T & U VISAS: Victims of Trafficking & Violence

U Visas:  Immigration Relief for Survivors of Domestic Violence and Other Crimes

Immigrant victims of certain crimes who have been helpful in a criminal investigation or prosecution may qualify for a visa that can lead to a green card. 

VAWA: Immigration Relief for Survivors of Domestic Violence and Other Crimes

VAWA allows an abused spouse or child of a U.S. Citizen or Lawful Permanent Resident or an abused parent of a U.S. Citizen to self-petition for lawful status in the United States, receive employment authorization, and access public benefits. VAWA provides domestic violence survivors (male or female) with the means that are essential to escaping violence and establishing safe, independent lives. 

T Visa: Immigration Relief for Survivors of Sex or Labor Trafficking

Human trafficking survivors may be eligible for lawful status, employment authorization, and a potential path to permanent residency, but they are a unique population with diverse and resource-intensive needs.

 Both T & U visas provide the ability for principal applicants to apply for derivative visas for certain qualifying family members. In addition, T and U visa holders (and their derivative family members) may apply to adjust their status in the U.S. to Permanent Resident Status (a.k.a. ‘Green Card’ status).  

In 1994, Congress passed the Violence Against Women Act (VAWA), creating special routes to immigration status for certain battered foreigners.  Among the basic requirements for eligibility, a battered foreigner must be the spouse or child of an abusive U.S. citizen or permanent resident. 

Through a self-petitioning process, the battered spouse/child may apply for immigration status without the knowledge or involvement of the abuser. Derivative status is available to certain children and parents of the principal immigrant. 

• Extensive evidence must be gathered including evidence of battery / abuse / extreme cruelty and proof of the qualifying relationship to the abuser.  
• Immigrants who can establish the basic requirements will be given a “prima facie” determination and then be eligible for certain public benefits.
• Once the VAWA petition is approved, the immigrant is granted deferred action status in most cases. Deferred action means that removal, or deportation, proceedings will not be initiated. Applicants are also eligible for work authorization upon approval of their VAWA petition.
• Immigrants are classified into categories based on a preference system. 
• Self-petitioners who are immediate relatives of U.S. Citizens (spouses, parents, unmarried children under the age of 21) are eligible to adjust status to a lawful permanent resident status when their VAWA petition is approved. 
• Spouses and children of lawful permanent residents must wait for an immigrant visa to become available for their category.  

• T Visa:   Immigration Relief for Survivors of Sex or Labor Trafficking  In order to qualify for a T visa, an individual must be present in the U.S. as a result of human trafficking. An individual must have traveled to the U.S. because he/she was recruited, forced, abducted, or deceived by the perpetrator of human trafficking and would not have been present in the U.S. if it were not for the actions of that person.It is not necessary to demonstrate the individual “knew” that he/she would be subjected to prostitution or slavery (or any other goal of human trafficking) upon his/her arrival. For example, if an individual was persuaded to come to the U.S. under false pretenses and later discovered the real goal was exploitation of cheap or unpaid labor, he/she in the U.S. as a result of human trafficking. 
• U Visa:  This differs from the qualification criteria for applicants for a U visa, who may have visited the U.S. on holiday (or for any another purpose) and then have been subjected to human trafficking or another qualifying crime.  

Human trafficking under U.S. law is defined based on the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. 

The elements of the crime fall into three categories:

1. Process: recruitment, transportation, transferring, harboring, or receiving of a person.
2. Ways and Means: threat, coercion, abduction, fraud, deceit, deception, or abuse of power.
3. Goal: prostitution, pornography, violence and sexual exploitation, forced labor, involuntary servitude, debt bondage, or slavery.

Adult victims of human trafficking must prove that the crime involved at least one element from each of the above three. 

Child victims of human trafficking need only show an element from the Process and Goal categories.  For example, an adult woman who was promised a job as a housekeeper and a U.S. work visa once she arrived in the U.S. and instead she is deprived of her passport and forced to work for minimal compensation would qualify as a victim of human trafficking. She was recruited and received into the U.S. by fraud, deception, and abuse of power with the goal of forced labor and involuntary servitude.  A child who was brought to the U.S. by a parent to model in sexually explicit photographs would also qualify. The child was transported to the U.S. for child pornography.  

 U visa applicants are required to cooperate to a greater extant than T visa applicants.  Both must abide a reasonable request to cooperate with law enforcement officials who are investigating and prosecuting the human trafficking crime.

Unlike the U visa, T visa applicants do not need to obtain a “Certification of Helpfulness” from a qualifying agency. Instead, they are strongly encouraged to obtain a declaration from a law enforcement officer as primary evidence that they are victims of a human trafficking crime. 

 Certain T visa applicants will not need to cooperate with law enforcement at all. 

An applicant may be exempt from this cooperation requirement if he/she is:

• A minor child (under 18 years old), or
• Unable to cooperate due to physical or psychological trauma.

•  U visa applicants must prove that they suffered “substantial physical or mental abuse” as a result of the qualifying crime. 
• T visa applicants do not need to provide documentation of physical or mental abuse (though this evidence is helpful to build a convincing case). However, T visa applicants will need to show “extreme hardship involving unusual and extreme harm” if they were forced to leave the U.S. 

In order to prove extreme hardship, an applicant should demonstrate:

• Medical needs (due to the trafficking crime or for other reasons) that  cannot be met in the home country because of a lack of medical or psychological services
• Home country’s government will not protect the applicant from further harm or prosecute the trafficking offenders
• He/she would be stigmatized in the home country as a result of being a trafficking victim (for example, if you were identified as a female victim of sex trafficking, you would be unable to obtain employment or get married or may be vulnerable to further victimization), and/or
• Any other factors particular to your case. 

•  There is a limit of 10,000 U visas principal beneficiaries and a cap of 5,000 T visas.   Dependents are not included in the numerical limit. 
• Dependents include a spouse, children, parents, & siblings under the age of 18 at the time of the application, if the applicant is under the age of twenty-one.  If an applicant is over the age of twenty-one, dependents include spouses and children.  
• Unlike many other types of visas, USCIS will continue to accept applications for U and T visas even after it has reached the statutory cap for a given year.  
• However, USCIS will not be able to grant a U or a T visa to a successful applicant until a visa becomes available. 
• In the event that an applicant successfully makes his/her case for a U or T visa but there is no visa currently available due to the statutory cap, USCIS will provide the applicant with a letter expressing an intent to grant a U or T visa and will permit the applicant to file for work authorization while the applicant waits for a U or T visa to become available.  

To be eligible for interim relief, an individual must show:

• The immigrant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity
• The immigrant possesses information concerning that criminal activity
• The immigrant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution the criminal activity
• The criminal activity described violated the laws of the United States or occurred in the United States.
• Moreover, an individual must be a victim of certain crimes. The Immigration and Nationality Act lists the following crimes: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law.