T visas designated for victims of sex or labor trafficking, and the regulations describe the stipulations for this visa in much more detail that the statute at 8 CFR 214.11. It is important to note that it is the applicant who bears the burden to prove eligibility for a T visa. Up to 5,000 T visas may be granted each year; however, the grant rates are low and this cap has not been met in the past. T visas are a non-immigrant visa and are granted initially for 4 years, and may be extended in certain circumstances.
The definition, as delineated by Congress, of a “severe form of trafficking in persons” must be comprised of one of two acts:
Sex trafficking, where a commercial sex act is induced by force, fraud, or coercion, or;
In which the person induced to perform the act is not yet 18 years of age
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
Even if an alleged trafficking victim has not actually been forced to perform a commercial sex act or labor services, the alleged traffickers’ intentions can be examined to determine whether they obtained the applicant for the purpose of forcing him or her to perform either commercial sex acts or labor.
Requirements for T Visas:
An important element in T visa cases is the need to identify some use of force, fraud, or coercion, eg, an act on the part of the traffickers to force the applicant to participate in either the commercial sex act (unless the victim is a minor) or the labor. If the applicant worked or performed sexual acts and participation was never was forced, coerced or undertaken as a result of fraud, then no trafficking took place, unless the victim of the commercial sex act was a minor.
The T visa applicant must provide extensive and clear evidence establishing status as a victim of a severe form of human trafficking either by:
- Submitting “primary evidence”, as in an endorsement from a “law enforcement agency” on Form I-914 Supplement B, or by demonstrating that the applicant’s continued presence has been arranged (by an agency of the U.S. government) in accordance with the rules under 28 C.F.R. § 1100.35.22 (generally for purposes of assisting in the prosecution of the traffickers)
- By submitting sufficient credible “secondary evidence” describing the nature and scope of any force, fraud, or coercion used against the victim, unless the person induced to perform a commercial sex act is under age 18.
Status for Family Members of T Visa Applicants:
Notably, family members are sometimes eligible for derivative benefits under the T visa provisions if they are accompanying, or following to join, the principal T visa petitioner:
- If the principal T visa petitioner is under 21years of age, their:
- Siblings who are:
If the principal petitioner is under 18 years old on the date that he or she applies for T status, their parents are eligible to file for derivative status.
The following family members of eligible T nonimmigrants may be also be eligible for derivative status, if, through consultation with the law enforcement agency investigating the trafficking, the Secretary of Homeland Security determines the family members face present danger of retaliation as a result of either the derivative applicant’s escape from the severe form of trafficking or their cooperation with law enforcement:
- A Sibling(s) who is or are unmarried or under 18 years of age
The principal victim of trafficking (principal applicant) must show evidence of the relationship (birth certificate, etc) and that they, principal applicant, would suffer extreme hardship if the family member seeking derivative status were either denied admission to the United States (if absent), or removed from the United States (if already present in the U.S.)