Present Yet Unprotected Uscis's Misinterpretation of the T Visa's Physical Presence Requirement and Failure to Protect Trafficking Survivors

• Publication year: 2021

Corie O'Rourke, Cory Sagduyu, and Katherine Soltis^*

Abstract: U.S. Citizenship and Immigration Services (USCIS) has failed to protect trafficking survivors applying for T nonimmigrant status by changing its interpretation of the T visa's "physical presence" requirement. The article reviews the history of the Trafficking Victims Protection Act (TVPA), which Congress passed to provide humanitarian protection to foreign-born trafficking survivors and encourage them to cooperate with law enforcement, and T visa regulatory requirements. The authors conclude that USCIS's recent interpretation of the physical presence requirement conflicts with the TVPA's statutory history and existing T visa regulations. Further, USCIS's misinterpretation of the physical presence requirement combined with other policies enacted by the Trump administration has curtailed protections for trafficking survivors, and the authors advocate for a reversal of these changes under the Biden administration.

Introduction

The Trump administration enacted sweeping changes making it harder for foreign-born trafficking survivors to obtain legal status in the United States and discouraging trafficking survivors from reporting crimes. One such change involved a sudden and abrupt shift in the U.S. Citizenship and Immigration Services's (USCIS) interpretation of the "physical presence" requirement of the T visa, a nonimmigrant visa that provides legal status to foreign-born human trafficking survivors.

Under the Trafficking Victims Protection Act (TVPA) and federal regulations, applicants for T visas must prove not only that they are victims of trafficking, but also that they are "physically present in the United States . . . on account of such trafficking,"¹ among other requirements. Prior to the Trump administration, USCIS interpreted the "physical presence" requirement broadly and generally found that trafficking survivors satisfied this requirement so long as the applicants had been subjected to trafficking in the United States in the past and had not left the United States since escaping or being liberated from their traffickers. However, under the Trump administration, USCIS changed its interpretation of the physical presence requirement with no public announcement or warning. The agency began denying T visa applications if more than a few years had passed since the applicant had escaped the traffickers before applying for a T visa, despite the absence of any explicit T visa filing deadline in the TVPA or federal regulations.

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One case illustrates the impact of this narrow interpretation of the physical presence requirement. Anita² fled gender-based violence in her home country of Honduras in 2000 and sought protection in the United States. She worked as a waitress in a restaurant from 10 a.m. until 2 a.m. without breaks and was only paid with tips. The manager of the restaurant was physically, verbally, and psychologically abusive. Anita was barred from leaving the restaurant for any reason, and her every move was monitored throughout the day. Anita's manager threatened to call the police and have her deported if she did not obey him. New to the United States, Anita did not know anyone outside of the restaurant, could not speak English, and was terrified. Anita escaped the constant abuse of her employers with the help of a customer in 2001.

For the next 16 years, Anita scraped together a living while struggling with the lasting mental and physical effects of having been subjected to labor trafficking. Anita had never heard the term "human trafficking," and, even though she sought assistance from two immigration lawyers, she was not identified as a trafficking survivor³ for many years. She lived in constant fear of being deported by immigration officials. She struggled with post-traumatic stress disorder (PTSD), depression, and anxiety, but had not previously heard of these illnesses and was unaware of available mental health services.

In 2017 Anita sought legal assistance at Ayuda, an organization that provides immigration legal representation in the Washington, DC, metropolitan area, and was identified as a labor trafficking survivor.⁴ That same year, Anita reported her traffickers to the police, participated in an investigation, and sought protection from USCIS by applying for a T visa. However, while Anita's T visa application was pending, USCIS began narrowing its interpretation of the physical presence requirement and denying relief to applicants who did not come forward for several years after the trafficking occurred. USCIS denied Anita's application, leaving her undocumented, at risk of being put in removal proceedings, and vulnerable to future abuse and exploitation.

USCIS's change in interpretation has affected trafficking survivors nationwide. Appeals to the Administrative Appeals Office (AAO) involving the physical presence requirement rose sharply⁵ following this change in interpretation, amounting to nearly one-half of all T visa appeals in 2020. Additionally, there is at least one recent federal court case contesting USCIS's changed interpretation of the physical presence requirement, claiming it constitutes an unlawful interpretation of regulations.⁶

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Despite the drastic impact of this change, little has been written about it. This article aims to create awareness of USCIS's harmful misinterpretation of the physical presence requirement and advocate for USCIS, and the Department of Homeland Security (DHS) more broadly, to realign its interpretation of the physical presence requirement with the federal regulations and the TVPA. First, this article will provide background on the TVPA, which created the T visa to protect foreign-born trafficking survivors and encourage their cooperation with law enforcement. Second, drawing from extensive experience representing T visa applicants and an analysis of AAO decisions, the article will demonstrate how USCIS has been interpreting the physical presence requirement in a way that is contrary to the plain language of the regulations and conflicts with the intent of the TVPA. Third, the article will describe how, in tandem with other policies implemented under the Trump administration, USCIS's change in interpretation has curtailed protections for trafficking survivors and hindered law enforcement's ability to investigate and prosecute trafficking cases.⁷ Finally, the article will explain that, despite a handful of promising nonprecedential AAO decisions regarding this requirement, appealing to the AAO is not a viable or realistic option for most trafficking survivors. As a result of these legal hurdles, trafficking survivors nationwide are frequently being denied protection or are discouraged from applying for protection in the first place.

Background of the TVPA and T Visa

In 2000, Congress created the T visa as part of the TVPA, a comprehensive piece of bipartisan legislation that sought to fight sex and labor trafficking both in the United States and abroad.⁸ The TVPA was passed on the heels of and mirrored the primary international legal protection against trafficking, The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children [hereinafter, Palermo Protocol],⁹ which was adopted by the United Nations in 2000 and entered into force in 2003.¹⁰ Both the TVPA and the Palermo Protocol adopted a three-pronged approach (often called the "3 P approach") to fight trafficking: prosecution of traffickers, protection of victims, and prevention of trafficking.¹¹ In line with this three-pronged approach, the main provisions of the TVPA and its subsequent reauthoriza-tions include: increased criminal penalties for traffickers,¹² financial assistance and case management services for survivors from the Department of Health and Human Services (HHS),¹³ the creation of the T visa as an immigration remedy for foreign-born trafficking survivors, and a private right of action for trafficking survivors.¹⁴

The creation of the T visa was a crucial part of Congress's strategy to encourage cooperation between foreign-born trafficking survivors and law enforcement agencies (LEAs). Congress recognized that foreign-born individuals were vulnerable to trafficking due to their unfamiliarity with U.S. laws, inability to speak English, and isolation; however, because of their fear of immigration enforcement, foreign-born trafficking survivors often feared reporting to LEAs and seeking critical assistance when they were victimized.¹⁵ In response to this problem, Congress created the T visa as a legal remedy to provide legal status to trafficking survivors who cooperate with LEAs.¹⁶

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The T visa provides four years of nonimmigrant status and a path to permanent residency for the principal trafficking survivor and certain family members. To be eligible for a T visa, the applicant must demonstrate that he or she: (1) was a victim of a "severe form of trafficking," as defined in the TVPA, which includes both sex and labor trafficking;¹⁷ (2) is physically present in the United States on account of trafficking; (3) has not unreasonably refused to cooperate with an LEA, with limited exceptions; and (4) would "suffer extreme hardship involving unusual and severe harm upon removal."¹⁸ The TVPA defines a "severe form of trafficking" as:

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.¹⁹

Subsequent reauthorizations of the TVPA have consistently expanded the group of potential applicants eligible for T nonimmigrant status.²⁰ The TVPA places an annual cap of 5,000 visas per year—a cap that has never been...