Corie O’Rourke, Cory Sagduyu, and Katherine Soltis wrote an article for the Spring 2021 edition of the AILA Law Journal entitled Present Yet Unprotected: USCIS’s Misinterpretation of the T Visa’s Physical Presence Requirement and Failure to Protect Trafficking Survivors. In this blog post they share how they developed the idea for the article and why it is so important to ensure the policy changes are reversed so trafficking survivors can be protected.

Prior to the Trump administration, foreign national trafficking survivors faced a difficult path to obtain services and legal status in the United States. However, the Trump administration made this path even harder. In the last four years, trafficking survivors faced countless obstacles in their attempts to secure legal status through a visa created specifically for trafficking survivors, known as the “T visa.” In particular, USCIS quietly began reinterpreting one of the T visa requirements without public announcement or warning, resulting in increased denials of T visa applications and leaving trafficking survivors unprotected. Although the Biden administration has already made progress in rolling back the harmful policies enacted under the previous administration, USCIS’s harmful – and unlawful – change in interpretation continues today.

In 2000, Congress created the T visa as part of the Trafficking Victims Protection Act (TVPA), a comprehensive piece of bipartisan legislation that sought to fight sex and labor trafficking in the United States and abroad. Congress recognized that foreign-born individuals are vulnerable to trafficking due to unfamiliarity with U.S. laws, language barriers, and isolation. However, fear of immigration enforcement often prevents foreign-born trafficking survivors from reporting traffickers to authorities or seeking critical assistance. Congress created the T visa to provide legal status to trafficking survivors and to encourage them to report their traffickers to law enforcement.

Under the TVPA and regulations, T visa applicants must prove not only that they are victims of trafficking, but also that they are “physically present in the United States . . . on account of such trafficking,” among other requirements. Prior to the Trump administration, USCIS interpreted the “physical presence” requirement broadly. USCIS generally found that this requirement was satisfied if the applicant had been trafficked in the United States and had not left the United States since escaping their trafficker.

However, beginning in 2018, various practitioners across the country – including us – noticed a sharp increase in USCIS issuing Requests for Evidence (RFEs) and denials based on the physical presence requirement. This typically occurred if more than a few years had passed between the applicant’s escape from their traffickers and when they applied for a T visa. This interpretation of the physical presence requirement contradicts the absence of any explicit T visa filing deadline in the TVPA or federal regulations.

USCIS’s demand of more evidence from trafficking survivors and its denial of T visa applications further harms a population that has already suffered severe abuse. USCIS’s actions require trafficking survivors to re-live traumatic memories, scrape together money for expensive appeals fees, and experience further anxiety at the thought of not obtaining the legal status for which they would otherwise qualify. USCIS’s misinterpretation of the physical presence requirement, combined with a series of other harmful policy changes from the Trump administration, made the T visa application process excessively difficult – if not impossible – for some survivors, leaving them unprotected and vulnerable to further abuse.

USCIS’s change in interpretation of the physical presence requirement has affected trafficking survivors nationwide. As T visa denials based on the physical presence requirement have rolled in over the past few years, we have filed motions to reopen, motions to reconsider, and appeals to USCIS’s Administrative Appeals Office (AAO). Following USCIS’s change in interpretation, AAO appeals involving the physical presence requirement increased significantly, amounting to nearly one-half of all T visa appeals in 2020. Additionally, there is at least one recent federal court case contesting USCIS’s changed interpretation of the physical presence requirement, claiming it constitutes an unlawful interpretation of regulations.

We have worked with dozens of trafficking survivors who have been harmed by policy changes enacted by the Trump administration. Although some of these policies have been reversed, many problematic practices remain, including USCIS’s changed interpretation of the “physical presence” requirement. This interpretation continues to harm trafficking survivors and hinder law enforcement from prosecuting traffickers.

Through our AILA Law Journal article, we hope to bring attention to this issue and advocate for USCIS’s adjudication process to be realigned with the TVPA and regulations so that trafficking survivors receive legal status and protection, as required by U.S. law.