3 USCIS-PM B.3
To apply for T nonimmigrant status, the principal applicant must file an Application for T Nonimmigrant Status (Form I-914).[1]
The applicant bears the burden of establishing eligibility for T nonimmigrant status.[2] The applicant must meet all the eligibility requirements from the time of filing the application through adjudication.[3]
The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. USCIS evaluates applications for T nonimmigrant status under the preponderance of the evidence standard. The applicant has the burden of demonstrating eligibility by a preponderance of the evidence.[4]
USCIS reviews all evidence and may investigate any aspect of the application. Officers may use evidence previously submitted by the applicant for any immigration benefit or relief in evaluating the eligibility of an applicant for T nonimmigrant status. USCIS is not bound by previous factual determinations made in connection with a prior application or petition for any immigration benefit or relief. USCIS determines, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence.[5]
In reviewing the application, officers consider the statements, arguments, and assertions of attorneys and accredited representatives, but they do not constitute evidence and are not entitled to evidentiary weight.[6]
An officer must consider any credible evidence an applicant submits to establish eligibility. The “any credible evidence” provision applies to the type or form of evidence officers must consider or may require. However, the standard of proof for each eligibility requirement remains a preponderance of the evidence. For each eligibility requirement, applicants must submit sufficient relevant, probative, and credible evidence to establish that the claim is “more likely than not” or “probably” true.[7]
Inability to Obtain Documentation and Evidence
In establishing eligibility for T nonimmigrant status, an applicant may submit “any credible evidence” for consideration.[8] USCIS recognizes the difficulties trafficking victims may experience in obtaining primary or secondary evidence relevant to establishing their eligibility, and therefore allows applicants to submit any credible evidence.
Due to the nature of their victimization (including possible loss of control of personal possessions as a tactic to further force, fraud, or coercion), trafficking victims may be unable to obtain certain personal information that would otherwise be available to support a determination of eligibility. The trafficker may control access to, confiscate, or destroy relevant documentation, including identification, travel, employment, or immigration documentation.
Applicants are not required to demonstrate the unavailability of primary and secondary evidence; however, when an applicant fails to submit evidence sufficient to establish eligibility, officers may request that the applicant demonstrate or explain the unavailability of a specific document or specific types of documents if they are necessary to establish eligibility. Although USCIS allows submission of any credible evidence and assesses the credibility of all evidence submitted, an explanation from the applicant regarding the unavailability of specific documents assists officers in determining eligibility.
Factual Inconsistencies
In evaluating the credibility and sufficiency of an applicant’s personal statement and other evidence submitted, officers must consider the impact of trauma and victimization. Officers should also be mindful of the complex ways in which trauma may present for survivors of trafficking, including cognitive, emotional, sensory, and physical impacts.
Because trauma impacts every person differently, what is traumatizing to one person may not be traumatizing to another. In some cases, trauma may result in the applicant being unable to recollect or express all details of the victimization in a linear fashion. Officers must review inconsistencies in the applicant’s story over the course of the applicant’s immigration journey in light of this fact, particularly if the applicant has established that the applicant is a victim of a severe form of trafficking in persons.
A person’s recollection of traumatic experiences may shift over time. As such, inconsistencies in the applicant’s account of victimization may not necessarily be indicators of fraud or lack of credibility but may instead be the result of a fragmented recollection due to trauma.
In addition, trafficking survivors may experience fear or mistrust of authorities, including law enforcement or immigration authorities, that may lead them to provide inconsistent information.
USCIS considers the totality of the circumstances in evaluating any inconsistencies in the record, including but not limited to:
If, after considering the totality of the circumstances, USCIS believes the inconsistencies in the evidence raise eligibility concerns, USCIS provides written notice of the issues in a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), giving the applicant the opportunity to respond and resolve the inconsistencies.
Officers should not require the applicant to submit particular types of evidence and may not deny applications for T nonimmigrant status due to the applicant’s failure to do so. However, officers may deny an application for T nonimmigrant status where evidence lacks credibility, and the credibility concerns are not overcome by other evidence, such that the applicant has not met their burden of proof to establish eligibility by a preponderance of the evidence. Officers must examine each piece of evidence individually and within the context of the totality of the evidence for relevance, probative value, and credibility.[9]
The determination of what evidence is credible and the weight given to each type of evidence is within the sole discretion of USCIS and determined on a case-by-case basis.[10] Evidence that is relevant includes specific facts that address the eligibility criteria for T nonimmigrant status. Probative value speaks not to the quantity of evidence but instead to its quality. Evidence that is credible is plausible, sufficiently detailed, and internally and externally consistent regarding each eligibility requirement.[11]
When an officer determines the applicant has failed to meet their burden of establishing an eligibility requirement by a preponderance of the evidence, the officer may issue an RFE or NOID requesting additional evidence to establish eligibility.
Any RFE or NOID must be tailored to address credibility or evidentiary issues as they relate to the applicant’s eligibility and refrain from retraumatizing a potential victim. For example, officers should not issue an RFE or NOID that expresses skepticism or disbelief about the applicant’s claim, but instead should focus on the need for additional detail, explain the lack of probative value of the evidence submitted, or highlight inconsistencies in the record.
After requesting an explanation or additional information from an applicant whose case presents credibility or evidentiary concerns, an officer determines whether their explanation is reasonable or they have submitted sufficient evidence to establish eligibility by a preponderance of the evidence.
USCIS makes determinations of credibility based on the particular facts and circumstances of the case, taking into account the limitations on the particular applicant’s ability to obtain evidence and the general considerations that pertain to victim-based cases, including the impact of trauma and victimization discussed above.
When filing the Application for T Nonimmigrant Status (Form I-914), the applicant should submit:
The applicant must also submit biometrics at a local Application Support Center after receipt of an appointment notice.[16]
An applicant may wish to submit evidence from a law enforcement agency (LEA) to help establish eligibility requirements, including victimization and compliance with reasonable requests for assistance.[17] Evidence from an LEA is optional, and USCIS does not give it any special evidentiary weight.[18]
Law Enforcement Agency Declaration
An applicant may provide evidence from an LEA by submitting a Declaration for Trafficking Victim (Form I-914, Supplement B). The Supplement B must be signed by a supervising official responsible for the investigation or prosecution of severe forms of trafficking in persons.
The LEA completing the Supplement B should attach the results of any name or database inquiries performed and describe the victimization (including dates where known) and the cooperation of the victim. USCIS, not the LEA, determines if the applicant was or is a victim of a severe form of trafficking in persons and otherwise meets the eligibility requirements for T nonimmigrant status. Under federal law, the decision of whether to complete a Supplement B is within the discretion of the LEA.[19] A formal investigation or prosecution is not required to complete a Supplement B.[20]
An LEA may disavow or withdraw the contents of a previously submitted Supplement B in writing.[21] After disavowal or withdrawal, USCIS generally no longer considers the Supplement B as evidence of the applicant’s compliance with requests for assistance in the LEA’s detection, investigation, or prosecution. However, USCIS may consider a disavowed or withdrawn Supplement B for other eligibility requirements along with any other credible evidence relevant to the application.[22]
USCIS determines whether to consider the disavowed or withdrawn Supplement B as evidence of compliance by assessing the stated reasons for the disavowal or withdrawal. If there is an explanation from the LEA for the withdrawal or disavowal, officers should consider that explanation in determining whether to still consider the declaration as evidence of compliance with requests for assistance.
Continued Presence Documentation
An applicant granted Continued Presence (CP) by the DHS Center for Countering Human Trafficking should submit documentation of the grant of CP.[23] DHS may revoke CP if the recipient commits a crime, absconds, departs without obtaining advance parole, receives an immigration benefit, or is determined not to be a trafficking victim. Once CP is revoked, USCIS generally no longer considers CP as evidence of the applicant’s compliance with requests for assistance in the LEA’s investigation or prosecution, but it may be considered for other purposes.[24]
If USCIS determines that the revocation of the CP was unrelated to an applicant’s compliance (for example, revocation due to the applicant departing without advance parole or for subsequent criminal conduct), USCIS may continue to consider the grant of CP as evidence of the applicant’s compliance with the LEA investigation or prosecution.
An applicant may also submit any evidence regarding entry, admission into, or permission to remain in the United States, or note that such evidence is contained within an applicant’s immigration file.[25]
The applicant must submit evidence that demonstrates that the applicant is or has been a victim of a severe form of trafficking in persons. The applicant’s evidence should establish that the trafficker:
If an applicant has not performed labor or services or a commercial sex act, the applicant must establish that they were recruited, transported, harbored, provided, or obtained (or in the case of sex trafficking, patronized or solicited) for the purpose of a commercial sex act or subjection to involuntary servitude, peonage, debt bondage, or slavery.[27]
The applicant may satisfy this requirement by submitting the following types of evidence:[28]
Applicants should describe the steps they have taken to report the crime to an LEA and indicate whether any criminal records relating to the trafficking crime are available.[31] If there has been civil litigation related to the trafficking, applicants may include this evidence as well.
Evidence of Physical Presence in the United States
The applicant must submit evidence demonstrating that the applicant is physically present in the United States or at a port-of-entry on account of trafficking in persons. Because the regulatory language about the physical presence requirement is phrased in the present tense, USCIS considers the victim’s current situation, and whether the victim can establish current presence in the United States on account of trafficking.
USCIS considers any credible evidence presented to determine physical presence, including the applicant’s responses on the application for T nonimmigrant status regarding when they escaped from the trafficker, what activities they have undertaken since that time, including any steps taken to deal with the consequences of having been trafficked, and the applicants’ ability to leave the United States.[32]
Applicants may establish physical presence by submitting the following types of evidence:
Evidence to Establish the Direct Relationship between the Applicant’s Ongoing Presence and the Original Trafficking in Persons
An applicant may support the claim that the applicant’s continuing presence in the United States is directly related to the original trafficking in persons by providing any credible evidence. Officers should consider all evidence describing the ongoing impacts of trafficking on the applicant’s life at the time of application using a victim-centered approach.
The applicant cannot satisfy the physical presence requirement[36] unless the evidence sufficiently establishes the connection between the specific impact of trauma on the applicant’s life at the time of filing and the applicant’s ongoing presence in the United States.
Evidence that USCIS may consider includes, but is not limited to:
Evidence of Reentry for or Physical Presence on Account of Participation in Investigative or Judicial Processes
There is a general presumption that victims who have traveled outside of the United States at any time after the act of trafficking and then returned are not present on account of trafficking. To overcome this presumption, applicants must show that their reentry into the United States was the result of continued victimization or that they are a victim of a new incident of a severe form of trafficking in persons.[37] This presumption also may be overcome when the applicant is allowed reentry in order to participate in investigative or judicial processes associated with an act or a perpetrator of trafficking.[38]
This presumption may also be overcome when the applicant’s current presence is directly related to their past or current participation in investigative or judicial processes associated with an act or perpetrator of trafficking, regardless of where such trafficking occurred.[39]
To establish that they were allowed entry or reentry into the United States to participate in an investigative or judicial process associated with an act or a perpetrator of trafficking, applicants must show documentation of entry through a legal means such as parole and must submit evidence that the entry is for participation in investigative or judicial processes associated with an act or perpetrator of trafficking.[40]
To establish that they are physically present on account of their participation in investigative or judicial processes associated with an act or perpetrator of trafficking, applicants need not show documentation of their entry through a legal means, but must submit evidence of their participation in the investigative or judicial processes. This is distinct from establishing physical presence after departure based on having been allowed entry for participation in investigative or judicial processes associated with the trafficking.
Such evidence may include:
Evidence of Presence Based on Receipt of Treatment or Services Related to Victimization
An applicant may also overcome the general presumption that they are not present on account of trafficking due to a departure and be considered physically present on account of their trafficking in cases where:
To satisfy this ground, the applicant must provide evidence of the treatment or services they received in the United States, as well as evidence that such treatment or services are not available in their home country or last place of residence outside the United States.
Such evidence may include:
If the applicant meets the physical presence requirement, the applicant must still satisfy all the other requirements for T nonimmigrant status, including compliance with reasonable requests for assistance from the LEA.
Evidence to Establish Compliance
In determining whether an applicant complied with reasonable LEA requests for assistance, USCIS examines the totality of the circumstances, including several specific factors,[42] and considers any credible evidence submitted.
To establish compliance with LEA requests for assistance, the applicant may submit a variety of evidence, including but not limited to:
The applicant should describe in their personal statement[44] what they have done to report the crime to an LEA and indicate whether criminal records relating to the trafficking crime are available.[45] The applicant’s statement should also show that an LEA with the responsibility and authority for the detection, investigation, or prosecution of severe forms of trafficking in persons has information about such trafficking in persons, and that the applicant has complied with any reasonable request for assistance in the investigation or prosecution of such acts of trafficking.
If the applicant did not report the crime, the applicant must provide an explanation to demonstrate that they qualify for an exemption due to age or an exception for trauma.[46]
The absence of a Supplement B generally does not adversely affect an applicant who can meet the evidentiary burden with the submission of other evidence of sufficient reliability and relevance. Though an LEA declaration is not required, USCIS considers it to be a useful and convenient form of evidence, among other types of credible evidence.[47] Even in the absence of an LEA declaration, USCIS may, at its discretion, contact the LEA that is involved in the case.[48]
Evidence to Establish Physical or Psychological Trauma Exception
To establish the trauma-based exception to the requirement to comply with reasonable LEA requests, an applicant may provide the following evidence:
To establish that the person providing the signed attestation is qualified to make such a determination, the applicant should provide a description or evidence of the person’s qualifications, credentials, or education, or provide a detailed description of the person’s contact and experience with the applicant.[59]
Although a victim’s affidavit alone may satisfy this evidentiary burden, USCIS strongly encourages applicants to submit additional relevant evidence.[60]
Evidence of Age-Based Exemption
If an applicant was under the age of 18 at the time of victimization and is therefore exempt from the requirement to comply with reasonable law enforcement requests, the applicant must submit credible evidence of their age, including an official copy of their birth certificate, a passport, or a certified medical opinion, if available.[61] The applicant may also submit other evidence of their age.
Applicants must submit evidence that demonstrates they would suffer extreme hardship involving unusual and severe harm if removed from the United States. When evaluating whether removal would result in extreme hardship involving unusual and severe harm, USCIS considers several factors.[62]
The applicant may document extreme hardship through a personal statement or other evidence, including evidence from relevant country condition reports and any other public or private sources of information. The applicant may include evidence of hardship arising from circumstances surrounding the victimization and any other circumstances.[63] USCIS does not consider evidence of hardship to persons other than the applicant unless the evidence specifically demonstrates hardship to the applicant as a result of hardship to another person.
Applicants under the age of 18 are not exempt from the extreme hardship requirement. However, USCIS considers an applicant’s age, maturity, and personal circumstances (among other factors) when evaluating the extreme hardship requirement.[64]
[^ 1] See the Form I-914 webpage for more information on filing.
[^ 3] See INA 291. See 8 CFR 103.2(b)(1) and 8 CFR 214.204(l).See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 4] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of Martinez (PDF), 21 I&N Dec. 1035, 1036 (BIA 1997). See Volume 1, General Policies and Procedures, E, Adjudications, Chapter 4, Burden and Standards of Proof, Section B, Standards of Proof [1 USCIS-PM E.4(B)].
[^ 5] See 8 CFR 214.204(l)(3).
[^ 6] See Matter of Obaigbena (PDF), 19 I&N Dec. 533, 534 n.2 (BIA 1988).
[^ 7] See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010).
[^ 8] See 8 CFR 214.204(l).
[^ 9] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010).
[^ 10] See 8 CFR 214.204(l)(3).
[^ 11] Internal consistency refers to consistency within the same document as the evidence in question. External consistency refers to consistency between the evidence in question and other pieces of evidence in the record.
[^ 12] See 8 CFR 214.204(c)(2).
[^ 13] See 8 CFR 214.204(c)(1).
[^ 14] See Fee Schedule (Form G-1055).
[^ 15] See 8 CFR 214.204(d).
[^ 16] See 8 CFR 103.16.
[^ 17] See 8 CFR 214.204(e).
[^ 18] See 8 CFR 214.204(e)(1) and 8 CFR 214.204(e)(2).
[^ 19] See 8 CFR 214.204(e)(5).
[^ 20] See 8 CFR 214.204(e)(6).
[^ 21] If a certifying official discovers information regarding a victim, crime, or Supplement B that the agency believes USCIS should be aware of, or if the official wishes to withdraw the certification, the official should contact USCIS using the directions outlined in the Instructions for Form I-914, Supplement B.
[^ 22] See 8 CFR 214.204(h).
[^ 23] See 8 CFR 214.204(i) and 28 CFR 1100.35 (U.S. Immigration and Customs Enforcement’s authority to grant Continued Presence).
[^ 24] See 8 CFR 214.204(i).
[^ 25] See 8 CFR 214.204(j).
[^ 26] See 8 CFR 214.206(a)(1).
[^ 27] See 8 CFR 214.206(a)(2).
[^ 28] See 8 CFR 214.206(a)(3).
[^ 29] See 8 CFR 214.204(i).
[^ 30] See 8 CFR 214.206(a)(3)(ii).
[^ 31] See 8 CFR 214.206(a).
[^ 32] See 8 CFR 214.207.
[^ 33] See 28 CFR 1100.35.
[^ 34] See INA 212(d)(5).
[^ 35] See 8 CFR 214.207(c).
[^ 36] See 8 CFR 214.207(a)(4).
[^ 37] See 8 CFR 214.207(b).
[^ 38] See 8 CFR 214.207(b)(3).
[^ 39] See 8 CFR 214.207(b)(4).
[^ 40] See 8 CFR 214.207(b)(3).
[^ 41] See 8 CFR 214.207(b)(5).
[^ 42] See Chapter 2, Eligibility Requirements, Section D, Requests for Law Enforcement Assistance, Subsection 2, Totality of the Circumstances Test [3 USCIS-PM B.2(D)(2)].
[^ 43] See 28 CFR 1100.35.
[^ 44] See Section C, Evidence, Subsection 3, Initial Filing and Accompanying Evidence [3 USCIS-PM B.3(C)(3)].
[^ 45] See 8 CFR 214.206(a)(2)(i). See 8 CFR 214.208(a) (requiring that the applicant has had contact with an LEA regarding the acts of a severe form of trafficking in persons).
[^ 46] See 8 CFR 214.208(e)(1) and 8 CFR 214.208(e)(2).
[^ 47] See 81 FR 92266, 92276 (PDF) (Dec. 19, 2016).
[^ 48] See 81 FR 92266, 92276 (PDF) (Dec. 19, 2016).
[^ 49] See 8 CFR 214.208(e)(1)(i).
[^ 50] See 8 CFR 214.208(e)(1)(ii).
[^ 51] See 8 CFR 214.208(e)(1)(iii).
[^ 52] See 8 CFR 214.208(e)(1)(iv).
[^ 53] See 8 CFR 214.208(e)(1)(v).
[^ 54] See 8 CFR 214.208(e)(1)(vi).
[^ 55] See 8 CFR 214.208(e)(1)(vii).
[^ 56] See 8 CFR 214.208(e)(1)(viii).
[^ 57] See 8 CFR 214.208(e)(1)(ix).
[^ 58] See 8 CFR 214.208(e)(1)(x).
[^ 59] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).
[^ 60] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).
[^ 61] See 8 CFR 214.208(e)(2). A certified medical opinion may include medical evaluations, dental assessments, and x-ray records.
[^ 62] See Chapter 2, Eligibility Requirements, Section E, Extreme Hardship, Subsection 2, Factors [3 USCIS-PM B.2(E)(2)].
[^ 63] See 8 CFR 214.209(a). See Volume 9, Waivers and Other Forms of Relief, Part O, Victims of Trafficking, Chapter 3, INA 212(d)(13) Waivers, Section A, Waiver Eligibility [9 USCIS-PM O.3(A)].
[^ 64] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).