The Office of Trafficking in Persons (OTIP) helps unaccompanied children who have been victims of human trafficking by issuing OTIP letters, which grant access to many benefits. OTIP letters may be unknown to advocates new to detained work, but they are an extremely useful tool. Advocates should screen for OTIP eligibility for every detained child with whom they work.
The Administration for Children and Families (ACF) established OTIP in 2015 to carry out the anti-trafficking provisions included in the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008. Like the Office of Refugee Resettlement (ORR), OTIP is housed under ACF and the Department of Health and Human Services (HHS). Since 2015, OTIP has issued thousands of eligibility letters to unaccompanied children, qualifying them for a long list of federal benefits. In 2021 alone, OTIP issued approximately 1,200 eligibility letters.
So, who is eligible for these letters? An unaccompanied child can be referred to OTIP if they are (1) under the age of 18 at time of submission of the Request for Assistance (RAF), (2) a foreign national (non-U.S. citizen/lawful permanent resident), (3) a victim of trafficking (sex, labor, or both), and (4) currently in the United States. Importantly, a child can be referred up until 11:59 pm on the day before they turn 18 and OTIP can still process and approve the request. However, if the child leaves the United States, OTIP cannot consider the request. Any advocate who works with an unaccompanied child can make this referral. This includes lawyers, paralegals, social workers, case workers, and child advocates.
Once a child receives an OTIP letter, they are eligible for federal benefits that are usually restricted to U.S. citizens and lawful permanent residents who have been in the country for more than five years. These benefits fall under the following categories: nutrition, housing, mental health services, monetary assistance, employment, and education. This includes well-known federal benefits like SNAP, Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI). These benefits all become available to the unaccompanied child after they are released from ORR care. Take note though, if a child is still detained in ORR care, they can’t access these benefits yet, as the federal government is already providing them with all of their needs.
However, there is one incredibly important benefit that certain unaccompanied kids can access with an OTIP letter while in ORR custody. An OTIP letter makes an unaccompanied child eligible for the Unaccompanied Refugee Minor (URM) program. This is vital for children in ORR short-term shelters with no identified, viable sponsor. Usually, these children would languish in detention, but the OTIP letter gets them into the URM program. Children in URM are under the age of 18 and either refugees, asylees, or victims of trafficking. (INA § 412(d)(2)(B), 45 CFR 400 Subpart H). The program establishes legal responsibility, under state law, to care for minors and give them the full range of assistance, care, and services which are available to all children in state foster care. Given this, URM kids are housed with foster families or in group homes, can attend public school, and are given greater freedom of movement and control over their schedule than children in short-term ORR shelters. Children may stay in the URM program up until the age of 21, unlike Long Term Foster Care (LTFC), which ends once the child turns 18. In some jurisdictions, URM children are taken off the detained juvenile dockets and placed on released dockets, where their cases can proceed with longer continuances and more time to complete their legal case.
Given that OTIP is based on human trafficking, one may be quick to assume that it is the same as getting a T Visa. But there is a key difference between the two – unlike a T Visa, OTIP does not provide protection from removal. OTIP is not a form of legal relief and does not protect children from deportation back to their home country. T Visas require two additional elements not required for proving OTIP eligibility. Both require that the applicant prove that they were a victim of a severe form of trafficking—whether that was sex trafficking, labor trafficking, or both—but T Visas also require that the applicant show they are physically present in the United States “on account of” the trafficking and that they will suffer “extreme hardship.” Because OTIP lacks these requirements, it is available to kids trafficked entirely outside of the United States. This is great news for unaccompanied children because a child could be trafficked in their home country or a transit country, be in the United States for a completely separate reason, but still qualify for OTIP. The child and advocate also do not need to make any forward-looking arguments about any potential extreme harm the child could suffer if returned to their home country. The definitions for OTIP can be found at 22 U.S.C. § 7105 (b)(1)(A) and 22 U.S.C. § 7102(11)(A)&(B), while the definitions for T Visas can be found at INA 101(a)(15)(T)(i).
AMP stands for Action, Means, and Purpose, and it is the framework used to establish OTIP eligibility. OTIP uses this model to evaluate the trafficking claims in referrals. Labor trafficking is defined as the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery. These elements fall into the following AMP categories:
In order to establish OTIP eligibility based on labor trafficking, the referral must demonstrate that at least one element from each column was present in the trafficking situation. The referral also must establish who the trafficker(s) were in the situation. This can include a parent, a relative, a caregiver, a partner, an employer, a cartel, a gang, or a smuggler. This is not an exhaustive list. Advocates may immediately think of the typical migrant smuggler engaging in trafficking, but it can be any figure of power or authority in the child’s life. Additionally, forced labor can include domestic labor (cooking, cleaning, laundry), agricultural work, shop or factory work, or even forced sexual acts.
Sex trafficking is defined as the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act, in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age. These elements fall into the following AMP categories:
You may notice that the table above is missing the “means” column. When working with minors, it is not necessary to prove any of the elements from the “means” column, such as forced, fraud, or coercion. A commercial sex act is defined any sex act someone performs in exchange for anything of value given to or received by any person. Most typically, this is money, but can include the exchange of other items of value. The most obvious instance of this occurs when a child is forced to perform sex acts as a sex worker. Additionally, advocates should keep an eye out for situations where children were the victims of nude and pornographic photography or videos. If it seems that the forced sex act was not in exchange for money or an item of value, the child is not out of luck, and the advocate should still frame the sex act(s) as forced labor trafficking.
Advocates can find definitions of the AMP elements on OTIP’s website:
The first step in making a successful OTIP referral is meeting with the child to gather facts and details of the trafficking situation. It is vital for the advocate to understand the story and the context. For the referral, it is not enough to simply state that the child suffered “labor trafficking” or a “forced commercial sex act.” Advocates should consider drafting a short 1-3 page narrative in the first person where the child can describe what they suffered. Additionally, advocates can include a cover letter laying out how the child meets each of the necessary elements to prove their eligibility for OTIP as a victim of trafficking, akin to a short brief. OTIP has created an online referral system called Shepherd where advocates can upload these documents or input the contents into the answer boxes. It might also be helpful to submit the child’s birth certificate, notice to appear, or a printout of their UC Portal page to prove their age and identity, so long as these documents don’t contain any biographical errors. Lastly, if the child is also pursuing a T Visa, it can be helpful to attach any evidence of Continued Presence or the T Visa application or grant.
Before submitting the referral, the advocate should check with shelter staff and the child advocate, if there is one, to see if anyone has already submitted a referral on behalf of the child. As with any immigration related submission, the advocate should check for inconsistencies or important omissions in the record. If there is already a referral on record, the advocate will want to consider whether submitting a new referral will create a messy record or whether they can sufficiently explain any issues between the two referrals. If an initial referral is denied, the advocate has the chance to submit a new referral or the initial requestor can submit a Request for Reconsideration within 30 days of the denial determination. Either approach should sufficiently address any perceived inconsistencies or issues with the initial referral.
Once OTIP receives a referral they will review the submission, and oftentimes, they will ask follow-up questions in the online Shepherd system. If a child is close to turning 18, OTIP will prioritize their referral, so it’s important for advocates to flag these cases to OTIP by phone or email. In some cases, OTIP will issue an Interim Assistance Letter. This signifies that based on OTIP’s initial review, they think it likely that the child qualifies as a victim of a severe form of trafficking. While this letter entitles children to the federally funded benefits, this is only useful for children released from ORR care. Additionally, the Interim Assistance Letter does not entitle detained children to URM admission. Once that interim letter is issued, OTIP typically has up to 90 or 120 days to make a final decision. Sometimes, OTIP will ask if the child wishes to speak to law enforcement regarding the trafficking, but this is not required to get the final OTIP letter.
If OTIP determines there is enough information to indicate the child suffered severe trafficking, they will issue the full and final Eligibility Letter. This letter will be mailed to the address listed on the referral form (the advocate’s office, the shelter, or the sponsor’s address for released children.) Advocates should make sure that this original letter ends up in the hands of the child, as it is very important for children to hang onto the original letter. Once children are released, they will be connected with a Trafficking Victim Assistance Program (TVAP) provider who will need to see the original letter in order to connect the child with benefits. The good thing is that OTIP letters never expire. However, some benefits must be applied for within a certain amount of time, so advocates should work quickly to connect the child with the TVAP provider.
While an OTIP letter does not confer protection from removal, it can go a long way in benefitting an unaccompanied child. Advocates should keep an open mind to various trafficking scenarios and use their creativity and legal writing skills to convey the child’s story to OTIP. An OTIP grant can also be used as evidence in a T Visa application that at least one government agency versed in human trafficking has found that a child has met two of the necessary elements for a T Visa. Most importantly for kids without sponsor options, OTIP letters can get those kids out of short-term ORR care into long term supportive URM placements.