Congress created both “T” and “U” visas to encourage victims of certain serious crimes to cooperate with law enforcement officials who are prosecuting criminal offenders. Only certain types of crimes will qualify the victim for a T or U visa; but both T and U visas include the qualifying crime of human trafficking.
Which type of visa should a victim apply for?
We explain below the important differences between the two visas. Different types of evidence need to be provided to U.S.C.I.S. to demonstrate eligibility for either a T or U visa. It is advisable to consult an experienced immigration attorney at Immigration Solutions LLC to assess whether trafficking victims can make a stronger case for a U visa or a T visa.
What Qualifies as Human Trafficking for a T Visa
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:
Process: recruitment, transportation, transferring, harboring, or receiving of a person.
Ways and Means: threat, coercion, abduction, fraud, deceit, deception, or abuse of power.
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.
T Visa Applicants Must Have Been “Trafficked” Into the U.S.
In order to qualify for a T visa, an individual must be present in the U.S. as a result of human trafficking. 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.
It follows to be eligible for a T visa, 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 Applicants Must Cooperate With Law Enforcement to a Greater Extent
Similarly to the U visa, applicants for T visas must abide a reasonable request to cooperate with law enforcement officials who are investigating and prosecuting the 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.
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.
U Visa Applicants Must Show Substantial Abuse, While T Visa Applicants Must Show Extreme Hardship If Denied
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 this, an applicant should demonstrate:
- Medical needs (due to the trafficking crime or for other reasons) which 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), or
- Any other factors particular to your case.
Both Visas Are Subject to a Cap
Despite a push by Congress to increase the number of U visas available to crime victims, there is a yearly cap of 10,000 U visas and a cap of 5,000 T visas (not including visas for derivative family members). Unlike many other types of visas, U.S.C.I.S. will continue to accept applications for U and T visas even after it has reached the statutory cap for a given year. However, U.S.C.I.S. 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, U.S.C.I.S. 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.
Other T and U Visa Similarities
There are also some important similarities between the two visas. Both 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).
Deciding whether to apply for a U Visa or a T Visa can be challenging therefore, it is advisable to always consult an experienced immigration attorney. For details and assistance in filing for U Visa or T Visa status, contact us at 617-536-0584, firstname.lastname@example.org.