After an informal policy shift last year led the USCIS to start denying human trafficking visas by misreading the statutory text, creating a requirement that never existed before, we’ve won our first appeal on the issue. I’m posting the unpublished decision: Matter of D-A-A-.
The question here involves the T visa statute, which requires an applicant to show that when she applies for the visa she
“is physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry thereto, on account of such trafficking”8 U.S.C. § 1101(a)(15)(T)(i)(I)
Read simply, that phrase seems to require proof only that the person was here in the United States when she was trafficked and is still here when she applies for the visa. For years the USCIS applied the law that way, not requiring further proof of why she had remained here since escaping her trafficker.
But last year, without any formal announcement, the USCIS started denying bona fide T visa applications, claiming the applicant needed to prove that the trafficking was the reason she was still in the United States.
We have attempted to meet that new, higher burden although I believe it to be unlawful. For my clients, we try to gather evidence about why they couldn’t leave the United States after they were trafficked. For most of my clients the reasons are financial and psychological.
The financial issue is obvious: most of our T visa clients were trafficked to the United States on employment-based visas. In most cases a “recruiter” charged them a giant fee before they could come here, and they took out loans in their home country to pay it. Most still owe those loans back and may be in trouble if they have to return empty-handed. Most also had their wages stolen from them by the trafficker in the United States, so when they got away from the trafficker they were penniless.
After escaping a human trafficker, the applicant isn’t legally allowed to work (until she gets her T visa), so naturally paying to close up her life here and fly to her home country is often impossible.
The psychological issue is similarly obvious: being trafficked takes an extreme psychological toll on a person. So, it’s no surprise that many human trafficking victims have a difficult time just flying home after they’ve been through such trauma.
More recently, even when we submit this additional evidence, USCIS has stated requiring evidence that the trafficking has literally prevented the person from leaving the U.S.. Of course, requiring that makes no sense. It would be impossible to prove, and more importantly, the statute’s language doesn’t have such a requirement.
The Appeal and the AAO’s Decision
So, applications that used to be approvable started getting denied. And in an especially egregious case, where we had extensive psychological and financial evidence that USCIS disregarded, we appealed the denial to the AAO.
Today we received a decision that should help others facing this same issue. The AAO said the physical presence primarily concerns the “applicant’s presence in the United States at the time the application is filed.” It pointed out that the T visa regulations include eligibility both for victims currently being trafficked and for those who were previously trafficked but are still here.
Finally, the AAO noted that proof of financial limitations and psychological trauma can be sufficient to establish that a trafficking victim was in the United States “on account of” the trafficking.
We still have more work to do – unfortunately the psychological issue may require a waiver of inadmissibility. But at least the AAO is now acknowledging what has always been true: the statute does not require a human trafficking victim to prove the trafficking made it physically impossible to leave the United States.