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

AGENCY:

Immigration and Naturalization Service, Department of Justice.

ACTION:

Interim rule with request for comments.

SUMMARY:

This rule is intended to assist all concerned Federal officials, including, but not limited to, officials of the Immigration and Naturalization Service (Service), and eligible applicants, in implementing provisions of section 107(e) of the Trafficking Victims Protection Act of 2000 (TVPA). The T nonimmigrant status is available to eligible victims of severe forms of trafficking in persons who have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons, and who can demonstrate that they would suffer extreme hardship involving unusual and severe harm if they were removed from the United States. This rule addresses: the essential elements that must be demonstrated for classification as a T nonimmigrant alien; the procedures to be followed by applicants to apply for T nonimmigrant status; and evidentiary guidance to assist in the application process. The Service will promulgate separate regulations concerning the process for adjusting from T nonimmigrant status to lawful permanent resident status.

DATES:

Effective date: This interim rule is effective March 4, 2002.

Comment date: Written comments must be submitted on or before April 1, 2002.

ADDRESSES:

Please submit written comments to the Immigration and Naturalization Service, Policy Directive and Instructions Branch, Attention: TVPA Implementation Team, 425 I Street, NW., Room 4034, Washington, DC 20536 by mail or email your comments to the VTVPA Implementation Team at insregs@usdoj.gov. When submitting comments electronically, please include “INS No. 2132-01” in the subject box.

To ensure proper handling, please reference INS No. 2132-01 on your correspondence or e-mail. Comments will be available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Anne Veysey, Office of Programs, Immigration and Naturalization Service, 425 I Street, NW., Room 1000, Washington, DC 20536, telephone: (202) 514-3479.

SUPPLEMENTARY INFORMATION:

Background and Legislative Authority

The Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, was signed into law on October 28, 2000. The VTVPA is divided into three sections: Division A, the Trafficking Victims Protection Act (TVPA); Division B, the Violence Against Women Act of 2000 (VAWA); and Division C, Miscellaneous Provisions. In passing this legislation, Congress intended to create a broad range of tools necessary for the Federal government to address the particular concerns associated with the problem of trafficking in persons.

In the TVPA, Congress found that “(a)t least 700,000 persons annually, primarily women and children, are trafficked within or across international borders. Approximately 50,000 women and children are trafficked into the United States each year.” Section 102(b)(1), TVPA. Congress further found that “(t)raffickers often transport victims from their home communities to unfamiliar destinations, including foreign countries away from family and friends, religious institutions, and other sources of protection and support(.)” Id. at section 102(b)(5). In trafficking in persons situations, perpetrators often target individuals who are likely to be particularly vulnerable and unfamiliar with their surroundings. Congress's intentions in passing the TVPA were to further the humanitarian interests of the United States and to strengthen the ability of government officials to investigate and prosecute trafficking in persons crimes by providing temporary immigration benefits to victims.

In the TVPA, Congress provided a variety of means to combat trafficking in persons by ensuring just and effective punishment of traffickers and by protecting the victims of trafficking in persons. These means include providing immigration benefits to eligible aliens who have been victims of severe forms of trafficking in persons and, in the case of persons aged 15 and older, who comply with any reasonable request to assist law enforcement agencies in the investigation and prosecution of their traffickers. The TVPA addresses the effect of severe forms of trafficking in persons on victims, including many who may not have legal status and are reluctant to cooperate.

In order to develop a comprehensive Federal approach to identifying victims of severe forms of trafficking in persons, to provide them with benefits and services, and to enhance the Department of Justice's ability to prosecute traffickers and prevent trafficking in persons in the first place, the Service conducted a series of stakeholders' meetings with representatives from key Federal agencies; national, state, and local law enforcement associations; non-profit, community-based victim rights organizations; and other groups. Suggestions from these stakeholders were used in the drafting of this regulation. Additionally, the Department established an internal working group to oversee implementation of the new law.

In a variety of ways, the Department has attempted to protect potential victims of severe forms of trafficking in persons by encouraging witnesses to cooperate in the investigation and prosecution of traffickers. Through vigorous investigation and prosecution of severe forms of trafficking in persons, the Department hopes to dismantle trafficking in persons rings and dramatically reduce the number of trafficking victims.

The U.S. Government has already taken a number of actions to implement section 107 of the TVPA. A key initial response under the TVPA was to improve the ability of law enforcement agencies to identify victims of severe forms of trafficking in persons and to provide appropriate information and assistance to them pursuant to section 107(c) of the TVPA. The Attorney General and the Secretary of State already have issued regulations implementing the requirements for assistance to victims of severe forms of trafficking in persons under section 107(c). See 66 FR 38514 (July 24, 2001) (codified at 28 CFR part 1100).

Section 107(c) permits the Service, in cooperation with other law enforcement agencies, to arrange for the “continued presence” of aliens who have been the victims of severe forms of trafficking in persons and are potential witnesses to that trafficking, so that they will be available to assist with the investigation and prosecution of the traffickers. As provided in 28 CFR 1100.35, the Service will arrange for “continued presence” of such victims, at the request of appropriate law enforcement agencies, during the time that their presence in the United States is needed for law enforcement purposes. In most of those cases, the Service (whether through parole or other means) will be able to grant the victims temporary work authorization during the time they remain in the United States to assist with these law enforcement efforts.

Section 107(b) of the TVPA also provides that aliens who are victims of severe forms of trafficking in persons who have been granted continued presence, or who have filed a bona fide application for T nonimmigrant status, also are eligible to receive certain kinds of public assistance to the same extent as refugees.

Finally, in another part of the same Act that enacted the provisions of the TVPA for victims of trafficking in persons, Congress also provided for a new U nonimmigrant status for victims of certain kinds of crimes, including crimes involving trafficking in persons. VAWA section 1513. The Department will be publishing regulations to implement the U nonimmigrant status in a separate rulemaking action.

T Nonimmigrant Status

This rule implements one aspect of these new protections for victims of severe forms of trafficking in persons, the T nonimmigrant status. Congress established this new classification, in section 107(e) of the TVPA, to create a safe haven for certain eligible victims of severe forms of trafficking in persons who are assisting law enforcement authorities in investigating and prosecuting the perpetrators of these crimes. Children who have not yet attained the age of 15 at the time of application are exempt from the requirement to comply with law enforcement requests for assistance in order to establish eligibility.

T nonimmigrant status is applicable to victims of severe forms of trafficking in persons who are 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 such trafficking in persons. Applicants for this status must demonstrate that they would suffer extreme hardship involving unusual and severe harm if they were removed from the United States and that they have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons.

Principal aliens eligible for T nonimmigrant status may be granted T-1 status, which the TVPA limits to no more than 5,000 each fiscal year. In some circumstances, immediate family members of victims of severe forms of trafficking in persons also may receive a T nonimmigrant visa to accompany or to join the victim. When the Service approves a T nonimmigrant status application, it will provide a list of nongovernmental organizations to which the alien can refer regarding the alien's options while in the United States and resources available to the alien.

T nonimmigrant status allows eligible aliens to remain in the United States and grants specific nonimmigrant benefits. The T status is separate and distinct from the provision for “continued presence” pursuant to 28 CFR 1100.35, which is only temporary and requires that the alien depart the United States once his or her presence for purposes of the criminal investigation or prosecution is no longer required, unless the alien has some other immigration status. Those acquiring T-1 nonimmigrant status will be able to remain in the United States for a period of three years, whether or not they were granted “continued presence.”

Unlike other provisions of section 107 of the TVPA, T-1 nonimmigrant status is limited to victims of severe forms of trafficking in persons who are physically present on account of the trafficking and can establish that they would suffer “extreme hardship involving unusual and severe harm” if they were removed from the United States. In view of the annual limitation imposed by Congress for T-1 status, and the standard of extreme hardship involving unusual and severe harm, the Service acknowledges that the T-1 status will not be an appropriate response with respect to many cases involving aliens who are victims of severe forms of trafficking in persons.

To best meet these goals, the Service has determined that applicants may apply individually for T-1 nonimmigrant status without requiring third party sponsorship from a law enforcement agency, as is the case for the existing S nonimmigrant status for alien witnesses and informants. See 8 CFR 214.2(t). Recognizing the importance of providing assistance to law enforcement investigations and prosecutions, however, this interim rule provides a standard form for law enforcement agencies to use to provide sufficient background information to document that the alien is a victim of a severe form of trafficking in persons and has cooperated with reasonable requests for assistance to law enforcement. Although a law enforcement endorsement will not be required, and an alien will be able to submit secondary evidence to establish these statutory requirements, the submission of this endorsement form will serve as primary evidence to satisfy these two elements and is strongly encouraged.

Aliens who have been granted T-1 status also will be able to seek derivative T status for their immediate family members who are accompanying or following to join them, if they can demonstrate that the removal of those family members from the United States (or the failure to admit the family members to the United States if they are currently abroad) would result in extreme hardship. Eligible immediate family members of the T-1 principal may receive derivative T-2 (spouse) or T-3 (child) status, and, in the case of a T-1 principal alien under the age of 21, T-4 (parent) status. The statutory numerical limitations do not apply to immediate family members classified as T nonimmigrant aliens. The Service notes that such immediate family members also may qualify for protection in appropriate cases under the regulations adopted to implement section 107(c) of the TVPA. See 28 CFR 1100.31.

Eligible victims who are granted T-1 nonimmigrant status will be issued employment authorization to assist them in finding safe, legal employment while they attempt to retake control of their lives. Aliens with derivative T-2, T-3, or T-4 status also may apply for employment authorization.

The TVPA also provides for the adjustment of status, at the Attorney General's discretion, from T nonimmigrant status to lawful permanent resident status for T nonimmigrants who: (1) Are admissible; (2) have been physically present in the United States for a continuous period of at least 3 years since the date of admission with T-1 nonimmigrant status; (3) throughout such period have been persons of good moral character; and (4) establish either (i) that during such period they have complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons, or (ii) that they would suffer extreme hardship involving unusual and severe harm upon removal from the United States. The provisions concerning adjustment of status will be the subject of a separate rulemaking.

The Interim Rule

To qualify for T-1 nonimmigrant status, a person must demonstrate: (1) That he or she is a victim of a severe form of trafficking in persons; (2) that he or she is 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 such trafficking in persons; (3) that, if 15 years of age or older, he or she has complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons; and (4) that he or she would suffer extreme hardship involving unusual and severe harm if removed from the United States. The alien also must be admissible to the United States or obtain a waiver of inadmissibility from the Service. This rule addresses what the alien must show to meet each element necessary to qualify for the T nonimmigrant classification. The Service has created a new Form I-914, Application for the T Nonimmigrant Status, for this purpose. Form I-914 is composed of three sections: Application for the T Nonimmigrant Status (required); Supplement A, Application for Immediate Family Member of T-1 Recipient; and Supplement B, Declaration of a Law Enforcement Officer for Victim of Trafficking in Persons.

How Is a Victim of a Severe Form of Trafficking in Persons Defined?

Section 103 of the TVPA defines the term “victim of a severe form of trafficking in persons.” To be a “victim of a severe form of trafficking in persons,” an individual must

• Have been recruited, harbored, transported, provided, or obtained for labor or services, or the purposes of a commercial sex act; and
• There must have been some force, fraud, or coercion involved to make the victim engage in the labor or services or the commercial sex act (except that there need not be any force, fraud, or coercion in cases of commercial sex acts where the victim is under 18); and
• For situations involving labor or services, the use of force, fraud, or coercion must be for the purpose of subjecting the victim to involuntary servitude, peonage, debt bondage, or slavery.

This legislation provided the first definition under Federal law of a victim of a severe form of trafficking in persons. It builds upon the Constitutional prohibition on slavery, the existing criminal law provisions on slavery and peonage (Chapter 77 of title 18, U.S. Code, sections 1581 et seq.), on the case law interpreting the Constitution and these statutes (specifically United States v. Kozminski, 487 U.S. 931, 952 (1988)), and on the new criminal law prohibitions contained in the TVPA.

In order to make potential applicants for T-1 nonimmigrant status aware of the types of violations that must exist in order to meet the statutory definition of severe forms of trafficking in persons, the Service makes reference to the text of the 12 Federal criminal civil rights statutes contained within Chapter 77 of title 18 of the U.S. Code, beginning with section 1581. This set of statutes contains both preexisting and newly created trafficking in persons laws, many of which appear to constitute the crimes that Congress intended to cover in its statutory definition of severe forms of trafficking in persons. Accordingly, the definitions contained in section 214.11 reference the scope of those criminal provisions as an appropriate guide in applying the definitions of “severe forms of trafficking in persons” and its related terms for purposes of the T nonimmigrant status.

The statutory definition of involuntary servitude reflects the new Federal crime of “forced labor” contained in section 103(5) of the TVPA, and expands the definition of involuntary servitude contained in Kozminski. In crafting the definition in the TVPA, Congress intended to broaden the types of criminal conduct that could be labeled “involuntary servitude.”

The legislative history of the new “forced labor” crime (18 U.S.C. 1589) provides helpful guidance on what types of conduct Congress intended to cover in its statutory definitions of severe trafficking in persons and, in particular, involuntary servitude:

“Section 1589 is intended to address the increasingly subtle methods of traffickers who place their victims in modern-day slavery, such as where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence * * * Because provisions within section 1589 only require a showing of a threat of “serious harm,” or of a scheme, plan, or pattern intended to cause a person to believe that such harm would occur, federal prosecutors will not have to demonstrate physical harm or threats of force against victims. The term “serious harm” * * * refers to a broad array of harms, including both physical and nonphysical, and section 1589's terms and provisions are intended to be construed with respect to the individual circumstances of victims that are relevant in determining whether a particular type or certain degree of harm or coercion is sufficient to maintain or obtain a victim's labor or services, including the age and background of the victims.” 146 Cong. Rec. H8881 (daily ed. Oct. 5, 2000).

The only term within the statutory definition in section 103 of the TVPA that is not covered by Chapter 77 of title 18, U.S. Code, is the term “debt bondage.” According to the TVPA, “the term “debt bondage” means the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.” TVPA, section 103(4).

The Service also notes that the definitions in section 103 of the TVPA are applicable not only for purposes of the T nonimmigrant status, but also for many other purposes as well under the TVPA. For example, the same definitions of “severe forms of trafficking in persons” and its related terms are used for purposes of:

• The provisions of section 107(c) of the TVPA and in the implementing regulations on Protection and Assistance for Victims of Trafficking adopted by the Attorney General and the Secretary of State at 66 FR 38514 (July 24, 2001) (to be codified at 28 CFR part 1100);
• The provisions for eligibility for benefits and services under section 107(b) of the TVPA;
• The annual country reports on human rights practices prepared by the Department of State under the Foreign Assistance Act of 1961, as amended by section 104 of the TVPA; and
• The minimum standards for the elimination of severe forms of trafficking in persons and the provisions to promote compliance with those minimum standards, as provided in sections 108 through 111 of the TVPA.

In providing for the new T nonimmigrant status, Congress directed the Attorney General to apply the definition of a “victim of a severe form of trafficking in persons” as it is defined in section 103 of the TVPA. Section 103 of the TVPA provides a common definition of the key statutory terms that are used in several different contexts in Title I of the TVPA. In view of the common usage of these definitions in section 103 for many purposes under the TVPA, the Service will interpret and apply those terms for purposes of the T nonimmigrant status with due regard for the definitions and application of these terms in 28 CFR part 1100 and the provisions of chapter 77 of title 18, United States Code.

In determining whether an applicant is a victim of a severe form of trafficking in persons, the Service will consider all credible and relevant evidence. Except in instances of sex trafficking involving minors, 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). It is the applicant's burden to demonstrate both elements of a severe form of trafficking in persons. For example, an adult involved in commercial sexual activity that is not induced by force, fraud, or coercion will not be considered a victim of a severe form of trafficking in persons.

When Is an Alien Physically Present in the United States on Account of Such Trafficking?

A victim of a severe form of trafficking in persons 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 such trafficking.” TVPA, section 107(e)(1)(T)(i)(II). Some traffickers arrange for entry of their victims into these jurisdictions as part of the trafficking scheme, while other traffickers prey upon aliens who are already in the United States. These aliens may have entered lawfully for a certain purpose, for instance in a student status under section 101(a)(15)(F) of the Immigration and Nationality Act (INA), or they may have entered without being admitted or paroled and are unlawfully present. The Service is interpreting the statute in light of Congressional intent to reach those aliens who are physically present under each of these circumstances if they are or were victims of severe forms of trafficking in persons occurring within those jurisdictions. The Service will take into account the circumstances relating to the alien's arrival and current presence in these jurisdictions.

As a result of this broad range of aliens who may be victims of severe forms of trafficking in persons, the Service interprets the physical presence requirement to reach those aliens who: (1) Are present because they are being held in some sort of severe form of trafficking in persons situation; (2) were recently liberated from a severe form of trafficking in persons; or (3) were subject to severe forms of trafficking in persons at some point in the past and remain present in the United States for reasons directly related to the original trafficking in persons.

If such aliens have escaped their traffickers before law enforcement became involved in the matter, they must show that they did not have a clear chance to leave the United States in the interim. The Service will consider whether an applicant had a clear chance to leave in light of the individual applicant's circumstances. Information relevant to this determination may include, but is not limited to, circumstances attributable to the trafficking in persons situation. This determination may reach both those who entered the United States lawfully and those who entered without being admitted or paroled.

The Service will consider all evidence available to determine physical presence, including requiring the alien to explain in a narrative submitted as part of Form I-914, Application for the T Nonimmigrant Status. This information will help Service adjudicators determine whether the alien had a clear chance to leave the United States after escaping from the trafficker, in order to determine whether an alien is present on account of trafficking.

Aliens who have traveled out of the United States and then returned will be presumed not to be here on account of trafficking in persons and will have to show that their presence here is the result of continued victimization at the hands of the traffickers or a new incident of a severe form of trafficking in persons.

It is important to note that aliens who are present in the United States without having been admitted or paroled are inadmissible, and accordingly they will have to obtain a waiver of inadmissibility in order to be eligible for T nonimmigrant status.

What Is the Difference Between Alien Smuggling and Severe Forms of Trafficking in Persons?

Federal law makes a distinction between alien smuggling—in which the smuggler arranges for an alien to enter the country illegally for any reason, including where the alien has voluntarily contracted to be smuggled—and severe forms of trafficking in persons. Unlike alien smuggling, severe forms of trafficking in persons must involve both a particular means such as the use of force, fraud, or coercion, and a particular end such as involuntary servitude or a commercial sex act (with regard to a commercial sex act, however, the use of force, fraud, or coercion is not necessary if the person induced to perform a commercial sex act is under the age of 18). Pursuant to the TVPA, victims of a severe form of trafficking in persons are persons who are recruited, harbored, transported, provided, or obtained for: (1) Labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery; or (2) the purpose of a commercial sex act in which such act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.

In most cases, aliens who are voluntarily smuggled into the United States will not be considered victims of a severe form of trafficking in persons. However, individuals who are voluntarily smuggled into the United States in order to be used for labor or services may become victims of a severe form of trafficking in persons if, for example, after arrival the smuggler uses threats of serious harm or physical restraint to force the individual into involuntary servitude, peonage, debt bondage, or slavery. Federal law prohibits forced labor regardless of the victim's initial consent to work. This distinction between alien smuggling and severe forms of trafficking in persons is consistent with the separate treatment of trafficking in persons and alien smuggling internationally.

Aliens who can establish that they are or have been a victim of a severe form of trafficking in persons, regardless of the circumstances of their arrival in the United States, may be eligible to receive various forms of assistance under sections 107(b) or (c) of the TVPA. In addition, a Federal law enforcement agency may request the Service to arrange for the alien's “continued presence” as provided in 28 CFR 1100.35 for purposes of the investigation and prosecution of trafficking in persons crimes.

How Is Continued Presence, Issued Under Section 107(c) of the TVPA, Related to Obtaining T-1 Status?

One of the elements an applicant for T-1 nonimmigrant status must prove is that he or she is a victim of a severe form of trafficking in persons. Documentation from the Service granting the applicant “continued presence” in accordance with section 107(c) of the TVPA and 28 CFR 1100.35 shall be considered as establishing victim status. Continued presence documentation shall not be valid for purposes of establishing victim status, however, if the continued presence has been revoked based on a determination that the applicant is not a victim of a severe form of trafficking in persons.

What Is a Reasonable Request for Assistance From Law Enforcement in the Investigation or Prosecution of Acts of Trafficking?

To be eligible for T nonimmigrant status, a victim of a severe form of trafficking in persons must comply with any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons (unless the victim is under the age of 15). When the applicant submits a Law Enforcement Agency (LEA) endorsement as part of his or her application package, the LEA who requested cooperation will make the initial determination as to the cooperation of the applicant. The Service will only challenge this assertion when there is evidence that the LEA's conclusion is incorrect.

The Service interprets a “reasonable request for assistance” to be one made to a victim of a severe form of trafficking in persons to assist law enforcement authorities in the investigation or prosecution of acts of trafficking in persons. The Service's evaluation of the reasonableness of a request will be based on the totality of the circumstances, taking into account general law enforcement, prosecutorial, and judicial practices, the nature of the victimization, and the specific circumstances of the victim, including fear, severe traumatization (both mental and physical), and the age and maturity of young victims. Absent exceptional circumstances, it is reasonable for a law enforcement agency to ask of a victim of a severe form of trafficking in persons similar things it asks of other comparably-situated crime victims. The Service welcomes comments on how it should evaluate the reasonableness of a request for assistance from law enforcement, particularly with respect to requests made to victims who are under the age of 18.

In view of the statutory requirement for a victim of a severe form of trafficking in persons to comply with reasonable requests made by an LEA investigating or prosecuting severe forms of trafficking in persons, the victim must have had contact with a law enforcement agency regarding the incident, either by reporting the crime or by responding to inquiries from an LEA.

On the form filled out by the LEA investigator or prosecutor, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, of Form I-914, Application for T Nonimmigrant Status, the Service will ask for information about the victim's cooperation with that LEA. The Service also will ask the alien to provide information about his or her cooperation on Form I-914. In determining whether an alien meets this element of T-1 nonimmigrant status eligibility, the Service will look at the totality of the circumstances surrounding the alien's involvement with the law enforcement or prosecuting agency.

The alien may provide any credible evidence to meet this prong of eligibility or any other prong of eligibility. A non-exhaustive list of suggested forms of secondary evidence includes trial transcripts, court documents, police reports, news articles, and copies of reimbursement forms for travel to and from court. Under 8 CFR 103.2, affidavits are not considered primary or secondary evidence. They are another form of evidence, nonetheless. Applicants may provide their own affidavits and those from other witnesses.

If the Service has reason to believe that there is a question about the reasonableness of a request for assistance by an LEA or the applicant's compliance, and the resolution of this question is necessary for the proper adjudication of the application, the Service will contact the LEA. The Service will take all practical steps to reach an acceptable resolution with the LEA. The determination of what is a reasonable request shall be within the sole discretion of the Service.

From Whom May the Request for Law Enforcement Assistance Come?

This rule provides that any appropriate LEA with jurisdiction in the investigation or prosecution of acts of trafficking in persons may make a request for law enforcement assistance. An LEA is a Federal law enforcement or prosecuting agency, including, but not limited to, the Federal Bureau of Investigation (FBI), the Service, the United States Attorneys' Offices, the Department of Justice's Civil Rights and Criminal Divisions, the United States Marshals Service, and the Department of State's Diplomatic Security Service. While States and localities may investigate or prosecute crimes of “trafficking in persons,” for purposes of this rule the only agencies authorized to investigate or prosecute crimes that meet the definition under the TVPA of “severe forms of trafficking in persons” are those that investigate violations of the Federal offenses detailed in the TVPA. If state or local investigative or prosecuting agencies believe they have encountered a victim of a severe form of trafficking in persons, they should contact an LEA to report the crime. In this way, aliens who have only received requests to assist in the criminal investigations or prosecutions of state or local crimes also may have the opportunity to assist Federal law enforcement or prosecuting agencies and therefore meet the requirements for eligibility for T-1 nonimmigrant status under this section and the Act.

What Is the Law Enforcement Agency Endorsement?

The LEA endorsement is Supplement B, Declaration of a Law Enforcement Officer for Victim of Trafficking in Persons, of Form I-914, Application for T Nonimmigrant Status. It is issued by the authorities conducting an investigation or prosecution when they believe an individual is or has been a victim of a severe form of trafficking in persons and the victim has cooperated with any reasonable law enforcement requests. The Service has interpreted the statutory language to mean that only Federal law enforcement agencies investigating or prosecuting acts of trafficking in persons will be allowed to fill out the LEA endorsement. The Service has chosen this interpretation because severe forms of trafficking in persons are Federal crimes under the TVPA. If a state law enforcement agency believes it has encountered a victim of a severe form of trafficking in persons who would be eligible for T-1 nonimmigrant status, the state law enforcement agency or the alien should contact the local office of an LEA or the Civil Rights Division's Criminal Section. Potential victims who have not yet reported crimes to an LEA ought to contact the nearest local FBI, Service, or U.S. Attorney's office to report the trafficking in persons crime. Alternatively, the victim may contact the Department of Justice, Civil Rights Division, Trafficking in Persons and Worker Exploitation Task Force complaint line at 1-888-428-7581 to report crimes and to obtain information about LEA endorsements. It is important to recognize that an LEA, if it so desires, may only fill out an endorsement when, after a full assessment, it determines that the individual is a victim of a severe form of trafficking in persons and has complied with any reasonable request the LEA has made.

An LEA endorsement is not a mandatory part of a T-1 nonimmigrant status application. All T-1 applicants, however, are strongly encouraged to provide such an endorsement if possible. The LEA endorsement serves as primary evidence that the alien is a victim of a severe form of trafficking in persons, and has not unreasonably refused to assist in the investigation or prosecution of trafficking in persons. If the applicant chooses not to include an LEA endorsement, the Service will make an independent assessment of any credible evidence presented, in accordance with this rule, to determine if the applicant meets the cooperation with law enforcement requirement.

When Will the Service Provide Information From the Form I-914, Application for the T Nonimmigrant Status, to Other Agencies?

A victim's confidentiality and his or her safety, to the extent the law allows, will be considered when releasing information to Federal investigative agencies and/or defendants. In accordance with 42 U.S.C. 10606, Department of Justice employees will use their best efforts to see that victims of Federal crimes are accorded the rights due such victims, including the right to be treated with fairness and with respect for their dignity and privacy, and the right to be reasonably protected from accused offenders.

However, the Service may provide the information about any Federal crimes detailed to Federal investigative agencies, such as the FBI, U.S. Attorney's office, or the Department's Civil Rights or Criminal Divisions, or to the Service's Investigations unit. These contacts may be for the purpose of assessing whether an alien has complied with any reasonable request for assistance, or to promote enforcement of the Federal laws against trafficking in persons.

In addition, under established legal standards, the Department of Justice has an obligation to provide statements by witnesses and certain other documents to defendants in pending criminal proceedings. These obligations stem from constitutional, statutory, and other legal requirements that pertain to the government's duty to disclose information, including exculpatory evidence or impeachment material, to the defendant in order to prepare his or her defense. Accordingly, in any case where the Department is prosecuting a person for trafficking in persons offenses involving that victim, the Service will make appropriate arrangements with the Department of Justice component responsible for prosecution to ensure that information in the victim's application for T nonimmigrant status and other documents that fall within the scope of the Department's legal obligations will be made available on a timely basis to the Federal prosecutors.

What Happens if an Applicant Is Inadmissible Under One of the Grounds in Section 212(a) of the Immigration and Nationality Act?

A principal or derivative applicant who is or becomes inadmissible under section 212(a) of the INA will not be eligible for T nonimmigrant status unless the ground of inadmissibility is waived by the Service. If the ground of inadmissibility is one that can be waived, the alien should apply for a waiver of the grounds of inadmissibility from the Service on Form I-192, Application for Advance Permission to Enter as Nonimmigrant (Pursuant to Section 212(d)(3) of the Immigration and Nationality Act). Section 212(d)(3)(B) provides general authority for the Service to waive many grounds of inadmissibility for nonimmigrants. These waivers are not automatic, but may be granted in the exercise of its discretion. Form I-192 should be filed at the time of filing Form I-914.

In the TVPA, Congress recognized that victims of a severe form of trafficking in persons might need this specific relief from inadmissibility. Section 107(e)(3) of the TVPA creates additional authority for the waiver of inadmissibility, at the discretion of the Attorney General, in the case of victims of a severe form of trafficking in persons if the Attorney General considers it to be in the national interest to do so. Under new section 212(d)(13) of the INA, such victims may receive a waiver on health-related grounds (section 212(a)(1)) or on public charge grounds (section 212(a)(4)). Section 212(d)(13) of the INA also authorizes the Attorney General to waive the criminal grounds of inadmissibility in section 212(a)(2) of the INA and certain other grounds if the activities rendering the alien inadmissible were caused by or were incident to the alien's victimization.

The reference to waiver of the public charge ground should be understood in light of another section of the TVPA—section 107(b)(1)(A) and (E)—which provides that victims of severe forms of trafficking in persons who are over 18 years of age may be certified by the Department of Health and Human Services (HHS) to receive certain benefits and services “to the same extent as an alien who is admitted to the United States as a refugee.” Victims of a severe form of trafficking in persons under age 18 also are eligible for services to the same extent as refugees, but they do not have to be certified by HHS. Under this provision, victims may receive certain benefits and services as if they were refugees, which might include cash assistance. Refugees are provided with special humanitarian benefits because of their vulnerable circumstances, and are exempt from virtually every aspect of the public charge determination. For the purposes of receipt of public benefits, Congress has recognized that victims of severe forms of trafficking are in much the same position as refugees, and therefore has provided specific authority for the Service to exempt them from the ground of inadmissibility for aliens who are likely to become a public charge.

How Does a Victim of a Severe Form of Trafficking in Persons Apply for T-1 Nonimmigrant Status?

A victim of a severe form of trafficking in persons may apply directly to the Service for T-1 nonimmigrant status. The application requires submission of a Form I-914, a $200 filing fee (plus $50 per immediate family member) or an application for a fee waiver, a fingerprinting fee, three current identical color photographs, and evidence establishing each eligibility requirement. All necessary materials should be compiled into one application package and submitted to the Director, Vermont Service Center, 75 Lower Welden Street, St. Albans, Vermont 05479-0001.

All applicants for T nonimmigrant status must be fingerprinted for the purpose of conducting a criminal background check as part of the application process. The Service recognizes the importance of making timely determinations of bona fide applications in order for victims of severe forms of trafficking to receive critical health and other social services as soon as possible. After submitting an application with fee to the Service, the applicant will be notified of the proper time and location to appear for fingerprinting. In 1997, Congress created a new program that required the Service to have direct oversight of the fingerprint process and enabled the Service to add new technology for exchanging data with the FBI. As a result, the Service created the Application Support Center (ASC) program, which is currently composed of 133 offices located across the country. In addition, state-of-the-art technology and customized software have been employed at these ASCs, permitting live-scan capture of fingerprints and automated transmission of fingerprints to the FBI's Integrated Automated Fingerprint Identification System (IAFIS) electronically. As a result of these process and systems enhancements, the Service has been able to reduce the rate at which the FBI rejected these fingerprint cards from 40 percent to 3 percent, and reduced the overall FBI response time from approximately nine months to, in most cases, less than one day. The Service will continue to review fingerprint processing operational performance and build upon ongoing enhancements in applicant scheduling, live-scan biometrics capture, and automated data exchange to ensure the overall efficiency and timeliness of fingerprint processing. As part of the forthcoming final rulemaking, the Service will consider whether any systemic issues have arisen regarding the timeliness of background checks related to the administration of this program, and consider whether any improvements need to be made by the Service to ensure timely determinations of whether an applicant has submitted a bona fide application.

What Are the Stages Involved With the Application Process for T Nonimmigrant Status?

There are several stages involved in the T nonimmigrant status application process: (1) The submission of an application for T-1 nonimmigrant status (which may be accompanied by applications for derivative T nonimmigrant status for immediate family members); (2) the Service's determination of whether an application for T nonimmigrant status is bona fide; and (3) the adjudication of the application for T nonimmigrant status. The Service will approve an application for T-1 nonimmigrant status when room is available under the cap for each fiscal year, or place the alien on the waiting list (which will be carried over to subsequent years) for the grant of a T-1 nonimmigrant status application if the cap has been reached. The cap is not affected by applications for derivative T nonimmigrant status.

Submission of an application for T-1 nonimmigrant status. In the first stage of the process, the alien submits an application for T-1 nonimmigrant status. At this stage, the victim of a severe form of trafficking in persons provides evidence sufficient to demonstrate each required element necessary for the Service to issue T-1 nonimmigrant status.

A complete application includes Form I-914, Application for the T Nonimmigrant Status; three identical color photographs; applicable fees or applications for fee waivers; and all evidence to fully support his or her claims to the four eligibility elements. An application also may include Supplement A, Supplemental Application of Immediate Family Members for T-1 Recipient, and Supplement B, Declaration of a Law Enforcement Officer for Victim of Trafficking in Persons of Form I-914, Application for T Nonimmigrant Status, and Form I-192, Application for Advance Permission to Enter as Nonimmigrant, for a waiver of a ground of inadmissibility, if necessary.

An Employment Authorization Document will be generated from the I-914 information. The applicant does not need to file Form I-765, Application for Employment Authorization, with the application package.

Determination of a bona fide application for T nonimmigrant status. The Service will review the submitted information to ensure that the application is complete and ready for adjudication, which includes that the fingerprinting and criminal background checks are completed and that the submitted information presents prima facie evidence for each eligibility requirement. This determination of whether there is prima facie evidence will be made for T-1 applications, according to the eligibility standards for that status. If the application is sufficient, the application will be determined to be a bona fide application for T-1 nonimmigrant status. However, if the alien is inadmissible, the Service will not consider the application to be bona fide unless the ground of inadmissibility is one under the circumstances described in section 212(d)(13) of the INA, as added by section 107(e) of the TVPA, or unless the Service already has granted a waiver of inadmissibility with respect to any other ground. All waivers are discretionary and require a request for a waiver. Under section 212(d)(13), however, an application can be bona fide before the waiver is granted. This is not the case under other grounds of inadmissibility.

The Service will not consider an application that is incomplete to be bona fide until the applicant submits the necessary additional evidence to establish prima facie eligibility for each required element of the T-1 nonimmigrant status. The Service will notify the applicant regarding the additional evidence that needs to be submitted in those circumstances, as provided in 8 CFR 103.2(b)(8).

Once an application is determined to be a bona fide application for T nonimmigrant status, the Service will provide written confirmation to the applicant. The Service will use various means to prevent the removal of individuals who have filed bona fide applications, such as deferred action, parole, and stay of removal, until the Service issues a final decision on the application. (Some victims of a severe form of trafficking in persons, however, already may have been granted “continued presence” as provided in section 107(c) of the TVPA and the regulation implementing it. See 66 FR 38514 (July 24, 2001) (codified at 28 CFR 1100.35).) Individuals granted deferred action, parole, or stay of removal may be granted employment authorization by filing Form I-765, Application for Employment Authorization, in accordance with Service policies and procedures.

Once an application for T-1 nonimmigrant status is determined to be bona fide by the Service, an applicant age 18 or older may apply to HHS to be certified to receive certain benefits and services to the same extent as refugees, as provided in section 107(b) of the TVPA. In order for the victim of a severe form of trafficking in persons to be eligible, HHS must certify him or her to receive such benefits and services, unless the victim is under the age of 18. The Service notes that victims under age 18 do not need to be certified, nor do they need to submit a bona fide application for T nonimmigrant status, in order to receive such benefits and services. To be considered a victim and therefore eligible for these benefits and services, those under 18 must be determined to have been subjected to a severe form of trafficking in persons. The Service also notes that individuals who have received “continued presence” under section 107(c) of the TVPA may apply to HHS to be certified.

Adjudication of applications for T nonimmigrant status. The Service has centralized the adjudication process at its Vermont Service Center. This centralization will allow adjudicators to develop expertise in handling these cases and provide for uniformity in the adjudication of these applications. If the Service finds that the alien has satisfied the requirements for T nonimmigrant status, it will either grant T nonimmigrant status or (in the case of T-1 applicants who are subject to the annual cap) place the alien on a waiting list, as discussed below.

In any case in which the Service denies an application for T nonimmigrant status, the applicant can appeal to the Administrative Appeals Office (AAO) under procedures outlined in 8 CFR 103.3.

Approval of T-1 nonimmigrant status or placement on the waiting list for the grant of T-1 nonimmigrant status. If the Service determines that there are sufficient grounds to grant T-1 nonimmigrant status, the Service will send a notice of approval to the applicant only if a T-1 nonimmigrant status number is available. When the Service grants an application for T-1 status, it will simultaneously grant employment authorization (if not already obtained).

In the event a number is not available, the Service will send the applicant a notice of placement on the waiting list.

What Will Happen if There Are More Eligible T-1 Applicants Than the Number Available for the Year?

According to the TVPA, there is a 5,000-person limit to the number of individuals who can be granted T-1 status per fiscal year (from October 1 through September 30). Once the numerical limit has been reached in a particular fiscal year, all pending and subsequently submitted applications will continue to be reviewed in the normal process to determine eligibility, but the Service will not grant T-1 nonimmigrant status prior to the beginning of the next fiscal year. Eligible applicants who are not granted T-1 status due solely to the numerical limit shall be placed on a waiting list to be maintained by the Service. In the event a number is not available, the Service will send the applicant a notice of placement on the waiting list. Applicants on the waiting list will be given priority the following fiscal year based on the date the application was properly filed. Each year, as new numbers for the T-1 nonimmigrant status become available, the Service will grant them to applicants on the waiting list.

Eligible applicants on the waiting list must be admissible at the time status is granted. Eligible applicants on the waiting list may be asked to resubmit fingerprints (and pay the appropriate fee) and photographs because of the passage of time between their submission and the date a nonimmigrant status becomes available. After the Service has granted T-1 status to applicants on the waiting list, the Service will continue to grant applications, up to the annual limit, to new applicants in the order in which each application was properly filed.

Will T-1 Applicants Be Removed From the United States While on the Waiting List?

The Service will use various means to prevent the removal of T-1 applicants on the waiting list, and their family members who are eligible for derivative T status, including its existing authority to grant deferred action, parole, and stay of removal. However, an applicant may be removed, and his or her application denied, for conduct that occurs while an alien is on the waiting list or for not disclosing relevant information at the time of filing. During this time, applicants for T status who are granted deferred action or stay of removal will not accrue unlawful presence under section 212(a)(6) or (9) of the INA. Applicants also will be able to renew their work authorization documents, as needed.

While on the waiting list, the T-1 applicant will remain in his or her current immigration status (deferred action, parole, stay of removal, or other immigration status) and will retain eligibility for employment authorization, subject to any conditions placed on that authorization, until new numbers for T-1 nonimmigrant status become available in a subsequent fiscal year.

How Will the Revocation of a T-1 Status Affect the Annual Cap?

The revocation of a T-1 status will have no effect on the annual cap. Once a T-1 status is granted, it will be deemed to have been used and cannot be used again. The Service considered re-using the T-1 status but determined it would be infeasible to track, especially if the T-1 status were granted several years ago and the individual were waiting for adjustment to lawful permanent resident status. The Service concluded that tracking when T-1 classifications are granted and then trying to backfill the numbers with additional grants or provide grants above the annual cap would put undue burden on the Service.

When Can a T-1 Nonimmigrant Apply for Derivative Status for Family Members?

An applicant for T-1 status may apply for derivative T nonimmigrant status, at the time of the original T-1 application, for his or her spouse (T-2) or child (T-3), or in the case of a child who is applying for T-1 status, the child's parents (T-4). An applicant for T-1 status or an alien who has been granted T-1 nonimmigrant status also may apply at a later date by filing a separate Form I-914 and attachments. Applications for derivative status must be accompanied by the required attachments, such as fingerprints, photographs, and fees.

How Will the Service Adjudicate Applications for Derivative Status of Family Members of a Victim of a Severe Form of Trafficking in Persons?

The annual limitation does not apply to immediate family members who are granted derivative T-2, T-3, or T-4 status. However, the Service will not grant an application for derivative T status until the principal alien has been granted T-1 status. Once the principal alien is granted T-1 nonimmigrant status, eligible family members who receive a derivative status can apply for employment authorization on Form I-765, and, if granted, receive work authorization.

What Is the Duration of the T Nonimmigrant Status?

T nonimmigrant status will be granted for 3 years. This period of stay is timed to coordinate with the separate statutory authority for adjustment of status. An alien in T nonimmigrant status is eligible to apply for adjustment of status to that of a legal permanent resident under the criteria listed in section 107(f) of the TVPA and forthcoming Service regulations. Should an alien with T nonimmigrant status leave the United States during the 3 years prior to applying for lawful permanent residence, he or she must file a Form I-131, Application for Travel Document, before departing the United States to obtain advanced parole in order to return to the United States. This requirement is true for T-1 principal aliens as well as family members in derivative T-2, T-3, or T-4 status.

The T nonimmigrant status is not renewable. If the alien properly files for adjustment of status to that of a person admitted for permanent residence within the 90-day period immediately preceding the third anniversary of the date of the approval of the alien's Form I-914, the alien shall continue to be in a T nonimmigrant status with all the rights, privileges, and responsibilities provided to a person possessing such status, including employment authorization, until such time as a final decision is rendered on the alien's adjustment of status. At the time an alien is approved for T nonimmigrant status, the Service shall notify the alien that his or her nonimmigrant status will expire in 3 years from the date of the approval of the alien's Form I-914, and that if the alien wishes to apply to adjust status, the alien must apply within the 90-day period immediately preceding the expiration of T nonimmigrant status.

What Is the Fee for an Application for T Nonimmigrant Status?

In the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1989, Pub. L. 100-459, Sec. 209, 102 Stat. 2186, 2203 (1988), Congress mandated that the Service prescribe and collect fees to recover the cost of providing certain immigration and naturalization benefits. Congress has not provided appropriated funds to pay for nonimmigrant classification programs.

The Service has determined that the fee for filing Form I-914, Application for the T Nonimmigrant Status, is $200. An applicant for T-1 status also will be able to request derivative T nonimmigrant status for eligible family members for an additional fee of $50 for each person included in the same application, up to a maximum amount of $400.

Applications for immediate family members filed subsequent to the T-1 principal's application will be considered a new filing and will require the full fee of $200 for the first family member and $50 for each additional family member, up to a maximum amount of $400.

Are Fee Waivers Available?

The Service recognizes that many applicants for T nonimmigrant status may be unable to pay the full application fee. Applicants who are financially unable to pay the application fee may submit an application for a fee waiver, as outlined in 28 CFR 103.7(c). The granting of a fee waiver will be at the sole discretion of the Service. Further guidance on fee waivers can be found on the INS Web site currently at http://www.ins.gov/graphics/formsfee/forms/index.htm#waiver.

In addition to the filing fee for the Form I-914, applicants will have to submit the established fee for fingerprinting services for each person between the ages of 14 and 79 years inclusive with each application. This fee is currently $25 per person, and is not subject to a fee waiver. The Service has published a final rule to increase this amount to $50 per person, which takes effect February 19, 2002. See 66 FR 65811 (Dec. 21, 2001) (final rule adjusting fees for the Immigration Examinations Fee Account).

How Did the Service Arrive at the Fee Amount?

The Service arrived at the fee amount by comparing the process requirements of the new I-914 with existing adjudication procedures. The adjudication of the I-914 will be very similar to that of the I-360, Petition for a Special Immigrant. The application also will be used to generate an Employment Authorization Document (EAD), taking the place of a separate I-765, Application for Employment Authorization. The fee for the I-360 is $110, and the fee for the I-765 is $100. These fees are scheduled to be increased to $130 and $120 respectively on February 19, 2002. The sum of the two fees ($250) is reduced to $240 to reflect that only one form needs handling and tracking. Furthermore, there is no separate adjudication required for employment authorization for T principals, who are authorized to work incident to status. As a result, this fee has been further reduced to reflect saved adjudication expenses and to take into account that only the T principal's EAD is incident to status. Based on these calculations, the Service set the fee at $200. The addition of $50 for each additional person included on the form was based on a comparison of the I-914 process to the processing of Form I-687, Application for Status as Temporary Resident, which also requires an additional fee of $50 per additional person on the application. The Service conducts evaluations of the required fees every two years to ensure that they are fair and accurate. The fee charged for the Form I-914 will be reviewed periodically and adjusted, as appropriate.

May T-1 Applicants and Applicants for T Derivative Status Apply From a Foreign Country?

Applicants for T-1 status must be physically present in the United States at the time of application. However, the T-1 principal alien may apply to the Service for derivative T nonimmigrant status on behalf of immediate family members who are following to join the T-1 principal. The Service may approve applications for T-2, T-3, or T-4 status for eligible immediate family members if they are admissible to the United States and can meet the requirement to demonstrate extreme hardship. If the Service grants the application for derivative T nonimmigrant status for aliens who are currently abroad, the Service will notify the appropriate consular office and make arrangements for the issuance of the necessary visas for admission of those eligible family members.

Can Victims of a Severe Form of Trafficking in Persons That Occurred Prior to the Enactment of the TVPA Apply for a T Nonimmigrant Classification?

Yes. Victims of a severe form of trafficking in persons whose victimization occurred prior to enactment of the TVPA on October 28, 2000, may file a completed application. The Service recommends that victims file applications as soon as possible because delays could result in difficulty in establishing statutory eligibility requirements. Section 214.11(d)(4) of this rule provides that, if the victimization occurred prior to the enactment of the TVPA, the alien must file the application for T-1 status within one year of the effective date of this rule, except in exceptional circumstances or within one year after the victim reaches his or her 21st birthday, whichever comes later.

Does Applying for T Nonimmigrant Status Prevent the Applicant From Applying for Other Types of Immigration Benefits?

No. An alien may apply for any and all immigration benefits for which the alien may be eligible. However, an alien may not hold more than one nonimmigrant status at a time. Nothing in this regulation or in the TVPA limits a qualified applicant from seeking other immigration benefits while pursuing T status. In addition, aliens granted continued presence may be eligible to receive certain benefits and services authorized by section 107(b)(1) of the TVPA.

Can a Victim Who Is in Exclusion, Deportation, or Removal Proceedings Before an Immigration Judge or the Board of Immigration Appeals (Board) Apply for T Nonimmigrant Status?

Jurisdiction over all applications for T nonimmigrant status rests with the Service. However, a victim of a severe form of trafficking in persons who is currently in proceedings before an immigration judge or the Board may request Service counsel to consent to having the proceedings administratively closed (or that a motion to reopen or motion to reconsider be indefinitely continued) in order to allow the alien to pursue an application for T nonimmigrant status with the Service.

As noted above, in order to be eligible for T nonimmigrant status, the alien must demonstrate that he or she is admissible to the United States, or must obtain a waiver of inadmissibility from the Service. An application from an alien who is inadmissible on grounds other than under the circumstances specified in section 212(d)(13) of the INA will not be considered to be bona fide unless the Service has granted a waiver of those other grounds. Accordingly, the Service will consider consenting to the administrative closure of the immigration proceedings for the purpose of filing an application for T nonimmigrant status only if there is a good reason to believe that the alien will be able to satisfy the eligibility requirements for the T status, including admissibility. (The Service notes, however, that it may arrange for the continued presence in the United States of a victim of a severe form of trafficking in persons, pursuant to 28 CFR 1100.35, during such time as an LEA has requested the alien's presence in the United States for purposes of investigating and prosecuting acts of severe forms of trafficking in persons. The Service will not act to remove an alien from the United States until the law enforcement need for the alien's continued presence has come to an end or the alien has violated the terms of the continued presence.)

The Service also acknowledges that, in some cases, an alien who is in immigration proceedings may be able to file a bona fide application for T nonimmigrant status. With respect to the medical and public charge grounds of inadmissibility, and certain other grounds of inadmissibility that were caused by or are incident to the alien's victimization, section 212(d)(13) of the INA provides additional authority for the waiver of these grounds in the case of applicants for T nonimmigrant status. For example, a victim of a severe form of trafficking in persons who had been forced into prostitution may well be able to make a bona fide application for T-1 status even though the alien has been placed into removal proceedings on grounds relating to those prostitution activities.

With the concurrence of Service counsel, if the alien appears eligible for T nonimmigrant status, the immigration judge or the Board, whichever has jurisdiction, may administratively close the proceeding or continue a motion to reopen or motion to reconsider indefinitely. In the event the Service subsequently denies the alien's application for T nonimmigrant status, the Service will recommence proceedings that have been administratively closed by filing a motion to re-calendar with the Immigration Court or a motion to reinstate with the Board.

Can a Victim of Trafficking in Persons With a Final Order of Exclusion, Deportation, or Removal Apply for T Nonimmigrant Status?

An alien who is the subject of a final order is not precluded from filing an application for T nonimmigrant status directly with the Service. In order to be eligible, an applicant for T nonimmigrant status must be admissible to the United States, and the Service notes that few aliens who are the subject of a final order of exclusion, deportation or removal will be able to satisfy that requirement. Thus, in general, the filing of an application for T nonimmigrant status will have no effect on the status of an alien who is subject to a final order.

In those cases where the only basis for the final order of removal is one of the grounds of inadmissibility described in section 212(d)(13) of the INA, the alien may be able to file a meritorious application for T nonimmigrant status. If the Service determines, as provided in this rule, that an alien's application for T status meets the requirements for a bona fide application, the Service will automatically stay execution of the final order of deportation, exclusion, or removal. Such a stay remains in effect until a final decision is made on the T application. If the T application is denied, the stay of the final order is deemed lifted as of the date of such a denial, without regard to whether the alien appeals the denial. However, the alien may apply for a discretionary stay of removal from the Service as provided in § 241.6(a).

If the application for T nonimmigrant status is granted, the final order shall be deemed canceled by operation of law as of the date of the approval.

What Happens to Victims of Severe Forms of Trafficking in Persons Arriving at a Port of Entry Who Are Subject to Expedited Removal?

Expedited removal applies to an “arriving alien”, as defined in 8 CFR 1.1(q), when the alien is inadmissible pursuant to section 212(a)(6)(C) or 212(a)(7) of the INA. Current Service procedures protect and provide services to victims of a severe form of trafficking in persons when Federal law enforcement officials encounter such victims, including those aliens arriving at ports of entry. 28 CFR 1100.31. In addition, the Service is developing screening procedures to ensure that arriving aliens who are subject to the statutory provisions for expedited removal at ports of entry will, when applicable, be considered for T nonimmigrant status. An alien subject to expedited removal who expresses that he or she is a victim of a severe form of trafficking in persons will be interviewed by a Service officer immediately to determine whether there is reason to believe the individual is such a victim. Following such a determination, the victim will be referred to a District Office and will be interviewed by a Service officer responsible for investigating trafficking in persons within 7 days of arrival to determine whether the individual has a credible claim to victimization. The Service may inform an LEA that also investigates or prosecutes trafficking in persons about the individual's claim. If the alien has a credible claim to victimization, he or she will be given the opportunity to submit an application for T status pursuant to section 101(a)(15)(T) of the INA and any other benefit or protection for which they may be eligible. An arriving alien determined not to have a credible claim to being a victim of a severe form of trafficking in persons in the United States will be subject to expedited removal in accordance with Service policy.

Regulatory Procedures

Good Cause Exception

This interim rule is effective 30 days from the date of publication. The Service invites post-promulgation comments and will address any such comments in a final rule. The Department finds that good cause exists for adopting this rule without the prior notice and comment period ordinarily required by 5 U.S.C. 553(b), because, in light of the public safety implications of the rule, giving prior notice and opportunity for comment would be contrary to the public interest.

In passing the TVPA, Congress intended to create a broad range of tools to be used by the Federal government to combat the serious and immediate problem of trafficking in persons. The provisions of the TVPA address the effect of severe forms of trafficking in persons on victims, including many who may not have legal status and are reluctant to cooperate. In trafficking in persons situations, perpetrators often target individuals who are likely to be particularly vulnerable and unfamiliar with their surroundings. The TVPA strengthens the ability of government officials to investigate and prosecute trafficking in persons crimes by providing for temporary immigration benefits to victims of severe forms of trafficking in persons. This interim rule implements a legal nonimmigrant immigration status for eligible victims who have not refused any reasonable request to assist in the investigation or prosecution of a crime and can demonstrate that they would suffer extreme hardship involving severe and unusual harm if removed from the United States. Under section 107(b) of the TVPA, the filing of a bona fide application for T nonimmigrant status provides a basis to seek certification of the alien for purposes of eligibility for certain public benefits. In addition, this regulation provides certain victims with work authorization so that they may seek lawful employment. Without the prompt promulgation of this rule, victims of severe forms of trafficking in persons might continue to be victimized for fear of coming forward, thus hindering the ability of law enforcement to investigate and prosecute cases and preventing victims from obtaining critical assistance and benefits.

The issuance of these regulations as an interim rule effective 30 days after publication will allow victims to receive needed benefits and assistance as soon as possible. The 30-day delay in the effective date will provide a brief interim period in which forms, informational brochures, and other guidance will be made available to Federal, state, tribal and local law enforcement officers and officials as well as non-profit victims rights and services groups. Because prior notice and comment with respect to this interim rule is contrary to the public interest, given the public safety implications of this rule, there is “good cause” under 5 U.S.C. 553 to make this rule effective March 4, 2002.

Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Attorney General, by approving this regulation, certifies that this rule will not have a significant economic impact on a substantial number of small entities. The Attorney General has reviewed this regulation in light of its potential impact on small businesses. The businesses that would be most significantly affected by this rule would be those in which the illegal act of trafficking in persons contributed to, or composed the majority of, their workforce. The human rights and criminal issues associated with such trafficking in persons are seen as more significant than the impact on small businesses that are dependent on illegal or coerced labor in violation of United States law.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

This rule is considered by the Department of Justice to be a significant regulatory action under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review.

Paperwork Reduction Act

The information collection requirements contained in this rule have been cleared by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act. Clearance numbers for these collections are contained in 8 CFR 299.5, Display Control Numbers, and are noted herein. Form I-131, Application for Travel Document, OMB Control Number 1115-0062; Form I-192, Application for Advance Permission to Enter as Nonimmigrant, OMB Control Number 1115-0028; Form I-765, Application for Employment Authorization, OMB Control Number 1115-0163. In addition, one new Service form, Form I-914, Application for T Nonimmigrant Status, has received clearance from OMB and was assigned OMB Control Number 1115-0246.

Executive Order 13132

This rule will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects

8 CFR Part 103

• Administrative practice and procedure
• Authority delegations (Government agencies)
• Freedom of information
• Privacy
• Reporting and recordkeeping requirements
• Surety bonds

8 CFR Part 212

• Administrative practice and procedure
• Aliens
• Immigration
• Passports and visas
• Reporting and recordkeeping requirements

8 CFR Part 214

• Administrative practice and procedure
• Aliens
• Cultural exchange programs
• Employment
• Foreign officials
• Health professions
• Reporting and recordkeeping requirements
• Students
• Victims

8 CFR Part 274a

• Administrative practice and procedure
• Aliens
• Employment
• Penalties
• Reporting and recordkeeping requirements

8 CFR Part 299

• Immigration
• Reporting and recordkeeping requirements

Accordingly, chapter I of title 8 of the Code of Federal Regulations is amended as follows:

PART 103—POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF SERVICE RECORDS

1. The authority citation for part 103 continues to read as follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; E.O 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

2. Section 103.1 is amended by:

a. Revising paragraph (f)(3))(iii)(W);

b. Removing the word “and” at the end of paragraph (f)(3)(iii)(MM);

c. Removing the period at the end of paragraph (f)(3)(iii)(NN) and adding “; and” in its place; and by

d. Adding a new paragraph (f)(3)(iii)(OO) to read as follows:

3. Section 103.7(b)(1) is amended by adding, in proper alpha/numeric sequence, a new Form “I-914,” to read as follows:

PART 212—DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

4. The authority citation for part 212 continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 1226, 1227; 8 CFR part 2.

5. Section 212.1 is amended by revising paragraph (g) and adding a new paragraph (o), to read as follows:

6. Section 212.16 is added, to read as follows:

PART 214—NONIMMIGRANT CLASSES

7. The authority citation for part 214 is revised to read as follows:

Authority: 8 U.S.C. 1101, 1101 note, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282; Section 643 of Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; Section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 2.

8. Section 214.1 is amended by:

a. Removing the “and” at the end of paragraph (a)(1)(vi);

b. Removing the period at the end of paragraph (a)(1)(vii) and adding “;” in its place;

c. Adding paragraph (a)(1)(viii); and by

d. Adding in proper numeric/alphabetical sequence in paragraph (a)(2) the classification designations, to read as follows:

9. A new § 214.11 is added to read as follows:

PART 274a—CONTROL OF EMPLOYMENT OF ALIENS

10. The authority citation for section 274a continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

11. Section 274a.12 is amended by:

a. Revising the reference citation to “(a)(15)” to read “(a)(16)” in the second sentence in paragraph (a) introductory text;

b. Adding a new paragraph (a)(16); and by

c. Adding a new paragraph (c)(25), to read as follows:

PART 299—IMMIGRATION FORMS

12. The authority citation for part 299 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

13. Section 299.1 is amended by adding Form “I-914” to the table, in the proper alpha/numeric sequence; to read as follows:

14. Section 299.5 is amended in the table by adding Form “I-914” to the table, in proper alpha/numeric sequence, to read as follows:

Note:

Form I-914 is published for informational purposes only and will not be codified in Title 8 of the Code of Federal Regulations.