Difference Continued Presence and T Visa
Immigration Needs
Many foreign national victims prefer to remain in the United States. There are several immigration options that were specifically created for trafficking victims, including Continued Presence and the T visa, as well as options for crime victims that include trafficking victims, such as the U visa and Special Immigrant Juvenile Status. An immigration attorney can assess the victim's options and assist her/him in filing the appropriate application. Other foreign national victims prefer to return to their home countries, and providers can assist with safe repatriation.
Smart Tip: Immigration relief and the timing of it can be a source of tension between task force members. It is important to plan in advance for how the task force would like to coordinate and support both short- and long-term forms of immigration relief. Please also see Section 5.2 on the importance of immigration relief as a law enforcement tool.
- Continued Presence is tool for law enforcement to request short-term immigration relief that allows a foreign national victim of human trafficking to remain in the United States. Unlike the other immigration options, only law enforcement can file an application for Continued Presence; the victim cannot apply directly. State and local law enforcement can initiate Continued Presence applications via their local federal law enforcement office. The requirements for Continued Presence are that the immigrant is a victim of human trafficking and a potential witness in the investigation or prosecution of a trafficker. The victim's cooperation with law enforcement is not required; however, law enforcement do need to have enough information to determine eligibility. Continued Presence is generally issued for 1 year, includes employment authorization, confers eligibility for many federally funded public benefits, and may be renewed in 1-year increments upon law enforcement request.
- T nonimmigrant visas are issued by the U.S. Citizenship and Immigration Services (USCIS) agency. The victim files an application for a T visa. The requirements for a T visa are that the immigrant is a victim of human trafficking, is physically present in the United States on account of the trafficking, has complied with any reasonable requests for assistance in the investigation or prosecution of the trafficker (unless the victim is under 18 or is unable to comply due to physical or mental trauma), and would suffer extreme hardship if required to return to her/his home country. T visa applications may include a declaration from law enforcement, a prosecutor, or judge (federal, state, or local), but a declaration is not required. T visas are issued for 4 years, include employment authorization, and confer eligibility for many federally funded public benefits. T visas are also available to certain immediate family members of the victim. T visa holders (victims and their family members) also can apply for Permanent Resident status (a "green card") after 3 years or the conclusion of the criminal case. Watch the DHS Instructional video for members of law enforcement when completing certification forms for victims of human trafficking or other serious crimes.
- U nonimmigrant visas are issued by U.S. Citizenship and Immigration Services (USCIS) agency for victims of a variety of crimes and require law enforcement support (see DHS U Visa Law Enforcement Certification Resource Guide). The victim files an application for a U visa. The requirements for a U visa are that the immigrant is a victim of a qualifying crime (which includes human trafficking, sexual assault, involuntary servitude, peonage, slave trade, sexual exploitation, prostitution, and many other crimes), suffered substantial physical and/or mental abuse from the crime, has information about the crime, and has been/is being/is likely to be helpful in the investigation or prosecution of the crime. U visa applications must include a certification from a law enforcement agency, prosecutor, or judge (federal, state, or local). U visas are issued for 4 years and include employment authorization, but do not confer access to federally funded public benefits (although benefits at the state level may be available). U visas are also available to certain immediate family members of the victim. U visa holders (victims and their family members) also can apply for Permanent Resident status (a "green card") after 3 years.
- Special Immigrant Juvenile (SIJ) Status allows certain foreign national children who are abused, abandoned, or neglected to remain legally in the United States and to seek Permanent Resident status (a "green card"). The SIJ program is also administered by USCIS. Applicants must be under the age of 21 and unmarried. They must be declared a dependent on a juvenile court in the United States or the court must have legally committed or placed the child under the custody of an agency, entity, or individual. Juvenile courts must also find that the child's reunification with one or both parents is not viable due to abuse, neglect, or abandonment, or a similar basis found under the law, and it is not in the best interest to be returned to his or her country of nationality or last habitual residence. Trafficked youth who are in the child welfare system often qualify for SIJS.
- Asylum allows individuals to stay in this country if they have been persecuted in another country. Past persecution can have been based on membership in a particular social or religious group or what a government perceives as actions against its power. The persecutor must be the government or a group or individual(s) that the government is unwilling or unable to control. Trafficking survivors are also entitled to asylum in the United States if they have been trafficked to another country, are fleeing that country to escape bondage, or do not want to return to their country of origin because they fear being trafficked again. Those granted asylum may seek Permanent Resident status after one year. Those who are denied asylum may be required to enter removal proceedings.
- Violence Against Women Act (VAWA) Self-Petition allows abused and battered female immigrants to file for legal status without having to rely on abusive U.S. citizens or abusive permanent resident spouses, parents, or children to sponsor their immigration applications. Abusers may force their spouses into labor or sex trafficking, and other traffickers use marriage as a means of coercion and control if the victim's immigration status is tied to the spouse. Once a VAWA Self-Petition is approved, the immigrant survivor may seek Permanent Resident status.
The International Organization for Migration (IOM) provides funding to support safe repatriation through its Return, Reintegration, and Family Reunification program. IOM can be reached directly: 1752 N Street, NW, Suite 700, Washington, DC 20036 USA, Tel: +1 202 862 1826
E-mail: TIPDC@iom.in. - Some immigrant minors who have lived in the United States for an extended period of time and who are trafficked may qualify for Deferred Action for Childhood Arrivals (DACA), which enables them to obtain temporary citizenship status for two years and makes them eligible for work authorization.
- Repatriation. Foreign national victims might prefer to return to their home country, and may need assistance in replacing their passport or other documentation. They should also be provided with referrals or resources that are available in their home country for survivors of trafficking.
For additional information and tools, visit the Resource page for Section 4.4 Legal Services.
Source: https://www.ovcttac.gov/taskforceguide/eguide/4-supporting-victims/44-comprehensive-victim-services/legal-needs/immigration-needs/
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