"Physical Presence on Account of Trafficking": Eligibility Requirement for T Visa Applicants

• NCJ Number: 251836
• Date Published: April 2018
• Length: 6 pages
• Grant Number(s): 2015-VT-BX-K029
• Agencies: OVC-Sponsored
• Publication Type: Report (Technical Assistance); Report (Grant Sponsored); Legislative/Regulatory Material
• Award: Comprehensive Training and Technical Assistance project (CTTA) to strengthen legal service provider and pro bono attorney capacity to serve all forms of human trafficking.

Annotation

This practice advisory explains the physical-presence eligibility for trafficking survivors and outlines successful legal strategies in approaching this requirement.

Abstract

Among the eligibility requirements for T nonimmigrant status under INA 101(a)(15)(T)(i), trafficking survivors must show they have been "...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, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking." The Department of Homeland Security (DHS) has historically interpreted the "physical presence" requirement for the T visa to mean that the trafficking occurred in the United States, and the victim has not left the United States since the trafficking occurred. Physical presence does not mean that the victim must have been brought to the United States by a trafficker, but rather focuses on the applicant's current situation and why the applicant's presence in the United States today is linked with the trafficking. Applicants can demonstrate that they were recruited and trafficked in the United States without a trafficker transporting them into the United States as long as their current presence in the United States is related to the trafficking. In the 2017 T Visa regulations, DHS has expanded and clarified the definition of physically present on account of trafficking to include situations where the applicant either departed the United States after escaping the trafficking or all the trafficking occurred abroad. Successful legal arguments for physical presence linked with being a trafficking survivor are outlined. Also discussed are the difference between extreme hardship and physical presence, as well as departing the United States after trafficking.