In the previous blog post we described some frequently encountered abuses involving temporary visas that tie workers to one company or person, which can lead to exploitation by an unscrupulous employer. Many instances of human trafficking, however, involve undocumented workers with no visa status. In this post we will describe some of these situations, and discuss how we work with clients to develop a strong T visa application in appropriate cases.
In order to be granted T visa status an applicant must meet four requirements. The petitioner must show that he or she (1) is or has been a victim of a “severe form of trafficking”; (2) has cooperated with reasonable requests from legal authorities (or is excused from cooperating); (3) is in the U.S. because of human trafficking; and (4) would suffer “extreme hardship involving unusual and severe harm” if forced to return to his or her country.
How can these facts be proven? To illustrate we will look at examples of some approved T visa applications. In one case an undocumented woman worked as a domestic servant in a family’s home for more than a decade. She was unpaid – the family told her that they were “saving” her pay for when she returns to her country. And they told the woman that since she is undocumented she could be arrested and deported if she leaves the house by herself. In another case an undocumented young couple with two young children work as cooks in the same restaurant 12 hours per day, six days per week, for $50 daily. The owners verbally abuse and insult them, and often remind them that they are “illegal.” When other workers try to quit, the owners keep their last two weeks of pay, only paying it if they return to the job. When one of them cuts his finger to the bone while working the owners tell him to wrap his hand and to keep working. When he does go for medical treatment the employer refuses to pay, and again reminds the couple that they are undocumented. In a third case an undocumented immigrant without stable employment or housing was offered work as a home health aide for an elderly person. The work was arranged through an intermediary, who made her live in her house on the weekends when she wasn’t at the home of the elderly person, charging her excessive rent and forcing her to cook and clean for her. When she complained about the mistreatment the intermediary threatened to fire her, kick her out of the house, and report her to ICE and the police.
Proving that the applicant has been a victim of a severe form of trafficking requires showing that the employer used (or threatened to use) force, coercion, or fraud to control the person. Coercion can mean threats of serious harm against the person (including non-physical harm), or the abuse or threatened abuse of the legal process (such as threatening to call the police or ICE). The main way to show this is through the applicant’s detailed statement, which will be a crucial piece of evidence in each case. Other documents, such as medical reports and counseling records, may be important in some cases. Establishing that the applicant cooperated with requests from law enforcement may be done through a law enforcement certification, police reports, court records, or other evidence of contacts with law enforcement. From experience we know that making a report to law enforcement is difficult for many T visa clients, so we normally handle this aspect together with the client. We are the point of contact between the law enforcement agency and the client. (Applicants under 18 years old, or who meet the “trauma exception,” do not have to meet this requirement.)
Demonstrating that the applicant is in the U.S. because of the trafficking involves showing a recent escape or release from the trafficking situation, or, if the applicant left long ago, that he or she is still in the U.S. “on account of” the trafficking. This will require showing how the effects of the trauma have impacted the applicant’s life, or how other practical implications of the trafficking, such as financial effects or threats by the trafficker, continue to affect the applicant’s need to remain in the United States. It does not require showing that the applicant was brought into the U.S. by a trafficker. The last requirement is demonstrated by showing, usually through the applicant’s personal statement, human rights reports, and other reports, that the applicant would face extreme and unusual hardship if forced to leave the U.S. In the next and final blog on T visas we will examine the importance of this immigration law process to victims of sex trafficking, domestic violence, and sexual violence. If you are interested in learning if you qualify for a T visa , please feel free to contact attorney Kate Brown of Solow, Hartnett & Galvan for a legal consultation.
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