TVISA

TVISA Application (PDF)

Commentary:

The Immigration Status of a Victim of Trafficking in Persons:
An Overview of the U.S. Law and Foreign Laws

Trafficking in persons as an immigration law issue
In this section, we will focus on trafficking in persons as an immigration issue, an important issue that must be addressed in addition to trafficking as a criminal justice issue and trafficking as a human rights issue.
 

Addressing immigration issues in the context of trafficking is based on several premises. First, we are talking about transnational trafficking as opposed to domestic trafficking, which implies an issue of "illegal entry," entry into a foreign country from the country of origin to the country of destination. Second, we are talking about aliens, whether illegal aliens who entered this country illegally or aliens who entered the country legally but overstayed their student, tourist or business visa. Third, we are talking about "legal coercion." Traffickers take advantage of the illegal status of the trafficked person and threaten to report their illegal status, causing fear of deportation.

The law does not distinguish between foreign and domestic victims of trafficking in receiving benefits, but the provisions concerning certification and residency status apply only to aliens.

The mere fact that the trafficked person is an alien, an immigrant or a non-immigrant means different languages, different laws and different cultures. The victim cannot just pack up and leave, as Justice Silverman said in United States v. Castaneda.

The immigration benefits granted to victims of trafficking
How does immigration law respond to the issue of trafficking in persons? We are talking about one of the benefits granted to victims of trafficking: the immigration benefits.

Once an application for a T-1 visa is determined to be bona fide by the Bureau of Citizenship and Immigration Services of the Department of Homeland Security, an applicant aged 18 or older may apply to the Department of Health and Human Services to be certified as a victim
of trafficking to receive benefits granted under the TVPA. Victims under the age of 18 do not need to be certified, nor do they need to submit a bona fide application for a T visa in order to receive such benefits. With the T-status comes a simultaneous employment authorization.

Eligibility for the T-visa under U.S. law: What is a victim of a severe form of trafficking?
To be eligible for a T-visa, the applicant must prove that he or she is a victim of a severe form of trafficking in persons, as defined by section 103(8) of the TVPA to mean

(A) 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
(B) 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.

In cases of labor trafficking you still have to prove force, fraud or coercion if the trafficked person is a child. In cases of sex trafficking, child trafficking is per se trafficking. An adult involved in a commercial sexual act that is not induced by force, fraud or coercion will not be considered a victim of a severe form of trafficking in persons and, therefore, not entitled to benefits. But you do not have to prove legal or physical coercion as the case under
Kozminski: any "serious harm" will do.

The T visa is not available for a smuggled alien, that is, someone who voluntarily contracted to be smuggled across a border and was not subjected to force, fraud or coercion, unless, after the arrival, the smuggler used such means to force the person into involuntary servitude. In such case the initial consent becomes irrelevant. The applicant must submit a statement describing the facts of their victimization. The first line of a T-visa application will
include "I am a victim of a severe form of trafficking in persons."
 

A victim of a severe form of trafficking in persons whose victimization occurred prior to the passing of the TVPA (October 28, 2000) may still file an application for a T-visa within one year of the effective date of this rule of section 214 11(d)(4) or within one year after the victim reaches his or her 21st birthday, whichever comes later. What is required is only "assistance," the willingness to assist with law enforcement agencies in investigating and prosecuting the perpetrators of these crimes.

Comparative analysis of the status of a victim of trafficking in foreign countries
According to Article 7 of the UN Protocol, state parties shall consider "adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in the state's territory, temporarily or permanently, in appropriate cases."

The U.S. Department of State's model law to combat trafficking in persons, March 12, 2003 states in section 306 "Immigration status of victims" that
(a) "The authority…shall provide victims of trafficking and accompanying dependent children with appropriate visas or other required authorization to permit them to remain in the country for the duration of the criminal prosecution against the traffickers, provided that the victims is willing to comply with reasonable requests, if any, to assist in the investigation or prosecution of the traffickers.
(b) Victims of trafficking shall be eligible for permanent residence…provided they have complied with reasonable requests
(c) A victim's spouse and children…

In Austria the alien who is holding a residency permit, when willing to testify against her trafficker, is allowed to engage in prostitution as a valid form of self-employment [section 7]. In Germany the law does not allow a foreigner who holds a residency permit to work as a prostitute. Prostitution is considered self-employment, which is not generally permitted for foreigners.

Deportation is the norm in most parts of the world including the countries of the Middle East, Latin America, Africa and Asia. It reflects a traditional immigration law.

In Belgium a residency status is dependent upon the "legal proceedings." First, a 45 day period is granted to allow the victim to decide whether to make statements (a complaint against the trafficker) or to prepare for a return to his or her country of origin. Second, a victim who has made a statement or filed a complaint during the 45 day period shall receive a temporary permit valid for three months and a temporary work permit for the same period. Third, if the prosecuting authorities decided to prosecute the case, the residency permit becomes valid for longer periods, usually six months, which may be renewed until the legal proceedings are terminated. Then the victim returns.

In Germany the October 9th administrative regulation with respect to the Aliens Act grants victims of trafficking a grace period of at least 28 days to decide whether to cooperate with the authorities as witnesses or prepare t return to their country of origin.

In Portugal victims of trafficking can obtain a residence permit if they cooperate with prosecutors.

The Russian draft Article 242 provides to asylums for periods of temporary accommodation of victims of trafficking in persons:
(1) ten days, irrespective of the conduct of the victim of trafficking or her readiness to testify
(2) extension for up to 30 days

In Hungary the Alien Act provides for the possibility of suspending an expulsion order against victims of trafficking if they intend to testify against their traffickers.

In Italy the immigration law of 1998 provides victims of trafficking who are aliens a special residency permit for a 6 month period.

In Spain a victim of trafficking, under a 2000 Act, shall not be deported if such victim reports the perpetrators of such trafficking to the proper authorities. They are granted temporary work permits. Once the legal proceedings are completed the government shall facilitate the return of the victims of trafficking to their country of origin.

In the Netherlands expulsion of an illegal alien who is a victim of trafficking may be suspended for three months during which such victim decides as to the possibility of reporting the trafficking offense. If the victim decides to report, a residency permit is issued for the complete duration of the investigation, prosecution and trial. However, a residency permit may also be issued to a victim of trafficking upon the conclusion of the criminal proceedings. Such permit is granted on humanitarian grounds including

· the risk of reprisals against the victim or her family
· the risk of persecution in the victim's country of origin for committing an offense related to prostitution
· and the possibility of social reintegration in the country of origin

In all cases when releasing information to federal investigative agencies or defendants, a victim's right to privacy and safety must be respected.

Applying for a T-visa: Is a law enforcement agency endorsement required?
Under the U.S. law, the victim of trafficking applies individually. A third party sponsorship from a law enforcement agency is not required, as is the case with a S-visa where a law enforcement agent must sponsor the alien witness or informant.

Although a law enforcement agency endorsement is not required, an alien may submit secondary evidence of cooperation with reasonable requests for assistance to law enforcement. Submission of the endorsement form will serve as primary evidence to satisfy this requirement.

A law enforcement agency endorsement, though not mandatory, serves as primary evidence that the alien has not unreasonably refused to assist in the investigation or prosecution of trafficking in persons. If issued, it must be issued by a federal law enforcement official since we are talking about a federal crime.

To prove compliance with a reasonable request for assistance, the applicant may submit secondary evidence including trial transcripts, court documents, police reports, news articles, and copies of reimbursement forms for travel to and from court. So the second line in a T-visa application would be "I am submitting a law enforcement agency (LEA) declaration." If a LEA declaration is not submitted, the applicant must explain why.

Applying for a T-visa: What is the meaning of "physical presence?"
The applicant must be physically present in the United States, American Samoa or the Northern Mariana Islands. The T-visa allows eligible aliens to remain in the United States and be entitled to benefits. It is different from "continued presence" which is only temporary and requires that the alien depart the U.S. once his or her presence for the purpose of a criminal investigation or prosecution is no longer required. A T-visa is for a period of three years.

Physical presence includes:

· aliens who are present because they are being held in some sort of severe form of trafficking in persons
· were recently liberated from a severe form of trafficking in persons
· were subject to severe forms of trafficking in persons at some point in the past and remain present in the United States for reasons directly related to the original trafficking in persons

Aliens who have traveled out of the United States and then returned will be presumed not to be here on account of trafficking in persons and will have to show that their presence here is the result of "continued victimization" at the hands of the traffickers or a new incident of a severe form of trafficking in persons. So the third line in a T-visa application is "I am physically present in the U.S…on account of trafficking."

Prostitution as grounds for inadmissibility
You take care of the entry problem by making admission of a trafficker "inadmissible." Since a prostitute is typically considered a "prohibited immigrant," any person who was trafficked for the purpose of prostitution should not be considered a prohibited immigrant or for "grounds of inadmissibility." Only the trafficker should be considered a "prohibited immigrant" and not the prostitute as long as she was forced into prostitution.

The Immigration Act of 1967 of Kenya considers a prohibited immigrant "a prostitute, or a person who is living on proceeds of prostitution."

The 1973 Alien and Nationality Law of Liberia excludes from admission to Liberia aliens who are prostitutes or who have been engaged in prostitution or who are coming to Liberia solely, principally or incidentally to engage in prostitution or who procure or import prostitutes or who have been supported by or received the proceeds of prostitution.

According to the Criminal code of Bosnia and Herzegovina, article 188 "Trade with humans for the purpose of prostitution" states in 188(5) that "it does not matter whether the person forced, induced or procured had already been prostituting before."

Similarly, according to article 178 of the Criminal Code of Croatia 178(4) "The fact whether the person procured, enticed, led away, forced or deceived into prostitution has already been engaged in prostitution is of no relevance for the existence of a criminal offense."

Also, under the Romanian law on The Prevention and Combat of Trafficking in Human Beings, Article 20 states "the trafficking person who has committed the crime of prostitution, stipulated in Article 328 of the Criminal Code, shall have no liability for that crime if, before the start of the criminal investigation for the crime of trafficking in human beings, this person has come forward…"

In the U.S. an alien must be admissible or obtain a waiver of inadmissibility. The waiver exception may apply to cases of prostitution.

Proof of "extreme hardship"
The fourth line in a T-visa application is "I fear that I suffer extreme hardship involving unusual and severe harm upon removal."

Factors that determine "extreme hardship" include

· the age and personal circumstances of the applicant
· medical status of the applicant that necessitates attention not reasonably available in the foreign country
· the nature and extent of the physical and psychological consequences of severe forms of trafficking in persons
· the impact of the loss of access to the U.S. courts for purposes related to the trafficking including criminal and civil redress, restitution, protection and prosecution
· the reasonable expectation that the existence of laws, social practices or customs in the foreign country would penalize the applicant
· the likelihood of re-victimization and the need, ability, or willingness of foreign authorities to protect the applicant
· the likelihood that the trafficker would severely harm the applicant
· the likelihood that the safety of the applicant would be threatened by civil unrest or armed conflict in the foreign country

To prove extreme hardship for immediate family members you may prove
· the need to provide financial support for the principal alien
· the need for family support for a principal alien
· or the risk of serious harm to such member from the traffickers
 

Adjustment of the temporary status
The three year temporary status cannot be renewed; however, it may be adjusted provided that the applicant meets the requirements for the "permanent resident status." These requirements include:

· the resident is admissible
· physical presence in the U.S. for at least three years
· throughout such period has been a person of good moral character
· has complied with a reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons
· the victim (and the victim's family) would suffer extreme hardship involving unusual and severe harm upon removal from the United States
 

So the alien must be admissible to the United States or obtain a waiver of inadmissibility.
 

The Derivative T: An application of the derivative victim doctrine
The derivative T status under the derivative victim doctrine allows family members who are accompanying the principal or following to join the principal to apply for a T-visa if they demonstrate that their removal from their country or their failure to be admitted to the United States would result in extreme hardship.

The following lists the various T-visas.
 

T-1: Principal (victim)
T-2: Spouse of principal
T-3: Child of principal
T-4: Parent of principal who is under the age of 21
 

The derivative victim doctrine applies as well to employment authorization of an extension of the victim.
 

Children who have not yet attained the age of 15 at the time of application are exempt from the requirement to comply with law enforcement requests for assistance. To prove age a child may submit a birth certificate, passport or a certified medical opinion.
 

Application for a derivative T-visa may be made either at the time of the original T-1 application or at a later date by filing a separate form, I-914. However, a derivative T-visa shall not be granted until the principal alien has been granted T-1 status.

The annual 5,000 limit for T-visas is not affected by applicants for a derivative T status. Eligible applicants who are not granted T-1 status because of the 5,000 limitation shall be placed on a waiting list and shall not be removed from the U.S. unless for illegal conduct.

The fee is $200, not to exceed $400 for all derivative applications. There is no quota for adjustable immigration status.