By Michael Ramage
General Counsel, Florida Department of Law Enforcement, Tallahassee, Florida
ccording to U.S. government estimates, 45,000 to 50,000 women and children are trafficked into the United States annually and are trapped in modern-day slavery-like situations such as forced prostitution.1 Local and state law enforcement officers engaged in addressing human trafficking crimes will likely encounter situations where key witnesses or victims of significant human trafficking criminal activities are not in the United States legally.
It is difficult to get those who are in the country illegally to cooperate in investigations and prosecutions. These victims and witnesses fear deportation or reprisals if they cooperate. The perpetrators of human trafficking know that the threat of deportation or reprisals is a powerful tool to intimidate and discourage potential witnesses against them.
But officers investigating human trafficking now have an option that can help overcome the fear and reluctance of victims and witnesses who are not in the United States legally. A new limited visa option, the T visa, now available under federal law, allows important witnesses or victims to remain in the United States to testify against human traffickers and their criminal enterprises.
New Visa Categories Designed to Protect Victims and Witnesses
New visa categories (S, T, and U visas) were created in 2000. They are the results of two separate laws, the Trafficking Victims Protection Act of 2000 (TVPA) and the Violence Against Women Act of 2000 (VAWA2), which passed Congress as The Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), public law 106-386. The S visa is an option available to some illegal aliens who provide significant assistance in the investigation and prosecution of major crimes or terrorism. The T visa relates to victims and witnesses in human trafficking prosecutions. The U visa is available to some crime victims who have suffered substantial physical or mental abuse from criminal activity and who agree to cooperate with government officials investigating or prosecuting this criminal activity.
According to the Department of Justice, victims of human trafficking, predominantly women and children, are trafficked into a wide variety of exploitative settings, including sex work, domestic servitude, and forced labor on farms and in factories. Under the TVPA, those convicted of trafficking offenses may receive up to 20 years in prison and, in some instances life sentences. The new statutes created by the TVPA are designed to reach the methods of coercion that traffickers often use to bind their victims in service, such as the seizure of immigration documents, psychological coercion, and trickery. Nevertheless, any successful prosecution will likely need the cooperation and testimony of some of those who have been victimized, and that is where the T visa is of value.
Section 107 of part A of the TVPA created a new T visa, a nonimmigrant category under the Immigration and Nationality Act (INA), section 101(a)(15)(T), for aliens who have been determined by the U.S. attorney general to be victims of a “severe form of trafficking in persons.” Section 103 defines a “severe form of trafficking in persons” as
(1) 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,
(2) 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.
The regulation addressing the new visa took effect in early 2002. There are 5,000 T visas available yearly, and, once granted, a T visa is good for three years. A Department of Justice regulation published January 31, 2002,2 describes in detail how an alien can qualify for T visa status under 101(a)(15)(T) of the INA.
How to Obtain a T Visa
To qualify for a T visa, the person must first be a victim, as designated by the secretary of homeland security. The victim must be physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or a U.S. port of entry because of such trafficking. If over the age of 18, the victim must also have complied with any reasonable request for assistance to law enforcement in the investigation or prosecution of acts of trafficking.
Form I-914, is used to apply for the T visa. Form I-914, supplement B, is to be completed by federal law enforcement officers for victims under the TVPA. A law enforcement officer must complete the form based upon his or her knowledge of the case, including evidence developed by other law enforcement officers investigating the case.
While supplement B is not mandated, its submission is “strongly encouraged” to establish a victim’s eligibility. T visa applicants are subject to all grounds of inadmissibility under federal law and can be denied the visa if there is substantial reason to believe that the alien has committed a severe form of trafficking in persons.
Additional Protections Offered by the T Visa
After three years in T status, victims of human trafficking may apply for permanent residency. In addition, subject to some limitations, the regulation allows victims to apply for nonimmigrant status for their spouses and children.
Victims under the age of 21 may apply for nonimmigrant status for their parents as well. Victims under the age of 15, who are likely to suffer extreme hardship involving unusual and severe harm upon removal from the United States, may also obtain T status. The attorney general may, in order to avoid extreme hardship, permit the spouse, children, and parents of an alien under age 21 and the spouse and children of an alien over age 21 to accompany or follow to join the principal alien.
The intent of the T visa is to provide temporary immigration benefits to aliens who are victims of severe forms of trafficking (principals) and to their immediate family members (derivatives), as appropriate. It promotes cooperation in investigations and prosecutions of human trafficking by victims and helps protect child victims of human trafficking who would otherwise be endangered if returned to their country of origin. At the same time, these liberal options to allow family members legal status in the United States could make the use of T visas ripe for corruption. Some may be inclined to try to characterize themselves as victims of human trafficking as a means of attempting to secure legal status for themselves or family members.
Potential Pitfalls Await State and Local Police Officers
Because the T visa is new, there is little in the way of precedent to guide law enforcement officers in their involvement with the visa. Nevertheless, it is already clear that there two things state and local police officers can do to avoid some kinds of impropriety.
Make no promises about the T visa to victims and witnesses. Any law enforcement officer considering the use of the visa should be careful in dealing with the potential victim or witness to make sure that what is heard is indeed what has been said. The victim or witness may assume that because the visa has been discussed, it will be granted. This is not the case. Some T visa applications may be refused for various reasons. Officers should make no assurance that the visa will be granted. An officer may end up being accused of promising the T visa and that apparent promise may then be characterized at trial as an improper inducement for the victim or witness’s testimony. Officers should make a record of what the victim or witness knows and can testify about before raising the subject of the visa. This would minimize the appearance of inducement.
Notify federal immigration authorities early. If a local officer fails to contact U.S. Immigration and Customs Enforcement (ICE) after becoming aware that the victim or witness is in the country illegally, the officer might later be accused of knowingly promoting the illegal presence of the victim or witness by failing to notify ICE of the victim or witness’s illegal status. This could be characterized as an impropriety by the defense. Having ICE interview the victim or witness and formally consider the request for the T visa may help defuse this potential allegation.
In Spite of Risks, T Visa Valuable to Investigators
The T visa is a two-edged sword. It could help prosecute major criminals, but at the same time it acknowledges that the victim or witness’s illegal status is known. An officer cannot seek the protections offered by the T visa without also acknowledging that he or she knows that the beneficiary of the visa is an illegal alien.
Nevertheless, the T visa is a valuable option to state and local officers who, working with federal authorities, are investigating or prosecuting organized human trafficking enterprises. The visa can help overcome the fear and reluctance of victims and witnesses who are in the country illegally but who are also essential to a successful investigative effort and prosecution.
Law enforcement officers who wish to help victims of human trafficking apply for the T visa can download an application (I-914) form from the U.S. Citizenship and Immigration Services (USCIS) Web site at www.uscis. gov or can obtain a form by calling the USCIS Forms Request Line at 800-870-3676. There is an application base fee of $270, plus $120 for each immediate family member filed on the same application, to a maximum fee of $540 per application. A $70 per person biometrics fee may also be required.
1 U.S. Department of Justice, “Department of Justice Issues T Visa To Protect Women, Children, and All Victims of Human Trafficking,” press release, January 24, 2002.
2 67 C.F.R. 4784.