Episode 5: Immigration Options for Victims of Violence and Trafficking
Hello and welcome to The Listening Lawyers! I am Trisha and I’m here with Dawn. Today we are going to be talking about immigration options for people who have been the victims of violence. Between the various laws, there are now four types of immigration statuses which are related to violence and trafficking: T, U, VAWA and Special Immigrant Juvenile. This episode will deal with all but Special Immigrant Juvenile status.
So let’s start with T visas. Dawn, who qualifies for a T visa?
Anyone who has been a victim of a “severe form of trafficking” would qualify to apply for a T-visa. And while that sounds simple, there is a lot of analysis involved in determining if a client’s experience qualifies under federal as a “severe” form of trafficking. Luckily, the law has spelled it out pretty clearly for us. There are two forms of trafficking that the federal government has labeled as “severe”: sex trafficking and labor trafficking. The law actually defines each of those forms of trafficking for us.
Sex trafficking: When someone recruits, harbors, transports, provides, solicits, patronizes, or obtains 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 under 18 years of age; or
Labor trafficking: When someone recruits, harbors, transports, provides, or obtains 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.
Now, based on those definitions, at first glance it probably seems like very few people would actually be victims of this extreme form of trafficking. However, in my experience, many people are victims of severe human trafficking without even realizing it. For example, a commercial sex act is not necessarily prostitution. If a sex act is requested in exchange for a raise at work, or extra vacation days, or for some other financial benefit – maybe the trafficker is a family member or spouse and says he or she will kick out the victim if they do not perform – housing is an economic benefit. With labor trafficking, the same thought process applies. A boss who consistently shorts his employee’s paychecks and then threatens to call ICE if they report or quit their jobs could qualify as labor trafficking. Obviously each case has its own specific information and no 2 experiences are identical, so it’s really important to talk with an experienced immigration attorney if you or someone you know may have experienced one of these forms of severe human trafficking.
What are the benefits of applying for a T visa?
A T visa is a temporary immigration benefit that allows the victim to live and work lawfully in the United States for up to 4 years. In addition, the principal applicant, or the person who experienced trafficking, can also include his or her immediate family as derivatives of that application – allowing for a spouse and children to also live and work in the US legally during those 4 years. Now, the really exciting thing is that those who obtain a T visa are eligible to apply for lawful permanent residence once they have had that visa for 3 years OR when the investigation or prosecution of the trafficking crime is completed – whichever happens earlier. That means that if the investigation ends after one year with a T visa, the victim is immediately eligible to apply for permanent residence without having to wait the entire 3 years.
Ok, so let’s say someone qualifies. How do they apply?
The very first step would be to consult with a knowledgeable immigration attorney. These cases can be very complex, so its important to have someone at your side who knows what he or she is doing. The basic process looks like this:
Report the trafficking to the appropriate law enforcement or government agency.
Complete and file a T-visa application with all the necessary supporting evidence.
Wait for a response….. and wait, and wait, and wait.
There is an annual cap to how many T-visas can be given out each year, and that cap currently sits at 5000 total visas. As with most visas that have a cap, there is a waiting period for approved applications to actual receive a visa – even if you are found to qualify you must wait until one of those 5,000 visas becomes available to you.
There are only 5000 visas available? What happens to the people who apply but don’t get visas?
Those people who are approvable but do not have a visa available to them are placed on a wait list until there is a visa available. While this does not provide any immediate status or work authorization, the wait list does give priority to approvable applications in the following cap year over new filings. Additionally, if a person has been waitlisted there may be some other temporary forms of relief that they can apply for as they wait; such as deferred action, parole, or a stay of removal – which is basically a promise from the government that they will not be deported as long as they behave themselves based on each specific situation and immigration history.
So how long does it take to get status?
As of today, February 10, 2021 the USCIS website is listing 19-29 months as the processing time for a T visa application, and does not provide any information regarding the specific wait time or how many applications are currently wait-listed. The processing times fluctuate greatly depending on how many new applications are filed at any given time, the number of employees USCIS decides to dedicate to processing T-visa applications, and the priorities determined by the administration so it’s really impossible to estimate exactly how much time it will take to obtain a T-visa from the time you apply. It’s safe to plan for over 2 years – but that could change at any time.
So now we know what happens to victims of trafficking, Trisha, do you want to talk about what happens to people who are victims of other types of crimes?
Sure! So U visas are for people who have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity, they have information regarding the criminal activity, they have been, are being, or are likely to be helpful in the investigation or prosecution of the criminal activity and the activity happened in the United States. So let’s break this down. First and foremost, there are certain types of crimes which qualify. It doesn’t necessarily have to be these specific crimes, but it has to be similar to these activities. Some of the crimes include abduction, blackmail, domestic violence, extortion, felonious assault, female genital mutilation, kidnapping, murder, prostitution, rape, sexual assault, sexual exploitation, stalking, torture.
Next, the person has to be a victim of the criminal activity. You can’t just be a witness on the side of a road to a kidnapping who is perfectly fine and can go about your day. No, you have to be the person kidnapped, or be a witness and have a heart attack for example. You have to be a victim. There is the option to be an indirect victim, such as a family member of a person who is murdered, since what we’re looking for is someone who has a direct and proximate harm caused to them.
How do you apply?
You submit a form I-918 to USCIS along with a waiver for inadmissibility if you have any, called the form I-192. This form includes a signed statement describing what happened to make the person a victim, evidence of the abuse or mental abuse if there is any such as photos, and a document from a certifying agency saying that the person has been, is being, or will likely be helpful to the certifying agency.
What’s a certifying agency?
A certifying agency can either be a law enforcement agency, a judge, or other authority involved in the investigation or prosecution of the criminal activity.
So how long does it take to get status?
. I’ve seen attorneys talking about cases filed in 2015 that are finally, in 2021, getting visas. The problem is that there are, just like T visas, a limit on how many can be given out each year. There are only 10,000 U visas available.
What are the benefits for applying for a U-visa?
U-status allows people who have been here unlawfully, or lawfully, to stay in the United States and work for up to four years. A spouse and children can also get what is called derivative status too and will be allowed to stay and work in the United States. The best benefit, though, is the ability to apply to get a green card and become a permanent resident. This is an additional process which requires showing additional elements, but well worth the effort.
Now, I know the U visa can help victims of domestic violence, but as I mentioned, there’s a really long wait. That’s where VAWA can really make a difference, right Dawn?
Yes! VAWA’s are my favorite. Now, before we dive in I want to be perfectly clear – even thought VAWA stands for the Violence Against Women Act you do NOT have to be a woman to qualify. In fact, the majority of my current VAWA clients are men! So guys, don’t count yourselves out due to your gender.
Anyone who has been the victim of domestic abuse by their U.S. citizen or lawful permanent resident spouse, parent, or child over 21 years old qualifies to apply for VAWA relief. And as we all know, abuse comes in many shapes and sizes. There is no requirement that there be physical abuse to qualify for VAWA – that abuse can be financial, psychological, emotional, verbal, sexual, and the list goes on. The VAWA process also does not require that the abuse ever be reported to law enforcement and there are no repercussions to the abuser. That may seem counterintuitive at first glance, but there are many situations where reporting an abuser might lead to even more dangerous situations while waiting for an immigration application to process, or where the victim does not want to jeopardize the abuser – often seen in cases where the parent is the victim of emotional or verbal abuse by a 21 year old child.
Also, there is NO annual cap to VAWA approvals. None whatsoever. So, each application is processed when it is received and as soon as it is approved the wait is over. Current processing times for VAWA applications, according to the USCIS website, are 18-24 months.
For someone who has been a victim of domestic violence, this seems like a faster process than the U-visa. What benefits does it offer?
Again, something that might seem a bit counterintuitive is that the VAWA benefits depend in large part on the immigration status of the ABUSER and not the victim. If the abusing family member is a U.S. citizen, then the victim can apply for lawful permanent residence at the same time that he or she files a VAWA application – this means that the whole thing is processed as a package deal and when the VAWA application is approved, so is the lawful permanent residence. So, under those circumstances, the victim becomes a permanent resident immediately upon approval. Another benefit to having a US. Citizen abuser rather than a permanent resident is that the applicant can apply for work authorization at the same time as VAWA – which means that while the application is processing the victim will be given permission to work lawfully in the US. It does take about 3-6 months for the work authorization card to come, but then the victim can begin to legally support him or herself for the duration of the processing time.
Now, if the abuser is a lawful permanent resident instead of a US citizen, then the victim cannot apply for work authorization and permanent residence at the same time. The victim in this scenario would file just the VAWA application. Once it is approved, at that 18-24 month processing time, the victim can then apply for work authorization based on that approval and depending on the specific circumstances – lawful permanent residence.
Is the process to apply similar to the other two?
The basic process is very similar with the biggest difference being that there is no requirement to report the underlying abuse. Otherwise, it’s the same process of filing forms, providing evidence, and waiting much longer than you would like to get a response. Again VAWA is really a great option for those who have been victimized by their US citizen or permanent resident family members.