[Federal Register Volume 67, Number 21 (Thursday, January 31, 2002)]
[Rules and Regulations]
[Pages 4784-4820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2186]



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Part II





Department of Justice





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Immigration and Naturalization Service



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8 CFR Part 103, et al.



New Classification for Victims of Severe Forms of Trafficking in 
Persons; Eligibility for ``T'' Nonimmigrant Status; Final Rule

  Federal Register / Vol. 67, No. 21 / Thursday, January 31, 2002 / 
Rules and Regulations  

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 212, 214, 274a and 299

INS No. 2132-01; AG Order No. 2554-2002
RIN 1115-AG19


New Classification for Victims of Severe Forms of Trafficking in 
Persons; Eligibility for ``T'' Nonimmigrant Status

AGENCY: Immigration and Naturalization Service, Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule is intended to assist all concerned Federal 
officials, including, but not limited to, officials of the Immigration 
and Naturalization Service (Service), and eligible applicants, in 
implementing provisions of section 107(e) of the Trafficking Victims 
Protection Act of 2000 (TVPA). The T nonimmigrant status is available 
to eligible victims of severe forms of trafficking in persons who have 
complied with any reasonable request for assistance in the 
investigation or prosecution of acts of trafficking in persons, and who 
can demonstrate that they would suffer extreme hardship involving 
unusual and severe harm if they were removed from the United States. 
This rule addresses: the essential elements that must be demonstrated 
for classification as a T nonimmigrant alien; the procedures to be 
followed by applicants to apply for T nonimmigrant status; and 
evidentiary guidance to assist in the application process. The Service 
will promulgate separate regulations concerning the process for 
adjusting from T nonimmigrant status to lawful permanent resident 
status.

DATES: Effective date: This interim rule is effective March 4, 2002.
    Comment date: Written comments must be submitted on or before April 
1, 2002.

ADDRESSES: Please submit written comments to the Immigration and 
Naturalization Service, Policy Directive and Instructions Branch, 
Attention: TVPA Implementation Team, 425 I Street, NW., Room 4034, 
Washington, DC 20536 by mail or email your comments to the VTVPA 
Implementation Team at [email protected]. When submitting comments 
electronically, please include ``INS No. 2132-01'' in the subject box.
    To ensure proper handling, please reference INS No. 2132-01 on your 
correspondence or e-mail. Comments will be available for public 
inspection at the above address by calling (202) 514-3048 to arrange 
for an appointment.

FOR FURTHER INFORMATION CONTACT: Anne Veysey, Office of Programs, 
Immigration and Naturalization Service, 425 I Street, NW., Room 1000, 
Washington, DC 20536, telephone: (202) 514-3479.

SUPPLEMENTARY INFORMATION:

Background and Legislative Authority

    The Victims of Trafficking and Violence Protection Act of 2000 
(VTVPA), Pub. L. 106-386, was signed into law on October 28, 2000. The 
VTVPA is divided into three sections: Division A, the Trafficking 
Victims Protection Act (TVPA); Division B, the Violence Against Women 
Act of 2000 (VAWA); and Division C, Miscellaneous Provisions. In 
passing this legislation, Congress intended to create a broad range of 
tools necessary for the Federal government to address the particular 
concerns associated with the problem of trafficking in persons.
    In the TVPA, Congress found that ``(a)t least 700,000 persons 
annually, primarily women and children, are trafficked within or across 
international borders. Approximately 50,000 women and children are 
trafficked into the United States each year.'' Section 102(b)(1), TVPA. 
Congress further found that ``(t)raffickers often transport victims 
from their home communities to unfamiliar destinations, including 
foreign countries away from family and friends, religious institutions, 
and other sources of protection and support(.)'' Id. at section 
102(b)(5). In trafficking in persons situations, perpetrators often 
target individuals who are likely to be particularly vulnerable and 
unfamiliar with their surroundings. Congress's intentions in passing 
the TVPA were to further the humanitarian interests of the United 
States and to strengthen the ability of government officials to 
investigate and prosecute trafficking in persons crimes by providing 
temporary immigration benefits to victims.
    In the TVPA, Congress provided a variety of means to combat 
trafficking in persons by ensuring just and effective punishment of 
traffickers and by protecting the victims of trafficking in persons. 
These means include providing immigration benefits to eligible aliens 
who have been victims of severe forms of trafficking in persons and, in 
the case of persons aged 15 and older, who comply with any reasonable 
request to assist law enforcement agencies in the investigation and 
prosecution of their traffickers. The TVPA addresses the effect of 
severe forms of trafficking in persons on victims, including many who 
may not have legal status and are reluctant to cooperate.
    In order to develop a comprehensive Federal approach to identifying 
victims of severe forms of trafficking in persons, to provide them with 
benefits and services, and to enhance the Department of Justice's 
ability to prosecute traffickers and prevent trafficking in persons in 
the first place, the Service conducted a series of stakeholders' 
meetings with representatives from key Federal agencies; national, 
state, and local law enforcement associations; non-profit, community-
based victim rights organizations; and other groups. Suggestions from 
these stakeholders were used in the drafting of this regulation. 
Additionally, the Department established an internal working group to 
oversee implementation of the new law.
    In a variety of ways, the Department has attempted to protect 
potential victims of severe forms of trafficking in persons by 
encouraging witnesses to cooperate in the investigation and prosecution 
of traffickers. Through vigorous investigation and prosecution of 
severe forms of trafficking in persons, the Department hopes to 
dismantle trafficking in persons rings and dramatically reduce the 
number of trafficking victims.
    The U.S. Government has already taken a number of actions to 
implement section 107 of the TVPA. A key initial response under the 
TVPA was to improve the ability of law enforcement agencies to identify 
victims of severe forms of trafficking in persons and to provide 
appropriate information and assistance to them pursuant to section 
107(c) of the TVPA. The Attorney General and the Secretary of State 
already have issued regulations implementing the requirements for 
assistance to victims of severe forms of trafficking in persons under 
section 107(c). See 66 FR 38514 (July 24, 2001) (codified at 28 CFR 
part 1100).
    Section 107(c) permits the Service, in cooperation with other law 
enforcement agencies, to arrange for the ``continued presence'' of 
aliens who have been the victims of severe forms of trafficking in 
persons and are potential witnesses to that trafficking, so that they 
will be available to assist with the investigation and prosecution of 
the traffickers. As provided in 28 CFR 1100.35, the Service will 
arrange for ``continued presence'' of such victims, at the request of 
appropriate law enforcement agencies, during the time that their 
presence in the United States is needed for law enforcement purposes. 
In most of those cases, the Service (whether through

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parole or other means) will be able to grant the victims temporary work 
authorization during the time they remain in the United States to 
assist with these law enforcement efforts.
    Section 107(b) of the TVPA also provides that aliens who are 
victims of severe forms of trafficking in persons who have been granted 
continued presence, or who have filed a bona fide application for T 
nonimmigrant status, also are eligible to receive certain kinds of 
public assistance to the same extent as refugees.
    Finally, in another part of the same Act that enacted the 
provisions of the TVPA for victims of trafficking in persons, Congress 
also provided for a new U nonimmigrant status for victims of certain 
kinds of crimes, including crimes involving trafficking in persons. 
VAWA section 1513. The Department will be publishing regulations to 
implement the U nonimmigrant status in a separate rulemaking action.

T Nonimmigrant Status

    This rule implements one aspect of these new protections for 
victims of severe forms of trafficking in persons, the T nonimmigrant 
status. Congress established this new classification, in section 107(e) 
of the TVPA, to create a safe haven for certain eligible victims of 
severe forms of trafficking in persons who are assisting law 
enforcement authorities in investigating and prosecuting the 
perpetrators of these crimes. Children who have not yet attained the 
age of 15 at the time of application are exempt from the requirement to 
comply with law enforcement requests for assistance in order to 
establish eligibility.
    T nonimmigrant status is applicable to victims of severe forms of 
trafficking in persons who are 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 in persons. 
Applicants for this status must demonstrate that they would suffer 
extreme hardship involving unusual and severe harm if they were removed 
from the United States and that they have complied with any reasonable 
request for assistance in the investigation or prosecution of acts of 
trafficking in persons.
    Principal aliens eligible for T nonimmigrant status may be granted 
T-1 status, which the TVPA limits to no more than 5,000 each fiscal 
year. In some circumstances, immediate family members of victims of 
severe forms of trafficking in persons also may receive a T 
nonimmigrant visa to accompany or to join the victim. When the Service 
approves a T nonimmigrant status application, it will provide a list of 
nongovernmental organizations to which the alien can refer regarding 
the alien's options while in the United States and resources available 
to the alien.
    T nonimmigrant status allows eligible aliens to remain in the 
United States and grants specific nonimmigrant benefits. The T status 
is separate and distinct from the provision for ``continued presence'' 
pursuant to 28 CFR 1100.35, which is only temporary and requires that 
the alien depart the United States once his or her presence for 
purposes of the criminal investigation or prosecution is no longer 
required, unless the alien has some other immigration status. Those 
acquiring T-1 nonimmigrant status will be able to remain in the United 
States for a period of three years, whether or not they were granted 
``continued presence.''
    Unlike other provisions of section 107 of the TVPA, T-1 
nonimmigrant status is limited to victims of severe forms of 
trafficking in persons who are physically present on account of the 
trafficking and can establish that they would suffer ``extreme hardship 
involving unusual and severe harm'' if they were removed from the 
United States. In view of the annual limitation imposed by Congress for 
T-1 status, and the standard of extreme hardship involving unusual and 
severe harm, the Service acknowledges that the T-1 status will not be 
an appropriate response with respect to many cases involving aliens who 
are victims of severe forms of trafficking in persons.
    To best meet these goals, the Service has determined that 
applicants may apply individually for T-1 nonimmigrant status without 
requiring third party sponsorship from a law enforcement agency, as is 
the case for the existing S nonimmigrant status for alien witnesses and 
informants. See 8 CFR 214.2(t). Recognizing the importance of providing 
assistance to law enforcement investigations and prosecutions, however, 
this interim rule provides a standard form for law enforcement agencies 
to use to provide sufficient background information to document that 
the alien is a victim of a severe form of trafficking in persons and 
has cooperated with reasonable requests for assistance to law 
enforcement. Although a law enforcement endorsement will not be 
required, and an alien will be able to submit secondary evidence to 
establish these statutory requirements, the submission of this 
endorsement form will serve as primary evidence to satisfy these two 
elements and is strongly encouraged.
    Aliens who have been granted T-1 status also will be able to seek 
derivative T status for their immediate family members who are 
accompanying or following to join them, if they can demonstrate that 
the removal of those family members from the United States (or the 
failure to admit the family members to the United States if they are 
currently abroad) would result in extreme hardship. Eligible immediate 
family members of the T-1 principal may receive derivative T-2 (spouse) 
or T-3 (child) status, and, in the case of a T-1 principal alien under 
the age of 21, T-4 (parent) status. The statutory numerical limitations 
do not apply to immediate family members classified as T nonimmigrant 
aliens. The Service notes that such immediate family members also may 
qualify for protection in appropriate cases under the regulations 
adopted to implement section 107(c) of the TVPA. See 28 CFR 1100.31.
    Eligible victims who are granted T-1 nonimmigrant status will be 
issued employment authorization to assist them in finding safe, legal 
employment while they attempt to retake control of their lives. Aliens 
with derivative T-2, T-3, or T-4 status also may apply for employment 
authorization.
    The TVPA also provides for the adjustment of status, at the 
Attorney General's discretion, from T nonimmigrant status to lawful 
permanent resident status for T nonimmigrants who: (1) Are admissible; 
(2) have been physically present in the United States for a continuous 
period of at least 3 years since the date of admission with T-1 
nonimmigrant status; (3) throughout such period have been persons of 
good moral character; and (4) establish either (i) that during such 
period they have complied with any reasonable request for assistance in 
the investigation or prosecution of acts of trafficking in persons, or 
(ii) that they would suffer extreme hardship involving unusual and 
severe harm upon removal from the United States. The provisions 
concerning adjustment of status will be the subject of a separate 
rulemaking.

The Interim Rule

    To qualify for T-1 nonimmigrant status, a person must demonstrate: 
(1) That he or she is a victim of a severe form of trafficking in 
persons; (2) that he or she is 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 in persons;

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(3) that, if 15 years of age or older, he or she has complied with any 
reasonable request for assistance in the investigation or prosecution 
of acts of trafficking in persons; and (4) that he or she would suffer 
extreme hardship involving unusual and severe harm if removed from the 
United States. The alien also must be admissible to the United States 
or obtain a waiver of inadmissibility from the Service. This rule 
addresses what the alien must show to meet each element necessary to 
qualify for the T nonimmigrant classification. The Service has created 
a new Form I-914, Application for the T Nonimmigrant Status, for this 
purpose. Form I-914 is composed of three sections: Application for the 
T Nonimmigrant Status (required); Supplement A, Application for 
Immediate Family Member of T-1 Recipient; and Supplement B, Declaration 
of a Law Enforcement Officer for Victim of Trafficking in Persons.

How Is a Victim of a Severe Form of Trafficking in Persons Defined?

    Section 103 of the TVPA defines the term ``victim of a severe form 
of trafficking in persons.'' To be a ``victim of a severe form of 
trafficking in persons,'' an individual must
     Have been recruited, harbored, transported, provided, or 
obtained for labor or services, or the purposes of a commercial sex 
act; and
     There must have been some force, fraud, or coercion 
involved to make the victim engage in the labor or services or the 
commercial sex act (except that there need not be any force, fraud, or 
coercion in cases of commercial sex acts where the victim is under 18); 
and
     For situations involving labor or services, the use of 
force, fraud, or coercion must be for the purpose of subjecting the 
victim to involuntary servitude, peonage, debt bondage, or slavery.
    This legislation provided the first definition under Federal law of 
a victim of a severe form of trafficking in persons. It builds upon the 
Constitutional prohibition on slavery, the existing criminal law 
provisions on slavery and peonage (Chapter 77 of title 18, U.S. Code, 
sections 1581 et seq.), on the case law interpreting the Constitution 
and these statutes (specifically United States v. Kozminski, 487 U.S. 
931, 952 (1988)), and on the new criminal law prohibitions contained in 
the TVPA.
    In order to make potential applicants for T-1 nonimmigrant status 
aware of the types of violations that must exist in order to meet the 
statutory definition of severe forms of trafficking in persons, the 
Service makes reference to the text of the 12 Federal criminal civil 
rights statutes contained within Chapter 77 of title 18 of the U.S. 
Code, beginning with section 1581. This set of statutes contains both 
preexisting and newly created trafficking in persons laws, many of 
which appear to constitute the crimes that Congress intended to cover 
in its statutory definition of severe forms of trafficking in persons. 
Accordingly, the definitions contained in section 214.11 reference the 
scope of those criminal provisions as an appropriate guide in applying 
the definitions of ``severe forms of trafficking in persons'' and its 
related terms for purposes of the T nonimmigrant status.
    The statutory definition of involuntary servitude reflects the new 
Federal crime of ``forced labor'' contained in section 103(5) of the 
TVPA, and expands the definition of involuntary servitude contained in 
Kozminski. In crafting the definition in the TVPA, Congress intended to 
broaden the types of criminal conduct that could be labeled 
``involuntary servitude.''
    The legislative history of the new ``forced labor'' crime (18 
U.S.C. 1589) provides helpful guidance on what types of conduct 
Congress intended to cover in its statutory definitions of severe 
trafficking in persons and, in particular, involuntary servitude:

    ``Section 1589 is intended to address the increasingly subtle 
methods of traffickers who place their victims in modern-day 
slavery, such as where traffickers threaten harm to third persons, 
restrain their victims without physical violence or injury, or 
threaten dire consequences by means other than overt violence * * * 
Because provisions within section 1589 only require a showing of a 
threat of ``serious harm,'' or of a scheme, plan, or pattern 
intended to cause a person to believe that such harm would occur, 
federal prosecutors will not have to demonstrate physical harm or 
threats of force against victims. The term ``serious harm'' * * * 
refers to a broad array of harms, including both physical and 
nonphysical, and section 1589's terms and provisions are intended to 
be construed with respect to the individual circumstances of victims 
that are relevant in determining whether a particular type or 
certain degree of harm or coercion is sufficient to maintain or 
obtain a victim's labor or services, including the age and 
background of the victims.'' 146 Cong. Rec. H8881 (daily ed. Oct. 5, 
2000).

    The only term within the statutory definition in section 103 of the 
TVPA that is not covered by Chapter 77 of title 18, U.S. Code, is the 
term ``debt bondage.'' According to the TVPA, ``the term ``debt 
bondage'' means the status or condition of a debtor arising from a 
pledge by the debtor of his or her personal services or of those of a 
person under his or her control as a security for debt, if the value of 
those services as reasonably assessed is not applied toward the 
liquidation of the debt or the length and nature of those services are 
not respectively limited and defined.'' TVPA, section 103(4).
    The Service also notes that the definitions in section 103 of the 
TVPA are applicable not only for purposes of the T nonimmigrant status, 
but also for many other purposes as well under the TVPA. For example, 
the same definitions of ``severe forms of trafficking in persons'' and 
its related terms are used for purposes of:
     The provisions of section 107(c) of the TVPA and in the 
implementing regulations on Protection and Assistance for Victims of 
Trafficking adopted by the Attorney General and the Secretary of State 
at 66 FR 38514 (July 24, 2001) (to be codified at 28 CFR part 1100);
     The provisions for eligibility for benefits and services 
under section 107(b) of the TVPA;
     The annual country reports on human rights practices 
prepared by the Department of State under the Foreign Assistance Act of 
1961, as amended by section 104 of the TVPA; and
     The minimum standards for the elimination of severe forms 
of trafficking in persons and the provisions to promote compliance with 
those minimum standards, as provided in sections 108 through 111 of the 
TVPA.
    In providing for the new T nonimmigrant status, Congress directed 
the Attorney General to apply the definition of a ``victim of a severe 
form of trafficking in persons'' as it is defined in section 103 of the 
TVPA. Section 103 of the TVPA provides a common definition of the key 
statutory terms that are used in several different contexts in Title I 
of the TVPA. In view of the common usage of these definitions in 
section 103 for many purposes under the TVPA, the Service will 
interpret and apply those terms for purposes of the T nonimmigrant 
status with due regard for the definitions and application of these 
terms in 28 CFR part 1100 and the provisions of chapter 77 of title 18, 
United States Code.
    In determining whether an applicant is a victim of a severe form of 
trafficking in persons, the Service will consider all credible and 
relevant evidence. Except in instances of sex trafficking involving 
minors, severe forms of trafficking in persons must involve both a 
particular means (force, fraud, or coercion) and a particular end (sex 
trafficking,

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involuntary servitude, peonage, debt bondage, or slavery). It is the 
applicant's burden to demonstrate both elements of a severe form of 
trafficking in persons. For example, an adult involved in commercial 
sexual activity that is not induced by force, fraud, or coercion will 
not be considered a victim of a severe form of trafficking in persons.

When Is an Alien Physically Present in the United States on Account of 
Such Trafficking?

    A victim of a severe form of trafficking in persons must be 
``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.'' TVPA, section 
107(e)(1)(T)(i)(II). Some traffickers arrange for entry of their 
victims into these jurisdictions as part of the trafficking scheme, 
while other traffickers prey upon aliens who are already in the United 
States. These aliens may have entered lawfully for a certain purpose, 
for instance in a student status under section 101(a)(15)(F) of the 
Immigration and Nationality Act (INA), or they may have entered without 
being admitted or paroled and are unlawfully present. The Service is 
interpreting the statute in light of Congressional intent to reach 
those aliens who are physically present under each of these 
circumstances if they are or were victims of severe forms of 
trafficking in persons occurring within those jurisdictions. The 
Service will take into account the circumstances relating to the 
alien's arrival and current presence in these jurisdictions.
    As a result of this broad range of aliens who may be victims of 
severe forms of trafficking in persons, the Service interprets the 
physical presence requirement to reach those aliens who: (1) Are 
present because they are being held in some sort of severe form of 
trafficking in persons situation; (2) were recently liberated from a 
severe form of trafficking in persons; or (3) were subject to severe 
forms of trafficking in persons at some point in the past and remain 
present in the United States for reasons directly related to the 
original trafficking in persons.
    If such aliens have escaped their traffickers before law 
enforcement became involved in the matter, they must show that they did 
not have a clear chance to leave the United States in the interim. The 
Service will consider whether an applicant had a clear chance to leave 
in light of the individual applicant's circumstances. Information 
relevant to this determination may include, but is not limited to, 
circumstances attributable to the trafficking in persons situation. 
This determination may reach both those who entered the United States 
lawfully and those who entered without being admitted or paroled.
    The Service will consider all evidence available to determine 
physical presence, including requiring the alien to explain in a 
narrative submitted as part of Form I-914, Application for the T 
Nonimmigrant Status. This information will help Service adjudicators 
determine whether the alien had a clear chance to leave the United 
States after escaping from the trafficker, in order to determine 
whether an alien is present on account of trafficking.
    Aliens who have traveled out of the United States and then returned 
will be presumed not to be here on account of trafficking in persons 
and will have to show that their presence here is the result of 
continued victimization at the hands of the traffickers or a new 
incident of a severe form of trafficking in persons.
    It is important to note that aliens who are present in the United 
States without having been admitted or paroled are inadmissible, and 
accordingly they will have to obtain a waiver of inadmissibility in 
order to be eligible for T nonimmigrant status.

What Is the Difference Between Alien Smuggling and Severe Forms of 
Trafficking in Persons?

    Federal law makes a distinction between alien smuggling--in which 
the smuggler arranges for an alien to enter the country illegally for 
any reason, including where the alien has voluntarily contracted to be 
smuggled--and severe forms of trafficking in persons. Unlike alien 
smuggling, severe forms of trafficking in persons must involve both a 
particular means such as the use of force, fraud, or coercion, and a 
particular end such as involuntary servitude or a commercial sex act 
(with regard to a commercial sex act, however, the use of force, fraud, 
or coercion is not necessary if the person induced to perform a 
commercial sex act is under the age of 18). Pursuant to the TVPA, 
victims of a severe form of trafficking in persons are persons who are 
recruited, harbored, transported, provided, or obtained for: (1) Labor 
or services, through the use of force, fraud, or coercion for the 
purpose of subjection to involuntary servitude, peonage, debt bondage, 
or slavery; or (2) the purpose of a commercial sex act in which such 
act is induced by force, fraud, or coercion, or in which the person 
induced to perform such act has not attained 18 years of age.
    In most cases, aliens who are voluntarily smuggled into the United 
States will not be considered victims of a severe form of trafficking 
in persons. However, individuals who are voluntarily smuggled into the 
United States in order to be used for labor or services may become 
victims of a severe form of trafficking in persons if, for example, 
after arrival the smuggler uses threats of serious harm or physical 
restraint to force the individual into involuntary servitude, peonage, 
debt bondage, or slavery. Federal law prohibits forced labor regardless 
of the victim's initial consent to work. This distinction between alien 
smuggling and severe forms of trafficking in persons is consistent with 
the separate treatment of trafficking in persons and alien smuggling 
internationally.
    Aliens who can establish that they are or have been a victim of a 
severe form of trafficking in persons, regardless of the circumstances 
of their arrival in the United States, may be eligible to receive 
various forms of assistance under sections 107(b) or (c) of the TVPA. 
In addition, a Federal law enforcement agency may request the Service 
to arrange for the alien's ``continued presence'' as provided in 28 CFR 
1100.35 for purposes of the investigation and prosecution of 
trafficking in persons crimes.

How Is Continued Presence, Issued Under Section 107(c) of the TVPA, 
Related to Obtaining T-1 Status?

    One of the elements an applicant for T-1 nonimmigrant status must 
prove is that he or she is a victim of a severe form of trafficking in 
persons. Documentation from the Service granting the applicant 
``continued presence'' in accordance with section 107(c) of the TVPA 
and 28 CFR 1100.35 shall be considered as establishing victim status. 
Continued presence documentation shall not be valid for purposes of 
establishing victim status, however, if the continued presence has been 
revoked based on a determination that the applicant is not a victim of 
a severe form of trafficking in persons.

What Is a Reasonable Request for Assistance From Law Enforcement in the 
Investigation or Prosecution of Acts of Trafficking?

    To be eligible for T nonimmigrant status, a victim of a severe form 
of trafficking in persons must comply with any reasonable request for 
assistance in the investigation or prosecution of acts of trafficking 
in persons (unless the victim is under the age of 15). When the

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applicant submits a Law Enforcement Agency (LEA) endorsement as part of 
his or her application package, the LEA who requested cooperation will 
make the initial determination as to the cooperation of the applicant. 
The Service will only challenge this assertion when there is evidence 
that the LEA's conclusion is incorrect.
    The Service interprets a ``reasonable request for assistance'' to 
be one made to a victim of a severe form of trafficking in persons to 
assist law enforcement authorities in the investigation or prosecution 
of acts of trafficking in persons. The Service's evaluation of the 
reasonableness of a request will be based on the totality of the 
circumstances, taking into account general law enforcement, 
prosecutorial, and judicial practices, the nature of the victimization, 
and the specific circumstances of the victim, including fear, severe 
traumatization (both mental and physical), and the age and maturity of 
young victims. Absent exceptional circumstances, it is reasonable for a 
law enforcement agency to ask of a victim of a severe form of 
trafficking in persons similar things it asks of other comparably-
situated crime victims. The Service welcomes comments on how it should 
evaluate the reasonableness of a request for assistance from law 
enforcement, particularly with respect to requests made to victims who 
are under the age of 18.
    In view of the statutory requirement for a victim of a severe form 
of trafficking in persons to comply with reasonable requests made by an 
LEA investigating or prosecuting severe forms of trafficking in 
persons, the victim must have had contact with a law enforcement agency 
regarding the incident, either by reporting the crime or by responding 
to inquiries from an LEA.
    On the form filled out by the LEA investigator or prosecutor, 
Supplement B, Declaration of Law Enforcement Officer for Victim of 
Trafficking in Persons, of Form I-914, Application for T Nonimmigrant 
Status, the Service will ask for information about the victim's 
cooperation with that LEA. The Service also will ask the alien to 
provide information about his or her cooperation on Form I-914. In 
determining whether an alien meets this element of T-1 nonimmigrant 
status eligibility, the Service will look at the totality of the 
circumstances surrounding the alien's involvement with the law 
enforcement or prosecuting agency.
    The alien may provide any credible evidence to meet this prong of 
eligibility or any other prong of eligibility. A non-exhaustive list of 
suggested forms of secondary evidence includes trial transcripts, court 
documents, police reports, news articles, and copies of reimbursement 
forms for travel to and from court. Under 8 CFR 103.2, affidavits are 
not considered primary or secondary evidence. They are another form of 
evidence, nonetheless. Applicants may provide their own affidavits and 
those from other witnesses.
    If the Service has reason to believe that there is a question about 
the reasonableness of a request for assistance by an LEA or the 
applicant's compliance, and the resolution of this question is 
necessary for the proper adjudication of the application, the Service 
will contact the LEA. The Service will take all practical steps to 
reach an acceptable resolution with the LEA. The determination of what 
is a reasonable request shall be within the sole discretion of the 
Service.

From Whom May the Request for Law Enforcement Assistance Come?

    This rule provides that any appropriate LEA with jurisdiction in 
the investigation or prosecution of acts of trafficking in persons may 
make a request for law enforcement assistance. An LEA is a Federal law 
enforcement or prosecuting agency, including, but not limited to, the 
Federal Bureau of Investigation (FBI), the Service, the United States 
Attorneys' Offices, the Department of Justice's Civil Rights and 
Criminal Divisions, the United States Marshals Service, and the 
Department of State's Diplomatic Security Service. While States and 
localities may investigate or prosecute crimes of ``trafficking in 
persons,'' for purposes of this rule the only agencies authorized to 
investigate or prosecute crimes that meet the definition under the TVPA 
of ``severe forms of trafficking in persons'' are those that 
investigate violations of the Federal offenses detailed in the TVPA. If 
state or local investigative or prosecuting agencies believe they have 
encountered a victim of a severe form of trafficking in persons, they 
should contact an LEA to report the crime. In this way, aliens who have 
only received requests to assist in the criminal investigations or 
prosecutions of state or local crimes also may have the opportunity to 
assist Federal law enforcement or prosecuting agencies and therefore 
meet the requirements for eligibility for T-1 nonimmigrant status under 
this section and the Act.

What Is the Law Enforcement Agency Endorsement?

    The LEA endorsement is Supplement B, Declaration of a Law 
Enforcement Officer for Victim of Trafficking in Persons, of Form I-
914, Application for T Nonimmigrant Status. It is issued by the 
authorities conducting an investigation or prosecution when they 
believe an individual is or has been a victim of a severe form of 
trafficking in persons and the victim has cooperated with any 
reasonable law enforcement requests. The Service has interpreted the 
statutory language to mean that only Federal law enforcement agencies 
investigating or prosecuting acts of trafficking in persons will be 
allowed to fill out the LEA endorsement. The Service has chosen this 
interpretation because severe forms of trafficking in persons are 
Federal crimes under the TVPA. If a state law enforcement agency 
believes it has encountered a victim of a severe form of trafficking in 
persons who would be eligible for T-1 nonimmigrant status, the state 
law enforcement agency or the alien should contact the local office of 
an LEA or the Civil Rights Division's Criminal Section. Potential 
victims who have not yet reported crimes to an LEA ought to contact the 
nearest local FBI, Service, or U.S. Attorney's office to report the 
trafficking in persons crime. Alternatively, the victim may contact the 
Department of Justice, Civil Rights Division, Trafficking in Persons 
and Worker Exploitation Task Force complaint line at 1-888-428-7581 to 
report crimes and to obtain information about LEA endorsements. It is 
important to recognize that an LEA, if it so desires, may only fill out 
an endorsement when, after a full assessment, it determines that the 
individual is a victim of a severe form of trafficking in persons and 
has complied with any reasonable request the LEA has made.
    An LEA endorsement is not a mandatory part of a T-1 nonimmigrant 
status application. All T-1 applicants, however, are strongly 
encouraged to provide such an endorsement if possible. The LEA 
endorsement serves as primary evidence that the alien is a victim of a 
severe form of trafficking in persons, and has not unreasonably refused 
to assist in the investigation or prosecution of trafficking in 
persons. If the applicant chooses not to include an LEA endorsement, 
the Service will make an independent assessment of any credible 
evidence presented, in accordance with this rule, to determine if the 
applicant meets the cooperation with law enforcement requirement.

[[Page 4789]]

When Will the Service Provide Information From the Form I-914, 
Application for the T Nonimmigrant Status, to Other Agencies?

    A victim's confidentiality and his or her safety, to the extent the 
law allows, will be considered when releasing information to Federal 
investigative agencies and/or defendants. In accordance with 42 U.S.C. 
10606, Department of Justice employees will use their best efforts to 
see that victims of Federal crimes are accorded the rights due such 
victims, including the right to be treated with fairness and with 
respect for their dignity and privacy, and the right to be reasonably 
protected from accused offenders.
    However, the Service may provide the information about any Federal 
crimes detailed to Federal investigative agencies, such as the FBI, 
U.S. Attorney's office, or the Department's Civil Rights or Criminal 
Divisions, or to the Service's Investigations unit. These contacts may 
be for the purpose of assessing whether an alien has complied with any 
reasonable request for assistance, or to promote enforcement of the 
Federal laws against trafficking in persons.
    In addition, under established legal standards, the Department of 
Justice has an obligation to provide statements by witnesses and 
certain other documents to defendants in pending criminal proceedings. 
These obligations stem from constitutional, statutory, and other legal 
requirements that pertain to the government's duty to disclose 
information, including exculpatory evidence or impeachment material, to 
the defendant in order to prepare his or her defense. Accordingly, in 
any case where the Department is prosecuting a person for trafficking 
in persons offenses involving that victim, the Service will make 
appropriate arrangements with the Department of Justice component 
responsible for prosecution to ensure that information in the victim's 
application for T nonimmigrant status and other documents that fall 
within the scope of the Department's legal obligations will be made 
available on a timely basis to the Federal prosecutors.

What Happens if an Applicant Is Inadmissible Under One of the Grounds 
in Section 212(a) of the Immigration and Nationality Act?

    A principal or derivative applicant who is or becomes inadmissible 
under section 212(a) of the INA will not be eligible for T nonimmigrant 
status unless the ground of inadmissibility is waived by the Service. 
If the ground of inadmissibility is one that can be waived, the alien 
should apply for a waiver of the grounds of inadmissibility from the 
Service on Form I-192, Application for Advance Permission to Enter as 
Nonimmigrant (Pursuant to Section 212(d)(3) of the Immigration and 
Nationality Act). Section 212(d)(3)(B) provides general authority for 
the Service to waive many grounds of inadmissibility for nonimmigrants. 
These waivers are not automatic, but may be granted in the exercise of 
its discretion. Form I-192 should be filed at the time of filing Form 
I-914.
    In the TVPA, Congress recognized that victims of a severe form of 
trafficking in persons might need this specific relief from 
inadmissibility. Section 107(e)(3) of the TVPA creates additional 
authority for the waiver of inadmissibility, at the discretion of the 
Attorney General, in the case of victims of a severe form of 
trafficking in persons if the Attorney General considers it to be in 
the national interest to do so. Under new section 212(d)(13) of the 
INA, such victims may receive a waiver on health-related grounds 
(section 212(a)(1)) or on public charge grounds (section 212(a)(4)). 
Section 212(d)(13) of the INA also authorizes the Attorney General to 
waive the criminal grounds of inadmissibility in section 212(a)(2) of 
the INA and certain other grounds if the activities rendering the alien 
inadmissible were caused by or were incident to the alien's 
victimization.
    The reference to waiver of the public charge ground should be 
understood in light of another section of the TVPA--section 
107(b)(1)(A) and (E)--which provides that victims of severe forms of 
trafficking in persons who are over 18 years of age may be certified by 
the Department of Health and Human Services (HHS) to receive certain 
benefits and services ``to the same extent as an alien who is admitted 
to the United States as a refugee.'' Victims of a severe form of 
trafficking in persons under age 18 also are eligible for services to 
the same extent as refugees, but they do not have to be certified by 
HHS. Under this provision, victims may receive certain benefits and 
services as if they were refugees, which might include cash assistance. 
Refugees are provided with special humanitarian benefits because of 
their vulnerable circumstances, and are exempt from virtually every 
aspect of the public charge determination. For the purposes of receipt 
of public benefits, Congress has recognized that victims of severe 
forms of trafficking are in much the same position as refugees, and 
therefore has provided specific authority for the Service to exempt 
them from the ground of inadmissibility for aliens who are likely to 
become a public charge.

How Does a Victim of a Severe Form of Trafficking in Persons Apply for 
T-1 Nonimmigrant Status?

    A victim of a severe form of trafficking in persons may apply 
directly to the Service for T-1 nonimmigrant status. The application 
requires submission of a Form I-914, a $200 filing fee (plus $50 per 
immediate family member) or an application for a fee waiver, a 
fingerprinting fee, three current identical color photographs, and 
evidence establishing each eligibility requirement. All necessary 
materials should be compiled into one application package and submitted 
to the Director, Vermont Service Center, 75 Lower Welden Street, St. 
Albans, Vermont 05479-0001.
    All applicants for T nonimmigrant status must be fingerprinted for 
the purpose of conducting a criminal background check as part of the 
application process. The Service recognizes the importance of making 
timely determinations of bona fide applications in order for victims of 
severe forms of trafficking to receive critical health and other social 
services as soon as possible. After submitting an application with fee 
to the Service, the applicant will be notified of the proper time and 
location to appear for fingerprinting. In 1997, Congress created a new 
program that required the Service to have direct oversight of the 
fingerprint process and enabled the Service to add new technology for 
exchanging data with the FBI. As a result, the Service created the 
Application Support Center (ASC) program, which is currently composed 
of 133 offices located across the country. In addition, state-of-the-
art technology and customized software have been employed at these 
ASCs, permitting live-scan capture of fingerprints and automated 
transmission of fingerprints to the FBI's Integrated Automated 
Fingerprint Identification System (IAFIS) electronically. As a result 
of these process and systems enhancements, the Service has been able to 
reduce the rate at which the FBI rejected these fingerprint cards from 
40 percent to 3 percent, and reduced the overall FBI response time from 
approximately nine months to, in most cases, less than one day. The 
Service will continue to review fingerprint processing operational 
performance and build upon ongoing enhancements in applicant 
scheduling, live-scan biometrics capture, and automated data exchange 
to ensure the overall efficiency and timeliness of fingerprint

[[Page 4790]]

processing. As part of the forthcoming final rulemaking, the Service 
will consider whether any systemic issues have arisen regarding the 
timeliness of background checks related to the administration of this 
program, and consider whether any improvements need to be made by the 
Service to ensure timely determinations of whether an applicant has 
submitted a bona fide application.

What Are the Stages Involved With the Application Process for T 
Nonimmigrant Status?

    There are several stages involved in the T nonimmigrant status 
application process: (1) The submission of an application for T-1 
nonimmigrant status (which may be accompanied by applications for 
derivative T nonimmigrant status for immediate family members); (2) the 
Service's determination of whether an application for T nonimmigrant 
status is bona fide; and (3) the adjudication of the application for T 
nonimmigrant status. The Service will approve an application for T-1 
nonimmigrant status when room is available under the cap for each 
fiscal year, or place the alien on the waiting list (which will be 
carried over to subsequent years) for the grant of a T-1 nonimmigrant 
status application if the cap has been reached. The cap is not affected 
by applications for derivative T nonimmigrant status.
    Submission of an application for T-1 nonimmigrant status. In the 
first stage of the process, the alien submits an application for T-1 
nonimmigrant status. At this stage, the victim of a severe form of 
trafficking in persons provides evidence sufficient to demonstrate each 
required element necessary for the Service to issue T-1 nonimmigrant 
status.
    A complete application includes Form I-914, Application for the T 
Nonimmigrant Status; three identical color photographs; applicable fees 
or applications for fee waivers; and all evidence to fully support his 
or her claims to the four eligibility elements. An application also may 
include Supplement A, Supplemental Application of Immediate Family 
Members for T-1 Recipient, and Supplement B, Declaration of a Law 
Enforcement Officer for Victim of Trafficking in Persons of Form I-914, 
Application for T Nonimmigrant Status, and Form I-192, Application for 
Advance Permission to Enter as Nonimmigrant, for a waiver of a ground 
of inadmissibility, if necessary.
    An Employment Authorization Document will be generated from the I-
914 information. The applicant does not need to file Form I-765, 
Application for Employment Authorization, with the application package.
    Determination of a bona fide application for T nonimmigrant status. 
The Service will review the submitted information to ensure that the 
application is complete and ready for adjudication, which includes that 
the fingerprinting and criminal background checks are completed and 
that the submitted information presents prima facie evidence for each 
eligibility requirement. This determination of whether there is prima 
facie evidence will be made for T-1 applications, according to the 
eligibility standards for that status. If the application is 
sufficient, the application will be determined to be a bona fide 
application for T-1 nonimmigrant status. However, if the alien is 
inadmissible, the Service will not consider the application to be bona 
fide unless the ground of inadmissibility is one under the 
circumstances described in section 212(d)(13) of the INA, as added by 
section 107(e) of the TVPA, or unless the Service already has granted a 
waiver of inadmissibility with respect to any other ground. All waivers 
are discretionary and require a request for a waiver. Under section 
212(d)(13), however, an application can be bona fide before the waiver 
is granted. This is not the case under other grounds of 
inadmissibility.
    The Service will not consider an application that is incomplete to 
be bona fide until the applicant submits the necessary additional 
evidence to establish prima facie eligibility for each required element 
of the T-1 nonimmigrant status. The Service will notify the applicant 
regarding the additional evidence that needs to be submitted in those 
circumstances, as provided in 8 CFR 103.2(b)(8).
    Once an application is determined to be a bona fide application for 
T nonimmigrant status, the Service will provide written confirmation to 
the applicant. The Service will use various means to prevent the 
removal of individuals who have filed bona fide applications, such as 
deferred action, parole, and stay of removal, until the Service issues 
a final decision on the application. (Some victims of a severe form of 
trafficking in persons, however, already may have been granted 
``continued presence'' as provided in section 107(c) of the TVPA and 
the regulation implementing it. See 66 FR 38514 (July 24, 2001) 
(codified at 28 CFR 1100.35).) Individuals granted deferred action, 
parole, or stay of removal may be granted employment authorization by 
filing Form I-765, Application for Employment Authorization, in 
accordance with Service policies and procedures.
    Once an application for T-1 nonimmigrant status is determined to be 
bona fide by the Service, an applicant age 18 or older may apply to HHS 
to be certified to receive certain benefits and services to the same 
extent as refugees, as provided in section 107(b) of the TVPA. In order 
for the victim of a severe form of trafficking in persons to be 
eligible, HHS must certify him or her to receive such benefits and 
services, unless the victim is under the age of 18. The Service notes 
that victims under age 18 do not need to be certified, nor do they need 
to submit a bona fide application for T nonimmigrant status, in order 
to receive such benefits and services. To be considered a victim and 
therefore eligible for these benefits and services, those under 18 must 
be determined to have been subjected to a severe form of trafficking in 
persons. The Service also notes that individuals who have received 
``continued presence'' under section 107(c) of the TVPA may apply to 
HHS to be certified.
    Adjudication of applications for T nonimmigrant status. The Service 
has centralized the adjudication process at its Vermont Service Center. 
This centralization will allow adjudicators to develop expertise in 
handling these cases and provide for uniformity in the adjudication of 
these applications. If the Service finds that the alien has satisfied 
the requirements for T nonimmigrant status, it will either grant T 
nonimmigrant status or (in the case of T-1 applicants who are subject 
to the annual cap) place the alien on a waiting list, as discussed 
below.
    In any case in which the Service denies an application for T 
nonimmigrant status, the applicant can appeal to the Administrative 
Appeals Office (AAO) under procedures outlined in 8 CFR 103.3.
    Approval of T-1 nonimmigrant status or placement on the waiting 
list for the grant of T-1 nonimmigrant status. If the Service 
determines that there are sufficient grounds to grant T-1 nonimmigrant 
status, the Service will send a notice of approval to the applicant 
only if a T-1 nonimmigrant status number is available. When the Service 
grants an application for T-1 status, it will simultaneously grant 
employment authorization (if not already obtained).
    In the event a number is not available, the Service will send the 
applicant a notice of placement on the waiting list.

[[Page 4791]]

What Will Happen if There Are More Eligible T-1 Applicants Than the 
Number Available for the Year?

    According to the TVPA, there is a 5,000-person limit to the number 
of individuals who can be granted T-1 status per fiscal year (from 
October 1 through September 30). Once the numerical limit has been 
reached in a particular fiscal year, all pending and subsequently 
submitted applications will continue to be reviewed in the normal 
process to determine eligibility, but the Service will not grant T-1 
nonimmigrant status prior to the beginning of the next fiscal year. 
Eligible applicants who are not granted T-1 status due solely to the 
numerical limit shall be placed on a waiting list to be maintained by 
the Service. In the event a number is not available, the Service will 
send the applicant a notice of placement on the waiting list. 
Applicants on the waiting list will be given priority the following 
fiscal year based on the date the application was properly filed. Each 
year, as new numbers for the T-1 nonimmigrant status become available, 
the Service will grant them to applicants on the waiting list.
    Eligible applicants on the waiting list must be admissible at the 
time status is granted. Eligible applicants on the waiting list may be 
asked to resubmit fingerprints (and pay the appropriate fee) and 
photographs because of the passage of time between their submission and 
the date a nonimmigrant status becomes available. After the Service has 
granted T-1 status to applicants on the waiting list, the Service will 
continue to grant applications, up to the annual limit, to new 
applicants in the order in which each application was properly filed.

Will T-1 Applicants Be Removed From the United States While on the 
Waiting List?

    The Service will use various means to prevent the removal of T-1 
applicants on the waiting list, and their family members who are 
eligible for derivative T status, including its existing authority to 
grant deferred action, parole, and stay of removal. However, an 
applicant may be removed, and his or her application denied, for 
conduct that occurs while an alien is on the waiting list or for not 
disclosing relevant information at the time of filing. During this 
time, applicants for T status who are granted deferred action or stay 
of removal will not accrue unlawful presence under section 212(a)(6) or 
(9) of the INA. Applicants also will be able to renew their work 
authorization documents, as needed.
    While on the waiting list, the T-1 applicant will remain in his or 
her current immigration status (deferred action, parole, stay of 
removal, or other immigration status) and will retain eligibility for 
employment authorization, subject to any conditions placed on that 
authorization, until new numbers for T-1 nonimmigrant status become 
available in a subsequent fiscal year.

How Will the Revocation of a T-1 Status Affect the Annual Cap?

    The revocation of a T-1 status will have no effect on the annual 
cap. Once a T-1 status is granted, it will be deemed to have been used 
and cannot be used again. The Service considered re-using the T-1 
status but determined it would be infeasible to track, especially if 
the T-1 status were granted several years ago and the individual were 
waiting for adjustment to lawful permanent resident status. The Service 
concluded that tracking when T-1 classifications are granted and then 
trying to backfill the numbers with additional grants or provide grants 
above the annual cap would put undue burden on the Service.

When Can a T-1 Nonimmigrant Apply for Derivative Status for Family 
Members?

    An applicant for T-1 status may apply for derivative T nonimmigrant 
status, at the time of the original T-1 application, for his or her 
spouse (T-2) or child (T-3), or in the case of a child who is applying 
for T-1 status, the child's parents (T-4). An applicant for T-1 status 
or an alien who has been granted T-1 nonimmigrant status also may apply 
at a later date by filing a separate Form I-914 and attachments. 
Applications for derivative status must be accompanied by the required 
attachments, such as fingerprints, photographs, and fees.

How Will the Service Adjudicate Applications for Derivative Status of 
Family Members of a Victim of a Severe Form of Trafficking in Persons?

    The annual limitation does not apply to immediate family members 
who are granted derivative T-2, T-3, or T-4 status. However, the 
Service will not grant an application for derivative T status until the 
principal alien has been granted T-1 status. Once the principal alien 
is granted T-1 nonimmigrant status, eligible family members who receive 
a derivative status can apply for employment authorization on Form I-
765, and, if granted, receive work authorization.

What Is the Duration of the T Nonimmigrant Status?

    T nonimmigrant status will be granted for 3 years. This period of 
stay is timed to coordinate with the separate statutory authority for 
adjustment of status. An alien in T nonimmigrant status is eligible to 
apply for adjustment of status to that of a legal permanent resident 
under the criteria listed in section 107(f) of the TVPA and forthcoming 
Service regulations. Should an alien with T nonimmigrant status leave 
the United States during the 3 years prior to applying for lawful 
permanent residence, he or she must file a Form I-131, Application for 
Travel Document, before departing the United States to obtain advanced 
parole in order to return to the United States. This requirement is 
true for T-1 principal aliens as well as family members in derivative 
T-2, T-3, or T-4 status.
    The T nonimmigrant status is not renewable. If the alien properly 
files for adjustment of status to that of a person admitted for 
permanent residence within the 90-day period immediately preceding the 
third anniversary of the date of the approval of the alien's Form I-
914, the alien shall continue to be in a T nonimmigrant status with all 
the rights, privileges, and responsibilities provided to a person 
possessing such status, including employment authorization, until such 
time as a final decision is rendered on the alien's adjustment of 
status. At the time an alien is approved for T nonimmigrant status, the 
Service shall notify the alien that his or her nonimmigrant status will 
expire in 3 years from the date of the approval of the alien's Form I-
914, and that if the alien wishes to apply to adjust status, the alien 
must apply within the 90-day period immediately preceding the 
expiration of T nonimmigrant status.

What Is the Fee for an Application for T Nonimmigrant Status?

    In the Departments of Commerce, Justice, and State, the Judiciary, 
and Related Agencies Appropriation Act, 1989, Pub. L. 100-459, Sec. 
209, 102 Stat. 2186, 2203 (1988), Congress mandated that the Service 
prescribe and collect fees to recover the cost of providing certain 
immigration and naturalization benefits. Congress has not provided 
appropriated funds to pay for nonimmigrant classification programs.
    The Service has determined that the fee for filing Form I-914, 
Application for the T Nonimmigrant Status, is $200. An applicant for T-
1 status also will be

[[Page 4792]]

able to request derivative T nonimmigrant status for eligible family 
members for an additional fee of $50 for each person included in the 
same application, up to a maximum amount of $400.
    Applications for immediate family members filed subsequent to the 
T-1 principal's application will be considered a new filing and will 
require the full fee of $200 for the first family member and $50 for 
each additional family member, up to a maximum amount of $400.

Are Fee Waivers Available?

    The Service recognizes that many applicants for T nonimmigrant 
status may be unable to pay the full application fee. Applicants who 
are financially unable to pay the application fee may submit an 
application for a fee waiver, as outlined in 28 CFR 103.7(c). The 
granting of a fee waiver will be at the sole discretion of the Service. 
Further guidance on fee waivers can be found on the INS Web site 
currently at http://www.ins.gov/graphics/formsfee/forms/index.htm#waiver.
    In addition to the filing fee for the Form I-914, applicants will 
have to submit the established fee for fingerprinting services for each 
person between the ages of 14 and 79 years inclusive with each 
application. This fee is currently $25 per person, and is not subject 
to a fee waiver. The Service has published a final rule to increase 
this amount to $50 per person, which takes effect February 19, 2002. 
See 66 FR 65811 (Dec. 21, 2001) (final rule adjusting fees for the 
Immigration Examinations Fee Account).

How Did the Service Arrive at the Fee Amount?

    The Service arrived at the fee amount by comparing the process 
requirements of the new I-914 with existing adjudication procedures. 
The adjudication of the I-914 will be very similar to that of the I-
360, Petition for a Special Immigrant. The application also will be 
used to generate an Employment Authorization Document (EAD), taking the 
place of a separate I-765, Application for Employment Authorization. 
The fee for the I-360 is $110, and the fee for the I-765 is $100. These 
fees are scheduled to be increased to $130 and $120 respectively on 
February 19, 2002. The sum of the two fees ($250) is reduced to $240 to 
reflect that only one form needs handling and tracking. Furthermore, 
there is no separate adjudication required for employment authorization 
for T principals, who are authorized to work incident to status. As a 
result, this fee has been further reduced to reflect saved adjudication 
expenses and to take into account that only the T principal's EAD is 
incident to status. Based on these calculations, the Service set the 
fee at $200. The addition of $50 for each additional person included on 
the form was based on a comparison of the I-914 process to the 
processing of Form I-687, Application for Status as Temporary Resident, 
which also requires an additional fee of $50 per additional person on 
the application. The Service conducts evaluations of the required fees 
every two years to ensure that they are fair and accurate. The fee 
charged for the Form I-914 will be reviewed periodically and adjusted, 
as appropriate.

May T-1 Applicants and Applicants for T Derivative Status Apply From a 
Foreign Country?

    Applicants for T-1 status must be physically present in the United 
States at the time of application. However, the T-1 principal alien may 
apply to the Service for derivative T nonimmigrant status on behalf of 
immediate family members who are following to join the T-1 principal. 
The Service may approve applications for T-2, T-3, or T-4 status for 
eligible immediate family members if they are admissible to the United 
States and can meet the requirement to demonstrate extreme hardship. If 
the Service grants the application for derivative T nonimmigrant status 
for aliens who are currently abroad, the Service will notify the 
appropriate consular office and make arrangements for the issuance of 
the necessary visas for admission of those eligible family members.

Can Victims of a Severe Form of Trafficking in Persons That Occurred 
Prior to the Enactment of the TVPA Apply for a T Nonimmigrant 
Classification?

    Yes. Victims of a severe form of trafficking in persons whose 
victimization occurred prior to enactment of the TVPA on October 28, 
2000, may file a completed application. The Service recommends that 
victims file applications as soon as possible because delays could 
result in difficulty in establishing statutory eligibility 
requirements. Section 214.11(d)(4) of this rule provides that, if the 
victimization occurred prior to the enactment of the TVPA, the alien 
must file the application for T-1 status within one year of the 
effective date of this rule, except in exceptional circumstances or 
within one year after the victim reaches his or her 21st birthday, 
whichever comes later.

Does Applying for T Nonimmigrant Status Prevent the Applicant From 
Applying for Other Types of Immigration Benefits?

    No. An alien may apply for any and all immigration benefits for 
which the alien may be eligible. However, an alien may not hold more 
than one nonimmigrant status at a time. Nothing in this regulation or 
in the TVPA limits a qualified applicant from seeking other immigration 
benefits while pursuing T status. In addition, aliens granted continued 
presence may be eligible to receive certain benefits and services 
authorized by section 107(b)(1) of the TVPA.

Can a Victim Who Is in Exclusion, Deportation, or Removal Proceedings 
Before an Immigration Judge or the Board of Immigration Appeals (Board) 
Apply for T Nonimmigrant Status?

    Jurisdiction over all applications for T nonimmigrant status rests 
with the Service. However, a victim of a severe form of trafficking in 
persons who is currently in proceedings before an immigration judge or 
the Board may request Service counsel to consent to having the 
proceedings administratively closed (or that a motion to reopen or 
motion to reconsider be indefinitely continued) in order to allow the 
alien to pursue an application for T nonimmigrant status with the 
Service.
    As noted above, in order to be eligible for T nonimmigrant status, 
the alien must demonstrate that he or she is admissible to the United 
States, or must obtain a waiver of inadmissibility from the Service. An 
application from an alien who is inadmissible on grounds other than 
under the circumstances specified in section 212(d)(13) of the INA will 
not be considered to be bona fide unless the Service has granted a 
waiver of those other grounds. Accordingly, the Service will consider 
consenting to the administrative closure of the immigration proceedings 
for the purpose of filing an application for T nonimmigrant status only 
if there is a good reason to believe that the alien will be able to 
satisfy the eligibility requirements for the T status, including 
admissibility. (The Service notes, however, that it may arrange for the 
continued presence in the United States of a victim of a severe form of 
trafficking in persons, pursuant to 28 CFR 1100.35, during such time as 
an LEA has requested the alien's presence in the United States for 
purposes of investigating and prosecuting acts of severe forms of 
trafficking in persons. The Service will not act to remove an alien 
from the United States until the

[[Page 4793]]

law enforcement need for the alien's continued presence has come to an 
end or the alien has violated the terms of the continued presence.)
    The Service also acknowledges that, in some cases, an alien who is 
in immigration proceedings may be able to file a bona fide application 
for T nonimmigrant status. With respect to the medical and public 
charge grounds of inadmissibility, and certain other grounds of 
inadmissibility that were caused by or are incident to the alien's 
victimization, section 212(d)(13) of the INA provides additional 
authority for the waiver of these grounds in the case of applicants for 
T nonimmigrant status. For example, a victim of a severe form of 
trafficking in persons who had been forced into prostitution may well 
be able to make a bona fide application for T-1 status even though the 
alien has been placed into removal proceedings on grounds relating to 
those prostitution activities.
    With the concurrence of Service counsel, if the alien appears 
eligible for T nonimmigrant status, the immigration judge or the Board, 
whichever has jurisdiction, may administratively close the proceeding 
or continue a motion to reopen or motion to reconsider indefinitely. In 
the event the Service subsequently denies the alien's application for T 
nonimmigrant status, the Service will recommence proceedings that have 
been administratively closed by filing a motion to re-calendar with the 
Immigration Court or a motion to reinstate with the Board.

Can a Victim of Trafficking in Persons With a Final Order of Exclusion, 
Deportation, or Removal Apply for T Nonimmigrant Status?

    An alien who is the subject of a final order is not precluded from 
filing an application for T nonimmigrant status directly with the 
Service. In order to be eligible, an applicant for T nonimmigrant 
status must be admissible to the United States, and the Service notes 
that few aliens who are the subject of a final order of exclusion, 
deportation or removal will be able to satisfy that requirement. Thus, 
in general, the filing of an application for T nonimmigrant status will 
have no effect on the status of an alien who is subject to a final 
order.
    In those cases where the only basis for the final order of removal 
is one of the grounds of inadmissibility described in section 
212(d)(13) of the INA, the alien may be able to file a meritorious 
application for T nonimmigrant status. If the Service determines, as 
provided in this rule, that an alien's application for T status meets 
the requirements for a bona fide application, the Service will 
automatically stay execution of the final order of deportation, 
exclusion, or removal. Such a stay remains in effect until a final 
decision is made on the T application. If the T application is denied, 
the stay of the final order is deemed lifted as of the date of such a 
denial, without regard to whether the alien appeals the denial. 
However, the alien may apply for a discretionary stay of removal from 
the Service as provided in Sec. 241.6(a).
    If the application for T nonimmigrant status is granted, the final 
order shall be deemed canceled by operation of law as of the date of 
the approval.

What Happens to Victims of Severe Forms of Trafficking in Persons 
Arriving at a Port of Entry Who Are Subject to Expedited Removal?

    Expedited removal applies to an ``arriving alien'', as defined in 8 
CFR 1.1(q), when the alien is inadmissible pursuant to section 
212(a)(6)(C) or 212(a)(7) of the INA. Current Service procedures 
protect and provide services to victims of a severe form of trafficking 
in persons when Federal law enforcement officials encounter such 
victims, including those aliens arriving at ports of entry. 28 CFR 
1100.31. In addition, the Service is developing screening procedures to 
ensure that arriving aliens who are subject to the statutory provisions 
for expedited removal at ports of entry will, when applicable, be 
considered for T nonimmigrant status. An alien subject to expedited 
removal who expresses that he or she is a victim of a severe form of 
trafficking in persons will be interviewed by a Service officer 
immediately to determine whether there is reason to believe the 
individual is such a victim. Following such a determination, the victim 
will be referred to a District Office and will be interviewed by a 
Service officer responsible for investigating trafficking in persons 
within 7 days of arrival to determine whether the individual has a 
credible claim to victimization. The Service may inform an LEA that 
also investigates or prosecutes trafficking in persons about the 
individual's claim. If the alien has a credible claim to victimization, 
he or she will be given the opportunity to submit an application for T 
status pursuant to section 101(a)(15)(T) of the INA and any other 
benefit or protection for which they may be eligible. An arriving alien 
determined not to have a credible claim to being a victim of a severe 
form of trafficking in persons in the United States will be subject to 
expedited removal in accordance with Service policy.

Regulatory Procedures

Good Cause Exception

    This interim rule is effective 30 days from the date of 
publication. The Service invites post-promulgation comments and will 
address any such comments in a final rule. The Department finds that 
good cause exists for adopting this rule without the prior notice and 
comment period ordinarily required by 5 U.S.C. 553(b), because, in 
light of the public safety implications of the rule, giving prior 
notice and opportunity for comment would be contrary to the public 
interest.
    In passing the TVPA, Congress intended to create a broad range of 
tools to be used by the Federal government to combat the serious and 
immediate problem of trafficking in persons. The provisions of the TVPA 
address the effect of severe forms of trafficking in persons on 
victims, including many who may not have legal status and are reluctant 
to cooperate. In trafficking in persons situations, perpetrators often 
target individuals who are likely to be particularly vulnerable and 
unfamiliar with their surroundings. The TVPA strengthens the ability of 
government officials to investigate and prosecute trafficking in 
persons crimes by providing for temporary immigration benefits to 
victims of severe forms of trafficking in persons. This interim rule 
implements a legal nonimmigrant immigration status for eligible victims 
who have not refused any reasonable request to assist in the 
investigation or prosecution of a crime and can demonstrate that they 
would suffer extreme hardship involving severe and unusual harm if 
removed from the United States. Under section 107(b) of the TVPA, the 
filing of a bona fide application for T nonimmigrant status provides a 
basis to seek certification of the alien for purposes of eligibility 
for certain public benefits. In addition, this regulation provides 
certain victims with work authorization so that they may seek lawful 
employment. Without the prompt promulgation of this rule, victims of 
severe forms of trafficking in persons might continue to be victimized 
for fear of coming forward, thus hindering the ability of law 
enforcement to investigate and prosecute cases and preventing victims 
from obtaining critical assistance and benefits.
    The issuance of these regulations as an interim rule effective 30 
days after publication will allow victims to receive needed benefits 
and assistance as soon as possible. The 30-day delay in the

[[Page 4794]]

effective date will provide a brief interim period in which forms, 
informational brochures, and other guidance will be made available to 
Federal, state, tribal and local law enforcement officers and officials 
as well as non-profit victims rights and services groups. Because prior 
notice and comment with respect to this interim rule is contrary to the 
public interest, given the public safety implications of this rule, 
there is ``good cause'' under 5 U.S.C. 553 to make this rule effective 
March 4, 2002.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Attorney General, by approving this regulation, certifies 
that this rule will not have a significant economic impact on a 
substantial number of small entities. The Attorney General has reviewed 
this regulation in light of its potential impact on small businesses. 
The businesses that would be most significantly affected by this rule 
would be those in which the illegal act of trafficking in persons 
contributed to, or composed the majority of, their workforce. The human 
rights and criminal issues associated with such trafficking in persons 
are seen as more significant than the impact on small businesses that 
are dependent on illegal or coerced labor in violation of United States 
law.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in one year, and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
significant regulatory action under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget (OMB) under the 
provisions of the Paperwork Reduction Act. Clearance numbers for these 
collections are contained in 8 CFR 299.5, Display Control Numbers, and 
are noted herein. Form I-131, Application for Travel Document, OMB 
Control Number 1115-0062; Form I-192, Application for Advance 
Permission to Enter as Nonimmigrant, OMB Control Number 1115-0028; Form 
I-765, Application for Employment Authorization, OMB Control Number 
1115-0163. In addition, one new Service form, Form I-914, Application 
for T Nonimmigrant Status, has received clearance from OMB and was 
assigned OMB Control Number 1115-0246.

Executive Order 13132

    This rule will not have a substantial direct effect on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This final rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
programs, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students, Victims.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.


    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 
31 U.S.C. 9701; E.O 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 
166; 8 CFR part 2.


    2. Section 103.1 is amended by:
    a. Revising paragraph (f)(3))(iii)(W);
    b. Removing the word ``and'' at the end of paragraph 
(f)(3)(iii)(MM);
    c. Removing the period at the end of paragraph (f)(3)(iii)(NN) and 
adding ``; and'' in its place; and by
    d. Adding a new paragraph (f)(3)(iii)(OO) to read as follows:


Sec. 103.1  Delegation of authority.

* * * * *
    (f) * * *
    (3) * * *
    (iii) * * *
    (W) Revoking approval of certain applications, as provided in 
Secs. 214.2, 214.6, and 214.11 of this chapter;
* * * * *
    (OO) Applications for T nonimmigrant status under Sec. 214.11 of 
this chapter.
* * * * *

    3. Section 103.7(b)(1) is amended by adding, in proper alpha/
numeric sequence, a new Form ``I-914,'' to read as follows:


Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
    Form I-914. For filing an application to classify an alien as a 
nonimmigrant under section 101(a)(15)(T) of the Act (victims of a 
severe form of trafficking in persons and their immediate family

[[Page 4795]]

members)--$200. For each immediate family member included on the same 
application, an additional fee of $50 per person, up to a maximum 
amount payable per application of $400.
* * * * *

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    4. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 
1226, 1227; 8 CFR part 2.

    5. Section 212.1 is amended by revising paragraph (g) and adding a 
new paragraph (o), to read as follows:


Sec. 212.1  Documentary requirements for nonimmigrants.

* * * * *
    (g) Unforeseen emergency. A nonimmigrant seeking admission to the 
United States must present an unexpired visa and a passport valid for 
the amount of time set forth in section 212(a)(7)(B) of the Act, or a 
valid border crossing identification card at the time of application 
for admission, unless the nonimmigrant satisfies the requirements 
described in one or more of the paragraphs (a) through (f), (i), or (o) 
of this section. Upon a nonimmigrant's application on Form I-193, a 
district director at a port of entry may, in the exercise of his or her 
discretion, on a case-by-case basis, waive the documentary 
requirements, if satisfied that the nonimmigrant cannot present the 
required documents because of an unforeseen emergency. The district 
director or the Deputy Commissioner may at any time revoke a waiver 
previously authorized pursuant to this paragraph and notify the 
nonimmigrant in writing to that effect.
* * * * *
    (o) Alien in T-2 through T-4 classification. Individuals seeking T-
2 through T-4 nonimmigrant status may avail themselves of the 
provisions of paragraph (g) of this section, except that the authority 
to waive documentary requirements resides with the Service Center.

    6. Section 212.16 is added, to read as follows:


Sec. 212.16  Applications for exercise of discretion relating to T 
nonimmigrant status.

    (a) Filing the waiver application. An alien applying for the 
exercise of discretion under section 212(d)(13) or (d)(3)(B) of the Act 
(waivers of inadmissibility) in connection with an application for T 
nonimmigrant status shall submit Form I-192, with the appropriate fee 
in accordance with Sec. 103.7(b)(1) of this chapter or an application 
for a fee waiver, to the Service with the completed Form I-914 
application package for status under section 101(a)(15)(T)(i) of the 
Act.
    (b) Treatment of waiver application. (1) The Service shall 
determine whether a ground of inadmissibility exists with respect to 
the alien applying for T nonimmigrant status. If a ground of 
inadmissibility is found, the Service shall determine if it is in the 
national interest to exercise discretion to waive the ground of 
inadmissibility, except for grounds of inadmissibility based upon 
sections 212(a)(3), 212(a)(10)(C) and 212(a)(10)(E) of the Act, which 
the Commissioner may not waive. Special consideration will be given to 
the granting of a waiver of a ground of inadmissibility where the 
activities rendering the alien inadmissible were caused by or incident 
to the victimization described under section 101(a)(15)(T)(i) of the 
Act.
    (2) In the case of applicants inadmissible on criminal and related 
grounds under section 212(a)(2) of the Act, the Service will only 
exercise its discretion in exceptional cases unless the criminal 
activities rendering the alien inadmissible were caused by or were 
incident to the victimization described under section 101(a)(15)(T)(i) 
of the Act.
    (3) An application for waiver of a ground of inadmissibility for T 
nonimmigrant status (other than under section 212(a)(6) of the Act) 
will be granted only in exceptional cases when the ground of 
inadmissibility would prevent or limit the ability of the applicant to 
adjust to permanent resident status after the conclusion of 3 years.
    (4) The Service shall have sole discretion to grant or deny a 
waiver, and there shall be no appeal of a decision to deny a waiver. 
However, nothing in this paragraph (b) is intended to prevent an 
applicant from re-filing a request for a waiver of a ground of 
inadmissibility in appropriate cases.
    (c) Incident to victimization. When an applicant for status under 
section 101(a)(15)(T) of the Act seeks a waiver of a ground of 
inadmissibility under section 212(d)(13) of the Act on grounds other 
than those described in sections 212(a)(1) and (a)(4) of the Act, the 
applicant must establish that the activities rendering him or her 
inadmissible were caused by, or were incident to, the victimization 
described in section 101(a)(15)(T)(i)(I) of the Act.
    (d) Revocation. The Commissioner may at any time revoke a waiver 
previously authorized under section 212(d) of the Act. Under no 
circumstances shall the alien or any party acting on his or her behalf 
have a right to appeal from a decision to revoke a waiver.

PART 214--NONIMMIGRANT CLASSES

    7. The authority citation for part 214 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1101 note, 1103, 1182, 1184, 1186a, 
1187, 1221, 1281, 1282; Section 643 of Pub. L. 104-208, 110 Stat. 
3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; Section 141 of the 
Compacts of Free Association with the Federated States of Micronesia 
and the Republic of the Marshall Islands, and with the Government of 
Palau, 48 U.S.C. 1901 note, and 1931 note, respectively; 8 CFR part 
2.


    8. Section 214.1 is amended by:
    a. Removing the ``and'' at the end of paragraph (a)(1)(vi);
    b. Removing the period at the end of paragraph (a)(1)(vii) and 
adding ``;'' in its place;
    c. Adding paragraph (a)(1)(viii); and by
    d. Adding in proper numeric/alphabetical sequence in paragraph 
(a)(2) the classification designations, to read as follows:


Sec. 214.1  Requirements for admission, extension, and maintenance of 
status.

    (a) * * *
    (1) * * *
    (viii) Section 101(a)(15)(T)(ii) is divided into (T)(ii), (T)(iii) 
and (T)(iv) for the spouse, child, and parent, respectively, of a 
nonimmigrant classified under section 101(a)(15)(T)(i); and
    (2) * * *
* * * * *

101(a)(15)(T)(i)--T-1
101(a)(15)(T)(ii)--T-2
101(a)(15)(T)(iii)--T-3
101(a)(15)(T)(iv)--T-4

* * * * *

    9. A new Sec. 214.11 is added to read as follows:


Sec. 214.11  Alien victims of severe forms of trafficking in persons.

    (a) Definitions. The Service shall apply the following definitions 
as provided in sections 103 and 107(e) of the Trafficking Victims 
Protection Act (TVPA) with due regard for the definitions and 
application of these terms in 28 CFR part 1100 and the provisions of 
chapter 77 of title 18, United States Code:
    Bona fide application means an application for T-1 nonimmigrant 
status

[[Page 4796]]

as to which, after initial review, the Service has determined that 
there appears to be no instance of fraud in the application, the 
application is complete, properly filed, contains an LEA endorsement or 
credible secondary evidence, includes completed fingerprint and 
background checks, and presents prima facie evidence to show 
eligibility for T nonimmigrant status, including admissibility.
    Child means a person described as such in section 101(b)(1) of the 
Act.
    Coercion means threats of serious harm to or physical restraint 
against any person; any scheme, plan, or pattern intended to cause a 
person to believe that failure to perform an act would result in 
serious harm to or physical restraint against any person; or the abuse 
or threatened abuse of the legal process.
    Commercial sex act means any sex act on account of which anything 
of value is given to or received by any person.
    Debt bondage means the status or condition of a debtor arising from 
a pledge by the debtor of his or her personal services or of those of a 
person under his or her control as a security for debt, if the value of 
those services as reasonably assessed is not applied toward the 
liquidation of the debt or the length and nature of those services are 
not respectively limited and defined.
    Immediate family member means the spouse or a child of a victim of 
a severe form of trafficking in persons, and, in the case of a victim 
of a severe form of trafficking in persons who is under 21 years of 
age, a parent of the victim.
    Involuntary servitude means a condition of servitude induced by 
means of any scheme, plan, or pattern intended to cause a person to 
believe that, if the person did not enter into or continue in such 
condition, that person or another person would suffer serious harm or 
physical restraint; or the abuse or threatened abuse of legal process. 
Accordingly, involuntary servitude includes ``a condition of servitude 
in which the victim is forced to work for the defendant by the use or 
threat of physical restraint or physical injury, or by the use or 
threat of coercion through law or the legal process. This definition 
encompasses those cases in which the defendant holds the victim in 
servitude by placing the victim in fear of such physical restraint or 
injury or legal coercion.'' (United States v. Kozminski, 487 U.S. 931, 
952 (1988)).
    Law Enforcement Agency (LEA) means any Federal law enforcement 
agency that has the responsibility and authority for the detection, 
investigation, or prosecution of severe forms of trafficking in 
persons. LEAs include the following components of the Department of 
Justice: the United States Attorneys' Offices, the Civil Rights and 
Criminal Divisions, the Federal Bureau of Investigation (FBI), the 
Immigration and Naturalization Service (Service), and the United States 
Marshals Service. The Diplomatic Security Service, Department of State, 
also is an LEA.
    Law Enforcement Agency (LEA) endorsement means Supplement B, 
Declaration of Law Enforcement Officer for Victim of Trafficking in 
Persons of Form I-914, Application for T Nonimmigrant Status. 
    Peonage means a status or condition of involuntary servitude based 
upon real or alleged indebtedness.
    Reasonable request for assistance means a reasonable request made 
by a law enforcement officer or prosecutor to a victim of a severe form 
of trafficking in persons to assist law enforcement authorities in the 
investigation or prosecution of the acts of trafficking in persons. The 
``reasonableness'' of the request depends on the totality of the 
circumstances taking into account general law enforcement and 
prosecutorial practices, the nature of the victimization, and the 
specific circumstances of the victim, including fear, severe 
traumatization (both mental and physical), and the age and maturity of 
young victims.
    Severe forms of trafficking in persons means sex trafficking in 
which a commercial sex act is induced by force, fraud, or coercion, or 
in which the person induced to perform such act has not attained 18 
years of age; or 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.
    Sex trafficking means the recruitment, harboring, transportation, 
provision, or obtaining of a person for the purpose of a commercial sex 
act.
    TVPA means the Trafficking Victims Protection Act of 2000, Division 
A of the VTVPA, Pub. L. 106-386.
    United States means the continental United States, Alaska, Hawaii, 
Puerto Rico, Guam, and the United States Virgin Islands.
    Victim of a severe form of trafficking in persons means an alien 
who is or has been subject to a severe form of trafficking in persons, 
as defined in section 103 of the VTVPA and in this section.
    VTVPA means the Victims of Trafficking and Violence Protection Act 
of 2000, Pub. L. 106-386.
    (b) Eligibility. Under section 101(a)(15)(T)(i) of the Act, and 
subject to section 214(n) of the Act, the Service may classify an 
alien, if otherwise admissible, as a T-1 nonimmigrant if the alien 
demonstrates that he or she:
    (1) Is or has been a victim of a severe form of trafficking in 
persons;
    (2) Is 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 in persons;
    (3) Either:
    (i) Has complied with any reasonable request for assistance in the 
investigation or prosecution of acts of such trafficking in persons, or
    (ii) Is less than 15 years of age; and
    (4) Would suffer extreme hardship involving unusual and severe harm 
upon removal, as described in paragraph (i) of this section.
    (c) Aliens ineligible for T nonimmigrant status. No alien, 
otherwise admissible, shall be eligible to receive a T nonimmigrant 
status under section 101(a)(15)(T) of the Act if there is substantial 
reason to believe that the alien has committed an act of a severe form 
of trafficking in persons.
    (d) Application procedures for T status.
    (1) Filing an application. An applicant seeking T nonimmigrant 
status shall submit, by mail, a complete application package containing 
Form I-914, Application for T Nonimmigrant Status, along with all 
necessary supporting documentation, to the Service.
    (2) Contents of the application package. In addition to Form I-914, 
an application package must include the following:
    (i) The proper fee for Form I-914 as provided in Sec. 103.7(b)(1) 
of this chapter, or an application for a fee waiver as provided in 
Sec. 103.7(c) of this chapter;
    (ii) Three current photographs;
    (iii) The fingerprint fee as provided in Sec. 103.7(b)(1) of this 
chapter;
    (iv) Evidence demonstrating that the applicant is a victim of a 
severe form of trafficking in persons as set forth in paragraph (f) of 
this section;
    (v) Evidence that the alien is physically present in the United 
States on account of a severe form of trafficking in persons as set 
forth in paragraph (g) of this section;
    (vi) Evidence that the applicant has complied with any reasonable 
request for assistance in the investigation or prosecution of acts of 
severe forms of trafficking in persons, as set forth in paragraph (h) 
of this section, or has not attained 15 years of age; and
    (vii) Evidence that the applicant would suffer extreme hardship 
involving unusual and severe harm if he

[[Page 4797]]

or she were removed from the United States, as set forth in paragraph 
(i) of this section.
    (3) Evidentiary standards. The applicant may submit any credible 
evidence relevant to the essential elements of the T nonimmigrant 
status. Original documents or copies may be submitted as set forth in 
Sec. 103.2(b)(4) and (b)(5) of this chapter. Any document containing 
text in a foreign language shall be submitted in accordance with 
Sec. 103.2(b)(3) of this chapter.
    (4) Filing deadline in cases in which victimization occurred prior 
to October 28, 2000. Victims of a severe form of trafficking in persons 
whose victimization occurred prior to October 28, 2000 must file a 
completed application within one (1) year of January 31, 2002 in order 
to be eligible to receive T-1 nonimmigrant status. If the victimization 
occurred prior to October 28, 2000, an alien who was a child at the 
time he or she was a victim of a severe form of trafficking in persons 
must file a T status application within one (1) year of his or her 21st 
birthday, or one (1) year of January 31, 2002, whichever is later. For 
purposes of determining the filing deadline, an act of severe form of 
trafficking in persons will be deemed to have occurred on the last day 
in which an act constituting an element of a severe form of trafficking 
in persons, as defined in paragraph (a) of this section, occurred. If 
the applicant misses the deadline, he or she must show that exceptional 
circumstances prevented him or her from filing in a timely manner. 
Exceptional circumstances may include severe trauma, either 
psychological or physical, that prevented the victim from applying 
within the allotted time.
    (5) Fingerprint procedure. All applicants for T nonimmigrant status 
must be fingerprinted for the purpose of conducting a criminal 
background check in accordance with the process and procedures 
described in Sec. 103.2(e) of this chapter. After submitting an 
application with fee to the Service, the applicant will be notified of 
the proper time and location to appear for fingerprinting.
    (6) Personal interview. After the filing of an application for T 
nonimmigrant status, the Service may require an applicant to 
participate in a personal interview. The necessity of an interview is 
to be determined solely by the Service. All interviews will be 
conducted in person at a Service-designated location. Every effort will 
be made to schedule the interview in a location convenient to the 
applicant.
    (7) Failure to appear for an interview or failure to follow 
fingerprinting requirements.
    (i) Failure to appear for a scheduled interview without prior 
authorization or to comply with fingerprint processing requirements may 
result in the denial of the application.
    (ii) Failure to appear shall be excused if the notice of the 
interview or fingerprint appointment was not mailed to the applicant's 
current address and such address had been provided to the Service 
unless the Service determines that the applicant received reasonable 
notice of the appointment. The applicant must notify the Service of any 
change of address in accordance with Sec. 265.1 of this chapter prior 
to the date on which the notice of the interview or fingerprint 
appointment was mailed to the applicant.
    (iii) Failure to appear at the interview or fingerprint appointment 
may be excused, at the discretion of the Service, if the applicant 
promptly contacts the Service and demonstrates that such failure to 
appear was the result of exceptional circumstances.
    (8) Aliens in pending immigration proceedings. Individuals who 
believe they are victims of severe forms of trafficking in persons and 
who are in pending immigration proceedings must inform the Service if 
they intend to apply for T nonimmigrant status under this section. With 
the concurrence of Service counsel, a victim of a severe form of 
trafficking in persons in proceedings before an immigration judge or 
the Board of Immigration Appeals (Board) may request that the 
proceedings be administratively closed (or that a motion to reopen or 
motion to reconsider be indefinitely continued) in order to allow the 
alien to pursue an application for T nonimmigrant status with the 
Service. If the alien appears eligible for T nonimmigrant status, the 
immigration judge or the Board, whichever has jurisdiction, may grant 
such a request to administratively close the proceeding or continue a 
motion to reopen or motion to reconsider indefinitely. In the event the 
Service finds an alien ineligible for T-1 nonimmigrant status, the 
Service may recommence proceedings that have been administratively 
closed by filing a motion to re-calendar with the immigration court or 
a motion to reinstate with the Board. If the alien is in Service 
custody pending the completion of immigration proceedings, the Service 
may continue to detain the alien until a decision has been rendered on 
the application. An alien who is in custody and requests bond or a bond 
redetermination will be governed by the provisions of part 236 of this 
chapter.
    (9) T applicants with final orders of exclusion, deportation or 
removal. An alien who is the subject of a final order is not precluded 
from filing an application for T-1 nonimmigrant status directly with 
the Service. The filing of an application for T nonimmigrant status has 
no effect on the Service's execution of a final order, although the 
alien may file a request for stay of removal pursuant to Sec. 241.6(a) 
of this chapter. However, if the Service subsequently determines, under 
the procedures of this section, that the application is bona fide, the 
Service will automatically stay execution of the final order of 
deportation, exclusion, or removal, and the stay will remain in effect 
until a final decision is made on the T-1 application. The time during 
which such a stay is in effect shall not be counted in determining the 
reasonableness of the duration of the alien's continued detention under 
the standards of Sec. 241.4 of this chapter. If the T-1 application is 
denied, the stay of the final order is deemed lifted as of the date of 
such denial, without regard to whether the alien appeals the decision. 
If the Service grants an application for T nonimmigrant status, the 
final order shall be deemed canceled by operation of law as of the date 
of the approval.
    (e) Dissemination of information. In appropriate cases, and in 
accordance with Department of Justice policies, the Service shall make 
information from applications for T-1 nonimmigrant status available to 
other Law Enforcement Agencies (LEAs) with the authority to detect, 
investigate, or prosecute severe forms of trafficking in persons. The 
Service shall coordinate with the appropriate Department of Justice 
component responsible for prosecution in all cases where there is a 
current or impending prosecution of any defendants who may be charged 
with severe forms of trafficking in persons crimes in connection with 
the victimization of the applicant to ensure that the Department of 
Justice component responsible for prosecution has access to all witness 
statements provided by the applicant in connection with the application 
for T-1 nonimmigrant status, and any other documents needed to 
facilitate investigation or prosecution of such severe forms of 
trafficking in persons offenses.
    (f) Evidence demonstrating that the applicant is a victim of a 
severe form of trafficking in persons. The applicant must submit 
evidence that fully establishes eligibility for each element

[[Page 4798]]

of the T nonimmigrant status to the satisfaction of the Attorney 
General. First, an alien must demonstrate that he or she is a victim of 
a severe form of trafficking in persons. The applicant may satisfy this 
requirement either by submitting an LEA endorsement, by demonstrating 
that the Service previously has arranged for the alien's continued 
presence under 28 CFR 1100.35, or by submitting sufficient credible 
secondary evidence, describing the nature and scope of any force, 
fraud, or coercion used against the victim (this showing is not 
necessary if the person induced to perform a commercial sex act is 
under the age of 18). An application must contain a statement by the 
applicant describing the facts of his or her victimization. In 
determining whether an applicant is a victim of a severe form of 
trafficking in persons, the Service will consider all credible and 
relevant evidence.
    (1) Law Enforcement Agency endorsement. An LEA endorsement is not 
required. However, if provided, it must be submitted by an appropriate 
law enforcement official on Supplement B, Declaration of Law 
Enforcement Officer for Victim of Trafficking in Persons, of Form I-
914. The LEA endorsement must be filled out completely in accordance 
with the instructions contained on the form and must attach the results 
of any name or database inquiry performed. In order to provide 
persuasive evidence, the LEA endorsement must contain a description of 
the victimization upon which the application is based (including the 
dates the severe forms of trafficking in persons and victimization 
occurred), and be signed by a supervising official responsible for the 
investigation or prosecution of severe forms of trafficking in persons. 
The LEA endorsement must address whether the victim had been recruited, 
harbored, transported, provided, or obtained specifically for either 
labor or services, or for the purposes of a commercial sex act. The 
traffickers must have used force, fraud, or coercion to make the victim 
engage in the intended labor or services, or (for those 18 or older) 
the intended commercial sex act. The situations involving labor or 
services must rise to the level of involuntary servitude, peonage, debt 
bondage, or slavery. The decision of whether or not to complete an LEA 
endorsement for an applicant shall be at the discretion of the LEA.
    (2) Primary evidence of victim status. The Service will consider an 
LEA endorsement as primary evidence that the applicant has been the 
victim of a severe form of trafficking in persons provided that the 
details contained in the endorsement meet the definition of a severe 
form of trafficking in persons under this section. In the alternative, 
documentation from the Service granting the applicant continued 
presence in accordance with 28 CFR 1100.35 will be considered as 
primary evidence that the applicant has been the victim of a severe 
form of trafficking in persons, unless the Service has revoked the 
continued presence based on a determination that the applicant is not a 
victim of a severe form of trafficking in persons.
    (3) Secondary evidence of victim status; Affidavits. Credible 
secondary evidence and affidavits may be submitted to explain the 
nonexistence or unavailability of the primary evidence and to otherwise 
establish the requirement that the applicant be a victim of a severe 
form of trafficking in persons. The secondary evidence must include an 
original statement by the applicant indicating that he or she is a 
victim of a severe form of trafficking in persons; credible evidence of 
victimization and cooperation, describing what the alien has done to 
report the crime to an LEA; and a statement indicating whether similar 
records for the time and place of the crime are available. The 
statement or evidence should demonstrate that good faith attempts were 
made to obtain the LEA endorsement, including what efforts the 
applicant undertook to accomplish these attempts. Applicants are 
encouraged to provide and document all credible evidence, because there 
is no guarantee that a particular piece of evidence will result in a 
finding that the applicant was a victim of a severe form of trafficking 
in persons. If the applicant does not submit an LEA endorsement, the 
Service will proceed with the adjudication based on the secondary 
evidence and affidavits submitted. A non-exhaustive list of secondary 
evidence includes trial transcripts, court documents, police reports, 
news articles, and copies of reimbursement forms for travel to and from 
court. In addition, applicants may also submit their own affidavit and 
the affidavits of other witnesses. The determination of what evidence 
is credible and the weight to be given that evidence shall be within 
the sole discretion of the Service.
    (4) Obtaining an LEA endorsement. A victim of a severe form of 
trafficking in persons who does not have an LEA endorsement should 
contact the LEA to which the alien has provided assistance to request 
an endorsement. If the applicant has not had contact with an LEA 
regarding the acts of severe forms of trafficking in persons, the 
applicant should promptly contact the nearest Service or Federal Bureau 
of Investigation (FBI) field office or U.S. Attorneys' Office to file a 
complaint, assist in the investigation or prosecution of acts of severe 
forms of trafficking in persons, and request an LEA endorsement. If the 
applicant was recently liberated from the trafficking in persons 
situation, the applicant should ask the LEA for an endorsement. 
Alternatively, the applicant may contact the Department of Justice, 
Civil Rights Division, Trafficking in Persons and Worker Exploitation 
Task Force complaint hotline at 1-888-428-7581 to file a complaint and 
be referred to an LEA.
    (g) Physical presence on account of trafficking in persons. The 
applicant must establish that he or she is 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, and that he or she is a victim of a severe form of 
trafficking in persons that forms the basis for the application. 
Specifically, the physical presence requirement reaches an alien who: 
is present because he or she is being subjected to a severe form of 
trafficking in persons; was recently liberated from a severe form of 
trafficking in persons; or was subject to severe forms of trafficking 
in persons at some point in the past and whose continuing presence in 
the United States is directly related to the original trafficking in 
persons.
    (1) In general. The evidence and statements included with the 
application must state the date and place (if known) and the manner and 
purpose (if known) for which the applicant entered the United States, 
American Samoa, or the Commonwealth of the Northern Mariana Islands, or 
a port-of-entry thereto, and demonstrate that the applicant is present 
now on account of the applicant's victimization as described in 
paragraph (f) of this section and section 101(a)(15)(T)(i)(I) of the 
Act.
    (2) Opportunity to depart. If the alien has escaped the traffickers 
before law enforcement became involved in the matter, he or she must 
show that he or she did not have a clear chance to leave the United 
States in the interim. The Service will consider whether an applicant 
had a clear chance to leave in light of the individual applicant's 
circumstances. Information relevant to this determination may include, 
but is not limited to, circumstances attributable to the trafficking in 
persons situation, such as trauma, injury, lack of resources, or travel 
documents that have

[[Page 4799]]

been seized by the traffickers. This determination may reach both those 
who entered the United States lawfully and those who entered without 
being admitted or paroled. The Service will consider all evidence 
presented to determine the physical presence requirement, including 
asking the alien to answer questions on Form I-914, about when he or 
she escaped from the trafficker, what activities he or she has 
undertaken since that time, including the steps he or she may have 
taken to deal with the consequences of having been trafficked, and the 
applicant's ability to leave the United States.
    (3) Departure from the United States. An alien who has voluntarily 
left (or has been removed from) the United States at any time after the 
act of a severe form of trafficking in persons shall be deemed not to 
be present in the United States as a result of such trafficking in 
persons unless the alien's reentry into the United States was the 
result of the continued victimization of the alien or a new incident of 
a severe form of trafficking in persons described in section 
101(a)(15)(T)(i)(I) of the Act.
    (h) Compliance with reasonable requests from a law enforcement 
agency for assistance in the investigation or prosecution. Except as 
provided in paragraph (h)(3) of this section, the applicant must submit 
evidence that fully establishes that he or she has complied with any 
reasonable request for assistance in the investigation or prosecution 
of acts of severe forms of trafficking in persons. As provided in 
paragraph (h)(3) of this section, if the victim of a severe form of 
trafficking in persons is under age 15, he or she is not required to 
comply with any reasonable request for assistance in order to be 
eligible for T nonimmigrant status, but may cooperate at his or her 
discretion.
    (1) Primary evidence of compliance with law enforcement requests. 
An LEA endorsement describing the assistance provided by the applicant 
is not required evidence. However, if an LEA endorsement is provided as 
set forth in paragraph (f)(1) of this section, it will be considered 
primary evidence that the applicant has complied with any reasonable 
request in the investigation or prosecution of the severe form of 
trafficking in persons of which the applicant was a victim. If the 
Service has reason to believe that the applicant has not complied with 
any reasonable request for assistance by the endorsing LEA or other 
LEAs, the Service will contact the LEA and both the Service and the LEA 
will take all practical steps to reach a resolution acceptable to both 
agencies. The Service may, at its discretion, interview the alien 
regarding the evidence for and against the compliance, and allow the 
alien to submit additional evidence of such compliance. If the Service 
determines that the alien has not complied with any reasonable request 
for assistance, then the application will be denied, and any approved 
application based on the LEA endorsement will be revoked pursuant to 
this section.
    (2) Secondary evidence of compliance with law enforcement requests; 
Affidavits. Credible secondary evidence and affidavits may be submitted 
to show the nonexistence or unavailability of the primary evidence and 
to otherwise establish the requirement that the applicant comply with 
any reasonable request for assistance in the investigation or 
prosecution of that severe form of trafficking in persons. The 
secondary evidence must include an original statement by the applicant 
that indicates the reason the LEA endorsement does not exist or is 
unavailable, and whether similar records documenting any assistance 
provided by the applicant are available. The statement or evidence must 
show that an LEA that has responsibility and authority for the 
detection, investigation, or prosecution of severe forms of trafficking 
in persons has information about such trafficking in persons, that the 
victim has complied with any reasonable request for assistance in the 
investigation or prosecution of such acts of trafficking, and, if the 
victim did not report the crime at the time, why the crime was not 
previously reported. The statement or evidence should demonstrate that 
good faith attempts were made to obtain the LEA endorsement, including 
what efforts the applicant undertook to accomplish these attempts. In 
addition, applicants may also submit their own affidavit and the 
affidavits of other witnesses. The determination of what evidence is 
credible and the weight to be given that evidence shall be within the 
sole discretion of the Service. Applicants are encouraged to describe 
and document all applicable factors, since there is no guarantee that a 
particular reason will result in a finding that the applicant has 
complied with reasonable requests. An applicant who never has had 
contact with an LEA regarding the acts of severe forms of trafficking 
in persons will not be eligible for T-1 nonimmigrant status.
    (3) Exception for applicants under the age of 15. Applicants under 
the age of 15 are not required to demonstrate compliance with the 
requirement of any reasonable request for assistance in the 
investigation and prosecution of acts of severe forms of trafficking in 
persons. Applicants under the age of 15 must provide evidence of their 
age. Primary evidence that a victim of a severe form of trafficking in 
persons has not yet reached the age of 15 would be an official copy of 
the alien's birth certificate, a passport, or a certified medical 
opinion. Secondary evidence regarding the age of the applicant also may 
be submitted in accordance with Sec. 103.2(b)(2)(i) of this chapter. An 
applicant under the age of 15 still must provide evidence demonstrating 
that he or she satisfies the other necessary requirements, including 
that he or she is the victim of a severe form of trafficking in persons 
and faces extreme hardship involving unusual and severe harm if removed 
from the United States.
    (i) Evidence of extreme hardship involving unusual and severe harm 
upon removal. To be eligible for T-1 nonimmigrant status under section 
101(a)(15)(T)(i) of the Act, an applicant must demonstrate that removal 
from the United States would subject the applicant to extreme hardship 
involving unusual and severe harm.
    (1) Standard. Extreme hardship involving unusual and severe harm is 
a higher standard than that of extreme hardship as described in 
Sec. 240.58 of this chapter. A finding of extreme hardship involving 
unusual and severe harm may not be based upon current or future 
economic detriment, or the lack of, or disruption to, social or 
economic opportunities. Factors that may be considered in evaluating 
whether removal would result in extreme hardship involving unusual and 
severe harm should take into account both traditional extreme hardship 
factors and those factors associated with having been a victim of a 
severe form of trafficking in persons. These factors include, but are 
not limited to, the following:
    (i) The age and personal circumstances of the applicant;
    (ii) Serious physical or mental illness of the applicant that 
necessitates medical or psychological attention not reasonably 
available in the foreign country;
    (iii) The nature and extent of the physical and psychological 
consequences of severe forms of trafficking in persons;
    (iv) The impact of the loss of access to the United States courts 
and the criminal justice system for purposes relating to the incident 
of severe forms of trafficking in persons or other crimes perpetrated 
against the applicant, including criminal and civil redress for acts of 
trafficking in persons, criminal prosecution, restitution, and 
protection;

[[Page 4800]]

    (v) The reasonable expectation that the existence of laws, social 
practices, or customs in the foreign country to which the applicant 
would be returned would penalize the applicant severely for having been 
the victim of a severe form of trafficking in persons;
    (vi) The likelihood of re-victimization and the need, ability, or 
willingness of foreign authorities to protect the applicant;
    (vii) The likelihood that the trafficker in persons or others 
acting on behalf of the trafficker in the foreign country would 
severely harm the applicant; and
    (viii) The likelihood that the applicant's individual safety would 
be seriously threatened by the existence of civil unrest or armed 
conflict as demonstrated by the designation of Temporary Protected 
Status, under section 244 of the Act, or the granting of other relevant 
protections.
    (2) Evidence. An applicant is encouraged to describe and document 
all factors that may be relevant to his or her case, since there is no 
guarantee that a particular reason or reasons will result in a finding 
that removal would cause extreme hardship involving unusual and severe 
harm to the applicant. Hardship to persons other than the alien victim 
of a severe form of trafficking in persons cannot be considered in 
determining whether an applicant would suffer extreme hardship 
involving unusual and severe harm.
    (3) Evaluation. The Service will evaluate on a case-by-case basis, 
after a review of the evidence, whether the applicant has demonstrated 
extreme hardship involving unusual or severe harm. The Service will 
consider all credible evidence submitted regarding the nature and scope 
of the hardship should the applicant be removed from the United States, 
including evidence of hardship arising from circumstances surrounding 
the victimization as described in section 101(a)(15)(T)(i)(I) of the 
Act and any other circumstances. In appropriate cases, the Service may 
consider evidence from relevant country condition reports and any other 
public or private sources of information. The determination that 
extreme hardship involving unusual or severe harm to the alien exists 
is to be made solely by the Service.
    (j) Waiver of grounds of inadmissibility. An application for a 
waiver of inadmissibility under section 212(d)(13) or section 212(d)(3) 
of the Act must be filed in accordance with Sec. 212.16 of this 
chapter, and submitted to the Service with the completed application 
package.
    (k) Bona fide application for T-1 nonimmigrant status.--(1) 
Criteria. Once an application is submitted to the Service, the Service 
will conduct an initial review to determine if the application is a 
bona fide application for T nonimmigrant status. An application shall 
be determined to be bona fide if, after initial review, it is properly 
filed, there appears to be no instance of fraud in the application, the 
application is complete (including the LEA endorsement or other 
secondary evidence), the application presents prima facie evidence of 
each element to show eligibility for T-1 nonimmigrant status, and the 
Service has completed the necessary fingerprinting and criminal 
background checks. If an alien is inadmissible under section 212(a) of 
the Act, the application will not be deemed to be bona fide unless the 
only grounds of inadmissibility are those under the circumstances 
described in section 212(d)(13) of the Act, or unless the Service has 
granted a waiver of inadmissibility on any other grounds. All waivers 
are discretionary and require a request for a waiver. Under section 
212(d)(13), an application can be bona fide before the waiver is 
granted. This is not the case under other grounds of inadmissibility.
    (2) Determination by the Service. An application for T-1 status 
under this section will not be treated as a bona fide application until 
the Service has provided the notice described in paragraph (k)(3) of 
this section. In the event that an application is incomplete, the 
Service will request the additional information as provided in 
Sec. 103.2(b)(8) of this chapter. If the application is complete, but 
does not present sufficient evidence to establish prima facie 
eligibility for each required element of T nonimmigrant status, the 
Service will adjudicate the application on the basis of the evidence 
presented, in accordance with the procedures of this section.
    (3) Notice to alien. Once an application is determined to be a bona 
fide application for a T-1 nonimmigrant status, the Service will 
provide written confirmation to the applicant.
    (4) Stay of final order of exclusion, deportation, or removal. A 
determination by the Service that an application for T-1 nonimmigrant 
status is bona fide automatically stays the execution of any final 
order of exclusion, deportation, or removal. This stay shall remain in 
effect until there is a final decision on the T application. The filing 
of an application for T nonimmigrant status does not stay the execution 
of a final order unless the Service has determined that the application 
is bona fide. Neither an immigration judge nor the Board of Immigration 
Appeals (Board) has jurisdiction to adjudicate an application for a 
stay of execution, deportation, or removal order, on the basis of the 
filing of an application for T nonimmigrant status.
    (l) Review and decision on applications.--(1) De novo review. The 
Service shall conduct a de novo review of all evidence submitted and is 
not bound by its previous factual determinations as to any essential 
elements of the T nonimmigrant status application. Evidence previously 
submitted for this and other immigration benefits or relief may be used 
by the Service in evaluating the eligibility of an applicant for T 
nonimmigrant status. However, the Service will not be bound by its 
previous factual determinations as to any essential elements of the T 
classification. The Service will determine, in its sole discretion, the 
evidentiary value of previously or concurrently submitted evidence.
    (2) Burden of proof. At all stages of the processing of an 
application for any benefits under T nonimmigrant status, the burden 
shall be on the applicant to present to the Service evidence that fully 
establishes eligibility for the desired benefit.
    (3) Decision. After completing its review of the application, the 
Service shall issue a written decision granting or denying the 
application. If the Service determines that the applicant has met the 
requirements for T-1 nonimmigrant status, the Service shall grant the 
application, subject to the annual limitation as provided in paragraph 
(m) of this section. Along with the approval, the Service will include 
a list of nongovernmental organizations to which the applicant can 
refer regarding the alien's options while in the United States and 
resources available to the alien.
    (4) Work authorization. When the Service grants an application for 
T-1 nonimmigrant status, the Service will provide the alien with an 
Employment Authorization Document incident to that status, which shall 
extend concurrently with the duration of the alien's T-1 nonimmigrant 
status.
    (m) Annual cap. In accordance with section 214(n)(2) of the Act, 
the total number of principal aliens issued T-1 nonimmigrant status may 
not exceed 5,000 in any fiscal year.
    (1) Issuance of T-1 nonimmigrant status. Once the cap is reached in 
any fiscal year, the Service will continue to review and consider 
applications in the order they are received. The Service will determine 
if the applicants are eligible for T-1 nonimmigrant status, but will

[[Page 4801]]

not issue T-1 nonimmigrant status at that time. The revocation of an 
alien's T-1 status will have no effect on the annual cap.
    (2) Waiting list. All eligible applicants who, due solely to the 
cap, are not granted T-1 nonimmigrant status shall be placed on a 
waiting list and will receive notice of such placement. While on the 
waiting list, the applicant shall maintain his or her current means to 
prevent removal (deferred action, parole, or stay of removal) and any 
employment authorization, subject to any limits imposed on that 
authorization. Priority on the waiting list is determined by the date 
the application was properly filed, with the oldest applications 
receiving the highest priority. As new classifications become available 
in subsequent years, the Service will issue them to applicants on the 
waiting list, in the order in which the applications were properly 
filed, providing the applicant remains admissible. The Service may 
require new fingerprint and criminal history checks before issuing an 
approval. After T-1 nonimmigrant status has been issued to qualifying 
applicants on the waiting list, any remaining T-1 nonimmigrant numbers 
will be issued to new qualifying applicants in the order that the 
applications were properly filed.
    (n) [Reserved]
    (o) Admission of the T-1 applicant's immediate family members.--(1) 
Eligibility. Subject to section 214(n) of the Act, an alien who has 
applied for or been granted T-1 nonimmigrant status may apply for 
admission of an immediate family member, who is otherwise admissible to 
the United States, in a T-2 (spouse) or T-3 (child) derivative status 
(and, in the case of a T-1 principal applicant who is a child, a T-4 
(parent) derivative status), if accompanying or following to join the 
principal alien. The applicant must submit evidence sufficient to 
demonstrate that:
    (i) The alien for whom T-2, T-3, or T-4 status is being sought is 
an immediate family member of a T-1 nonimmigrant, as defined in 
paragraph (a) of this section, and is otherwise eligible for that 
status; and
    (ii) The immediate family member or the T-1 principal would suffer 
extreme hardship, as described in paragraph (o)(5) of this section, if 
the immediate family member was not allowed to accompany or follow to 
join the principal T-1 nonimmigrant.
    (2) Filing procedures. A T-1 principal may apply for T-2, T-3, or 
T-4 nonimmigrant status for an immediate family member by submitting 
Form I-914 and all necessary documentation by mail, including 
Supplement A, to the Service. The application for derivative T 
nonimmigrant status for eligible family members can be filed on the 
same application as the T-1 application, or in a separate application 
filed at a subsequent time.
    (3) Contents of the application package for an immediate family 
member. In addition to Form I-914, an application for T-2, T-3, or T-4 
nonimmigrant status must include the following:
    (i) The proper fee for Form I-914 as provided in Sec. 103.7(b)(1) 
of this chapter, or an application for a fee waiver as provided in 
Sec. 103.7(c) of this chapter;
    (ii) Three current photographs;
    (iii) The fingerprint fee as provided in Sec. 103.2(e) of this 
chapter for each immediate family member;
    (iv) Evidence demonstrating the relationship of an immediate family 
member, as provided in paragraph (o)(4) of this section; and
    (v) Evidence demonstrating extreme hardship as provided in 
paragraph (o)(5) of this section.
    (4) Relationship. The relationship must exist at the time the 
application for the T-1 nonimmigrant status was filed, and must 
continue to exist at the time of the application for T-2, T-3, or T-4 
status and at the time of the immediate family member's subsequent 
admission to the United States. If the T-1 principal alien proves that 
he or she became the parent of a child after the T-1 nonimmigrant 
status was filed, the child shall be eligible to accompany or follow to 
join the T-1 principal.
    (5) Evidence demonstrating extreme hardship for immediate family 
members. The application must demonstrate that each alien for whom T-2, 
T-3, or T-4 status is being sought, or the principal T-1 applicant, 
would suffer extreme hardship if the immediate family member was not 
admitted to the United States or was removed from the United States (if 
already present). When the immediate family members are following to 
join the principal, the extreme hardship must be substantially 
different than the hardship generally experienced by other residents of 
their country of origin who are not victims of a severe form of 
trafficking in persons. The Service will consider all credible evidence 
of extreme hardship to the T-1 recipient or the individual immediate 
family members. The determination of the extreme hardship claim will be 
evaluated on a case-by-case basis, in accordance with the factors 
outlined in Sec. 240.58 of this chapter. Applicants are encouraged to 
raise and document all applicable factors, since there is no guarantee 
that a particular reason or reasons will result in a finding of extreme 
hardship if the applicant is not allowed to enter or remain in the 
United States. In addition to these factors, other factors that may be 
considered in evaluating extreme hardship include, but are not limited 
to, the following:
    (i) The need to provide financial support to the principal alien;
    (ii) The need for family support for a principal alien; or
    (iii) The risk of serious harm, particularly bodily harm, to an 
immediate family member from the perpetrators of the severe forms of 
trafficking in persons.
    (6) Fingerprinting; interviews. The provisions for fingerprinting 
and interviews in paragraphs (c)(5) through (c)(7) of this section also 
are applicable to applications for immediate family members.
    (7) Admissibility. If an alien is inadmissible, an application for 
a waiver of inadmissibility under section 212(d)(13) or section 
212(d)(3) of the Act must be filed in accordance with Sec. 212.16 of 
this chapter, and submitted to the Service with the completed 
application package.
    (8) Review and decision. After reviewing the application under the 
standards of paragraph (l) of this section, the Service shall issue a 
written decision granting or denying the application for T-2, T-3, or 
T-4 status.
    (9) Derivative grants. Individuals who are granted T-2, T-3, or T-4 
nonimmigrant status are not subject to an annual cap. Applications for 
T-2, T-3, or T-4 nonimmigrant status will not be granted until a T-1 
status has been issued to the related principal alien.
    (10) Employment authorization. An alien granted T-2, T-3, or T-4 
nonimmigrant status may apply for employment authorization by filing 
Form I-765, Application for Employment Authorization, with the 
appropriate fee or an application for fee waiver, in accordance with 
the instructions on, or attached to, that form. For derivatives in the 
United States, the Form I-765 may be filed concurrently with the filing 
of the application for T-2, T-3, or T-4 status or at any time 
thereafter. If the application for employment authorization is 
approved, the T-2, T-3, or T-4 alien will be granted employment 
authorization pursuant to Sec. 274a.12(c)(25) of this chapter. 
Employment authorization will last for the length of the duration of 
the T-1 nonimmigrant status.
    (11) Aliens outside the United States. When the Service approves an

[[Page 4802]]

application for a qualifying immediate family member who is outside the 
United States, the Service will notify the T-1 principal alien of such 
approval on Form I-797, Notice of Action. Form I-914, Supplement A, 
Supplemental Application for Immediate Family Members of T-1 Recipient, 
must be forwarded to the Department of State for delivery to the 
American Embassy or Consulate having jurisdiction over the area in 
which the T-1 recipient's qualifying immediate family member is 
located. The supplemental form may be used by a consular officer in 
determining the alien's eligibility for a T-2, T-3, or T-4 visa, as 
appropriate.
    (p) Duration of T nonimmigrant status.--(1) In general. An approved 
T nonimmigrant status shall expire after 3 years from the date of 
approval. The status is not renewable. At the time an alien is approved 
for T nonimmigrant status, the Service shall notify the alien that his 
or her nonimmigrant status will expire in 3 years from the date of the 
approval of the alien's Form I-914. The applicant shall immediately 
notify the Service of any changes in the applicant's circumstances that 
may affect eligibility under section 101(a)(15)(T)(i) of the Act and 
this section.
    (2) Information pertaining to adjustment of status. The Service 
shall further notify the alien of the requirement that the T alien 
apply for adjustment of status within the 90 days immediately preceding 
the third anniversary of the alien's having been approved such 
nonimmigrant status, and that the failure to apply for adjustment of 
status as set forth in section 245(l) of the Act will result in 
termination of the alien's T nonimmigrant status in the United States 
at the end of the 3-year period. If the alien properly files for 
adjustment of status to that of a person admitted for permanent 
residence within the 90-day period immediately preceding the third 
anniversary of the date of the approval of the alien's Form I-914, the 
alien shall continue to be in a T nonimmigrant status with all the 
rights, privileges, and responsibilities, including employment 
authorization, provided to a person possessing such status until such 
time as a final decision is rendered on the alien's application for 
adjustment of status.
    (q) De novo review. The Service shall conduct a de novo review of 
all evidence submitted at all stages in the adjudication of an 
application for T nonimmigrant status. Evidence previously submitted 
for this and other immigration benefits or relief may be used by the 
Service in evaluating the eligibility of an applicant for T 
nonimmigrant status. However, the Service will not be bound by its 
previous factual determinations as to any essential elements of the T 
classification. The Service will determine, in its sole discretion, the 
evidentiary value of previously or concurrently submitted evidence.
    (r) Denial of application. Upon denial of any T application, the 
Service shall notify the applicant, any LEA providing an LEA 
endorsement, and the Department of Health and Human Service's Office of 
Refugee Resettlement in writing of the decision and the reasons for the 
denial in accordance with Sec. 103.3 of this chapter. Upon denial of an 
application for T nonimmigrant status, any benefits derived as a result 
of having filed a bona fide application will automatically be revoked 
when the denial becomes final. If an applicant chooses to appeal the 
denial pursuant to the provisions of Sec. 103.3 of this chapter, the 
denial will not become final until the appeal is adjudicated.
    (s) Revocation of approved T nonimmigrant status. The alien shall 
immediately notify the Service of any changes in the terms and 
conditions of an alien's circumstances that may affect eligibility 
under section 101(a)(15)(T) of the Act and this section.
    (1) Grounds for notice of intent to revoke. The Service shall send 
to the T nonimmigrant a notice of intent to revoke the status in 
relevant part if it is determined that:
    (i) The T nonimmigrant violated the requirements of section 
101(a)(15)(T) of the Act or this section;
    (ii) The approval of the application violated this section or 
involved error in preparation procedure or adjudication that affects 
the outcome;
    (iii) In the case of a T-2 spouse, the alien's divorce from the T-1 
principal alien has become final;
    (iv) In the case of a T-1 principal alien, an LEA with jurisdiction 
to detect or investigate the acts of severe forms of trafficking in 
persons by which the alien was victimized notifies the Service that the 
alien has unreasonably refused to cooperate with the investigation or 
prosecution of the trafficking in persons and provides the Service with 
a detailed explanation of its assertions in writing; or
    (v) The LEA providing the LEA endorsement withdraws its endorsement 
or disavows the statements made therein and notifies the Service with a 
detailed explanation of its assertions in writing.
    (2) Notice of intent to revoke and consideration of evidence. A 
district director may revoke the approval of a T nonimmigrant status at 
any time, even after the validity of the status has expired. The notice 
of intent to revoke shall be in writing and shall contain a detailed 
statement of the grounds for the revocation and the time period allowed 
for the T nonimmigrant's rebuttal. The alien may submit evidence in 
rebuttal within 30 days of the date of the notice. The director shall 
consider all relevant evidence presented in deciding whether to revoke 
approval of the T nonimmigrant status. The determination of what is 
relevant evidence and the weight to be given to that evidence shall be 
within the sole discretion of the director.
    (3) Revocation of T nonimmigrant status. If, upon reconsideration, 
the approval previously granted is revoked, the director shall provide 
the alien with a written notification of the decision that explains the 
specific reasons for the revocation. The director also shall notify the 
LEA that supplied an endorsement to the alien, any consular officer 
having jurisdiction over the applicant, and HHS's Office of Refugee 
Resettlement.
    (4) Appeal of a revocation of approval. The alien may appeal the 
decision to revoke the approval within 15 days after the service of 
notice of the revocation. All appeals of a revocation of approval will 
be processed and adjudicated in accordance with Sec. 103.3 of this 
chapter.
    (5) Effect of revocation of T-1 status. In the event that a 
principal alien's T-1 nonimmigrant status is revoked, all T 
nonimmigrant status holders deriving status from the revoked status 
automatically shall have that status revoked. In the case where a T-2, 
T-3, or T-4 application is still awaiting adjudication, it shall be 
denied. The revocation of an alien's T-1 status will have no effect on 
the annual cap as described in paragraph (m) of this section.
    (t) Removal proceedings without revocation. Nothing in this section 
shall prohibit the Service from instituting removal proceedings under 
section 240 of the Act for conduct committed after admission, or for 
conduct or a condition that was not disclosed to the Service prior to 
the granting of nonimmigrant status under section 101(a)(15)(T) of the 
Act, including the misrepresentation of material facts in the 
applicant's application for T nonimmigrant status.
    (u) [Reserved]
    (v) Service officer referral. Any Service officer who receives a 
request from an alien seeking protection as a victim of a severe form 
of trafficking in persons or seeking information regarding T 
nonimmigrant status shall

[[Page 4803]]

follow the procedures for protecting and providing services to victims 
of severe forms of trafficking outlined in 28 CFR 1100.31. Aliens 
believed to be victims of a severe form of trafficking in persons shall 
be referred to the local Service office with responsibility for 
investigations relating to victims of severe forms of trafficking in 
persons for a consultation within 7 days. The local Service office may, 
in turn, refer the victim to another LEA with responsibility for 
investigating or prosecuting severe forms of trafficking in persons. If 
the alien has a credible claim to victimization, he or she will be 
given the opportunity to submit an application for T status pursuant to 
section 101(a)(15)(T) of the Act and any other benefit or protection 
for which he or she may be eligible. An alien determined not to have a 
credible claim to being a victim of a severe form of trafficking in 
persons and who is subject to removal will be removed in accordance 
with Service policy.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    10. The authority citation for section 274a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.


    11. Section 274a.12 is amended by:
    a. Revising the reference citation to ``(a)(15)'' to read 
``(a)(16)'' in the second sentence in paragraph (a) introductory text;
    b. Adding a new paragraph (a)(16); and by
    c. Adding a new paragraph (c)(25), to read as follows:


Sec. 274a.12  Classes of aliens authorized to accept employment.

    (a) * * *
    (16) An alien authorized to be admitted to or remain in the United 
States as a nonimmigrant alien victim of a severe form of trafficking 
in persons under section 101(a)(15)(T)(i) of the Act. Employment 
authorization granted under this paragraph shall expire upon the 
expiration of the underlying T-1 nonimmigrant status granted by the 
Service.
* * * * *
    (c) * * *
    (25) An immediate family member of a T-1 victim of a severe form of 
trafficking in persons designated as a T-2, T-3 or T-4 nonimmigrant 
pursuant to Sec. 214.11 of this chapter. Aliens in this status shall 
only be authorized to work for the duration of their T nonimmigrant 
status.
* * * * *

PART 299--IMMIGRATION FORMS

    12. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.


    13. Section 299.1 is amended by adding Form ``I-914'' to the table, 
in the proper alpha/numeric sequence; to read as follows:


Sec. 299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
                                Edition
          Form No.                date                 Title
------------------------------------------------------------------------
I-914.......................      1-22-02  Application for T
                                            Nonimmigrant Status.
 
                  *        *        *        *        *
------------------------------------------------------------------------


    14. Section 299.5 is amended in the table by adding Form ``I-914'' 
to the table, in proper alpha/numeric sequence, to read as follows:


Sec. 299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                              Currently
                                                               assigned
        INS form No.                  INS form title         OMB control
                                                                 No.
------------------------------------------------------------------------
I-914.......................  Application for T                1115-0246
                               Nonimmigrant Status.
 
                  *        *        *        *        *
------------------------------------------------------------------------


    Dated: January 24, 2002.
John Ashcroft,
Attorney General.

    Note: Form I-914 is published for informational purposes only 
and will not be codified in Title 8 of the Code of Federal 
Regulations.


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[FR Doc. 02-2186 Filed 1-30-02; 8:45 am]
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