2024 Final Rule for T Nonimmigrant Status

Definitions (8 CFR § 214.201): One of the essential components of the 2024 final rule was to make the definitions in the regulations consistent with the definitions in the TVPA, 22 U.S.C. 7102, and 8 U.S.C. 1101, 1182(d), and 1184. To that end, DHS made updates, clarifications, and even additions in the final rule to conform with these other legal authorities, where such changes include:

• • Clarifying in the final rule preamble that in the definition of commercial sex, “anything of value” is not limited to financial value. For example, any sex act provided in exchange for housing or continued employment would fall under the definition of commercial sex.
  • Acknowledging that not all cases involving smuggling will meet the criteria for a severe form of human trafficking with regard to labor for the purpose of involuntary servitude, peonage, debt bondage, or slavery, but stating that DHS considers the evidence on an individualized, case-by-case basis.
  • Amending the “law enforcement agency (LEA)” definition to apply more broadly and including more agencies as examples of federal LEAs. Some of these include tribal authorities, the Bureau of Indian Affairs, and the Equal Employment Opportunity Commission (EEOC).
  • Defining “law enforcement involvement,” to mean an act by a law enforcement agent that goes beyond just getting the survivor’s trafficking report. Note: this definition is not relevant to cooperating with an LEA but is relevant to the element of physical presence since a few of the five grounds of establishing physical presence regard LEA involvement. LEA involvement would mean, for example, actually interviewing the trafficking survivor, freeing them from the trafficking situation, or investigating and prosecuting the trafficking.
  • Adding definitions for “serious harm,” “abuse or threatened abuse of the legal process,” and “incapacitated or incompetent.”
  • Defining “T-1 nonimmigrant” to be “the victim of a severe form of trafficking in persons who has been granted T-1 nonimmigrant status.” 8 CFR § 214.201.

Eligibility for T-1 Nonimmigrant Status (8 CFR § 214.202): This section of the regulations provides the eligibility guidelines for T-1 nonimmigrant status. One of the eligibility grounds is that the applicant has complied with a request from an LEA or that they meet an exception to that compliance, such as the minor exemption. DHS revised the provision in the interim rule dealing with the minor exemption and T-1 eligibility [8 CFR § 214.11(a)] to make it clear that: “An applicant who was under 18 years of age at the time at least one act of trafficking occurred is not required to comply with any reasonable request for assistance.” 8 CFR § 214.202(c)(1) (emphasis added).

Application (8 CFR § 214.204): This section of the regulations deals with the applicants and applications for T nonimmigrant status—including filing, evidence to support an application, inadmissible applicants, and more. DHS made the following additions, updates, clarifications, and revisions to the application provisions:

• • Clarified that ICE *may* use prosecutorial discretion for T visa applicants while the T visa application pends—though this has clashed with some public comments and stakeholder concerns that the language should be compulsory for ICE to accept joint motions for T visa applicants who have active cases before EOIR.
  • Though no amendments were made to the relevant portions of the 2016 interim rule, the 2024 final rule preamble states that, typically, DHS does not remove T visa applicants with pending applications, though DHS may have to act on removal orders before T visa adjudication in certain situations.
  • The 2016 interim rule addressed the act of USCIS referring a T visa applicant for removal proceedings, stating that there was nothing stopping DHS from initiating removal proceedings against a T visa applicant. However, the 2024 final rule revised the regulations so the provision, 8 CFR § 214.204(b)(3), now states that USCIS will generally not refer a T visa applicant for removal proceedings unless “serious aggravating circumstances” exist.
  • In 8 CFR §204(c)(1), DHS included more details about the personal statement that the applicant is required to submit with initial evidence. This provision lists what the signed personal statement should address, including the circumstances surrounding the victimization [214.204(c)(1)(i)(A)-(B)(6)], how the trafficking survivor’s physical presence actually relates to the trafficking incident (which must include what they fear if removed from the United States), and whether the applicant has evidence to support the necessary elements.
  • Regarding law enforcement cooperation and the credible evidence standard per 8 CFR § 214.204(f), DHS emphasized that USCIS will consider any credible evidence showing law enforcement cooperation.

Under 8 CFR § 214.204(l), USCIS specified that the T visa applicant must establish their eligibility for T nonimmigrant status by a “preponderance of the evidence” standard, which means that now T visa applicants must prove that the facts in the T visa application are more likely than not to be true. DHS further explained that the applicant has the responsibility of demonstrating how the credible evidence addresses each of the criteria elements separately.

Bona Fide Determinations (8 CFR § 214.205): In the 2024 Final Rule, DHS made a big change from the 2016 interim rule by creating a process to grant bona fide determinations (BFDs) to T visa applicants, similar to the process that already exists for U visas.

• • For T visa applications submitted on August 28, 2024, and onwards, USCIS will perform an initial review to see if the application is bona fide—that it was properly filed and completed, accompanied with a signed personal statement, and that a completed background check of the applicant does not present national security concerns.
    • Though outside the scope of this blog post, the 2024 final rule also includes a BFD process for applications for derivatives.
  • If USCIS does not find the application to be bona fide upon the initial review, then USCIS will conduct a secondary review. If the application satisfies each eligibility requirement, then it is approved; though if the cap has been reached, then the application will receive a BFD.
  • Per 8 CFR § 214.205(d), an incomplete application or one that indicates a national security risk at the initial review stage does not warrant a BFD. If denied after the initial review, the applicant cannot appeal that denial. Instead, for those applications that are not considered bona fide after the initial review, USCIS will then conduct a full T nonimmigrant status eligibility review. If even after that full review the applicant still is unable to demonstrate eligibility, then USCIS will deny the T application.
  • Deferred Action: Per 8 CFR § 214.205(e), if USCIS determines a T application to be bona fide, then USCIS may discretionarily grant deferred action to the T visa applicant. Further, if USCIS finds that the case warrants deferred action and if an employment authorization application has already been filed, then USCIS will adjudicate the employment authorization.
  • Per 8 CFR § 214.205(g), if USCIS finds that an application is bona fide, then USCIS automatically stays any outstanding executions of final orders of removal or deportation, with the stay remaining until any adverse decision (if any) is rendered final.

Victim of a Severe Form of Trafficking in Persons (8 CFR § 214.206): With this provision, DHS amended the list of evidence to include additional examples of credible evidence that may help the applicant demonstrate they are or have been a victim of a severe form of trafficking in persons. Such examples include copies of reimbursement forms for travel to and from court, documentation of a grant of Continued Presence, and documents used in furtherance of trafficking (pay stubs, advertisements, and business cards).

Physical Presence (8 CFR § 207): Being physically present in the United States on account of the trafficking is one of the T visa eligibility grounds. Note that this eligibility ground is required for a T visa but not for an Office of Trafficking in Persons (OTIP) letter, which entitles recipients to certain benefits. The final rule made several clarifications about the physical presence requirement, including when physical presence should be assessed, adding five separate grounds under which physical presence can be met, examples of evidence, departing the United States, continued victimization, and more.

• • In the final rule, DHS described the physical presence element as a current assessment of an applicant's experience, with the emphasis on “current” intended to narrow the presence to the time of filing and adjudication of the T visa application rather than the applicant’s presence prior to that.
  • Under the final rule, per 8 CFR § 214.207(a), DHS simplified the language in the regulations to convey that T-1 visa applicants must demonstrate to USCIS that they are physically present in the United States under one of the following five enumerated grounds:
    • (1) That they are presently subjected to a severe form of trafficking in persons;
    • (2) That an LEA recently liberated the individual from a severe trafficking situation, before the T visa application was filed;
    • (3) That they fled a severe form of trafficking in persons situation before an LEA was involved, before the T visa application was filed;
    • (4) That they were victim to a severe form of trafficking in persons in the past and their current physical presence in the United States is directly related to the original trafficking, regardless of how much time has passed between the trafficking and filing of the T visa application; or
    • (5) That they were granted entry into the United States to assist with or participate in the detection, investigation, prosecution, or judicial processes associated with a trafficker and trafficking incident. 8 CFR § 214.207(a)(2) – (5).
  • While DHS purported that the physical presence language in the regulations does not apply to situations where the trafficking took place entirely outside of the United States, they did point out an exception in the comments that an applicant who survived trafficking that took place entirely outside of the United States may be considered physically present if they are in the United States based on the fifth ground above—if the abroad trafficking has a nexus to the United States (either through presence at a U.S. port of entry on account of the trafficking or cooperation with an LEA).
    • We do want to emphasize this for advocates working with unaccompanied children. The language with the physical presence element may seem limiting, but that nexus component may be more evident than you think. Children who have been trafficked en route to the United States can potentially argue that their trafficking has nexus to the United States, if—for example—their trafficking brought them to the border to smuggle drugs across the border. Consider the following scenarios and the nexus or link between the trafficking and the physical presence to the United States.
    • Scenario #1: A child left Guatemala to reunify with family in the United States, but a cartel kidnapped her in Mexico. The cartel brings the child near the southern border and keeps her in a house, where she is forced to perform domestic labor. She escapes the cartel and crosses the border.
    • Scenario #2: A child travels with a coyote and a group of other individuals seeking entry in the United States. En route, the coyote becomes cruel and forces the child to work—taking orders and carrying heavy supplies for the coyote, or else get beaten and get left behind.
    • Scenario #3: A known gang near the border predates teenagers who are awaiting entry into the United States—seeking boys for drug dealing and girls for sex. A gang member kidnaps a 14-year-old girl for this purpose, sexually assaults her, and harbors her for nearly one year—with the girl performing domestic work, agricultural labor, and sex. Later, the girl and the gang member enter the United States together and move in together. A year after entry, the girl and gang member separate, and she goes to the police and says that she was a victim of trafficking and wants justice.
    • DHS does consider such cases involving abroad trafficking on a case-by-case basis, and we want to reiterate that it’s a highly fact-dependent analysis.
  • The final rule does not change the regulation’s language about continued victimization of T visa applicants, but the final rule preamble includes DHS’s confirmation that current victimization is not required for someone to be considered a victim of a severe form of trafficking in persons. Instead, continued victimization may include trauma, abuse, threats, or other forms of harm, so long as they are sufficient under 8 CFR § 214.207(b)(1).
  • 8 CFR § 214.207(c) deals with evidence of the “physical presence due to trafficking” component of T visa eligibility. With this provision, DHS expanded the list in the 2016 interim rule [8 CFR § 214.11(g)(4)] to include more examples of facts and evidence that applicants may use in establishing their physical presence.

Compliance with Requests for Assistance with LEAs (8 CFR § 214.208): One of the T visa eligibility requirements is—very simply put—that the applicant must have adhered to an LEA’s request that the applicant assist LEA with an active investigation of the trafficking or crimes related to the trafficking, with some exceptions. However, the final rule has added an additional requirement for applicants to complete and demonstrate, amended certain parts of the regulations, and clarified existing language in the regulations.

• • In addition to complying with a request from an LEA, per 8 CFR § 214.208(b), an applicant must contact and attempt to report the severe trafficking acts to an LEA that has proper jurisdiction and provide credible evidence documenting at least one contact. The T visa applicant must demonstrate that the LEA has the requisite jurisdiction and authority to investigate and prosecute trafficking situations. If this minimum contact threshold is not met, then the applicant is not eligible for a T visa, though there are exceptions in 8 CFR § 214.208(e). The 2016 interim rule lacked the language regarding LEA jurisdiction.
  • Particularly of interest to advocates working with immigrant children, in 8 CFR § 214.208(e), DHS modified the language and made amendments to 214.11(b)(3), the regulation in the 2016 interim rule that dealt with young or traumatized applicants having to cooperate with an LEA. Under the 2024 final rule, a T visa applicant who has yet to contact an LEA or who has not responded to an LEA request for contact may be either excepted or exempted from the LEA cooperation requirement if they can establish that they are of age within the age-based exemption or if they fall within the trauma exception. Regarding the trauma exception, the 2024 rule provides additional examples of evidence to satisfy the trauma exception, such as submitting a personal statement, police reports, witness statements, mental health reports, court records, and more. Additionally, the 2024 final rule describes the personal statement to include more information about the trauma.

Per 8 CFR § 214.208(e)(2) in the final rule: “An applicant who was under 18 years of age at the time at least one of the acts of trafficking occurred” is exempted from the LEA cooperation requirement, but the applicant must still “submit evidence of their age at the time of the victimization.” Though it technically was longstanding policy for the age exemption to apply to an applicant who was under 18 when at least one act of trafficking happened, the actual language of “one act” was specified in the 2024 final rule.

Extreme hardship involving unusual and severe harm (8 CFR § 214.209): Another T visa eligibility requirement is that the applicant must be able to demonstrate that removal from the United States would place the applicant in extreme hardship through which the applicant would be subjected to unusual or severe harm. The language in the 2016 regulations at 8 CFR 214.11(i)(1) describes “extreme hardship involving unusual and severe harm standard” to be a higher standard than extreme hardship in 8 CFR § 240.58. The final rule provision 8 CFR § 214.209(b) provides examples of factors that can be considered in evaluating whether the removal would meet that standard. With 8 CFR § 214.209(b)(9), DHS added “current or likelihood of future economic harm” as a factor to that list—affecting prior section 11(i)(2)—but DHS still explained in the preamble of the final rule that economic hardship must rise to the level of extreme hardship involving unusual and severe harm. Economic hardship that is not extreme or not coupled with other issues may not be sufficient to meet the criteria. Some other factors under 8 CFR § 214.209(b) include the likelihood of the individual’s safety being threatened by civil unrest, the likelihood of re-victimization, and the impact of the loss of access to the U.S. criminal justice system.

Annual Numerical Limit (8 CFR § 214.210): DHS cannot grant T-1 visas to more than 5,000 principal applicants in a fiscal year. With 8 CFR § 214.210(b), DHS revised the waiting list provisions in the regulations to now include information on how the numerical limit works with the modified BFD process. With the final rule, if an applicant is deemed eligible for a T visa, but the limit has been reached, USCIS will issue the applicant a BFD. Then, the next year when slots are available when the fiscal year begins anew, pending applications will start processing, beginning with the longest pending.

Application for eligible family members (8 CFR § 214.211): Those who have applied for T nonimmigrant status or who have received it can apply for their qualifying relatives (who are also admissible to the United States) to be derivatives to the Form I-94 and receive admission to the United States. Regarding these derivatives to a principal’s application, DHS made some of the regulatory language clearer in the final rule though did not make significant textual changes otherwise. One clarification included that, per 8 § CFR 214.211(e)(3), if a T-1 has a child after filing the Form I-94, the child is deemed an eligible family member and that age-out protects are applicable to the T-1’s child who turns 21 while the T-1’s application pends.

Extension of T Nonimmigrant Status (8 CFR § 214.212): T-1 recipients can request USCIS to exercise discretion and extend the T-1’s T nonimmigrant status after four years from the date of the initial approval based on the T-1’s compliance with an LEA or extenuating circumstances. While the initial grant of T nonimmigrant status is for four years, the extension requests would be in one-year increments from the date that the T-1 status expired. DHS revised the regulations to include that so long as the T-1 is in active T nonimmigrant status, T derivative applicants can apply to extend their T nonimmigrant status independently of the T-1. Additionally, if a T-1 files to extend their status, they can request that USCIS also apply the extension to the derivatives.