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Tuesday, 13 May 2008
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Immigration and Refugee Law Affecting Trafficked Persons Print E-mail
Written by Administrator   
 BRIEFING MEMORANDUM:  IMMIGRATION AND REFUGEE LAW AFFECTING TRAFFICKED PERSONS fromThe National Institute on State Policy on Trafficking of Women and Girls A Program of theCenter for Women Policy Studies July 2005
Table of Contents Preface          1 Acknowledgements          1 Immigration Benefits for Trafficked Persons Under the Trafficking VictimsProtection Act of 2000          2 Other Immigration Remedies for Trafficked Persons:  U Visa and VAWA Self-Petition          6 Refugee and Asylum Law          8 Potential Changes in Trafficking Victims Protection Act of 2000 (as amended in 2003):  Legislative and Regulatory Measures           9 

Preface Since 1998, the Center for Women Policy Studies has brought the issue of international trafficking of women and girls into the United States to the attention of state legislators nationwide.  And since 2001, we have worked in partnership with legislators – as their “national staff” on women’s human rights policy issues – to craft state level responses to this global crisis. This Briefing Memorandum – a publication of the Center’s National Institute on State Policy on Trafficking of Women and Girls – provides information about the immigration relief most commonly available to trafficked women and girls and the legislative and regulatory measures that could enhance access to that relief.  We hope this Memorandum will be useful to advocates and policy makers in their efforts to protect and provide assistance to women and girls trafficked into the United States.    Acknowledgements Under the supervision of Center president Leslie R. Wolfe, Center staff members Brenda Romney Martin, director of public policy, Sarah Doire, policy associate, and Amy Chinanzvavana, policy assistant, prepared the Briefing Memorandum -- in partnership with Kelly Heinrich, president of Humanatis, LLC and an expert on immigration law and trafficking who works with the Center as a consultant.  We are grateful to Kelly for her expertise and for her thorough and thoughtful analysis of refugee and immigration law affecting trafficked persons.  The Center also expresses its gratitude to the Libra Foundation – whose commitment to addressing women’s human rights issues inspires us and whose financial support enabled the Center to develop and produce this Briefing Memorandum.

Immigration Benefits for Trafficked Persons Under the Trafficking Victims Protection Act of 2000 The Trafficking Victims Protection Act of 2000 The U.S. Department of Justice has a long history of prosecuting involuntary servitude and trafficking cases.[1]  In a 1988 case, U.S. v. Kozminski,[2] the U.S. Supreme Court interpreted the involuntary servitude statute to require actual physical force, such as striking, beating or raping, to compel labor.  At the same time, prosecutors increasingly encountered cases in which other -- sometimes more effective yet subtler -- methods of control were used to compel labor.  But they were unable to prosecute these cases because of Kozminski’s requirement to show actual force.[3]  Additionally, prosecutors were unable to try cases because victim witnesses, who often were undocumented, had been deported and were no longer in the country. [4] The Trafficking Victims Protection Act of 2000 (TVPA)[5] addressed these prosecutorial problems through provisions for prevention of international trafficking, prosecution of traffickers within the United States, and protection of victims – with prosecution the dominant focus.  Prevention strategies include grants awarded by United States Agency for International Development (USAID) for education, outreach and economic alternative programs overseas.[6]   Within the United States, the statute addressed the limitations on prosecution imposed by Kozminski by increasing sentencing, and creating new sex trafficking, forced labor and document withholding offenses.[7]  TVPA also focused on protection of victims by creating benefits for trafficked persons who cooperate with law enforcement – including authorization to temporarily work and remain in the United States legally (continued presence), government assistance (certification) and the opportunity to permanently remain in the United States (T Visa).[8]   Continued Presence[9]            Continued presence allows undocumented trafficked persons to lawfully live and work in the United States and support themselves while assisting with an investigation or prosecution.  Literally, the government authorizes the person’s continuing stay in the United States by providing temporary legal status and work authorization.   To receive continued presence, federal law enforcement must determine that a person is a trafficking victim and a potential witness.  Federal law enforcement then submits a request for approval to the U.S. Citizenship and Immigration Service (CIS).  Processing takes approximately four to six weeks; continued presence may be granted in increments of up to one year and is renewable.  Certification[10] When a trafficked person is granted continued presence, CIS immediately contacts the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR) so that all benefits – legal status, work authorization and refugee benefits – can be issued simultaneously.[11] Under the TVPA, trafficked persons are eligible for any federal or state benefits and services for which a refugee would be eligible.  These benefits primarily include Refugee Cash Assistance, Refugee Medical Assistance, Medicaid, Social Security Insurance, Food Stamps, Job Corps, Refugee Matching Grant Program and Temporary Assistance for Needy Families.  To receive these benefits, a trafficked person must show the benefit-granting agency a “certification” or “eligibility” letter issued by ORR.[12] Certification does not confer refugee status nor does receipt of these benefits qualify the trafficked person as a refugee. T Visa[13] A T Visa provides three years lawful temporary status.  It creates eligibility for employment authorization and ORR certification for certain refugee benefits.  After three years, a T Visa holder may apply for permanent residency, also known as a green card, which leads to citizenship.  T Visas are not renewable.   A T Visa applicant must:[14]    §          be a victim of a severe form of trafficking;§          have complied with any reasonable request for assistance from local, state or federal law enforcement in the investigation or prosecution of the trafficking acts;   §          be physically present in the United States as a result of trafficking; and,§          show that she would suffer extreme hardship involving unusual and severe harm if removed from the United States.   An applicant age 21 or older may apply for T Visas for her spouse and children.  An applicant younger than 21 may apply for T Visas for her parents and siblings.   Exhaustive documentation of these four requirements is needed for a successful application.  This documentation frequently includes:[15] §          a memorandum of law summarizing the contents of the application and illustrating how the facts and supporting evidence prove the applicant’s eligibility for a T Visa;§         the applicant’s personal statement detailing the recruitment, promises made, transportation, forced labor or prostitution, and law enforcement cooperation;§         “primary evidence” of victim status and law enforcement compliance; and,§         “secondary evidence,” including police reports, photographs, witness and family affidavits, news articles, bank statements, injury reports, health and mental health evaluations, proof of a civil or criminal case, and country condition reports.   To receive a T Visa, a trafficking victim must provide proof of her willingness to assist law enforcement.  The best proof she can offer is a law enforcement agency (LEA) endorsement – the “I-914 Supplement B Declaration of Law Enforcement Officer for Victim of Trafficking in Persons” – that is part of the T Visa application that any law enforcement official may complete.[16]   While LEA endorsement is not required by law, it is much more difficult to secure T Visa approval without it. A designated and trained T Visa Unit reviews the completed application.[17]  If upon a quick review the application is complete and appears to meet all the requirements, the application will be deemed “bona fide”.[18]  This bona fide determination triggers ORR certification if the individual has not already been granted certification through continued presence.  At this point in the application process, CIS may request an interview,[19] but as of this date none have taken place.  It takes approximately six to eight months for a decision – one of the fastest processing times for this type of application.   The TVPA Benefits in Practice Ideally, Federal Bureau of Investigation (FBI) agents trying to uncover a potential trafficking case conduct raids, interview trafficked women and release them to a local service provider funded to assist trafficked persons.  Based upon these interviews, the FBI determines whether the women were trafficked, will be needed for additional questioning and, if the case reaches trial, will be needed to appear as witnesses.  The agents apply for continued presence for the women and in approximately four weeks the service provider should receive certification letters and work permits.   Officials from the U.S. Department of Justice’s Civil Rights Division’s Criminal Section and officials from the U.S. Attorney’s Office would agree to jointly prosecute the case and issue an indictment of the traffickers.  They may only need a few of the women to testify in court but, because all cooperated, the U.S. Attorney signs LEA endorsements for all of the women.   The service provider files T Visa applications for all of the women and the T Visas are granted within six months.  The FBI, ORR and prosecutors are expected to properly and promptly assist the women, who receive continued presence, certification and T Visas.    Problems Encountered In Securing Benefits  Federal agents -- despite victim cooperation -- fail to request continued presence in a prompt manner:  A trafficking victim’s ability to obtain continued presence depends upon the investigator’s and/or prosecutor’s prior experience with trafficking cases and knowledge of continued presence.  The less experience they have, the more education and advocacy is required on behalf of the trafficked person.  Without continued presence, trafficking victims remain undocumented, without work authorization, without certification, and completely dependent upon the limited funding the service provider can offer.   Law enforcement agency (LEA) endorsement is not signed:  Prosecutors may refuse to sign an LEA endorsement before the trial is complete.  They do not want their witness to submit, as required for a T Visa, a written, signed statement because it could jeopardize the trial.  If prosecutors have the written signed statement, the defendant/trafficker has the constitutional right to it; the statement then becomes an excellent way to cross examine the witness and weaken the case. Since the prosecution could take a year or more, this puts the victim witness in a difficult position.  In addition to her inability to work or receive benefits, a trafficked woman has to deal with the burden of being separated from her family – a situation that also could be addressed subsequent to obtaining a T visa.[20]    Working with state rather than federal law enforcement:  Only federal law enforcement may request continued presence; therefore, trafficked persons assisting in state cases remain undocumented and without work authorization until they receive a bona fide determination or a T Visa.  Under the TVPA, only federal LEAs could submit LEA endorsements.  Whether intentional or not, the system therefore encouraged trafficked persons to work with federal rather than state LEAs.  However, the TVPRA changed this by also allowing state and local LEAs to submit LEA endorsements supporting T Visa applications.[21]   Law enforcement closes the investigation:  If prosecutors determine that there is insufficient evidence to move forward with the case, the investigation is closed.  There is no continued presence, certification or signed LEA endorsement.   While the women are trafficking victims and may still apply for a T Visa, the months of waiting for the decision will be difficult.  They must wait for either a bona fide determination or an approval to receive certification.  These trafficking victims are undocumented, without work authorization and without certification.  No federally funded service providers are authorized to help these women since the case is over.  Federal grants for services to trafficked persons come from ORR and the U.S. Department of Justice’s Office for Victims of Crime (OVC).  These funds are to be used to help trafficked persons report to and work with law enforcement.  Once there is no law enforcement involvement, no further assistance may be provided to these individuals.     The trafficked woman or girl does not want to report to law enforcement:  Trafficking is recognized as a severe human rights abuse.  Many trafficked persons have endured so much physical and psychological trauma that participating in the U.S. criminal justice system -- with multiple interviews, probing questions and public attention -- would further traumatize them.  Yet these individuals, the most traumatized of all, receive no benefits whatsoever.  Once a woman decides she will not report to law enforcement, federally funded service providers can no longer assist her.    
Other Immigration Remedies for Trafficked Persons:  U Visa and VAWA Self-Petition U Visa The Battered Immigrant Women Protection Act of 2000[22] created the U Visa for noncitizen victims of designated crimes. [23]  A U Visa provides lawful temporary status for up to three years with work authorization.  After the three year period, the U Visa holder may apply for permanent residency.  U Visa holders are not eligible for refugee benefits. An applicant must be physically present in the United States, admissible and sufficiently establish that she meets four eligibility requirements:[24]§          the victim suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity;[25]§          the victim possesses information concerning that criminal activity (or if the victim is under age 16, the parent, guardian or next friend[26]);§          the victim (or if the victim is under age 16, the parent, guardian or next friend) has been helpful, is being helpful, or is likely to be helpful to a federal, state or local law enforcement official, a federal, state or local prosecutor, a federal or state judge, CIS, or other federal, state or local authorities investigating or prosecuting the crime; and,§          the crime violates U.S. law or occurred in the United States (including tribal land and military establishments) or territories and possessions of the United States. As of this date, U Visa regulations have not been published.  In the absence of regulations, the Vermont Service Center – the CIS center that processes T Visa and U Visa applications – is accepting informal applications and is granting “Interim Relief,” which allows a seemingly eligible applicant to remain in the United States legally until a formal application can be made.[27]  Attorneys are only advising clients with strong cases to apply for Interim Relief because anyone not eligible once the regulations are published will be referred to U.S. Immigration & Customs Enforcement (ICE) for removal from the United States.      Both the T and U Visas require an LEA endorsement and ongoing assistance to an investigation or prosecution.  However, T Visas are limited to trafficking victims, while U Visas are available to victims of a greater number of crimes.  For a trafficked person, a U Visa is a good alternative when law enforcement is not convinced the case is trafficking, but views it as another offense -- such as kidnapping, false imprisonment, sexual assault or abduction.   VAWA Self-Petition The Violence Against Women Act of 1994[28](VAWA) created a mechanism to enable battered immigrant spouses of either U.S. citizens or lawful permanent residents to apply for permanent residency.  A noncitizen who marries either a U.S. citizen or lawful permanent resident initially holds a temporary legal status in the United States and depends upon the U.S. citizen or lawful permanent resident spouse to file paperwork to adjust the immigrant spouse’s temporary status to permanent residency.  An abusive husband controlling his wife’s immigration status could wield that power to prevent her from reporting the abuse or ending the marriage.  The VAWA Self-Petition[29] was created to remedy this situation by allowing a battered immigrant spouse to apply for permanent residency without the involvement or permission of her U.S. citizen or lawful permanent resident spouse. The following persons are eligible to self-petition under VAWA:
  • Abused spouses of U.S. citizens or lawful permanent residents, including any children regardless of abuse and relationship to the abuser;
  • Non-abused spouses of U.S. citizens or lawful permanent residents whose child is abused, including any other children regardless of abuse or relationship to the abuser;
  • Abused “intended spouses” of bigamist U.S. citizens and lawful permanent residents, including any children regardless of abuse and relationship to the abuser; and,
  • Abused children of U.S. citizens or lawful permanent residents, including their children.
 The eligible person must demonstrate through a personal statement and supporting evidence:§        the abuser’s legal status as a U.S. citizen or lawful permanent resident;§        her/his legal marriage to the abuser; §        her/his residence with the abuser;§        s/he was subjected to battery or extreme cruelty during the marriage;§        s/he is a person of good moral character; and,§        s/he entered into a good faith marriage. With a determination, which is similar to the T Visa’s bona fide determination, a VAWA Self-Petitioner is eligible for public assistance, including Medicaid and Temporary Assistance for Needy Families, depending upon the state.  She is not eligible for refugee benefits.  For trafficked persons, VAWA relief only would be applicable to a domestic or sex servitude scheme within a marriage and home.  Assuming a trafficked person is eligible for VAWA relief, this determination usually is preferable to a T Visa because, unlike the T Visa, there is:§        no law enforcement cooperation requirement;§        immediate adjustment of status with VAWA, meaning no three year temporary statusbefore adjusting, as with the T Visa;§        no interview required;§        a less complicated and extensive application; and,§        no extreme hardship requirement.    
Refugee and Asylum Law Application Process Generally, a person applying for protection from persecution from outside the United States is called a refugee.  Each year, a Presidential Determination establishes the total number of refugees permitted to enter the United States in that fiscal year.[30]  Based on the nationalities and numbers from the determination, CIS pre-screens refugees and invites potentially eligible candidates to apply and interview for resettlement in the United States.  Once processed and approved overseas, a refugee arrives in the United States and is assigned to a resettlement agency that assists her in claiming ORR benefits and securing such services as English language classes, job skills training and job placement.   A person applying for protection from persecution from within the United States is called an asylee.  Asylees follow a completely different process[31] than refugees.  If a person arrives at a port of entry or border without legal documents and requests asylum, she first will be questioned and then either sent home or detained and put in removal proceedings.[32]  She will be appointed an attorney to help with an asylum application and the case will be heard in immigration court.  This is known as a defensive application.  Asylees already in the United States file an asylum application, and are interviewed by an asylum officer.  This is known as an affirmative application.  If denied, these cases are referred to an immigration judge and subsequently may be heard by the Board of Immigration Appeals and in federal court.   An asylum applicant must submit extensive documentation with the requisite application forms – a memorandum of law, the applicant’s personal statement, identification documents, health and mental health evaluations, exhaustive evidence supporting the claim of persecution, and country condition reports.   Definition Regardless of whether an individual applies as a refugee or asylee, the legal standard remains the same.  The United States defines a refugee as:§        “any person,” §        “outside the country of their nationality,”§        who is “unable or unwilling to return” and§         “unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution,” §        “on account of race, religion, nationality, membership in a particular social group, or political opinion.”[33] An asylee or refugee cannot remain in the home country because the government is the persecutor or the government is unable to control the persecutor.  The United States provides protection to people who have already been persecuted or who fear that they will be persecuted in the future; and the persecution must be for very specific reasons.The “on account of” factors are largely thought to be an immutable characteristic or a fundamental belief that is the core of one’s identity -- something that is so integral to a person that it cannot be taken away.  Such characteristics include, for example, the color of skin, belonging to a tribe, having a religious belief, and holding political beliefs.  It is that characteristic or belief that the persecutor is trying to overcome or punish the individual for holding.   Comparing the T Visa to Asylum Asylum offers protection to those who cannot remain in their home country because of past or feared persecution there.  A T Visa focuses on trafficking abuses suffered in the United States.  Additionally, asylum’s persecution requirement is a much more severe threat of harm than the T Visa’s requirement of extreme hardship involving unusual and severe harm.  Persecution absolutely prevents a person from living in the home country whereas extreme hardship involving unusual and severe harm amounts to great difficulty living in the home country.  If a person is eligible to make both claims, then the T Visa’s requirement to cooperate with law enforcement is a factor that may influence the applicant’s decision.   In terms of the application process, the T Visa and asylum are different as well.  A positive aspect of the T Visa is that there is no mandatory interview or appearance before a judge; the T Visa application is submitted by mail and a decision is returned by mail, thereby eliminating much of the anxiety that asylum applicants typically endure.  The processing time for the T Visa is much shorter than that of asylum, which also is much easier on the applicant.  Moreover, the T Visa carries substantially less regulation and no case law, which has created a lot of flexibility and room for interpretation.  This makes it easier for attorneys to make favorable arguments on behalf of their clients and easier for adjudicators to decide in favor of applicants.     Potential Changes in Trafficking Victims Protection Act of 2000 (as amended in 2003):  Legislative and Regulatory Measures  Legislative Measures

 

Strengthen continued presence:  State and local law enforcement must be given authority to apply for continued presence on behalf of trafficked persons.  State and local officials should have the same tools required for effective investigations and prosecutions as federal officials.  In the TVPRA, Congress recognized the states’ increased role in trafficking cases and allowed cooperation with state and local law enforcement agencies (LEAs) for certification and T Visas. 

 Continued presence should be a mandatory process, requested within a specified period so long as the victim’s report is not frivolous.  Currently, requesting continued presence is discretionary, which suggests to investigators and prosecutors that it is an unnecessary benefit and simply extra paperwork.  Coupling the mandatory requirement with a deadline would ensure that a timely request is made – 60 days should be sufficient.  Additional language should be added requiring that continued presence be requested unless the claim is frivolous.  This would prevent the benefit from being obtained for fraudulent claims while also emphasizing the importance of early requests.   The requirement that investigators determine conclusively that a person is a victim should be amended to require that investigators determine that the person may be a victim.  Because the TVPA requires investigators to make a determination that a person is a victim, many interpret the law as requiring 100 percent certainty that the person is a victim before applying for continued presence.  As a result, investigators may insist that full investigations be completed or an indictment be filed before applying for continued presence.  Trafficked persons need legal status and work authorization to support themselves in that interim period while investigators make the official determinations; continued presence can be terminated if the person – subsequent to the investigation – is determined not to be a victim.   Require LEA cooperation or a mental health exemption:  The most traumatized women – those who would be retraumatized if required to report or who are unable to report for legitimate health reasons – receive no protection whatsoever under the TVPA.  Many advocates are addressing this issue by trying to eliminate the requirement for cooperation with law enforcement; however, this currently is an unrealistic goal given the TVPA’s law enforcement focus and the Congressional climate around immigration.   Instead of eliminating the LEA cooperation requirement, Congress should create an alternative to it by requiring either cooperation with law enforcement or a mental health professional’s written certification that the trafficked person’s health would be jeopardized by reporting to law enforcement as the basis for protection under TVPA.  

Require either cooperation or extreme hardship:  To obtain a T visa, a trafficking victim must meet the standard of extreme hardship involving severe and unusual harm and must be willing to assist law enforcement.  Instead, the law should require either cooperation with law enforcement or extreme hardship – one or the other but not both should be sufficient.  The T Visa would then serve two purposes – a reward for victims who are willing to assist law enforcement and humanitarian relief for victims who cannot provide such assistance, and who cannot return home because of the great hardship they would face.

 

Regulatory Measures

 

Eliminate law enforcement access to T Visa applications:  T Visa regulations currently provide prosecutors with access to all witness statements related to the T Visa application and the investigation.[34]  The regulations should be amended to ensure that these applications, like the VAWA Self-Petition, are confidential.

 The current regulatory provision should be eliminated because it discourages federal prosecutors from signing LEA endorsements before trials end, thus withholding critical benefits from trafficking victims and their families.  In addition, victim witnesses are afraid to come forward and report the crime because they fear the traffickers will have access to their application and personal statement and try to harm them.   Since federal prosecutors already have a cooperating witness and therefore have access to their statements, access to the T Visa application and related documentation is unnecessary.  Finally, the U.S. Department of Justice should not have access to a trafficking victim’s application in those cases where an individual – for legitimate health or safety reasons – has not reported the crime.      

Amend the T Visa application to encourage LEAs to sign the endorsement:  Some trafficked persons receive no benefits when an investigation is closed because the prosecutors do not have enough evidence to prove the case beyond a reasonable doubt.  In this situation, investigators and prosecutors are reluctant to sign an LEA endorsement.  Amending the T Visa instructions regarding the LEA endorsement to clarify that the only requirement is cooperation with reasonable requests from law enforcement, not a successfully prosecuted case, would help.[35]


 

[1] U.S. Department of Justice, Civil Rights Division, Criminal Section, Overview available at: http://www.usdoj.gov/crt/crim/overview.htm.

[2] 487 U.S. 931 (1988).

[3] Pub. L. No. 106-386, 114 Stat. 1466, 1467 (2000). 

[4] In the rare case a victim witness was not deported, prosecutors could request an S Visa for the individual as an incentive and reward for assisting the prosecution.  However, the S Visa has its limitations and is rarely used. It is commonly called a “snitch” visa; federal law enforcement applies for this visa on behalf of an individual who has provided information to the government and assisted with an investigation or prosecution. U.S. Department of Justice, U.S. Attorney’s Manual 9-72. 100 S Visa Program available at: http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/72mcrm.htm#9.

[5] Pub. L. No. 106-386, 114 Stat. 1466 (2000).  See also Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875 (2003) (containing additional victim protection provisions).

[6] Pub. L. No. 106-386, 114 Stat. 1466, 1474 (2000). 

[7] Pub. L. No. 106-386, 114 Stat. 1466, 1486 (2000). 

[8] Pub. L. No. 106-386, 114 Stat. 1466, 1474 (2000). 

[9] Pub. L. No. 106-386, 114 Stat. 1466, 1477 (2000); 22 U.S.C. 7105(c)(3) (2004).  U.S. Department of Justice, Trafficking in Persons: A Guide for Non-Governmental Organizations, available at: http://www.usdoj.gov/crt/crim/wetf/trafficbrochure.html.

[10] Pub. L. No. 106-386, 114 Stat. 1466, 1476 (2000); 22 U.S.C. 7105(b)(1)(E) (2004).  State Letter #01-13 from Carmel Clay-Thompson, Acting Director, Office of Refugee Resettlement to State Refugee Coordinators, National Voluntary Agencies, Other Interested Parties, The Trafficking Victims Protection Act of 2000, available at: http://www.acf.hhs.gov/programs/ofa/traffic/stateltr.htm.  State Letter #04-12 from Nguyen Van Hanh, Director, Office of Refugee Resettlement, to State Refugee Coordinators, National Voluntary Agencies, Other Interested Parties, The Trafficking Victims Protection Reauthorization Act of 2003 – Eligibility for Federally Funded or Administered Benefits and Services to the Same Extent as Refugees Extended to Certain Family Members of Victims of a Severe Form of Trafficking in Persons, available at: http://www.acf.hhs.gov/programs/orr/policy/sl04-12.htm. 
[11] See Summary: Benefits for Victims of Trafficking under the Trafficking Victims Protection Act of 2000, available at: http://www.acf.dhhs.gov/programs/ofa/traffic/orrsum.htm.
[12] ORR issues certification letters to adults and eligibility letters to persons under age 18 who have been granted continued presence, a bona fide T Visa or an approved T Visa.  A bona fide T Visa determination is not a decision or approval of a T Visa but an acknowledgement that the application is complete and upon a brief review appears to meet the legal requirements. A sample certification letter is available at: http://www.acf.hhs.gov/programs/ofa/traffic/adultltr.htm.

[13] Pub. L. No. 106-386, 114 Stat. 1466, 1477 (2000); 8 U.S.C. 1101(a)(15)(T) (2004).

[14] 8 C.F.R. § 214.11 (2003).  These regulations govern all aspects of the T Visa and are an excellent resource to learn the details of the requirements and process.

[15] See generally 8 C.F.R. § 214.11(a) (2004).  See also Form I-914, Application for T Nonimmigrant Status, Application Instructions 3, available at: http://uscis.gov/graphics/formsfee/forms/files/i-914.pdf.

[16] Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, available at: http://uscis.gov/graphics/formsfee/forms/files/i-914.pdf; Trafficking Victims Protection Reauthorization Act of 2003, P.L. 108-193, 117 Stat. 2875, 2877 (2003).

[17] See also Form I-914, Application for T Nonimmigrant Status, Application Instructions 6, available at: http://uscis.gov/graphics/formsfee/forms/files/i-914.pdf.

[18] 8 C.F.R. § 214.11(a) (2004).
[19] 8 C.F.R. § 214.11(d)(6) (2004).

[20] An individual may still apply for a T Visa without the LEA endorsement and instead using proof of continued presence and certification.  However, with the LEA endorsement being the one piece of evidence most likely to secure a T Visa approval, it is riskier to take this approach.  Moreover, applying for the T Visa against the advice of the prosecutors may be construed as being uncooperative.  It is possible that the prosecutor would then inform the Vermont Service Center of this action, resulting in a T Visa denial.

[21] Since the LEA endorsement, Form I-914 Supplement B, has not yet been amended for state and local LEA use, a written statement may be submitted in lieu of the Supplement B.

[22] P.L. 106-386, 114 Stat. 1518 (2000).
[23] An applicant must be the victim of:a)       one or more of the following crimes: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice and perjury; b)       an attempt, conspiracy or solicitation to commit any of these crimes; or c)     any similar activity in violation of federal, state or local criminal law.  (8 U.S.C. 1101(a)(15)(U) (2004)).
[24] 8 U.S.C. 1101(a)(15)(U) (2004).

[25] See note 23. 

[26] “Next friend” refers to a person acting as guardian without having been legally appointed that position typically for a child, disabled or mentally incompetent person.

[27] Memorandum from William R. Yates, Associate Director of Operations, USCIS, to Director, Vermont Service Center, Centralization of Interim Relief for U Nonimmigrant Status Applicants (Oct. 8, 2003).  Memorandum from Williams R. Yates, Associate Director, Operations, USCIS, to Paul E. Novak, Director, Vermont Service Center, Assessment of Deferred Action in Requests for Interim Relief from U Nonimmigrant Status Eligible Aliens in Removal Proceedings (May 6, 2004).
[28] The Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902-1995 (1994).  Battered Immigrant Women Protection Act of 2000, P.L. 106-386, 114 Stat. 1518, 1533-1537 (2000). 
[29] 8 USCS § 1154 (2004).  See also Catholic Legal Immigration Network, Inc. & Immigrant Legal Resource Center, The VAWA Manual: Immigration Relief for Abused Immigrants, available at: http://www.ilrc.org/vawa/VAWA_2002_Web_Edition_Version_Final.pdf.
[30] Pres. Det. No. 2004–53, 69 Fed Reg. 60,943 (Oct. 14, 2004).

[31] For a general overview and discussion of the asylum process, please see http://uscis.gov/graphics/services/asylum/index.htm. 

[32] Illegal Immigration Reform And Immigrant Responsibility Act (IIRAIRA) created this process.  Effectively, the U.S. may be returning people to the country where they fear persecution because they are using a brief interview rather than the asylum process to determine withholding of removal.  It is an excellent example of the restrictionist immigration measures contained in that legislation.

[33] Additionally, any person who has undergone a forced abortion, involuntary sterilization or has refused these procedures or any other coercive population control will be deemed to have been persecuted on account of political opinion.  Anyone who fears being subjected to these procedures will be deemed to have a well-founded fear of persecution on account of political opinion. (8 U.S.C. § 1101(a)(42)(b) (2005).  

[34] 8 C.F.R. § 214.11(e).

[35] The timing is right to advocate for this change because the T Visa application has not yet been updated with changes made in the TVPRA.  Additionally, the regulation regarding the LEA endorsement, 8 C.F.R. § 214.11(f)(1), could be amended to reflect the same information.
 
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