Immigration

Laws current as of July 30, 2024

What is trafficking and how does it relate to T visas?

Trafficking is slavery in our midst. Human traffickers recruit, transport, hold, or kidnap their victims and force or trick them into providing sex in exchange for something of value (“sex trafficking”) or labor that is against their will or is in exchange for a so-called debt that can never be repaid (“labor trafficking”).¹ Traffickers often control victims so much that they can’t leave, sometimes through:

threats or violence against the victims’ family in the homeland;
threats or violence against the victims themselves;
taking the victims’ passport, identification, and money; or
physically locking the victims in the building where they are being held.

Traffickers often use victims’ social or economic status to lure them in and keep power over them.

A T visa is an immigration benefit for survivors of a severe form of human trafficking that occurred in or on the way to the U.S. It allows trafficking survivors to live and work legally in the United States for four years.² After having T visa status for three years, or sooner if a trafficking investigation or prosecution gets started and completed, you may request lawful permanent residence, commonly called a “green card.”³ If you want to apply for a green card, you must do so before your T visa status runs out.⁴ After holding a green card for five years, you could become eligible to apply for citizenship.

¹ INA § 101(a)(15)(T)(i)
² INA § 214(o)(7)(A)
³ INA § 245(l)(1)(A); 8 U.S.C. § 1255(l)(1)(A)
⁴ 8 CFR § 245.23(a)(3)

Will I be deported if my T visa application is denied?

If your T visa application is denied, it would be unusual for USCIS to put you into immigration court, known as “removal” or deportation proceedings. There is a law that says USCIS should not do this except if there are “serious aggravating circumstances,” like a very serious (“egregious”) criminal history, a threat to national security, or if you are actually committing human trafficking yourself.¹

Under the Biden Administration, this is even rarer because there is a government policy not to detain or deport survivors of trafficking except in “exceptional circumstances,” which usually means the survivor poses a current threat to national security or a risk of death or violence to another person.² However, each president can change this policy at any time if they wish, and there was a time in 2019 when referrals to immigration court for denied T visas were more common. If this happens, and you are put into removal proceedings, your T visa application can still be decided by USCIS. It does not necessarily mean you will end up being deported or that your T visa will be denied.

To avoid having your T visa application denied and ending up in removal proceedings, it is important to file a good, complete T visa case to start with, including all of the forms and documentation that help to prove all four requirements. This is hard to do without help from an attorney with experience in trafficking cases. Use our Finding a Lawyer page to find a lawyer in your state. You can also ask one of the national immigration organizations listed on our National Organizations - Immigration page to help find you a lawyer.

¹ 8 CFR 214.204(b)(3)
²ICE Directive 11005.3: Using a Victim-Centered Approach with Noncitizen Crime Victims

If I get put into deportation proceedings, can the judge grant me T visa status to allow me to stay in the U.S.?

Immigration judges in deportation (removal) proceedings do not have the power to give people T visa status, only USCIS does. If you already filed a T visa application, you could tell this to the judge, or you can tell the judge if you intend to file one. You can ask the judge to delay making a final decision on deportation so that USCIS can finish deciding your T visa application first. If the judge does not agree to delay the case and issues an order for your removal, it might be possible to appeal the judge’s decision within 30 days and remain in the country while the appeal is processed. This may buy you enough time for USCIS to finish deciding your T visa. If the T visa is granted while you are waiting for the appeal to be decided, your removal proceedings can be terminated in your favor and you will not be removed.

Note: There are other remedies that can be raised in court to defend against removal. So-called “regular” cancellation of removal could apply if you have been here for ten years or more and have a child, spouse, or parent who is a U.S. citizen or lawful permanent resident and would suffer exceptional and extremely unusual hardship without you. Or, VAWA cancellation of removal could apply if you or your child have been abused by your spouse who is a U.S. citizen or lawful permanent resident and you meet all other requirements for VAWA cancellation of removal.¹ Another possible option is asylum or withholding of removal,² which might apply if you have a fear of returning to your home country because you would face harm, torture, or persecution there. There are other requirements for these applications, however, and they may be very hard to win.

¹ INA § 240A(b)(1), (b)(2)
² INA § 208(b)(1); INA § 101(a)(42)(A)

How does USCIS determine if I am a victim of a "severe form of human trafficking"?

When deciding whether someone is a trafficking victim for purposes of a T visa, the government looks at whether the traffickers used or threatened to use force, coercion, or fraud to control the victim. Here are some examples of what this means:

Force: Traffickers may physically take people and force them to provide sex in exchange for something of value, or labor they don’t want to do. “Force” includes abduction and using physical violence or restraint.
Coercion: Traffickers may persuade people to provide sex in exchange for something, or labor they don’t want to do, because they threaten to harm or misuse the law against them or people they care about. “Coercion” includes direct and implied threats of harm or abuse of the legal system.
Fraud: Traffickers may promise people freedom and legal work but in reality, they make victims provide sex to get that freedom or legal job, or they make them do unpaid work against their will “Fraud” includes deception and false promises.

Many traffickers keep their victims in their control by threatening to hurt or punish them. The threat could be made to the victim directly or actions can be taken against another trafficking victim as a warning of what could happen. For example, a trafficker may rape a fellow worker to show that “this is what will happen to you if you don’t do what I want.” Traffickers may also make threats to harm the victim’s family members and loved ones, such as threatening to send someone to the victim’s homeland to rape, kill, or harm his/her family. Traffickers often threaten to call the police or Immigration and Customs Enforcement (ICE) to get victims who challenge them deported. Threats to report the victim to the police are known as “abuse of the legal process.”¹

For more information, you can read our section on Proving your case: T visa requirements, Requirement 1: You are or have been the victim of a “severe form of trafficking,” or go to the website of the government agency that decides T visas, the U.S. Citizenship and Immigration Services.

¹ 22 U.S.C. § 7102(3)

What does it mean to have “continued presence”? Is it the same as having T visa status?

“Continued presence” is a benefit that USCIS can grant to trafficking survivors if law enforcement requests it, but it is not the same as a T visa. Instead, it generally involves only a temporary permission to stay in the U.S., often for two years, and a work permit during that time. It is not a path to permanent residency or citizenship. Instead, it is a way for law enforcement to ensure trafficking victims get the services they need as quickly as possible while allowing them to stay legally in the United States to help with a criminal investigation or prosecution.¹ Continued presence usually ends once the criminal case is over. Trafficking victims who wish to stay in the U.S. should work with an attorney to get T visa status while they have continued presence.

Only federal law enforcement can seek continued presence on your behalf. Therefore, you must either work with a federal officer or ask your local law enforcement or other agency to contact federal law enforcement for help getting continued presence.² For information on contacting a federal law enforcement agency, see If I think I am a victim of severe human trafficking, how do I contact law enforcement for help?

¹ 22 U.S.C. § 7105(c)(3)(A)(i)
² 22 U.S.C. § 7105(c)(3)(C)

What is Labor-Based Deferred Action? Is it the same as having T visa status?

Labor-based deferred action, also known as deferred action for labor enforcement or “DALE,” is a temporary immigration benefit that allows people to stay in the U.S. and have a work permit if they have worked in a place where they were the victim of, or may have witnessed, workplace abuse or violation of labor laws.¹ It is not the same as a T visa and does not involve a path to lawful permanent residency or citizenship. It is typically granted for two years at a time. DALE may be renewed as long as an investigation or enforcement action is open against an employer for a violation of labor laws.

Labor laws protect against things like sexual harassment, including sexual assault, and sex or gender discrimination in the workplace. They also include violations related to how much people get paid or how many hours they must work. Both sex and labor trafficking survivors who were trafficked in a workplace may also have been victims of violations that could qualify them for DALE. In fact, people who suffered violations that do not quite meet the definition of trafficking may find DALE to be a useful alternative.

If your workplace has violated your rights or the rights of other workers, you should speak to a labor law attorney or immigration attorney about reporting the violation to a labor law enforcement agency and then applying for DALE. Currently, it takes only about two to six months for a DALE application and work permit request to be decided, so it is a great option for people who need a work permit sooner than they can get one through a T visa. You can apply for DALE and a T visa at the same time, without harming either application type.

¹ USCIS, DHS Support of the Enforcement of Labor and Employment Laws

What is a bona fide determination? At what point in the T visa application process does it happen?

If you file an application for a T visa after August 28, 2024, your application will automatically go through a new process called the bona fide determination process. If you filed before August 28, 2024, your application might go through this process, but only if:

your application is still pending on August 28, 2024; and
USCIS sends you a letter requesting more evidence to decide your application.¹

In short, the bona fide determination process is a mini or surface-level evaluation of your application where a USCIS agent will:

look at what you filed to make sure it is not fraudulent;
confirm that you are not missing any required application parts; and
run a background check to review your criminal history.²

If USCIS gives you a positive bona fide determination, it will issue you deferred action, which is a temporary protection against being put into removal proceedings. It can also issue you a work permit if you request one under filing category (c)(40).³If you were already ordered removed (deported) by an immigration judge, then a positive bona fide determination will also automatically prevent your actual physical deportation until a final decision is made on your T visa application.⁴

If you receive a positive bona fide determination, then any family members that you included as derivatives on your application will also have their applications go through the process for their own consideration.⁵ However, only derivatives who are in the U.S. can receive a bona fide determination.

¹ 8 CFR 214.204(m); 8 CFR 214.205
² 8 CFR 214.205(a)(2)
³8 CFR 274a.12(c)(40)
⁴ 8 CFR 214.205(b)(2)(iii)
⁵ 8 CFR 214.205(b)

If I receive a positive bona fide determination, does that mean my T visa application will be approved?

If you receive a positive bona fide determination, it is a good sign for your application, but it is not the same thing as having your T visa approved.

If you receive a negative bona fide determination, it is sometimes still possible for your full T visa application to be approved – USCIS will take a second, closer look at what you filed and might request more evidence. You will eventually receive a final decision either approving or denying your T visa.¹

¹ 8 CFR 214.205(a)(3)

What are the grounds of inadmissibility? How can they affect me?

Most people who want to enter the U.S. or get legal status in the U.S. must show they are not prohibited (barred) by a long set of rules called the “grounds of inadmissibility.”¹ This is also true for T visa petitioners. These rules are very complicated and your lawyer will need to know what the immigration courts and federal courts have said about them in order to understand whether any of the inadmissibility grounds may apply to you.

If you run into problems with one or more of the grounds of inadmissibility, you can apply for a waiver with your T visa petition. Then, U.S. Citizenship and Immigration Services (USCIS) will consider the pros and cons of your waiver application and decide whether or not to excuse (“waive”) the inadmissibility ground(s) by granting you a waiver. There are two types of waiver arguments that can succeed with a T visa. In the first, a waiver can be granted if there is a connection between your experience as a trafficking survivor and the event or action that makes you inadmissible. For this, USCIS also has to believe “it is in the national interest” to grant the waiver, which basically means it thinks the positive social and humanitarian considerations in your case outweigh the negative factors in your case.² In the second type of waiver, the three considerations balanced against each other are, (1) the risk of harm society might face if you are granted a T visa, (2) the seriousness of your inadmissibility ground(s) and any criminal history, and (3) your reason or need to be in the U.S.³USCIS denies many waivers, which means it also denies T visas for many petitioners asking for waivers. This is one main reason you must work with an immigration lawyer or advocate who knows about T visas.

¹ To read the list of inadmissibility grounds, go to INA § 212 on our Selected Federal Statutes page
² INA § 212(d)(13); 8 CFR § 212.16(b)
³ INA § 212(d)(3); Matter of Hranka, 16. I&N Dec. 491 (BIA 1998)

Legal Information: Federal