relevant inadmissibility grounds. 4

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Once you have received the I-797C, Notice of Action (Receipt Notice) from USCIS for the application for T nonimmigrant status, you can either move the immigration judge to continue, administratively close, or terminate removal proceedings.

1

Applicants not currently in removal proceedings should be advised that USCIS has begun issuing Notices to Appear (NTA) to some denied applicants for immigration benefits (including T nonimmigrant status) and thereby initiating removal (or deportation) proceedings. We mention this not to deter eligible applicants from applying for T nonimmigrant status or other form of humanitarian immigration relief, but simply as a reminder that best practice requires you to inform your client of these possible risks and to seek informed consent that they wish to proceed with an application to USCIS. 2 8 CFR § 214.11(d)(1)(i). 3 8 CFR § 214.11(d)(1). 4 While there is no filing fee for the Form I-914, the Form I-192 does have a filing fee, currently $930. If the applicant cannot pay the filing fee, a I-912 Request for Fee Waiver is available.

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§ 9.2

Continuances

The regulation governing continuances authorizes an immigration judge to grant a motion for continuance only “for good cause shown.” 5 As such, an immigration judge may grant a continuance to allow USCIS time to process the T nonimigrant status application. 6 Compared to the application for U nonimmigrant status which currently has a years-long backlog, as of the date of this publication, T nonimmigrant status applications are generally adjudicated in approximately 14-22 months. 7 As long as good cause is shown, an immigration judge may grant a continuance as a docket management tool. 8 PRACTICE POINTER: Continuances and “good cause.” In his 2018 decision, Matter of L-A-BR-, et al Respondents, prior Attorney General Jeff Sessions clarified the use of continuances in immigration court and created additional restrictions on what an immigration judge should consider in order to determine whether “good cause” has been established. According to Matter of L-A-B-R-, et al Respondents, an immigration judge considering a motion for continuance to await the resolution of a collateral matter must focus principally on two factors: (1) the likelihood that the applicant will prevail in seeking relief (in this case) before USCIS, and (2) whether the relief will materially affect the outcome of the removal proceedings. The immigration judge should also consider whether the alien has exercised reasonable diligence in pursuing that relief, DHS’s position on the motion, the length of the requested continuance, and the procedural history of the case. 9 [See Appendix HH for a Sample Motion to Continue.] § 9.3

Administrative Closure

Administrative closure of removal proceedings is more beneficial to your client than a continuance while the application for T nonimmigrant status is pending. While a case is administratively closed, there are no upcoming immigration court hearings scheduled, so your client will not have to appear in court multiple times to request additional continuances. Unlike a continuance, an administratively closed case remains off the immigration court’s active docket until either the respondent (your client) or DHS moves to recalendar it to the immigrant judge’s active docket. [See Appendix II for a Sample Motion for Administrative Closure.]

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The use of administrative closure as another docket management tool has been severely curtailed since Matter of Castro-Tum, a 2018 decision by prior Attorney General Jeff Sessions. 10 Previously, individuals in removal proceedings were routinely able to obtain administrative closure when, for example, they were awaiting adjudication of an application for immigration relief pending with USCIS. Now, immigration judges and the BIA may only administratively

5

8 CFR §§ 1003.29, 1240.6. See Rice v. Ames, 180 U.S. 371, 376 (1901). Immigration Court Practice Manual, Chap. 5.10. 7 Current USCIS case processing timelines can be found at https://egov.uscis.gov/processing-times/. 8 8 C.F.R. § 1003.29. However, see additionally Matter of L-A-B-R- et al., Respondents, 27 I&N Dec. 405 (AG 2018) which requires that an immigration judge examine the likelihood of success of the collateral relief sought. 9 Matter of L-A-B-R- et al., Respondents, 27 I&N Dec. 405 (AG 2018). 10 Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018). 6

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close cases as a matter of course pursuant to an existing Department of Justice (DOJ) regulation or judicially approved settlement. 11 PRACTICE POINTER: Requesting administrative closure for T nonimmigrant cases. While immigration have been stripped of most of their authority to administratively close cases, for clients in removal proceedings with pending T status applications, the regulations allow for administrative closure of these cases. 12 As the regulations are permissive, practitioners should be prepared to explain the T nonimmigrant status application process to immigration judges who may not be familiar with the form of relief and advocate for a grant of administrative closure for the pendency of the T nonimmigrant status application adjudication. To request administrative closure before the BIA following an immigrant judge’s denial of a motion for administrative closure, brief the issue thoroughly and renew the request for administrative closure to the BIA. If you have a case on appeal at the BIA and an application for T nonimmigrant status pending, you can do one of two things: 1) request that the BIA hold the appeal in abeyance pending adjudication of the T nonimmigrant status application, or 2) request administrative closure before the BIA. You can also file one motion that requests both of these things in the alternative. Make sure to fully brief the issues and the points that the immigration judge and BIA must consider in the exercise of discretion to preserve judicial review of legal (statutory and failure to follow BIA precedent) and due process claims. Some IJs may request that the applicant/respondent submit a copy of the entire T nonimmigrant status application in order to adjudicate the motion to continue or administratively close. Keep in mind that the immigration court is part of the Department of Justice, not the Department of Homeland Security, and will not otherwise have access to this information. It may not be in the client’s best interest to disclose certain facts to the immigration judge. Although the government attorneys, ICE Office of the Chief Counsel, are a part of the Department of Homeland Security, information submitted to the Vermont Service Center Humanitarian Unit has special protections against disclosure. Because the information contained in a T nonimmigrant status application is highly sensitive, you will have to weigh the risk and potential benefits of disclosing the entire file to the immigration judge if they request it to rule on a motion. Termination

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§ 9.4

While your client’s T nonimmigrant status is pending, you can attempt to terminate proceedings. DHS, in its discretion, may agree to a joint motion to administratively close or terminate

11

Id. at 272, 292–93. 8 CFR § 1214.2(a).2. Applicants can “request that the [immigration] proceedings be administratively closed (or that a motion to reopen or motion to reconsider be indefinitely continued).” 8 CFR § 1214.2(a). If the noncitizen appears eligible for the visa, the immigration judge or BIA “may grant such a request to administratively close the proceeding or continue a motion to reopen or motion to reconsider indefinitely.” In the event USCIS finds an applicant ineligible for T-1 nonimmigrant status, USCIS may recommence proceedings that have been administratively closed by filing a motion to re-calendar with the immigration court or a motion to reinstate with the BIA. Id.

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proceedings without prejudice, whichever is appropriate, while an application for T nonimmigrant status is adjudicated by USCIS. 13 If USCIS approves your client’s Form I-914 and your client is now in T nonimmigrant status, you should file a motion to terminate proceedings. [See Appendix JJ for a Sample Motion to Terminate Removal Proceedings.] If the case is still on the Court’s open docket, a motion to terminate will suffice. If your client’s case has been administratively closed, the appropriate motion is to recalendar and terminate. As described in Chapter 6, if your client is eligible for early adjustment, 14 USCIS will maintain jurisdiction over the adjustment application, even if the removal proceedings remain open. 15 There are benefits, however, to terminating proceedings, even if your client is now in lawful T nonimmigrant status. Although USCIS’ Vermont Service Center has clarified that it retains jurisdiction over the adjustment of status application of someone in removal proceedings while proceedings remain open, traditionally there has been some confusion by individual USCIS officers on this issue. It is more straightforward for USCIS to adjust your client’s status to lawful permanent resident once removal proceedings have been terminated and jurisdiction clearly vests with USCIS. PRACTICE POINTER: Seeking OCC’s positions on motions. Practitioners should try to obtain DHS’s position on any motion filed before the immigration court. 16 It is good practice therefore to attempt to obtain the DHS ICE Office of the Chief Counsel’s (OCC) non-opposition to any of your motions (continuances, administrative closure, recalendar and terminate, etc.). Though OCC may not be motivated to join or “non-oppose” your motions, if your client’s T nonimmigrant status is approved, the likelihood of OCC’s cooperation will increase. Ideally, with a copy of your client’s T nonimmigrant status approval and I-94 from USCIS, OCC will either join your motion or non-oppose it. This makes it easier and faster for an IJ to grant your motion. Otherwise, the immigration judge must wait for OCC’s response to your motion or 15 days, whichever is sooner, to make a decision. [See Appendix KK for a Sample Request for OCC to Join or Non-Oppose a Motion.] If USCIS denies the T nonimmigrant status application, DHS will likely issue a new Notice to Appear (NTA) and reinstate removal proceedings. 17

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Additionally, if your client’s case is granted and your client is in T nonimmigrant status, they can be placed into removal proceedings for any removable conduct which took place after

13

8 CFR § 214.11(d)(1)(i). 8 CFR § 245.23(a)(3). T nonimmigrant status is valid for 4 years. After 3 years, a T nonimmigrant can apply to adjust status. If the applicant can obtain a letter from the DOJ Human Trafficking Prosecution Unit that any investigation into the human trafficking case is closed, and the applicant did not refuse to cooperate with any reasonable requests, the applicant can apply for adjustment of status immediately and does not need to wait until the three-year mark. 15 8 CFR § 245.23(d); Id. § 245.23(h). 16 Immigration Court Practice Manual, Chap. 5.2. 17 8 CFR § 214.11(d)(10)(ii). 14

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T nonimmigrant status granted, for conduct prior to the T nonimmigrant status being granted which was not disclosed, or if the T nonimmigrant status is revoked. 18 § 9.5

Detained Applicants

Applicants in immigration detention can apply for T nonimmigrant status. In the scenario where DHS has granted Continued Presence (which is unfortunately uncommon), discussed in Chapter 3, your client should be released from ICE custody, and the removal proceedings should be terminated or administratively closed. If you receive pushback from OCC, it is helpful to remind them that Continued Presence (CP) is a law enforcement tool that fosters a “sense of stability and protection” 19 so a trafficking victim can cooperate and assist with a law enforcement agency investigation and/or prosecution. 20 ICE has the authority to keep your client in detention even if a T nonimmigrant status application is pending before USCIS. 21 If you have not requested CP, or your client has not been granted CP and your client has a pending T nonimmigrant status application, you should nonetheless move for administrative closure with the immigration judge. If granted and unless your client is subject to mandatory detention under INA § 236(c), practitioners report that the case will generally be transferred from the detained to the non-detained docket and your client will be released. The T nonimmigrant application process is similar to that of the U nonimmigrant status (for victims of qualifying crimes) application process with some notable exceptions. In the U context, particularly as it relates to the detention of immigrant applicants with pending applications, USCIS will issue a prima facie determination and process the U application on an expedited basis. 22 This is a process whereby USCIS does a cursory review of the U application to ensure that the application is complete and that the application is potentially approvable. With a prima facie determination and the U nonimmigrant status receipt notice in hand, practitioners are more likely able to secure their client’s release from detention. The T nonimmigrant status regulations call for a similar cursory review, called a bona fide determination. According to the regulations, USCIS will conduct an “initial review” of a T nonimmigrant status application to determine whether it is “bona fide.” 23 Despite this

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8 CFR § 214.11(n). Nothing in this section prohibits DHS from instituting removal proceedings for conduct committed after admission or for conduct or a condition that was not disclosed prior to the granting of T nonimmigrant status, including misrepresentations of material facts in the application for T-1 nonimmigrant status or in an application for derivative T nonimmigrant status, or after revocation of T nonimmigrant status. 19 USCIS Continued Presence, Temporary Immigration Status for Victims of Human Trafficking, found at https://www.dhs.gov/xlibrary/assets/ht-uscis-continued-presence.pdf. 20 22 USC § 7105(c)(3)(A)(1). 21 8 CFR § 1214.2(a). 22 See ICE memorandum on the prima facie request process. “Adjudicating Stay Requests Filed by U nonimmigrant applicants.” (September 24, 2009), available here: https://www.ice.gov/doclib/foia/dro_policy_memos/11005_1-hdstay_requests_filed_by_u_visa_applicants.pdf. 23 8 CFR § 214.11(e). An application will be deemed bona fide if it is (i) properly filed and complete; (ii) does not appear to be fraudulent; (iii) presents prima facie evidence of each eligibility requirement for T-1

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regulation, USCIS has indicated that since the adjudication processing time for the T nonimmigrant status is relatively quick (compared to the U, for example) it is more efficient for the agency to process the entire T nonimmigrant status application and bypass the bona fide determination step. As such, this manual’s authors are unaware of USCIS making bona fide determinations, and practitioners should not expect one in the regular course of a T nonimmigrant status application. Given this discrepancy, practitioners are encouraged to investigate a mandamus or other form of litigation to require USCIS to follow its regulatory procedures and make a bona fide determination on your application. You may find that immigration judges are less familiar with the T nonimmigrant status application process, and they may request either a prima facie or bona fide determination for your T applicant in removal proceedings. This is an opportunity to educate the immigration court on the differences between the U and T nonimmigrant status and though included in the regulations, in practice USCIS has recently not issued bona fide determinations for pending T nonimmigrant status applications.24 § 9.6

Waivers of Inadmissibility

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Waivers of inadmissibility, discussed in Chapter 5, generally have been generously granted for T nonimmigrant status applicants. Practitioners should note that there is ongoing jurisprudence regarding which agency has jurisdiction to process waivers of inadmissibility. In March 2014, a case in the Seventh Circuit Court of Appeals called L.D.G. v. Holder 25 decided that both USCIS and EOIR have concurrent jurisdiction over the Form I-192 waiver of inadmissibility for a U nonimmigrant status applicant. 26 The Board of Immigration Appeals (BIA) and the Third Circuit have disagreed and in 2017, the Seventh Circuit reaffirmed its decision in Baez Sanchez v. Sessions and it remains good law in that circuit, 27 namely before the Chicago immigration court. If you practice in this jurisdiction, you may want to consider the benefits of having your immigration judge adjudicate the Form I-192 waiver and if it would benefit or detriment your client. Though there exists a split in the circuits, the arguments in both L.D.G. v. Holder and Baez Sanchez v. Sessions may be helpful as advocates push for concurrent jurisdiction in various circuits. 28

status; (iv) biometrics and background checks are complete; and (v) the applicant is: (A) admissible to the U.S.; or (B) inadmissible to the U.S. based on a ground that may be waived and the applicant has either filed a waiver of a ground of inadmissibility or USIS has already granted a waiver. 24 “Since 2002, USCIS has received fewer applications for T nonimmigrant status than were expected. USCIS generally adjudicates the merits of T nonimmigrant applications as quickly as it can make a bona fide determination.” Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status; Final Rule, Federal Register / Vol. 81 , No. 243 / Monday, December 19, 2016 / Rules and Regulations. 25 L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014). 26 INA § 212(d)(3) waivers are processed similarly for both U and T nonimmigrant status applicants. 27 See Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017) reaffirming L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014). 28 For support on pursuing INA § 212(d)(3) waivers before EOIR, see NIJC’s Practice Advisory: U Visa Inadmissibility Waivers in Removal Proceedings (Dec. 2017) found at

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§ 9.7

Applicants with Prior Orders of Removal

Those who have been previously removed from the United States or who have a prior order of removal, exclusion, or deportation can apply for T nonimmigrant status. Granted T nonimmigrant status applications If the previous removal order was issued by DHS (an expedited removal order or a reinstated removal order), then the approved T nonimmigrant status automatically cancels the previous removal order by operation of law. 29 The order will be deemed cancelled by operation of law as of the date of the USCIS approval of the T nonimmigrant status application. 30 However, an outstanding order of removal, deportation or exclusion issued by an immigration judge or the BIA are not automatically canceled. Instead you must seek cancellation of the removal, deportation or exclusion order by filing a motion to reopen and terminate removal proceedings with the immigration judge or the BIA to remove the previous removal order from your client’s record. 31 ICE may agree, as a matter of discretion, to join such motion to overcome any applicable time and numerical limitations of 8 CFR §§ 1003.2 and 1003.23. A Sample Motion to Reopen and Terminate Proceedings is available at Appendix LL. Pending T status applications The filing of the T nonimmigrant status application has no effect on DHS’s authority to execute a final order of removal. 32 In other words, the filing of a T nonimmigrant status application alone will not automatically stay the removal. 33 Note that removal proceedings do not have to be reopened in order for an applicant to submit a T nonimmigrant status application directly to USCIS. Previously, practitioners have reported successfully obtaining administrative stays of removal while the T nonimmigrant status application was pending. 34 More recently, the likelihood that these requests will be granted has decreased. You may want to file an administrative request for a stay of removal with ICE as well as email the Vermont Service Center and request an expedited adjudication of the T nonimmigrant status application You can email the Vermont Services Center at [email protected].

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https://www.immigrantjustice.org/sites/default/files/uploaded-files/no-content-type/201712/NIJC_UvisaPracticeAdvisory_2017-12-14.pdf. 29 8 CFR § 214.11(d)(9)(i); see also A-L-, 2017 WL 733134, at *3 (AAO Jan. 12, 2017) (holding that USCIS’s approval of an application for U nonimmigrant status cancels a reinstated removal order pursuant to 8 CFR 214.14(c)(5)(i), which is substantively identical to 8 CFR § 214.11(d)(9)(i)); A-G-P-, 2017 WL 1246535, at *1 n.2 (AAO Mar. 9, 2017) (same). 30 Id. 31 8 CFR § 214.11(d)(9)(i)(ii). Despite the ability to obtain T nonimmigrant status and even adjustment of status without having to reopen prior proceedings and terminate prior removal or deportation orders, many T nonimmigrants may want to reopen and terminate proceedings anyway to guard against problems from continuing to appear in the National Crime Information Center (NCIC) database, or to avoid problems with CBP if they travel once they are a permanent resident. 32 8 CFR § 214.11(d)(1)(i). 33 8 CFR § 214.11(d)(1)(ii). 34 8 CFR § 241.6(a).

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Additionally, the American Immigration Lawyers Association (AILA) Vermont Service Center Liaison and our partners at ASISTA 35 may be leading and tracking advocacy on this issue. To request a stay of removal, file Form I-246 Application for Stay of Deportation or Removal, along with the filing fee and a copy of the I-914 T nonimmigrant status receipt notice and I-192 waiver. A fee waiver is also available.36 Generally, to file a stay of removal request, you must submit it in person. ICE will require the applicant’s original passport, a copy of the individual’s birth certificate, or other identity document, and copies of dispositions for any arrests or convictions the individual may have. 37 Please note that by filing a request for a stay, your client will be announcing her presence in the United States to ICE. Since the stay is not automatic, ICE may still seek out your client to execute the removal order once a request for stay has been filed. Therefore, the stay request is only recommended for those clients who are already facing imminent removal or are being detained. Accordingly, in those cases where a client is not already in proceedings or detention, a stay of removal may not be the best option. Theoretically, once USCIS conducts an initial review and makes a bona fide determination on your application, the removal order is automatically stayed pending processing of the T nonimmigrant status application. 38 As explained above, USCIS is generally not conducting an initial review and issuing these determinations and as such, as of this manual’s publication date, this avenue for a stay of removal is not currently available. § 9.8

T Visas for Lawful Permanent Residents

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For lawful permanent residents (LPRs) who are facing removal and are unable to maintain their status but are eligible for T nonimmigrant status, this remains unsettled territory. There is no published authority from USCIS or the courts addressing whether someone can change their status from LPR status to T nonimmigrant status, and USCIS has stated it will not approve T nonimmigrant status for an LPR. Currently, the only way for an LPR to be granted T nonimmigrant status is to first terminate or relinquish LPR status. However, USCIS holds that this cannot be accomplished by filing the I-407 Record of Abandonment of Lawful Permanent Resident Status. USCIS has determined that the I-407 can only be filed from abroad or at a port of entry before CBP. For a more full discussion on strategies to terminate LPR status and apply for T nonimmigrant status, see the National Immigrant Justice Center (NIJC), Practice Advisory: “U Visa Inadmissibility Waivers in Removal Proceedings” (Dec. 2017) found at https://www.immigrantjustice.org/sites/default/files/uploaded-files/no-content-type/201712/NIJC_UvisaPracticeAdvisory_2017-12-14.pdf.

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Asista’s website is at http://www.asistahelp.org/. 8 CFR § 103.7. 37 Form and instructions can be found at https://www.ice.gov/sites/default/files/documents/Document/2017/ice_form_i_246.pdf. 38 8 CFR § 214.11(e)(3). 36

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CHAPTER 10 T TRAVEL ISSUES This chapter includes: § 10.1 § 10.2 § 10.3 § 10.4 § 10.5 § 10.6 § 10.7 § 10.8 § 10.9

Introduction ........................................................................................................ 159 Bringing Derivatives from Abroad..................................................................... 160 Travel Before Approval Notice Issued ............................................................... 161 Approval Notices for Derivatives Abroad.......................................................... 162 Decision to Travel .............................................................................................. 162 Consular Processing ........................................................................................... 163 Border Entry with CBP ...................................................................................... 167 Entering the United States .................................................................................. 167 Parole for Adjustment of Status Applicants ....................................................... 167

§ 10.1 Introduction As the first chapter of this manual mentions, advocates and clients often refer to the “T visa” when they are really referring to T nonimmigrant status or an approved petition for T nonimmigrant status. Thus far, the manual has been describing the process for obtaining and maintaining T nonimmigrant status as opposed to an actual T visa. A visa itself is a permit to enter the United States from abroad and is typically a sticker in an applicant’s passport. The visa will have a validity window in which its holder can attempt to enter the United States. The process of obtaining a visa is only relevant to a principal T nonimmigrant when they wish to reenter the United States after a trip abroad. Derivatives may be approved for a visa from abroad if they need to enter the United States for the first time. A T nonimmigrant should avoid travel back to their home country before becoming a U.S. citizen. Recall that as part of the application for T nonimmigrant status, the client had to show that they would suffer extreme hardship upon removal. If they return back to their home country while in T nonimmigrant status, the U.S. consulate or Customs and Border Protection (CBP) can deny re-entry, or their departure to their home country can come up later at the adjustment stage with U.S. Citizenship and Immigration Services (USCIS). Officers may suspect fraud since the T nonimmigrant alleged hardship but then returned to the country from which they claimed hardship. This concern remains the same even after the T nonimmigrant has gained permanent residency, as the file will be reviewed again at the naturalization stage. The same concerns should not apply to T nonimmigrants traveling to other countries. The T nonimmigrant status does not by itself provide T nonimmigrants the ability to re-enter the United States lawfully. This chapter will lead you through the proper steps for T nonimmigrants and their qualifying family members who are currently abroad or who are considering traveling abroad in the future.

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The USCIS website provides an overview of the process for T derivatives to travel to the United States that may be helpful to those who are new to this process. It is summarized here and explained in more detail below. 1. The T principal (T-1 nonimmigrant) applies or petitions with USCIS, through the Vermont Service Center (VSC) on behalf of the overseas family member for derivative T nonimmigrant status, using Form I-914 Supplement A, Petition for Qualifying Family Member of T-1 Recipient. 2. USCIS sends a fingerprint notice for the overseas family member to the attorney, representative, or principal T nonimmigrant in the United States. 3. The overseas family member contacts the appropriate U.S. Embassy or Consulate to schedule an appointment for fingerprinting. Depending on the location, either U.S. Department of Homeland Security (DHS) or U.S. Department of State (DOS) will conduct the fingerprinting. 4. The department that conducts the fingerprinting sends the fingerprints to Vermont Service Center (VSC). 5. USCIS adjudicates (approves or denies) the application or petition for derivative T nonimmigrant status. 6. If approved, USCIS sends a notice of approval to the attorney, representative, or principal T nonimmigrant and to DOS. 7. The overseas family member schedules an interview with DOS at the nearest U.S. Embassy or Consulate to apply for the visa in order to enter the United States. To find the nearest embassy or consulate, check www.usembassy.gov. It is the responsibility of the family member, and not DOS, to schedule an interview. The overseas family member should not wait to be contacted. 8. DOS interviews the overseas family member. This step may take several visits and further evidence. DOS then approves or denies a T visa. 9. If the visa is approved, DOS sends the visa to the overseas family member. 10. The overseas family member makes travel arrangements to enter the United States on the derivative T visa. § 10.2 Bringing Derivatives from Abroad

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Although principal T nonimmigrant status applicants must be in the United States, they can apply for their derivatives who may be abroad. The form to file for derivatives is Form I-914 Supplement A, which can be submitted with the initial Form I-914 for the principal, or at a later date. The principal must sign the Supplement A, but the derivative who is abroad does not need to sign. If the derivative has inadmissibility grounds, you will need to file Form I-192 for a waiver of inadmissibility along with the Supplement A. See Chapter 8 for instructions on filing for derivatives, whether abroad or in the United States. Applying for a derivative abroad is functionally the same as a derivative stateside, except derivatives abroad are not yet eligible for work authorization, so you do not need to submit the Form I-765. You should wait until the day the derivative arrives in the United States to submit the form.

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Remember that the approval notice for the derivative T nonimmigrant status (T-2, T-3, T-4, T-5, or T-6) will have an approval date on it, up to the date of the expiration of the T-1 nonimmigrant status for the principal. However, the derivative does not have T nonimmigrant status until they enter the United States. This means that the principal should not request adjustment of status (to obtain permanent residency) until the derivative has been admitted in this status. If the approval notice has expired before the derivative is able to enter the United States, the principal must file an extension and include the derivative on the form. § 10.3 Travel Before Approval Notice Issued While the T nonimmigrant status application is pending, the applicant should not leave the United States because of the T nonimmigrant status requirement that the applicant be “present [in the United States] on account of the trafficking” at the time of application and at the time the application is decided. Applicants who are outside the United States are, obviously, not present in the United States on account of the trafficking. In addition, most applicants who leave the United States after the trafficking victimization has ended and then reenter while the application is pending are not generally present on account of the trafficking, although there may be exceptions to this, as discussed in Chapter 3. In addition, departing the United States may trigger one or more unlawful presence grounds of inadmissibility. There are specific waivers for these inadmissibility grounds, discussed at Chapter 5. The only way an applicant may legally travel while the T nonimmigrant status is pending is when they have received Continued Presence. Continued Presence is an authorization requested by the law enforcement agency with whom the applicant is working, so that they are protected from deportation while the agency requires them to be present in the United States. This is discussed in Chapter 3. In general, attorneys and advocates should strenuously advise against departing the United States while the T nonimmigrant status application is pending, as such departure carries a serious risk of destroying the possibility of T nonimmigrant status being approved.

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PRACTICE POINTER: Traveling under other visa categories. For derivatives abroad who want to travel to the United States prior to approval of their derivative T nonimmigrant status, they may be able to do so with another type of valid visa. However, counsel should advise the derivative regarding the possibility of committing fraud when using a different visa, in particular if the derivative wants to use a tourist visa but does not intend to depart. If the derivative fails to disclose any information regarding the pending application or lies about intent, the other visa can be revoked, and the derivative can be found inadmissible under the fraud inadmissibility ground. As with most grounds of inadmissibility, fraud can be waived if properly disclosed. Incurring a new ground may require updating the application for waiver of inadmissibility or even filing an initial waiver application if there were no prior grounds at the time of filing. If the derivative enters and departs the United States lawfully without triggering any new ground of inadmissibility, there is no need to update USCIS. However, if the derivative plans to remain in the United States until the derivative T nonimmigrant status is issued, you must notify USCIS

because then the approval can be issued directly to the derivative without needing to consular process. § 10.4 Approval Notices for Derivatives Abroad All T nonimmigrant Notices of Actions, regardless of whether the derivative is in the United States or abroad, are now sent from VSC to the Kentucky Consular Center (KCC). If the person is abroad, the notice of action is then entered into the Petition Information Management System (PIMS) database, so the consulate abroad can confirm the validity of the approval notice. The derivative family member who is outside the United States can then apply at the U.S. consulate abroad for a T visa, which can be used to travel to the United States for admission as a T nonimmigrant. All notices of I-914 Supplement A approvals for derivative family members are sent to the principal applicant. To confirm that the approval information is in the PIMS system, you can contact KCC directly at (606) 526-7513 or [email protected]. § 10.5 Decision to Travel Travelling with T nonimmigrant status can pose serious consequences that most clients have probably not considered. This is why it is important to stress to your clients that they speak with you before making any firm plans for travel and certainly before actually departing. Understanding of the T visa at the consulates varies widely, which can result in delays in obtaining the actual visa to return. Therefore, counsel should review all risks with the client before they decide to depart. Maintaining continuous presence for adjustment of status A T nonimmigrant can apply for adjustment of status either after holding T nonimmigrant status for three years, or if the DOJ has approved early adjustment based on the termination of the investigation or prosecution of their trafficking. See Chapter 6 and Chapter 7 for more information about this process. T nonimmigrants whose traffickers’ criminal proceedings are still open will need to complete the three years of continuous presence, which can be disrupted by travel. A T nonimmigrant cannot be outside of the United States for more than 90 days at one time, and for no more than 180 days in total. Make sure your client saves the documentation of any departure from and return to the United States in order to ensure accurate date calculation. The United States does not stamp passports upon departure, so if the country they visit does not stamp their entry, the date will not be officially recorded.

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Triggering new inadmissibility grounds by departing the United States Principal applicants and derivatives should have requested a waiver of any inadmissibility grounds that were already present at the time of the principal or derivative T visa application. However, travel abroad in T nonimmigrant status may trigger new inadmissibility grounds under INA §§ 212(a)(9)(B) and/or (C), if the departure came after the T nonimmigrant has already accrued unlawful presence in the United States. These new grounds will have to be waived during consular processing. Additionally, any new activity triggering a ground of inadmissibility that was not previously waived, such as arrests or drug use, will need to be included also. More

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information on overcoming grounds of inadmissibility at consular processing are discussed in the section below. Potential costs involved Whether it is the derivative travelling to the United States for the first-time following approval, or a T nonimmigrant returning from a trip, they will have to obtain a visa from the consulate. These costs can add up quickly; including the visa fee, passport, and flights. Many clients decide travel is not worth the risk and financial burden. This is why you should ensure the client understands all the potential consequences in order to make a fully informed decision. § 10.6 Consular Processing Typically, an applicant can apply for a visa only at a U.S. consulate that has jurisdiction over them. Consulates generally have jurisdiction only over persons who are citizens of the country in which the consulate is located. However, a T nonimmigrant should not return to their home country prior to naturalization because they already obtained a finding from USCIS that they will suffer extreme and unusual hardship upon return. In that case, you may seek a “third” country for the client’s consular processing. You should investigate the U.S. consulate’s procedures in the third country to make sure they accept third country visa applications. You can do this by reviewing that embassy’s website or contacting them directly. Generally, the applicant must show the U.S. consulate that they are legally allowed to be in the third country where they want to consular process. Counsel should find out whether the third country requires a visa for the client, based on the client’s citizenship and status in the United States. 1 To apply for a nonimmigrant visa, whether for T-1 nonimmigrant status after the principal T nonimmigrant travels abroad, or for derivative T nonimmigrant status, each applicant must fill out the Form DS-160 application online. 2 This application will request biographic and background information, including the status the applicant seeks. There is also a fee associated with each application. Each application will create an application number, which you and the applicant should write down and/or keep accessible, as you will need it later to schedule an appointment. Some countries are included in the online system that allows applicants to choose their appointment date and time. 3 If the client’s country is listed here, click on the preferred language next to the country name and follow the instructions to schedule it. There is another system to schedule an appointment online here: https://evisaforms.state.gov/Instructions/SchedulingSystem.asp. Both systems require the application number from the DS-160 confirmation.

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A good resource for finding U.S. consulates in other countries is www.usembassy.gov. You can also check wait times for nonimmigrant visa appointments at https://travel.state.gov/content/travel/en/usvisas/visa-information-resources/wait-times.html. 2 The application is available here: https://ceac.state.gov/genniv/. 3 The list of countries participating in this system is found here: https://ais.usvisa-info.com/enUS/countries_list/niv.

For more information about consular processing for derivatives abroad, see Chapter 8. PRACTICE POINTER: Grounds of inadmissibility at the VSC versus the consulate. Previously, some practitioners have written “any and all inadmissibility grounds” on the Form I-192 waiver of inadmissibility without listing the individual grounds. However, because the Vermont Service Center conducts their own analysis of inadmissibility, this usually is enough to encompass all grounds requiring a waiver. There could be a problem at the consulate if VSC missed some of the grounds that apply to your client, and you would have to submit a new Form I-192 for any missed grounds before the consulate would issue the visa. The consulate may have a different interpretation of some grounds of inadmissibility; the officer may deem activity to trigger a ground that the VSC did not consider to be a ground. Some crimes, like Driving Under the Influence (DUI) or an admission to drug use in the past year, might be considered by the consulate to trigger a public health ground of inadmissibility. If so, the consulate may require your client to submit a medical exam, as is common for those with DUIs submitting applications for other forms of visas. This is generally not requested when the waiver is filed within the United States. Prepare your client for this possibility. It may be difficult to determine exactly which grounds of inadmissibility have already been waived because VSC will provide a list of the grounds it waived at the T nonimmigrant stage to the consulates—but not to the applicant or attorney. Generally, the waived grounds are those the applicant listed on the Form I-192 application for waiver of inadmissibility grounds. The VSC will also conduct their own determination of grounds of inadmissibility. If they send a Request for Evidence (RFE), all grounds found by VSC will be listed there, even if not listed initially on the application. If the waiver is approved, these same grounds will be communicated to the PIMS system for the consulate. If new inadmissibility grounds do arise at the consulate, there are two possible approaches for seeking a waiver. First, the consulate [under the Department of State (DOS)] has the legal authority to waive additional grounds of inadmissibility under INA § 212(d)(3), which is the general nonimmigrant waiver in the national interest. The consulate does not require Form I-192 to process a waiver under this statute; only the Department of Homeland Security (DHS) has the authority to adjudicate Form I-192. If the consular officer determines that the applicant meets the criteria for a waiver, they will refer the recommendation for approval to Customs and Border Protection (CBP) Admissibility Review Office, which is under DHS.

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If the consulate denies the waiver, you will need to file the new Form I-192 with the Vermont Service Center. There are no listed processing time estimates for a stand-alone Form I-192, so the amount of time an applicant may be waiting outside the country is impossible to determine. While VSC can expedite adjudication of the Form I-192, there is no guarantee that it will. 4 As one criterion for expedited processing, advocates should emphasize the requirement that the applicant will lose the ability to adjust status to permanent residence if they spend more than 90 days in any single period outside the United States. Together, you and your client can make the strategic 4

You can review the Expedite Criteria provided on the USCIS website at https://www.uscis.gov/forms/expedite-criteria, and in the USCIS Policy Manual, Volume 1, Part A, Chapter 12.

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decision whether to immediately file the new Form I-192 following the client’s departure or wait until after the client has attempted consular processing. Filing a new inadmissibility waiver application with the VSC If you determine that the applicant will need to file a new Form I-192 application for waiver of inadmissibility, you must still file it with the Vermont Service Center. If your client will trigger the three- or ten-year bar only upon departure, the waiver should be filed after they depart. However, you should have the entire packet prepared prior to their departure because you will need original signatures, as with all the other filings. The packet should include, at minimum: • • • • •

Form G-28 Notice of Entry of Appearance for Attorney Form I-192 Application for Advance Permission to Enter as Non-Immigrant Filing Fee or Form I-912 Request for Fee Waiver Statement explaining departure and any new factors for consideration Proof of departure, such as an airline ticket, passport stamp, etc.

Once the receipt for the Form I-192 arrives—usually two to three weeks later—you should scan the receipt and email an expedited request to VSC at [email protected]. An officer from VSC should respond by email within 72 hours, confirm the expedited request and will usually (but not always) adjudicate the waiver within 7 to 15 days of the mail request. The officer will send the applicant’s information to KCC to enter into PIMS. The consulate should then be able to access this information in PIMS by searching the applicant’s case number. Prepare packet to present at consular interview Ideally, you will have the opportunity to prepare the packet for consular processing with the principal T nonimmigrant, either before they travel themselves, or on behalf of their derivative abroad. In addition to explaining the process verbally, you should try to also provide written instructions in their native language and/or the language of the country from which they will travel. For most interviews, your client should bring the entire packet, as well as a photograph, their passport, their original birth certificate, and receipt of payment for interview. The attorney does not need to email or mail the packet to the consulate; the applicant will present the packet themselves. You should help the applicant put together a packet with the following: 1. 2. 3. 4.

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Cover letter to the Consulate Copy of interview appointment printout Receipt for the DS-160 fee paid Applicant’s original Form I-797 Notice of Action for Approval of Form I-914 or I-914 Supplement A 5. Applicant’s Original Birth Certificate, and translation, if needed 6. If T derivative, gather supplemental proof of relationship to principal: a. This may include documents such as a baptismal certificate, hospital record of birth, family photographs, letters, or email exchanges, and translations, if needed b. Where possible, include the principal applicant’s original Form I-797 Notice of Action for Approval of Form I-914

c. If related by marriage or step-relationship, include original copy of marriage certificate, and translation, if needed 7. If requesting a waiver of a new inadmissibility factor through a newly filed Form I-192 with VSC, you can later email the consulate a scanned copy of the applicant’s new Form I-797 Notice of Action: Approval of New Form I-192 8. Receipt with barcode for DS-160. Upon completion, the form answers are submitted electronically to the DOS. Print a copy of the receipt with the barcode page so that the official at the interview can be able to access an electronic copy of the form. See Practice Pointer below for more details on completing the DS-160 forms. PRACTICE POINTER: Completing the DS-160 forms. There are conflicting opinions as to who can complete the DS-160, because the final page asks the applicant to “sign and submit.” Often, the attorney helps the principal applicant complete the form either at the attorney’s office or by phone. Other times, the attorney helps the derivative applicant complete the form through email and phone correspondence, and ultimately in person with the principal applicant while the derivative is participating by telephone. Many consular officers encourage and allow others to assist in the form completion. However, the Department of State has an official policy that applicants themselves must electronically sign and submit the DS-160. There is a widely accepted exception to the official policy where the applicant is less than 16 years old or has a physical disability preventing completion of the form. Under the exception, the applicant’s parent, legal guardian, or another person with legal custody of, or a legitimate interest in, the applicant can sign on the applicant’s behalf. Here are steps to keep in mind with Form DS-160: •

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Ask the applicant to complete the DS-160 worksheet. A Sample DS-160 Worksheet is provided in Appendix MM. Review the answers with the applicant before beginning the form online. Applicants often skip necessary questions, and this will make the online form filling more difficult. Do not use the Chrome browser at this time. Firefox and Internet Explorer work better. It can also be helpful to copy and paste the DS-160 receipt number into a word document in case you need it later to access the form again because it can be difficult to tell the difference between the number zero and the letter O. Select “three years” for length of time to live in United States, because that is how long the applicant will plan to stay in the United States in T nonimmigrant status before adjusting status. Although the last page requests that the applicant scan and submit a photograph, you can skip this step. The image’s size and specifications are not worth the trouble of submitting this online on the form. Instead, you should have the applicant submit a passport-sized photo at the interview. In order to proceed with the form, either (a) upload any smiley face JPEG file, which gets rejected and you can then proceed; or (b) click on review tab above, and then proceed to the signature. When asked the “purpose of the trip,” write, “to live in the United States as a T nonimmigrant.”

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The question asking for the applicant’s immediate relatives, who already live in the United States, refers to the applicant’s nuclear family only: parents, children, spouse, and siblings. Children under 14 years old will usually not have to answer the questions about school or work. The form will automatically skip any questions not applicable to your client. § 10.7 Border Entry with CBP

Some practitioners have been successful in helping their clients bypass the consular process system entirely by crossing instead from a land border between Mexico and the United States. Customs and Border Protection (CBP) has jurisdiction to allow entry at the border. One attorney experienced a U-1 nonimmigrant being allowed entry at the Tijuana-San Ysidro border using only her original Approval Notice and passport. She later was able to successfully adjust her status to permanent residence through Form I-485 without issue. Nonetheless, simply trying for lenity at the border is not recommended as either the first or second step. That said, when all efforts fail at the consulate, you could suggest that your client head cautiously to a land border for another chance. § 10.8 Entering the United States If the consulate approves the T visa application, the applicant should receive a multiple entry T visa and must enter the United States before the visa expires. The visa will typically be valid for the duration of the Approval Notice. For example, if the principal T nonimmigrant travels following the approval, and then consular processes, the new visa will be valid until the expiration of the initial T-1 nonimmigrant status. Even with a multiple-entry visa, the T nonimmigrant must still accrue continuous presence in the United States to be eligible later to adjust to permanent residence, and therefore must diligently monitor their travel dates. § 10.9 Parole for Adjustment of Status Applicants A T nonimmigrant who has applied for adjustment of status is subject to the same rules of abandonment as other applicants for permanent residence. This means that any travel abroad without first obtaining advance parole will cause the application to be denied, even though a T nonimmigrant may be able to reenter lawfully with a T visa. As with any international travel in T nonimmigrant status, the T nonimmigrant should avoid return to their home country before receiving citizenship because of the requirement for T nonimmigrant status that they show they will suffer extreme and unusual hardship in that country. Please refer to Chapter 3 for more information about these requirements. Travelling to the home country from which they claimed hardship could cause the underlying application to be reviewed and revoked due to suspected fraud.

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Advance parole may be requested on Form I-131 and submitted to VSC. You may want to routinely include a Form I-131 and two additional passport-style, color photographs with your Tbased adjustment applications since there is no additional filing fee for the form. An approved advance parole will preserve the adjustment application that remains pending at the time of departure. If you do apply for advance parole without a specific departure date in mind, you may want to write “unknown” for the date of intended departure and “30 days” (or “up to 90 days”)

for the length of departure. You may also want to check the box to ask for multiple-use parole. For advance parole based on pending adjustment of status applications, you do not need to have any specific reason for the travel. For more information about T adjustment of status, refer to Chapter 6 and Chapter 7 of this manual.

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For emergency travel needs and where a request for advance parole was not filed concurrently with the adjustment application, you may also request advance parole on Form I-131 with the local USCIS office.

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CHAPTER 11 WORKING WITH CHILDREN AND YOUTH This chapter includes: § 11.1 § 11.2 § 11.3 § 11.4 § 11.5

Introduction ........................................................................................................ 169 General Practice Tips for Working with Children and Youth ............................ 169 Understanding Trauma in Children and Avoiding Re-Traumatization .............. 175 Legal and Ethical Issues in Representing Children ............................................ 177 Special Agencies and Programs for Children or Youth Trafficking Survivors ......................................................................................... 178

§ 11.1 Introduction Child and youth survivors of human trafficking often have unique needs, which are frequently the focus of special agencies and programs. In addition, children are still developing critical cognitive, psychological, and biological functions which impact and, in some cases, impair the ways in which they can communicate and respond. Consequently, advocates may need to employ different approaches to working with young trafficking victims than those they use with adults. This chapter identifies critical issues and provides practical tips for working with immigrant children and youth to improve the effectiveness of communication between client and advocate, avoid re-traumatization of children and youth, and develop strong cases for immigration relief. § 11.2 General Practice Tips for Working with Children and Youth This section provides practice tips for working with children and youth in light of the unique developmental issues that affect them. Unlike with most adults, typical interviewing tactics may not work to elicit the information you need or want from a child or youth survivor. You will need to explain multiple times what you are doing, why you are asking the questions that you are asking, and why it is important that these conversations happen. Most of all, you will want to think outside the box and be creative when it comes to interviewing children and youth about their immigration cases—do not rely on simply asking questions and expecting answers to those questions. Trust and vulnerability Many minor survivors of human trafficking have even less control over their situations than most of their adult counterparts. They may have been informed by parents or other authority figures that their travel to the United States has been arranged and that they have no choice regarding the decision. Minor survivors may also be more susceptible to the false promises of family members and family friends offering them opportunities to fulfill their dreams of education and travel. Because trusted guardians and authority figures are sometimes involved in entrapping and harming them, minor survivors may find it difficult to trust anyone again. Minor survivors are also more vulnerable to the threats of traffickers. Traffickers capitalize on minors’ youth and

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inexperience to instill fear and mistrust. Traffickers may tell minors that if the authorities find them, the authorities will not believe their word over that of an adult. Sometimes traffickers threaten that the minor will be held in jail until a parent can come to the United States to release them—a virtual impossibility for parents who are poor and unable to obtain visas to the United States. Minor survivors may have even less understanding of and trust in their rights and be more susceptible to manipulation by adult traffickers. Minor survivors may have been taught respect for elders and obedience to the wishes of older persons. Your client’s vulnerability and distrust may make it difficult for you to communicate easily with them. They may not tell you crucial information because you are one more adult who they do not know and who they have reason to be suspicious of. They may think you are trying to deceive them, as other adults have. In working with minor survivors, it is important to take the process slowly and frequently repeat and explain the process. Provide information about each step and explain why you are asking the questions you ask. Under no circumstances should you make promises you cannot keep. With all human trafficking survivors, but especially with minor survivors, it is crucial to build trust. Your client must learn to trust what you tell them, trust that you are listening to their wishes, and trust that you are their advocate. PRACTICE POINTER: Tips to build trust and develop rapport with your minor client. Get to know the child beyond the facts of their legal case. Spend time talking informally about things that interest the child. Don’t just talk about the T visa and the legal case. Give the child a chance to get to know you first before delving into the legal aspects of their case. Often it can be helpful to talk about the fact that you have children, grandchildren, nephews and nieces, or neighbors who are children. Explain the purpose of working together. Explain what an attorney is, and that you represent the child or youth’s interests directly, not a third party’s interest. After you have explained your role, explain what legal status means for a child and the potential benefits and consequences of working together. Talk about confidentiality and what it means in a manner that the child can understand. Establish clear boundaries. It is very important that you explain your role in the child’s life, including what you can and cannot do for them. It is very easy when working with a minor survivor of trafficking to overstep your own boundaries, to your own emotional, psychological, or financial detriment, as well as possibly having a negative impact on your client’s best interests. This is a child or youth who may have suffered extreme abuse—it is only human that you will feel the urge to do anything and everything within your power to make their life better. But it is important to always keep in mind that you cannot and should not become the omnipresent caregiver in their life because that is not your role.

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Trauma and testimony Children, especially those who have experienced trauma, may detach and clinically disassociate from their situation, shutting down and appearing closed off. 1 As a result, they may also take more time to open up to advocates, as discussed above. Advocates should work on developing trust with the child before asking about the trauma that the child suffered. It often will take time to get the full story from the child. In some cases, it may be easier to get this information from a person with whom the child has developed a close bond and has confided in, for example a social worker, guardian, or friend. It is especially difficult for a child to relive the trauma multiple times. Young children may not be able to communicate fears and flashbacks but may exhibit their trauma through play, reenacting the traumatic events with toys. They may also actively seek to suppress any memories related to the trauma. Given the additional trauma that minors may face, make sure to assess the legal situation and decide if additional legal processes (e.g., a criminal investigation, civil litigation, restraining order) are necessary and appropriate for the client. Assess whether or not your minor client could benefit from applying for T nonimmigrant status without having to report the case to law enforcement (triggering additional traumatizing interviews) for the time being, as discussed in Chapter 3. PRACTICE POINTER: Tips for developmentally-appropriate, trauma-informed communications and work with children and youth. Phrase questions and sentences as simply as possible. Avoid complex sentences or questions. Ask one question at a time, and follow-up with more specific questions. Encourage the child to ask their own questions, too. Use open-ended questions. Use open-ended questions to counter a child’s tendency to offer the answer they expect the questioner wants to hear. Avoid using suggestive statements and leading questions. In particular with a detained child or youth, it is very important to elicit all the information they have given to authorities, including all officers, counselors, and caseworkers, 2 because generally records gathered in immigration detention by the various detention actors are available to the government. 3 Use child-friendly, accessible words and explain legal terminology. Particularly with younger clients, advocates should use simple, plain words and explain complicated legal vocabulary in terms the child can understand. Keep in mind that words like “trafficking,” “coercion,” “assault,” “confidential,” and “immigration” are typically not a part of a child’s vocabulary. Children or youth may repeat language they have heard from advocates or others, but they may not 1

U.S. Conference of Catholic Bishops Migration and Refugee Servs., The Changing Face of the Unaccompanied Alien Child: A Portrait of Foreign-Born Children in Federal Foster Care and How to Best Meet Their Needs, 10 (Dec. 2012), http://www.usccb.org/about/children-and-migration/unaccompaniedrefugee-minor-program/upload/A-Portrait-of-Foreign-Born-Children-in-Federal-Foster-Care-and-How-toBest-Meet-Their-Needs_USCCB-December-2012.pdf. 2 Anne Chandler, Judy Flanagan & Kathleen A. Moccio, The ABCs of Working with Immigrant Children to Obtain Special Immigrant Juvenile Status for Those Abused, Neglected, or Abandoned, IMMIGR. & NAT’LITY LAW HANDBOOK 300, 302 (2006–07). 3 Jennifer L. Woolard, Presentation for Unaccompanied Minors “On Their Own” Conference, Symposium on Mental Competency, Privilege, and Confidentiality (Oct. 23, 2009).

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necessarily understand what it means. Advocates may wish to repeat back to the child or youth complex responses to ensure they are understanding what the child or youth is trying to say. Even with adolescents who appear to have good command of language, advocates need to explain legal vocabulary in an accessible manner. Always double check with a child about their preferred primary language. For some children, an indigenous language or dialect may actually be their primary language. Explain the theory of the case and legal procedures in a way that the child can understand. Share your understanding of the law and procedure with the client. The client can only do their part if they understand what the case is about and what the legal issues are. A client who understands these things will also be much better able to tell their story in a declaration, at an interview, hearing with an immigration official or judge, or in a civil, juvenile, delinquency, or criminal court proceeding. Consider using drawings to work with younger children. 4 Younger children may be able to express through drawings what they may be unable to express verbally. Asking children to draw certain things, such as their house in their home country with the people who lived there or how they crossed the border, may be a helpful tool in eliciting information from younger children who have trouble explaining their experience using words. You can then use the drawing as a jumping-off point to ask a child more about what they drew. Use maps and other multimedia. Maps help children and youth understand where they are now, where they came from, and perhaps where other important people in their life may be (e.g., you can explain to a child using a map that she is in Texas and her aunt is in New Jersey). Maps can also help older youth show advocates approximately where they were was being held by their trafficker. For example, you may want to have photographs taken of the neighborhood and the home where they were kept so that you have a visual aid for them to look at, or access to a computer where you can use an online mapping tool such as Google Maps for a real-life view of the sites where they were forced to live or work. Piece together information from other sources, if safe and feasible. Children and youth are frequently uninformed about the arrangements that their parents or caretakers made with their traffickers and have limited knowledge of the trafficking arrangements. Your minor client may have been told only a limited amount of information initially, and over time may come to learn more details. Your client may also have very little information and may need to contact parents or guardians to learn more of the details, assuming this contact does not pose a safety risk to your client. Understand there will probably always be some gaps or contradictions in a minor client’s story and help others to understand that as well. You will need to dig deeper with each encounter with your minor client, with an eye towards ironing out inconsistencies in the statements, detecting and managing outside influences (i.e., the well-meaning foster parent), and accepting that there will be omissions and slight inconsistencies regardless of the amount of time 4

For more information on the use of drawing and mapping to communicate with children clients in attorney-client interviews, see Am. Bar Ass’n, Child Clients Are Different: Best Practices for Representing Unaccompanied Minors (2007), http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocu ments/legalrep_10.authcheckdam.pdf.

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you may have spent trying to get the whole story. Your written applications and any oral arguments that you may have to make should also take these inevitable gaps and contradictions into account, including providing as much context and explanation for them as possible. Interview the child separately from their parent(s) or guardian(s), and use third-party interpreters. It is important to interview on at least one occasion the child or youth separately from any parents, guardians, siblings, other family members, friends, or others trafficked in the same case for group trafficking cases, to avoid conflicts of interest and because often children will answer differently without others in the room. They may be nervous or ashamed to give certain information in the presence of their parents or other adults. When conducting an interview with a parent or guardian present, keep in mind when the child, not the adult, is your client. If the parent or guardian has legal or other needs, make appropriate referrals, but focus on the child as your client. If needed, always use third-party interpreters and do not rely on the child or youth’s family or friends for interpretation. Allow older youth to have some control and ownership over their case. When possible, allow older youth to have control and ownership over their case by giving them choices, soliciting their input, and asking them to take on certain parts of the preparation. For example, reviewing declarations with adolescents and giving them a chance to make changes to add their voice is an important way to give youth a sense of control and ownership in the process. Developmentally-appropriate meetings with minor clients Children have shorter attentions spans and will not be familiar with legal vocabulary. However, they still want and need to be prepared for what to expect throughout their case, and especially older children will want to have the opportunity to be equal partners in building their immigration case. PRACTICE POINTER: Tips for planning meetings with children and youth. Gather as much information as possible in advance of your first meeting with the client. To the extent possible, you should gather available information about your minor client in advance of your first meeting with them. This may mean immediately filing a Freedom of Information Act (FOIA) request for their case file with USCIS, Department of State, and Customs and Border Protection (CBP), a request for release of records with Office of Refugee Resettlement (ORR), and obtaining pre-existing intake documents, medical, mental health, school administrative hearing, juvenile, delinquency, and criminal records. Even though you may need to review this information with your client and seek additional information in order to develop your client’s immigration case, being as informed in advance as you can be of any history of abuse, neglect, or trauma can help you approach these subjects with care. Learning about your client before you meet with them will also help you tailor your questions to the type of information you need most. See Chapter 3 for more information on filing FOIA requests for records. Choose an appropriate setting where the child feels comfortable. For very young children, if possible, have a smaller table and chairs for both the client and advocate (or the advocate may sit on the floor next to the child). Advocates are more likely to get information from a child if they are working at the child’s eye level. It may be effective to have a space or room in which the child or youth can get up and walk around while meeting with you. For older children, try not to

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sit across a desk from them; rather sit at a table or on the same side of a desk with chairs arranged side-by-side. Depending on the age of the child, you may want to have toys or something for the child or youth to have in their hands while talking with you (a ball, slinky, silly putty, etc.) that is not an overly distracting toy or item. Plan the meeting with the client. Have a plan for what you are going to talk about ahead of time, with back-up topics you can fall back on if anything in the legal appointment becomes too stressful. Also plan out the tasks to be dealt with in the attorney-client meeting so that the discussion of the trauma is sandwiched between neutral tasks. Provide a roadmap for the client of what you plan to do with them during the meeting. Then ease into the interview with the client with small talk, perhaps reviewing documents the client brought in, and start with basic, easy-toanswer questions; then address some of the more difficult issues and discuss the trauma as delicately and sensitively as possible. Change gears if the conversation is too upsetting or stressful and then move to something more neutral, for example, filling out forms. Do not open up topics of conversation that you do not have time in your schedule to finish. If possible, end the conversation with next steps and the next appointment, and a more casual conversation about the child’s interests or a more fun or neutral topic not related to the legal case. Also, keeping in mind that attention spans vary by age, plan accordingly. Plan shorter and multiple appointments if possible, but also be prepared for the possibility of a long appointment if a child begins to open up and share sensitive information. Understand your minor client may need more than the average number of appointments that an adult might need in order for you to gather the same type of detailed information necessary to prepare applications for relief. Allow the child to take a break or end the legal appointment if needed. Children often will not suggest taking a break or ending an appointment with their legal advocate on their own, so advocates need to monitor how a child is doing. If the discussion is re-traumatizing the child (see § 11.3 about re-traumatization) or the child is too tired or uncomfortable during an interview, suggest a break. You can also change the subject and move to a different topic or task. You may also want to inquire and monitor whether the child is hungry or thirsty. Prepare the child or youth for immigration interviews or immigration court appearances, if applicable. Children and youth want and need to be prepared for what to expect throughout their case. Explain to them what may happen, what the immigration interview or courtroom setting will look like, if applicable, who will be there, and what their roles are. Although interviews are uncommon with applications for T nonimmigrant status, they could occur, and it is also possible a child might be applying for T nonimmigration status while in removal proceedings. If the child trafficking survivor is in removal proceedings or will have an immigration interview, use roleplay so that they can practice answering questions in front of you, acting as an immigration judge for example, the same way that they will in front of the actual judge. Prepare the child or youth for interviews with authorities and criminal or civil court appearances, if applicable. A trafficked child or youth may also be interviewed as a victimwitness by child welfare authorities, government or school officials, or by law enforcement. In these scenarios, even if they fall under the exception for reporting their case to law enforcement to qualify for a T visa, it is important to avoid generating negative, inaccurate or conflicting information with the authorities that could be used against them in their T nonimmigrant status application. If the child is uncomfortable with reporting all of the details of their case to the

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authorities, they should be advised to remain silent or ask to speak to their attorney in the matter separately rather than say something that is not true or minimize what happened to them to the authorities. If the child or youth has to appear in civil or criminal proceedings to testify, or work with the authorities or civil attorneys, try to help facilitate the child or youth’s familiarization with the courthouse, proceedings, and questions they will be asked. If the child or youth may be interviewed or required to appear in civil or criminal proceedings as a respondent or defendant in a delinquency or criminal proceeding, advise them to truthfully engage and talk to their public defender or their civil attorney for that proceeding. This may also help the child or youth mitigate grounds of inadmissibility for their T visa application. Be prepared to research what immigration consequences may arise from the outcomes of these proceedings. In all scenarios, advise the child to be careful about their use of social media, as it may be monitored and accessed by the authorities. Always end the meeting with something positive. No matter how much time you spend discussing sad or traumatic events with the child, save time to end with something lighter and more positive. Remind the child that you are here to support them. Praise children on their good judgment, strengths, and successful self-preservation. Follow up with the child and keep in regular contact to strengthen your relationship. Because short periods of time may seem like eternities for children, long periods between each visit with the child may also affect the attorney-client relationship. Staying in touch with a minor client on a regular basis will build trust and help the child open up. Consistent presence means a lot to the child, even when the child may seem distant. Setting up regularly scheduled check-ins in advance, even if there is little legal work to be done, can be helpful to keep in touch with and track youth who may be transient or in unstable living situations. § 11.3 Understanding Trauma in Children and Avoiding Re-Traumatization Often the trafficking is not the first or only trauma the youth has experienced. Many youth come from home countries where they have experienced gang violence, civil war, or extreme poverty. Many youth also had traumatic experiences migrating to the United States and faced violence or were the victims of crimes on their way to the United States. Once in the United States, for many, the violence and poverty may have continued. Youth who recently arrived may have debts that they owe to smugglers and fear the repercussions of that debt, including threats to their family back home. As such, immigration advocates working with these youth need to keep in mind the mental and physical health repercussions of such experiences. At the neurological level, the brains of children who have experienced trauma look different than the brains of children who have not experienced trauma. 5 Trauma alters neurodevelopment.

5

Christine Dobson, Presentation for Vera DUCS Legal Access Project, Interviewing Traumatized Children: Important Considerations (Feb. 2, 2010). Many reputable studies have shown that children who have suffered trauma lose the ability to distinguish between true threats and neutral events and to articulate their trauma. They may also have limited capacity to receive new information. For more information on the

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Traumatized children often have extraordinarily high resting heart rates in comparison to nontraumatized children. 6 In particular, early childhood trauma often makes children poor reporters of their stories. 7 As a result of the physical changes in brain development and heightened heart rate, traumatized children typically will have difficulty recounting their experiences and may have developed coping mechanisms, such as silence, to deal with the stress, thus making immigration advocates’ work with these children challenging. Traumatized children may also exhibit increased impulsivity and increased anxiety. They are more easily startled and may have sleep abnormalities.8 To the extent possible, immigration advocates should provide a list of accessible mental health care providers and services to minor clients and their guardians. Encourage them to use these services. While advocating for these youth will always require taking into account the past trauma they have experienced, it takes time and particular expertise to effectively address the trauma. Immigration advocates are simply not trained to serve as the primary resource for youth on mental health issues but can play a great role in connecting or encouraging youth to access mental health resources. Nonetheless, advocates will need to discuss the past trauma in order to establish the trafficking case. The ability of children and youth who have been traumatized to tell their stories varies greatly. Many traumatized children and youth are unable to construct and share their experience in a way that the legal system expects, 9 while others can provide detailed, accurate accounts of what happened. Mental health services can help a child avoid being re-traumatized by recounting their initial traumatic experience. Alternatively, if the child is unable to recount the details of their trauma or provides inconsistent information, a report from a mental health professional can provide crucial context to the court or USCIS officer about the reasons for the lack of detail or conflicting information. Minors experience psychological traumatization at a deeper level than many adults and therefore may find it even harder than adults to confide in individuals regarding painful and intimate events. 10 Those trafficked at a young age may have also missed certain developmental milestones that have gone undetected, and can have physical, cognitive, social, and emotional delays. Cognitive deficits and learning disabilities may have been present before they were trafficked or could be a result of their trafficking. Your client’s declaration is mandatory and will be the crux of your client’s eligibility for T nonimmigrant status. Nevertheless, consider how detailed the statement has to be. Interviewing way that trauma can affect children in removal proceedings, see M. Aryah Somers, Vera Institute, Children in Immigration Proceedings: Concepts of Capacity and Mental Competency (Nov. 2014). 6 M. Aryah Somers, Vera Institute, Children in Immigration Proceedings: Concepts of Capacity and Mental Competency (Nov. 2014). 7 Id. 8 Id. 9 H. Sadruddin, N. Walter & J. Hidalgo, Human Trafficking in the United States: Expanding Victim Protection Beyond Prosecution Witnesses, 16 STAN. L. & POL’Y REV. 379, 396-398 (2005). 10 Heather Clawson, Nicole Dutch, and Megan Cummings, Law Enforcement Response to Human Trafficking and the Implications for Victims: Current Practices and Lessons Learned, Nat’l Inst. of Justice Rep. No. 216547, 37 (2006).

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minors in particular can be re-traumatizing and triggering for the minor as well as for you as the interviewer. Submitting evidence beyond the client’s declaration is not required for the T nonimmigrant status application. Therefore, you should consider other evidence that can lift some of the burden off you and your client to provide a long, detailed declaration. Is there a parent, social worker, school counselor, therapist, or someone else who can provide a detailed statement supporting your client? Are there extensive medical records and psychological evaluations that support your case? Is there Continued Presence or a Form I-914 Supplement B that can serve as evidence for this case? Is there an existing criminal or civil complaint that can supplement the facts to a short declaration from a client? (See Chapter 3 for more information about Continued Presence and the Form I-914 Supplement B.) § 11.4 Legal and Ethical Issues in Representing Children The minor client. When representing children and youth, attorneys must keep in mind that the child is their client, not a parent or legal guardian. Attorneys owe the same duties of zealous advocacy and confidentiality to their minor clients as they do to adult clients, and they are ethically obligated to follow the directions of a minor client who has the capacity to effectively direct their own representation. Further, consistent with traditional ethical canons, attorneys must represent the child’s expressed interest, even if the attorney believes that the child’s expressed interest may not be consistent with their best interest. The attorney is also ethically obligated to have undivided loyalty to the child’s interests, even if they conflict with those of other family members, including parents. In interactions with a minor client’s family members, the attorney must make clear that the child is their client, they do not represent the family members, and they may be obligated to take actions on behalf of the minor client that are adverse to the family’s interests or desires or opposed by the client’s family members. Diminished capacity and very young clients. A child who is extremely young, nonverbal, extremely traumatized, or has a severe disability, may have diminished capacity to make decisions in their case and direct their own representation. In such cases, attorneys are still obligated to maintain as normal an attorney-client relationship as possible. However, sometimes that is not possible. If the attorney is concerned about the minor client’s capacity for decision-making, if safe, the child’s parents or other family members should be contacted to determine if a family member can direct representation in the best interest of the child. If that is not possible, it may be appropriate to seek appointment of a child advocate, the equivalent of a guardian ad litem in the immigration context pursuant to Model Rule 1.14(b). Mandatory reporting. Each state takes a different approach to mandatory reporting regarding the suspected or known harm, abuse, or neglect of a minor. Some state statutes specifically include attorneys as mandated reporters. Other statutes may include attorneys, but exempt them from reporting under certain circumstances, while some statutes may not say anything regarding mandatory reporting. It is important for attorneys to understand what mandatory reporting rules they may be subject to that may abrogate attorney-client privilege and the duty of confidentiality and explain these obligations to their client. Attorneys should also be aware that other advocates and professionals that work with the child may also be designated by statute and/or professional

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discipline as mandated reporters. Some examples of common mandatory reporters may include medical professionals, law enforcement, social workers, and school officials. When working with other mandatory reporters, it is important to assess how information-sharing may affect the client’s case and T nonimmigrant status, particularly the exception that exists for minors so that they do not have to cooperate or report their case to law enforcement. Disclosure of confidential records. Many states have state confidentiality provisions that prohibit the disclosure of information concerning youth in the child welfare system and juvenile justice system and provide no exceptions for disclosure of such information or the case file to those outside the system, including immigration attorneys and federal immigration authorities, without first obtaining a court order. Local court rules or other ordinances may provide additional confidentiality protections. 11 Be careful about what records are disclosed to USCIS, even if specifically requested in a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) and cite appropriate local and state laws that prohibit the disclosure of such records where feasible. 12 Admissions of drug use. Drug use is prevalent among teenagers, especially teenagers who have suffered trauma and may be using drugs to self-medicate. Most immigration forms ask about current drug abuse or addiction. The government also requires a medical exam before an individual obtains a green card. During these examinations, a doctor will take blood tests, and many drugs may show up in the blood even some time after use. Advocates should explain the law to their clients on this issue, including the disparities between some state laws legalizing marijuana, and federal immigration law, which continues to criminalize the use of marijuana. Explain the process including the medical examinations and the questions that the civil surgeon and USCIS officer may ask and explain the consequences of admissions to drug use (see Chapter 5 on grounds of inadmissibility as well as Chapter 6 and Chapter 7 on adjustment of status eligibility and process). For more information on grounds of inadmissibility and waivers in T visa cases, see Chapter 5. § 11.5 Special Agencies and Programs for Children or Youth Trafficking Survivors Local and state child welfare and protection agencies The child welfare system is responsible for responding to reports of child abuse and neglect, helping families solve problems caused by abuse and neglect, helping children be safe and secure, preventing separation of children from their families, helping families reunite with their children, ensuring adequate care while the child is in state custody, and finding another suitable permanent 11

For more information, see the American Bar Association’s website “Think Before You Plead: Juvenile Collateral Consequences in the United States,” available at http://www.beforeyouplea.com and other resources such as ILRC, “Confidentiality of Juvenile Records in California: Guidance for Immigration Practitioners in Light of California’s New Confidentiality Law,” April 2016, available at https://www.ilrc.org/sites/default/files/resources/confidentiality_of_juvenile_records_advisory_ilrc_4.21.16 _final.pdf. 12 For more information, see Chapter 17 on “Immigration Consequences of Juvenile Delinquency and Crime” of the ILRC’s manual, entitled Special Immigrant Juvenile Status and Other Immigration Options for Children and Youth available at https://www.ilrc.org/publications.

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home for children who cannot reunify. 13 While the primary responsibility for child welfare services rests with states, the federal government plays a major role in supporting states in the delivery of services through funding of programs tied to federal legislative mandates. 14 It may be important to educate local and state child welfare authorities about working with trafficked minors and youth. Some may read state statutes narrowly or misinterpret the legal definition of what constitutes child abuse and/or exploitation and may not understand how sex and/or labor trafficking of a child may constitute child abuse and/or exploitation under state law. Local and state child welfare and protection authorities are considered to be a law enforcement agency for the purposes of a T nonimmigrant status application. 15 However, if the T applicant was trafficked as a minor, they will be able to assert the law enforcement cooperation exception. However, whether or not to report a trafficked child’s case to local child welfare authorities may still depend on several factors, including balancing the attorney’s mandatory reporting and confidentiality obligations, the child’s best interests and expressed desires, and opening avenues to other immigration legal options such as Special Immigrant Juvenile Status (SIJS) or a U visa.16 An underlying premise in child welfare is that a child’s reunification with their family is the preferred goal where appropriate for children who enter the child welfare system. 17 This can cause tension for trafficked children in their immigration cases. For example, immigration advocates have reported situations where local and state child welfare agencies have not taken claims of forced labor, involuntary servitude, domestic servitude, peonage, or debt bondage of labor trafficked children by their own parents or guardians seriously. In some of these cases, advocates have reported hearing officials writing off labor trafficking as “house chores,” “appropriate contribution to the household,” and “contributory earning of money to pay off debts” to be appropriate and normal, and encouraging the trafficked child to remain under the custody of their parent or guardian who may be trafficking them. In these situations, it is important to help explain how state statutes and definitions of child abuse and exploitation include and encompass the legal definition of human trafficking. Demonstrating how the child’s forced labor or services or monetary contribution to the household exceed the norms of what is developmentally appropriate for that child and how the forced labor or services interfere with the ability of the child to live a normal life (e.g. attend school, keep up with schoolwork, engage in normal recreational activities, etc.) may be helpful. Advocates in both the immigration and child welfare systems should recognize that there is often overlap between their duties and goals. For example, legal status may be an important consideration for permanency and the safety of a trafficked child, and the best interest of the child may be a consideration in whether to pursue immigration legal relief at all. Team decision-making should be employed, 13

Jan McCarthy, et al., A Family’s Guide to the Child Welfare System, 11 (2005), http://gucchd.georgetown.edu/products/AFamilysGuide_English.pdf. 14 This information is taken from the Child Welfare Information Gateway, How the Child Welfare System Works (Feb. 2013), https://www.childwelfare.gov/pubs/factsheets/cpswork. 15 8 CFR § 214.11(a). 16 Child protective services are considered certifying agencies for U visas under 8 CFR § 214.14(a)(2). 17 Child Abuse Prevention and Treatment Act, P.L. 93-247 (1974), as amended by The CAPTA Reauthorization Act of 2010, P.L. 111-320.

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where child welfare, immigration advocates, and other stakeholders together can discuss the best outcomes in a trafficked child’s case. Office of Refugee Resettlement (ORR) The Office of Refugee Resettlement (ORR), a division of the U.S. Department of Health and Human Services (HHS), handles the custody of “unaccompanied” immigrant children. 18 ORR, in turn, created “DCS”—the Division of Children’s Services—to provide care and services to this population pending their release to a “sponsor,” or the conclusion of the immigration case. 19 Due to their vulnerability, “unaccompanied” immigrant children receive certain protections under U.S. law. However, DHS through ICE retains control and oversight of “accompanied” immigrant children. The immigration laws do not define the term “accompanied” children, but children arriving in the United States with a parent or guardian are considered accompanied. ORR’s philosophy towards minors is different than that of ICE—its mission is grounded in child welfare principles, so it is more concerned with the well-being of children and their particular vulnerabilities. Its work and programs should take into account the unique nature of each child’s situation in making placement and release decisions, although in recent years this has been called into question. 20 ORR must pursue reunification efforts for every child in its custody, with the goal of releasing children to family members or other close friends whenever possible. The agency is also mandated to develop a plan to ensure timely appointment of legal representation for children in its custody, 21 although in practice many children do not receive legal representation in their removal proceedings. It is not uncommon for children and youth who have been trafficked to come into the custody of ORR after being apprehended by Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE). If this is the case, be sure to request a copy of the client’s ORR file, as discussed above, to see what information about the trafficking the child may have already disclosed and to check for the existence of an HHS Eligibility Letter (see discussion below).

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“Unaccompanied alien child” (UAC) (also referred to as “unaccompanied child” or “unaccompanied minor”) is a technical term defined by law at 6 U.S.C. § 279(g) as a child who “(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” 19 Women’s Refugee Commission, Orrick Herrington and Sutcliffe, LLP, Halfway Home: Unaccompanied Children in Immigration Custody, p. 1 (Feb. 2009). 20 See, e.g., Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) (finding that all children in ORR custody have the right to request a Flores “bond” hearing before an immigration judge, which allows the child to advocate for placement in a less restrictive setting and to inspect the evidence that ORR may be using against the child to determine that they are dangerous). 21 Women’s Refugee Commission, Orrick Herrington and Sutcliffe, LLP, Halfway Home: Unaccompanied Children in Immigration Custody, p. 14 (Feb. 2009).

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Department of Health and Human Services (HHS) eligibility letters Trafficked immigrant minors under 18 years of age subjected to a severe form of trafficking may be able to receive federal benefits. 22 A report indicated that trafficked children are more difficult to engage than the average refugee child, and that trafficked children can often take up to a year or more to “settle in” and trust the URM program. 23 Thus, the Trafficking Victims Protection Reauthorization Act of 2008 requires that those who encounter a “potential” trafficked minor have to report this to HHS within 24 hours and provides for interim assistance for minors who “may have been subjected to a severe form of trafficking in persons.” 24 By including the word and category of “potential” trafficked minors, Congress recognized the difficulty of conclusively ascertaining whether a minor is a trafficking survivor and the urgency for a minor to access federally funded services regardless of conclusive identification as a trafficking survivor. In order to receive benefits on the basis of being a minor trafficking survivor, the person must have an Eligibility Letter or Interim Assistance Letter from HHS. An individual may request these letters from HHS on behalf of a minor when credible information indicates the minor may be a trafficking survivor. HHS issues an Eligibility Letter to assist a foreign child trafficking survivor to become eligible for benefits and services without regard to the child’s immigration status. HHS issues an Interim Assistance Letter to a foreign child who may have been subjected to trafficking to make the child eligible to receive benefits and services for a 90-day period. After issuing an Interim Assistance Letter, HHS will consult with the U.S. Department of Justice (DOJ), DHS, and NGOs with expertise in trafficking before determining the child’s continued eligibility as a survivor of trafficking. Submitting a Request for Assistance for Child Victims of Human Trafficking form 25 to HHS’ Office on Trafficking in Persons (OTIP) can facilitate a determination of the child’s eligibility for assistance. You can submit requests by e-mail to [email protected]. You can also contact an OTIP Child Protection Specialist at (202) 205-4582. PRACTICE POINTER: Eligibility letter considerations. When beginning work on a child’s case, always determine whether there is an Eligibility Letter that may have been requested and obtained for the child while they were in ORR custody. If a child has an Eligibility Letter, it is important to assess the child’s case for trafficking, given that both a service provider and HHS indicated indicia of trafficking in the case. If you are working with other social service providers and case managers on a case in which no Eligibility Letter has been issued, coordinate who will be submitting a request for an Eligibility Letter and take care to avoid inconsistent information or information that may later be considered incriminating for the child in the Request for Assistance for an Eligibility Letter. Advocates have reported that OTIP has increasingly asked detailed 22

Carmel Clay-Thompson, State Letter #01-13: The Trafficking Victims Protection Act of 2000, HHS, Office of Refugee Resettlement (May 3, 2001), http://www.acf.hhs.gov/programs/orr/resource/state-letter01-13. 23 Mindy Loiselle et al., Care for Trafficked Children, U.S. Conference of Catholic Bishops 4 (Apr. 2006). 24 William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 212(a)(2), 122 Stat. 5045 (2008) (codified as amended at 22 USC § 7105) (emphasis added). 25 You can access this form at HHS, Office on Trafficking in Persons, Assistance for Child Victims of Human Trafficking, https://www.acf.hhs.gov/sites/default/files/otip/hhs_request_for_assistance_2018.pdf. For instructions on completing the form, see https://www.acf.hhs.gov/otip/news/newrfa.

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questions about the facts of the case that may not be in the child’s best interest to provide yet or have yet to be fully fleshed out and confirmed just to receive an Interim Assistance Letter. Information on this form will be sent to federal law enforcement in both the DOJ and DHS, made available to USCIS, or somehow make its way to criminal, civil, and/or immigration court. If your client has never had any interaction with law enforcement, you may want to consider and weigh the benefits and drawbacks with the child and any caseworkers of applying for an Interim Assistance Letter or Eligibility Letter as it may open the door to criminal law enforcement investigation and prosecution. Unaccompanied Refugee Minors (URM) program A trafficked minor with an Eligibility Letter who has no available parent or legal guardian in the United States is eligible for ORR’s Unaccompanied Refugee Minors (URM) program. The minors are detained in facilities and are eventually placed in licensed foster homes or other care settings. An appropriate court awards legal responsibility to the state, county, or private agency providing services, to act in place of the child’s unavailable parents. Minors in the URM program receive the full range of services available to other foster children in the state, as well as special services to help them adapt to life in the United States and recover from their trafficking experience. Placement options are usually limited due to space, so if it is an option, refer your client to the URM program as soon as possible. Safe reunification with parents or other appropriate relatives is encouraged. Should HHS deny your client an Eligibility Letter and prevent your client’s placement into the URM program, you may file an appeal advocating that the aim of the HHS determination is not to decide if the minor is actually a survivor of a severe form of trafficking, but to provide interim benefits and protection that will help service providers identify whether or not the minor is a survivor of a severe form of trafficking. If you find yourself in this situation, please consult trafficking experts in the area for more information about the process. You will want to balance the resources spent on this appeal with the time you could spend to thoroughly complete and file a T nonimmigrant status application with accurate information for your client, as an approval of T nonimmigrant status will generate benefits as well.

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CHAPTER 12 PRACTICAL CLIENT CONSIDERATIONS This chapter includes:

§ 12.8

Housing and Shelters .......................................................................................... 183 Case Management .............................................................................................. 185 Health Services ................................................................................................... 186 Government Agencies ........................................................................................ 187 Working with Interpreters .................................................................................. 188 Funders ............................................................................................................... 190 Keeping and Sharing Confidential Information Professional Obligations and Privileged Relationships .......................................................... 191 Civil Cases.......................................................................................................... 197

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§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7

When working on a trafficking case, you will often have to work with a number of other agencies and individuals on your client’s case. This chapter will briefly discuss some of the other obstacles your client may face and what you need to know about some of the other agencies that may be involved in helping you address these challenges. § 12.1 Housing and Shelters If your client is not already in a safe living situation, they may need to find appropriate shelter. It may be helpful for you to know some of the options as well as the benefits and challenges that may come with the housing options to best support your client. Emergency shelters, especially domestic violence shelters, operate under rigid rules. Confidentiality of the shelter is essential for the safety and security of all of its residents. The shelter managers will need to weigh obligations to protect the residents with the risks of housing a survivor of human trafficking. If the survivor chooses to maintain contact with the trafficker or re-establishes contact with the trafficker, the shelter may refuse to continue to house the survivor. Besides emergency shelters, you may also want to build contacts and establish relationships with other housing resources, such as transitional housing providers, especially since shelter and housing is an essential need that the survivor may have for both the short and long-term. Example: In the San Francisco Bay Area, housing is costly, but many survivors want to remain in the area because of the ethnic community or resources that exist as well as its proximity to the survivor’s primary support network and advocates. One way advocates in San Francisco have dealt with this dynamic is to reach out to “non-traditional” shelter options, such as religious organizations, that have invaluable residential space available in housing affiliated with their organizations, such as the Salvation Army, a monastery or mother-house, and are interested in helping survivors of human trafficking who may not need 24-hour support and are ready for a more independent living space. Specific terms of agreement for the provision of such housing were reached in order to ensure that the

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unique nature of a trafficking case would be taken into account by both the survivor and the organizations providing the shelter, such as the need for confidentiality and additional security measures. Also make sure to speak to religiously affiliated organizations to ensure that your client is able to maintain religious freedom and is not pressured into partaking in the religious organization’s religious activities.

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Shelter providers are often run by service providers that provide case management and other social services. While run by the service providers, the shelters are in some ways distinct entities. It may be possible for the survivor to have a general case manager, as well as a shelter case manager. In this case, it is important that the case managers coordinate their work on behalf of the survivor and make very clear the parameters and role that each will play—who is responsible for exactly which tasks and who will be accountable for other needs. This needs to be established at the outset between the case managers, and the survivor’s legal advocate should be informed and updated as the case proceeds and if the lines that are drawn change over time. PRACTICE POINTER: Finding housing for adult men may be more challenging. Many domestic violence shelters only serve women and their minor children. While there are a few shelters that are starting to serve men, the number of beds available is much smaller than the need. Some shelters and service providers will put men in hotels instead of housing them at their shelter. Hotels may also be an option for women with adult sons until transitional housing can be secured. In some areas, service providers and advocates are looking at ways to partner with local rapid re-housing efforts to support the homeless population for long term solutions. Depending on the resources near you, identifying potential partnerships may be key in being able to provide housing services to men and women with adult sons. Shelters often have limited bed space and may pressure you to obtain status for your client quickly in order to transition the survivor into more permanent housing. In advance of using shelter space, you may want to work with shelter providers to set aside a certain amount of bed space for longer occupancy by survivors of trafficking. If this is not possible, it may be possible to arrange a series of shelters that can house the survivor over a period of time. Being clear about the amount of time your office needs to prepare immigration applications, as well as the current processing times for USCIS, will let the service providers plan ahead. Contact with your client may be more circuitous while your client is in a shelter. Written communication may need to be sent to the agency’s main office address. Phone calls may need to go through the shelter office or through the case manager. Remember that as with law enforcement and the general public, you will not be provided with information about the location of the shelter. For safety reasons or for reasons of space, your client may be moved to a shelter out of the immediate geographical area. At that point, your office will need to decide if your continued representation is possible. If the case manager can transport your client to your office for appointments or if your office has the funds to travel to the survivor’s new location, then you may want to retain the case. In the case of some survivors in high-risk situations or minors in the Unaccompanied Refugee Minor (URM) program, survivors may be moved across the United States. In those cases, it makes sense to find a community-based legal services or law school clinical program in the new location to take the case.

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§ 12.2 Case Management

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The primary responsibility of a case manager is to ensure the welfare of the survivor. As such, the case manager is frequently overwhelmed, since the survivor may need many services simultaneously and may be very dependent on the case manager, at least initially. While you may need a case manager’s assistance in making your client available for appointments, for transportation of your client to your office, and for assistance in obtaining documents related to your client (e.g., medical reports, counseling reports, etc.), you may find that your legal services are not the most urgent from the perspective of the case manager. Your requests may need to wait, depending on other or more immediate needs of the survivor. The case manager is ultimately concerned about the safety of the survivor, about their mental health, and about assisting them to stabilize their life. Thus, the deadlines of the case manager may not coincide with those of the legal services representative. The priorities of the case manager can even conflict with the priorities of the legal advocate. Case managers and legal advocates should have a conversation to allow case managers to understand how every trafficking case can be different, and that the timing, needs, and complications of every case are different. The case manager should not offer the client legal advice or comparisons to other cases the case manager has worked on, but instead can suggest to the client that these questions be written down and raised with the legal advocate at a future meeting or over the phone. This can better ensure that legally accurate advice is provided and that the client’s concerns are being addressed in an individualized and specific way. Since the case manager is focused on meeting the physical and mental health needs of the survivor, it will be the legal advocate’s responsibility to communicate with the case manager about legal filing deadlines. The case manager and you will have to work at making appointments with your client. Remember that your client may also have appointments with social services, medical, dental, and mental health providers, classes and job training programs, and other activities. At least initially, the case manager is coordinating all of these events that are pulling your client in many directions at once. PRACTICE POINTER: Case managers and public benefits. The case manager may pressure you to complete immigration paperwork quickly so that the survivor can be certified to receive federal public benefits. Once your client is issued Continued Presence by a law enforcement agency and/or a T visa by USCIS, the information is sent to Department of Health and Human Services (DHHS) where an eligibility letter (certification) is issued. With this letter, a survivor of human trafficking may apply for federal public benefits. These benefits allow the survivor to transition into a more stable living situation; thus, the case manager may pressure you to complete and file the T visa application. For example, in California, state public benefits which are designed to bridge the time from identification to certification of a trafficking victim only last for a set number of months, so again as time progresses, the case manager will be contacting you frequently to determine the status of the visa application and certification. Specifically in California, you will also want to provide a short letter for the case manager for them to help your client obtain pre-filing T visa benefits and to maintain benefits over time. See Appendix NN: Sample Letter to Social Services. The mental health of the survivor is of great importance to the case manager. The interviews you will need to conduct with your client can unintentionally force your client to relive traumatic

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experiences and can be counterproductive to efforts to address mental health issues of survivors. The case manager will want to protect the survivor from frequent and painful interviews. If these interviews are essential, the case manager can increase mental health support for survivors during this process. One way to deal with this situation is to establish a system of informing both your client and the case manager in advance of any appointments that may require the survivor to recount aspects of the trafficking. If any interviews are required, such as interviews with law enforcement, you can prepare your client mentally for these interviews by providing as much information in advance about the process, types of questions, and intent. Also keeping the case manager advised of such appointments and interviews allows the case manager to check-in before and after each one in order to provide additional support to the survivor as needed. For case managers who work with domestic violence agencies, it is important to note that many do not maintain files on their clients. This practice is designed to protect the agency and survivors from subpoenas and request for production of documents. In your communications with case managers, you should retain the paper trail. Any important documents should be kept in your files. As the legal representative you will need to be the one to thoroughly screen the survivor for eligibility, since you are protected by attorney-client privilege. The case manager should only ask basic preliminary questions and then refer any potential survivor to you to screen. As a rule, case managers should not be present during the interviews you conduct with your clients, unless you have an agency agreement that states the case manager is an agent of your office and thus protected by your confidentiality. [See discussion of agency agreements later.] In the San Francisco Bay Area, legal representatives have a practice of informing the case managers in advance of the approximate length of the client appointment. The case managers generally bring the survivor to the attorney’s office, at least initially until the survivor is comfortable transporting herself to the office. The case manager usually leaves or brings work and is given a separate office space during the interview. In this same vein, it is generally not a good practice to use the case manager as an interpreter. Interpreters from a language bank or in-house interpreters are preferable. It is also important for legal advocates to be in touch with case managers to let them know when a particular interview has wreaked emotional havoc on the client and that the client may need counseling and support immediately afterwards. The case manager may raise concerns with you about any attorney’s fees collected from civil awards. Case managers may also seek your assistance finding legal representation for civil or criminal cases involving the survivor. If your office does not provide these services, it may be helpful to retain a list of referrals. Attorneys can also set up a network of referrals by developing relationships with service providers in other legal practice areas so that you can make “warm hand-offs.” Even if your office does not provide legal services other than immigration legal services, you should be aware of statutes of limitations for these claims, and make sure the case manager and survivor are aware of these deadlines. Again, remember the case manager’s role is to advocate for the safety and welfare of the survivor. § 12.3 Health Services Medical, dental, and mental health services are frequently required immediately upon discovery of a human trafficking survivor. These services may be provided by nonprofit agencies, community health centers, or through pro bono medical providers. Medical and dental services required may consist of emergency treatment but can also involve extensive procedures. If the 186

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health conditions of the survivor have gone untreated for months or years, routine services may require more invasive and extended care. For mental health services, sexual assault and domestic violence agencies frequently offer peer counseling and support groups. A survivor who exhibits symptoms of post-traumatic stress disorder (PTSD) or severe mental health issues will need more formal therapy, preferably from a psychologist or therapist trained to work with trauma survivors. A good starting point for creating mental health referrals are centers for survivors of torture.

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When you communicate with medical and mental health providers, remember they are bound by patient/doctor or patient/therapist confidentiality requirements. They may need written consent from your client to discuss your client’s medical or mental health with you. Also, medical facilities must comply with the Health Insurance Portability and Accountability Act (HIPAA) requirements to release medical records or documents to you. In cases where you know you need to request documents or want to speak to medical or mental health providers, calculate enough time in advance of when you need the documents or information in light of the busy schedules of the service provider. If you need a mental health assessment for an application, again you might want to turn to centers for survivors of torture or therapists familiar with documenting trauma for political asylum cases. These professionals will already be familiar with the immigration legal process, as well as the style of reports required. WARNING: Review mental health assessments carefully before submitting them with a T visa application. If you do need a mental health assessment for an application, be sure to carefully review the assessment before you include it in the application. Make sure it does not trigger inadmissibility grounds that may make the survivor ineligible for a T visa. § 12.4 Government Agencies Government agencies that might be involved in a trafficking case include Child Protective Services (CPS), Social Services, Wage and Hour Division, and more. These entities are often very large with their own unique internal culture, structure, and language. As discussed above, frequently the procedures for handling cases involve transfer of files from worker to worker. The extent of training and knowledge of human trafficking will differ from worker to worker, and from department to department. When working with government entities, you may want to establish a liaison with a manager or supervisor, who can intercede when a worker is not familiar with human trafficking, who can establish protocols and train the line workers, and who can authorize internal reorganization or shifts in policy. Each government agency has its own mandate and priorities. CPS is required to act in the “best interest of the child.” Sometimes this means separating children from parents who have been trafficked into the United States. You may feel that such separation would destroy the family and severely harm one of the survivors for the safety of another. You may have to advocate for your client and their need to remain united with their children; however, general advocacy other than legal representation would be handled by the case manager.

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While government agencies are helpful reporters of human trafficking given the large number of people they serve, they can be slow and cumbersome when accessing their services. For this reason, if you need any document or information from government agencies, you should plan in advance. § 12.5 Working with Interpreters

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Interpreters are essential members of any team working on human trafficking cases of nonEnglish speaking survivors. Interpreters should be carefully selected, because without training the interpreter may not understand the importance of interpreting everything the survivor says. Sometimes untrained interpreters will summarize, which will mean that you do not receive important information but only those facts the interpreter chose to include. More significantly, untrained interpreters may consciously or unconsciously inflect their interpretation of your questions with tone or words that insinuate judgment on their part or yours about the character of the survivor because of the trafficking situation. As in other situations, it is preferable to avoid using family and friends as interpreters. In addition to the concerns that may arise with using untrained interpreters, when using family and friends there may be additional concerns. Some family and friends may have no idea of the extent of the harm or shame the survivor endured as part of the trafficking. There are family and friends who feel they “know what’s best” or otherwise need to control the situation and speak for the survivor. Family and friends may understand the language and culture but may filter the information. Additionally, it is not uncommon that the trafficker is a family member; thus, it would be dangerous for you to involve the family until you know more of the trafficking circumstances and the family dynamics. There are also other members of the community who may want to assist in interpreting and providing cultural context such as neighbors, good samaritans, and religious leaders. As with any untrained interpreter, there is a good possibility that these individuals will summarize the information, control the interview, and convey to the survivor some form of judgment of their situation. In addition, depending on the relationship these volunteer interpreters have with the survivor or community, the survivor may not want to disclose details to you in front of persons they or their family will see frequently in the future. Furthermore, the interests and motivations of these interpreters may conflict with the goals and wishes of the survivor. With religious leaders there are the additional concerns that the religious leader knows the trafficker and that there may be a power dynamic between survivor and the religious leader. In small ethnic communities an interpreter may know the trafficker or have ties to friends or family of the trafficker. Seeking interpreters from close-knit or small communities may be disastrous and may put the survivor at risk. If the interpreter pool is small, then the choices are limited. In this case, you may have to use trained interpreters from that community and it will be important that you remind interpreters about confidentiality. Another option may be a phone or tele-interpreting service. There are a number of businesses that provide 24-hour access to interpreters in over 200 languages. While tele-interpreting services may be a great option, especially for less commonly spoken languages, there are a number of things you will want to consider before deciding to work with a tele-interpreter. As with in-person interpreters, you will want to make sure your tele-interpreters are trained and prepared for the

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types of interviews you may be conducting. You will also want to practice using this service. Working through an interpreter can be awkward and challenging at first. This is especially true with a tele-interpreter. The more comfortable you are using this service, the more seamless the interpretation services will be during your interview with your client.

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For some languages, it may be difficult to find an interpreter who can interpret directly into English. This is an increasing concern as the number of indigenous language speakers from countries such as Guatemala and Mexico rises. With growing numbers of people who speak Mam, Quiché, Zapotec, Mixtec, and other indigenous languages, you may be forced to rely on a team of interpreters to engage in indirect or relay interpreting. Example: Your client only speaks Zapotec, and you only speak English. You need an interpreter who can interpret between Zapotec and English. However, you are unable to find someone who speaks both Zapotec and English. Instead, you will have to rely on a team of interpreters for relay or indirect interpretation. You find one interpreter who speaks Zapotec and Spanish and one interpreter who speaks Spanish and English. Together, they can help you communicate with your Zapotec-speaking client. If working with a deaf client, you will need an American Sign Language (ASL) interpreter. However, if your client is not literate and/or knows little or no American Sign Language (ASL), you may need a team of interpreters to accurately communicate with your client. This team would include a Certified Deaf Interpreter in the sign language your client speaks as well as an ASL interpreter. You could use both interpreters to engage in indirect or relay interpreting, which will allow you to communicate with your client. Thus, ideally you will use trained interpreters from your own office or another nonprofit. Welltrained interpreters can also help guide you with nonverbal cues, colloquialisms, religious, ethnic, and cultural insights that may not be obvious. Example: During an interview with her attorney, Aisha kept coming back to an incident where her employer wanted to search her purse. She kept repeating how scared she was. After almost two hours, you do not understand why this incident was so terrifying for Aisha. While Aisha is taking a break, the interpreter suggests you ask Aisha about the implication and consequences of having your purse searched. When Aisha returns, you ask her what it means to have your purse searched. She explains that in her home country, all it takes for a domestic servant to be harshly punished is for the employer to ask to search your purse. Aisha’s employer was from the same country and was able to use this cultural knowledge to threaten Aisha. Depending on the survivor’s language and availability of well-trained interpreters, you may have to rely on different interpreters or untrained ones. If that is the case, be sure you discuss legal interpreting requirements with untrained interpreters in advance of the meeting where they will interpret for clients. Ultimately, the main relationship to foster is between the legal advocate, case manager, and the client. While maintaining a consistent interpreter is important and helpful, the relationships of trust between the client and the legal advocate and case manager should survive a change of interpreter.

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PRACTICE POINTER: Working with interpreters and protecting confidentiality. If possible, do not use the same interpreter for the law enforcement interview as you do for your work. Law enforcement interpreters are subject to subpoena during criminal proceedings, and you want to insulate your interpreters so as not to breach confidentiality. Similarly, you will also want to avoid having case managers interpret. Case managers, like law enforcement interpreters, are also subject to subpoena during criminal proceedings. If a case manager interprets, confidentiality between you and your client may be breached if the case manager is subpoenaed.

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§ 12.6 Funders Funders are the lifeblood of nonprofit agencies handling human trafficking cases. Funders have a responsibility to ensure that their money is well spent and meets the criteria agreed upon. As such, funders sometimes set specific parameters for service and require concrete goals, project timelines, and evaluation methods. While human trafficking is prevalent, it remains hidden. To set goals for funders is difficult because discovery of survivors may depend on successful law enforcement actions or non-law enforcement agency identification of human trafficking when encountered. With a large law enforcement actions, 30 or more survivors could need immediate service, and then survivors might not surface for another four or five months. Given this uncertainty, it is important to work with funders to build flexibility into the goals and task timelines. For long term funders, it is also important to let them know that recent increases in Requests for Evidence, denials, and subsequent appeals mean that cases are currently taking longer than in the past. You want funders to have realistic expectations about what is feasible to accomplish during the funding period. As for evaluation, you will need to create methods for funders to audit your program without breaching confidentiality. Funders may feel comfortable with database reports that do not reveal personal information. Tracking with unique client numbers will assist funders, as well as the outside team members working on the case. It ensures the team can refer to the number without discussing personal identifying information in the context of broader coalition or task force discussions on human trafficking trends in the service region. When establishing or developing your agency’s anti-trafficking program, you should discuss whose responsibility it will be to maintain data and provide reports for purposes of the funders, such as grant reports or responding to evaluation questions. This can be a very time-consuming task and ideally should not be placed upon the shoulders of the same person or people who are also providing services to survivors. However, the reality is that many times, the service provider is the one who has the most substantive information by virtue of being the one who is at the forefront of each case and who has the most contact with survivors and collaborative partners. Moreover, there may be inadequate agency funding to support a separate position within the agency that will be in charge of these responsibilities. Regardless, it is important that you take the time and effort to discuss this topic before proceeding so that the entire staff is aware and prepared for the additional administrative work that may ensue from funding-supported trafficking work.

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§ 12.7 Keeping and Sharing Confidential Information Professional Obligations and Privileged Relationships

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Communications (both written and verbal) between a client and their attorney are privileged and should be treated as confidential. This privilege is strong and can only be waived in very limited circumstances. This confidentiality means you are unable to even acknowledge that someone is your client. It is possible for your client to waive that privilege if they do so voluntarily, in writing, and with an understanding of what that waiver entails. A client can provide a partial waiver of that privilege by stating in writing the scope of information that may be revealed. And confidentiality may be breached by the presence of a third party in a meeting between the attorney and their client. Given the ethical obligation of an attorney to protect their client’s identity and privileged communication, the concept of working with a team that includes non-attorneys can pose serious challenges. While communication between and among team members may benefit the survivor, the attorney-client privilege is absolute and does not relax because it might be in the best interest of the survivor to communicate information among team members. One way to address this is to seek a limited waiver from your client which allows you to disclose your representation, as well as limited information, with the team. See Appendix D: Sample Release of Information Form. Another way to avoid breaching client confidentiality is to create agency agreements, which bring members of the team into the attorney’s circle of confidentiality. This may work for case managers and health providers, but it will not work with law enforcement partners because of their own requirements. Caseworker privilege If your team includes domestic violence or sexual assault case managers, you will find they are also bound by confidentiality obligations. These obligations allow them to protect the identity of their clients. Confidentiality provisions for case managers are typically less restrictive and not as extensive as those for attorneys. Nevertheless, these provisions will restrict communications with case managers, unless waivers or agency agreements are in place. The limitations and scope of these provisions are state-specific, and you should familiarize yourself with these provisions. Example: In 2005 California passed the California Trafficking Victims Protection Act. From this law, sections were added to the California Evidence Code § 1038.2(b), which defines two types of human trafficking caseworkers. The first type of caseworker is an employee or volunteer working with an organization that meets all the basic services required for domestic violence shelter-based programs. The second type of caseworker is an employee or volunteer working with an organization that provides victim and witness assistance to human trafficking victims. This privilege only covers confidential communications between the client and the caseworker. The human trafficking victimcaseworker privilege in California has not been interpreted by the court or challenged. Unlike the attorney-client privilege, the human trafficking victim-caseworker privilege is not absolute, and California Evidence Code § 1038.1(a) states that a court may compel disclosure if the court determines that the value of the confidential information in determining the case’s outcome is greater than fostering the victim’s relationship with their caseworker. This means that although it is significant that there is a trafficking

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victim-caseworker privilege, it is not an absolute privilege and still may be pierced. It is still necessary to provide precautions to protect the caseworkers with too much unnecessary information that may be subpoenaed and forcibly obtained from the caseworker.

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Privilege for human trafficking caseworkers and their clients also remains without firm and concrete interpretation and guidance so far in the federal courts. Although federal courts have not yet considered a federal privilege for caseworkers in trafficking cases, Rule 501 of the Federal Rules of Evidence does not prevent continued recognition of new privileges and privileges for relationships that are similar to the trafficking counselor-survivor relationship that have been recognized by states. The criteria by which federal courts assess whether a potential new privilege exists includes: the public’s interest in certain relationships, the importance of confidentiality to those relationships, federal policies weighing against extending a privilege; and policy decisions of states regarding extension of the privilege. While at least twenty-nine states to date have adopted some form of protection for survivors of domestic violence and sexual assault, only two states to date explicitly mention a human trafficking caseworker privilege. Because the trafficking caseworker privilege is based upon the premise of a domestic violence and sexual assault caseworker privilege and many of the caseworkers who work with trafficking survivors are employees and volunteers at domestic violence and sexual assault service agencies, one should argue the analogous relationship. Doctor/patient privilege Doctors are also bound by ethical duties to protect information of their clients. The Health Insurance Portability and Accountability Act (HIPAA) sets out strict requirements for when and how medical information may be released. Doctors and hospitals are required to seek specific waivers from their patients to release information. Thus, when working with a survivor who may have received medical treatment, it is useful to complete the HIPAA release forms with your client in advance. This way you can comply with the requirements necessary to assist medical providers in communicating with you about your client and their medical condition and treatment. Therapist/patient privilege Therapists have obligations to protect patient confidentiality, again with certain exceptions. If your client needs mental health treatment or an assessment, it is beneficial to work with the therapist to find out what types of waivers they need. Then you can speak with your client and seek permission to prepare and have in place signed waivers. Clergy/parishioner privilege While not as stringent as medical, therapist, or attorney privileges, clergy operate under strictures about revealing parishioner confidences. If a clergy is included in the team serving your client, you may want to speak to your client about how much they would want their clergy to know and reveal. Remember, except for attorneys, most of the team members, including clergy and case managers can be subject to subpoenas and forced to testify in criminal proceedings by the traffickers. Thus, while the client may be fine with open communication between and among their team members, restrictions on sharing communication may still be desirable.

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Confidentiality/agency agreements One way to address confidentiality within a multidisciplinary team setting is to limit information sharing to generic information, such as language capacity, gender, family status, type of trafficking, and identifiable needs. Another approach is to share limited information on a need-toknow basis, so that each agency for whom the survivor is a client, would decide which of the partners to involve in the case and what information is necessary to share to ensure the partners can prepare for providing the necessary services.

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Outside of the immediate team investigating the case and serving the survivor, discussions regarding trafficking cases with a wider coalition or task force should be restricted to nonidentifiable information. Tracking human trafficking trends and clients served across agencies can rely on non-identifiable information and/or a unique survivor number. Another option for avoiding breach of confidentiality and promoting fuller disclosure of information is the creation of agency agreements. These agreements expand the circle of confidentiality attached to the attorney-client relationship out to not only experts and consultants on the case but also to team members of the human trafficking case. Note that these agreements would not apply to law enforcement since these agencies are bound by Constitutional protections established for defendants in criminal proceedings. But for the purposes of sharing information among service providers, agency agreements can enhance communication without violating confidentiality. Written agreements can also help designate clearly who is an interpreter for legal work on a case and who is a case worker. As mentioned earlier in this chapter, due to confidentiality and privilege issues, case workers should not also operate as legal interpreters. If certain case workers are asked to be legal interpreters for a case, they should not come from the same agency as a case worker, and agreements should outline these delineations of duties. See Appendix OO: Sample Interpreter Confidentiality Agreement. In cases where you are working with other attorneys from other agencies who are also representing your client, it may be helpful to sign either co-counsel or common interest privilege and confidentiality agreements to protect attorney-client and work-product privileges. See Appendix PP: Sample Common-Interest Agreement. Example: Tanya’s case was complicated. It was so complicated that she had four attorneys: one family law attorney to help her obtain a restraining order and divorce her trafficker; one immigration attorney to help her with her immigration status; and two attorneys helping her file her civil claims against her trafficker. Tanya also worked with a criminal assistant district attorney as a victim witness in a criminal case against her trafficker. Although her family law, immigration, and civil attorneys were cognizant of the limitations of information they could share with the prosecutor due to the prosecutor’s exculpatory duty to provide evidence to the trafficker, they decided that they needed to figure out the best way to share information amongst themselves so that the numerous declarations and documents they were filing in different proceedings were consistent and supported Tanya’s case. Tanya’s immigration attorney also decided that she wanted to assist on the civil case. Ultimately, Tanya’s family law attorney signed a commoninterest agreement to share information and protect attorney-client and work-product

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privileged and confidential information with Tanya’s immigration and civil attorneys. Tanya’s immigration attorney and civil attorneys signed a common-interest agreement for Tanya’s immigration matters, but Tanya’s immigration attorney also proceeded to sign a co-counsel agreement with Tanya’s civil attorneys. Verbal versus written communication

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In cases where agencies are bound to provide any exculpatory information to the opposing party, it makes sense to limit written communication to that which must be memorialized, e.g., reporting of a trafficking incident to law enforcement which can constitute secondary evidence of cooperation with law enforcement. In these cases, a general rule is to keep what you say to a minimum. Outside of these few exceptions, verbal communication through phone or in-person is preferable. While law enforcement may still be obligated to provide a summary of conversations, the information may carry less weight. It is important for caseworkers, law enforcement, and attorneys to never email, text, or write down substantive information about a client’s case that may come back to be used against the client in a criminal or civil case. All of this information may be sought and obtained by the defendant. Preserving confidentiality is your ethical duty, but it also makes practical sense. Human trafficking survivors have frequently lost control of their lives and have had their trust violated. By protecting communications with your client and assuring them that they will decide if and when information (other than the basic, non-identifiable information) is shared, you return to your client a measure of control over their life and you begin to build trust. However, sharing of limited information is crucial for smooth team operations, especially when various agencies are required to respond rapidly to various scenarios. If some information is shared among the team members, it avoids the necessity of the survivor repeating basic information to each agency that assists her. In some cases limited information sharing might be able to reduce re-traumatization of your client. Confidentiality and privilege issues with law enforcement As mentioned previously, law enforcement agencies (LEAs) are bound by different rules when it comes to discovery and confidentiality. While reports with local law enforcement officers usually yield written police reports that you can assist the client with obtaining, federal law enforcement reports are generally less available. LEAs will zealously guard information during an ongoing investigation to protect evidence and the safety of their officers. However, under most circumstances LEAs are required to turn copies of materials, especially exculpatory evidence, over to the defense in a criminal matter. Sometimes the defense requests some materials. Other times in fairness to the opposing party, the prosecutor will provide the defense with copies of evidence. The materials can include police or FBI reports, correspondence with other agencies (including with the survivor’s attorney), documents gathered as evidence in the case, and materials prepared by the prosecutor or investigator, such as the immigration form I-914 Supplement B. The prosecutor can ask permission from the judge not to disclose certain information, such as the survivor’s address and contact information. It is up to the judge to decide whether to agree to that request. The prosecutor can also file documents with your client’s name under seal, including restitution order requests. Remember the prosecutor represents the government (federal or local), not the survivor. The survivor is an important witness to the

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prosecutor but not his client. Thus, it is up to the immigration attorney or civil attorney to advocate for the interests of the survivor.

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However, it is much harder to prevent the disclosure of other witnesses to the defense, including witnesses that are friendly or positively disposed to the victim. Prosecutors are also mandated to provide the names and information of all potential witnesses to a case, including witnesses that are not your client. Some methods to protect your client and these other witnesses from defense tactics include talking to the prosecutor to see the timing of the release of witness names to the defense. Often, defense attorneys will hire investigators and call witnesses in the case. Sometimes the defense attorneys and investigators will make vague, alluding remarks, confusing the victimwitnesses about who they are, prompting conversation. While this is the defendant’s right to access other witnesses in the case, as the victim-witness’ attorney, you can counsel your client and witnesses supporting your client about the potential phone call they may receive from the defense team, and their right to not have to talk to them or respond to them. You can also request the prosecutor alert you when they are turning over the other witness names and information so that you can also reach out to your client and the other witnesses to warn them of impending calls from the defense. Given the requirements on the part of law enforcement to disclose information and provide copies of material to the defense, civil and administrative representatives of the survivor need to make conscious decisions regarding what material to provide to the LEA, and to what extent to record conversations (via email or snail mail or text) with LEA agents or attorneys. Immigration attorneys are required to report incidences of human trafficking that are not already known to an LEA for purposes of seeking a T or U visa; however, the reports can be crafted to avoid disclosure of specific details that would fall under attorney-client privilege. While important to document in writing that a report has been made to law enforcement, it is best to leave out complicated, substantive details that may be inaccurate or refuted later, creating further impeachment issues and inconsistent information for a criminal or civil case. Immigration attorneys must also request a Form I-914 Supplement B from the investigating or prosecuting LEA; however, again the request can be simple and without extensive details. The difficult part of this situation is that secondary evidence of reasonable cooperation may be needed in order to file a T visa, in the event the LEA chooses not to provide a Supplement B or delays in providing it. Thus, it is not possible to avoid written forms of communication. Short emails and letters with draft Supplement B forms may suffice. Also LEA’s sometimes forget that attorneyclient privilege protects the communications of the civil or administrative attorney with her client, and so the LEA may ask for details of the case or copies of declarations. LEA agents and attorneys need to be reminded of the privilege, and the efforts of civil and administrative attorneys to avoid any conflicting statements in documents their offices prepare. It is usually best to create protocols and request that law enforcement not email and write you with any substantive details about the client. Sometimes law enforcement may also feel obligated to put in writing why they do not consider your client a trafficking victim or why they are not pursuing a case. It is usually not beneficial for the clients to have documents like this in writing because they can be discoverable in civil cases or future criminal prosecutions. There is also the constant confusion that the standard in their eyes is that cooperation with law enforcement is equivalent to the finding from law enforcement that your client is a victim of human trafficking.

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One mechanism for avoiding conflicting statements, and for supporting the survivor, is for the civil or immigration attorney to be present with the survivor during the LEA interviews of the survivor. It is important for the immigration or civil attorney not to take notes during the LEA interview, since those notes could be discoverable. Another option is to build the client statements directly into the declaration of a T visa so that the information can be protected work-product privilege. This way you ensure that you have the same information as law enforcement built into a declaration. The key is to ensure that no parties take what seem to be transcript-like notes because if this information is ever produced, it will be taken as a transcript rather than as notes. The exception might be random assessments or theories on the case that the attorney records for her own case preparation while sitting in the LEA interview of her client. Finally, if law enforcement provides a Supplement B or Continued Presence for a T visa, both are considered important pieces of evidence that may allow you to write a shorter and vaguer declaration to provide less impeachable information about your client. Confidentiality concerns with law clerks Generally law clerks and law students, as well independent interpreters, are considered part of the legal team covered by the attorney-client privilege. It is important to impress on law clerks, law students, and interpreters that they cannot discuss the communications between the office and the client without express written consent of the client and authorization from the attorney. Law clerks and law students are usually trained in ethical considerations, such as attorney-client privilege and work product privilege, but for many, the clinical setting or an internship/externship may be the first time they will be applying this training to real life scenarios. Therefore, a refresher training at the beginning of their work in your office is always beneficial. Example: The Katharine & George Alexander Community Law Center, as the civil clinical program for Santa Clara University Law School, works with new students each semester. As part of the students’ course requirement and a prerequisite to beginning work on cases, at the start of the semester all students are required to attend an all-day training on interviewing techniques, working with an interpreter, cross-cultural communication, and ethics. The ethics portion addresses confidentiality, unauthorized practice of law, conflicts of interest, and competent representation, among other issues. Throughout the day-long training, students are reminded of methods to protect confidentiality, the importance of confidentiality, and ways confidentiality can be breached. Students are also required to sign Oaths of Confidentiality and to disclose prior work and/or client contact to avoid potential conflicts of interest. For students working on cases, additional ethics classes are offered during the semester. While law students and law clerks have ethics drilled into their consciousness by law school courses and professors, the reality of working in a law office, sometimes for the first time, with live clients and in the context of a team of victim service providers, LEA agents, and medical and mental health providers, can produce a disconnect. It is important for the supervising attorney and the law office to reinforce the issues of confidentiality and privilege in general and in casespecific situations. Law students and clerks will understand, but may need reminders, since even seasoned attorneys in chaotic situations may find the lines between privileged information and details required for seamless teamwork fuzzy at best. In the digital age, law clerks also need to be reminded not to post anything substantive about their work on the internet and social media, as

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well as to reduce written, substantive information to non-attorneys and law enforcement about a case. If it is difficult for law students and clerks, remembering confidentiality rules can be even more challenging for interpreters unless the interpreters are legal staff or seasoned legal interpreters. Similar training and reminders are important for the interpreters on these cases. § 12.8 Civil Cases

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Seeking damages and other compensation for survivors is another layer of a trafficking case. Obtaining this type of financial justice for a trafficked person is a key element of any effective victim protection strategy. Success in this area can mean empowering the survivor because they can confront the trafficker safely and in an official setting, calling upon the trafficker to answer for their bad acts, or providing the survivor with a nest egg or investment capital for financial health for the long-term, regardless of whether or not they remain in the United States. In addition to consulting existing case examples, if you are considering this option, you should consult an excellent and free manual by Kathleen Kim and Daniel Werner titled “Civil Litigation on Behalf of Victims of Human Trafficking.” 1 In the civil track, some of your major considerations will be: • • • • • • • •

Does your client want to seek civil relief, and if so, for what reasons (e.g., monetary damages, justice, lack of criminal prosecution, etc.); Does your client understand the different legal processes, the purposes of each legal process, their role, and the players; What organizations are best suited to help your client seek civil relief; What is the strength of civil claims and concerns related to statute of limitations; What is the best jurisdiction in which to file your case (e.g., state or federal); Who are all of the possible plaintiffs and defendants; Does the trafficker have any assets, particularly in the United States; and What is the potential timing of filing a civil suit, especially in relation to a criminal case.

Benefits of a civil action There are many potential benefits to bringing civil legal action. One main benefit is that the survivor as the plaintiff controls the litigation process. The civil route can also mean enforcing your client’s rights in settings beyond the immigration or criminal setting, such as in recovering lost wages, civil protective order proceedings, or in family court. In these settings, help and relief can be much more immediate and give your client a sense of power and action, of forward movement in her situation. It can also mean relieving their mind of stressors such as the fear of losing custody of their child to her trafficker or the risk of being harassed or even assaulted by an angry and dangerous former trafficker. Civil litigation will likely make greater monetary

1

Werner, Daniel, and Kathleen Kim. 2008. Civil Litigation on Behalf of Victims of Human Trafficking. Montgomery, AL: Southern Poverty Law Center. You may find this resource online by Googling the title or at https://humantraffickinghotline.org/resources/civil-litigation-behalf-victims-human-trafficking.

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compensation available for your client in the form of restitution, compensatory, and punitive damages. In criminal cases, only restitution is available to the victim, and is not always mandated.

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There is also an argument that civil lawsuits may create deterrent effects against perpetrating trafficking on others and on the profitability of the crime, especially in cases where the defendants may be large corporations. Civil legal action may also provide a symbol for your client in their ability to access the legal system and to seek justice through their own means of purpose and control, something that may not be available to them through the criminal justice system. This control may include the client’s ability to negotiate settlements and to initiate and end their civil cases. Procedurally, civil cases have the lower standard of proof of preponderance of the evidence rather than the much higher criminal standard of proof beyond a reasonable doubt. This is important because so many trafficking cases occur in secret and private where your client may be the only real witness to the abuse, and criminal cases are frequently hard to bring. For other victims, the trauma from the trafficking may affect temporary loss of memory and difficulty in linear storytelling. However, in civil proceedings, it is more likely that testimony and evidence that would be inadmissible in a criminal case can be admitted to benefit your client, such as evidence of post-traumatic stress disorder, rape trauma, battered women’s syndrome, dependency, and learned helplessness. Broader discovery rules in civil proceedings may prove both more helpful and challenging for your case. Finally, there are far more civil causes of actions and claims available for your client to access than there are applicable criminal violations. Most trafficking cases are complex cases with a myriad of contract, tort, labor and employment, and other civil claims. Evaluating appropriateness and feasibility of a civil action In this track, the first thing to evaluate is whether or not your client requires separate civil relief. The second thing is to evaluate whether or not your client is suitable for civil litigation, as it may mean prolonging the legal process and putting your client through potentially grueling depositions and a trial. Some clients may not desire this option as they would prefer for all of the legal processes to end, so they can feel like they can move on with their lives. Some clients face considerable threats to their safety and retaliation for taking civil action against their trafficker. Their loved ones abroad may also face danger. These are considerations the client must be consulted about. You will also need to evaluate your client’s legal needs and determine whether you and/or your organization is the best suited to meet those needs. For example, if the client wants a civil protective order to bar her trafficker from contacting her in any way, shape, or form, and your organization does not regularly represent individuals in civil proceedings, you may want to make a good referral to an agency that focuses on this type of relief, such as a legal aid office or different nonprofit agency. Or if your client does not wish to stay in the United States and pursue immigration relief, but she does want to sue her trafficker for back wages and for the injuries that the trafficker inflicted upon her, there are pro bono law firms that have deep resources, associates, other staff, and a strong interest in taking on what can be a costly part of a trafficking case. Some of the pro bono law firms have associates and partners who are former prosecutors and are familiar with employment and labor law, which is extremely helpful. To ensure that your client’s interests are being protected even if you are not the primary advocate in this area, you may want 198

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to help your client determine the costs and fees that might accompany these services since they can vary widely. You may also want to ensure that the case manager or advocate in charge of coordinating the survivor’s social services is aware of the legal referrals that you are making to your client and that introductions are made between these disparate players so that everyone knows who is involved in the survivor’s case, what role is being played by each, and the limits or extent of communication and information that can be shared by all involved. When so many different legal processes and players are involved, the client can become easily confused about who is doing what, and for what purpose.

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Sometimes your client is taking great pains to reintegrate back into their community in a healthy fashion, and their traumatizing story may interrupt this process. We have seen cases where workers are ostracized for suing their traffickers, who many people in the community deem to be upstanding individuals. In cases like this, it is worth strongly considering filing the civil complaint anonymously as Jane Doe or John Doe in the public record. This may add a few additional filings, but there have been successful filings in the federal courts of the District of Columbia and the Northern District of California, as well as the California Superior Courts of the counties of Santa Clara and Alameda. This protects your client’s identity and buys them time to decide when they want to reveal their identity, which can be helpful during settlement negotiations before trial and/or a criminal proceeding reveals their identity to the public. It may also protect your client from invasive media inquiries and retaliation by others in the community or the traffickers and their contacts. Other considerations are assessing the strength of a civil suit, such as whether or not the trafficker has significant assets to pursue, and whether or not those assets are recoverable. Having a pro bono law firm conduct asset searches can be an important first step. Overseas assets, for example, are much harder to recover, and judgments can be difficult to enforce in other countries. When and where to bring civil action Timing for a civil suit and its interaction with the criminal case is an important consideration. Under federal law (and likely under most state laws), if there is a criminal case, a civil suit will be stayed (paused) until the criminal case is complete. You should explain this potential consequence to your client, as it may greatly delay and lengthen the time that your client may be involved in legal processes and affect their ability to move beyond their trauma. Even so, any and all civil claims should be evaluated early on so that at least a civil suit can be filed in a timely fashion to toll the statute of limitations and keep the civil lawsuit viable. The civil complaint, like the T visa, must be written carefully with an eye towards the document and facts being used to impeach your client in a criminal and civil case. Sometimes a criminal case and a civil case can be resolved together in a global settlement. Civil attorneys may also choose to make their own calculations of the restitution owed to the client and help prepare Victim Impact Statements during the trafficker’s sentencing to be submitted for the court’s consideration. Criminal convictions of the trafficker may also ensure easier judgments in your client’s favor in a civil suit. Keep in mind that the timing of when you initiate civil action may also impact your client’s immigration status in potentially positive and negative ways. For example, fears of inconsistent statements in T visa declarations and in the civil complaint and the need to harmonize these documents may cause delay in one of these processes. Many trafficking survivors also may not prioritize, or even fear, civil legal action if they have pressing immigration concerns.

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PRACTICE POINTER: The impact of filing civil actions on immigration applications. It is especially important to note that the loss of access to the U.S. courts and the criminal justice system for purposes relating to the incident of human trafficking or other crimes perpetrated against your client, including criminal and civil redress for the human trafficking, criminal prosecution, restitution, and protection is a factor of extreme hardship to consider in T-1 nonimmigrant status eligibility. 2 Thus, if your client intends or has filed any civil action, this should be mentioned in your client’s T-1 nonimmigrant visa application.

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Additionally, as of March 2011, USCIS will permit A-3 and/or G-5 visas holders who are victims of human trafficking, sexual exploitation, and others who have filed civil action against their employers to apply for deferred action and work authorization while their civil case is pending. A-3 and G-5 visa holders are nonimmigrant attendants, servants, or personal employees of ambassadors, diplomats, consular officers, foreign government officials or international organization officers. It is important to assess where to file the civil action. Will your client file their own complaint with the court or first with a specific administrative body or civil law enforcement agency? You must make the determination of what is appropriate for your client, as there may be tradeoffs in the amount of money that can be feasibly recovered in each option, the timeline and speed of the process, and the enforceability of a judgment or order. You may generally obtain higher damages (because they include other forms of legal claims and damage calculations) for a case filed in court, but the case may drag on longer than a case that is filed before a specific administrative office. Example: Wage and hour claims under the California Labor Code may be filed at the Department of Labor Standards Enforcement (Labor Commission or DLSE) or in court. The statute of limitations is three years for state law wage and hour violations if a claim is filed at the Labor Commission, and it is four years if it is filed in court under Business and Professions Code 17200. In addition, a trafficking survivor may file a PAGA claim (Private Attorney General Act) claim within one year. This law permits employees to file claims to pursue fines against employers for Labor Code violations that would normally be available only to the State of California and to keep a portion of the fines. (Cal. Lab. Code § 2698 et seq.) Another question of where to file the case is if it should be filed in state or federal court. This is not a straightforward calculation, as each state’s laws differ greatly. Another consideration is where the jury pool will be selected—is it a place with heavy anti-immigrant sentiment? Another consideration is jury unanimity in civil cases and what is required in that jurisdiction. Comprehensive screening for civil remedies Because many claims have statutes of limitation that run from the last trafficking incident (usually when the survivor leaves or escapes the trafficking situation) and intentional torts (which usually have short statutes of limitations), it is vital to screen for civil remedies immediately and to inform survivors of their options before they lose them. One growing concern or area of

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awareness is the natural tendency of civil legal services to silo or focus on remedies within that practice area. It is natural to screen for eligibility and pursue legal actions that are familiar. Thus, screening for civil remedies usually has entailed issue-spotting of individual claims (e.g., nonpayment of wages, child custody issues, breach of contract claims, tort claims, false imprisonment or intentional infliction of emotional distress).

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However, because there are so many different types of potential civil legal claims in a trafficking case, it may be advisable to create an affirmative intake and screening process. (See Appendix G: Sample Trafficking Questionnaire, which is one attempt at screening for civil issues.) If legal options are identified, the attorney should advise the survivor of their options, some of the risks and benefits, as well as the timelines/deadlines for pursuing these options. While many survivors may choose not to pursue some remedies, and others may not be eligible to pursue some courses of action, it is vital to screen and advise clients as soon as possible about those options that are available, given that many have short statutes of limitation. The concept behind this comprehensive screening of civil legal remedies is that brief intake forms would be provided to legal services and other potential points of identification (e.g., EEOC). These initial intake forms are designed to be brief, user-friendly and helpful in identifying trafficking survivor eligibility for civil and/or administrative legal services. Ideally, pro bono and sliding-scale legal services providers would be available for referrals for representation on whatever options the survivor chooses to pursue. Similarly, defensive civil legal representation would be available in cases where the traffickers decide to sue survivors as a means of intimidation. Different types of available legal causes of action Before state and federal trafficking laws were created, those subject to trafficking crimes could bring civil suit under a panoply of employment, labor, contract, and tort claims. The TVPA of 2000 did not include a civil remedy, but the TVPRA 2003 created a new civil remedy under 18 USC § 1595 to permit victims of forced labor (18 USC § 1589), peonage, slavery, or involuntary servitude (18 USC § 1590), or sex trafficking (18 USC § 1591) to file a civil action against their traffickers in an appropriate district court and recover actual and punitive damages and attorney’s fees. There is a statute of limitations of ten years from the last act of trafficking. Kim and Werner note that 18 USC § 1590 is a “catchall provision, incorporating all the trafficking-related violations enacted by the TVPA … there may be a private right of action for each and every provision of 18 USC §§ 1581–1594, so long as the defendant ‘recruits, harbors, transports, provides, or obtains’ the victim.” 3 They further explain that this includes expanding the private right of action on the bases of actions such as document theft under 18 USC § 1592, or attempt under 18 USC § 1594(a). Other states have now passed laws for a private right of action for trafficking victims. In 2005, California created the first state trafficking private right of action under Cal. Civil Code § 52.5. Under this law, a victim of trafficking defined under Cal. Penal Code § 236.1 may bring a civil action for actual, compensatory and punitive damages, and injunctive relief. It also provides for treble damages, attorney’s fees, costs and expert witness fees to the prevailing plaintiff.

3

Werner, Daniel, and Kathleen Kim. 2008. Civil Litigation on Behalf of Victims of Human Trafficking. Montgomery, AL: Southern Poverty Law Center.

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Although under 18 USC § 1595 there is a ten-year statute of limitations, generally, statutes of limitations to bring criminal and civil cases are limited based on the type of specific claims your client has and differ between different state and federal laws. However, be sure to note that although certain crimes and civil causes of action have longer statute of limitations time periods, certain crimes and civil causes of action that your client may have been subjected to, such as false imprisonment, tend to have very short statutes of limitations. You may want to assess these factors very quickly up front to understand the kind of timeline you are facing in helping your client assess their legal options.

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Human trafficking survivors may also pursue wage and hour claims under the federal Fair Labor Standards Act (FLSA) and/or state laws, which may protect workers more than federal laws, and so it is worth making this assessment. There are also many tort claims available, although many of them have extremely short statutes of limitations (usually one or two years). They include but are not limited to the following: intentional infliction of emotional distress, false imprisonment, assault, battery, sexual battery, fraud, invasion of privacy, conversion, negligence, negligence per se, negligent misrepresentation, and negligent infliction of emotional distress. Note that in a claim for negligent infliction of emotional distress, negligent misrepresentation, negligence per se, or negligence, it might be possible to recover from a trafficker’s insurance carrier, particularly if any crimes were committed in someone’s individual house or company. But an insurance company may also bring about a new set of attorneys and make the case very complex, and so these options must be weighed carefully. Breach of contract (written and oral) are also civil claims that may be pursued on behalf of human trafficking survivors, and the statute of limitations for a written contract is generally four years and two years for an oral contract. Trafficking survivors may also pursue discrimination and harassment claims under federal or state law, and these are usually filed with administrative offices and not in court. Title VII covers claims for race, color, religion, national origin, and sex discrimination and harassment. The American Disabilities Act (ADA) covers claims for disability discrimination and harassment, and the Age Discrimination in Employment Act (ADEA) covers claims for age discrimination and harassment. Human trafficking survivors with Title VII, ADA, or ADEA claims must exhaust administrative remedies by filing a claim with the Equal Employment Opportunity Commission (EEOC) within 300 days and filing suit within 90 days of receipt of the right to sue letter. There are also usually state remedies for these claims as well. Restraining orders and injunctions A civil restraining order or protective order is also available to survivors of human trafficking. This is form of injunctive relief takes place in state court and is a familiar tool for many advocates for domestic violence and elder abuse survivors. Civil restraining orders are meant to protect the survivor by creating an order to enjoin the restrained party from communicating, usually directly and indirectly, with the protected party. It may also restrain the party from owning firearms, require the restrained party to keep a certain amount of physical distance away from the protected party, be used as a kick out order to mandate the restrained party to move out of a shared

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residence, and order restitution. Violations of this restraining order can result in criminal action against the restrained party and can be used as evidence of ongoing abuse. However, filing for a restraining order requires that the other party be served properly and given the chance to confront the survivor in court and fight the restraining order. This experience may be traumatizing for many survivors. Advocates have also increasingly seen abusers and traffickers use restraining orders to their own purpose to retaliate against survivors. In these cases, it is important to help the survivor contest the restraining order and file their own cross restraining order.

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WARNING: Remember that some legal remedies might impact other remedies. For example, receipt of restitution or civil damages might impact ongoing receipt of public benefits, so attorneys assisting with victim loss statements/enforcement of restitution or civil claims should consult public benefits attorneys to see if there is a way to structure those monetary awards without jeopardizing needed support. The same is true for making clients aware of any tax implications when receiving civil damage awards or restitution.

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CHAPTER 13 SECONDARY TRAUMA AND THE IMPORTANCE OF SELF-CARE 1 This chapter includes: § 13.1 § 13.2 § 13.3 § 13.4 § 13.5 § 13.6 § 13.7 § 13.8 § 13.9

Concepts of Secondary Trauma (Vicarious Trauma, Compassion Fatigue) .......................................................................................... 205 Symptoms of Secondary Trauma ....................................................................... 206 Assessing the Possibility of Re-Traumatization or Secondary Trauma ............. 206 Awareness of the Effects of Working with Trauma Survivors .......................... 207 Issues Unique to Legal Representatives ............................................................. 207 Issues Unique to Staff......................................................................................... 208 Issues Unique to Interpreters .............................................................................. 208 Self-Care: Why It’s Important ............................................................................ 209 Self-Care: Prevention of Secondary Trauma ...................................................... 209

§ 13.1 Concepts of Secondary Trauma (Vicarious Trauma, Compassion Fatigue)

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Service providers who work with trauma survivors will frequently be exposed to accounts of violence and terror. Survivors may relate events that seem unfathomable and surreal. These accounts will call into question any sense of normalcy and humanity that the service provider previously held. Exposure to trauma via the survivor can create what is variously termed “secondary trauma,” “vicarious trauma,” “compassion fatigue,” “compassion stress,” or “transference,” among other terms. Professions such as emergency medical technicians, mental health providers, and war correspondents have recognized their susceptibility to secondary trauma. Legal representatives are less likely to consider secondary trauma to be one of the results of working closely with trauma survivors. Persons who pursue a legal career may have chosen this work because they are more comfortable with logic than with emotions. The study of law has been primarily Socratic and has emphasized logic and analysis. Yet at least one informal study has shown that lawyers are at least as likely if not more likely than mental health providers to suffer from secondary trauma. 2 Understanding and recognizing secondary trauma will enable you to minimize its impact on your representation of your client and support your long-term ability to work with survivors of trauma. If secondary trauma is ignored, it can affect your ability to effectively represent your client because you may become too emotionally involved or too withdrawn from your client. Your 1

This chapter was originally authored by Lynette Parker and Ivy Lee and is excerpted from Representing Survivors of Human Trafficking: A Promising Practices Handbook available at http://www.ilrc.org/publications. Please note that these authors are not trained psychologists or therapists. They based this chapter of the manual on their work with psychologists and therapists and training they have had in these concepts, but do not present themselves as experts in this field. 2 Andrew P. Levin & Scott Greisberg, Vicarious Trauma in Attorneys, 24 Pace L. Rev. 245, 248 (2003).

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client will sense your trauma whether you recognize it or not. If accounts from multiple trafficking survivors become too difficult to hear, you may unknowingly give your clients signals not to disclose all of the details of their trafficking. If you become too involved in your client’s case, you may begin to resent your client. Over time, you may decide not to represent trafficking survivors because the toll on you is too great. Thus, for purposes of zealous advocacy and for your ability to stay in the trenches, it is important to address the concepts of secondary trauma and self-care techniques. § 13.2 Symptoms of Secondary Trauma Secondary trauma is not general stress or burnout. While burnout and stress may cause physical and mental ailments and exhaustion, secondary trauma mirrors the symptoms of trauma inducing pain, fear, anger, despair and a sense of loss of control. The service provider can experience nightmares, intrusive thoughts, or thoughts of the account that come to mind out of nowhere, as well as numbing and avoidance. Many of these symptoms are less intense compared to the symptoms of the trauma survivor herself, but they are real and should be recognized and addressed.

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Example: Maisha’s office had a number of intense cases involving trauma survivors. While Maisha had represented many trauma survivors over the years, these cases included powerful visual images and very graphic narratives of torture. Maisha constantly felt as if she had been hit by a truck. Driving home, Maisha was sitting at a stop light and the images of one client’s experiences flashed in her mind. She found herself having nightmares and being on edge. Realizing her ability was impaired to keep enough distance to unemotionally assess her clients’ cases and meet their burden of proof, she reached out for assistance. Maisha’s office had contact with several therapists/psychologists through the Center for Survivors of Torture who offered to train them on trauma and secondary trauma. § 13.3 Assessing the Possibility of Re-Traumatization or Secondary Trauma Before beginning to take or work on cases involving trauma survivors, you should assess your own susceptibility to re-traumatization or secondary trauma. If you have yourself survived a traumatic experience, exposure to a client with trauma may re-traumatize you. Repeated exposure to trauma can increase the possibility of experiencing secondary trauma. Also, certain types of cases may have more effect than others. For some, cases involving children have more of an impact. Although this does not mean you cannot or should not take the case, you may want to be extra sensitive to the effects on you of working on the case. You may want to put in place self-care procedures early, or you may want to work with a colleague on the case so that if you need to step out or away there is someone else who can take over. This type of assessment requires self-honesty. It is better for you and your client to determine your limits on working on these cases in advance. It is no different from assessing potential conflicts of interest. Ultimately, it will benefit you, your client, and future cases.

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§ 13.4 Awareness of the Effects of Working with Trauma Survivors It might not be the first case you handle or the second, but at some point you may notice that after screening a human trafficking survivor you are physically exhausted—as if you ran a marathon. Or you may notice you are becoming impatient with your client’s inability to remember simple details, or you hope that she misses her appointment. It may be that you have made yourself available to your client 24/7 by giving her your cell phone or home phone number, and now you are frustrated when your client keeps calling you. There are many variations on these scenarios, but they should serve as warning signs. Either you are becoming too involved and affected by the accounts you are hearing from your clients, or you are withdrawing and checking out. These are normal reactions, and you should not be alarmed or frustrated. The first step is awareness of your reactions. The next step is to put in place self-care techniques. These self-care strategies will be discussed more below. Suffice it to say, it will help to set boundaries, to spend time in the present, to treat yourself to comfort items, and to debrief with colleagues.

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Awareness of your reactions to accounts of trauma should not be relegated to your breaks, although during your down times you may be more conscious of your reactions. Even when you are in the midst of interviewing a trafficking survivor, some part of your brain needs to do periodic assessments of your responses to the account, to the survivor and to the process. Are you physically inching away from the survivor? Are your muscles tightening? Do you feel you are getting a headache? Are you breathing? Is your brain rejecting the information or the mannerism of the survivor, subconsciously stating it can’t be true? Are you flashing back to experiences you had as a child? Your responses may only require a conscious acknowledgement before you proceed with the interview. However, if your reactions are intense, you may need to pause the interview, step out and get a glass of water while you take a brief moment to process. Addressing your reactions timely will prevent you from subconsciously affecting your case/representation of your client and will avoid accumulation of stress and physical discomfort. § 13.5 Issues Unique to Legal Representatives Legal representatives, attorneys and paralegals, have specific challenges with secondary trauma. Legal education rarely addresses the psychological aspects of representing a multi-faceted human being with a variety of emotions. Unless we are locked in the law library with a computer and a stack of books, legal representation requires interaction with human beings. This fact intensifies when our client is a survivor of trauma. The expected or understandable emotions of frustration, anger, desperation, confusion, fear and helplessness of litigants shifts to more powerful and less common symptoms of trauma. Our legal education does little to prepare us for addressing our client’s psychological issues, nor does it allow us to focus at any point on our own reactions. The concept of “client centered” leads us to believe we need to take ourselves out of the picture. What we want and what we feel does not matter, right? How can we be objective if we are acknowledging our emotions? Legal professionals also face a high burn-out rate and vicarious trauma for many reasons. Aside from the fear of looking “weak,” legal professionals tend to peg their success to legal outcomes. These

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are good questions, and ones that as legal representatives we may struggle with when facing trauma and secondary trauma. Furthermore, the legal profession tends to value legal victories as the main form of success worth celebrating. We cannot always win every legal battle and application. It is helpful to also talk to case managers and understand other ways that your client can be improving their lives beyond a form of legal relief. The legal field and law schools are beginning to address these issues. For example, Santa Clara University has offered a course titled “Health Law: Trauma and Vicarious Trauma.” Other law schools and clinics have invited psychologists and therapists from torture survivor centers and professional associations to train law students on working with survivors of trauma. Law offices, state and local bar associations, and legal services agencies have begun to train staff and members about trauma and secondary trauma.

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You may also feel divided between obligations to competently and zealously represent your client. On the one hand, you do not want to re-traumatize your client and you will need to address the issue of trauma in order to prepare the case and your client for interviews and testimony. On the other hand, you need to remain objective and detached enough to assess the legal merits of the case and to ensure all deadlines are met. It is a balancing act, and neither of these obligations should be neglected. § 13.6 Issues Unique to Staff With respect to your staff, they may or may not have direct contact with the clients. If your staff works closely with trauma clients or with the cases, they may also be susceptible to retraumatization (if they have experienced a traumatic event in their own lives) or secondary trauma. Support staff, including the receptionist, legal assistants, interpreters, and volunteers should be included in training on trauma and secondary trauma. Clients may relate feelings, nightmares, flashbacks, and fears more readily to your staff than to you. Your staff may be called upon to provide initial screening, or referrals if needed. To the extent possible, it may help to find ways to insulate your staff or to debrief periodically, so that your staff does not have to hold onto the emotions and information bestowed on them by your clients. Remember that law clerks, interns, and volunteers may be less used to hearing traumatic events and can be negatively impacted relatively quickly, and require the same training, support, and debriefing. § 13.7 Issues Unique to Interpreters Interpreters perform a unique service in human trafficking cases. They are the linguistic and cultural bridge between the survivor and you or others. This role can be exhausting under normal circumstances, but in the case of a trauma survivor the task can be daunting. Interpreters are not immune from re-traumatization or secondary trauma. In fact, the trauma experience may be even more powerful for the interpreter than the legal representative. Trained interpreters will interpret in the first person—”I was raped”; “I was trapped and tortured when I tried to escape”; “I was forced to work 18-hour days and eat scraps of food from the garbage can.” The power of words to create vivid images increases when we speak in the first person.

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Thus, your interpreters will need breaks and need support during the process of interpreting for a human trafficking survivor. § 13.8 Self-Care: Why It’s Important While the impact of working on behalf of trafficking survivors is undeniable and largely inevitable, there are ways of minimizing the negative impact and emphasizing the huge rewards that accompany vigorous advocacy on behalf of survivors of modern-day slavery. While we are not experts on self-care techniques, there are professionals who have expert advice on such methods. Dr. Yael Fischman, Ph.D., was generous enough to allow us to provide some self-care suggestions in this book. 3 The study of human induced trauma such as that generated by wars, forced displacement, torture, human trafficking, sexual assault, or domestic violence corroborates that those in secondary contact with the victim’s suffering are themselves vulnerable to developing symptoms of trauma. So, as service providers, we have an ethical responsibility to monitor ourselves. If we find that we are experiencing either burnout or symptoms of trauma, we need to address them. If we ignore them, we minimize our ability to provide adequate services to our clients. Ideally, we need to implement preventive measures and find ways to take care of ourselves before these symptoms emerge.

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It is essential to be aware of options for self-care for personal, professional, and ethical considerations. We must take care of ourselves in order to function adequately in our professional capacity. As professionals, we have an ethical responsibility to “do no harm.” However, a traumatized professional may develop problems such as inhibited listening, lack of concentration, and difficulty maintaining appropriate boundaries with clients. Traumatized professionals may also show counterproductive responses ranging from excessive distancing to over-identifying with the client. Lack of self-care when working very frequently or for long periods of time with severely traumatized individuals may lead to physical illness, emotional distress, absenteeism, or lowered productivity. Eventually these problems may diminish the ability to help survivors of severe trauma, thus depriving an underserved population from much needed services. § 13.9 Self-Care: Prevention of Secondary Trauma Many of the events that you will hear about in your work with trauma survivors may elicit very strong feelings, such as shock, anger, horror, sadness, fear, or grief. Please remember that these feelings are normal. Most people in your situation would feel the same way. Read the list below for general suggestions about self-care. Follow that by developing personal strategies for self-care that are appropriate for your specific needs and possibilities. Try to become aware of your limits and to respect them. As difficult as it may be, try to schedule a short time for self-care in your daily routine.

3

This section was developed by Yael Fischman, Ph.D. for training purposes. Please do not copy or distribute without previous agreement with the author.

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It helps if you are creative in your search for preventive measures so that you discover and implement those that fit your own individual needs. The list below includes some general recommendations for self-care that you can modify or use as an inspiration to develop your own prescription for self-care. • • • •

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Strive to maintain a balance between your personal and professional life, between work and leisure time. Take care of your physical self through proper diet, exercise and enough sleep. Try to remember to use humor and laughter in your everyday life as much as possible. Do not expect to get immediate support or understanding from the important people in your lives. It may take them some time to acknowledge the pain involved in your work. Help them to gradually understand and develop the ability to process the information that you choose or can share with them. Try to establish meaningful connections with peers. Seek out experienced colleagues. If you don’t have a supportive peer group, try to find a safe forum in which you can discuss your reactions to your agency’s clients. Get supervision from someone that understands the dynamics of work with traumatized clients, and/or try to organize discussion groups with peers. Try to clarify the source of your personal motivation to provide services to traumatized individuals. Get involved in personal counseling if current personal issues or unresolved traumatic experiences from the past are intruding in your work. Be aware of the need to keep clear boundaries in your relationship with your agency’s clients. Explore strategies that will help you develop spiritual facets or expressions of your being, as a way to maintain hope and faith when confronted with intense pain. You may feel angry, burnt out or hopeless as a result of your continued exposure to the helplessness of traumatized victims. If that is the case, consider joining local organizations that focus on preventing these crimes or acts of cruelty. These might provide a very positive channel to your anger and help counteract your feelings of hopelessness. When overburdened by the pain of secondary trauma, try to quiet your mind and gain perspective with time out. Spend time in nature, engage in outdoor activities, try quiet contemplation, or call a friend that will listen to you. Prevent information overload. Be selective about how much and what kind of information you allow into your system. Don’t allow negative information to occupy space in your mind unless it is absolutely essential. Avoid disturbing scenes in newspapers, movies, or TV to avoid trauma overload. If you watch TV, try to focus on programs that are entertaining or uplifting. Learn to identify changes in your mood. Are you feeling angry very frequently? Do you frequently feel that you are about to cry? These may be signs of secondary trauma; do not ignore them. Try to make time for fun activities, relaxation, outings, or conversations

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with friends. Also, practice observing your mood changes. The more you observe these changes, the more control you will eventually acquire over your moods. Learn to identify changes in your behavior. Do you get frustrated very frequently? Are you becoming impatient with your family, friends, and co-workers? Have you increased your alcohol intake? Are you fighting a lot with your spouse or significant other? Do you have a desire to attack them physically or feel that you cannot control your temper when you are around them? These also might be signs of secondary trauma. They may indicate that you need to take time out, get support from friends, and talk to a counselor. If you cannot find a counselor to work with, talk about your feelings and concerns with someone that has experienced similar symptoms, or try to reach out to your support system, spiritual advisor, or someone that can provide objective feedback. Give yourself some time to calm down after each interview with a client. On many occasions you don’t know how strongly you have been impacted by such a meeting until later. Develop personal rituals that help you contain and enclose the information after each interview, as if you would place all the information inside a closed drawer. Find ways to disengage from traumatic thoughts. Get involved in activities that will help you detach for a while. Explore strategies that can help you disconnect when you need to, and share these with co-workers. Build healing rituals into your life. Some examples include exercise, martial arts, acupuncture, or other types of bodywork. A number of people report that it helps them to devote time to painting, music or other art expressions. For others it is helpful to interact with children, play with pets, or meditate or immerse themselves in spiritual practices. Try to identify healing rituals that might work for you, and then schedule them into your calendar, even if your available time is limited.

Psychologists Saakivtne and Pearlman describe their ABCs of self-care, in which they address the need for awareness, balance, and connection. 4 These principles may also help in planning for selfcare. • • •

Awareness: Being attuned to one’s needs, limits, emotions, and resources. Balance: Among work, play, and rest. Inner balance allows attention to all aspects of the self. Connection: To oneself, others and to a transcending spiritual force. The purpose of connecting to others is to offset isolation. Communication with others breaks the silence of unacknowledged pain. The purpose of connecting to self and to some transcending spiritual force is to increase validation and hope.

Remember, it is difficult to care for others without prioritizing care for yourself. You will also be of greatest value to the fight against trafficking and violence if you can learn how to prolong your ability to work in this field with these self-care techniques.

4

Saakvitne, K. & Pearlman, L. (1996). Transforming the Pain: A Workbook on Vicarious Traumatization for Helping Professionals who Work with Traumatized Clients. New York, New York: W.W. Norton and Company.

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T VISAS: A CRITICAL IMMIGRATION OPTION FOR SURVIVORS OF HUMAN TRAFFICKING 1ST EDITION INDEX OF APPENDICES Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J Appendix K Appendix L Appendix M Appendix N Appendix O Appendix P Appendix Q Appendix R Appendix S

Index of Appendices

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Appendix T Appendix U Appendix V Appendix W Appendix X Appendix Y Appendix Z Appendix AA Appendix BB Appendix CC Appendix DD Appendix EE Appendix FF Appendix GG

Resources for Human Trafficking and T Visa Cases Sample Attorney-Client Retainer Agreement Sample Joint Representation Disclosure and Consent Form Release of Information Form Initial Letter to Law Enforcement. Intake Forms Sample Trafficking Questionnaire Continued Presence Information ICE HSI Directive 10075.2: Continued Presence, 2 (Oct. 6, 2016) Sample Screening Tool Action-Means-Purpose Chary Sample Completed Form I-914 Packet Spanish Translation of I-914 Questions Sample FOIA Requests Sample Form G-1054 Fee Waiver Denial Sample Request to Law Enforcement Sample Motion to Quash a Subpoena Sample Application Support Center Appointment Notice Information for Derivative Family Member on Fingerprints and Photographs Sample RFEs and Responses T Nonimmigrant Status Employment Authorization Document Sample Approval and Denial Notices Sample FBI Background Check Request Letter Sample Police Report Request Form Sample Letter to Clients Regarding Adjustment Eligibility Sample Adjustment of Status Packet Sample Adjustment Approval Notice Sample Client Closing Letter Sample T Nonimmigrant and T Derivative Checklist Interim Policy Memorandum PM 602-0107, Oct. 2014 Interim Policy Memorandum PM 602-0032.2, Oct. 2016. International Organization for Migration Family Reunification Brochure Sample Cover Letter for a Derivative Who Entered on a T Visa 213

Sample Motion to Continue Sample Motion for Administrative Closure Sample Motion to Terminate Removal Proceedings Information on Requesting OCC to Join or Non-Oppose a Motion Sample Motion to Reopen and Terminate Proceedings Sample DS-160 Worksheet Sample Letter to Social Services Sample Interpreter Confidentiality Agreement Sample Common-Interest Agreement

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Appendix HH Appendix II Appendix JJ Appendix KK Appendix LL Appendix MM Appendix NN Appendix OO Appendix PP

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APPENDIX A RESOURCES FOR HUMAN TRAFFICKING AND T VISA CASES U.S. Citizenship & Immigration Services (USCIS) – https://www.uscis.gov/ The USCIS website includes many links to the immigration statute and regulations, latest USCIS policy and procedural information, the status of applications, current filing fee amounts, application data, processing timelines, and easy access to downloadable USCIS forms. The USCIS link to T forms and filing fees can be found at https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-humantrafficking-t-nonimmigrant-status Coalition to Abolish Slavery and Trafficking (CAST) – https://castla.org/ CAST offers free support to attorneys and social service providers assisting trafficking survivors with legal needs in the following areas of law: Criminal Victim Witness Advocacy, Criminal ReEntry, Immigration, Reporting to Law Enforcement, Civil, Referrals, Program Support, Ethics & More. For case specific questions or individualized technical assistance for attorneys and social service providers, contact them online through their website. They try to respond to technical assistance requests within 72 hours. If the volume of requests is high response may be up to 7 days. Their on demand e-learning courses and webinars may also be found online (http://bit.ly/CASTELearning). Asista – http://www.asistahelp.org/ Asista’s purpose is to centralize assistance for advocates and attorneys facing complex legal problems in advocating for immigrant survivors of domestic violence and sexual assault. The Asista website includes information about technical assistance and trainings they offer, a resource library of all of the legacy-INS and USCIS policy memoranda relevant to VAWA, U visa and T visa cases, as well as many helpful sample materials, motions, declarations, etc. Freedom Network USA (https://freedomnetworkusa.org/)

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A national alliance of experienced advocates advancing a human rights-based approach to human trafficking in the United States, the Freedom Network influences federal and state policy through action and advocacy, and increases awareness of human trafficking, and provides decisionmakers, legislators, and other stakeholders with the expertise and tools to make a positive and permanent impact in the lives of all survivors. Immigrant Legal Resource Center (ILRC) – https://www.ilrc.org/ The ILRC provides training as well as technical assistance via email, phone or fax Monday through Thursday from 10:00am to 3:00pm through its Attorney of the Day (AOD) service. This service is free to all California IOLTA-funded legal services programs, all California Department of Social Services Immigration Services Funding contractors, all San Francisco Bay Area nonprofit agencies, and some other nonprofit organizations. Others may access the ILRC’s Attorney of the Day on a fee for service basis. See http://www.ilrc.org/legal-assistance for more information.

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Catholic Legal Immigration Network, Inc. (CLINIC) (https://cliniclegal.org/) Kids in Need of Defense (KIND) (https://supportkind.org) The Polaris Project (www.polarisproject.org) For a national list of all federal grantees that are funded to provide services specifically to human trafficking survivors U.S. Department of Health & Human Services Office on Trafficking in Persons (www.acf.hhs.gov/trafficking) National Human Trafficking Hotline at https://humantraffickinghotline.org/ To search by state, county, or detention facility for nonprofit organizations that provide free or low-cost immigration legal services National Immigration Legal Services Directory (https://www.immigrationadvocates.org/nonprofit/legaldirectory/) Other Manuals and Written Resources The ILRC publishes the following books about areas of immigration law relevant to family and juvenile court issues. Nonprofit agencies may receive discounted pricing for these manuals. For a more complete list of ILRC publications, and for information on the most current pricing and editions available, please call (415) 255-9499 ext. 782, or visit the ILRC website at http://www.ilrc.org/publications. Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth seeks to provide background and guidance on protections, procedures, and immigration options with a special focus on Special Immigrant Juvenile Status. It addresses specialized issues, such as working and representing child clients, immigration consequences of delinquency, and detention. The manual contains many useful items for practitioners, including sample screening intake forms, sample application forms, motions, court orders, and other papers that can be presented to the juvenile court, immigration court, and immigration authorities. (https://www.ilrc.org/specialimmigrant-juvenile-status)

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Representing Survivors of Human Trafficking: A Promising Practices Handbook contains lessons learned and practice tips in the context of a team-based approach to serving human trafficking survivors. The objective of this publication is to assist advocates for survivors of human trafficking, attorneys and non-attorneys, who are critical to the successful stabilization of those who have been victimized by human trafficking. Written primarily for immigration legal service providers and private attorneys, the comprehensive analysis of how to approach a trafficking case will also be valuable to case managers, health care providers, and law enforcement agencies. (https://www.ilrc.org/publications/representing-survivors-human-trafficking)

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APPENDIX B ATTORNEY – CLIENT RETAINER AGREEMENT Agreement made [Date, Month, Year], between the Legal Service Provider, (“LSP”), and _________________ (“Client”). I STATEMENT AND SUBJECT OF EMPLOYMENT Client hereby authorizes LSP to represent him/her in the following: the preparation and submission of a T visa application, including an application for employment authorization and representation during law enforcement interviews or meetings that may be related to the T visa application. LSP is authorized to represent Client at all stages of proceedings before the immigration court, if needed. This agreement does not include representation in any other matter(s) or cases(s) arising out of the same or collateral proceedings. II PROVISION OF FREE LEGAL SERVICES LSP shall not charge Client a fee for its services. LSP will keep records of all out-of-pocket costs expended on Client’s behalf. Client hereby assigns to LSP all attorney’s fees and costs which may be awarded as a result of any work performed by LSP. LSP is authorized to associate other attorneys to work with LSP on any matters set forth in this agreement, and is further authorized to make any appropriate financial arrangements to compensate such attorneys for costs or fees, with LSP, not the Client, being responsible for payment of such costs or fees. III

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FEES AND COSTS All costs, necessary disbursements, reasonable personal and travel expenses incurred LSP for and on behalf of Client shall be without charge to Client so long as Client continues to meet LSP financial eligibility guidelines. IV EMPLOYMENT OF INVESTIGATORS AND EXPERTS LSP, in its discretion and at its own expense, may employ experts and investigators in connection with Client’s representation. All such experts and investigators shall report exclusively to LSP.

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V FAVORABLE OUTCOME NOT GUARANTEED LSP makes no representation or warranty concerning the successful termination of Client’s case, nor does LSP guarantee that it will obtain compensation or reimbursement for Client for any of costs or other expenses incurred in connection with Client’s representation. All statements of LSP staff counsel and other employees on these matters are statements of opinion only. VI OBLIGATIONS OF CLIENT Client agrees to participate in the above-referenced matter. Client agrees to make himself or herself available to assist LSP in preparing Client’s immigration applications and related applications as well as in responding to communications from the government related to the above-referenced matter. Client agrees to keep in contact with LSP and to update LSP with his or her most current contact information. All travel expenses of Client related to making him or herself available as a witness at trial and/or deposition, if needed, shall be without charge to Client so long as Client continues to meet LSP financial eligibility guidelines. Client agrees to notify LSP immediately if and when Client’s financial status changes so that he or she no longer meets LSP financial eligibility guidelines for free legal services. VII TERMINATION OF SERVICES Client retains the right to terminate LSP’s representation at any time with or without cause. LSP retains the right to terminate this agreement only for non-cooperation of the Client.

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VIII CONTRACT AS INCLUDING ENTIRE AGREEMENT This instrument embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein. This Agreement is a binding contract and shall supersede all previous communications, representations, and agreements, both verbal and written, between the parties. Executed this _____ day of ______________, at __________________, _____________. Client _________________________________ Executed this _____ day of _________________________, at San Francisco, California. LSP ___________________________________

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APPENDIX C DISCLOSURE AND CONSENT TO JOINT REPRESENTATION Legal Services Provider (“LSP”) has been retained for the purpose of representing the beneficiary of the immigration benefit (“Beneficiary”) and the family member petitioning for this immigration benefit (“Sponsor”). If the Sponsor is compensating LSP for this representation, it will not interfere with LSP’s independent judgment in this case or with its attorney-client relationship with the Beneficiary. At present we are not aware of any potential or actual conflict of interest; however, it is possible that at some future time the Beneficiary’s interests could come into conflict with the interests of the Sponsor. For instance, a conflict of interest could arise if the Beneficiary and/or the Sponsor decide to terminate a marital relationship and a family law matter is initiated by one of the parties. This could result in the Sponsor’s refusal to proceed with the immigration petition process, with the possible result being the Beneficiary’s ineligibility to obtain the sought-after immigration benefit. If the Beneficiary or the Sponsor believes that a conflict of interest arises, you must advise us immediately. If an actual conflict of interest arises during the course of our joint representation, we will notify both the Beneficiary and the Sponsor of such conflict and take appropriate action, which could include withdrawal of our representation of one or both of the parties. Any information you provide will be treated as privileged and confidential as against third parties; however, any communications made during the course of our relationship with the Beneficiary or the Sponsor may not be subject to a claim of attorney-client privilege in a civil proceeding between the Beneficiary and the Sponsor. The Beneficiary should understand and agree that LSP’s legal representation of the Sponsor does not include disclosure to the Beneficiary of confidential Sponsor information, within reasonable lawful limits, that the Sponsor wishes to keep confidential. You may seek the advice of independent counsel regarding this disclosure and consent.

_________________________________

_________________________

Beneficiary

Date

_________________________________

_________________________

Sponsor

Date

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By signing this form and signing the attorney-client retainer agreement, you acknowledge that you have read and understand this disclosure and consent to LSP’s joint representation of the Beneficiary and the Sponsor.

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CONSENT TO RELEASE CONFIDENTIAL INFORMATION I, ______________________________________________________, the undersigned hereby authorizes the Katharine and George Alexander Community Law Center/Santa Clara University School of Law and its attorneys, law students, and other agents to OBTAIN/RELEASE information and/or to copy any and all records, files, documents, or other information in your possession pertaining to me. The undersigned further requests and authorizes the Katharine and George Alexander Community Law Center/Santa Clara University School of Law and its attorneys, law students, and other agents full and complete access to the followings: ____________ Psychiatric/Medical Records ____________ Educational Information ____________ Legal Status ____________ Results of psychological/vocational tests ____________ Treatment Summary ____________ Pertinent Summary of psychological and/or psychiatric history ____________ All case data ____________ Other: _______________________________________________________ A copy of this authorization may be used in place of the original. I may also revoke this consent at any time by putting my request in writing.

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Signed in the city of San Jose, CA. On the ______ day, of ________________ of __________. Client’s Name: __________________________________________________________________ Client’s Signature: _______________________________________________________________ Client’s Address: ________________________________________________________________ Client’s Phone Number: __________________________________________________________

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Witness/Requester’s Name and Contact Information: ___________________________________

_________________________________ _________________________________ Last Updated on 07/2006

Katharine & George Alexander Community Law Center, School of Law 1030 The Alameda, San José, California 95126-0450 Phone (408) 288-7030 • Fax (408) 288-3581 • http://law.scu.edu/kgaclc

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March 25, 2018

Officer Jennifer Dotzler San Jose Police Department Vice Unit/Human Trafficking Task Force 201 West Mission Street San Jose, CA 95110 RE: IDENTIFICATION OF HUMAN TRAFFICKING VICTIM Dear Officer Dotzler: Our office is contacting you to let you know we have identified a victim of human trafficking (Client’s name). She is the victim of forced labor and domestic violence in San Jose from 2012 to 2015. She has been out of the trafficker’s home for a couple of years. She is Spanish-speaking from Mexico. Please let our office know when you would like for us to arrange a time for you to interview our client. Thank you.

Sincerely,

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Lynette Parker Clinical Supervising Attorney

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APPENDIX G ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT CONFIDENTIAL AND PROTECTED BY ATTORNEY-CLIENT PRIVILEGE Trafficking Questionnaire Everything that you tell me during this interview is absolutely confidential and will not be shared by me with anyone outside of my organization without your permission first. I am asking you these questions in order to determine if you are eligible for trafficking-related immigration relief. 1. When, where, and how did you first meet your employer? 2. What did your employer tell you about the job (for example: what did they say they were going to pay you? What did they say they would do to help you in the U.S. and/or in your home country? Where did they say you were going to work? What kind of work did they say you would be doing?) 3. Was there someone who introduced you to your employer? If yes, who was it? How did you meet this person? Did you pay the recruiter any money or did the recruiter get anything for introducing you to your employer? 4. Why did you decide to take the job? When did you decide to take the job? 5. Is there anyone you help support with the money that you make? What is their name, age, relationship to you? Where are they right now? 6. Describe how you entered the U.S. Who made the travel arrangements and got the right visas for you to travel? Who paid for the airplane ticket? 7. What happened when you arrived in the U.S.? Who picked you up from the airport/bus station/pier/border?

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8. Describe your daily life after you arrived in the U.S. What was your schedule during the week? 9. Were you ever able to leave and enter the house by yourself? Did you have freedom to come and go? 10. How did your employer treat you after you had agreed to take the job? Did your employer ever treat you differently? How? 11. Describe any incidences of physical abuse by your employer. Please try and be as detailed as possible, including the date and place. 12. Describe any incidences or pattern of emotional or mental abuse by your employer towards you. Again, try and be as detailed as possible, including date and place and also how you felt.

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13. What were your wages at your job? Did you receive any benefits? Any time off? Is this the same as what you were told before you started working? 14. Describe the differences between what you were told about how your life would be in the U.S. and how it actually was. Were there things that anyone told you about your life in the U.S. that turned out to be false? 15. Describe what happened to make you finally decide to leave. 16. What did you do when you decided to leave? 17. Are you afraid of your employer? Why? What do you think they would do if they found you? Do you think they would try and hurt any of your family members? 18. What would happen if you were deported to your home country? Are you in fear of any harmful consequences to you or anyone you know if you were to be returned to your home country? 19. Were your identification documents or immigration documents in your possession at all times from your home country to your travel and entry into the U.S.? If no, who had them, when, and why? 20. Were threats of deportation or jail or harm against you or any of your loved ones ever made against you? By whom? Why? 21. If you had changed your mind once you arrived in the U.S., could you have freely and safely returned to your home country or gone elsewhere? If no, please describe what you think would have happened to you and why you believe that those consequences would have occurred. 22. Anything else that you want to tell me about your situation? 23. Do you have any blood relatives or spouse in the U.S.? Where are they? Do they know where you are and what has happened to you? Are any of them lawfully in the U.S.? If yes, what immigration status do they have? Have you contacted them?

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24. Where are your family members that are not in the U.S.? Where are they? Do they know where you are and what has happened to you? Have you contacted them?

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Applying for Continued Presence What is Continued Presence? Continued Presence is a temporary legal immigration status that ensures that trafficked persons are not penalized for remaining in the country. Only federal law enforcement officials can request Continued Presence if a trafficked person’s presence in the United States is necessary for prosecutorial efforts. Typically Continued Presence is granted for one year, but this timeframe can be extended if needed. How do I apply for Continued Presence? To apply for Continued Presence fill out the four attached forms: 1. Request for Continued Presence 2. Law Enforcement Agency Certification for Continued Presence 3. Form I-102: Application for Replacement/Initial Nonimmigration Arrival-Departure Document 4. Form I-765: Application for Employment Authorization Additional items that must be submitted: 1. 2. 3. 4.

2 Sets of Fingerprints 2 Passport Photos Copies of Law Enforcement Data Base Screenings Law Enforcement Notes from Investigation

**Please note no fee or fee waiver request is required because the application comes from law enforcement officials Mail completed forms to:

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Monda Lambert Office of International Affairs Parole & Humanitarian Affairs Branch 800 N. Capitol Street 3rd Floor Washington, DC If you have further questions please contact: Stephanie Richard, Managing Attorney Coalition to Abolish Slavery & Trafficking 5042 Wilshire Blvd., Suite 586 Los Angeles, CA 90036 Phone: (213) 385-5584 ext. 15 Fax: (213) 385-0702

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I-914 PART C. ADDITIONAL INFORMATION 1. Yo soy o he sido una victima en forma severa de tráfico humano. 2. Yo estoy sometiendo el formulario I-914 B el cual certifica y valida mi status de victima de trafico humano. 3. Yo estoy presente físicamente en los EEUU, American Samoa, o Commonwealth of the Northern Mariana Islands, o en un puerto de entrada. 4. Yo temo que sufriría daño extremo, severo e inusual si yo soy deportado a mi país de origen. 5. Yo he reportado a las autoridades el delito del cual yo he sido victima. 6. Yo soy menor de 18 anos de edad 7. Yo he cumplido con los todas las condiciones y peticiones de ayuda y colaboración impuestas por los agentes federales para la investigación y/o el proceso criminal de este hecho de trafico. 8. Esta es la primera vez que yo he entrado a los EEUU 9. Mi entrada mas reciente fue a causa de haber sido victima de tráfico humano y la cual es también base de esta petición. 10. Yo quiero un permiso de trabajo 11. Yo estoy ahora aplicando para uno o más miembros de mi familia que son elegibles. PART D. INFORMACION DE PROCESO

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1. Alguna vez usted: a. Cometió un delito o una ofensa por la cual no ha sido arrestado? b. Ha sido arrestado, citado o detenido por cualquier oficial de la ley (incluyendo al servicio de inmigración y militares) por alguna razón? c. Ha sido acusado de cometer un delito u ofensa? d. Ha sido sentenciado por un delito u ofensa que después fue perdonada o borrada. e. Ha sido puesto en sentencias alternas o en programas de rehabilitación, (por ejemplo: diversión, persecución deferida, adjudicación restringida o deferida? f. Recibió una suspensión de sentencia, ha sido puesto en probación o en paról? g. Ha estado en la cárcel o en prisión? h. Ha sido el beneficiario de un perdón, amnistía, rehabilitación o cualquier otro acto de clemencia o acción similar? i. Ha ejercido inmunidad diplomática para evadir un proceso judicial por un delito criminal ocurrido en los Estados Unidos? 2. Ha usted… a. Participado en prostitución, requerido servicios de prostitución o planea en el futuro prestar o requerir servicios de prostitución? b. Participado/involucrado en algún vicio comercial, incluyendo, pero sin limitarse a las apuestas ilegales? c. Alguna vez y a sabiendas, motivado, inducido, ayudado o cooperado a un extranjero a entrar ilegalmente a los Estados Unidos? 375

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d. Alguna vez traficado ilícitamente alguna sustancia controlada, o a sabiendas ha ayudado, asistido o confabulado en el trafico ilícito de alguna sustancia controlada? 3. Alguna vez ha cometido, planeado o preparado, ha participado, ha amenazado, ha atentado o conspirado a cometer, recaudado información para, o ha solicitado fondos para cualquiera de las siguientes: a. Secuestrar o sabotear cualquier equipo de carga, (incluyendo aviones, barcos o automóviles? b. Confiscado o detenido, y amenazando con matar, lastimar, o con continuando la detención, a otro individuo para obligar a una tercera persona (incluyendo organizaciones gubernamentales) a hacer o a abstenerse de hacer cualquier acto, tan explicito o implícita condición para soltar al individuo confiscado o detenido? c. Asesinato? d. El uso de alguna arma de fuego con intento de dañar, directa o indirectamente, la seguridad de una o mas personas o para causar grandes danos a propiedades? e. El uso de agente biológico, químico o arma u mecanismo nuclear, o explosivo, u otra arma u objeto peligroso con la intención de poner en peligro directa o indirectamente, la seguridad de uno o más individuos o dañar severamente una propiedad. 4. En alguna ocasión ha sido usted miembro de, solicitado dinero o miembros para, ofrecido apoyo para, asistido a entrenamiento militar (como se define en la sección 239D (c) (1) del titulo 18, del Código Legal de los Estados Unidos) por o en nombre de, o a estado asociado con una organización que: a. Esta calificada como organización terrorista bajo la sección 219 del Acto de Inmigración y Nacionalidad? b. Cualquier grupo de dos o mas personas, sea organizada o no que se ha involucrado o tiene un subgrupo que se ha involucrado en: i. Secuestro o sabotaje de un vehiculo de carga (incluyendo aviones, barcos o automóviles). ii. Capturar, detener o amenazar con matar, herir, o mantener detenido, a otra persona con la intención de obligar a que una tercera persona (incluyendo una oficina gubernamental) para que haga o deje de hacer algún acto como condición explicita o implícita para liberar al individuo que se tiene detenido o cautivo. iii. Asesinato? iv. El uso de arma de fuego con la intención de poner en peligro directa o indirectamente la seguridad de uno o mas individuos o causar grandes daños a una propiedad? v. El uso de un agente biológico o químico, arma o mecanismo nuclear, o explosivo, u otra arma u objeto peligroso con la intención de poner en peligro directa o indirectamente la seguridad de uno o mas individuos o causar grandes daños a una propiedad?

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vi. Solicitar dinero o miembros, o de alguna otra forma proporcionar material de apoyo a una organización terrorista? En los Estados Unidos pretende involucrarse en: a. Espionaje? b. Alguna actividad ilegal, o cualquier actividad cuya intención es oponerse o controlar o derrocar el gobierno de los Estados Unidos. c. Exclusiva, principal o esporádicamente en alguna actividad relacionada con el espionaje o violación de cualquier ley que trate con la exportación de bienes, tecnología o información estratégica? En alguna ocasión ha sido o continúa siendo miembro del partido Comunista o algún partido totalitario, a excepción cuando su presencia o participación haya sido involuntario. En asociación ya sea con el gobierno Nazi de Alemania o cualquier asociación aliada con el gobierno Nazi de Alemania durante el periodo del 23 de Marzo, 1933 al 8 de Mayo, 1945, alguna vez usted ordenó, incitó, ayudó o participó en la persecución de cualquier persona debido a su raza, religión, nacionalidad, miembro de una clase social en particular o tendencia política? EN ALGUNA OCASIÓN ha estado usted presente o cerca de una persona cuando esta haya sido: a. Intencionalmente asesinada, torturada, golpeada o herida? b. Desplazada o trasladada fuera de su residencia por la fuerza, coacción o violencia? c. Forzada o coaccionada para tener cualquier forma de contacto o relación sexual? d. Existen procedimientos de exclusión, rescisión, o deportación pendientes en su contra? e. Han sido iniciados procedimientos de exclusión, rescisión, o deportación pendientes en su contra. f. En alguna ocasión se le ha removido, excluido o deportado de los Estados Unidos? g. En alguna ocasión se le ordenó ser removido, excluido o deportado de los Estados Unidos? h. En alguna ocasión se le ha negado la visa o la entrada a los Estados Unidos? (Si la visa le fue negada, explíquelo en otra hoja de papel separada). i. En alguna ocasión se le ha otorgado partida voluntaria por un oficial de inmigración o por un juez de inmigración y usted no lo ha hecho dentro del límite de tiempo otorgado. EN ALGUNA OCASIÓN ha ordenado, cometido, asistido o ayudado con o de alguna otra manera participado en cualquier acto que haya consistido en: a. Tortura o genocidio? b. Asesinato, golpes o heridas a una persona? c. Lastimado severa e intencionalmente a otra persona?

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d. Participado en cualquier clase de contacto o relaciones sexuales con una persona que ha sido sometida a la fuerza, amenaza de fuerza, coacción o violencia? e. Limitado o negado a una persona ejercer sus creencias religiosas. EN ALGUNA OCASIÓN usted: a. Ha servido o ha sido miembro, o ha asistido o participado en una unidad militar, paramilitar, de policía, de defensa personal, de vigilante o en un grupo de rebeldes, guerrillas u organización revolucionaria? b. Ha servido en cualquier prisión, cárcel, reclusorio, unidad de detención, unidad de trabajos forzados o cualquier otro puesto que tenga que ver con custodia de prisioneros? En alguna vez usted ha sido miembro de, o ha asistido o participado en cualquier grupo, unidad u organización de cualquier tipo en la cual usted u otras personas poseían, transportaron o usaron cualquier tipo de armas? EN ALGUNA OCASIÓN ha usted asistido o participado en la venta o proveyendo armamento a cualquier persona quien a sabiendas las use en contra de otra persona, o in la transportación de armas para cualquier persona quien a sabiendas la use en contra de otra persona? Alguna vez usted ha recibido cualquier tipo de entrenamiento militar, paramilitar or de armamento? Esta usted bajo orden final o pena civil por violación de la sección 274C (hacer o usar documentación falsa para cumplir ilegalmente con el requisito de la ley de Inmigración? En alguna ocasión intentó obtener visa u otro tipo de documentación para entrar a los Estados Unidos u bien obtener algún otro beneficio de inmigración presentando documentos o información falsos o fraudulentos? En alguna ocasión abandonó los Estados Unidos para evitar ser reclutado en el ejercito de los Estados Unidos? Ha entrado alguna vez como visitante de intercambio con visa J que esta sujeta a vivir dos anos en el extranjero y a la fecha no ha cumplido con tal requisito ni ha obtenido el documento que le permita no hacerlo. En alguna ocasión ha detenido, retenido o mantenido fuera de los Estados Unidos a un menor que tenía derecho a la ciudadanía americana, cuya custodia había sido otorgada a un ciudadano de los Estados Unidos. Piensa usted practicar la poligamia en los Estados Unidos? Ha entrado a los Estados Unidos escondido entre la carga de un vehiculo? a. Tiene alguna enfermedad contagiosa de relevancia para la salud publica? b. Tiene o ha tenido una enfermedad física o mental (o alguna que por su historial tienda a repetirse) asociada con una enfermedad que implique el riesgo de que usted atente contra su propiedad, seguridad, capital o el de otras personas? c. Es ahora o ha sido adicto a las drogas o las ha consumido en exceso?

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T Visas November 2018 Step Forward Foundation PO Box 123 Morgan Hill, CA 95038 (408) 915-8698 T (408) 465-5288 F www.stepfwd.org

February 21, 2019 VIA USPS PRIORITY MAIL

Re:

Request for Law Enforcement Certifications Case No.: Victim:

Dear Det. Schneider: It was a pleasure speaking with you over the phone today about this case. I truly appreciate you taking the time to review her case and our requests for certifications. As I mentioned, I am requesting certifications for both the U Visa and the T Visa. I have enclosed the forms for your review and a return envelope should you choose to sign them. As promised, I have included an explanation as to my interpretation of the federal definition of human trafficking, which is the law I follow to practice immigration.

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Severe forms of trafficking in persons means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 8 CFR § 214.11(a). Recruitment, harboring, transportation, provision, or obtaining: Mr. C met Ms. L in China and when she came to the US on business, he convinced her to stay in the US illegally. Labor or Services: Mr. C had Ms. L work at his lightbulb sales business so he would not have to hire an employee. He paid her only $200 per month. Page 1 of 2

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Force, Fraud, or Coercion: Mr. C used fraud because he promised Ms. L that he would marry her and even perpetrated an elaborate ruse of filing a marriage license and lying about being actually married. He also abused her physically by choking her. She was afraid of Mr. C because he threatened to have her deported, which is threatened abuse of the legal process. Involuntary Servitude: Ms. L was forced to perform work at the lightbulb shop for her partner and to perform sexual services that she did not consent to, involving Mr. C defecating on her (even if she had originally consented to intercourse). Thank you again for your time and effort in this case. Please do not hesitate to contact me with any questions or concerns. Sincerely,

Managing Attorney

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Encl.

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(408) 915-8698 T (408) 465-5288 F www.stepfwd.org

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Karen Schulz, Esq. (CA # 273572) Step Forward Foundation PO Box 123 Morgan Hill, CA 95038 (408) 915-8698 T (408) 465-5288 F [email protected]

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA

PEOPLE OF THE STATE OF CALIFORNIA,

Case No. C1645801

Plaintiff

MOTION TO QUASH SUBPOENA DUCES TECUM

v. [DEFENDANT]

Date: Time: Before:

Xxxx Xxxxxxxx Xxxxxx,

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Defendant.

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TO ALL INTERESTED PARTIES:

For the reasons set forth in this motion, Karen Wynholds Schulz, attorney for [client], moves to quash Defendant’s subpoena duces tecum on the following grounds: (1) the records sought are covered by the attorney-client privilege, which has not been waived; (2) the records sought are also covered by the attorney work product privilege, which has also not been waived; (3) the subpoena unreasonably infringes on the complaining witness’s constitutional right to privacy under California law; (4) the subpoena is overbroad and irrelevant; (5) granting the subpoena would undermine critical government interests; and (5) the subpoena is unduly burdensome. BACKGROUND AND STATEMENT OF FACTS Ms. [client] is the biological mother of the victims on this case. Defendant has issued a subpoena duces tecum to Ms. Schulz for “any and all documents related to [her] U Visa Application.” [Subpoena dated Jan. 2, 2018]. Ms. [client]’s file contains supporting evidence, which sets forth sensitive private information and records, including, among other things, her and her daughters’ current location. Furthermore, Ms. [client] is not the direct victim in this case. However, because of her relation to the victims, their information is also contained in her immigration file. Ms. [client] sought a Law Enforcement Certification on Form I-918 Supplement B from the San Jose Police Department on April 26, 2017 and to the Santa Clara County District

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Attorney’s Office on May 3, 2017, which included a copy of the requested form and the police report. No application has been filed to any other agency. ARGUMENT I.

THE INFORMATION DEFENDANT SEEKS IS PRIVILEGED ATTORNEY-

CLIENT COMMUNICATION AND THE PRIVILEGE HAS NOT BEEN WAIVED. A. The Court Should Not Disclose the Victims’ Immigration File Because It Is a Privileged Communication Between the Client and Her Attorneys. Defendant seeks the disclosure of confidential communications between Ms. [client] to her lawyer. The California Constitution explicitly grants victims the right “to prevent the disclosure of confidential information or records,” particularly if those records “are otherwise

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privileged or confidential by law.” Cal. Const., art. I, § 28(b). The Court should not grant Defendant’s subpoena duces tecum because the file is protected by attorney-client privilege. Cal. Evid. Code § 954. The attorney-client privilege applies to the immigration files of Ms. [client], which include documents containing information derived from confidential communications between her and her immigration attorney. B. The Victim Did Not Waive the Attorney-Client Privilege. The records requested by Defendant should not be disclosed because Ms. [client] has not waived attorney-client privilege. Defendant bears the burden of proof by a preponderance of the evidence that the victims waived their attorney-client privilege. Cal. Evid. Code § 917; Trikek Telecom, Inc. v. Superior Court, 169 Cal. App. 4th 1385, 1390 (2009). Otherwise, all communications to Ms. Schulz are “presumed to have been made in confidence” and they may not be disclosed to the Court. Cal. Evid. Code § 917(a). 1. The Victims Did Not Waive Attorney-Client Privilege Because Requesting a Certification Was “Reasonably Necessary” and Contained Limited Information. Ms. [client] did not waive the attorney-client privilege because sending a request for a Law Enforcement Certification was “reasonably necessary” to achieve the immigration relief for which she sought legal assistance. A Law Enforcement Certification is an unwaivable requirement for U-1 Nonimmigrant Status. 8 C.F.R. § 214.14(b)(2)(i). Additionally, the request contains only information about the requestor and the incident upon which the certification is

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based. No waiver of privilege occurs “when disclosure is reasonably necessary for the accomplishment of the purpose for which the [lawyer] was consulted” and when the communication was made in confidence. Cal. Evid. Code § 912(d). For instance, a company’s disclosure of financial records to auditors, S.E.C. v. Roberts, 254 F.R.D. 371 (N.D. Cal. 2008), or an individual’s disclosure of health records to an insurance company, Pollock v. Superior Court, 93 Cal. App. 4th 817, 821 (Cal. App. 2d Dist. 2001)) does not waive privilege because the disclosures were: (1) confidential, (2) necessary to the accomplishment of the goals, and (3) related to the purpose for which the attorney was consulted.

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Here, the victims did not waive the attorney-client privilege because their communication to law enforcement was necessary to achieve immigration relief under the VTVPA, which was her primary purpose for seeking an attorney. Therefore, providing the information does not constitute a waiver of privilege. 2. Because Ms. [client] Did Not Demonstrate Any Intent to Abandon Secrecy, She Has Not Waived Attorney-Client Privilege. Ms. [client]’s records should not be disclosed to the Defendant because she has never demonstrated a “knowing and voluntary relinquishment of [the] attorney-client privilege.” FDIC v. Fidelity & Deposit Co., 196 F.R.D. 375, 380 (S.D. Cal. 2000). “The theory underlying the concept of waiver is that the holder of the privilege has abandoned the secrecy to which he is entitled under the privilege.” Cal. Evid. Code § 912, Cal. L. Revision Comm’n Comment (1965). Since the commencement of their attorney-client relationship, Ms. [client] has never evidenced an intent to abandon the secrecy surrounding her application. 3. Ms. [client]’s Disclosure to Law Enforcement Was a Selective Waiver of Privilege Against Those Agencies Alone, and Not a Universal Waiver of Privilege. Even if the Court deems that Ms. [client]’s communication to the San Jose Police Department and District Attorney’s Office constitutes a waiver of the attorney-client privilege, the Court should treat it as a selective waiver that does not permit disclosure of the requested records to Defendant. Under the selective waiver doctrine, voluntary disclosure of privileged material in some protected instances waives the privilege as to the recipient of the information,

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but not towards all other parties. See, e.g., Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 611 (8th Cir. 1977) (company that voluntarily discloses financial records to Securities and Exchange Commission did not waive attorney-client privilege towards other parties); Pollock v. Superior Court, 93 Cal. App. 4th 817, 821 (Cal. App. 2d Dist. 2001) (patient’s disclosure of medical records to insurance company waived privilege only towards insurance company); Edward J. Imwinkleried, The New Wigmore: A Treatise on Evidence 1019 (2d ed. 2010) (noting weight of scholarly authority in support of selective waiver doctrine). This Court should find a selective waiver existed and refuse to order the disclosure of the immigration files for Ms. [client]. Here, Ms. [client] did not ever disclose information beyond her involvement in the instant case as a reporting party and mother of the victims, including her

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name and date of birth and a copy of the police report. Although she submitted this information to law enforcement, she did not intend to waive the attorney-client privilege toward entities other than those agencies, nor any additional information not provided in the request. C. The Court Should Respect the Privacy of the Victims by Adjudicating on the Issue of Privilege Without Requiring Disclosure of Their Records, or in the Alternative, by Conducting a Private, In Camera Review. If the Court finds that there is a reasonable dispute as to whether a privilege applies, “the trial judge must accord a full hearing, with oral argument, before ordering revelation of client confidences to the other side and, in effect, compelling attorney testimony against a client.” Titmas v. Superior Court, 87 Cal. App. 4th 738, 740 (2001) (original italics). The Court is also responsible for protecting the privacy of non-parties, like Ms. [client], and crime victims like her daughters, and should conduct an in camera review if such a review would be absolutely necessary for a judicial determination. See Cal. Evid. Code § 915(b) (The Court may require that the victims disclose her application to the Court “in order to rule on the claim of privilege” only if there is “no other feasible means to rule on the validity of the claim other than to require disclosure.” If the Court finds after arguments that there is no alternative other than to require disclosure, the Court should examine the record “in chambers out of the presence and hearing of all persons” to respect the victims’ privacy. Cal. Evid. Code § 915(b). II.

THE INFORMATION DEFENDANT SEEKS IS PRIVILEGED UNDER

ATTORNEY WORK PRODUCT AND THE PRIVILEGE HAS NOT BEEN WAIVED. A. The Court Should Not Disclose Ms. [client]’s Immigration File Because It Is

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Privileged Under the Attorney Work Product Doctrine. Defendant seeks the disclosure of privileged attorney work product. An attorney’s work product consists of “[a] writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories,” which will necessarily be contained in the victims’ file. Cal. Evid. Code § 2018.030(a). Such documents are “not discoverable under any circumstances.” Id. (emphasis added). Any information in the file the Court finds is not covered under the attorneyclient privilege, will be covered under the attorney work product privilege and therefore should not be disclosed.

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B. Ms. Schulz on Her Behalf and on Behalf of Those Persons Working Under Her Supervision, Did Not Waive the Work Product Privilege. Ms. Schulz, as the attorney who handled the entire immigration case for Ms. [client], and is current custodian of the records, has not ever, and does not, waive on her behalf or on behalf of those working under her supervision, work product privilege. The documents and research covered under this privilege, therefore, should not be disclosed. III.

THE SUBPOENA SHOULD BE QUASHED BECAUSE IT UNREASONABLY

INFRINGES ON THE VICTIMS’ CONSTITUTIONAL RIGHTS OF PRIVACY AND FREEDOM FROM HARASSMENT. The California Constitution protects privacy as an “unalienable right,” Cal. Const., art. I, § 1, that is “on a par with defending life and possessing property,” Rubio v. Superior Court, 202 Cal. App. 3d 1343, 1349 (Cal. App. 4th Dist. 1988) (quoting Vinson v. Superior Court, 43 Cal. 3d 833, 841 (Cal. 1987)). The State of California has also endorsed a strong interest in protecting victims’ rights specifically during criminal prosecutions, which include the right to not disclose information to the defendant that would lead to a violation of the victim’s rights to confidentiality, privacy, safety, and recovery. In 2008, the Victims’ Bill of Rights (also known as Marsy’ Law) specifically amended the California Constitution to include the right of victims “[t]o prevent the disclosure of confidential information or records to the defendant,” Cal. Const., art. I, § 28(b)(4) (emphasis added); to “refuse an interview, deposition, or discovery request by the defendant,” Cal. Const., art. I, § 28(b)(5); “[t]o be free from intimidation, harassment, and

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abuse, throughout the criminal … justice process,” Cal. Const., art. I, § 28(b)(1); and “[t]o be reasonably protected from the defendant.” Cal. Const., art. I, § 28(b)(2). This language elevates the victim’s privacy privilege to constitutional status. Although the constitutional privacy protection is not absolute, “[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation on the right of privacy.” Boler v. Superior Court, 201 Cal. App. 3d 467, 473 (1987). The Defendant’s rights to a fair trial do not outweigh the victims’ imperative need to protect their privacy. Although Ms. [client] is not the direct victim, as the mother of the victims, information about the victims is contained within the file. “An impairment of the privacy interest ‘passes constitutional muster only if it is necessary to achieve the compelling interest.’”

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Brillantes, 51 Cal. App. 4th at 342-43 (emphasis added). A finding of necessity requires the court to consider alternative means of disclosure, and “requires that the [subpoenaing party] utilize the ‘least intrusive’ means to satisfy its interest.” Brillantes, 51 Cal. App. 4th at 343. Additionally, the Defendant’s undefined need for the confidential documents does not meet the requirements to be considered “necessary.” The Defendant is clearly seeking access to documents without any specificity and is on a fishing expedition. The Defendant does not provide any reason for the request. Such a process in no way necessitates gaining access to privileged records and is not an integral part of receiving a fair trial and competent defense. Since the constitutional right to privacy attaches to the victims’ records and is not outweighed by the Defendant’s need for these requested records, the subpoena should be quashed. It is unnecessary for the Court to order the production of any of the immigration files. All of the victims’ files held by Ms. Schulz is entirely covered under the privilege of privacy guaranteed by the California Constitution. IV.

THE SUBPOENA SHOULD BE QUASHED BECAUSE IT IS OVERBROAD AND

IRRELEVANT. The Court should quash any part of the subpoena that Defendant has not affirmatively shown is relevant and necessary to his defense. Fabricant v. Superior Court, 104 Cal. App. 3d 905, 915 (1980). Section 210 of the California Evidence Code defines relevant evidence as evidence “having any tendency in reason to prove or disprove a disputed fact that is of consequence to the determination of the action.” Cal. Evid. Code § 210. Defendant must “identify any particular information which would be of benefit to the defendant,” Hammon, 15

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Cal. 4th 1117, 1121 (Cal. 1997), and make specific allegations about the factual basis of its materiality. See also Lee v. Superior Court, 177 Cal. App. 4th 1108, 1129 (Cal. App. 4th Dist. 2009) (holding that bare legal conclusions that information was necessary for “fair and effective presentation at trial” was not sufficient to establish good cause for subpoena); Davis v. Superior Court, 7 Cal. App. 4th 1008, 1017 (Cal. App. 5th Dist. 1992) (“Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.”).

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Defendant has failed to demonstrate any relevance and materiality of the victims’ applications any level of specificity. Here, the requested records are neither necessary nor relevant to the defense, in particular because Ms. [client] is not the direct victim. In addition, the Defendant’s subpoena failed to name the requested documents with any specificity whatsoever, nor any explanation of relevance. V.

THE COURT SHOULD QUASH THE SUBPOENA TO PROTECT CRITICAL

GOVERNMENT INTERESTS. It is well-settled that the Court has “broad discretion” to quash a criminal defendant’s subpoena if it “might unduly hamper the prosecution or violate some other legitimate governmental interest.” Hill v. Superior Court, 10 Cal. 3d 812, 817 (1974). The federal government and the State of California have repeatedly expressed critical governmental interests in protecting crime victims, preserving victims’ rights, and encouraging cooperation with law enforcement regardless of immigration status. The Court should quash Defendant’s subpoena because disclosure of Ms. [client]’s file would undermine these legitimate government interests. The State of California has endorsed a strong interest in protecting victims’ rights during criminal prosecutions, which include the right to not disclose information to the defendant that would lead to a violation of the victim’s rights to confidentiality, privacy, safety, and recovery. In 2008, the Victims’ Bill of Rights specifically amended the California Constitution to include the right of victims “[t]o prevent the disclosure of confidential information or records to the defendant,” Cal. Const., art. I, § 28(b)(4) (emphasis added); to “refuse an interview, deposition, or

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discovery request by the defendant”, Cal. Const., art. I, § 28(b)(5); “[t]o be free from intimidation, harassment, and abuse, throughout the criminal . . . justice process,” Cal. Const., art. I, § 28(b)(1); and “[t]o be reasonably protected from the defendant.” Cal. Const., art. I, § 28(b)(2). The recent amendments to the California Constitution should weigh against disclosure here. Furthermore, the federal government, in enacting the VTVPA, has demonstrated an exceptional interest in encouraging undocumented victims of crime to cooperate with law enforcement, Pub. L. No. 106-386, § 1513(a)(2)(B), and protecting victims of domestic violence, Pub. L. No. 106-386, § 1513(a)(2)(A). Through the VTVPA, the federal government has embraced the goal of preventing perpetrators from exercising “undue control over the [non-

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citizen crime victims] through manipulation of the legal system.” 8 C.F.R. § 214.14(a)(14)(ii)(B)(2). Municipal authorities in the State of California have similarly acknowledged local authorities’ interests in promoting the law enforcement and crime victim protection goals of VTVPA. Permitting disclosure of Ms. [client]’s records risks undermining these very government interests. If victims and their families know that courts may order the disclosure of the personal information in immigration applications to their abusers, they will be severely discouraged from reporting crime. In the domestic violence context, the protection of victim confidentiality constitutes a critical federal and state interest, particularly with respect to preventing further physical, emotional, and psychological manipulation by abusers. See, e.g., Violence Against Women Act, 42 U.S.C. § 13925 (Congressional finding that lack of confidentiality had been one of the two “most significant barriers to young victims of domestic and dating violence seeking help”); Cal. Evid. Code § 1037.2 (special privilege for confidential communications between victims and their domestic violence counselors); 42 U.S.C. §§ 14043b; 11383 (federal confidentiality protections for victims of domestic violence who disclose information to shelters or housing providers). Permitting disclosure of Ms. [client]’s files would violate the clear government interest in keeping sexual abuse victims’ records confidential. The Court should respect these critical government interests and order Defendant’s subpoena to be quashed. VI.

CONCLUSION For the above stated reasons, Ms. Schulz should not be compelled to produce Ms.

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[client]’s privileged files. The subpoena is overbroad, irrelevant, unnecessary, and thus unreasonable. Ordering disclosure would violate legitimate government interests and violate the victims’ right to privacy and attorney-client privilege. We therefore respectfully request that this court GRANT the motion to quash.

DATED: _________________________________ Karen Schulz Managing Attorney

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INSTRUCTIONS FOR FINGERPRINTING OF FAMILY MEMBERS AT THE UNITED STATES EMBASSY/CONSULATE IN YOUR COUNTRY 1. Your family member ___________________ has been sent a request to have their fingerprints taken at the United States Embassy/Consulate in ___________________. 2. The deadline for completing these fingerprints AND returning the fingerprint cards to the US Immigration is: _________________________ 3. PLEASE DO THE FOLLOWING AS SOON AS POSSIBLE: a. Please send this packet to your family member via an overnight service like DHL or FEDEX. b. Include these instructions with the packet. c. Your family member will need to take this packet to the U.S. Embassy or Consulate located at:__________________________________________________________ d. In addition to the packet, your relative should take an official identification document, such as a passport, national identity card, voter identification card, military identification card or driver’s license. e. At the U.S. Embassy or Consulate, you should provide the person at the counter your packet. If the person at the desk does not know what to do or says you need an appointment first, please ask to speak to the USCIS (Immigration) officer. That USCIS officer should understand the packet and the importance of meeting the deadline for returning the fingerprints to USCIS in Vermont.

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f.

Once your family member is fingerprinted, the Embassy or Consulate will do one of two things: • The Embassy or Consulate may want to send the fingerprints directly to USCIS/Vermont Service Center. Make sure the Embassy/Consulate has the blue sheet of paper to include with the fingerprints, so the fingerprints get to the right file. • The Embassy or Consulate may return the completed fingerprints to your family. Your family member can send the fingerprints and the blue paper directly by overnight service (DHL, FEDEX, etc.) to: USCIS, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479-0001 OR Your relative can return the fingerprints and blue sheet via overnight services (DHL, FEDEX, etc.) to our office: (Your office address). It is important to note that if your family member chooses this option that they forward the documents as soon as possible so our office has time to forward them to Immigration in time to meet the deadline.

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INSTRUCTIONS FOR FINGERPRINTING OF FAMILY MEMBERS AT THE UNITED STATES EMBASSY/CONSULATE IN YOUR COUNTRY 4. Your family member ___________________ has been sent a request to have their fingerprints taken at the United States Embassy/Consulate in ___________________. 5. The deadline for completing these fingerprints AND returning the fingerprint cards to the US Immigration is: _________________________ 6. PLEASE DO THE FOLLOWING AS SOON AS POSSIBLE: g. Please send this packet to your family member via an overnight service like DHL or FEDEX. h. Include these instructions with the packet. i.

Your family member will need to take this packet to the U.S. Embassy or Consulate located at:__________________________________________________________

j.

In addition to the packet, your relative should take an official identification document, such as a passport, national identity card, voter identification card, military identification card or driver’s license.

k. At the U.S. Embassy or Consulate, you should provide the person at the counter your packet. If the person at the desk does not know what to do or says you need an appointment first, please ask to speak to the USCIS (Immigration) officer. That USCIS officer should understand the packet and the importance of meeting the deadline for returning the fingerprints to USCIS in Vermont. l.

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OR

Once your family member is fingerprinted, the Embassy or Consulate will do one of two things: • The Embassy or Consulate may want to send the fingerprints directly to USCIS/Vermont Service Center. Make sure the Embassy/Consulate has the blue sheet of paper to include with the fingerprints, so the fingerprints get to the right file. • The Embassy or Consulate may return the completed fingerprints to your family. Your family member can send the fingerprints and the blue paper directly by overnight service (DHL, FEDEX, etc.) to: USCIS, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479-0001 Your relative can return the fingerprints and blue sheet via overnight services (DHL, FEDEX, etc.) to our office: KGACLC/SCU attn.: Lynette Parker, 1030 The Alameda, San Jose, CA 95126. It is important to note that if your family member chooses this option that they forward the documents as soon as possible so our office has time to forward them to Immigration in time to meet the deadline.

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INSTRUCCIONES PARA OBTENER LAS HUELLAS DIGITALES DE SUS FAMILIARES EN LA EMBAJADA NORTEAMERICANA O EL CONSULADO DE SU PAIS.

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1. Su familiar ___________________ ha sido citado a obtener sus huellas digitales en la Embajada Norteamericana de ___________________. 2. La fecha límite para completar y obtener las huellas digitales Y regresar los tarjetones dactilares al Servicio de Inmigración de los Estados Unidos es: __________________________. 3. POR FAVOR, SIGA ESTAS INSTRUCCIONES, LO MAS PRONTO POSIBLE: a. Por favor envíe este paquete a su familiar a través de servicio de paquetería nocturno DHL o FEDEX. b. Incluya estas instrucciones junto al paquete. c. Su familiar necesitara llevar este paquete a la Embajada Norteamericana o Consulado localizado en:___________________________________________ d. Además de este paquete, su familiar debe llevar una identificación oficial, tal come el pasaporte, tarjeta de identidad nacional, tarjeta de registro electoral, tarjeta o cartilla militar o licencia de conducir. e. Una vez que llegue a la Embajada Norteamericana o el Consulado, su familiar deberá presentar todos los documentos cuando le sea requerido. Si la persona en el foro de información no sabe que hacer, o le dice que necesita hacer una cita primero, por favor pida hablar con un oficial de inmigración (USCIS). El oficial de inmigración sabrá que hacer con el paquete y la importancia de completar las huellas digitales y regresar todo el paquete a inmigración en Estados Unidos antes de la fecha limite. f. Una vez que hayan obtenido las huellas digitales de su familiar, la Embajada hará una de estas dos cosas: • La Embajada o Consulado decidirá enviar el paquete de regreso directamente al Centro de Servicio de Vermont, USA. Si esto pasa asegúrese que la Embajada/Consulado tiene la hoja de papel azul para que la incluyan junto a las huellas digitales y así los tarjetones dactilares lleguen correctamente a su destino final. • La Embajada o Consulado pudiese regresar los tarjetones dactilares a su familiar. Si esto pasa, su familiar puede enviarlos junto con la hoja de papel azul directamente, y por servicio rápido (DHL, FEDEX, etc.) a esta dirección: USCIS, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479-0001 • Su familiar puede regresar los tarjetones dactilares y la hoja azul por servicio rápido nocturno (DHL, FEDEX, etc.) a nuestra oficina: Su domicilio. Es muy importante que sepa que si su familiar decide esta opción, su familiar tiene que enviar el paquete lo mas pronto posible para que de esta manera nuestra oficina tenga tiempo suficiente para enviarlos al servicio de inmigración dentro del tiempo limite.

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INSTRUCCIONES PARA OBTENER LAS HUELLAS DIGITALES DE SUS FAMILIARES EN LA EMBAJADA NORTEAMERICANA O EL CONSULADO DE SU PAIS.

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4. Su familiar ___________________ ha sido citado a obtener sus huellas digitales en la Embajada Norteamericana de ___________________. 5. La fecha límite para completar y obtener las huellas digitales Y regresar los tarjetones dactilares al Servicio de Inmigración de los Estados Unidos es: _______________________. 6. POR FAVOR, SIGA ESTAS INSTRUCCIONES, LO MAS PRONTO POSIBLE: g. Por favor envíe este paquete a su familiar a través de servicio de paquetería nocturno DHL o FEDEX. h. Incluya estas instrucciones junto al paquete. i. Su familiar necesitara llevar este paquete a la Embajada Norteamericana o Consulado localizado en:___________________________________________ j. Además de este paquete, su familiar debe llevar una identificación oficial, tal come el pasaporte, tarjeta de identidad nacional, tarjeta de registro electoral, tarjeta o cartilla militar o licencia de conducir. k. Una vez que llegue a la Embajada Norteamericana o el Consulado, su familiar deberá presentar todos los documentos cuando le sea requerido. Si la persona en el foro de información no sabe que hacer, o le dice que necesita hacer una cita primero, por favor pida hablar con un oficial de inmigración (USCIS). El oficial de inmigración sabrá que hacer con el paquete y la importancia de completar las huellas digitales y regresar todo el paquete a inmigración en Estados Unidos antes de la fecha limite. l. Una vez que hayan obtenido las huellas digitales de su familiar, la Embajada hará una de estas dos cosas: • La Embajada o Consulado decidirá enviar el paquete de regreso directamente al Centro de Servicio de Vermont, USA. Si esto pasa asegúrese que la Embajada/Consulado tiene la hoja de papel azul para que la incluyan junto a las huellas digitales y así los tarjetones dactilares lleguen correctamente a su destino final. • La Embajada o Consulado pudiese regresar los tarjetones dactilares a su familiar. Si esto pasa, su familiar puede enviarlos junto con la hoja de papel azul directamente, y por servicio rápido (DHL, FEDEX, etc.) a esta dirección: USCIS, Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479-0001 • Su familiar puede regresar los tarjetones dactilares y la hoja azul por servicio rápido nocturno (DHL, FEDEX, etc.) a nuestra oficina: KGACLC/SCU attn.: Lynette Parker, 1030 The Alameda San Jose, CA 95126. Es muy importante que sepa que si su familiar decide esta opción, su familiar tiene que enviar el paquete lo mas pronto posible para que de esta manera nuestra oficina tenga tiempo suficiente para enviarlos al servicio de inmigración dentro del tiempo limite.

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APPENDIX W

Date:____________

FBI CJIS Division Special Correspondence Unit 1000 Custer Hollow Road Clarksburg, WV 26306

Dear CJIS Division: I request a check of my FBI record. I enclose my fingerprint card and a money order in the amount of $18.00 payable to “Treasury of the United States.” Please send the record to me at the address below: ________________________________ ________________________________ ________________________________ ________________________________ Thank you.

Appendices

Sincerely,

______________________ (Signature) ______________________ (Print Name)

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FBI Attn: SCU 1000 Custer Hollow Road Clarksburg, WV 26306 December 15, 2009 Re:

NAME OF CLIENT, Date of Birth: xx/xx/xxxx INQUIRY RE: FBI CLEARANCE REQUESTED on 10/07/2009 AND NOT YET RECEIVED

I am writing to inquire about my FBI Clearance Request that I sent to your office on October 7, 2009. My request was complete and contained (1) a cover letter signed by me making the request; (2) a fingerprint card containing my fingerprints and biographic information; and (3) a money order for $18.00 made out to “U.S. Treasury Dept.” Please see copy enclosed. I am also enclosing the US Postal Service Track and Confirm Printout which indicates that my request was received at Clarksburg, WV 26306 on October 13, 2009. Although my request appears to have been received by your office on October 13, 2009, I still have not received any response to my request. Please process my previously submitted documentation and forward my FBI Clearance to me as soon as possible at the following address: Name of Client Address of Client Thank you very much for your time and attention to this matter. Sincerely, Name of Client

Appendices

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Instrucciones para obtener una verificación de su record de FBI 1. Obtener sus huellas digitales tomadas para una verificación de antecedentes por el FBI. 2. Llenélo la parte superior del formulario de huellas digitales. Es importante firmar la forma, y es muy importante que la persona que toma sus huellas digitales firme el formulario también. Lista la razon por la verificación como: “Personal Record”.

Appendices

1. Mándelo la tarjeta de sus huellas y un money order a nombre de “Treasury of the United States” de $18 al FBI con la carta en la reversa de este hoja.

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October 11, 2018 VIA Certified Mail T Visa Unit (EAD) United States Citizenship and Immigration Services Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479-0001 Re: Applicant: File No.

I-765, Application for Employment Authorization XXXX,xxxx AXXX XXX XXX

Dear USCIS Officer: The Katharine and George Alexander Community Law Center is filing Form I-765, Application for Employment Authorization on behalf of Xxxx Xxxx XXXX XX who is the son of a human trafficking victim, Xxxx Xxxx XXXXX. Xxxx Xxxx XXXX XX entered the United States on July xx, 2018 with a T-3 visa. He is now applying for an employment authorization. Enclosed please find the following application forms and supporting documents: • • • • • •

2 Original Passport size Photos Filing Fee in the amount of $410.00 Form I-765, Application for Employment Authorization Form G-28, Notice of Entry of Appearance as Attorney Copy of T-3 Visa and Entry Stamp in Passport Copy of I-914A Approval Notice for Mr. Xxxx Xxxx XXXX XX

Appendices

We respectfully request that USCIS issue an EAD card for Mr. Xxxx Xxxx XXXX XX. If you have any questions, please feel free to call the Katharine and George Alexander Community Law Center at (408) XXX XXXX. Thank you for your kind attention to the matter. Sincerely,

Xxxx Xxxxx Law Student working under the supervision of

Lynette Parker Assoc. Clinical Professor of Law

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Requesting a “Non-Opposition” for Your Motion. The best practice prior to filing a motion in immigration court is to first ask the Office of Chief Counsel if they will agree to a “nonopposition” to your motion. If they do agree, you can file your motion unopposed, thus increasing your chances for a quick approval from the immigration judge. If you do not have their agreement, the immigration judge will have to wait until they weigh in or until 15 days have passed since your motion was received, whichever is sooner. In the San Francisco office, the preferred method of communication with the Office of Chief Counsel for a request for non-opposition is email. This may work in other jurisdictions as well. In order to request a non-opposition, you can email the duty attorney (the San Francisco ICE Office of the Chief Counsel duty attorney can be reached via email at [email protected]). For any type of motion, including for a continuance, administrative closure, or termination, it is best to scan and attach your G-28 and the receipt notice or approval notice (depending on whether your case is pending or approved), and then in the body of the email give the particulars of your request and include the client’s full name, A number and the date of the client’s next hearing. For a motion for administrative closure, you may wish to use the below sample language in an email to the Office of Chief Counsel (with the client’s name and A number and “Request for nonopposition to motion to admin close for T visa applicant” in the subject line): I am writing to see if you would be willing to state your non-opposition to a motion for administrative closure for First Name LAST NAME, A _____. Her next master calendar hearing is currently scheduled for _____ before Judge ____. We submitted an application for T nonimmigrant status to the USCIS Vermont Service Center on ______ (see scanned receipt notices attached) and it is still pending. My E-28 and G-28 are scanned and attached. Thank you for your consideration of this request. For a motion for a continuance, you may wish to use the below sample language in an email to the Office of Chief Counsel (with the client’s name and A number and “request for nonopposition to motion for continuance for T visa applicant” in the subject line):

Appendices

I am writing to see if you would be willing to state your non-opposition to a motion for a continuance of a master calendar hearing for First Name LAST NAME, A _____. Her next master calendar hearing is currently scheduled for _____ before Judge ____. We submitted an application for T nonimmigrant status to the USCIS Vermont Service Center on ______ (see scanned receipt notices attached) and it is still pending. My E-28 and G-28 are scanned and attached. Thank you for your consideration of this request. For a motion to terminate an approved T case, you may wish to use the below sample language in an email to the Office of Chief Counsel (with the client’s name and A number and “request for non-opposition to motion to terminate for approved T visa applicant” in the subject line): I am writing to request a non-opposition for a motion to terminate. I just received the approval notice for First Name LAST NAME’s T visa application and now I would like to submit a motion for termination to Judge _____ by mail. The client’s next master calendar hearing is on ______. I have attached a scanned copy of the approval notice as well as a scanned copy of my E-28 and G28. Thank you for your consideration of this request.

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[DATE] [NAME OF SOCIAL SERVICES DEPARTMENT] [ADDRESS] RE: [CLIENT’S NAME] To Whom It May Concern: [YOUR ORGANIZATION OR NAME] provides [pro bono/low-cost] advice and representation to low-income clients seeking help in immigration matters. Ms. [CLIENT’S NAME], DOB ______________, initiated services with our organization on [DATE]. [We/I] currently represent Ms. [CLIENT’S NAME] in her application for a T-visa, as a victim of human trafficking. As a victim of human trafficking she is eligible for California social service benefits. Thank you for your assistance.

Sincerely,

Appendices

[YOUR NAME] [YOUR TITLE]

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INTERPRETER CONFIDENTIALITY AGREEMENT I, _______________________, as an interpreter, will be permitted to have access to client information in order to perform interpretation and translation work related to ___________________, a client(s) of Asian Pacific Islander Legal Outreach (“APILO”). I certify that I discussed that I do not have any conflicts of interests with the identified parties of this case. I agree to keep all information that I learn about the client confidential and that my work is entirely in purview of legal work done for the client, and therefore subject to similar work-product and attorney-client privileges. I understand that I have the same responsibility to keep all information confidential and privileged to the best of my ability. I understand that I may not discuss or disclose any information related to any client to anyone besides his legal representatives. I further understand that I may learn personal information about a client and/or his or her family that is private. I understand that it is my duty and responsibility to preserve and protect this privacy and confidentiality. I understand that I am not a case manager for this client and I am not to provide social services outside the purview of an interpreter solely for the purposes of legal work for the client. I understand that this duty will extend after I am no longer working for APILO. Both state and federal laws protect the confidentiality of clients. By placing my signature below, I hereby indicate that I understand and agree to maintain the privacy of the client(s)’ case-related and

Appendices

personal information.

___________________________ Interpreter’s Signature

___________________________ Date

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Cooperation Agreement for Common Interest of Clients

Dear Ms. Liou:

As you know, we are representing XXXXXXX during the EEOC conciliation process. I understand that you represent XXXXXXXX in a matter concerning immigration. I am writing to confirm our understanding that because our clients share a common interest, any discussions we have or confidential information we share with each other or other lawyers or legal staff from the Legal Aid Society – Employment Law Center and Asian Pacific Islander Legal Outreach concerning XXXXXXXX are not intended to, and shall not, waive or diminish in any way the confidentiality of such discussions or information or their continued protection under the attorney-client privilege, the work product doctrine, or other applicable privileges or protections as against third parties. In order to protect confidential information under the common interest doctrine, Legal Aid Society – Employment Law Center and Asian Pacific Islander Legal Outreach will only share information related to the common interest of clients and that is reasonably necessary for the purpose for which they are consulting. Legal Aid Society – Employment Law Center and Asian Pacific Islander Legal Outreach will keep information confidential. Both you and we will convey to XXXXXXXX that in order to protect the attorney-client relationship in both their individual immigration cases as well the as EEOC process, all communications between her lawyers or legal staff from Legal Aid Society – Employment Law Center and Asian Pacific Islander Legal Outreach will be confidential and any information gained by any of the above-mentioned lawyers or legal staff will not be shared outside of Legal Aid Society – Employment Law Center and Asian Pacific Islander Legal Outreach. Both Legal Aid Society – Employment Law Center and Asian Pacific Islander Legal Outreach will advise XXXXXXX to keep exchanged information confidential as well.

___________________

[ATTORNEY NAME]

date

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__________________________

Legal Aid Society – Employment Law Center

_________________________

____________________

Cindy Liou

date

Asian Pacific Islander Legal Outreach

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November 2018

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Attorney of the Day Service ILRC Technical Assistance

Since 1979, the ILRC has provided a unique, nationwide consultation service called Attorney of the Day (AOD), in which your immigration case questions are answered by our expert staff attorneys. We offer consultations on several aspects of immigration law to attorneys, employees of nonprofit organizations, public defenders, and other practitioners that assist immigrants. There are two options available:

Contract Service

This option allows you to secure an on-going contract with us for a lower rate than the one-time consultation fee. You can create an individual or group contract so that members of your organization have access to this service. To begin the process, we obtain a signed contract and collect an initial deposit. Each time you contact us with a question, we will deduct the pro-rated charge from this deposit. You will be billed when your account falls below $50.

One-Time Consultation

This option allows you to ask questions on a one-time basis. Payment must be made by VISA, MasterCard, or American Express. Please have your credit card information handy when you contact us. There is a minimum charge of 1/10 hour. All charges will be prorated. AOD consultation hours are Monday through Thursday between 10:00 am and 3:00 pm Pacific time. Inquiries will be answered within two business days, excluding Fridays. Questions can be sent to [email protected]. For more information, please visit https://www.ilrc.org/technical-assistance or call 415255-9499.

Reprint Permissions To reprint any of the information contained in an ILRC publication, please see our Reprint Permissions Policy available on our website at: https://www.ilrc.org/publications/reprint-permissions The following are guidelines for ILRC materials to appear in printed or electronic* format: All materials produced or published by the ILRC are protected by copyright. By submitting a request form, you agree to abide by our copyright restrictions and requirements. *For access to ILRC materials on intranets or public websites, ILRC will only allow for hyperlinking to the electronic materials already available on ILRC’s website, and grantee will specifically state that the ILRC material is available only for internal use and not for commercial use or mass distribution. For materials to appear in printed, electronic, or audio format, you may be granted a one-time usage license to copy and distribute the materials. You may not modify, delete or add any text, images or audio to the materials without express permission from the ILRC. All materials must be copied or distributed in whole, not in part. If the materials are to appear within another medium, or as a shortened version of the original, ILRC must review the particular usage before it can grant permission. All materials must be used in conjunction with the following credit line: Reprinted from [insert name of the original material] with permission of the Immigrant Legal Resource Center, San Francisco, CA, 415-255-9499; www.ilrc.org.

Subscribe to ILRC Listservs The ILRC maintains several e-mail listservs that address developments within specific areas of immigration law. We welcome you to join one or all of them. To do so, follow these instructions for each hotline, and YOU must self-subscribe to the ones of your choosing. You can join the listservs by visiting https://www.ilrc.org/subscribe, then select “Subscribe” and complete the simple form as instructed. There are eight lists to choose from: Education @ ILRC Want to stay informed about ILRC training opportunities and recent publication releases? This listserv will be dedicated to keeping you updated about our unique and timely educational resources. Famvisa Family immigration topics and updates, including legal developments and practitioner materials pertaining to accessing and applying the benefits of 245(i) through the LIFE Act. SIJS (Special Immigrant Juvenile Status) Immigrant children’s rights advocacy and policy updates. NACARA (Nicaraguan Adjustment & Central American Relief Act) Network of advocates, pro bono attorneys, and nonprofit agencies who are working directly with clients in the adjustment process.

ESSENTIAL ILRC PUBLICATIONS

The U Visa: Obtaining Status for Immigrant Victims of Crime This manual will guide you through the entire process of handling an immigration case for a U nonimmigrant applicant—from eligibility screening through adjustment of status to assisting eligible family members. In addition to providing a thorough explanation of the requirements and process, it includes numerous sample materials to help you in handling your client’s case, such as immigration forms you will need, sample checklists, declarations, receipt notices and other correspondence you can expect to receive from USCIS, motions to submit to the immigration court, and more. Essentials of Asylum Law The second edition of this comprehensive survey of the basic elements of asylum law now includes a thorough overview of asylum procedure, complete with practice tips for preparing and presenting an asylum claim. This publication is intended for advocates who want to understand the law and are new to representing asylum clients, as well as for seasoned practitioners needing a thorough review of current standards. Special Immigrant Juvenile Status & Other Immigration Options for Children & Youth This manual is an essential guide for those representing the increased number of unaccompanied minors who have migrated to the United States in recent years, as well as those representing immigrant youth who were brought to the US at a young age and know no other home. This manual provides background and guidance on the protections, procedures, and immigration options for immigrant children, including unaccompanied minors under the TVPRA. It contains an in-depth discussion of the legal requirements for SIJS eligibility, including “one-parent” SIJS cases, and step-by-step guidance for representing SIJS-eligible youth in both affirmative and defensive applications. The VAWA Manual This comprehensive manual includes information for advocates working with immigrant survivors of domestic violence. Consisting of thirteen chapters, this guide provides in-depth information on VAWA self-petitioning requirements and procedures, adjustment of status, inadmissibility grounds and waivers, removal proceedings and motions to reopen, VAWA cancellation of removal, conditional permanent residency, U nonimmigrant status for victims of crime, consular processing, and more. To receive information on new publications: Sign up for our Education Listserve at www.ilrc.org/subscribe