Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status

Federal RegisterDec 19, 2016

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 212, 214, 245, and 274a

[CIS No. 2507-11; DHS Docket No. USCIS-2011-0010]

RIN 1615-AA59

Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status

AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Department of Homeland Security (DHS) is amending its regulations governing the requirements and procedures for victims of human trafficking seeking T nonimmigrant status. The Secretary of Homeland Security (Secretary) may grant T nonimmigrant status (commonly known as a “T visa”) to aliens who are or were victims of severe forms of trafficking in persons, who are physically present in the United States on account of such trafficking, who have complied (unless under 18 years of age or unable to cooperate due to trauma) with any reasonable request by a Federal, State, or local law enforcement agency (LEA) for assistance in an investigation or prosecution of acts of trafficking in persons or the investigation of other crimes involving trafficking, and who would suffer extreme hardship involving unusual and severe harm if removed from the United States. In this interim rule, DHS is amending its regulations to conform with legislation enacted after the initial rule was published in 2002: the Trafficking Victims Protection Reauthorization Act of 2003 (TVPRA 2003), the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), and Titles VIII and XII of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013).

DHS is also streamlining procedures, responding to public comments on the 2002 interim final rule, and providing guidance for the statutory requirements for T nonimmigrants. The intent is to make sure the T nonimmigrant status regulations are up to date and reflect USCIS adjudicative experience, as well as the input provided by stakeholders.

DATES:

Effective date.

This rule is effective January 18, 2017.

Comment date.

Written comments must be submitted on or before February 17, 2017. Comments on the form, form instructions, and information collection revisions in this interim rule must be submitted on or before January 18, 2017.

ADDRESSES:

You may submit comments, identified by DHS Docket No. USCIS-2011-0010, by

one

of the following methods:

•

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

•

Email:

You may submit comments directly to U.S. Citizenship and Immigration Services (USCIS) by email at

USCISFRComment@uscis.dhs.gov.

Include DHS Docket No. USCIS-2011-0010 in the subject line of the message.

•

Mail:

Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2011-0010 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.

•

Hand Delivery/Courier:

FOR FURTHER INFORMATION CONTACT:

Elizabeth Dallam, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2099, telephone (202) 272-8377 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

This supplementary information section is organized as follows:

I. Public Participation

II. Executive Summary

A. Purpose of the Regulatory Action

1. Need for the Regulatory Action and How the Action Will Meet That Need

2. Statement of Legal Authority for the Regulatory Action

B. Summary of the Major Provisions of the Rule

1. Statutory Changes

2. Discretionary Changes

C. Costs and Benefits

III. Background and Legislative Authority

IV. Eligibility and Application Requirements, Procedures, and Changes in This Rule

A. Eligibility Requirements for T Nonimmigrant Classification

1. Victim of a Severe Form of Trafficking in Persons

a. Definition of “Involuntary Servitude”

b. Performing Labor, Services, or Commercial Sex Is Not Necessary

c. Evidence of Victimization

2. Physical Presence on Account of Trafficking in Persons

a. LEA Returns a Victim to the United States

b. Victim Who Has Been Trafficked Abroad Is Allowed Entry Into the United States

c. Removal of the “Opportunity To Depart” Requirement

d. Evidence of Physical Presence on Account of Trafficking in Persons

3. Compliance With Any Reasonable Request

a. Totality of Circumstances Test To Determine the “Reasonableness” of LEA Requests

b. “Comparably-Situated Crime Victims” Standard

c. Proper Standard is the Reasonableness of the LEA Request

d. Minors Exempt From Compliance With Any Reasonable Request

e. Evidence of Compliance With Any Reasonable Request

f. Trauma Exception

4. Extreme Hardship Involving Unusual and Severe Harm Upon Removal

B. Application Requirements

1. Filing the Application

a. Filing Deadline

b. Form-Related Changes

c. Proof Required for Family Members of a Minor Applicant

d. Referral to Law Enforcement and Department of Health and Human Services

2. Initial Evidence

3. Bona Fide Determinations

4. Derivative Family Members

a. Definitions

b. Eligibility of Certain Family Members

5. Age-Out Protection of Eligible Family Members

a. Age-Out Protection for Child Principal To Apply for Eligible Family Members

b. Age-Out Protection for Unmarried Sibling Derivative of Child Principal

c. Age-Out Protection for Child Derivative

d. Marriage of Eligible Family Members

e. Evidence for Eligible Family Members

C. Adjudication and Post-Adjudication

1. Prohibitions on Use of Information

a. Applicability of Confidentiality Provisions

b. Disclosure Required in Relation to Criminal Prosecution

c. Use of Information on the T Nonimmigrant Status Application

2. Waivers of Grounds of Inadmissibility

a. Waiver Authority for T Nonimmigrants

b. Criminal Grounds of Inadmissibility

c. Waivers Relating to Adjustment of Status

d. Waivers of Inadmissibility Grounds Related to the Trafficking Victimization

e. Requesting a Waiver

3. Decisions

4. Benefits

5. Duration of Status

6. Extension of Status

a. Extension of Status for Law Enforcement Need

b. Extension of Status for Exceptional Circumstances

c. Extension of Status While an Application for Adjustment of Status Is Pending

7. Waiting List

8. Revocation

a. Streamlining Revocation Based on Violation of the Requirement of T Nonimmigrant Status

b. Revocation Based on Information Provided by Law Enforcement

c. Revocation of Derivative Nonimmigrant Status

9. Technical Fix for T Nonimmigrants Residing in the CNMI

D. Filing and Biometric Services Fees

V. Regulatory Requirements

A. Administrative Procedure Act

1. Statutorily Required Changes

2. ProceduraL Changes Only

3. Logical Outgrowth

4. Contrary to the Public Interest

B. Unfunded Mandates Reform Act of 1995

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Executive Orders 12866 and 13563

1. Summary

2. Background

3. Changes Implemented in this Interim Rule

a. Statutory Provisions

b. Discretionary Changes

4. Benefits

a. Benefits of Statutory Provisions

b. Benefits of Discretionary Changes

5. Costs

a. Costs of Statutory Provisions

b. Costs of Discretionary Changes

c. Costs to the Federal Government

E. Regulatory Flexibility Act

F. Executive Order 13132

G. Executive Order 12988

H. Family Assessment

I. Paperwork Reduction Act

I. Public Participation

DHS invites interested persons to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this interim rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. DHS particularly encourages comments from individuals, organizations, and agencies with direct experience handling T nonimmigrant cases or issues. Comments that will provide the most assistance to DHS in developing these procedures will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions:

All submissions received must include the agency name (U.S. Citizenship and Immigration Services) and DHS Docket No. USCIS-2011-0010 for this rulemaking. All comments received will be posted without change to

http://www.regulations.gov,

including any personal information provided. See the

ADDRESSES

section above for information on how to submit comments. Those wishing to submit anonymous comments should do so electronically at

http://www.regulations.gov.

Docket:

For access to the docket to read background documents or comments received go to

http://www.regulations.gov.

II. Executive Summary

A. Purpose of the Regulatory Action

The T nonimmigrant status regulations—which include eligibility criteria, application process, evidentiary standards, and benefits associated with the T nonimmigrant classification (commonly known as the “T visa”

)—have been in effect since a 2002 interim rule.

New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status,

67 FR 4784 (Jan. 31, 2002) (2002 interim rule). Since the publication of that interim rule, the public has submitted comments on the regulations and Congress has enacted numerous pieces of related legislation. DHS is responding to the public comments on the 2002 interim rule, clarifying requirements based on experience operating the program for more than 14 years, and amending provisions as required by legislation.

T nonimmigrant status is known as the “T visa” colloquially, however “T visa” is not an entirely accurate term in light of the statutory scheme. Principal victims granted T-1 nonimmigrant status may seek derivative T nonimmigrant status for certain family members. 8 CFR 214.11(o)(1). Some of these family members may reside outside the United States and, if eligible, can join the victim in the United States. Before family members with approved derivative T nonimmigrant status can enter the United States, the family members must first undergo processing with the Department of State at a U.S. Embassy or Consulate to obtain a T visa abroad. This is known as consular processing. USCIS will decide on the basis of the application filed by the principal T-1 nonimmigrant whether an overseas family member qualifies for derivative T nonimmigrant status. The Department of State will then separately determine that family member's eligibility to receive a visa in order to enter the United States.

1. Need for the Regulatory Action and How the Action Will Meet That Need

Statutory amendments to the Trafficking Victims Protection Act of 2000 (TVPA) require that DHS amend and clarify the eligibility and application requirements to conform to current law. In addition, DHS needs to respond to public comments on the 2002 interim rule. DHS accomplishes both actions in this interim rule.

2. Statement of Legal Authority for the Regulatory Action

The TVPA authorizes various means to combat trafficking in persons, including tools to effectively prosecute and punish perpetrators of trafficking in persons, and protection to victims of trafficking through immigration relief and access to Federal public benefits.

See

Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), div. A, TVPA, Public Law 106-386, 114 Stat. 1464 (Oct. 28, 2000),

as amended by

TVPRA 2003, Public Law 108-193, 117 Stat. 2875 (Dec. 19, 2003); VAWA 2005, Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006); Technical Corrections to VAWA 2005, Public Law 109-271, 120 Stat. 750 (Aug. 12, 2006); TVPRA 2008, Public Law 110-457, 122 Stat. 5044 (Dec. 23, 2008), and VAWA 2013, Public Law 113-4, titles viii, xii, 127 Stat. 54 (Mar. 7, 2013); Justice for Victims of Trafficking Act of 2015 (JVTA), Public Law 114-22, 129 Stat. 227 (May 29, 2015). The Immigration and Nationality Act of 1952 (INA), as amended, permits the Secretary to grant T nonimmigrant status to aliens who are or were victims of a severe form of trafficking in persons, who have complied with any reasonable request by an LEA for assistance in an investigation or prosecution of acts of trafficking in persons or the investigation of crime where acts of trafficking are at least one central reason for the commission of that crime, or who are exempt from this compliance requirement, and who would suffer extreme hardship involving unusual and severe harm if removed from the United States.

See

INA section 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T).

B. Summary of the Major Provisions of the Rule

1. Statutory Changes

The legislative changes to the T nonimmigrant statute addressed in this interim rule are as follows:

• Expanding the definition and discussion of LEA to include State and local law enforcement agencies (added by VAWA 2005).

See

INA section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa); new 8 CFR 214.11(a).

• Raising the age at which the applicant must comply with any reasonable request by an LEA for assistance in an investigation or prosecution of acts of trafficking in persons, from 15 years to 18 years of age (added by TVPRA 2003).

See

INA section 101(a)(15)(T)(i)(III)(cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(cc); new 8 CFR 214.11(b)(3)(i) and (h)(4)(ii).

• In cases where the applicant is unable, due to physical or psychological trauma, to comply with any reasonable request by an LEA, exempting the

applicant from the requirement to comply (added by TVPRA 2008).

See

INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); new 8 CFR 214.11(b)(3)(ii) and (h)(4)(i).

• Expanding the regulatory definition of physical presence on account of trafficking to include those whose entry into the United States was for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking (added by TVPRA 2008).

See

INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II); new 8 CFR 214.11(b)(2) and (g)(1).

• Allowing principal applicants under 21 years of age to apply for derivative T nonimmigrant status for unmarried siblings under 18 years and parents as eligible derivative family members (added by TVPRA 2003).

See

INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I); new 8 CFR 214.11(k)(1)(ii).

• Providing age-out protection for a principal applicant's eligible family members under 21 years of age (added by TVPRA 2003).

See

INA section 214(o)(4), 8 U.S.C. 1184(o)(4); new 8 CFR 214.11(k)(5)(ii).

• Providing age-out protection for principal applicants under 21 years of age (added by TVPRA 2003).

See

INA section 214(o)(5), 8 U.S.C. 1184(o)(5); new 8 CFR 214.11(k)(5)(iii).

• Allowing principal applicants of any age to apply for derivative T nonimmigrant status for unmarried siblings under 18 years of age and parents as eligible family members if the family member faces a present danger of retaliation as a result of the principal applicant's escape from a severe form of trafficking or cooperation with law enforcement (added by TVPRA 2008).

See

INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III); new 8 CFR 214.11(k)(1)(iii) and (k)(5)(iv).

• Allowing principal applicants of any age to apply for derivative T nonimmigrant status for children (adult or minor) of the principal's derivative family members if the derivative's child faces a present danger of retaliation as a result of the principal's escape from a severe form of trafficking or cooperation with law enforcement (added by VAWA 2013).

See

INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III); new 8 CFR 214.11(k)(1)(iii).

• Permitting all derivative T nonimmigrants, if otherwise eligible, to apply for adjustment of status under INA section 245(l), 8 U.S.C. 1255(l).

See

new 8 CFR 245.23(b)(2).

• Removing the requirement that eligible family members must face extreme hardship if the family member is not admitted to the United States or was removed from the United States (removed by VAWA 2005).

See

previous INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii); 8 CFR 214.11(o)(1)(ii)

• Exempting T nonimmigrant applicants from the public charge ground of inadmissibility (added by TVPRA 2003).

See

INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A); new 8 CFR 212.16(b).

• Limiting duration of T nonimmigrant status to 4 years but providing extensions for LEA need, for exceptional circumstances, and for the pendency of an application for adjustment of status (VAWA 2005 and TVPRA 2008).

See

INA section 214(o)(7)(B), 8 U.S.C. 1184(o)(7)(B); new 8 CFR 214.11(c)(1) and (l).

• Implementing a technical fix to clarify that presence in the Commonwealth of the Northern Mariana Islands after being granted T nonimmigrant status qualifies toward the requisite physical presence requirement for adjustment of status (added by VAWA 2013).

See

VAWA 2013, tit. viii, section 809; section 705(c) of the Consolidated Natural Resources Act of 2008 (CNRA), Title VII, Public Law 110-229, 122 Stat. 754 (2008); new 8 CFR 245.23(a)(3)(ii).

• Conforming the regulatory definition of sex trafficking to the revised statutory definition in section 103(10) of the TVPA (22 U.S.C. 7102(10)), as amended by section 108(b) of the JVTA, 129 Stat. 239.

See

new 8 CFR 214.11(a).

2. Discretionary Changes

In addition to the necessary statutory changes, DHS makes the following changes and clarifications related to the T nonimmigrant classification in this interim rule:

• Specifies how USCIS will exercise its waiver authority with respect to criminal inadmissibility grounds; new 8 CFR 212.16(b)(3).

• Discontinues the practice of weighing evidence as primary and secondary in favor of an “any credible evidence” standard; 8 CFR 214.11(f); new 8 CFR 214.11(d)(2)(ii) and (3).

• Provides guidance on the definition of “severe form of trafficking in persons” where an individual has not performed labor or services, or a commercial sex act; new 8 CFR 214.11(f)(1).

• Removes the current regulatory “opportunity to depart” requirement for those who escaped traffickers before law enforcement became involved; 8 CFR 214.11(g)(2).

• Addresses situations where trafficking has occurred abroad, but the applicant can potentially meet the physical presence requirement; new 8 CFR 214.11(g)(3).

• Eliminates the requirement that an applicant provide three passport-style photographs; 8 CFR 214.11(d)(2)(ii); new 8 CFR 214.11(d)(4).

• Removes the filing deadline for applicants victimized prior to October 28, 2000; 8 CFR 214.11(d)(4).

• Announces forthcoming updates to the forms used to apply for T nonimmigrant status.

• Updates the regulation to reflect the creation of DHS, and to implement current standards of regulatory organization, plain language, and USCIS efforts to transform its customer service practices.

C. Costs and Benefits

With this interim rule, DHS incorporates in its regulations several statutory provisions associated with the T nonimmigrant status that have been enacted since 2002 and that DHS already has been implementing. While codifying these changes in the DHS regulations will not result in additional quantitative costs or benefits, ensuring that DHS regulations are consistent with applicable legislation will provide qualitative benefits. In addition, DHS will implement changes made necessary by VAWA 2013, and other discretionary changes. DHS estimates the changes made in this interim rule will result in the following costs:

• A per application opportunity cost for the T-1 principal alien of $33.92 to complete and submit the Application for Family Member of T-1 Recipient, Form I-914 Supplement A, in order to apply for children (adult or minor) of the principal's derivative family members if the derivative's child faces a present danger of retaliation as a result of the principal's escape from a severe form of trafficking and/or cooperation with law enforcement. The children of the principal's derivative relatives will be admitted under the T-6 classification. DHS has no basis to project the population of children of derivative family members that may be eligible for the new T-6 nonimmigrant classification.

• An individual total cost of $89.70 for applicants who become eligible to apply for principal T-1 nonimmigrant status when the filing deadline for those trafficked before October 28, 2000 is removed. The total cost includes the opportunity cost associated with filing the Application for T Nonimmigrant Status, Form I-914, and the time and travel costs associated with submitting

biometrics. If the applicant includes the Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I-914 Supplement B in the application, there is an opportunity cost of $149.70 for the law enforcement worker that completes that form. DHS has no way of predicting how many individuals physically present in the United States may now be eligible for T-1 nonimmigrant status as a result of removing the filing deadline.

• An individual total cost of $89.70 for those applicants trafficked abroad that will now become eligible to apply for T nonimmigrant status due to DHS's expanded interpretation of the physical presence requirement. As previously described, the total cost includes both the opportunity of time cost and estimated travel cost incurred with filing Form I-914 and submitting biometrics. If the applicant includes the Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I-914 Supplement B in the application, there is an opportunity cost of $149.70 for the law enforcement worker that completes that form. DHS is unable to project the size of this new eligible population.

Based on recent filing volumes, DHS estimates total cost savings of $56,130 for T nonimmigrant applicants and their eligible family members as a result of no longer being required to submit three passport-style photographs with their T nonimmigrant applications. In addition, the interim rule will provide various qualitative benefits for victims of trafficking, their eligible family members, and law enforcement agencies investigating trafficking incidents. These qualitative benefits result from making the T nonimmigrant classification more accessible, reducing some burden involved in applying for this status in certain cases, and clarifying the process by which DHS adjudicates and administers the T nonimmigrant benefit.

D. Public Comments

DHS welcomes public comment on all aspects of this interim final rule.

III. Background and Legislative Authority

Congress created the T nonimmigrant status in the TVPA.

See

Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), div. A, TVPA, Public Law 106-386, 114 Stat. 1464 (Oct. 28, 2000). Congress has since amended the TVPA, including the T nonimmigrant status provisions, several times: TVPRA 2003, Public Law 108-193, 117 Stat. 2875 (Dec. 19, 2003); VAWA 2005, Public Law 109-162, 119 Stat. 2960 (Jan. 5, 2006); Technical Corrections to VAWA 2005, Public Law 109-271, 120 Stat. 750 (Aug. 12, 2006); TVPRA 2008, Public Law 110-457, 122 Stat. 5044 (Dec. 23, 2008); VAWA 2013, Public Law 113-4, titles viii, xii, 127 Stat. 54 (Mar. 7, 2013); JVTA, Public Law 114-22, 129 Stat. 227 (May 29, 2015).

The TVPA and subsequent reauthorizing legislation provide various means to combat trafficking in persons, including tools to effectively prosecute and punish perpetrators of trafficking in persons, and protect victims of trafficking through immigration relief and access to federal public benefits. The T nonimmigrant status is one type of immigration relief available to victims of severe forms of trafficking in persons who assisted LEAs in the investigation or prosecution of the perpetrators of these crimes.

The INA permits the Secretary to grant T nonimmigrant status to individuals who are or were victims of a severe form of trafficking in persons, who have complied with any reasonable request by an LEA for assistance in an investigation or prosecution of crime involving acts of trafficking in persons (or who are under 18 years of age or are unable to cooperate due to physical or psychological trauma).

See

INA Section 101(a)(15)(T)(i)(I), (III), 8 U.S.C. 1101(a)(15)(T)(i)(I), (III). Applicants for T nonimmigrant status must be physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port-of-entry thereto, on account of trafficking in persons, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking.

See

INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II). In addition, an applicant must demonstrate that he or she would suffer extreme hardship involving unusual and severe harm if removed from the United States.

See

INA section 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV). T nonimmigrant status allows eligible individuals to remain in the United States for a period of not more than 4 years (with the possibility for extensions), receive work authorization, receive federal public benefits, and apply for derivative status for certain eligible family members.

See

INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii); INA section 214(o), 8 U.S.C. 1184(o); 8 U.S.C. 1641(c)(4).

The primary victim of trafficking is also referred to as the “principal T nonimmigrant” or “principal alien” and receives T-1 nonimmigrant status, if eligible. The principal alien may be permitted to apply for certain family members who are referred to as “eligible family members” or “derivative T nonimmigrants” and when approved those family members receive T-2, T-3, T-4, T-5, or T-6 nonimmigrant status. The term derivative is used in this context because the family member's eligibility derives from that of the primary nonimmigrant.

On January 31, 2002, the former Immigration and Naturalization Service (INS)

published an interim final rule in the

Federal Register

titled

New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status

implementing the T nonimmigrant status provisions of the TVPA. 67 FR 4784. INS outlined the eligibility criteria, application process, evidentiary standards, and benefits associated with the T nonimmigrant status.

Id.

Most of the provisions in this rule have been in effect since the 2002 interim rule and have been the subject of extensive public comment.

In this rule, DHS is responding to the 14 public submissions with comments on multiple provisions of the 2002 interim rule. No comments were received regarding the procedural aspects of the 2002 interim rule or the good cause arguments put forth in the rule for bypassing notice and comment.

Various functions formerly performed by the INS, or otherwise vested in the Attorney General, were transferred to DHS in March 2003.

See

6 U.S.C. 251, 271(b), 557; 6 U.S.C. 542 note; 8 U.S.C. 1103(a)(1), (g), 8 U.S.C. 1551 note. Even though INS published the 2002 interim rule, this rule refers to DHS because DHS is now the regulatory actor.

Since the publication of the 2002 interim rule, DHS has amended the core regulatory provision relating to T nonimmigrant status, 8 CFR 214.11, multiple times. Most of these changes have been minor conforming changes as parts of other actions.

See, e.g.,

Removal of the Standardized Request for Evidence Processing Timeframe,

72 FR 19100, 19107 (Apr. 17, 2007);

Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status,

73 FR 75558 (Dec. 12, 2008);

Application of Immigration Regulations to the Commonwealth of the Northern Mariana Islands,

74 FR 55738 (Oct. 28, 2009).

As noted above, DHS also welcomes additional input by stakeholders in response to this action. As explained further in the Administrative Procedure Act section of this rule, DHS is publishing this rule as an interim final rule and requesting additional comment on all aspects of this rulemaking.

IV. Eligibility and Application Requirements, Procedures, and Changes in This Rule

DHS provides a summary of the changes made in this rule in Section II.B. of this preamble above. In this section, DHS describes the changes in greater detail. The discussion is organized generally in the same order as the relevant regulatory provisions in this interim rule, and proceeds as follows:

A. Eligibility Requirements for T Nonimmigrant Classification (including core eligibility factors such as victimization, physical presence on account of trafficking in persons, and extreme hardship involving unusual and severe harm upon removal),

B. Application Requirements (include filing deadlines, bona fide determinations, and processes and eligibility for derivative family members),

C. Adjudication and Post-Adjudication (including waivers of inadmissibility, confidentiality requirements, and duration of status), and

D. Filing and Biometric Services Fees.

Throughout the discussion, DHS addresses and responds to the public comments received in connection with the 2002 interim rule.

A. Eligibility Requirements for T Nonimmigrant Classification

There are four statutory eligibility requirements for T nonimmigrant status.

See

INA section 101(a)(15)(T), 8 U.S.C. 1101(a)(15)(T). To be eligible, the applicant must meet the following criteria:

• The applicant must be or have been a victim of a severe form of trafficking in persons, as defined in 22 U.S.C. 7102 (section 103 of the TVPA);

• The applicant must be physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands (CNMI),

or at a port-of-entry thereto, on account of such 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; and

The federalization of the CNMI immigration law took place on November 28, 2009.

See

Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, title VII, 122 Stat. 754 (2008). This effectively replaced the CNMI's immigration laws with the INA and other applicable United States immigration laws, with few exceptions.

• The applicant must meet one of the following criteria:

Has 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

Is under 18 years of age; or

Is unable to cooperate with a request due to physical or psychological trauma; and

• The applicant would suffer extreme hardship involving unusual and severe harm upon removal from the United States.

Below DHS addresses each of these requirements in turn.

1. Victim of a Severe Form of Trafficking in Persons

First, an individual applying for classification as a T nonimmigrant must demonstrate that he or she is or was a victim of a severe form of trafficking in persons.

See

INA section 101(a)(15)(T)(i)(I), 8 U.S.C. 1101(a)(15)(T)(i)(I). In the 2002 interim rule, DHS defined “victim of a severe form of trafficking in persons” consistent with the statutory definitions in TVPA section 103(9) and (14), 22 U.S.C. 7102(9), (14). Under the interim rule, an applicant must show that he or she is a victim of one or more of the following:

• Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion;

• Sex trafficking in which the person induced to perform such an act is under the age of 18; 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.

See

8 CFR 214.11(a);

see also

TVPA section 103(9), 22 U.S.C. 7102(9).

DHS received public comments on the definition of “victim of a severe form of trafficking in persons,” and responds as follows:

• DHS clarifies that the term “involuntary servitude,” as used in 22 U.S.C. 7102(9), encompasses the use of psychological coercion.

See

8 CFR 214.11(a).

• DHS clarifies that an individual need not perform labor, services, or a commercial sex act to meet the definition of a “victim of a severe form of trafficking in persons.” New 8 CFR 214.11(f)(1).

• DHS explains how a victim can meet the evidentiary burden to show victimization, even when the victim did not perform labor, services or a commercial sex act.

In order to simplify the regulatory text, DHS used and defined the term “victim” in this rule as shorthand to refer to “an alien who is or has been subject to a severe form of trafficking in persons,” as defined by TVPA section 103 (22 U.S.C. 7102).

See

8 CFR 214.11(a).

a. Definition of “Involuntary Servitude”

DHS received four comments about the definition of “involuntary servitude” in 8 CFR 214.11(a). Commenters maintained that the definition appeared to be too narrow because it cited

United States

Kozminski,

487 U.S. 931, 952 (1988). In Kozminski, the Supreme Court had occasion to construe “involuntary servitude” as used in the criminal provisions at 18 U.S.C. 241 (conspiracy to interfere with free exercise of constitutional rights, including Thirteenth Amendment guarantee against involuntary servitude) and 1584 (knowingly and willfully holding to involuntary servitude . . . any other person for any term). The Court, considering the historical context of the term as used in those criminal provisions, held that involuntary servitude excluded compulsion by psychological coercion.

The commenters stated that Congress intended the definition of involuntary servitude as used in 22 U.S.C. 7102(9) and defined in part in 22 U.S.C. 7102(6), to go beyond the

Kozminski

construction, and recommended striking the citation from the definition. We agree. In the 2002 interim rule, DHS did not intend to exclude psychological coercion from the definition of involuntary servitude. The citation to

Kozminski

in the definition was qualified by the word “includes,” and therefore did not limit the definition of involuntary servitude by excluding psychological coercion. Additionally, in the 2002 interim rule's preamble, DHS specifically said that the TVPA definition of “forced labor” was meant to “expand[] the definition of involuntary servitude contained in

Kozminksi.”

67 FR 4784, at 4786. To avoid the potential for confusion, DHS is removing the citation to

Kozminski

from the definition of “involuntary servitude.”

b. Performing Labor, Services, or Commercial Sex Is Not Necessary

In this interim rule, DHS is clarifying that an individual need not actually perform labor, services, or a commercial sex act to meet the definition of a “victim of a severe form of trafficking in persons.”

See

new 8 CFR 214.11(f)(1).

In the 2002 interim rule, DHS explained that it interpreted the term “severe form of trafficking in persons” to require a particular means (force, fraud, or coercion) and a particular end (sex trafficking, involuntary servitude, peonage, debt bondage, or slavery).

See

67 FR at 4786 (construing the statutory definition at 22 U.S.C. 7102(9) and (14)). However, DHS did not discuss how it would address cases involving the means of force, fraud, or coercion and the intended ends of sex trafficking, involuntary servitude, peonage, debt bondage, or slavery, where those illicit

ends are never realized. This would include, for example, a situation where the victim was recruited and came to the United States through force, fraud or coercion for the purpose of a commercial sex act, but the victim was rescued or escaped before performing a commercial sex act.

The definition of “severe form of trafficking in persons” at 22 U.S.C. 7102(9) includes the phrase “for the purpose of” subjection to a form of human trafficking;

i.e.,

the applicant may establish that he or she was recruited, transported, harbored, provided, or obtained through force, fraud, or coercion

for the purpose of

subjecting him or her to a commercial sex act, involuntary servitude, peonage, debt bondage, or slavery.

The statutory definition does not require a victim to have actually performed labor, services, or a commercial sex act to be considered a victim of a severe form of trafficking, for T nonimmigrant status eligibility purposes.

Note that the labor trafficking prong of the statutory definition of “severe forms of trafficking in persons” at 22 U.S.C. 7102(9)(B) directly uses the phrase “for the purpose of,” whereas the sex trafficking prong of the statutory definition does not. The sex trafficking prong, however, incorporates the definition of “sex trafficking” at 22 U.S.C. 7102(10) (“The term `sex trafficking' means the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act”), which employs the phrase “for the purpose of.” Although the statute requires the commercial sex act to be “induced,” the statute does not expressly provide that the inducement must be successful in order for a victim to satisfy the definition, nor does the term “induce” necessarily require that the desired end be achieved.

See, e.g.,

United States

Murrell,

368 F.3d 1283, 1287 (11th Cir. 2004) (“We have previously held that the term `induce' in [18 U.S.C.] § 2422 is not ambiguous and has a plain and ordinary meaning. . . . By negotiating with the purported father of a minor, Murrell attempted to stimulate or cause the minor to engage in sexual activity with him. Consequently, Murrell's conduct fits squarely within the definition of `induce.' ”) (citations omitted);

cf. NLRB

Associated Musicians of N.Y.,

226 F.2d 900, 904 (2d Cir. 1955) (holding that “common understanding of the meaning” of “induce,” as used in the National Labor Relations Act, does not require the inducement to be successful). Moreover, the two prongs of the statutory definition should be read to fit harmoniously as part of “a symmetrical and coherent statutory scheme.”

FDA

Brown & Williamson Tobacco Corp.,

529 U.S. 120, 133 (2000). We can discern neither a logical reason nor any congressional design to designate inchoate labor trafficking offenses as “severe forms of trafficking in persons,” but not so designate inchoate sex trafficking offenses. To the extent there is ambiguity in the statutes, it is reasonable for the Department to adopt the more expansive conception of “victim” for purposes of the T visa regime given the protection and humanitarian aims of the statutory scheme.

Cf., e.g.,

INS

Cardoza-Fonseca,

480 U.S. 421, 449 (1987) (construing “any lingering ambiguities” in Refugee Act of 1980 so as to “increase [ ] . . . flexibility” in protecting refugees in light of statute's humanitarian aims);

Flores

USCIS,

718 F.3d 548, 554 (6th Cir. 2013) (observing that court's more expansive reading of temporary protected status (TPS) provision is supported by clear congressional intent “to protect a class of people . . . due to an extraordinary circumstance”);

Akhtar

Burzynski,

384 F.3d 1193, 1200 (9th Cir. 2004) (observing that “[i]n determining congressional intent” when seeking to resolve ambiguities in LIFE Act (“V visa” program), “we should adhere to the general rule of construction that when the legislature enacts an ameliorative rule designed to forestall harsh results, the rule will be interpreted and applied in an ameliorative fashion”) (quotations marks omitted).

The TVPA did not elaborate on the term “for the purpose of subjection to” a form of human trafficking. We therefore consider common definitions of the key terms:

•

Purpose:

“something set up as an object or an end to be attained.”

See

Merriam-Webster Online Dictionary, 2011,

http://merriam-webster.com.

Also defined as “an objective, goal, or end; specifically the business activity that a corporation is chartered to engage in.”

See

Black's Law Dictionary (7th ed. 2000).

•

Subjection:

“the act of subjecting someone to something.”

See

Black's Law Dictionary (7th ed. 2000). “Subjecting” is also defined as “bringing under control or dominion” or “causing or forcing to undergo or endure.”

See

Merriam-Webster Online Dictionary, 2011,

http://merriam-webster.com.

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.

Furthermore, Congress amended the federal criminal code to punish attempts to violate any trafficking-related criminal provision in the same manner as a completed act of trafficking would be punished.

See

TVPA section 112; 18 U.S.C. 1594. The criminal code thus specifically allows for attempts and conspiracy to commit trafficking to be prosecuted.

Id.

The T nonimmigrant status was intended to assist LEAs and provide a tool to, in part, allow for prosecution and stop the traffickers from continuing to enslave human beings.

See

TVPA section 102. Congress intended to provide an incentive for victims to report these crimes by providing for an immigration benefit connected to assistance to LEAs.

Id.

If victims who have been recruited, harbored, transported, provided, or obtained for the purposes of trafficking (or patronized or solicited in the case of sex trafficking) and have not yet performed any labor, services, or commercial sex acts are not eligible for T nonimmigrant status, Congress's intent in the TVPA to prosecute traffickers would be thwarted. Such an interpretation would hinder victims from coming forward to report trafficking to LEAs and assist with investigations or prosecutions. This could amount to a chilling effect on LEAs' ability to investigate and prosecute trafficking-related crimes. Since the 2002 interim rule, USCIS has seen far fewer filings than expected. However, based on the Federal Government estimates, the small number of filings is not due to a correspondingly small number of victims in the United States.

See U.S. Department of State, Trafficking in Persons Report

(June 2010). Victims already often find it difficult to report trafficking and work with law enforcement; excluding an entire class of potential victims from T nonimmigrant eligibility could thwart the purpose of the visa and hinder prosecutions. A narrow interpretation would also seem to punish a victim who was rescued by an LEA or escaped on their own before any labor, services or commercial sex acts were performed. That result is illogical and inconsistent with Congressional intent. Therefore, those who have been recruited, harbored, transported, provided, or obtained for the purposes of trafficking (or patronized or solicited in the case of sex trafficking) are eligible for T nonimmigrant status in this rule, irrespective of the actual performance of any labor, services or commercial sex acts.

Below, DHS includes a discussion of how victims can meet the evidentiary burden to show victimization when they did not perform labor, services or a commercial sex act.

c. Evidence of Victimization

An applicant can meet the victimization requirement in a number of ways. In the 2002 interim rule, DHS required the submission of primary or secondary evidence to establish victimization.

See

8 CFR 214.11(f). Primary evidence of victimization included an LEA endorsement on the Declaration of a Law Enforcement Officer for Victim of Trafficking in Persons, Form I-914 Supplement B to the Application for T Nonimmigrant Status,

Form I-914, and a grant of Continued Presence from U.S. Immigration and Customs Enforcement (ICE) under 28 CFR 1100.35. Secondary evidence included any credible evidence that demonstrated that the applicant is or has been a victim of a

severe form of trafficking in persons, including evidence that explained the nonexistence or unavailability of the primary evidence.

Currently USCIS Form I-914. Available online at

http://www.uscis.gov/files/form/i-914.pdf.

As discussed later in this preamble, DHS received comments suggesting that the interim rule made the LEA endorsement mandatory because it was “primary” evidence. Commenters also thought the LEA endorsement created an imbalance between the needs of law enforcement and the rights of victims.

DHS amends the regulations in this rule to discontinue giving the two types of evidence different and unequal weight.

See

new 8 CFR 214.11(d)(3). Under new 8 CFR 214.11(d)(2)(ii), USCIS will accept any credible evidence of victimization, including but not limited to an LEA endorsement or a grant of Continued Presence. Following this change, USCIS will review applications where there is no LEA endorsement or grant of Continued Presence and give equal weight to other credible evidence based on the TVPA goals of protecting victims and enhancing law enforcement's ability to investigate and prosecute human trafficking.

See

TVPA section 102. By making the LEA endorsement just one type of evidence of victimization, DHS clarifies a misconception of the LEA role in the T nonimmigrant process. An LEA does not determine if the victim meets the “severe form of trafficking definition” under Federal law. That is a determination that is made by USCIS.

Except in instances of sex trafficking involving victims under 18 years of age, severe forms of trafficking in persons must involve both a particular means (force, fraud, or coercion) and a particular end (sex trafficking, involuntary servitude, peonage, debt bondage, or slavery) or intended particular end.

See

new 8 CFR 214.11(f)(1). The applicant must demonstrate both elements, regardless of the evidence submitted.

As noted above, if the victim has not yet actually performed labor, services or a commercial sex act, he or she must establish that the trafficker acted “for the purpose of” subjecting the victim to sex trafficking, involuntary servitude, peonage, debt bondage, or slavery.

See

new 8 CFR 214.11(f)(1). The clearest evidence of this purpose would be that the victim did in fact perform labor, services, or commercial sex acts. In the absence of that evidence, a victim can submit any credible evidence from any reliable source that shows the purpose for which the victim was recruited, transported, harbored, provided or obtained. Examples of evidence that may be submitted to demonstrate the trafficker's purpose include, but are not limited to: Correspondence with the trafficker, evidence from an LEA, trial transcripts, court documents, police reports, news articles, and affidavits.

See

new 8 CFR 214.11(f)(1).

2. Physical Presence on Account of Trafficking in Persons

Second, an alien applying for T nonimmigrant status must demonstrate physical presence in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry thereto, on account of trafficking.

See

INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II).

In this interim rule, DHS makes the following changes and clarifications:

• If a victim departed from the United States but the victim is allowed reentry into the United States to participate in an investigative or judicial process

associated with an act or a perpetrator of trafficking, USCIS will consider the victim to have met the physical presence requirement. New 8 CFR 214.11(g)(1)(v) and (2).

Congress used different language in INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II), than in INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i), which specifically requires the LEA to “certify that the presence of the alien in the United States is necessary to assist in the investigation or prosecution of such activity.” Congress could have inserted “prosecution” in INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II), as it did in INA section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa), and INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i), but did not. Instead it used the broader concept of “judicial processes.” DHS does not interpret the phrase “judicial processes” as referring only to criminal investigations or prosecutions, nor will DHS require LEA “sponsorship.” For example, if DHS were to parole a victim to pursue civil remedies associated with an act or perpetrator of trafficking,

see, e.g.,

18 U.S.C. 1595, the applicant may potentially meet this physical presence requirement. DHS does not interpret this provision to require the victim enter the United States through an LEA sponsored entry, such as Significant Public Benefit Parole, although practically use of this parole may be the most common way these applicants enter the United States.

• If the trafficking occurred abroad, but the victim is allowed entry into the United States for the purpose of participating in an investigative or judicial process associated with an act or a perpetrator of trafficking, USCIS will consider the victim to have met the physical presence requirement. New 8 CFR 214.11(g)(1)(v) and (3).

• If the victim escaped a trafficker before an LEA became involved in the matter, DHS will no longer require the victim to show that he or she did not have a clear chance to leave the United States, or an “opportunity to depart.” New 8 CFR 214.11(g)(1).

• Where a victim is allowed entry into the United States to participate in an investigative or judicial process associated with an act or a perpetrator of trafficking, the victim must show documentation of entry through a legal means such as parole and must submit evidence that the entry is for the purpose of participation in investigative or judicial processes associated with an act or perpetrator of trafficking. New 8 CFR 214.11(g)(3). DHS discusses each change in turn below.

a. LEA Returns a Victim to the United States

DHS received six comments suggesting that if a victim leaves the United States and then returns to the United States for an investigation or prosecution, USCIS should consider the victim to have met the physical presence requirement. DHS agrees that victims who left but who are allowed valid reentry into the United States for the purposes of an investigation or prosecution meet the physical presence requirement. Moreover, TVPRA 2008 amended section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(II), to include physical presence on account of the victim having been allowed to enter the United States to participate in investigative or judicial processes associated with an act or perpetrator of trafficking.

See

TVPRA 2008 section 201(a)(1)(C). DHS codifies this change in this rule at new 8 CFR 214.11(b)(2) and 214.11(g)(1)(v).

In the 2002 interim rule, DHS presumed that individuals who have traveled outside of the United States and then returned are not here on account of trafficking in persons. To overcome this presumption, an applicant must show that his or her presence in the United States is the result of continued victimization or a new incident of a severe form of trafficking in persons.

See

8 CFR 214.11(g)(3). DHS clarifies in this rule that the presumption does not apply when the victim who previously left the United States is allowed reentry in order for the victim to participate in investigative or judicial processes associated with an act or a perpetrator of trafficking.

See

new 8 CFR 214.11(g)(2)(iii).

b. Victim Who Has Been Trafficked Abroad Is Allowed Entry Into the United States

The physical presence language introduced in TVPRA 2008 broadens the physical presence requirement. It applies not only to valid reentry to the United States as discussed above, but also to initial entry to the United States to participate in investigative or judicial processes associated with trafficking.

For these types of cases, DHS has identified two primary examples where a victim may qualify for T nonimmigrant status:

• When trafficking occurred in the United States or the victim was physically present in the United States on account of trafficking, but the victim has left the United States and is allowed valid reentry into the United States for participation in investigative or judicial processes associated with trafficking; or

• When trafficking occurred outside the United States, but the victim is allowed valid entry into the United States in order to participate in investigative or judicial processes associated with trafficking.

DHS anticipates limited types of cases when trafficking occurred outside the United States that could lead to eligibility for T nonimmigrant status. One type could be when criminal activities occur outside the United States, but the relevant statutes provide for extraterritorial jurisdiction, and the activity involved would meet the Federal definition of “severe forms of trafficking in persons.” Statutes establishing extraterritorial jurisdiction generally require some nexus between the criminal activity and the United States' interests. For example, under 18 U.S.C. 2423(c), the United States has jurisdiction to investigate and prosecute cases involving citizens or nationals who engage in illicit sexual conduct outside the United States, such as sexually abusing a minor. This offense is referred to as “sex tourism.”

Sex tourism often interplays with crimes of human trafficking. According to the Federal definition of “severe forms of trafficking in persons,” where a minor (

i.e.,

a person under the age of 18) engages in a commercial sex act, that minor meets the definition without having to show force, fraud, or coercion.

See

TVPA section 103(9), 22 U.S.C. 7102(9). The TVPA definition of “commercial sex act” is any sex act on account of which anything of value is given to or received by any person. TVPA section 103(4), 22 U.S.C. 7102(4). Violations of the sex tourism statute could involve commercial sex acts involving a minor. Such a minor would also meet the Federal definition of a victim of “severe forms of trafficking in persons,” and if the victim is allowed valid entry into the United States in order to participate in investigative or judicial processes associated with trafficking, the victim may qualify for T nonimmigrant status.

Even absent extraterritorial jurisdiction, there are other cases which could lead to eligibility for T nonimmigrant status when the trafficking occurred outside the United States. DHS understands that the nature of human trafficking crimes often means that traffickers operate internationally and may commit crimes in a number of countries. If the victim is allowed valid entry into the United States in order to participate in investigative or judicial processes, the victim could potentially qualify for T nonimmigrant status. DHS notes that the victim would need to meet every eligibility requirement in order to qualify for T nonimmigrant status and DHS adjudicates every application on a case-by-case basis.

Even before the statutory expansion of the physical presence requirement, it was possible that trafficking that occurred abroad could qualify a victim for T nonimmigrant status. INA section 101(a)(15)(T)(i)(II); 8 U.S.C. 1101(a)(15)(T)(i)(II), allows victims at a port of entry to qualify, so long as they can show that their presence at the port is on account of trafficking. This means that the recruitment, harboring, transportation, provision, or obtaining of a person for a severe form of trafficking that occurs abroad and results in the person's presence at a port of entry of the United States qualifies a victim for T nonimmigrant status. INA section 101(a)(15)(T)(i)(II); 8 U.S.C. 1101(a)(15)(T)(i)(II). DHS notes that not every instance of trafficking occurring abroad would qualify a victim for T nonimmigrant status. The victim must establish that he or she is now in the United States or at a port of entry on account of trafficking or the victim was allowed valid entry into the United States to participate in a trafficking-related investigation or a prosecution or other judicial process. If a victim of trafficking abroad makes his or her way to the United States and the reason is not related to or on account of the trafficking and the victim was not allowed valid entry to participate in an investigative or judicial process related to trafficking or a trafficker, this victim cannot meet the physical presence requirement and would not be eligible for T nonimmigrant status on account of that trafficking incident.

c. Removal of the “Opportunity To Depart” Requirement

DHS is also amending the former “opportunity to depart” aspect of the physical presence requirement. DHS provided in the 2002 interim rule that the general physical presence requirement can cover applicants who are currently being trafficked, were recently liberated from trafficking, or were subject to trafficking in the past. For those who escaped a trafficker before an LEA became involved, DHS required in the 2002 interim rule that the applicant show that, evaluated in light of the applicant's circumstances, he or she did not have a clear chance to leave the United States, or an “opportunity to depart.” 8 CFR 214.11(g)(2). This requirement was intended to ensure that the applicant's continuing presence in the United States is directly related to the trafficking.

Most commenters on the subject of physical presence objected to USCIS requiring a victim liberated from traffickers to demonstrate that his or her continuing presence in the United States is directly related to the trafficking. Commenters also opposed the requirement that a victim who escaped the traffickers and remains in the United States must show he or she had no clear chance to leave, asserting it is burdensome, vague, and may frustrate congressional intent to protect victims.

Although DHS has tempered this requirement by looking at the opportunity to depart in light of the individual's circumstances such as trauma, injury, and lack of resources, DHS agrees that this requirement is unnecessary and may be counterproductive. DHS therefore is removing the requirement that an applicant must show that he or she did not have a clear chance to leave (

i.e.,

“opportunity to depart”) the United States.

Notwithstanding this change, every applicant must still establish that they are physically present in the United States on account of trafficking. Section 101(a)(15)(T)(i)(II) of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(II), requires that a victim be physically present “on account of such trafficking.” Unlike the requirement of victimization, which is phrased in both the present and past tense, the physical presence requirement is only phrased in the present tense. DHS interprets this language to require a consideration of the victim's current situation, and a consideration of whether the victim can establish that his or her current presence in the United States is on account of trafficking. A victim who is liberated from trafficking is not exempt from the statutory requirement to show that his or her presence is on account of trafficking. Applicants who have not performed labor or services, or a commercial sex act also need to demonstrate physical presence in the United States on account of trafficking.

d. Evidence of Physical Presence on Account of Trafficking in Persons

For those victims demonstrating physical presence on account of “the alien having been allowed entry into the United States,” DHS interprets this language to require the victim's entry through a lawful means.

See

INA section 101(a)(15)(T)(i)(II), 8 U.S.C. 1101(a)(15)(T)(i)(II); new 8 CFR 214.11(g)(3). The victim must provide evidence of the lawful entry. New 8 CFR 214.11(g)(3).

DHS does not interpret the phrase “judicial processes” as referring only to criminal investigations or prosecutions, nor will DHS require LEA “sponsorship.” For example, if DHS were to parole a victim to pursue civil remedies associated with an act or perpetrator of trafficking,

see, e.g.,

18 U.S.C. 1595, the applicant may potentially meet this physical presence requirement. DHS does not interpret this provision to require the victim to enter the United States through an LEA sponsored entry, such as Significant Public Benefit Parole (SPBP).

Practically, SPBP may be the most common way these applicants enter the United States, because United States law enforcement may investigate or prosecute the trafficking crime, and law enforcement could sponsor an individual for SPBP for access to United States courts that would likely have jurisdiction over the related trafficking incidents. In these cases, the victim is in the United States on account of trafficking because DHS facilitated the victim's entry into the United States for participation in an investigation or prosecution.

The lawful entry must be connected to the victim's participation in an investigative or judicial process associated with an act or perpetrator of trafficking. The victim must include evidence of the lawful entry and of how he or she entered to participate in an investigative or judicial process associated with an act or perpetrator of trafficking. Evidence could include a Form I-914 Supplement B, or other evidence from an LEA to describe the victim's participation. The victim can also provide other credible evidence, such as a personal statement, or attach supporting documentation.

When the physical presence requirement is met by the victim's entry into the United States for participation in investigative or judicial processes associated with an act or perpetrator of trafficking, the victim must still establish his or her eligibility for all the other requirements for T nonimmigrant status. The compliance with the any reasonable request for assistance requirement would not be met simply by the entry into the United States with the intent to assist the LEA, but by the victim actually complying with any reasonable request by an LEA or meeting an exception to the compliance requirement. The requirement to comply with any reasonable request is an ongoing requirement, meaning that applicants must continue to cooperate with the LEA from the time of their initial application through the time they apply for adjustment of status to lawful permanent resident.

See

new 8 CFR 214.11(h)(1) and (m)(2)(ii)-(iii); 8 CFR 245.23(a)(6)(i). Failure to comply with any reasonable request from the LEA can result in revocation of the T nonimmigrant status.

See

new 8 CFR 214.11(m)(2)(ii)-(iii). 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.

DHS notes that victims must also meet the other eligibility requirements, including the requirement that the victim establish that she or he would suffer extreme hardship involving unusual and severe harm upon removal from the United States. 8 CFR 214.11(i). The victim must include evidence of extreme hardship following the guidelines laid out in 8 CFR 214.11(i). One example of where this requirement may be met when the victimization occurred abroad is if the traffickers abroad are now threatening the victim or the victim's family because the victim is no longer under the trafficker's control or because the victim is cooperating with an LEA or judicial process in the United States. DHS will make “extreme hardship” determinations in accordance with the law and DHS policy, as discussed below in this preamble.

3. Compliance With Any Reasonable Request

Third, a victim is required to comply with any reasonable request for assistance in a Federal, State, or local investigation or prosecution of acts of trafficking in persons, or the investigation of a crime where an act of trafficking in persons is at least one central reason for the commission of that crime.

See

INA section 101(a)(15)(T)(i)(III)(aa), 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa); new 8 CFR 214.11(b)(3). A “reasonable request for assistance” is defined as “a reasonable request made by an LEA or prosecutor to a victim of a severe form of trafficking in persons to assist an LEA in the investigation or prosecution of acts of trafficking in persons or the investigation of a crime where an act of trafficking in persons is at least one central reason for the commission of that crime.” 8 CFR 214.11(a).

In this rule, DHS makes the following changes and clarifications:

• Expanding the factors that DHS may consider in the totality of the circumstances test to determine the “reasonableness” of LEA requests. New 8 CFR 214.11(h)(2).

• Clarifying that DHS will continue to use a “comparably situated crime victims” standard to determine reasonableness, rather than a “subjective trafficked persons” standard.

• Clarifying that the proper standard to determine “reasonableness” is whether the LEA request was reasonable, not whether the victim's refusal was unreasonable. New 8 CFR 214.11(m)(2)(ii).

• Raising the age at which the applicant must comply with any reasonable request by an LEA for assistance in an investigation or prosecution of acts of trafficking in persons from 15 years to 18 years of age. New 8 CFR 214.11(h)(4)(ii).

• According no special weight to an LEA endorsement and moving to an “any credible evidence” standard. New 8 CFR 214.11(h)(3).

• In cases where the applicant is unable, due to physical or psychological trauma, to cooperate with any reasonable request by an LEA, exempting the applicant from the requirement to comply. New 8 CFR 214.11(h)(4)(i).

DHS discusses each change in turn below.

a. Totality of the Circumstances Test To Determine the “Reasonableness” of LEA Requests

In the 2002 interim rule, DHS accounted for situations in which a request made to a victim was not reasonable.

See

8 CFR 214.11(a). Under that rule, the reasonableness of a request depended on the totality of the circumstances, taking into account general law enforcement and prosecutorial practices, the nature of victimization, and the specific circumstances of the victim, including fear, severe traumatization (both mental and physical), and the age and maturity of young victims.

Id.

In the 2002 interim rule, DHS sought specific comments on this requirement. Of the total 191 public comments received, 37 comments related to some aspect of this issue. Fifteen commenters commended DHS for adopting a totality

of the circumstances test to determine the reasonableness of an LEA request and for balancing law enforcement needs and the protection of victims. Some commenters appreciated the comprehensiveness of the totality of the circumstances test. Some commenters also provided a broad, non-exhaustive list of factors to be considered when implementing the totality of the circumstances test, including fear of retribution against family members outside the United States for whom foreign law enforcement cannot or will not provide protection. Six commenters also thought the regulations were too vague regarding how long a victim must comply with any reasonable requests for assistance. The commenters urged DHS to take into account circumstances that may delay or limit an applicant's compliance with LEA requests when determining whether an applicant meets the compliance requirement. These circumstances could include responses to trauma and psychological issues, delays necessary to ensure the safety of the applicant or the applicant's family members, delays or difficulties accessing social services, and the time it takes an applicant to build trust with law enforcement.

DHS appreciates the public's input with respect to the “reasonable requests for assistance” requirement. DHS strives to implement the aims of the TVPA while striking the proper balance between the law enforcement need to investigate and prosecute and the need to ensure that victims are not overburdened. DHS includes in this rule almost all of the commenters' suggested factors to consider when evaluating the reasonableness of an LEA request, including factors related to time.

See

new 8 CFR 214.11(h)(2). DHS will evaluate the totality of the circumstances using a broad range of factors, and is not limited by those listed in this rule.

Id.

b. “Comparably-Situated Crime Victims” Standard

In the 2002 interim rule, DHS noted that it is generally reasonable for an LEA to ask a victim of a severe form of trafficking in persons similar things an LEA would ask other comparably-situated crime victims, thus articulating a “comparably-situated crime victims” standard. 67 FR 4784, at 4788. Some commenters suggested, however, that in the application of the test, DHS could go further by replacing the “comparably-situated crime victims” standard with a “subjective trafficked person” standard that would take into account the unique situation of the particular trafficking victim. DHS has determined, however, that a “subjective trafficked persons” standard could actually be narrower than the existing “comparably-situated crime victims.” 67 FR 4784, at 4788. DHS also notes that many factors of the totality of the circumstances test are unique to trafficking victims.

The definition of “severe forms of trafficking in persons” can be limiting in that elements of force, fraud, and coercion are required. By adopting a “subjective trafficked persons” standard, USCIS would be bound by the federal trafficking definition. The existing comparably-situated crime victim standard can go beyond the scope of the federal trafficking definition to victims of other crimes, such as domestic violence. Law enforcement practice regarding sensitivity to domestic violence victims is long standing and has evolved over the course of several decades. DHS did not limit who it envisioned as a comparably-situated crime victim, intending to keep the evaluation of reasonableness as broad as possible. After considering the comments, DHS has determined that it will retain the reasonableness test and use the comparably-situated crime victim standard in its application, as it properly focuses on the protection of victims and provides more flexibility than the alternative suggested by commenters.

In addition, DHS notes that when comments on the 2002 interim rule were submitted, Congress had not yet added the trauma exemption from compliance with any reasonable requests. In part because of the trauma exemption that Congress enacted following the 2002 interim rule and that is discussed later in this Preamble, DHS sees no need to amend current practice.

c. Proper Standard Is the Reasonableness of the LEA Request

DHS received six comments asserting that USCIS inconsistently implements the statutory requirement that a victim must comply with “any reasonable request for assistance” by sometimes trying to determine whether the victim's refusal to assist was reasonable, instead of whether the request itself was reasonable. The commenters pointed out that the 2002 interim rule discusses the victim's refusal to assist an LEA at page 4788 under, “What is the Law Enforcement Agency Endorsement?” and at 8 CFR 214.11(s)(1)(iv),

Grounds for notice of intent to revoke.

Commenters also suggested the word “reasonable” should be added to Part D (Cooperation of Victim) checklist item of the Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I-914 Supplement B. The item would then read that the applicant “has complied with reasonable requests for assistance . . . .”

DHS agrees that the statute focuses on whether an LEA request was reasonable and not whether a victim unreasonably refused to assist. (DHS notes, however, that whether a request is reasonable can depend on victim-specific factors, such as whether the victim and the victim's family are sufficiently safe or emotionally able to assist law enforcement at any given time.) DHS is amending the revocation standards to reflect the statutory language. New 8 CFR 214.11(m)(2)(iii). DHS has also revised Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I-914 Supplement B to the Application for T Nonimmigrant Status, Form I-914, to add the term “reasonable” to refer to requests made to a victim.

d. Minors Exempt From Compliance With Any Reasonable Request

DHS received eight comments specific to minors and the requirement for compliance with any reasonable request. These commenters proposed that DHS consider the applicant's age and any developmental delays for minors above the age of 15. Persons under the age of 15 were not required to comply with any reasonable requests for assistance under the 2002 interim rule. The commenters requested special consideration for those between the ages of 15 and 18.

Since the 2002 interim rule, the statute has been amended to exempt from this requirement children under 18 years of age and those who cannot comply with a request for assistance due to physical or psychological trauma.

See

INA section 101(a)(15)(T)(i)(III)(bb) and (cc), 8 U.S.C. 1101(1)(15)(T)(i)(III)(bb) and (cc); new 8 CFR 214.11(b)(3)(i) and (ii). Therefore, there is no longer a population of 15 to 18 year olds to which this comment would apply.

See

new 8 CFR 214.11(b)(3)(i) and 214.11(h)(4)(ii).

e. Evidence of Compliance With Any Reasonable Request

Under the 2002 interim rule, evidence of compliance was weighed as primary evidence or secondary evidence, similar to the evidentiary requirement for victimization.

See

8 CFR 214.11(h). An LEA endorsement was primary evidence of compliance with reasonable requests.

Id.

Secondary evidence was any credible evidence submitted to explain the nonexistence or unavailability of the primary evidence and to demonstrate

compliance with any reasonable request.

Id.

DHS received 10 comments relating to the creation of an LEA endorsement, an optional part of an application for T nonimmigrant status. Commenters believed that in practice the endorsement is mandatory since it is primary evidence, and that it creates an imbalance between the needs of law enforcement and the rights of victims. Commenters asserted that the use of an LEA endorsement is not specifically required by statute. Furthermore, commenters believed that Congress did not intend for the LEA endorsement to be required because an endorsement was required in the U nonimmigrant statute concerning victims of certain qualifying criminal activity under INA section 214(p)(1), which includes human trafficking, but not specifically required in the T nonimmigrant statute. Commenters also suggested allowing State or local LEAs to issue an endorsement in addition to Federal LEAs.

DHS is amending the regulations with this rule to discontinue the “primary” and “secondary” evidentiary distinctions in favor of an “any credible evidence” standard.

See

new 8 CFR 214.11(d)(2)(ii) and (3). Under new 8 CFR 214.11(h)(3), USCIS will accept any credible evidence of compliance with reasonable requests, including, but not limited to, an LEA endorsement.

See

new 8 CFR 214.11(d)(3). DHS notes that under the “any credible evidence” standard, the absence of an LEA endorsement will not adversely affect an applicant who can meet the evidentiary burden with the submission of other evidence of sufficient reliability and relevance.

Even though the statute creating T nonimmigrant status did not explicitly require an LEA endorsement, DHS considers such an endorsement a useful and convenient form of evidence, among other types of credible evidence. In TVPRA 2003, Congress added section 214(o)(6) of the INA, 8 U.S.C. 1184(o)(6), which instructs USCIS to consider statements from State and local LEAs that a victim has complied with any reasonable requests for assistance in investigations or prosecutions where trafficking appears to have been involved.

See

TVPRA 2003 section 4(b)(2)(B). TVPRA 2003 also added State and local LEAs to the compliance requirement at section 101(a)(15)(T)(i)(III)(aa) of the INA, 8 U.S.C. 1101(a)(15)(T)(i)(III)(aa).

Id.

TVPRA 2003 endorsed and codified the LEA endorsement process by directing USCIS to consider statements from State and local LEAs.

See

TVPRA 2003 section 4(b)(2)(B), INA section 214(o)(6), 8 U.S.C. 1184(o)(6).

In creating the T nonimmigrant status, Congress intended to provide law enforcement with a tool to combat and prosecute human trafficking and to protect victims of human trafficking. DHS intends to equally balance the goals of law enforcement and victim protection by moving to an “any credible evidence” standard. DHS has amended the evidentiary standard as described above.

This change to an “any credible evidence” standard also clarifies some misconceptions of the LEA role in the T nonimmigrant process. Signing an endorsement does not grant T nonimmigrant status, nor does it lead to automatic approval. Only USCIS can grant T nonimmigrant status after reviewing evidence and completing security and background checks. An “any credible evidence” standard may assist LEAs in better understanding their role in the T nonimmigrant process. This new standard may also result in LEAs being more likely to sign endorsements, increasing the likelihood that T nonimmigrant status will be utilized as the law enforcement tool that it is intended to be. Even in the absence of an LEA endorsement, in order to determine whether a victim meets the “compliance with any reasonable request” requirement, DHS may contact the LEA that is involved in the case at its discretion to document the victim's compliance (or inability to comply) with reasonable requests for assistance.

Consistent with DHS' adoption of an any credible evidence standard, this rule also expands the definition of “Law Enforcement Agency (LEA)” to allow for any Federal, State or local law enforcement agency, prosecutor, judge, labor agency, or other authority that has responsibility for the detection, investigation, and/or prosecution of severe forms of trafficking in persons to complete an LEA endorsement. New 8 CFR 214.11(d)(2); 8 CFR 214.11(h)(3). Federal LEAs include but are not limited to: 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 U.S. Department of Labor. State and local LEAs include but are not limited to: Police departments, sheriff's offices, district attorney's offices, human rights commissions, departments of labor, and child protective services. An agency that has the responsibility to detect severe forms of trafficking in persons may be an LEA even if the agency does not investigate or prosecute acts of trafficking.

Further, commenters suggested that the act of filing an application for T nonimmigrant status amounts to contacting law enforcement and DHS should require no additional action. At a minimum, commenters asked USCIS to ensure that Federal LEAs issue LEA endorsements without undue delay if a prosecution does not proceed as originally charged, a prosecution moves forward for a lesser offense, or a State or local prosecution proceeds in lieu of a Federal prosecution.

Since the regulations were promulgated, INS was dissolved and its responsibilities transferred to several components of DHS. Unlike the Department of Justice (DOJ) or law enforcement components within DHS, such as ICE, USCIS has no authority to investigate or prosecute trafficking. Therefore, applying for T nonimmigrant status with USCIS is not the same as contacting an LEA to report a trafficking crime. DHS cannot assure applicants that LEAs will issue endorsements, but has clarified with this rule that a formal investigation or prosecution is not required in order for an LEA to complete an endorsement.

See

new 8 CFR 214.11(d)(3)(i). DHS has created awareness materials and training for LEAs that describe the LEA role in the process and emphasize that a formal investigation or prosecution is not required to complete an endorsement.

DHS is removing language that described how to obtain an LEA endorsement if the victim has not had contact with an LEA.

See

former 8 CFR 214.11(f)(4). That provision directed applicants to contact the DOJ hotline to file a complaint and be referred to an LEA. This level of specificity is overly-detailed for regulations and it does not provide sufficient flexibility to adapt to changes in the future. Since the publication of the 2002 regulations, DHS and many other Federal agencies and nongovernmental partners have engaged in various public education campaigns and posted information on Web sites, which are better vehicles than regulations for conveying this type of guidance.

Finally, the 2002 interim rule created a requirement that the LEA endorsement be signed by a supervising official responsible for the detection, investigation or prosecution of severe forms of trafficking in persons.

See

8 CFR 214.11(f)(1). This interim final rule maintains that requirement at new 8 CFR 214.11(d)(3)(i). USCIS did not receive any comments on this requirement in connection with the

2002 interim rule. More recently, however, USCIS has received public feedback on a similar requirement in the U nonimmigrant status process. USCIS will consider any changes related to the U nonimmigrant status process in a separate rulemaking.

f. Trauma Exception

Legislation enacted since the publication of the 2002 interim rule exempts victims who cannot cooperate with an LEA request due to physical or psychological trauma from compliance with the any reasonable request requirement.

See

INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); new 8 CFR 214.11(b)(3)(ii). DHS adds this statutory change in this rule and provides guidance on how an applicant can demonstrate the requisite trauma. New 8 CFR 214.11(h)(4)(i). DHS welcomes comments on how it should evaluate whether an applicant cannot comply with a request for cooperation from an LEA due to trauma. DHS will require that an applicant submit an affirmative statement describing the trauma, and any other credible evidence. Other supporting evidence may include a signed attestation as to the victim's physical or psychological indicators of trauma from a person qualified to make such determinations in the course of his or her job, such as a medical professional, social worker, or victim advocate, or any medical, psychological, or other records that are relevant to the trauma.

See

INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb); new 8 CFR 214.11(h)(4)(i). In order to show that the person providing the signed attestation is qualified to make such a determination in the course of his or her job, the applicant could provide a description of the person's qualifications or education or a description of the person's contact and experience with the applicant.

Although a victim's affidavit alone may suffice to satisfy the victim's evidentiary burden, USCIS encourages applicants to submit additional evidence that will assist them in establishing the trauma exception from the general requirement that they comply with any reasonable LEA request for assistance. In order to determine whether a victim meets the trauma exception, DHS may contact the LEA that is involved in the case at its discretion to document the victim's inability to assist in the law enforcement process.

See

new 8 CFR 214.11(h)(4)(i). In these trauma exception cases, the applicant is not required to have had contact with an LEA, including reporting the trafficking. In those cases with no LEA contact, DHS will not contact an LEA because there will not be an LEA involved with the applicant's case.

Congress instructed DHS to consult with DOJ as appropriate when adjudicating the trauma exception from compliance with reasonable LEA requests.

See

INA section 101(a)(15)(T)(i)(III)(bb), 8 U.S.C. 1101(a)(15)(T)(i)(III)(bb). USCIS already collaborates with DOJ on certain T nonimmigrant matters and it will follow a similar process for the trauma exception. USCIS may consult with DOJ regarding the trauma exception when the underlying criminal case is being handled by DOJ.

4. Extreme Hardship Involving Unusual and Severe Harm Upon Removal

The fourth and final eligibility requirement for T nonimmigrant status is that the applicant would suffer extreme hardship involving unusual and severe harm upon removal from the United States.

See

INA section 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV); new 8 CFR 214.11(b)(4). When evaluating whether removal would result in such extreme hardship, USCIS considers a number of factors and uses an “any credible evidence” standard.

See

8 CFR 214.11(i)(3); new 8 CFR 214.11(d)(5).

In this rule, DHS clarifies two points regarding the extreme hardship requirement based on public comment:

• Minors are not exempt from the extreme hardship requirement.

• The applicant bears the burden of proof for the extreme hardship requirement.

DHS discusses these in turn below.

Nine commenters suggested a rule that minors would always suffer extreme hardship involving unusual and severe harm on removal.

Congress did not exempt minors from the extreme hardship requirement.

See

INA section 101(a)(15)(T)(i)(IV), 8 U.S.C. 1101(a)(15)(T)(i)(IV). In contrast, Congress did exempt minors from compliance with reasonable LEA requests.

See

INA section 101(a)(15)(T)(i)(III)(cc), 8 U.S.C. 1101(a)(15)(T)(i)(III)(cc). As noted above, Federal law also defines “severe forms of trafficking in persons” differently with respect to victims under 18 years old than with respect to victims 18 years and older.

See

22 U.S.C. 7102(9)(A). Consistent with the different treatment of minors with regard to certain eligibility criteria in the statute, DHS will not adopt a per se rule that minors would suffer extreme hardship. USCIS, however, considers an applicant's age, maturity, and personal circumstances (among other factors) when evaluating the extreme hardship requirement.

See

new 8 CFR 214.11(i)(2).

One commenter stated that it is unrealistic to place the burden of proof on the applicant to show extreme hardship. This comment appears to be based on a lack of general understanding of USCIS immigration benefit processing. The applicant bears the burden of proving he or she is eligible to receive any immigration benefits requested; the government is not required to prove an applicant's ineligibility.

See

INA section 291, 8 U.S.C. 1361;

Matter of Chawathe,

25 I&N Dec. 369, 375 (AAO 2010);

Matter of Brantigan,

11 I&N Dec. 493 (BIA 1966); 8 CFR 103.2(b)(1). The applicant may document his or her extreme hardship through a personal statement or other evidence. New 8 CFR 214.11(i)(3). USCIS can consider relevant country condition reports and any other public or private sources of information, when appropriate.

Id.

By allowing such a broad “any credible evidence” standard, including the applicant's own statement, USCIS is recognizing and taking into account difficulties applicants may encounter in obtaining certain documents.

B. Application Requirements

1. Filing the Application

An applicant must submit a complete Application for T Nonimmigrant Status, Form I-914, in accordance with the form instructions.

See

new 8 CFR 214.11(d)(1). DHS is making the following changes and clarifications in this rule:

• Removing the filing deadline.

• Amending the related forms to reflect public comments.

• Continuing to require proof of identity and relationship for family members of minor applicants. New 8 CFR 214.11(k)(3).

• Amending the law enforcement referral language to account for the creation of DHS. New 8 CFR 214.11(o).

DHS discusses each of these in turn.

a. Filing Deadline

DHS required anyone victimized prior to October 28, 2000, to apply for T nonimmigrant status before January 31, 2003. 8 CFR 214.11(d)(4). DHS received seven comments against the adoption of this filing deadline. Commenters noted that Congress did not impose a deadline and further noted T nonimmigrant status is meant for a person who is or has been a victim of severe form of trafficking in persons. Commenters also

thought the deadline would hinder victims from coming forward and receiving protection, as well as LEA efforts to combat trafficking.

DHS acknowledges that Congress did not impose a filing deadline. At the time of the 2002 interim rule, DHS anticipated a large volume of applications for T nonimmigrant status. The deadline was intended to prevent application backlogs. T nonimmigrant application volume has not reached expected levels. To protect as many victims as possible, DHS is removing the deadline in this interim rule. As of January 18, 2017, USCIS will accept applications regardless of when the applicant was victimized.

b. Form-Related Changes

DHS received 11 specific comments about particular fields on the Application for T Nonimmigrant Status, Form I-914 and the Application for Family Member of T-1 Recipient, Form I-914 Supplement A. Commenters asked USCIS to change a question on victimization to allow for the past tense, remove a question on public benefits, and add a safe address for the eligible family members of an approved T-1 nonimmigrant.

USCIS has updated the Application for T Nonimmigrant Status, Form I-914, and Application for Family Member of T-1 Recipient, Form I-914 Supplement A, several times since the publication of the 2002 interim rule. The current version of the form allows victimization in the past tense. Forms I-914 and Supplement A for T nonimmigrant derivatives contain a safe address. In addition, the application no longer contains a question about public benefits. In the Paperwork Reduction Act (PRA) section of this rule, DHS requests public comments on the revised Application for T Nonimmigrant Status, Form I-914; Application for Family Member of T-1 Recipient, Form I-914 Supplement A; and Declaration of Law Enforcement Office for Victim of Trafficking in Persons, Form I-914 Supplement B. 44 U.S.C. 3507. DHS is renaming the Application for Family Member of T-1 Recipient, Form I-914 Supplement A. DHS is removing the phrase “immediate family member” because, as explained in this preamble, the derivative categories have been statutorily expanded to include family members who are not traditionally thought of as “immediate family members”

Four comments suggested that USCIS should return incomplete forms to the applicant with a rejection notice and allow an applicant to re-file using the process USCIS established for VAWA self-petitioners. USCIS is not aware of the process for VAWA self-petitioners to which the commenter is referring. Nonetheless, 8 CFR 103.2(a) requires benefit requests to be executed and filed in accordance with the form instructions and provides that a benefit request that is not executed may be rejected. Accordingly, USCIS properly returns substantially incomplete forms (including U nonimmigrant petitions and VAWA self-petitions) to the petitioner, who is instructed in the rejection notice that they may correct the deficiencies that are noted and refile their request.

c. Proof Required for Family Members of a Minor Applicant

One commenter also asserted that the standards for proving identity and eligibility for eligible family members of a minor principal are too burdensome and recommended approving the eligibility of family members of a minor principal regardless of the incomplete application. DHS declines to accept the commenter's proposal because all applicants for immigration benefits generally must submit all required initial evidence, and supporting documentation, with an application completed according to form instructions. 8 CFR 103.2(a). There are already allowances in regulations if original documentation to prove age and identity are not available. 8 CFR 103.2(b)(2) (permitting the submission of secondary evidence to overcome the unavailability of primary evidence, and affidavits to overcome the unavailability of both primary and secondary evidence).

In addition, many eligible family members are outside the United States and need to be processed by the Department of State (DOS) at a United States embassy or consulate in order to receive a T visa to apply for admission to the United States. These eligible family members must prove identity, age, and relationship during consular processing according to DOS standards. DHS does not believe it would be beneficial to applicants for DHS to relax the standard USCIS requires to prove identity because that may result in a situation where USCIS approves a Form I-914, but DOS will not grant a T visa for entry to the United States.

d. Referral to Law Enforcement and Department of Health and Human Services

One commenter also recommended that a filing from a victim under 18 years of age should trigger a proactive investigation by law enforcement and experts in child protective services. USCIS cannot initiate this type of investigation because USCIS is not a law enforcement agency, but the 2002 interim rule contained provisions for referring cases to investigators.

See

8 CFR 214.11(v). DHS is amending this language to account for the creation of DHS and will instruct USCIS officers who come into contact with a possible victim who is not already working with an LEA to refer the case to ICE officials responsible for victim protection, trafficking investigations and prevention, and deterrence, as appropriate.

See

new 8 CFR 214.11(o).

Furthermore, child protective services are generally under the jurisdiction of States, and USCIS cannot require States to investigate claims of crimes or abuse against children. TVPRA 2008 vested responsibility for the care and custody of unaccompanied alien children with the U.S. Department of Health and Human Services (HHS).

See

TVPRA 2008 section 235(b)(1), 8 U.S.C. 1232(b)(1). Federal agencies must notify HHS upon apprehension or discovery of an unaccompanied alien child or any claim or suspicion that an individual in custody is under 18 years of age.

See

TVPRA 2008 section 235(b)(2), 8 U.S.C. 1232(b)(2). TVPRA 2008 also provided that federal agencies would notify HHS to facilitate the provision of public benefits to trafficking victims. Minors are eligible to receive federally funded benefits and services to the same extent as a refugee as soon as they are identified by HHS as a possible victim of trafficking, unlike adults who are eligible for public benefits only upon a grant of continued presence by DHS under 28 CFR 1100.35, a bona fide determination, or approval of T nonimmigrant status. Federal officials also must notify HHS upon discovering that a person under the age of 18 may be a victim of a severe form of trafficking in persons to facilitate provision of interim assistance to the minor victim.

See

TVPRA 2008 section 212(a)(2), 22 U.S.C. 7105(b)(1)(H). Upon receiving a T nonimmigrant status application from a minor, USCIS will notify HHS in order for the minor to be advised of public benefits that may be available as a minor victim of trafficking.

See

new 8 CFR 214.11(d)(1)(iii).

An unaccompanied alien child is defined as one who has no lawful immigration status in the United States, has not attained 18 years of age, and has no parent or legal guardian in the United States or no parent or legal guardian in the United States available to provide care and physical custody. 6 U.S.C. 279(g)(2).

2. Initial Evidence

All applicants for immigration benefits generally must submit all required initial evidence, and supporting documentation, with an application completed according to form instructions. 8 CFR 103.2(a). DHS is amending what constitutes acceptable initial evidence that must accompany the application for T nonimmigrant status.

See

new 8 CFR 214.11(d)(2). DHS will allow the following initial evidence:

• A signed statement in the applicant's own words describing the victimization and cooperation with any LEA reasonable request for assistance or applicable exemptions from cooperation with such an LEA request, and any other eligibility requirements;

• Evidence that the applicant is or has been a victim of a severe form of trafficking in persons;

• Evidence that the applicant meets the physical presence requirement;

• Evidence of any one of the following:

The applicant has complied with any reasonable request for assistance in a Federal, State, or local investigation or prosecution of crime where acts of trafficking are at least one central reason for the commission of that crime;

The applicant is under 18 years of age; or

○ The applicant is unable to cooperate with a reasonable request due to physical or psychological trauma;

• Evidence that the applicant would suffer extreme hardship involving unusual and severe harm if removed from the United States; and

• If the applicant is inadmissible, an Application for Advance Permission to Enter as Nonimmigrant, Form I-192, and supporting evidence to explain the inadmissibility.

As discussed above, DHS is removing the provisions requiring USCIS to weigh evidence as primary or secondary, and will accept any credible evidence to demonstrate each eligibility requirement for T nonimmigrant status.

See

new 8 CFR 214.11(d)(2)(ii). USCIS will determine the credibility and weight of evidence at its sole discretion.

See

new 8 CFR 214.11(d)(5). As is the case in all other immigration benefits, the applicant bears the burden of establishing eligibility.

Id.

3. Bona Fide Determinations

Current regulations provide for USCIS to conduct an initial review of each T nonimmigrant status application package to determine if the application is a bona fide application. An application will be determined to be bona fide if the application is complete and ready for adjudication. Among other requirements, the application must include biometrics, background checks, and prima facie evidence for each eligibility requirement.

See

8 CFR 214.11(k). In conjunction with this pre-adjudication bona fide determination review, USCIS may grant the applicant deferred action when the application for T nonimmigrant status is bona fide, which allows the applicant to request employment authorization.

See

Memorandum from Stuart Anderson, Executive Associate Commissioner, Office of Policy and Planning, INS, Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status (May 8, 2002).

Available for review in the rulemaking docket for this rule (DHS Docket No. USCIS-2011-0010) at

http://www.regulations.gov.

One commenter recommended that USCIS make a bona fide determination and grant deferred action within 90 days of the receipt of the application.

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. Nevertheless, in the event of processing backlogs, DHS recognizes that a bona fide determination may offer a victim of trafficking some protection for immigration status purposes, employment authorization, and the availability of public benefits through HHS.

In reference to a 90-day deadline, USCIS cannot guarantee a bona fide determination within 90 days in every case because the bona fide determination is dependent on the unique circumstances of each case, and the completion of biometric and background checks. Typically, these checks will be completed within 90 days, but occasionally the checks will take longer than 90 days. The completion of biometric and background checks depends on several factors, such as the schedule of the applicant, the workload of the Federal Bureau of Investigation (FBI) and other factors over which USCIS does not have control. DHS will retain the current regulatory process for bona fide determinations and make no additional changes at this time.

See

new 8 CFR 214.11(e).

This commenter also asked USCIS to notify HHS of a bona fide determination so that HHS can facilitate federal public benefits available to trafficking victims, as well as amend the bona fide determination notice to include information about the federal benefits. USCIS currently notifies HHS upon approval of an application or a bona fide determination. As discussed elsewhere in this preamble, DHS will also notify HHS in accordance with TVPRA 2008 section 212(a)(2), 22 U.S.C. 7105(b)(1)(G).

See

new 8 CFR 214.11(d)(1)(iii).

4. Derivative Family Members

An applicant may be permitted to apply for certain family members to receive derivative T nonimmigrant status. In this rule, DHS is making the following changes and clarifications:

• Defining terms used to refer to victims and their family members to provide clarity. New 8 CFR 214.11(a).

• Adding new derivative categories since publication of the 2002 interim rule. New 8 CFR 214.11(k)(1).

DHS will discuss each in turn.

a. Definitions

DHS is defining “principal T nonimmigrant,” “eligible family member” and “derivative T nonimmigrant” to clarify these terms used throughout the regulations. New 8 CFR 214.11(a). Principal T nonimmigrant means the victim of trafficking who has been granted T-1 nonimmigrant status.

Id.

DHS uses the term “victim” to refer to aliens who were subject to a severe form of trafficking in persons, and who may be eligible to apply for T-1 nonimmigrant status.

Id.

Eligible family member means someone who has the relationship to a principal applicant required for derivative T nonimmigrant status.

Id.

Derivative T nonimmigrant refers to an eligible family member in the United States who has been granted T-2, T-3, T-4, T-5, or T-6 nonimmigrant derivative status or an eligible family member who has been admitted to the United States as a T-2, T-3, T-4, T-5, or T-6 nonimmigrant.

Id.

b. Eligibility of Certain Family Members

The law governing T nonimmigrant status was changed in 2003 to allow a principal alien under 21 years of age to apply for admission of his or her parents and unmarried siblings under 18 years of age.

See

TVPRA 2003 section 4(b)(1)(B) and (b)(2), INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). In 2008, the law was amended to allow any principal, regardless of age, to apply for derivative T nonimmigrant status for parents or unmarried siblings under 18 years of age if the family member faces a present danger of retaliation as a result of the principal's escape from the severe form of trafficking in persons or cooperation

with law enforcement.

See

TVPRA 2008 section 201(a)(2)(D), INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). In 2013, the derivative categories were further expanded to allow any principal, regardless of age, to apply for children (adult or minor) of the principal's derivative family members if the derivative's child (adult or minor) faces a present danger of retaliation as a result of the principal's escape from the severe form of trafficking or cooperation with law enforcement.

See

VAWA 2013 section 1221, INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III). DHS is amending the T nonimmigrant status regulations accordingly in this rule. New 8 CFR 214.11(k)(1)(ii)-(iii).

There are two general categories of family members eligible for T nonimmigrant status: those whose eligibility is based on the age of the principal and those whose eligibility is based on a showing of a present danger of retaliation.

See

INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii).

Under INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I), eligible family members of a principal alien under 21 years of age are the principal's:

• Spouse,

• Child(ren),

See definition of child at INA section 101(b)(1), 8 U.S.C. 1101(b)(1), which includes stepchildren.

• Unmarried sibling(s) under 18 years of age; and/or

• Parent(s).

Under INA section 101(a)(15)(T)(ii)(II), 8 U.S.C. 1101(a)(15)(T)(ii)(II), eligible family members of a principal alien over 21 years of age are the principal's:

• Spouse, and/or

• Child(ren).

Under INA section 101(a)(15)(T)(ii)(III), 8 U.S.C. 1101(a)(15)(T)(ii)(III), eligible family members whose eligibility is based on a showing of a present danger of retaliation as a result of the principal's escape from the severe form of trafficking or cooperation with law enforcement (regardless of the age of the principal or, except where noted below, the age of the derivative) are the principal's:

• Parent(s) (added by TVPRA 2008),

• Unmarried sibling(s) under 18 years of age (added by TVPRA 2008),

Practically, the “parent(s)” and “unmarried sibling(s) under 18 years of age” derivative categories added by TVPRA 2008 benefit principal aliens who are over 21 years of age. This is because regardless of whether the family member faces a present danger of retaliation as a result of the principal alien's escape from the severe form of trafficking or cooperation with law enforcement, the parent(s) and unmarried sibling(s) under 18 years of age of a principal who is under 21 years of age qualify for derivative T nonimmigrant status under INA section 101(a)(15)(T)(ii)(II).

• Child(ren) or stepchild(ren),

namely the adult or minor child of the principal alien's spouse (added by VAWA 2013),

Stepchildren are eligible under the definition of child at INA section 101(b)(1). Delineating stepchildren in this list is not intended to mean stepchildren are not already eligible. DHS includes this because the new T-6 category is complex and this list is intended to aid the reader.

• Grandchild(ren), namely the adult or minor child of the principal alien's child (added by VAWA 2013),

• Niece or nephew, namely the adult or minor child of the principal alien's sibling (added by VAWA 2013), and/or

• Sibling(s) (regardless of age or marital status), namely the adult or minor child of the principal alien's parent (added by VAWA 2013).

Section 1221 of VAWA 2013 provided, “Section 101(a)(15)(T)(ii)(III) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(T)(ii)(III)[)] is amended by inserting `, or any adult or minor children of a derivative beneficiary of the alien, as' after `age'.” 127 Stat. 144. The resulting statutory text in INA section 101(a)(15)(T)(ii)(III) is awkwardly worded: “any parent or unmarried sibling under 18 years of age, or any adult or minor children of a derivative beneficiary of the alien,

as of an alien

described in subclause (I) or (II) who the Secretary . . . determines faces a present danger of retaliation as a result of the alien's escape from the severe form of trafficking or with law enforcement” (emphasis added). DHS believes that this provision is most reasonably construed as encompassing parents of principal T-1 nonimmigrants (regardless of the T-1's age), unmarried siblings of T-1 nonimmigrants (regardless of the T-1's age), and adult and minor children of derivative T nonimmigrants described in INA section 101(a)(15)(T)(ii)(I) or (II). A contrary reading would result in the inclusion of at-risk parents and unmarried siblings under 18 of

derivative

T nonimmigrants but the exclusion of at-risk parents and unmarried siblings under 18 of adult

principal

T-1 nonimmigrants. DHS does not believe that Congress intended such a counterintuitive outcome.

The VAWA 2013 derivative expansion for children (adult or minor) of the principal's derivative family members if the derivative's child (adult or minor) faces a present danger of retaliation does not extend to the family members of the adult or minor child. For example, the spouse of an adult niece would not be eligible for derivative T nonimmigrant status.

The principal applicant may file an Application for Family Member of T-1 Recipient, Form I-914 Supplement A on behalf of these eligible family members, in accordance with form instructions. When relevant, and as described below, evidence that demonstrates a present danger of retaliation to the eligible family member must be included.

New 8 CFR 214.1(a)(1)(viii) classifies the principal alien and eligible derivative family members as:

• T-1 (principal alien);

• T-2 (spouse);

• T-3 (child);

• T-4 (parent);

• T-5 (unmarried sibling under 18 years of age); and/or

• T-6 (adult or minor child of a principal's derivative).

VAWA 2013 did not amend INA section 245(l), 8 U.S.C. 1255(l) to explicitly provide for adjustment of status for individuals who were granted derivative T nonimmigrant status as the children (adult or minor) of the principal's derivative family members who face a present danger of retaliation as a result of the principal's escape from the severe form of trafficking or cooperation with law enforcement.

However, USCIS may adjust the status of the principal and any person admitted under INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii), as the spouse, parent, sibling or child.

See

INA section 245(l)(1), 8 U.S.C. 1255(l)(1). Even though section 245(l)(1) of the INA specifically names only the “spouse, parent, sibling or child” of the T-1 nonimmigrant, the statute is reasonably construed as allowing for the adjustment of status of any eligible derivative given its general reference to “any person admitted under section 101(a)(15)(T)(ii),” which as amended by VAWA 2013 includes the new derivative classes. The plain text, therefore, could reasonably be construed to encompass the new derivative class of children of derivative T nonimmigrants.

In section 809 of VAWA 2013, however, Congress did amend section 705(c) of the CNRA to clarify that physical presence in the CNMI on, before or after November 28, 2009 will be considered physical presence in the United States for purposes of INA section 245(l).

To conclude otherwise would be to impute to Congress, by virtue of this apparently inadvertent omission, an improbable intent to preclude the new class of derivatives from adjusting status, thwarting the very protection, family unity, and victim stabilization aims animating the expansion of derivative eligibility in the 2008 TVPRA and 2013 VAWA reauthorizations.

See, e.g., United States

Casasola,

670 F.3d 1023, 1029 (9th Cir. 2012) (“[W]e do not impute to Congress an intent to create a law that produces an unreasonable result.”). The practical effect of precluding adjustment of status would be to require these children of derivative T nonimmigrants to return, upon the expiration of their T nonimmigrant status, to the danger of retaliation that DHS and the LEA believed warranted their admission to the United States.

Nothing in the greater statutory scheme or the legislative history of either law suggests that such a result was congressionally designed or that the failure to provide a conforming amendment to section 245(l)(1) was intentional or due to anything other than oversight or inadvertence.

This conclusion is bolstered by the fact that Congress similarly did not update the identical reference to “spouses, sons, daughters, siblings, or parents of such aliens [(T-1 nonimmigrants)]” in the provision establishing that the annual numerical limitation on grants of T nonimmigrant visas or status does not apply to derivative beneficiaries. INA section 214(o)(3), 8 U.S.C. 1184(o)(3);

cf., e.g.,

King

Burwell,

135 S. Ct. 2480, 2489, 2495 (2015) (observing that court's “duty is to construe statutes, not isolated provisions,” that the meaning of a phrase “may seem plain when viewed in isolation, [but] turns out to be untenable in light of the statute as a whole” and that “the context and structure of the [act may] compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase”) (quotation marks and citation omitted);

Validus Reinsurance, Ltd.

United States,

786 F.3d 1039, 1045-46 (D.C. Cir. 2015) (noting that courts “must . . . avoid statutory interpretations that bring about an anomalous result when other interpretations are available”) (quotation marks omitted);

Kolon Indus. Inc.

E.I. DuPont de Nemours & Co.,

748 F.3d 160, 169 (4th Cir. 2014) (“Even the plain meaning of a statute is not conclusive `in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'”) (quoting

United States

Ron Pair Enters., Inc.,

489 U.S. 235, 242 (1989) (alteration in original)).

Thus, individuals who were granted derivative T nonimmigrant status as the children (adult or minor) of the principal's derivative family members who face a present danger of retaliation as a result of the principal's escape from the severe form of trafficking or cooperation with law enforcement, may apply for adjustment of status under INA section 245(l) provided they are otherwise eligible.

See

new 8 CFR 245.23(b)(2).

5. Age-Out Protection of Eligible Family Members

In some USCIS benefits, a principal alien is said to “age-out” if the alien was a certain age, generally under 21 years of age, at the time of filing, but then turns a certain age before USCIS adjudicates the application or petition. This type of age-out does not occur for principal aliens applying for T nonimmigrant status because they are protected by statute.

See

INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). However, as described in the following, DHS is addressing other types of age-out situations related to the ability of eligible family members to seek T nonimmigrant status.

In this rule, DHS makes the following changes and clarifications:

• A child principal can apply for all eligible family members, including parents and unmarried siblings under 18 years of age, so long as the child was under 21 years of age when he or she filed for T-1 nonimmigrant status. New 8 CFR 214.11(k)(5)(ii).

• An unmarried sibling of a child principal need only be under 18 years of age at the time the principal files for T-1 nonimmigrant status. New 8 CFR 214.11(k)(5)(ii).

• A child derivative need only be under 21 years of age at the time the principal parent filed for T-1 nonimmigrant status. New 8 CFR 214.11(k)(5)(iii).

• Clarifying the distinction between age-out protections and marital status of a child or a sibling. New 8 CFR 214.11(k)(5)(v).

a. Age-Out Protection for Child Principal To Apply for Eligible Family Members

Seven commenters noted that a principal applicant under 21 years of age could turn 21 years of age before adjudication of the T nonimmigrant application, or age-out, and not be able to apply for a parent as a T-4 derivative. These commenters urged DHS to adopt the standard that if a principal applicant is under 21 years of age at the time of filing an application for T-1 nonimmigrant status, the ability to include a parent as a T-4 derivative is preserved. One commenter wrote that DHS should lock in the child's age for purposes of eligibility as of the date the child comes to the attention of law enforcement.

TVPRA 2003 fixed this potential age-out problem.

See

TVPRA 2003 section 4(b)(2)(B). A principal who files an application for T nonimmigrant status while under 21 years of age will continue to be treated as an alien described in INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I) (a principal alien under 21 years of age), even if the alien attains 21 years of age while the T-1 application is pending.

See

INA section 214(o)(5), 8 U.S.C. 1184(o)(5). This means that as long as a principal applicant was under 21 years of age at the time of filing for T-1 status, he or she can still file an Application for Family Member of T-1 Recipient, Form I-914 Supplement A, to include T-4 parents or T-5 unmarried siblings under 18 years of age, even if the principal applicant turns 21 years of age before the principal alien's T-1 application is adjudicated.

See

new 8 CFR 214.11(k)(5)(ii).

b. Age-Out Protection for Unmarried Sibling Derivative of Child Principal

Similarly, TVPRA 2003 provides that an unmarried sibling of a principal T-1 applicant under 21 years of age need only be under the age of 18 at the time the principal T-1 applicant files the Application for T Nonimmigrant Status, Form I-914 for T-1 nonimmigrant status.

See

TVPRA 2003 section 4(b)(1)(B), INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I); new 8 CFR 214.11(k)(5)(ii). It does not matter if the unmarried sibling turns 18 years of age before the principal applicant files an Application for Family Member of T-1 Recipient, Form I-914 Supplement A.

c. Age-Out Protection for Child Derivative

In addition, INA section 214(o)(4), 8 U.S.C. 1184(o)(4) was revised to provide that as long as a child T-3 derivative was under 21 years of age on the date the principal T-1 parent applied for T-1 nonimmigrant status, he or she will continue to be classified as a child and allowed entry as a derivative child.

See

TVPRA 2003 section 4(b)(2)(B). This means that age at the time of classification, entry into the United States, or the date the child came to the attention of law enforcement, does not matter. Therefore, DHS has provided in this rule that for a child to be T-3 derivative, he or she must be under the age of 21 when the parent T-1 filed the Application for T Nonimmigrant Status, Form I-914 for T-1 nonimmigrant status.

See

new 8 CFR 214.11(k)(5)(iii).

d. Marriage of Eligible Family Members

In order to be eligible for T-3 or T-5 status, this interim rule requires a child or a sibling under the age of 18 to be unmarried:

• At the time the Application for T Nonimmigrant Status, Form I-914 for the principal is filed and adjudicated;

• At the time the Application for Family Member of T-1 Recipient, Form I-914 Supplement A for the eligible family member is filed and adjudicated; and

• At the time of admission to the United States (if an eligible family member is outside the United States).

See

new 8 CFR 214.11(k)(5)(v).

The law uses the term “children” in the derivative categories for family members.

See

INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii). The term “child” is defined as a person who is under 21 years of age and unmarried.

See

INA section 101(b)(1), 8 U.S.C. 1101(b)(1). The derivative category for siblings

clarifies that the sibling must be unmarried and under the age of 18 years.

See

INA section 101(a)(15)(T)(ii), 8 U.S.C. 1101(a)(15)(T)(ii).

The age-out protections described above are linked specifically to age, but are not linked to marital status. For example, INA section 214(o)(4), 8 U.S.C. 1184(o)(4), specifies that an “unmarried alien,” who is the eligible family member of a parent and was under 21 years of age when the parent applied for T-1 status, can continue to be classified as a child if he or she turns 21 before adjudication. DHS believes that in giving a specific time frame related to age only and by using the term “unmarried alien,” Congress did not intend a similar time-of-filing standard with respect to marital status.

Similarly, Congress used the phrase “children, unmarried siblings under 18 years of age on the date on which such alien applied for status” in listing eligible family members for a principal who is under 21 years of age.

See

INA section 101(a)(15)(T)(ii)(I), 8 U.S.C. 1101(a)(15)(T)(ii)(I). Congress provided a specific time frame related to when siblings need to be under the age of 18, but does not give a time frame for marriage of either children or siblings. DHS believes that Congress intended that derivative status for T-3 children and T-5 unmarried siblings under the age of 18 should be limited to unmarried children and unmarried siblings through time of adjudication of both the principal's and derivative's T nonimmigrant application, as well as the admission into the United States of the family member.

See

new 8 CFR 214.11(k)(5)(v);

cf., e.g., Akhtar

Gonzales,

406 F.3d 399, 407-08 (6th Cir. 2005) (concluding that Congress' provision of special age-out protections for derivative asylees but not similar protections based on marital status is reasonable and “easily withstand[s] constitutional scrutiny”).

e. Evidence for Eligible Family Members

The principal applicant must submit an Application for Family Member of T-1 Recipient, Form I-914 Supplement A, for each eligible family member with all required initial evidence and supporting documentation according to form instructions.

See

new 8 CFR 214.11(k)(2) and (3). DHS will require the following initial and supporting evidence:

• Evidence demonstrating the relationship of the eligible family member to the principal applicant;

• If seeking T-4, T-5, or T-6 status based on present danger of retaliation to the eligible family member, evidence of this danger; and

• If the eligible family member is inadmissible, a copy of the eligible family member's Application for Advance Permission to Enter as Nonimmigrant, Form I-192 and attachments.

As discussed above, DHS has removed the provisions weighing evidence as primary or secondary and will accept any credible evidence to demonstrate each eligibility requirement for derivative T nonimmigrant status. As is the case in all other immigration benefits, the applicant bears the burden of establishing eligibility.

See

8 CFR 103.2(b). USCIS will consider any credible evidence relevant to the application for derivative T nonimmigrant status.

See

new 8 CFR 214.11(k)(7) and (d)(2)(ii). USCIS will exercise its sole discretion to determine what evidence is credible and the weight of such evidence.

Id.

DHS is removing regulatory language that required demonstration of extreme hardship to an eligible family member if the eligible family member was not allowed to accompany or follow to join the T-1 principal applicant.

See

8 CFR 214.11(o)(1)(ii) and (5). This was a statutory requirement that was removed by VAWA 2005.

See

VAWA 2005 section 801(a)(2).

The provisions under new 8 CFR 214.11(k)(6) describe how an applicant can demonstrate a present danger of retaliation to an eligible parent or unmarried sibling under the age of 18, or to a child (adult or minor) of a derivative applying for derivative T nonimmigrant status. USCIS will consider any credible evidence of a present danger of retaliation to the eligible family member. Present danger will be evaluated on a case-by-case basis. An applicant may submit a statement describing the danger the family member faces and how the danger is linked to the victim's escape from trafficking or cooperation with law enforcement. An applicant's statement alone, however, may not be sufficient. Other examples of evidence include, but are not limited to: a previous grant of advance parole to a family member; a signed statement from an LEA describing the danger of retaliation; trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court; documentation from their country of origin or place of residence (

e.g.

foreign government agencies, local law enforcement, social services), and affidavits from other witnesses. Regardless of whether the applicant submits a statement from an LEA, USCIS reserves the right to contact the LEA most likely to be involved in the criminal case, if appropriate. Applicants who believe such contact could further endanger them or their family member should indicate that in a cover letter in the application for the family member's T derivative status or otherwise contact USCIS.

C. Adjudication and Post-Adjudication

1. Prohibitions on Use of Information

In this rule, DHS makes the following changes and clarifications relating to the disclosure and use of an applicant's information provided to USCIS:

• Updating the regulations to account for statutory confidentiality provisions applicable to T nonimmigrants.

See

new 8 CFR 214.11(p)

• Confirming the legal requirement to turn over information to prosecutors.

Id.

• Confirming the warning on the T nonimmigrant application that information an applicant provides could be used to remove the applicant.

DHS discusses each in turn.

a. Applicability of Confidentiality Provisions

The confidentiality provisions of section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), codified at 8 U.S.C. 1367, apply to applicants for T nonimmigrant status.

See

IIRIRA section 384, 8 U.S.C. 1367. DHS issued the 2002 interim rule before the confidentiality provisions were applicable to those seeking T nonimmigrant status. Congress extended the confidentiality provisions to T nonimmigrant applicants in VAWA 2005.

See

VAWA 2005 section 817. In the 2002 interim rule, DHS did include some information about disclosure of an applicant's information. For example, DHS allowed for disclosure of information to LEAs with the authority to detect, investigate, or prosecute severe forms of trafficking in persons.

See

8 CFR 214.11(e). In this rule, DHS is incorporating the confidentiality provisions provided at 8 U.S.C. 1367, as amended, and including implementing provisions similar to those provided in the DHS U nonimmigrant status regulations.

See

new 8 CFR 214.11(p).

DHS, however, does not see a need to include the full list of protections and exceptions, as it would essentially reiterate the language of 8 U.S.C. 1367(a)(2) and (b). By citing to the statutory confidentiality provisions, DHS is protecting applicants while also ensuring that the regulations remain up to date. DHS has issued department-wide guidance on how these confidentiality provisions are interpreted and how they will be

implemented.

See, e.g.,

Department of Homeland Security Directive 002-02 and Instruction 002-02-001, Implementation of Section 1367 Information Provisions. DHS components plan to issue further guidance specific to component operations.

T nonimmigrant applicants are protected under 8 U.S.C. 1367 in two ways. First, adverse determinations of admissibility or deportability against an applicant for T nonimmigrant status, with a limited exception for individuals convicted of certain crimes, cannot be made based on information furnished solely by the perpetrator of the acts of trafficking in persons.

See

IIRIRA section 384(a)(1)(F), 8 U.S.C. 1367(a)(1)(F). Second, the statute prohibits the use or disclosure to anyone of any information relating to the beneficiary of a pending or approved application for T nonimmigrant status except in certain limited circumstances.

See

IIRIRA section 384(a)(2), (b), 8 U.S.C. 1367(a)(2), (b). Section 1367(a)(2) allows the release of information to a sworn officer or employee of DHS, DOJ, DOS, or a bureau or agency of either of those Departments for legitimate Department, bureau, or agency purposes.

Id.

Section 1367(b) also enumerates specific exceptions to confidentiality. The statute permits, for example, disclosure of protected information, in certain limited circumstances, to law enforcement and national security officials and nongovernmental victim services providers.

This rule, at new 8 CFR 214.11(p), also essentially reflects the same restrictions on use and disclosure of information relating to applicants for and beneficiaries of T nonimmigrant status that are described in DHS' interim U nonimmigrant status regulations at 8 CFR 214.14(e).

See

New Classification for Victims of Criminal Activity; Eligibility for `U' Nonimmigrant Status, 72 FR 53014, 53039 (Sept. 17, 2007). These restrictions are based on the statutory directive that DHS not “permit use by or disclosure to anyone” (other than a sworn officer or employee of DHS, DOJ, or DOS) of “any information which relates to” an applicant for or beneficiary of T or U nonimmigrant status or VAWA immigration relief, with limited exceptions (

e.g.,

law enforcement or national security purposes).

See

8 U.S.C. 1367(a)(2), (b). The intent of the restrictions in 8 U.S.C. 1367(a) on the use and disclosure of protected information was to “ensure that abusers and perpetrators of crime cannot use the immigration system against their victims,” either to silence them or to commit further abuse. 151 Cong. Rec. E2605, E2607 (statement of Rep. John Conyers in support of VAWA 2005 amendments to 8 U.S.C. 1367).

b. Disclosure Required in Relation to Criminal Prosecution

In the 2002 interim rule, DHS allowed for disclosure of information to DOJ officials responsible for prosecution in all cases involving an ongoing or impending prosecution of any defendants who are or may be charged with severe forms of trafficking in persons in connection with the victimization of the applicant.

Id.

This provision complies with constitutional requirements that pertain to the government's duty to disclose information, including exculpatory evidence or impeachment material, to defendants.

See, e.g.,

U.S. Const. amends. V, VI;

Brady

Maryland,

373 U.S. 83, 87 (1963);

Giglio

United States,

405 U.S. 150, 154 (1972).

DHS received seven comments relating to the provision that allows federal authorities and defendants in criminal proceedings to review any information from an application for T nonimmigrant status. Commenters suggested that the standard for disseminating information should be that:

1. Federal authorities should have to make a request in writing for release of information;

2. Prosecutors should be prohibited from releasing information to a defendant unless the information is needed for impeachment; and

3. In the event a prosecutor determines evidence to be exculpatory, a judge should review the information and give time for victim safety planning before information will be released.

In the 2002 interim rule, DHS explained its position on timely disclosure of information, including DOJ's obligation to provide statements by witnesses and certain other documents to defendants in pending criminal proceedings.

See

67 FR at 4789. These obligations stem from constitutional, statutory and other legal requirements pertaining to the duty to disclose exculpatory evidence or impeachment material to a criminal defendant in order to prepare a defense.

Id.

DHS appreciates the need for confidentiality and especially the desire to protect the safety of victims. However, we must balance the need to take measures to protect victims from perpetrators with the need to comply with constitutional requirements, and DHS believes that the regulations as currently drafted reflects the best way to balance these considerations. In addition, the determination of whether constitutional or other legal obligations require disclosure in a criminal matter is a determination reserved to prosecuting attorneys. DHS therefore declines to amend its regulation regarding the dissemination of information, other than some minor edits to account for the creation of DHS and streamline the language.

c. Use of Information on the T Nonimmigrant Status Application

Commenters also raised concerns that the Application for T Nonimmigrant Status, Form I-914 warns that any information provided could be used to remove an unsuccessful applicant. The commenters asserted that this policy would hinder applications because victims may be reluctant to work with law enforcement if a victim thought he or she would be removed. USCIS does not have a policy to refer applicants for T nonimmigrant status for removal proceedings absent serious aggravating circumstances, such as the existence of an egregious criminal history, a threat to national security, or where the applicant is implicit in the trafficking. USCIS includes a standard warning on many applications that information within the application could lead to removal. USCIS believes it is a sound practice to warn applicants of this fact, and not including it would be unfair to applicants for whom such a warning could prove important.

2. Waivers of Grounds of Inadmissibility

An applicant for T nonimmigrant status must be admissible to the United States, or otherwise obtain a waiver of any grounds of inadmissibility. In this rule, DHS is making the following changes and clarifications:

• Clarifying the waiver authority for T nonimmigrants and the public charge exemption. New 8 CFR 212.16(b).

• Changing the standard for exercising waiver authority only in “extraordinary circumstances” over criminal grounds of inadmissibility when the crime does not relate to the trafficking victimization. New 8 CFR 212.16(b)(2).

• Removing language that waiver authority should not be exercised for inadmissibility grounds that may limit the ability of the applicant to adjust status. 8 CFR 212.16(b)(3).

• Clarifying that DHS takes into account trafficking victimization when exercising waiver authority. New 8 CFR 212.16(b)(2).

• Retaining the current separate waiver application process. New 8 CFR 212.16(a).

• Clarifying the waiver process at adjustment of status.

a. Waiver Authority for T Nonimmigrants

Under INA section 212(d)(13), 8 U.S.C. 1182(d)(13), DHS has broad discretionary authority to waive grounds of inadmissibility.

DHS may waive INA section 212(a)(1) (health-related grounds), 8 U.S.C. 1182(a)(1), if DHS considers it to be in the national interest to grant a waiver.

See

INA section 212(d)(13)(B)(i), 8 U.S.C. 1182(d)(13)(B)(i). DHS may waive almost any other ground of INA section 212(a), 8 U.S.C. 1182(a), if DHS 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.

See

INA section 212(d)(13)(B)(ii), 8 U.S.C. 1182(d)(13)(B)(ii). DHS, however, may not waive INA sections 212(a)(3) (security and related grounds), (10)(C) (international child abduction), or (10)(E) (former U.S. citizens who renounced citizenship to avoid taxation), 8 U.S.C. 1182(a)(3), (10)(C), (10)(E).

Section 212(d)(13)(B) of the INA states, in part, “[I]f the Secretary of Homeland Security considers it to be in the national interest to do so, the Secretary of Homeland Security,

in the Attorney General's discretion,

may waive the application of” various grounds of inadmissibility. 8 U.S.C. 1182(d)(13)(B) (emphasis added). The vestigial reference to the Attorney General in that sentence is clearly a drafting oversight. DHS therefore reads the provision as referring, instead, to the Secretary's discretion.

In addition, because INA section 212(a)(4) (public charge), 8 U.S.C. 1182(a)(4), does not apply to an applicant for T nonimmigrant status (but would apply at the time of adjustment of status to lawful permanent resident),

see

INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A), no waiver of that ground is necessary. TVPRA 2003 added INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A), to eliminate the public charge ground at the time the applicant seeks T nonimmigrant status. TVPRA 2003 section 4(b)(4), codified at INA section 212(d)(13)(A), 8 U.S.C. 1182(d)(13)(A). DHS is amending the regulations as necessary in this interim rule.

See

new 8 CFR 212.16(b).

b. Criminal Grounds of Inadmissibility

DHS received 21 comments relating to different aspects of waivers of inadmissibility. Eight commenters objected to the language of 8 CFR 212.16(b)(2), stating that USCIS will exercise its discretion to waive criminal grounds of inadmissibility under INA section 212(a)(2), 8 U.S.C. 1182(a)(2) (criminal and related grounds), only in “exceptional cases” where the criminal activity was not caused by or was not incident to the trafficking in persons. Commenters thought the language about “exceptional cases” was not statutorily required, replaced a simple exercise of discretion, and was unnecessary. In addition, commenters encouraged DHS to consider the type of crimes and the seriousness of the offenses when exercising discretion based on criminal grounds. DHS has the discretionary authority to waive the criminal grounds of inadmissibility for T nonimmigrant status applicants if the criminal activities were caused by or incident to the trafficking victimization.

See

INA section 212(d)(13)(B)(ii), 8 U.S.C. 1182(d)(13)(B)(ii). DHS implemented this provision in the 2002 interim rule and explained that it was choosing to exercise its discretion in cases where the criminal grounds of inadmissibility were not caused by or incident to trafficking, only in “exceptional cases.”

See

67 FR 4789; 8 CFR 212.16(b)(2). In this interim rule, DHS is revising its regulations to describe how USCIS will consider the nature and seriousness of the offenses and the number of convictions in exercising its discretion. See new 8 CFR 212.16(b)(3). In this rule, DHS is replacing the general “exceptional cases” limitation. Instead, in cases where the applicant has a conviction for a violent or otherwise dangerous crime, DHS will allow waivers, in its discretion, in “extraordinary circumstances” only.

See

new 8 CFR 212.16(b)(3). A similar standard applies in the related U nonimmigrant status regulations at 8 CFR 212.17.

This approach also is consistent with DHS and DOJ practice in other immigration contexts.

See, e.g.,

8 CFR 212.7(d) (INA section 212(h)(2) waivers);

Matter of Jean,

23 I&N Dec. 373, 383 (A.G. 2002) (INA section 209(c) waivers).

c. Waivers Relating to Adjustment of Status

Five commenters expressed concern with the language of 8 CFR 212.16(b)(3), stating that USCIS will exercise its discretion to waive grounds of inadmissibility that would prevent or limit the applicant from adjusting to permanent resident status only in exceptional cases. Commenters objected to the connection between inadmissibility at the application phase of T nonimmigrant status with inadmissibility at the adjustment of status phase. Commenters urged DHS to take note of INA section 245(l)(2), 8 U.S.C. 1255(l)(2), which provides a waiver authority for the adjustment of status phase that is similar to the authority contained at INA section 212(d)(13), 8 U.S.C. 1182(d)(13). Since the publication of the 2002 interim rule, DHS published a rule on adjustment of status to permanent resident for T nonimmigrants.

See

8 CFR 245.23 and

Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status,

73 FR 75540 (Dec. 12, 2008). The regulations at 8 CFR 245.23 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 section 245(l) and that any grounds of inadmissibility that an applicant acquires while in T nonimmigrant status require a new waiver. In this interim rule, DHS is removing 8 CFR 212.16(b)(3), as it is no longer necessary in light of the adjustment of status regulations.

d. Waivers of Inadmissibility Grounds Related to the Trafficking Victimization

A number of commenters expressed general concerns over particular grounds of inadmissibility that relate to victimization based on trafficking in persons. DHS received two comments about waivers of inadmissibility for those with the human immunodeficiency virus (HIV), one comment about waivers of inadmissibility for those engaged in prostitution, and one comment about waivers of inadmissibility for drug users. Commenters stated that victims may become HIV positive as a result of trafficking. Commenters noted that often trafficking victims are forced to engage in prostitution by traffickers, or continue in prostitution for basic survival. Commenters also expressed concern about victims who self-medicate with illegal drugs to ease the effects of trauma and/or other psychological conditions due to the victimization they suffered. These commenters did not provide specific recommendations, beyond asking DHS to take special note of those concerns.

DHS acknowledges that victims of trafficking in persons are an especially vulnerable population, and therefore considers the special circumstances of victims when exercising its waiver authority. As of January 4, 2010, HIV infection is no longer defined as a “communicable disease of public health significance” according to HHS regulations.

See

74 FR 56547 (Nov. 2, 2009) (effective Jan. 4, 2010). Therefore, HIV infection does not make an applicant inadmissible on health-related grounds for any immigration benefit. In addition, USCIS personnel who

adjudicate applications for T nonimmigrant status and waivers of inadmissibility are trained on various aspects of the dynamics of victimization. DHS has not made any changes to the regulation as a result of these comments.

e. Requesting a Waiver

In the 2002 interim rule, DHS directed applicants to file the form designated by USCIS to request a waiver of inadmissibility.

See

8 CFR 212.16(a). This form is the Application for Advance Permission to Enter as Nonimmigrant, Form I-192.

Five commenters asserted that this waiver application procedure was overly complicated and suggested a simpler procedure of providing space on the Application for T Nonimmigrant Status, Form I-914, itself for victims to explain any grounds of inadmissibility and attach evidence.

On August 29, 2011, as part of USCIS's business transformation initiative, USCIS replaced specific references to Form I-192 to read, “the form designated by USCIS.” Immigration Benefits Business Transformation, Increment I, Final Rule, 76 FR 53764 (Aug. 29, 2013), at 53788.

DHS is not adopting the suggestion. DHS is concerned that additional inadmissibility concerns can arise after an application for T nonimmigrant status is approved. Without a waiver of inadmissibility on a separate form, USCIS would be unable to address inadmissibility concerns other than to revisit the underlying approval itself, which could cause problems for the applicant. In addition, USCIS has developed a process with DOS for eligible family members abroad so that DOS officers are made aware of the inadmissibility grounds waived by USCIS. This process might be compromised if a separate waiver form were not used, resulting in potential delays or problems for eligible family members consular processing to apply for admission to the United States. DHS believes the Application for Advance Permission to Enter as Nonimmigrant, Form I-192 process is working well and does not need to be modified at this time; however, DHS welcomes further comments on this process.

In addition, one commenter asserted that the waiver application process at the time of adjustment was burdensome. The commenter recommended sparing victims from applying for a waiver of inadmissibility both at the time of application and the time of adjustment of status.

Since publication of the 2002 interim rule, DHS published an interim rule with request for comments on adjustment of status to lawful permanent resident for T nonimmigrants.

See

8 CFR 245.23 and 73 FR 75540. The regulations only require a new request for a waiver of inadmissibility at the adjustment of status phase for any new ground of inadmissibility that has arisen since the grant of T nonimmigrant status. Typically, T nonimmigrants applying for adjustment of status do not need to file a request for a new waiver of inadmissibility for inadmissibility grounds that were waived at the T nonimmigrant stage. In this interim rule, DHS is mainly addressing the T nonimmigrant application phase; DHS will consider comments and recommendations that relate to adjustment of status in a separate rulemaking.

3. Decisions

At new 8 CFR 214.11(d)(8)-(10), DHS describes approval and denial procedures for applications for T nonimmigrant status. USCIS will issue written decisions to grant or deny T nonimmigrant status. If USCIS denies an application, it will provide written reasons for the denial. In any case where USCIS denies an application for T nonimmigrant status, an applicant may appeal to the USCIS Administrative Appeals Office (AAO) under established procedures in 8 CFR 103.3.

4. Benefits

DHS provides for employment authorization incident to a grant of principal T nonimmigrant status.

See

8 CFR 214.11(l)(4). One commenter pointed out that even after a bona fide determination is made, the applicant would not receive an employment authorization document (EAD) until T nonimmigrant status is granted. This commenter highlighted this fact because, even though a victim could be certified by HHS on the basis of a bona fide application, he or she would not be eligible for certain types of cash assistance and would not be accepted into the federal Matching Grant Program. This commenter recommended granting an EAD when USCIS determined that an application is bona fide. DHS is authorized to grant an EAD in connection with a bona fide determination.

See

Memorandum from Stuart Anderson, Executive Associate Commissioner, Office of Policy and Planning, INS,

Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status

(May 8, 2002). In its discretion, USCIS may grant deferred action to an applicant when a T nonimmigrant application is deemed bona fide, while awaiting final adjudication.

Id.

Once an application is deemed bona fide and USCIS grants deferred action, the applicant can request employment authorization based on the grant of deferred action.

See

8 CFR 274a.12(c)(14).

5. Duration of Status

Originally, T nonimmigrant status was granted for a period of 3 years from the date of approval.

See

8 CFR 214.11(p) (2002). Upon approval, USCIS would notify the recipient of the future expiration of his or her nonimmigrant status and of a requirement to apply for adjustment of status to permanent resident within the 90 days immediately preceding the third anniversary of the approval.

Id.

At the time of the 2002 interim rule, there was no ability to extend T nonimmigrant status.

Id.

DHS provided that an applicant who properly applied for adjustment of status would remain in T nonimmigrant status until a final decision was rendered on the application.

Id.

DHS received seven comments related to the 90 day adjustment of status application period requirement.

In 2008, DHS published an interim rule implementing adjustment of status procedures for T and U nonimmigrants.

See

73 FR 75540. DHS amended 8 CFR 214.11(p) to incorporate VAWA 2005 legislative changes that lengthened the duration of status from 3 years to 4 years, but also limited the status to 4 years unless an applicant could qualify for an extension.

See

VAWA 2005 section 821(a), INA section 214(o)(7)(A), 8 U.S.C. 1184(o)(7)(A). DHS also removed the 90-day adjustment of status application period requirement; instead, a T nonimmigrant may apply for adjustment of status after accruing three years in valid T nonimmigrant status.

See

8 CFR 245.23(a)(3).

6. Extension of Status

Commenters on the 2002 interim rule also objected to the lack of extensions available for T nonimmigrant status. Since the publication of the 2002 interim rule, legislation allowed for extensions of T nonimmigrant status in the following circumstances:

• An LEA, prosecutor, judge, or other authority investigating or prosecuting activity relating to human trafficking certifies that the presence of the victim in the United States is necessary to assist in the investigation or prosecution of such activity;

See

VAWA 2005 section 821(a); INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i).

• DHS determines that an extension is warranted due to exceptional circumstances;

See

TVPRA 2008 section 201(b)(1); INA section 214(o)(7)(B)(iii), 8 U.S.C. 1184(o)(7)(B)(iii).

• During the pendency of an application for adjustment of status under INA section 245(l), 8 U.S.C. 1255(l).

See

TVPRA 2008 section 201(b)(2); INA section 214(o)(7)(C), 8 U.S.C. 1184(o)(7)(C).

INA section 214(o)(7)(B) and (C), 8 U.S.C. 1184(o)(7)(B) and (C). DHS is implementing the extension of status provisions at new 8 CFR 214.11(l).

Below, DHS discusses each extension category in turn.

In addition, TVPRA 2008 provided an extension of status for T nonimmigrants who were eligible for adjustment of status relief under INA section 245(l), 8 U.S.C. 1255(l), but could not obtain adjustment of status relief because DHS had not issued implementing regulations.

See

TVPRA 2008 section 201(b)(1); INA section 214(o)(7)(B)(ii), 8 U.S.C. 1184(o)(7)(B)(ii). TVPRA 2008 was enacted on December 23, 2008. DHS issued regulations on adjustment of status on December 12, 2008.

See

73 FR 75540. Therefore, when TVPRA 2008 was enacted, regulations on adjustment of status existed. Because INA section 214(o)(7)(B)(ii), 8 U.S.C. 1184(o)(7)(B)(ii), is obsolete, DHS will not reference this language in this interim rule.

a. Extension of Status for Law Enforcement Need

In this interim rule, DHS is implementing the discretionary extensions for law enforcement need at new 8 CFR 214.11(l)(1)(i). The T nonimmigrant bears the burden of establishing eligibility for an extension of status.

Id.

As outlined in new 8 CFR 214.11(l)(2), to request an extension, the T nonimmigrant will file an Application to Extend/Change Nonimmigrant Status, Form I-539, along with supporting evidence. The Application to Extend/Change Nonimmigrant Status should be filed before the individual's T nonimmigrant status expires.

To establish law enforcement need, supporting evidence may include a newly executed Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form 914 Supplement B, or other evidence from a law enforcement official, prosecutor, judge, or other authority who can investigate or prosecute human trafficking activity and was involved in the applicable case (

e.g.,

a letter on the agency's letterhead, emails, or faxes).

See

new 8 CFR 214.11(l)(5). The applicant must include evidence that comes directly from an LEA (as listed above).

Id.

The applicant may also submit any other credible evidence.

Id.

DHS believes this is necessary under INA section 214(o)(7)(B)(i), 8 U.S.C. 1184(o)(7)(B)(i), because that section allows for an extension only if a law enforcement official (which includes prosecutors, judges, and others with the authority to investigate or prosecute human trafficking) at the Federal, State, or local level “certifies” that the presence of the victim is necessary. The use of the word “certifies” does not allow for the substitution of evidence that does not come directly from an LEA. Applicants are not required to use Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I-914 Supplement B, to seek an extension of T nonimmigrant status.

b. Extension of Status for Exceptional Circumstances

In this interim rule, DHS is implementing the discretionary extensions for exceptional circumstances at new 8 CFR 214.11(l)(1)(ii). As described above, to request an extension, the T nonimmigrant will file an Application to Extend/Change Nonimmigrant Status, Form I-539, along with supporting evidence. New 8 CFR 214.11(l)(2).

An applicant may submit his or her own statement and any other credible evidence to establish exceptional circumstances for an extension of status. Such evidence could include, but is not limited to, medical records, police or court records, news articles, correspondence with an embassy or consulate, and affidavits of witnesses.

See

new 8 CFR 214.11(l)(6). An exceptional circumstance could exist when a principal T nonimmigrant's status will expire and an approved family member had not yet received a T visa from a consulate to apply for admission to the United States. In this example, without an extension, if the principal T nonimmigrant's status expires, the family member could not apply for a T visa to apply for admission to the United States. In the evidence submitted to establish exceptional circumstances in this example, the principal should explain what exceptional circumstances prevented the family member(s) from applying for admission to the United States.

Applicants should apply for an extension before the T nonimmigrant status has expired. USCIS, however, has discretion to grant an extension after T nonimmigrant status expires.

See

new 8 CFR 214.11(l)(3). The T nonimmigrant should explain in writing, in accordance with 8 CFR 214.1(c)(4), why he or she is filing the Application to Extend/Change Nonimmigrant Status, Form I-539, after the T nonimmigrant status has expired. If USCIS grants an extension of T nonimmigrant status, USCIS will issue a new Notice of Action valid from the date the previous status expired until 1 year after approval of the extension. Once an applicant receives this new Notice of Action, he or she may then file an Application to Register Permanent Residence or Adjust Status, Form I-485, to adjust status to lawful permanent resident before the extension expires.

c. Extension of Status While an Application for Adjustment of Status Is Pending

In this interim rule, DHS implements a mandatory extension for those who apply for adjustment of status at new 8 CFR 214.11(l)(7), and does not require a separate application or additional supporting evidence to request an extension of status when an application for adjustment of status has been properly filed. INA section 214(o)(7)(C), 8 U.S.C. 1184(o)(7)(C), requires USCIS to grant this extension; therefore no evidentiary burden rests on the applicant.

7. Waiting List

Congress has established a 5,000-person limit on the number of grants of T-1 nonimmigrant status per fiscal year (from October 1 through September 30).

See

INA section 214(o)(2)-(3), 8 U.S.C. 1184(o)(2)-(3). In the 2002 interim rule, DHS implemented a waiting list procedure in the event that the numerical limit is reached in a particular fiscal year.

See

former 8 CFR 214.11(m)(2). USCIS has not had to utilize the waiting list procedure created in the 2002 interim rule because approvals have not approached 5,000 in any given fiscal year. The 2002 interim rule provided that an applicant on the waiting list would “maintain his or her current means to prevent removal.”

Id.

DHS received three comments pointing out that DHS did not address protection from removal for those without current means. The commenters urged DHS to provide protection from removal or a legal means to stay in the United States for this population of applicants.

DHS agrees with this comment, and has determined that this provision is superfluous and confusing. DHS has therefore removed the provision, to clarify that applicants who may be placed on the waiting list for T nonimmigrant status can either maintain their “current means” to prevent removal (deferred action, parole, or stay of removal) and any employment authorization, or attain “new means.”

See

new 8 CFR 214.11(j)(2).

Although DHS retains the authority to protect applicants on the waiting list from being removed, the 2002 interim

rule's implication that the applicant may not seek other means to prevent removal was problematic. DHS has existing policies, procedures, and regulations for exercising its discretion in providing parole, deferred action, or a stay of removal to individuals on a case-by-case basis.

See, e.g.,

8 CFR 241.6 (administrative stay of removal); 8 CFR 274a.12(c)(14) (employment authorization for deferred action grantees demonstrating economic necessity); 8 CFR 212.5 (parole of aliens into the United States). DHS will consider providing temporary relief on a case by case basis to applicants on the waiting-list who are participating in law-enforcement investigations in the United States pursuant to those policies, regulations and procedures.

This change maintains the protections in the previous regulation while providing DHS and the applicant with more flexibility, particularly as to those applicants who may have no “current means” to prevent removal, and allows applicants the flexibility to seek alternate avenues of relief if their “current means” may not be sustainable or the most beneficial.

8. Revocation

In the 2002 interim rule, DHS created several grounds for revocation on notice at 8 CFR 214.11(s). T nonimmigrant status could be revoked on notice if:

• The T nonimmigrant violated the requirements of T nonimmigrant status;

• The approval of the T nonimmigrant application violated 8 CFR 214.11 or involved an error in preparation, procedure, or adjudication;

• In the case of a T-2 spouse, the T-2 spouse's divorce from the T-1 principal became final;

• The LEA notifies USCIS that the principal T nonimmigrant has unreasonably refused to cooperate with the investigation or prosecution and provides USCIS with a detailed explanation in writing; or

• The LEA withdraws its endorsement or disavows the contents of the endorsement in a detailed written explanation.

a. Streamlining Revocation Based on Violation of the Requirements of T Nonimmigrant Status

Six commenters asserted that the ground of revocation at 8 CFR 214.11(s)(1)(i), based on a violation of the requirements of the status by the T nonimmigrant, needs clarification. Commenters suggested that the meaning is unclear because if the applicant satisfied the eligibility requirements, the status should not be revoked, unless there was an error in granting the status (which is provided for in another ground of revocation).

DHS agrees that the ground of revocation on notice at 8 CFR 214.11(s)(1)(i) could benefit from greater clarifica

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