[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR214.11]

[Page 366-378]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
      CHAPTER I--DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND 
                             NATURALIZATION)
 
PART 214_NONIMMIGRANT CLASSES--Table of Contents
 
Sec.  214.11  Alien victims of severe forms of trafficking in persons.

    (a) Definitions. The Service shall apply the following definitions 
as provided in sections 103 and 107(e) of the Trafficking Victims 
Protection Act (TVPA) 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:
    Bona fide application means an application for T-1 nonimmigrant 
status as to which, after initial review, the Service has determined 
that there appears to be no instance of fraud in the application, the 
application is complete, properly filed, contains an LEA endorsement or 
credible secondary evidence, includes completed fingerprint and 
background checks, and presents prima facie evidence to show eligibility 
for T nonimmigrant status, including admissibility.
    Child means a person described as such in section 101(b)(1) of the 
Act.
    Coercion means threats of serious harm to or physical restraint 
against any person; any scheme, plan, or pattern intended to cause a 
person to believe that failure to perform an act would result in serious 
harm to or physical restraint against any person; or the abuse or 
threatened abuse of the legal process.
    Commercial sex act means any sex act on account of which anything of 
value is given to or received by any person.
    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.
    Immediate family member means the spouse or a child of a victim of a 
severe form of trafficking in persons, and, in the case of a victim of a 
severe form of trafficking in persons who is under 21 years of age, a 
parent of the victim.
    Involuntary servitude means a condition of servitude induced by 
means of any scheme, plan, or pattern intended to cause a person to 
believe that, if the person did not enter into or continue in such 
condition, that person or another person would suffer serious harm or 
physical restraint; or the abuse or threatened abuse of legal process. 
Accordingly, involuntary servitude includes ``a condition of servitude 
in which the victim is forced to work for the defendant by the use or 
threat of physical restraint or physical injury, or by the use or threat 
of coercion through law or the legal process. This definition 
encompasses those cases in which the defendant holds the victim in 
servitude by placing the victim in fear of such physical restraint or 
injury or legal coercion.'' (United States v. Kozminski, 487 U.S. 931, 
952 (1988)).
    Law Enforcement Agency (LEA) means any Federal law enforcement 
agency that has the responsibility and authority for the detection, 
investigation, or prosecution of severe forms of trafficking in persons. 
LEAs include the following components of the Department of Justice: the 
United States Attorneys' Offices, the Civil Rights and Criminal 
Divisions, the Federal Bureau of Investigation (FBI), the Immigration 
and Naturalization Service (Service), and the United States Marshals 
Service. The Diplomatic Security Service, Department of State, also is 
an LEA.
    Law Enforcement Agency (LEA) endorsement means Supplement B, 
Declaration of Law Enforcement Officer for Victim of Trafficking in 
Persons of Form I-914, Application for T Nonimmigrant Status.
    Peonage means a status or condition of involuntary servitude based 
upon real or alleged indebtedness.
    Reasonable request for assistance means a reasonable request made by 
a law enforcement officer or prosecutor to a victim of a severe form of 
trafficking in persons to assist law enforcement authorities in the 
investigation or prosecution of the acts of trafficking in persons. The 
``reasonableness'' of the

[[Page 367]]

request depends on the totality of the circumstances taking into account 
general law enforcement and prosecutorial 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.
    Severe forms of trafficking in persons means sex trafficking in 
which a commercial sex act is induced by force, fraud, or coercion, or 
in which the person induced to perform such act has not attained 18 
years of age; or 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.
    Sex trafficking means the recruitment, harboring, transportation, 
provision, or obtaining of a person for the purpose of a commercial sex 
act.
    TVPA means the Trafficking Victims Protection Act of 2000, Division 
A of the VTVPA, Pub. L. 106-386.
    United States means the continental United States, Alaska, Hawaii, 
Puerto Rico, Guam, and the United States Virgin Islands.
    Victim of a severe form of trafficking in persons means an alien who 
is or has been subject to a severe form of trafficking in persons, as 
defined in section 103 of the VTVPA and in this section.
    VTVPA means the Victims of Trafficking and Violence Protection Act 
of 2000, Pub. L. 106-386.
    (b) Eligibility. Under section 101(a)(15)(T)(i) of the Act, and 
subject to section 214(n) of the Act, the Service may classify an alien, 
if otherwise admissible, as a T-1 nonimmigrant if the alien demonstrates 
that he or she:
    (1) Is or has been a victim of a severe form of trafficking in 
persons;
    (2) 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) Either:
    (i) Has complied with any reasonable request for assistance in the 
investigation or prosecution of acts of such trafficking in persons, or
    (ii) Is less than 15 years of age; and
    (4) Would suffer extreme hardship involving unusual and severe harm 
upon removal, as described in paragraph (i) of this section.
    (c) Aliens ineligible for T nonimmigrant status. No alien, otherwise 
admissible, shall be eligible to receive a T nonimmigrant status under 
section 101(a)(15)(T) of the Act if there is substantial reason to 
believe that the alien has committed an act of a severe form of 
trafficking in persons.
    (d) Application procedures for T status--(1) Filing an application. 
An applicant seeking T nonimmigrant status shall submit, by mail, a 
complete application package containing Form I-914, Application for T 
Nonimmigrant Status, along with all necessary supporting documentation, 
to the Service.
    (2) Contents of the application package. In addition to Form I-914, 
an application package must include the following:
    (i) The proper fee for Form I-914 as provided in Sec.  103.7(b)(1) 
of this chapter, or an application for a fee waiver as provided in Sec.  
103.7(c) of this chapter;
    (ii) Three current photographs;
    (iii) The fingerprint fee as provided in Sec.  103.7(b)(1) of this 
chapter;
    (iv) Evidence demonstrating that the applicant is a victim of a 
severe form of trafficking in persons as set forth in paragraph (f) of 
this section;
    (v) Evidence that the alien is physically present in the United 
States on account of a severe form of trafficking in persons as set 
forth in paragraph (g) of this section;
    (vi) Evidence that the applicant has complied with any reasonable 
request for assistance in the investigation or prosecution of acts of 
severe forms of trafficking in persons, as set forth in paragraph (h) of 
this section, or has not attained 15 years of age; and
    (vii) Evidence that the applicant would suffer extreme hardship 
involving unusual and severe harm if he or she were removed from the 
United States, as set forth in paragraph (i) of this section.
    (3) Evidentiary standards. The applicant may submit any credible 
evidence relevant to the essential elements of the T nonimmigrant 
status. Original documents or copies may be submitted as set forth in 
Sec.  103.2(b)(4) and (b)(5) of

[[Page 368]]

this chapter. Any document containing text in a foreign language shall 
be submitted in accordance with Sec.  103.2(b)(3) of this chapter.
    (4) Filing deadline in cases in which victimization occurred prior 
to October 28, 2000. Victims of a severe form of trafficking in persons 
whose victimization occurred prior to October 28, 2000 must file a 
completed application within one (1) year of January 31, 2002 in order 
to be eligible to receive T-1 nonimmigrant status. If the victimization 
occurred prior to October 28, 2000, an alien who was a child at the time 
he or she was a victim of a severe form of trafficking in persons must 
file a T status application within one (1) year of his or her 21st 
birthday, or one (1) year of January 31, 2002, whichever is later. For 
purposes of determining the filing deadline, an act of severe form of 
trafficking in persons will be deemed to have occurred on the last day 
in which an act constituting an element of a severe form of trafficking 
in persons, as defined in paragraph (a) of this section, occurred. If 
the applicant misses the deadline, he or she must show that exceptional 
circumstances prevented him or her from filing in a timely manner. 
Exceptional circumstances may include severe trauma, either 
psychological or physical, that prevented the victim from applying 
within the allotted time.
    (5) Fingerprint procedure. All applicants for T nonimmigrant status 
must be fingerprinted for the purpose of conducting a criminal 
background check in accordance with the process and procedures described 
in Sec.  103.2(e) of this chapter. After submitting an application with 
fee to the Service, the applicant will be notified of the proper time 
and location to appear for fingerprinting.
    (6) Personal interview. After the filing of an application for T 
nonimmigrant status, the Service may require an applicant to participate 
in a personal interview. The necessity of an interview is to be 
determined solely by the Service. All interviews will be conducted in 
person at a Service-designated location. Every effort will be made to 
schedule the interview in a location convenient to the applicant.
    (7) Failure to appear for an interview or failure to follow 
fingerprinting requirements.(i) Failure to appear for a scheduled 
interview without prior authorization or to comply with fingerprint 
processing requirements may result in the denial of the application.
    (ii) Failure to appear shall be excused if the notice of the 
interview or fingerprint appointment was not mailed to the applicant's 
current address and such address had been provided to the Service unless 
the Service determines that the applicant received reasonable notice of 
the appointment. The applicant must notify the Service of any change of 
address in accordance with Sec.  265.1 of this chapter prior to the date 
on which the notice of the interview or fingerprint appointment was 
mailed to the applicant.
    (iii) Failure to appear at the interview or fingerprint appointment 
may be excused, at the discretion of the Service, if the applicant 
promptly contacts the Service and demonstrates that such failure to 
appear was the result of exceptional circumstances.
    (8) Aliens in pending immigration proceedings. Individuals who 
believe they are victims of severe forms of trafficking in persons and 
who are in pending immigration proceedings must inform the Service if 
they intend to apply for T nonimmigrant status under this section. With 
the concurrence of Service counsel, a victim of a severe form of 
trafficking in persons in proceedings before an immigration judge or the 
Board of Immigration Appeals (Board) may request that the proceedings be 
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. If the 
alien appears eligible for T nonimmigrant status, the immigration judge 
or the Board, whichever has jurisdiction, may grant such a request to 
administratively close the proceeding or continue a motion to reopen or 
motion to reconsider indefinitely. In the event the Service finds an 
alien ineligible for T-1 nonimmigrant status, the Service may recommence 
proceedings that have been

[[Page 369]]

administratively closed by filing a motion to re-calendar with the 
immigration court or a motion to reinstate with the Board. If the alien 
is in Service custody pending the completion of immigration proceedings, 
the Service may continue to detain the alien until a decision has been 
rendered on the application. An alien who is in custody and requests 
bond or a bond redetermination will be governed by the provisions of 
part 236 of this chapter.
    (9) T applicants with final orders of exclusion, deportation or 
removal. An alien who is the subject of a final order is not precluded 
from filing an application for T-1 nonimmigrant status directly with the 
Service. The filing of an application for T nonimmigrant status has no 
effect on the Service's execution of a final order, although the alien 
may file a request for stay of removal pursuant to Sec.  241.6(a) of 
this chapter. However, if the Service subsequently determines, under the 
procedures of this section, that the application is bona fide, the 
Service will automatically stay execution of the final order of 
deportation, exclusion, or removal, and the stay will remain in effect 
until a final decision is made on the T-1 application. The time during 
which such a stay is in effect shall not be counted in determining the 
reasonableness of the duration of the alien's continued detention under 
the standards of Sec.  241.4 of this chapter. If the T-1 application is 
denied, the stay of the final order is deemed lifted as of the date of 
such denial, without regard to whether the alien appeals the decision. 
If the Service grants an application for T nonimmigrant status, the 
final order shall be deemed canceled by operation of law as of the date 
of the approval.
    (e) Dissemination of information. In appropriate cases, and in 
accordance with Department of Justice policies, the Service shall make 
information from applications for T-1 nonimmigrant status available to 
other Law Enforcement Agencies (LEAs) with the authority to detect, 
investigate, or prosecute severe forms of trafficking in persons. The 
Service shall coordinate with the appropriate Department of Justice 
component responsible for prosecution in all cases where there is a 
current or impending prosecution of any defendants who may be charged 
with severe forms of trafficking in persons crimes in connection with 
the victimization of the applicant to ensure that the Department of 
Justice component responsible for prosecution has access to all witness 
statements provided by the applicant in connection with the application 
for T-1 nonimmigrant status, and any other documents needed to 
facilitate investigation or prosecution of such severe forms of 
trafficking in persons offenses.
    (f) Evidence demonstrating that the applicant is a victim of a 
severe form of trafficking in persons. The applicant must submit 
evidence that fully establishes eligibility for each element of the T 
nonimmigrant status to the satisfaction of the Attorney General. First, 
an alien must demonstrate that he or she is a victim of a severe form of 
trafficking in persons. The applicant may satisfy this requirement 
either by submitting an LEA endorsement, by demonstrating that the 
Service previously has arranged for the alien's continued presence under 
28 CFR 1100.35, or by submitting sufficient credible secondary evidence, 
describing the nature and scope of any force, fraud, or coercion used 
against the victim (this showing is not necessary if the person induced 
to perform a commercial sex act is under the age of 18). An application 
must contain a statement by the applicant describing the facts of his or 
her victimization. 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.
    (1) Law Enforcement Agency endorsement. An LEA endorsement is not 
required. However, if provided, it must be submitted by an appropriate 
law enforcement official on Supplement B, Declaration of Law Enforcement 
Officer for Victim of Trafficking in Persons, of Form I-914. The LEA 
endorsement must be filled out completely in accordance with the 
instructions contained on the form and must attach the results of any 
name or database inquiry performed. In order to provide persuasive 
evidence, the LEA endorsement must contain a description of the 
victimization upon which the application is based (including the dates 
the

[[Page 370]]

severe forms of trafficking in persons and victimization occurred), and 
be signed by a supervising official responsible for the investigation or 
prosecution of severe forms of trafficking in persons. The LEA 
endorsement must address whether the victim had been recruited, 
harbored, transported, provided, or obtained specifically for either 
labor or services, or for the purposes of a commercial sex act. The 
traffickers must have used force, fraud, or coercion to make the victim 
engage in the intended labor or services, or (for those 18 or older) the 
intended commercial sex act. The situations involving labor or services 
must rise to the level of involuntary servitude, peonage, debt bondage, 
or slavery. The decision of whether or not to complete an LEA 
endorsement for an applicant shall be at the discretion of the LEA.
    (2) Primary evidence of victim status. The Service will consider an 
LEA endorsement as primary evidence that the applicant has been the 
victim of a severe form of trafficking in persons provided that the 
details contained in the endorsement meet the definition of a severe 
form of trafficking in persons under this section. In the alternative, 
documentation from the Service granting the applicant continued presence 
in accordance with 28 CFR 1100.35 will be considered as primary evidence 
that the applicant has been the victim of a severe form of trafficking 
in persons, unless the Service has revoked the continued presence based 
on a determination that the applicant is not a victim of a severe form 
of trafficking in persons.
    (3) Secondary evidence of victim status; Affidavits. Credible 
secondary evidence and affidavits may be submitted to explain the 
nonexistence or unavailability of the primary evidence and to otherwise 
establish the requirement that the applicant be a victim of a severe 
form of trafficking in persons. The secondary evidence must include an 
original statement by the applicant indicating that he or she is a 
victim of a severe form of trafficking in persons; credible evidence of 
victimization and cooperation, describing what the alien has done to 
report the crime to an LEA; and a statement indicating whether similar 
records for the time and place of the crime are available. The statement 
or evidence should demonstrate that good faith attempts were made to 
obtain the LEA endorsement, including what efforts the applicant 
undertook to accomplish these attempts. Applicants are encouraged to 
provide and document all credible evidence, because there is no 
guarantee that a particular piece of evidence will result in a finding 
that the applicant was a victim of a severe form of trafficking in 
persons. If the applicant does not submit an LEA endorsement, the 
Service will proceed with the adjudication based on the secondary 
evidence and affidavits submitted. A non-exhaustive list of secondary 
evidence includes trial transcripts, court documents, police reports, 
news articles, and copies of reimbursement forms for travel to and from 
court. In addition, applicants may also submit their own affidavit and 
the affidavits of other witnesses. The determination of what evidence is 
credible and the weight to be given that evidence shall be within the 
sole discretion of the Service.
    (4) Obtaining an LEA endorsement. A victim of a severe form of 
trafficking in persons who does not have an LEA endorsement should 
contact the LEA to which the alien has provided assistance to request an 
endorsement. If the applicant has not had contact with an LEA regarding 
the acts of severe forms of trafficking in persons, the applicant should 
promptly contact the nearest Service or Federal Bureau of Investigation 
(FBI) field office or U.S. Attorneys' Office to file a complaint, assist 
in the investigation or prosecution of acts of severe forms of 
trafficking in persons, and request an LEA endorsement. If the applicant 
was recently liberated from the trafficking in persons situation, the 
applicant should ask the LEA for an endorsement. Alternatively, the 
applicant may contact the Department of Justice, Civil Rights Division, 
Trafficking in Persons and Worker Exploitation Task Force complaint 
hotline at 1-888-428-7581 to file a complaint and be referred to an LEA.
    (g) Physical presence on account of trafficking in persons. The 
applicant must establish that he or she is physically present in the 
United States,

[[Page 371]]

American Samoa, or the Commonwealth of the Northern Mariana Islands, or 
at a port-of-entry thereto on account of such trafficking, and that he 
or she is a victim of a severe form of trafficking in persons that forms 
the basis for the application. Specifically, the physical presence 
requirement reaches an alien who: is present because he or she is being 
subjected to a severe form of trafficking in persons; was recently 
liberated from a severe form of trafficking in persons; or was subject 
to severe forms of trafficking in persons at some point in the past and 
whose continuing presence in the United States is directly related to 
the original trafficking in persons.
    (1) In general. The evidence and statements included with the 
application must state the date and place (if known) and the manner and 
purpose (if known) for which the applicant entered the United States, 
American Samoa, or the Commonwealth of the Northern Mariana Islands, or 
a port-of-entry thereto, and demonstrate that the applicant is present 
now on account of the applicant's victimization as described in 
paragraph (f) of this section and section 101(a)(15)(T)(i)(I) of the 
Act.
    (2) Opportunity to depart. If the alien has escaped the traffickers 
before law enforcement became involved in the matter, he or she must 
show that he or she 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, such as trauma, injury, lack of resources, or travel 
documents that have been seized by the traffickers. 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 presented to determine the physical presence requirement, 
including asking the alien to answer questions on Form I-914, about when 
he or she escaped from the trafficker, what activities he or she has 
undertaken since that time, including the steps he or she may have taken 
to deal with the consequences of having been trafficked, and the 
applicant's ability to leave the United States.
    (3) Departure from the United States. An alien who has voluntarily 
left (or has been removed from) the United States at any time after the 
act of a severe form of trafficking in persons shall be deemed not to be 
present in the United States as a result of such trafficking in persons 
unless the alien's reentry into the United States was the result of the 
continued victimization of the alien or a new incident of a severe form 
of trafficking in persons described in section 101(a)(15)(T)(i)(I) of 
the Act.
    (h) Compliance with reasonable requests from a law enforcement 
agency for assistance in the investigation or prosecution. Except as 
provided in paragraph (h)(3) of this section, the applicant must submit 
evidence that fully establishes that he or she has complied with any 
reasonable request for assistance in the investigation or prosecution of 
acts of severe forms of trafficking in persons. As provided in paragraph 
(h)(3) of this section, if the victim of a severe form of trafficking in 
persons is under age 15, he or she is not required to comply with any 
reasonable request for assistance in order to be eligible for T 
nonimmigrant status, but may cooperate at his or her discretion.
    (1) Primary evidence of compliance with law enforcement requests. An 
LEA endorsement describing the assistance provided by the applicant is 
not required evidence. However, if an LEA endorsement is provided as set 
forth in paragraph (f)(1) of this section, it will be considered primary 
evidence that the applicant has complied with any reasonable request in 
the investigation or prosecution of the severe form of trafficking in 
persons of which the applicant was a victim. If the Service has reason 
to believe that the applicant has not complied with any reasonable 
request for assistance by the endorsing LEA or other LEAs, the Service 
will contact the LEA and both the Service and the LEA will take all 
practical steps to reach a resolution acceptable to both agencies. The 
Service may, at its discretion, interview the alien regarding the 
evidence for and against the compliance, and allow the alien to

[[Page 372]]

submit additional evidence of such compliance. If the Service determines 
that the alien has not complied with any reasonable request for 
assistance, then the application will be denied, and any approved 
application based on the LEA endorsement will be revoked pursuant to 
this section.
    (2) Secondary evidence of compliance with law enforcement requests; 
Affidavits. Credible secondary evidence and affidavits may be submitted 
to show the nonexistence or unavailability of the primary evidence and 
to otherwise establish the requirement that the applicant comply with 
any reasonable request for assistance in the investigation or 
prosecution of that severe form of trafficking in persons. The secondary 
evidence must include an original statement by the applicant that 
indicates the reason the LEA endorsement does not exist or is 
unavailable, and whether similar records documenting any assistance 
provided by the applicant are available. The statement or evidence must 
show that an LEA that has responsibility and authority for the 
detection, investigation, or prosecution of severe forms of trafficking 
in persons has information about such trafficking in persons, that the 
victim has complied with any reasonable request for assistance in the 
investigation or prosecution of such acts of trafficking, and, if the 
victim did not report the crime at the time, why the crime was not 
previously reported. The statement or evidence should demonstrate that 
good faith attempts were made to obtain the LEA endorsement, including 
what efforts the applicant undertook to accomplish these attempts. In 
addition, applicants may also submit their own affidavit and the 
affidavits of other witnesses. The determination of what evidence is 
credible and the weight to be given that evidence shall be within the 
sole discretion of the Service. Applicants are encouraged to describe 
and document all applicable factors, since there is no guarantee that a 
particular reason will result in a finding that the applicant has 
complied with reasonable requests. An applicant who never has had 
contact with an LEA regarding the acts of severe forms of trafficking in 
persons will not be eligible for T-1 nonimmigrant status.
    (3) Exception for applicants under the age of 15. Applicants under 
the age of 15 are not required to demonstrate compliance with the 
requirement of any reasonable request for assistance in the 
investigation and prosecution of acts of severe forms of trafficking in 
persons. Applicants under the age of 15 must provide evidence of their 
age. Primary evidence that a victim of a severe form of trafficking in 
persons has not yet reached the age of 15 would be an official copy of 
the alien's birth certificate, a passport, or a certified medical 
opinion. Secondary evidence regarding the age of the applicant also may 
be submitted in accordance with Sec.  103.2(b)(2)(i) of this chapter. An 
applicant under the age of 15 still must provide evidence demonstrating 
that he or she satisfies the other necessary requirements, including 
that he or she is the victim of a severe form of trafficking in persons 
and faces extreme hardship involving unusual and severe harm if removed 
from the United States.
    (i) Evidence of extreme hardship involving unusual and severe harm 
upon removal. To be eligible for T-1 nonimmigrant status under section 
101(a)(15)(T)(i) of the Act, an applicant must demonstrate that removal 
from the United States would subject the applicant to extreme hardship 
involving unusual and severe harm.
    (1) Standard. Extreme hardship involving unusual and severe harm is 
a higher standard than that of extreme hardship as described in Sec.  
240.58 of this chapter. A finding of extreme hardship involving unusual 
and severe harm may not be based upon current or future economic 
detriment, or the lack of, or disruption to, social or economic 
opportunities. Factors that may be considered in evaluating whether 
removal would result in extreme hardship involving unusual and severe 
harm should take into account both traditional extreme hardship factors 
and those factors associated with having been a victim of a severe form 
of trafficking in persons. These factors include, but are not limited 
to, the following:
    (i) The age and personal circumstances of the applicant;

[[Page 373]]

    (ii) Serious physical or mental illness of the applicant that 
necessitates medical or psychological attention not reasonably available 
in the foreign country;
    (iii) The nature and extent of the physical and psychological 
consequences of severe forms of trafficking in persons;
    (iv) The impact of the loss of access to the United States courts 
and the criminal justice system for purposes relating to the incident of 
severe forms of trafficking in persons or other crimes perpetrated 
against the applicant, including criminal and civil redress for acts of 
trafficking in persons, criminal prosecution, restitution, and 
protection;
    (v) The reasonable expectation that the existence of laws, social 
practices, or customs in the foreign country to which the applicant 
would be returned would penalize the applicant severely for having been 
the victim of a severe form of trafficking in persons;
    (vi) The likelihood of re-victimization and the need, ability, or 
willingness of foreign authorities to protect the applicant;
    (vii) The likelihood that the trafficker in persons or others acting 
on behalf of the trafficker in the foreign country would severely harm 
the applicant; and
    (viii) The likelihood that the applicant's individual safety would 
be seriously threatened by the existence of civil unrest or armed 
conflict as demonstrated by the designation of Temporary Protected 
Status, under section 244 of the Act, or the granting of other relevant 
protections.
    (2) Evidence. An applicant is encouraged to describe and document 
all factors that may be relevant to his or her case, since there is no 
guarantee that a particular reason or reasons will result in a finding 
that removal would cause extreme hardship involving unusual and severe 
harm to the applicant. Hardship to persons other than the alien victim 
of a severe form of trafficking in persons cannot be considered in 
determining whether an applicant would suffer extreme hardship involving 
unusual and severe harm.
    (3) Evaluation. The Service will evaluate on a case-by-case basis, 
after a review of the evidence, whether the applicant has demonstrated 
extreme hardship involving unusual or severe harm. The Service will 
consider all credible evidence submitted regarding the nature and scope 
of the hardship should the applicant be removed from the United States, 
including evidence of hardship arising from circumstances surrounding 
the victimization as described in section 101(a)(15)(T)(i)(I) of the Act 
and any other circumstances. In appropriate cases, the Service may 
consider evidence from relevant country condition reports and any other 
public or private sources of information. The determination that extreme 
hardship involving unusual or severe harm to the alien exists is to be 
made solely by the Service.
    (j) Waiver of grounds of inadmissibility. An application for a 
waiver of inadmissibility under section 212(d)(13) or section 212(d)(3) 
of the Act must be filed in accordance with Sec.  212.16 of this 
chapter, and submitted to the Service with the completed application 
package.
    (k) Bona fide application for T-1 nonimmigrant status--(1) Criteria. 
Once an application is submitted to the Service, the Service will 
conduct an initial review to determine if the application is a bona fide 
application for T nonimmigrant status. An application shall be 
determined to be bona fide if, after initial review, it is properly 
filed, there appears to be no instance of fraud in the application, the 
application is complete (including the LEA endorsement or other 
secondary evidence), the application presents prima facie evidence of 
each element to show eligibility for T-1 nonimmigrant status, and the 
Service has completed the necessary fingerprinting and criminal 
background checks. If an alien is inadmissible under section 212(a) of 
the Act, the application will not be deemed to be bona fide unless the 
only grounds of inadmissibility are those under the circumstances 
described in section 212(d)(13) of the Act, or unless the Service has 
granted a waiver of inadmissibility on any other grounds. All waivers 
are discretionary and require a request for a waiver. Under section 
212(d)(13), an application can be bona fide before the waiver is 
granted. This

[[Page 374]]

is not the case under other grounds of inadmissibility.
    (2) Determination by the Service. An application for T-1 status 
under this section will not be treated as a bona fide application until 
the Service has provided the notice described in paragraph (k)(3) of 
this section. In the event that an application is incomplete, the 
Service will request the additional information as provided in Sec.  
103.2(b)(8) of this chapter. If the application is complete, but does 
not present sufficient evidence to establish prima facie eligibility for 
each required element of T nonimmigrant status, the Service will 
adjudicate the application on the basis of the evidence presented, in 
accordance with the procedures of this section.
    (3) Notice to alien. Once an application is determined to be a bona 
fide application for a T-1 nonimmigrant status, the Service will provide 
written confirmation to the applicant.
    (4) Stay of final order of exclusion, deportation, or removal. A 
determination by the Service that an application for T-1 nonimmigrant 
status is bona fide automatically stays the execution of any final order 
of exclusion, deportation, or removal. This stay shall remain in effect 
until there is a final decision on the T application. The filing of an 
application for T nonimmigrant status does not stay the execution of a 
final order unless the Service has determined that the application is 
bona fide. Neither an immigration judge nor the Board of Immigration 
Appeals (Board) has jurisdiction to adjudicate an application for a stay 
of execution, deportation, or removal order, on the basis of the filing 
of an application for T nonimmigrant status.
    (l) Review and decision on applications--(1) De novo review. The 
Service shall conduct a de novo review of all evidence submitted and is 
not bound by its previous factual determinations as to any essential 
elements of the T nonimmigrant status application. Evidence previously 
submitted for this and other immigration benefits or relief may be used 
by the Service in evaluating the eligibility of an applicant for T 
nonimmigrant status. However, the Service will not be bound by its 
previous factual determinations as to any essential elements of the T 
classification. The Service will determine, in its sole discretion, the 
evidentiary value of previously or concurrently submitted evidence.
    (2) Burden of proof. At all stages of the processing of an 
application for any benefits under T nonimmigrant status, the burden 
shall be on the applicant to present to the Service evidence that fully 
establishes eligibility for the desired benefit.
    (3) Decision. After completing its review of the application, the 
Service shall issue a written decision granting or denying the 
application. If the Service determines that the applicant has met the 
requirements for T-1 nonimmigrant status, the Service shall grant the 
application, subject to the annual limitation as provided in paragraph 
(m) of this section. Along with the approval, the Service will include a 
list of nongovernmental organizations to which the applicant can refer 
regarding the alien's options while in the United States and resources 
available to the alien.
    (4) Work authorization. When the Service grants an application for 
T-1 nonimmigrant status, the Service will provide the alien with an 
Employment Authorization Document incident to that status, which shall 
extend concurrently with the duration of the alien's T-1 nonimmigrant 
status.
    (m) Annual cap. In accordance with section 214(n)(2) of the Act, the 
total number of principal aliens issued T-1 nonimmigrant status may not 
exceed 5,000 in any fiscal year.
    (1) Issuance of T-1 nonimmigrant status. Once the cap is reached in 
any fiscal year, the Service will continue to review and consider 
applications in the order they are received. The Service will determine 
if the applicants are eligible for T-1 nonimmigrant status, but will not 
issue T-1 nonimmigrant status at that time. The revocation of an alien's 
T-1 status will have no effect on the annual cap.
    (2) Waiting list. All eligible applicants who, due solely to the 
cap, are not granted T-1 nonimmigrant status shall be placed on a 
waiting list and will receive notice of such placement. While on the 
waiting list, the applicant shall maintain his or her current means to

[[Page 375]]

prevent removal (deferred action, parole, or stay of removal) and any 
employment authorization, subject to any limits imposed on that 
authorization. Priority on the waiting list is determined by the date 
the application was properly filed, with the oldest applications 
receiving the highest priority. As new classifications become available 
in subsequent years, the Service will issue them to applicants on the 
waiting list, in the order in which the applications were properly 
filed, providing the applicant remains admissible. The Service may 
require new fingerprint and criminal history checks before issuing an 
approval. After T-1 nonimmigrant status has been issued to qualifying 
applicants on the waiting list, any remaining T-1 nonimmigrant numbers 
will be issued to new qualifying applicants in the order that the 
applications were properly filed.
    (n) [Reserved]
    (o) Admission of the T-1 applicant's immediate family members--(1) 
Eligibility. Subject to section 214(n) of the Act, an alien who has 
applied for or been granted T-1 nonimmigrant status may apply for 
admission of an immediate family member, who is otherwise admissible to 
the United States, in a T-2 (spouse) or T-3 (child) derivative status 
(and, in the case of a T-1 principal applicant who is a child, a T-4 
(parent) derivative status), if accompanying or following to join the 
principal alien. The applicant must submit evidence sufficient to 
demonstrate that:
    (i) The alien for whom T-2, T-3, or T-4 status is being sought is an 
immediate family member of a T-1 nonimmigrant, as defined in paragraph 
(a) of this section, and is otherwise eligible for that status; and
    (ii) The immediate family member or the T-1 principal would suffer 
extreme hardship, as described in paragraph (o)(5) of this section, if 
the immediate family member was not allowed to accompany or follow to 
join the principal T-1 nonimmigrant.
    (2) Filing procedures. A T-1 principal may apply for T-2, T-3, or T-
4 nonimmigrant status for an immediate family member by submitting Form 
I-914 and all necessary documentation by mail, including Supplement A, 
to the Service. The application for derivative T nonimmigrant status for 
eligible family members can be filed on the same application as the T-1 
application, or in a separate application filed at a subsequent time.
    (3) Contents of the application package for an immediate family 
member. In addition to Form I-914, an application for T-2, T-3, or T-4 
nonimmigrant status must include the following:
    (i) The proper fee for Form I-914 as provided in Sec.  103.7(b)(1) 
of this chapter, or an application for a fee waiver as provided in Sec.  
103.7(c) of this chapter;
    (ii) Three current photographs;
    (iii) The fingerprint fee as provided in Sec.  103.2(e) of this 
chapter for each immediate family member;
    (iv) Evidence demonstrating the relationship of an immediate family 
member, as provided in paragraph (o)(4) of this section; and
    (v) Evidence demonstrating extreme hardship as provided in paragraph 
(o)(5) of this section.
    (4) Relationship. The relationship must exist at the time the 
application for the T-1 nonimmigrant status was filed, and must continue 
to exist at the time of the application for T-2, T-3, or T-4 status and 
at the time of the immediate family member's subsequent admission to the 
United States. If the T-1 principal alien proves that he or she became 
the parent of a child after the T-1 nonimmigrant status was filed, the 
child shall be eligible to accompany or follow to join the T-1 
principal.
    (5) Evidence demonstrating extreme hardship for immediate family 
members. The application must demonstrate that each alien for whom T-2, 
T-3, or T-4 status is being sought, or the principal T-1 applicant, 
would suffer extreme hardship if the immediate family member was not 
admitted to the United States or was removed from the United States (if 
already present). When the immediate family members are following to 
join the principal, the extreme hardship must be substantially different 
than the hardship generally experienced by other residents of their 
country of origin who are not victims of a severe form of trafficking in 
persons. The Service will consider all credible evidence of extreme 
hardship to the T-1 recipient or the individual

[[Page 376]]

immediate family members. The determination of the extreme hardship 
claim will be evaluated on a case-by-case basis, in accordance with the 
factors outlined in Sec.  240.58 of this chapter. Applicants are 
encouraged to raise and document all applicable factors, since there is 
no guarantee that a particular reason or reasons will result in a 
finding of extreme hardship if the applicant is not allowed to enter or 
remain in the United States. In addition to these factors, other factors 
that may be considered in evaluating extreme hardship include, but are 
not limited to, the following:
    (i) The need to provide financial support to the principal alien;
    (ii) The need for family support for a principal alien; or
    (iii) The risk of serious harm, particularly bodily harm, to an 
immediate family member from the perpetrators of the severe forms of 
trafficking in persons.
    (6) Fingerprinting; interviews. The provisions for fingerprinting 
and interviews in paragraphs (c)(5) through (c)(7) of this section also 
are applicable to applications for immediate family members.
    (7) Admissibility. If an alien is inadmissible, an application for a 
waiver of inadmissibility under section 212(d)(13) or section 212(d)(3) 
of the Act must be filed in accordance with Sec.  212.16 of this 
chapter, and submitted to the Service with the completed application 
package.
    (8) Review and decision. After reviewing the application under the 
standards of paragraph (l) of this section, the Service shall issue a 
written decision granting or denying the application for T-2, T-3, or T-
4 status.
    (9) Derivative grants. Individuals who are granted T-2, T-3, or T-4 
nonimmigrant status are not subject to an annual cap. Applications for 
T-2, T-3, or T-4 nonimmigrant status will not be granted until a T-1 
status has been issued to the related principal alien.
    (10) Employment authorization. An alien granted T-2, T-3, or T-4 
nonimmigrant status may apply for employment authorization by filing 
Form I-765, Application for Employment Authorization, with the 
appropriate fee or an application for fee waiver, in accordance with the 
instructions on, or attached to, that form. For derivatives in the 
United States, the Form I-765 may be filed concurrently with the filing 
of the application for T-2, T-3, or T-4 status or at any time 
thereafter. If the application for employment authorization is approved, 
the T-2, T-3, or T-4 alien will be granted employment authorization 
pursuant to Sec.  274a.12(c)(25) of this chapter. Employment 
authorization will last for the length of the duration of the T-1 
nonimmigrant status.
    (11) Aliens outside the United States. When the Service approves an 
application for a qualifying immediate family member who is outside the 
United States, the Service will notify the T-1 principal alien of such 
approval on Form I-797, Notice of Action. Form I-914, Supplement A, 
Supplemental Application for Immediate Family Members of T-1 Recipient, 
must be forwarded to the Department of State for delivery to the 
American Embassy or Consulate having jurisdiction over the area in which 
the T-1 recipient's qualifying immediate family member is located. The 
supplemental form may be used by a consular officer in determining the 
alien's eligibility for a T-2, T-3, or T-4 visa, as appropriate.
    (p) Duration of T nonimmigrant status--(1) In general. An approved T 
nonimmigrant status shall expire after 3 years from the date of 
approval. The status is not renewable. 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. The applicant shall immediately 
notify the Service of any changes in the applicant's circumstances that 
may affect eligibility under section 101(a)(15)(T)(i) of the Act and 
this section.
    (2) Information pertaining to adjustment of status. The Service 
shall further notify the alien of the requirement that the T alien apply 
for adjustment of status within the 90 days immediately preceding the 
third anniversary of the alien's having been approved such nonimmigrant 
status, and that the failure to apply for adjustment of status as set 
forth in section 245(l) of

[[Page 377]]

the Act will result in termination of the alien's T nonimmigrant status 
in the United States at the end of the 3-year period. 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, including employment 
authorization, provided to a person possessing such status until such 
time as a final decision is rendered on the alien's application for 
adjustment of status.
    (q) De novo review. The Service shall conduct a de novo review of 
all evidence submitted at all stages in the adjudication of an 
application for T nonimmigrant status. Evidence previously submitted for 
this and other immigration benefits or relief may be used by the Service 
in evaluating the eligibility of an applicant for T nonimmigrant status. 
However, the Service will not be bound by its previous factual 
determinations as to any essential elements of the T classification. The 
Service will determine, in its sole discretion, the evidentiary value of 
previously or concurrently submitted evidence.
    (r) Denial of application. Upon denial of any T application, the 
Service shall notify the applicant, any LEA providing an LEA 
endorsement, and the Department of Health and Human Service's Office of 
Refugee Resettlement in writing of the decision and the reasons for the 
denial in accordance with Sec.  103.3 of this chapter. Upon denial of an 
application for T nonimmigrant status, any benefits derived as a result 
of having filed a bona fide application will automatically be revoked 
when the denial becomes final. If an applicant chooses to appeal the 
denial pursuant to the provisions of Sec.  103.3 of this chapter, the 
denial will not become final until the appeal is adjudicated.
    (s) Revocation of approved T nonimmigrant status. The alien shall 
immediately notify the Service of any changes in the terms and 
conditions of an alien's circumstances that may affect eligibility under 
section 101(a)(15)(T) of the Act and this section.
    (1) Grounds for notice of intent to revoke. The Service shall send 
to the T nonimmigrant a notice of intent to revoke the status in 
relevant part if it is determined that:
    (i) The T nonimmigrant violated the requirements of section 
101(a)(15)(T) of the Act or this section;
    (ii) The approval of the application violated this section or 
involved error in preparation procedure or adjudication that affects the 
outcome;
    (iii) In the case of a T-2 spouse, the alien's divorce from the T-1 
principal alien has become final;
    (iv) In the case of a T-1 principal alien, an LEA with jurisdiction 
to detect or investigate the acts of severe forms of trafficking in 
persons by which the alien was victimized notifies the Service that the 
alien has unreasonably refused to cooperate with the investigation or 
prosecution of the trafficking in persons and provides the Service with 
a detailed explanation of its assertions in writing; or
    (v) The LEA providing the LEA endorsement withdraws its endorsement 
or disavows the statements made therein and notifies the Service with a 
detailed explanation of its assertions in writing.
    (2) Notice of intent to revoke and consideration of evidence. A 
district director may revoke the approval of a T nonimmigrant status at 
any time, even after the validity of the status has expired. The notice 
of intent to revoke shall be in writing and shall contain a detailed 
statement of the grounds for the revocation and the time period allowed 
for the T nonimmigrant's rebuttal. The alien may submit evidence in 
rebuttal within 30 days of the date of the notice. The director shall 
consider all relevant evidence presented in deciding whether to revoke 
approval of the T nonimmigrant status. The determination of what is 
relevant evidence and the weight to be given to that evidence shall be 
within the sole discretion of the director.
    (3) Revocation of T nonimmigrant status. If, upon reconsideration, 
the approval previously granted is revoked, the director shall provide 
the alien

[[Page 378]]

with a written notification of the decision that explains the specific 
reasons for the revocation. The director also shall notify the LEA that 
supplied an endorsement to the alien, any consular officer having 
jurisdiction over the applicant, and HHS's Office of Refugee 
Resettlement.
    (4) Appeal of a revocation of approval. The alien may appeal the 
decision to revoke the approval within 15 days after the service of 
notice of the revocation. All appeals of a revocation of approval will 
be processed and adjudicated in accordance with Sec.  103.3 of this 
chapter.
    (5) Effect of revocation of T-1 status. In the event that a 
principal alien's T-1 nonimmigrant status is revoked, all T nonimmigrant 
status holders deriving status from the revoked status automatically 
shall have that status revoked. In the case where a T-2, T-3, or T-4 
application is still awaiting adjudication, it shall be denied. The 
revocation of an alien's T-1 status will have no effect on the annual 
cap as described in paragraph (m) of this section.
    (t) Removal proceedings without revocation. Nothing in this section 
shall prohibit the Service from instituting removal proceedings under 
section 240 of the Act for conduct committed after admission, or for 
conduct or a condition that was not disclosed to the Service prior to 
the granting of nonimmigrant status under section 101(a)(15)(T) of the 
Act, including the misrepresentation of material facts in the 
applicant's application for T nonimmigrant status.
    (u) [Reserved]
    (v) Service officer referral. Any Service officer who receives a 
request from an alien seeking protection as a victim of a severe form of 
trafficking in persons or seeking information regarding T nonimmigrant 
status shall follow the procedures for protecting and providing services 
to victims of severe forms of trafficking outlined in 28 CFR 1100.31. 
Aliens believed to be victims of a severe form of trafficking in persons 
shall be referred to the local Service office with responsibility for 
investigations relating to victims of severe forms of trafficking in 
persons for a consultation within 7 days. The local Service office may, 
in turn, refer the victim to another LEA with responsibility for 
investigating or prosecuting severe forms of trafficking in persons. 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 Act and any other benefit or protection for 
which he or she may be eligible. An alien determined not to have a 
credible claim to being a victim of a severe form of trafficking in 
persons and who is subject to removal will be removed in accordance with 
Service policy.

[67 FR 4795, Jan. 31, 2002]