Immigration Help for Adult Victims of Trafficking and Abuse

Human trafficking is a broad term that encompasses a wide range of criminal activity and abuse, the common denominator of which is the movement of people from one nation to another for the purpose of exploitation. While sexual exploitation remains the most common form of human trafficking, with an alarming number of women and girls each year being forced into prostitution, a significant percentage of this crime involves forced labor, which is less widely detected and remains underreported.

In many parts of the globe, such as the Arab world and Africa, human trafficking is considered a normal part of the economy, with scant government interference for the most heinous crimes against women and children. Unfortunately, physical and emotional abuse is often part and parcel of human trafficking.

Immigration assistance for trafficking and abuse victims in the U.S.

In October 2000, Congress created the “T” nonimmigrant status by passing the Victims of Trafficking and Violence Protection Act (VTVPA). The legislation strengthens the ability of law enforcement agencies to investigate and prosecute human trafficking, and also offer protection to victims. The T nonimmigrant visa allows victims to remain legally in the United States to assist federal authorities in the investigation and prosecution of human trafficking cases. 

You may be eligible for a T visa if you:

• Are or were a victim of trafficking, as defined by law
• Are in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking
• Comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (or you are under the age of 18, or you are unable to cooperate due to physical or psychological trauma)
• Demonstrate that you would suffer extreme hardship involving unusual and severe harm if you were removed from the United States
• Are admissible to the United States. If not admissible, you may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant

The term ‘trafficking’ is defined under federal law as two categories, but could be found in varying cases, depending on each person’s individual set of circumstances:

• Sex trafficking:  recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act where the commercial sex act is induced by force, fraud, or coercion, or the person being induced to perform such act is less than 18 years of age.
• Labor trafficking: 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 involuntary servitude, peonage, debt bondage, or slavery.

The benefit of being accorded a T visa status is that it allows you and your family to remain in the United States legally and obtain Employment Authorization Cards.  Additionally, after 3 years, you and your family would become eligible to apply for a green card in NY, if that is your state of your residence. It is extremely important to consult with a New York City immigration law attorney to find out if you are eligible to apply for a T visa.  It is not advisable to undertake this process on your own, as it can become complicated and could potentially hurt your immigration case.  As always be on the lookout for notaries/notarios posing as attorneys.  These people are not allowed to practice law and often end up taking advantage of the unsuspecting people who trust them.  Always ask the person if they are a New York immigration attorney, their id number and verify online if they are, in fact, a deportation lawyer in New York City, in a database of New York State Unified Court System.

Violence Against Women Act (VAWA)

In addition to the U visa and the T visa, which is open to victims of violent crimes who agree to assist law enforcement in investigating or prosecuting crimes, trafficking victims may also avail themselves of self-petitions under the Violence Against Women Act (VAWA). Generally, the circumstances in which victims find themselves dictate the status for which they should apply.

Unfortunately, the U and T visas availability is limited by an annual cap, which sets the maximum number of beneficiaries at 10,000 and 5,000 per year respectively. Frequently, the cap is met, leaving applicants to wait for the upcoming year, at which time their assistance may no longer be helpful to law enforcement. Conversely, there are no limits on VAWA self-petitions, for which abused and battered spouses may be eligible, regardless of their gender, if they are or were married to U.S. citizens and meet a number of other criteria including demonstrating “good moral character.” The VAWA provisions in the INA allow certain spouses, children, and parents of U.S. citizens and permanent residents to file a petition for themselves, without the abuser’s knowledge. This allows victims to seek both safety and independence from their abuser, who is not notified about the filing.

You may be eligible to file a VAWA self petition (also known as Form I-360) if you are:

• Married to a U.S. citizen or permanent resident or your marriage ended two years prior to filing this petition AND
• You have been abused in the United States by your U.S. citizen or permanent resident spouse OR
• You are the parent of a child who has been subjected to abuse by your U.S. citizen or permanent spouse OR
• If you are a widow of a deceased U.S. citizen OR
• In some other cases of special immigrants

Along with Form I-360 and the requisite filing fee, you are required to present evidence proving your marriage to the U.S. citizen or LPR, and the abuse that was sustained during the marriage.  You may be asked to appear for an interview by U.S. Citizenship and Immigration Services.  It is recommended that you find an immigration lawyer to represent you in these proceedings and even in filing the application itself, as the process may become confusing and difficult to navigate.   If USCIS feels that the documents you provided are missing or inadequate you may be asked to provide additional evidence corroborating your marriage and the abuse you experienced.  It is recommended to hire an experienced deportation lawyer who is familiar with the process of filing this petition and the green card process would be able to help in responding to the additional documents required by USCIS.

If your VAWA petition is approved, you will receive a green card in the U.S. even if you had overstayed your visa or accrued unlawful presence.

To learn more about visas available to victims of trafficking and abuse, as well as other aspects of immigration law, contact Bretz & Coven, LLP.