[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR214.11]



[Page 364-376]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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 365]]



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 366]]



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 367]]



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 368]]



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 369]]



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 370]]



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 371]]



    (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 372]]



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



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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



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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 375]]



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 376]]



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]